« 이전계속 »
nity, of which the courts are bound to take judicial notice; private acts are those which concern only a particular species, thing or person, and of these the courts are not bound to take notice; they must be pleaded. Dwarris thus defines these statutes in contradistinction: “Public acts relate to the public at large, and private acts concern the particular interest or benefit of certain individuals or particular classes of men.” A public act need not be a universal rule, in the sense that it must purport to apply to the whole territory or the entire people subject to the legislative jurisdiction. It may be applicable to only the smallest political division, or to a small class of the people, and still be a public statute. If it concern the public, and not merely a private interest, it is a public statute, though local or special.? A public statute affects the public at large, either throughout the entire state or within the limits of a particular locality where the act operates; and a private statute relates to or affects a particular person, by name, or so that certain individuals or classes of persons are interested in a manner peculiar to themselves, and not in common with the entire community. The distinction by the English common law is not very plainly marked. The American cases, however, show a manifest divergence, by enlarging the class of public statutes. In a public act there may be a
* private clause.' So, in a private act, there may be a provision of a public nature; 6 and thus a statute may be public in one part and private in another. A public statute is local when it relates to a particular place or locality, or does not extend to all places which would classify with that to which the act is confined. It is special not only when it is local, but also
? 11 Black. Com. 86; Prigge v. Ad- 103 U. S. 447; Stephens Co. v. R. R. ams, Skin. 350.
Co. 33 N. J. L. 229; State v. Bergen, 2 Ante, S 203; Clark v. Janesville, 34 N. J. L. 438; Winooski v. Gokey, 10 Wis. 136; State v. Baltimore, 29 49 Vt. 282. Md. 516; Wheeler v. Philadelphia, 77 5 Potter's Dwarris, 53. Pa. St. 338; Brooks v. Hyde, 37 Cal. 6 Rex v. Bugg, Skin. 428; Allen366; Cox v. State, 8 Tex. App. 254, town v. Hower, 93 Pa. St. 332, 336; 287.
People v. Supervisors of Chautauqua 3 State v. Chambers, 93 N. C. 600; Co. 43 N. Y. 10; Bretz v. New York, People v. Wright, 70 III. 388; Monta- 4 Abb. Pr. (N. S.) 258; McLain v. New gue v. State, 54 Md. 481; State v. York, 3 Daly, 32; Heridia v. Ayres, Helmes, 3 N. J. L. *1050.
12 Pick, 334. 4 Ante, § 203; Unity v. Burrage, · People v. Harper, 91 Ill. 357; State
when it is confined in its subject to less than a class of persons or things. These distinctions have been treated more at large in another place, to which the reader is referred.?
$ 199. Public and private statutes are construed upon different considerations. In a late case Lord Esher, M. R., said: “ In the case of a public act, you construe it keeping in view the fact that it must be taken to have been passed for the public advantage, and you apply certain fixed canons to its construction. In the case of a private act which is obtained by persons for their own benefit, you construe more strictly provisions which they allege to be in their favor, because the persons who obtain a private act ought to take care that it is so worded that that which they desire to obtain is plainly stated in it; but when the construction is perfectly clear, there is no difference between the modes of construing a private act and a public act." 3 However difficult the construction of a private act may be, when once the court has arrived at the true construction, after having subjected it to the strictest criticism, the consequences are precisely the same as in the case of a public act.
$ 200. Declaratory statutes.— A declaratory act was originally one declaratory of the common law; such statutes were made, says Mr. Dwarris, when an old custom of the kingdom is almost fallen into disuse, or become disputable, in which case the parliament thinks proper, in perpetuam rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been.5 Such statutes are to be
v. Judges, 21 Ohio St. 1; People v. 343; People v. Davis, 61 Barb. 456; Hills, 35 N. Y. 449, 451; Gaskin v. Bretz v. New York, 6 Robt. 325; Meek, 42 id. 186; People v. O'Brien, Meshke v. Van Doren, 16 Wis. 319; 38 id. 193, 195; Kerrigan v. Force, 68 Price v. White, 27 Mo. 275. id. 381; Fire Department of Troy v. 1 Ante, $ 193. See Wheeler v. PhilaBacon, 2 Abb. App. 127; People v. delphia, 77 Pa. St. 338. Allen, 1 Lans. 248; Healey v. Dud- 2 Ante, $ 193. ley, 5 Lans. 115; Burnham v. Acton, 3 Altrincham Union V. Cheshire 4 Abb. Pr. (N. S.) 1; Levy v. State, 6 Lines Committee, L. R. 15 Q. B. Div. Ind. 281; Pierce v. Kimball, 9 Greenlf. 597, 603. 54; Berens v. Baxter, 23 Ark. 387; 4 Id. ; Perry v. Newsom, 1 Ired. Eq. West V. Blake, 4 Blackf. 234; Re 28; Bartlett v. Morris, 9 Port. 266; Wakker, 1 Edm. Sel. Cas. 575; Mc- Union Pac. R. R. Co. v. United States, Lain v. New York, 3 Daly, 32. See 10 Ct. of Cl. 559 (affirmed 91 U. S. 72). Yellow R. Imp. Co. v. Arnold, 46 5 Dwar. on St. 475, 477. See Moog Wis. 214, 222; Orr v. Rhine, 45 Tex. v. Randolph, 77 Ala. 597.
construed, if possible, according to the common law. They are expressed affirmatively or in negative terms. A statute made in the affirmative, without any negative expressed or implied, does not take away the common law. It follows that it does not affect any prescriptions or customs clashing with it which were before allowed; in other words, the common law continues to be construed as it was before the recognition by parliament. A statute declaratory of the common law should
? not retroact upon past controversies, or reverse decisions which the courts in the exercise of their undoubted authority have made. This would be the exercise of judicial power, which, if tolerated, might constitute the legislature a court of review in all cases where disappointed partisans could obtain a hearing after being dissatisfied with the rulings of the court."
S 201. A declaratory statute is sometimes intended to declare the meaning of an existing statute. Such statutes are akin to interpretation clauses,— they are futile and inoperative in legislation when designed to affect rights retrospectively; but will operate prospectively. A declaration in an act of the legislature as to what they intended in a preceding act does not make the law retrospectively what is so declared to be intended, if the previous act will not bear that interpretation; though such declared intention will be effective in the future." Such statutes will be construed, if possible, as intended only to lay down a rule for future cases.
People v. Butler, 16 John. 203; ough, 11 Pa. St. 489; Reiser v. Tell Hewey v. Nourse, 54 Me. 256; Free Association, 39 id. 137; Kupfert v. man v. People, 4 Denio, 9, 20; Baker Building Asso. 30 Pa. St. 465; Linv. Baker, 13 Cal. 87; Commonwealth coln, etc. Asso. v. Graham, 7 Neb. 173; v. Humphries, 7 Mass. 242.
Moser v. White, 29 Mich. 59; People ? Dwar, on St. ; 2 Inst. 200.
v. Supervisors, 16 N. Y. 424; Ogden 3 Cooley, Const. Lim. 94; Salters v. v. Blackledge, 2 Cranch, 272; Dash v. Tobias, 3 Paige, 338; People v. Su- Van Kleeck, 7 John. 477; Young v. pervisors, 16 N. Y. 424. A mandate Beardsley, 11 Paige, 93; Ashley, Apof the legislature to the judiciary, di- pellant, 4 Pick. 23. See Reis v. Graff, recting what construction shall be 51 Cal. 86. placed on existing statutes, is an as- 5 Bassett v. United States, 2 Ct. of sumption of judicial power, and un- Cl. 418. constitutional. Governor v. Porter, 5 6 Todd v. Clapp, 118 Mass. 495 ; ShalHumph. 165.
low v. Salem, 136 id. 136; McNichol + Postmaster-General v. Early, 12 v. United States, etc. Agency, 74 Mo. Wheat. 148; Governor v. Porter, 5 457; Bernier v. Becker, 37 Ohio St. Humph. 165; Greenough v. Green- 72; Linn v. Scott, 3 Tex. 67; CitiA nega
$ 202. Affirmative and negative statutes.- An affirmative statute is one which is enacted in affirmative terms. tive statute is one expressed in negative terms. These statutes have very different effects; the former is generally cumulative, the other displaces existing rules. An affirmative statute does not take away the common law in relation to the same matter. An affirmative provision without any negative expressed or implied makes no alteration in any common-law rule in regard to the same subject-matter. A statute authorizing a tenant in fee to lease for twenty-one years did not affect his common-law right to lease for a longer period. An act authorizing a particular court to try a certain offense does not conflict with an earlier act giving power to another to try the same offense. So a statute imposing a liability on certain persons to repair a road was held not inconsistent with the common-law duty of the parish to make such repairs, and therefore did not impliedly exonerate the parish. Where an affirmative statute provides a new remedy for an existing right not inconsistent with the common-law remedy, the latter is not abolished; the new remedy is cumulative, and the party possessing the right may pursue either at his election. The zens' Gas Light Co. v. Alden, 44 N. J. Square, 3 Camp. 222. See Gibson v. L. 648; Lambertson v. Hogan, 2 Pa. Preston, L. R. 5 Q. B. 219. St. 22; Journeay v. Gibson, 56 id. 57, 5 Caswell v. Worth, 5 E. & B. 819; 61; James v. Rowland, 52 Md. 462; Waldo v. Bell, 13 La. Ann. 329; RauLes Bois v. Bramell, 4 How.449; Bas- debaugh v. Shelley, 6 Ohio St. 307; sett v. United States, 2 Ct. of Cl. 418. O'Flaherty v. McDowell, 6 H. L. Cas.
1 Co. Litt. 115u; Jackson v. Bradt, 142; Livingston v. Van Ingen, 9 2 Caines, 169; Bruce v. Schuyler, 9 John. 507; Crittenden v. Wilson, 5 Ill. 221; Attorney-General v. Brown, Cowen, 165; Stafford v. Ingersol, 3 1 Wis. 513; Mullen v. People, 31 N. Hiil, 38; Heath, Ex parte, id. 42; 444; Nixon v. Piffet, 16 La. Ann. 379; Kelly v. Union Township, 5 Watts State v. Macon Co. Ct. 41 Mo. 453; & S. 536; Renwick v. Morris, 3 Hill, Planters' Bank v. State, 6 Sm. & M. 621; Barden v. Crocker, 10 Pick. 383; 628; White v. Johnson, 23 Miss. 68; Mitchell v. Duncan, 7 Fla. 13; State DePauw v. New Albany, 22 Ind. 204; v. Berry, 12 Iowa, 58; Wilson v. Blain v. Bailey, 25 id. 165; McLaugh- Shorick, 21 id. 332; Coxe v. Ro lin v. Hoover, 1 Oregon, 31; Brown 4 Halst. 384; Mayor, etc. v. Howard, 6 v. Miller, 4 J. J. Marsh. 474; Lillard Har. & J. 383; Bearcamp River Co. v. v. McGee, 4 Bibb, 165; South's Heirs Woodman, 2 Greenlf. 404; Booker v. v. Hoy, 3 Bibb, 522.
McRoberts, 1 Call, 243; Almy v. Har2 Dwar. on St. 475.
ris, 5 John. 175; Farmers' Turnpike v 3 Co. Litt. 115a.
Coventry, 10 id. 389; Fryeburg Canal 4 Rex
St. George's Hanover v. Frye, 5 Greenl. 38; Wetmore v.
same rule applies as between successive statutory remedies or successive statutes creating rights, and against implied repeal.' An affirmative statute giving a new right does not of itself and necessarily destroy a previously existing right, created by another statute to which it does not refer, but will do so if it appears to have been the intention of the legislature that the two rights should not exist together. Although a statute provides that a certain thing shall prove a certain fact, this does not render other proof incompetent unless it is explicitly so provided. The absence from the code of a principle which has been part of the jurisprudence does not impair its authority.
$ 203. A negative statute is one expressed in negative terms. And here the rule prevails that if a subsequent statute, contrary to a former, has negative words, it shall be a repeal of the former; and a negative statute, it is said too, so binds the common law that a man cannot afterwards have recourse to the latter.5 Of this form and nature is this provision generally found in the statute of limitations: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this statute, unless the same is contained in some writing signed by the party to be charged thereby.” Negative words make a statute imperative.
S 204. An affirmative statute may imply a negative. If a new power be given by an affirmative statute to a certain person by a particular designation, although it be an affirmative statute, still all other persons are in general excluded from the exercise of the power, since expressio unius est exclusio al
Tracy, 14 Wend. 250; United States 4 Martin v. Jennings, 10 La. Ann. v. Wyngall, 5 IIill, 16; Constantine 553. v. Van Winkle, 6 id. 177; Leland v. 52 Inst. 388. Tousey, id. 328.
6 Bladen v. Philadelphia, 60 Pa. St. i Gohen v. R. R. Co. 2 Woods, 346; 461; State v. Smith, 67 Me. 328; HurCont. Election of Barber, In re, 86 ford v. Omalia, 4 Neb. 336; People v. Pa. St. 392.
Allen, 6 Wend. 486; Liverpool Bor2 O'Flaherty v. McDowell, 6 H. L. ough Bank v. Turner, 2 De G. F. & Cas. 142; Steward v. Greaves, 10 M. J. 502; Rex v. Newcomb, 4 T. R. 368; & W. 712.
Howard v. Bodington, L. R. 2 P. Div. 3 Bethlehem Watertown, 51 203, 211 ; Williams v. Swansea Canal Conn. 490.
Nav. Co. L, R. 3 Ex. 158.