« 이전계속 »
law differently, and to inquire independently as to the truth of the recited facts.
$ 214. The enacting style. This part of a statute has been discussed in a previous section with reference to its materiality to the validity of an act. It indicates from what authority the law emanates, and hence its jurisdiction; but that is always recognized and the law identified as passed by a determinate legislative body constitutionally created to legislate for the territory or country where such law is supposed to operate, before any question of interpretation arises. The reference in the style to the enacting power is only useful as an announcement of the authority which commands in the act. When interpretation begins, that legislative jurisdiction is always taken for granted and in view, subject to the limitations imposed by the paramount law.
$ 215. The purview; one part to be construed by another.— The enacting part of a law is comprehensively termed its purview. It has been defined to be that part of an act of the legislature which begins with the words “Be it enacted," etc., and ends with the repealing clause. It is not unfrequently used, however, to indicate the providing part only, and, therefore, excluding exceptions, provisos and saving clauses; it is used to refer to such providing part in distinction from such restrictive clauses. It is to be presumed that all, the
1 Regina v. Haughton, 1 El. & Bl. which rights depend are true or false 501; Board of Com’rs v. State, 9 Gill, is an inquiry for the courts to make 379-400; State v. Reed, 4 H. & McH. under legal forms; it belongs to the 10; Duncombe v. Prindle, 12 Iowa, 1. judicial department of the governSee Rex v. Sutton, 4 M. & S. 532. An ment.” Dougherty v. Bethune, 7 Ga. inquiry by the legislature into the 90; Thornton v. Lane, 11 Ga. 459. affairs of a corporation with refer- See People v. Tyler, 7 Mich. 161; Peoence to a repeal of its charter is not a ple v. Lawrence, 36 Barb. 177. judicial act. Lothrop v. Stedman, ? Ante, $ 65. 42 Conn. 583. A party is not estopped 3 Bouv. Law Dic. tit. Purview; to deny facts recited in an act of the Bish. W. L S 52. legislature. So far as the facts re- 4 The San Pedro, 2 Wheat. 132. cited are concerned it is no law, and Dwarris says: "The parts of statutes the court is not bound to take judi- are – in a popular, though not legal cial cognizance of it. The investiga- sense — the title, the preamble, the tion of facts belongs to the judicial purview or body of the act, clauses, department. The court: “The leg- provisos, exceptions.” Dwar. Stat islature has no power to legislate the (2d ed.) 500. truth of facts. Whether facts upon
subsidiary provisions of an act harmonize with each other, and with the purpose of the law; if the act is intended to embrace several objects, that they do not conflict. Therefore it is an elementary rule of construction that all the parts of an act relating to the same subject should be considered together, and not each by itself. By such a reading and consideration of a statute its object or general intent is sought for, and the consistent auxiliary effect of each individual part. Flexible language which may be used in a restricted or extensive sense will be construed to make it consistent with the purpose of the act and the intended modes of its operation as indicated by such general intent, survey and comparison — ex antecedentibus et consequentibus fit optima interpretatio.? The order in which provisions occur in a statute is immaterial where the meaning is plain and there is not a total conflict. A later
1 Co. Litt. 381a; Little Rock, etc. Pick. 235; Commonwealth v. CamR. R. Co. v. Howell, 31 Ark. 119; bridge, 20 id. 267; San Francisco v. Wilson v. Biscoe, 11 Ark. 44; Strode Hazen, 5 Cal. 169; Taylor v. Palmer, v. Stafford Justices, 1 Brock. 162; Elli- 31 id. 240; Gates v. Salmon, 35 id. 576; son v. Mobile, etc. R. R. Co. 36 Miss. Davey v. Burlington, etc. R. R. Co. 31 572; Swann v. Buck, 40 id. 304; City Iowa, 553; Berry v. Clary, 77 Me. Bank v. Huie, 1 Rob. 236; United 482; Brooks V. Commissioners, 31 States v. Hawkins, 4 Mart (N. S.) 317; Ala. 227; State v. Mayor, etc. 35 N. Mayor v. Howard, 6 Har. & J. 388; J. L. 197; Canal Co. v. Railroad Co. 4 Harrell v. Harrell, 8 Fla. 46; State v. Gill & J. 1; Magruder v. Carroll, 4 Md. Atkins, 35 Ga. 315; Potter v. Safford, 335; Alexander v. Worthington, 5 id. 50 Mich. 46; Reithmiller v. People, 44 471; Parkinson v. State, 14 Md. 184; id. 280, 284; Van Fleet v. Van Fleet, Stockett v. Bird, 18 id. 484; Com49 id. 610; People v. Burns, 5 id. 114; monwealth v. Duane, 1 Binn. 601; Harrison, Ex parte, 4 Cow. 63; Commonwealth v. Conyngham, 66 Kelley's Heirs v. McGuire, 15 Ark. Pa. St. 99; Holl v. Deshler, 71 id. 555; Pennington v. Coxe, 2 Cranch, 299; Catlin v. Hull, 21 Vt. 152; Rye33; Rice v. Railroad Co. 1 Black, 358; gate v. Wardsboro, 30 id. 746; Maple Atkins v. Disintegrating Co. 18 Wall. Lake v. Wright Co. 12 Minn. 403; 272; Wilkinson v. Leland, 2 Pet. 627; Gas Co. v. Wheeling, 8 W. Va. 320; Mason v.
Finch, 3 Ill. 223; Belleville Scott v. State, 22 Ark. 369; Torrance R. R. Co. v. Gregory, 15 id. 20; Burke v. McDougald, 12 Ga. 526; Covington v. Monroe Co. 77 id. 610; Thompson v. v. McNickle, 18 B. Mon. 269; RugBulson, 78 id. 277; Williams v. Peo- gles v. Washington Co. 3 Mo. 496; ple, 17 Ill. App. 274; United States v. State v. Weigel, 48 id. 29; Green v. Bassett, 2 Story, 389; Ogden v. Strong, Cheek, 5 Ind. 105; Crone v. State, 49 2 Paine, 584; Holbrook v. Holbrook, id. 538. 1 Pick. 248; Commonwealth v. Alger, 2 Holl v. Deshler, 71 Pa. St. 299; 7 Cush. 53; Mendon v. Worcester, 10 Rogers v. Rogers, 3 Wend. 503, 526.
clause or provision may qualify an earlier one, and the converse is equally true.'
$ 216. Exceptions, provisos, interpretation, repealing and saving clauses are often introduced to restrict or qualify the effect of general language, remove possible obscurities that might otherwise exist, and render the law more precise. These will be presently considered. But one provision may be qualified by another, though it does not profess to have that effect. Words expressive of a particular intent incompatible with other words expressive of a general intent will be construed to make an exception, so that all parts of the act may have effect. The context may thus serve to engraft an exception by implication to dispose of an 'apparent conflict; to restrict general words, to limit them to the subject-matter of the act, or to expand words beyond their natural import if taken alone. A few cases will be given to illustrate these points.
$ 217. Partial conflict resolved into an exception.— The law will not allow the revocation or alteration of a statute by construction when the words may have their proper operation without it. But, in the nature of things, contradictions cannot stand together. Where there is an act or provision which is general, and applicable actually or potentially to a multitude of subjects, and there is also another act or provision which is particular and applicable to one of these subjects, and inconsistent with the general act, they are not necessarily so inconsistent that both cannot stand, though contained in the same act, or though the general law were an independent enactment. The general act would operate according to its terms on all the subjects embraced therein, except the particular one which is the subject of the special act. That would be deemed an exception, unless the terms of the later general law manifested an intention to exclude the exception. If the general and
1 Gibbons V. Brittenum, 56 Miss. v. Felt, 19 Wis. 193; State v. Goetze, 239; Endlich, SS 38, 182.
22 id. 363; Elton v. Geissert, 10 Phila. 2 Churchill v. Crease, 5 Bing. 177, 330; Long v. Culp, 14 Kan. 412; War180; Stockett v. Bird, 18 Md. 484. ren v. Shuman, 5 Tex, 441; Pretty 3 Lyn v. Wyn, Bridg. 122.
v. Solly, 26 Beav. 606; Taylor v. Old4 Re Hickory Tree Road, 43 Pa. St. ham Corporation, L. R. 4 Ch. Div. 139, 143.
395; Gregory's Case, 6 Rep. 196; Fos5 Ante, S 157.
ter's Case, 11 Rep. 586. 6 Crane v. Reeder, 22 Mich. 322; Felt
special provisions are in the same act, or passed on the same day in separate acts, or at the same session of the legislature, the presumption is stronger that both are intended to operate. In adjusting the general provisions in a general act to the particular provisions of the special act, considerations of reason and justice, and the universal analogy of such provisions in similar acts, are proper to be borne in mind, and ought to have much weight and force. A local act provided that the auditor of a particular county should receive an annual salary of $700 in full for his official services. On the following day a general act was passed imposing additional duties on auditors; and it provided a compensation by a percentage on certain funds. It was held that these were to be construed as one act, and that the first act exclusively controlled as to the particular county.? A general act made the term of revenue commissioners four years; by another act, passed the same day, the charter of a particular city was amended so as to make the official term of its revenue commissioners two years; it was held that this amendment made a special exception to the general rule. If an act in one section authorizes a corporation to sell a particular piece of land, and in another prohibits it from selling any land, the first section is not repealed, but will be treated as creating an exception. An absolute direction in one section to set off for a widow and children the decedent's homestead, free from all his debts, though absolute in terms, was held qualified by a subsequent section, which in terms embraced such homestead, subjecting it to debts contracted prior to the passage of the act.
$ 218. Words expanded or limited to accord with intent. It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject-matter is once clearly ascertained and its general intent, a key is found to all
1 Metropolitan District Ry. Co. v. v. Mayor of Brecon, 28 L. J. Ch. 600 ; Sharpe, L. R. 5 App. Cas. 431,
26 Bevan, 533. 2 La Grange v. Cutler, 6 Ind. 364; 6 Simonds v. Powers, 28 Vt. 351. St. Martin v. New Orleans, 14 La. Ann. 6 Olive v. Walton, 33 Miss. 114; 113.
Green v. Weller, 32 Miss. 650; Burr 3 Branham v. Long, 78 Va. 352; v. Dana, 22 Cal. 11; Woodruff v. State v. Trenton, 38 N. J. L. 64. State, 3 Ark. 285; Wassell v. Tunnah,
4 Per Romilly, M. R., in De Winton 25 id. 101 ; Green v. State, 59 Md. 123.
its intricacies; - general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered or supplied so as to obviate any repugnancy or inconsistency with such intention. Thus in the construction of a temporary appropriation act the presumption is that any special provisions of a general character therein contained are intended to be restricted in their operation to the subject-matter of the act, and not permanent regulations, unless the intention of making them so is clearly expressed. In an act giving to pilots a lien upon vessels, though the statute was general, it was held not intended to apply to men-of-war of the United States, because the remedy provided could not be applied. General words may be cut down when a certain application of them would antagonize a settled policy of the state. The provision in a general repealing act that “no offense committed or penalty incurred previous to the time when any statutory provision shall be repealed shall be affected by such repeal,” was construed as relating solely to laws repealed by that act. In the Eureka Case, Mr. Justice Field said: “Instances without number exist where the meaning of words in a statute has been enlarged or restricted and qualified to carry out the intention of the legislature. The inquiry, where any uncertainty exists, always is as to what the legislature intended, and when that is ascertained it controls. In a recent case before the supreme court of the United States, singing birds were held not to be live animals within the meaning of a revenue act of congress.? And in a previous case, arising upon
1 Quin v. O'Keeffe, 10 Ir. C. L. (N. S.) King, 44 Mo. 283; Wheeler v. McCor393; Nuth v. Tamplin, L. R. 8 Q. B. mick, 8 Blatchf. 267; Atty-Gen'l v. Div. 253; Wainewright, In re, 1 Phil. Kwok-A-Sing, L. R. 5 P. C. 179. 258; Brinsfield v. Carter, 2 Ga. 150; 2 United States v. Jarvis, Davies, Blanchard v. Sprague, 3 Sumn. 279; 274; Minis v. United States, 15 Pet. Cope v. Doherty, 2 De G. & J. 614; 445. Shoemaker v. Lansing, 17 Wend. 327; Ayers v. Knox, 7 Mass. 806; People v. Commissioners, 3 Hill, 601; Mayor, etc. v. Root, 8 Md. 95. Bishop v. Barton, 2 Hun, 436; Mat- 4 Greenhow v. James, 80 Va. 636. thews v. Commonwealth, 18 Gratt. Mongeon v. People, 55 N. Y. 613. 989; Taylor v. McGill, 6 Lea, 294; 64 Sawyer, 302, 317. Milburn v. State, 1 Md. 17; State v. 7 Reiche v. Smythe, 13 Wall. 162.