It would not ordinarily be relevant to the question in hand to take into view enactments on other subjects; yet, should a case occur in which the relevancy was manifest, plainly this would be permissible. Illustrations of interpreting statutes together might be multiplied without end. Thus,

§87. Term of office.- The term of an office newly created may be derivable from the prior general law. So,

Appeal. If a new jurisdiction is given a court from which the law provides an appeal, the right of appeal attaches to the new case.

And,

Powers recited, then conferred.-Where an act confers powers recited in another act, the former is to be construed as though the latter were a part of it.' Again,

Limitations. A statute of limitations may be applied to an offense created by a subsequent statute."

Intent from prior laws.— If the intent of the legislature can be gathered from prior laws and from the prevailing tone of other sections of the same act, conflicting words may be bent from their literal meanings to harmonize with those more explicit, or so restricted or enlarged as to carry out such intent."

Notice. Where by one section a certain notice is to be published for ten days in succession, and by another all notices are to be published daily, Sundays excepted, the two sections should be read togther; meaning, that the Sundays be included for enumeration, but not for publication. Moreover,

Restraining provision. As the several parts of a statute are to be made harmonious with each other and with the object of the whole, particular provisions are not to be extended beyond the general scope unless manifestly intended.

Colo. 242, 19 L R. A. 649, 32 Pac. R. 429; U. S. v. Benson, 31 Fed. R. 896; S. v. Sloss, 83 Ala. 93, 3 S. R. 745; Gibbons v. Brittenum, 56 Miss. 251; Graham v. Gunn, 87 Tenn. 458, 11 S. W. R. 214. Civil statutes in pari materia may explain a criminal enactment. Braun v. S., 49 S. W. R. (Tex.) 620.]

And see Stewart v. Walters, 9 Vroom, 274.

Turney v. Wilton, 36 Ill. 385. And see Canastota, etc. R. R. Co. v. Parkill, 50 Barb. 601.

4 Johnson v. U. S., 3 McLean, 89. "Noble v. S., 1 Greene (Iowa), 325. 6 Taylor v. Palmer, 31 Cal. 240. 7 Ante, § 86; Ellison v. Mobile & Ohio R. R. Co., 36 Miss. 572.

1P. v. Colton, 6 Cal. 84.
2Com. v. Messenger, 4 Mass. 462, 468.
§ 151.

8 Ticknor's Estate, 13 Mich. 44; post,

§ 88. Common law with statute.-The common law, as prevailing at the time when a statute is passed, is as much to be taken into the account in the construction of the latter as is a prior enactment. Numerous illustrations of this proposition will appear in other connections. For present illustration,—

Aiders in poaching.— An English statute (9 Geo. 4, ch. 69, § 9) against night poaching made it punishable "if any persons to the number of three or more together shall by night unlawfully enter or be in any land, whether open or inclosed, for the purpose," etc. And, by the common law, one who is constructively or actively present encouraging another while committing a crime is himself a principal offender. Applying this common-law doctrine to the statute, the result was that, if one of a party of poachers was found actually within the particular grounds and the rest were upon adjoining land co-operating with this one, "all," in the language of Gurney, B., "may be said to be found in the clover field, within the meaning of the statute," a conclusion impossible but for the help of the comAnd

mon law.

Acting by deputy —(Constable).- It was held in California, that, as by the common law officers who exercise only ministerial functions may act by deputy, constables, being such officers, have this power. It is believed that not in all the states are the statutes in terms to admit of this conclusion.

§ 89. Statute with constitution.— Our written constitutions are, as already seen,' laws; and not the less so because they are

1 Ante, SS 5-7, 82.

2 See post, § 131-144.

3 Rex v. Andrews, 2 Moody & R. 37, 38; Rex v. Lockett, 7 Car. & P. 300; Rex v. Passey, 7 Car. & P. 282.

4 Jobson v. Fennell, 35 Cal. 711. I do not mean to express any opinion as to the correctness of this doctrine in general American law. It is, I presume, beyond real question, that, by the English common law, a constable can appoint a deputy. Toml. & Jacob's Law Dict., "Constable," "Deputy;" Burn Just., "Constable;" Midhurst v. Waite, 3 Bur. 1259, 1262; Rex v. Hope Mansell, Cald. 252. And the reason commonly assigned is,

that the office is ministerial. But, in Coke's Reports, this sort of doctrine is put as follows: "When an officer has power to make assignees, he may implicite make deputies; for cui licet quod majus est, non debet quod minus est non licere. And, by consequence, when an office is granted to one and his heirs, thereby he may make an assignee, and by consequence a dep uty." Shrewsbury's Case, 9 Co. 46b, 48b. These are only suggestions to ward the investigation of the question. It is familiar doctrine that, in this country, offices are not assign able.

5 Ante, §§ 11a, 12, 16.

supreme over the statutes. For the same reason, therefore, that statutes are to be construed with statutes and with the unwritten law, they are also to be construed with the constitution.' Thus, to repeat an illustration from "Criminal Procedure,"

Giving appeal. A system of statutory law having provided for appeals from justices of the peace to courts sitting with juries (they being without juries), a new enactment conferred on them jurisdiction over an offense of a sort entitling the accused to a jury trial. And the court held that, to secure the jury trial, the constitution, operating with the statute, gave the right of appeal.' But

890. Partial conflict. The flexibility with which statutes, in partial conflict, will sometimes yield to one another without much regard to the comparative dates of their enactment, does not extend to the like conflicts between a statute and a written constitution. The constitution will never give way; while, on the other hand, if there are two possible constructions of the statute, the one harmonious with the constitution and the other opposed, the harmonious must be adopted. And

Presumed legislative purpose.— The courts will presume the legislature intended its acts to be reasonable, constitutional and just; and, when possible, consistently with any fair rendering of the words, will so construe them as not to make them otherwise. But this rule will not be carried to the ex

1Eskridge v. S., 25 Ala. 30; Crim.
Proc., I, § 894.
Crim. Proc., I, § 894; Johnson's
Case, 1 Greenl. 230.

Duncombe v. Pringle, 12 Iowa, 1;
Roosevelt v. Godard, 52 Barb. 533;
Colwell v. May's Landing Water
Power Co., 4 C. E. Green, 245; New
Orleans v. Salamander Co., 25 La.
An. 650; Slack v. Jacob, 8 W. Va. 612;

Camp
v. Rogers, 44 Conn. 291; P. v.
Peacock, 98 Ill. 172; Sutherland v.
De Leon, 1 Tex. 250, [46 Am. D. 100;
Bassett v. Mills, 89 Tex. 162, 34 S. W.
R. 93; Stanley v. Wabash, 100 Mo.
435, 13 S. W. R. 709; Quartlebaum v.
S., 79 Ala., 1; P. v. Hayne, 83 Cal. 111,
23 Pac. R. 1; Wilkins v. S., 118 Ind. 514,

16 N. E. R. 192; Wells v. Mo. P. R. R. Co., 110 Mo. 286, 19 S. W. R. 530; S. v. Simmons' Hardware Co., 109 Mo. 118, 18 S. W. R.1125; Rosenberg v. Weekes, 67 Tex. 578, 4 S. W. R. 899; Ferguson v. Stamford, 60 Conn. 432, 22 Atl. R. 782; S. v. Haring, 55 N. J. 327, 26 Atl R. 915.]

4U. S. v. Coombs, 12 Pet. 72; Parsons v. Bedford, 3 Pet. 433; Ham v. McClaws, 1 Bay, 93, 98; Murray v. Gibson, 15 How. (U. S.) 421; Com. v. Getchell, 16 Pick. 452; McMullen v. Hodge, 5 Tex. 34; Scott v. Smart, 1 Mich. 295; Com. v. Edwards, 9 Dana, 447; Eason v. S., 6 Eng. 481; Hogg v. Zanesville. Canal & Mfg. Co., 5 Ohio, 410, 417; Iowa Homestead Co. v

tent of giving the enactment a meaning plainly repugnant to its terms.'

90

1

CHAPTER XII.

THE INTERPRETATION OF WRITTEN CONSTITUTIONS.

§ 91. Elsewhere.- We have just seen that a statute will, when possible, be so interpreted as to harmonize with the written constitution.1 And in other connections the doctrine of pronouncing a statute void, in whole or in part, when in conflict with the constitution, is explained. Thus, we saw that,

Duty of courts. When a statute is void, as in conflict with a constitutional inhibition, the courts should pronounce it so.3 But

Duty of legislature.- The members of the legislature are, equally with the judges, sworn to support the constitution; if not so uniformly learned in the law, many of them are; and it is no more permissible for the one body to pass an unconstitutional enactment than for the other to enforce it. So that

Legislative decision.—The decision of the legislature on the meaning and effect of the constitution, necessarily involved in the making of a statute, should be respected by the courts when afterward they are required to determine whether or not it is constitutional. Practically, judges differ on this question; some manifesting little or no regard for the opinions of the law-makers. Greater numbers, with a higher respect for a co-ordinate branch of the government, refuse to annul a statute as unconstitutional until, after giving full weight to the legislative decision, they discern distinctly and affirmatively that it is wrong. And such is plainly, in reason, and overwhelmingly in weight of authority,

Ante, § 90.

est in, and is not affected by, the provision. S. v. McNulty, 7 N. Dak. 169, 73 N. W. R. 87; P. v. Rensselaer, 15 Wend. 113; Stickrod v. Com., 86 Ky. 285, 5 S. W. R. 580; S. v. Snow, 3 R. I. 64; Smith v. Inge, 80 Ala. 283; Black v. Fleece, 2 Lea (Tenn.), 566; Gilbreath v. Gilliland, 95 Tenn. 383, 32 S. W. R.

Ante, §§ 12, 16, 33, 37. Fletcher v. Peck, 6 Cranch, 87; University v. Williams, 9 Gill & J. 365, 384, [31 Am. D. 72;] 1 Kent, Com. 448; Bailey v. Philadelphia, etc. R. R. Co., 4 Harring. (Del.) 389, [44 Am. D. 593. But no one can take advantage of an unconstitutional pro- 250.] vision in a statute who has no inter