cial construction, and usage; and to the use of these means, and these alone, the judiciary is confined. No other extrinsic facts are in any way to be taken into consideration.

It is not until these means fail, and until the attempt to ascertain the legislative intent is hopeless, that the judiciary can with propriety assume any power of construing a statute, strictly or liberally, with reference either to the particular character of the statute, or to their own ideas of policy or equity. Where the meaning of the statute, as it stands, is clear, they have no power to insert qualifications, engraft excep tions, or make modifications, under the idea of providing for cases in regard to which the Legislature has omitted any specific provisions.

In cases where the intent of the Legislature is ambiguous, and the effort to arrive at it is hopeless, and in these cases only, does the power of construing a statute strictly or liberally exist; and in regard to its exercise, as of discretionary power generally, no other rule can be laid down than that it must be exerted under the guidance of learning, fidelity, and practical sagacity.

In regard to the cases where statutes are held to be directory, the greatest difficulty exists; and in these there appears no mode of obviating it until legislative enactments shall be framed so as to specify with precision the consequences intended to follow upon a disregard of their provisions.

To the practiced mind these rules may at first sight appear useless or trivial; but perhaps they will not be so considered on a careful consideration of the labyrinth of cases in which we have been wandering, and on observing the difficulty of obtaining or of giving a clue to its dark and tortuous passages. That difficulty appears to me mainly to arise from the abuse of the power of strict and liberal construction, to which our at tention cannot be too often called.

The idea that an act may be strictly or liberally construed, without reference to the legislative intent, according as it is viewed either as a penal or a remedial statute, either as in derogation of the common law or a beneficial innovation,-is, in its very nature, delusive and fallacious. Every statute may

be said to have two aspects; if it be severe in regard to an individual, it is beneficial to the community; if it punishes crime, it also prevents fraud; if it infringes on some venerable rule of the ancient law, it also introduces more simple, rapid, and less expensive modes of procedure;-so that every act is capable, if this doctrine be admitted, of being construed in two ways diantetrically opposed to each other, according to the temper of the magistrate to whom the task is confided.

Again, the same act will be differently viewed under differ ent circumstances. The acts diminishing the severity of imprisonment for debt, will be at one time looked upon as loose and profligate enactments, impairing the rights of creditors; and at another as laws in favor of freedom and humanity. The usury laws will be at one period regarded as salutary restraints on the rapacity of capitalists, and at another as absurd restrictions on the commercial dealings of mankind; so that, if construed according to the different lights in which they are viewed, the same laws will be differently interpreted at different times, and even in different places at the same time.

The inconsistencies and discrepancies, as they now exist, do, in truth, too often arise from a desire, often an unconscious one, to substitute the judicial for the legislative will; and they can only be corrected by adhering to the cardinal rule that the judicial functions are always best discharged by an honest and earnest desire to ascertain and effect the intention of the law. making body.*

The Intention of the Legislature.-We have had repeated occasion to make use of this term in the course of the last two chapters, and it may not be amiss here to analyze the phrase more closely than has been done in the text. Where, then, in what minds, can the intent of a given legislative act be found, and how can its existence be proved? The question is asked as an abstract one, and without reference to any technical rule of any kind.

In regard to the general purport, or object, or intention of an act, no difficulty presents itself. If an act be passed to make a railroad, or to raise troops, no doubt can arise that every member of the majority which votes for the bill, concurs in the intention to accomplish the general object of the laws, viz., to make

* See the opinion of Chief Justice Edwards, in Hardin v. Owings, 1 Bibb, 215, Kentucky,—a case on the form of an appeal

bond, for a clear and forcible statement of the evils resulting from the loose notions of construction which have heretofore prevailed.

the road, or to raise the levies. But in regard to the particular meaning of particular phrases or clauses-those out of which all the difficulties of construction grow-the case is very different. Take, for instance, the statute forbidding sheriffs to buy at sales on executions issued to them (ante, p. 260), which has been construed to mean, "excepting in cases where sheriffs are plaintiffs," or the statutes authorizing all persons to make wills (ante, p. 259), and which has been construed not to include married women,-or any still nicer cases. Did the Legislature in these cases mean to exclude sheriff-plaintiffs, or to include married women? What was the legislative intent?

In seeking for an answer, many things are to be considered. In the first place, the intention is to be found in the acts of the majority, and the objects or purposes of those voting against the bill are to be left out of view. Of those who voted for the bills, how many considered the precise question,-as that a sheriff might be a plaintiff? How many knew anything of the rule of the common law, that married women are incompetent to make wills? How is it to be known in the case of the sheriffs' statute, that some one or more of the majority, even if they considered that a sheriff might be a plaintiff, did not intend, having this in their minds, to make an arbitrary and peremptory rule, like the statute of frauds, to prevent collusion or perjury. Again, if the clause be inserted by amendment, is the majority who voted for the amendment, the same as the majority who voted for the bill? Amendments are very frequently voted for by members hostile to a bill, for the purpose of defeating it, and yet the bill passes. Again, a committee reports a bill with one object, and it is completely or partially altered by amendments in its passage through the legislative body. These considerations, moreover, all apply to two bodies, thereby doubling the difficulty of arriving at the real intention of the law-making power. Illustrations of this kind might be extended almost indefinitely. They appear to me to be quite sufficient to show that even if the utmost latitude of proof was allowed, if reports and journals were consulted, if even the members themselves were put on the stand, it would be utterly impossible in the great majority of cases to prove what the intent of the legislative body actually was in framing or inserting any given particular clause or provision.

These considerations are not without practical weight. They go to show the only safe rule to be, that the legislative intent must be taken as expressed by the words which the Legislature has used, that all attempts by any kind of evidence to get at a legislative meaning different from that embodied in the words of the enactment, would from the nature of things prove illusory and vain; the interpretation in these cases is necessarily conjecture, tending to assume the shape of mere arbitrary discretion; and that construction should be strictly confined to cases of ambiguity or contradiction. "I hold that in respect to the intention of the Legislature, where the language of the act is explicit, the courts are bound to seek for it in the words of the act, and are not at liberty to suppose that they intended anything different from what their language imports." Mr. Senator Porter, in The Supervisors of Niagara v. The People, 7 Hill, 511.

THE CONSTRUCTION AND APPLICATION OF STATUTES IN PARTICULAR CASES.

Statutes Delegating Public Authority.-Revenue Laws.-Penal Laws.-Laws as Affecting the Rights of the Government.-Effects of Statutes on Contracts in Violation of them.-Cumulative Remedies and Penalties.-Retroactive Effect of Laws.-Waiver.-Rule that the last Statute in point of time Prevails.-Computation of Time in Statutes.—Subject-matter.-General Words.-Misdescription and Surplusage.-Remoteness of Effect.-Statutes against Wagers.-Corporations.-The Interpretation and Proof of Foreign Laws.-Revision of Statutes.-State Laws, how Construed in the Courts of the United States.-Interpretation of Particular Words.-Miscellaneous Cases.-Grants of Patents.

HAVING in the previous chapters considered the general principles of interpretation applicable to statutory law, I now proceed, for the more complete understanding of the subject, to examine the construction and application of statutes in particu lar cases. This will lead me, perhaps at the risk of a repetition of matters already somewhat discussed under the head of the incidents and attributes of statutes, to consider certain classes of enactments, the application of certain general rules or maxims of our law to this special branch of it, to speak of certain arbitrary rules of interpretation which have been adopted, and finally to examine the sense in which particular words are received.

Statutes Delegating Authority to Public Officers. We have already* called attention to the subject of public officers created by statute; and although the general disposition of the judiciary seems to be to treat such agents with liberal confidence, so long as they appear to be acting in good faith, with due discretion, and within the limits of their conceded powers, and although in the exercise of mere discretionary authority, the courts are unwilling to interfere,-yet where public officers overstep the

*Ante, pp. 81, 82.

bounds of their authority, and the courts are appealed to as matter of strict right, the actions of these agents are vigilantly watched, and their infringements of private right unhesitatingly repressed. This doctrine we have already partially considered under the heads of summary judicial and administrative proceedings.*

So where a statute of the State of Illinois authorized certain commissioners to borrow money and issue bonds, but the stock or bonds of the State were in no case to be sold for less than their par value, it appearing that the securities had been sold for less. than par, the sale was held to be void, and an injunction against the purchaser ordered. So in Michigan, where a statute authorized the agent of the State prison to let out convicts, and required him to give notice in a public newspaper for sealed proposals for letting the convicts, it was held that the statute must be strictly pursued; and a contract made without the statutory notice was adjudged void. So again, where county com missioners were authorized to loan money on mortgage, and upon non-payment the commissioners were directed by statute to advertise for sale in three places, it was held that a compliance with the statute was indispensable; and the direc tions of the act having been neglected the sale was held void.]

In cases of authority of this kind, where personal trust or confidence is reposed in the agent-where his discretion is to be exercised the authority is purely personal, and cannot be delegated. Thus, where authority was conferred upon canal commissioners to enter upon lands, &c., it was held that the power could only be exercised by them in person, or by their express direction, and that an engineer, or other subagent could not exercise the power without the express directions of the com

* Ante, p. 309.

The State of Illinois v. Delafield, 8 Paige, 527. See this case for a discussion of the meaning of the word par, and of the subject of exchange.

Agent of State Prison v. Lathrop, 1 Michigan, 438.

Denning v. Smith, 3 J. C. R. 332; Nixon v. Hyserott, 5 J. R. 58.

In regard to these questions of the power and jurisdiction of public officers, we may here notice the rule that process regular on its face, and apparently within the jurisdic

tion of the court or officer issuing it, is a complete justification to the ministerial officer by whom it is executed, though in fact the court or officer had no jurisdiction. So it has been decided in regard to an execution, regular on its face, issued on a justice's judgment in a case where the justice had no jurisdiction; Savacool v. Boughton, 5 Wend. 170; and also in regard to a school-district tax warrant regular on its face, though the district meeting at which the tax was voted, was illegal; Abbott v. Yost, 2 Denio, 86.