of a statute, it must be negatived in pleading, but a separate proviso need not; and, that although it is found in the same section of the act, if it be not referred to, and engrafted on the enacting clause. The rule is, said Mr. Justice Ashurst,* "that any man who will bring an action for a penalty on an act of Parliament, must show himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter of defence, and the other party must show it to exempt himself from the penalty." Mr. Justice Buller said, “I do not know any case for a penalty on a statute, where there is an exception in the enacting clause, that the plaintiff must not show that the party whom he sues, is not within it." So in a criminal case, Lord Mansfield said, "What comes by way of proviso in a statute, must be insisted on for the purposes of defense by the party accused; but where exceptions are in the enacting part of the law, it must in the indictment charge that the indictment is not within any of them."+ This rule as to prosecutions upon penal statutes, that it is necessary to show, by negative averments, that the defendant is not within- any of the exceptions of the enacting part of the statute, has been frequently recognized in this country. So, if a statute provides that no person shall retail spirituous. liquors except for sacramental, mechanical, chemical, medical, or culinary purposes, an indictment on the statute must negative that the liquor was sold for these purposes.

* Spiers vs. Parker, 1 Term, 141.

Dwarris, p. 516; Rex vs. Jarvis, Burr, 148; Spiers vs. Parker, 1 T. R. 141; The King vs. Jukes, 8 T. R. 542, Foster, 430; The King vs. Stone, and Rex cs. Jarvis, 1 East. 644; Kent Com. i. 462, and People vs Berberrich and Toynbee, 11 Howard Pr. R. p. 333.

Chit. Crim. Law, vol. i. p. 284; Brutton rs the State, 4 Indiana, 602; People vs. Berberrich & Toynbee, 11 Howard Pr. R. p. 289, 333.

Schedules.-When, for the purpose of a more than usually comprehensive enactment, it is deemed necessary to include the intended meaning of numerous words in the arbitrary import of one, or that there should be numerous words bearing the same constructive import, that end should be attained by means of a schedule annexed to the act. But the act of Parliament and the schedule, are sometimes found to differ; and what will be the result of such discrepancy? If there be any contradiction between the two, and they cannot be reconciled, then, said Lord Denman, "upon ordinary principles the form which is made to suit rather the generality of cases than all cases, must give way." "Words in schedules must be received as examples, not as overruling provisions," said Tindal, C. J.*

* Reg vs. Baines, 12 A. and E, 227; Dwarris, p. 511.

CHAPTER IV.

THE ATTRIBUTES AND INCIDENTS OF STATUTES.

Applications for the passage of Statutes-Contracts to obtain the passage of Statutes, or to withdraw opposition-Authority and Jurisdiction of Statutes-Time when Statutes take effect-Effect of Statutes to avoid contracts in violation of them-Remedies for the violation of StatutesStatutory Forfeitures-Ignorance of Statute no excuse-] -Limitations of actions-Waiver of Statutes by consent-Pleading and Proof of StatutesRepeal.

We have now to consider the more important attributes and incidents of statutes from the time of the first steps taken for their enactment to that of their repeal. This will embrace, among other subjects, applications to the legislature for the passage of laws; the effect of contracts to obtain or oppose their enactment; their authority and jurisdiction; remedies and waiver; the rules of pleading and of proof with regard to them; and finally, the results of their repeal.

As a general rule, no public notice is necessary previous to the introduction or passage of an act. Bills are framed either upon petitions, or upon the mere motion of members of the legislative body; and parties interested have only such notice of their introduction as the wisdom of the legislator sees fit to require.* To

The Constitution of New York declares, Art. iii. § 14, "that no law shall be enacted except by bill." The Constitution of Wisconsin contains a similar provision. Art. iv. § 17.

this general practice there is an exception in North Carolina, the constitution of which State provides "that the General Assembly shall not pass any private law unless it shall be made to appear that thirty days' notice of application to pass such law shall have been given, under such directions and in such manner as shall be provided by law";* and also in the State of New York, where the revised statutes declare that, in regard to applications for acts of incorporation, alteration of county, city, or village boundaries, local taxes, escheats, and certain other public objects, notice of the intention to apply to the legislature shall be given, by newspaper advertisement. But it has been held, in regard to a statute of this class, that it was not necessary to furnish any proof of the publication of the notice having been in fact made; and it was said, "that the notice was a direction to the public, calculated merely to guard the legislature from surprise and fraud, and to prevent hasty and improvident legislation; that the rule was made by the legislature for its own convenience and might be entirely disregarded; and that a law would be valid although no notice whatever of the application was published."+

This decision, though perhaps sound, is evidently calculated to defeat the intent of the statutory provision; but in general the effort of our law is, as far as possible to guard against undue private interference with the functions of government. So in this country, contracts made with a view to secure the passage of legislative enactments, or the performance of executive acts, have been held to be void, as against public policy.

* Amendments to Constitution, Art. i. § 5.

† 1 R. S. 155, Part i. Ch. vii. Title 3, §§ 1, 2, et seq.
Smith vs. Helmer, 7 Barbour, 416.

CONTRACTS TO OBTAIN PASSAGE OF LAWS.

67

Thus a contract founded on an agreement to obtain signatures for a pardon,* to procure the passage of an act by the legislature by using personal influence,† to pay a sum for withdrawing opposition to the passage of a law touching the interests of a corporation,‡ have all been held void. In like manner, in New York, it has been decided that no action will lie for services as a lobby agent, in attending to a claim against the State pending before the legislature; Mr. Justice Hand, in the language of a high-toned morality, alike creditable to himself and to the court of which he is a member, saying, "It is to be intended that the legislature always have truth and justice before their eyes. It would certainly imply a most unjustifiable dereliction of duty, to hold that the employment of individuals to visit and importune the members is necessary to obtain justice."§ In England, however, it seems that an agreement to withdraw opposition to a railway bill for a pecuniary or other consideration, is not illegal in itself; and such an agreement will be upheld unless it contains something against other acts of Parliament, or injurious to the public or the shareholders.

An interesting question in regard to the passage of laws, has presented itself in this country, growing out of the constitutional provisions in some of the States, requiring the concurrence and assent of certain prescribed legislative majorities, as two-thirds of the mem

* Hatzfield vs. Gulden, 7 Watts, 152.

+ Clippinger cs. Hepbaugh, 5 Watts and Serg., 315.

Purgey vs. Washburn, 1 Ack., 264.

§ Harris vs. Roof's Executors, 10 Barb., 489. But does not the learned judge, too probably, "paint men as they should be, not as they are?”

| Shrewsbury and Birmingham R. Co. vs. London and North Western Co., 2 Macnaghten and G. 324.