페이지 이미지

the construction of the Oregon donation act of congress, the term, a single man, was held to include in its meaning an unmarried woman.” In the dower act of the 3 and 4 Will IV., chapter 105, the word land, defined to include manors, messuages and all other hereditaments both corporeal and incorporeal, except such as are not liable to dower, was held not to include copyhold lands, because it provides that the widow shall not be entitlod to dower when the deed by which the land was conveyed to ber husband contains a declaration to that effect. That provision showed that only land so transferable was in contemplation of the legislature. An act for raising state taxes provided for a certain tax on railroads on the basis of passengers, and that they should not be assessed with any tax on their lands, buildings or improvements. This exemption was confined to taxes of the kinds provided for in the act, and it was held it did not conflict with another act providing for municipal taxation. In determining the scope of general provisions there is a leaning to prevent absurdity, for it cannot be deemed intended;also injustice, for like reason.”

1 Silver v. Ladd, 7 Wall. 219. could only be exacted for the time

2 Smith v. Adams, 5 De G. M. & G. the bank was in default. A statute 719.

of Mississippi declares that the stat3 Orange, etc. R. R. Co. v. Alexan- ute of limitation shall not apply to dria, 17 Gratt. 176.

notes, bills or evidences of debt is4 State v. Clark, 5 Dutcher, 96; sued by any bank or moneyed corpoCommonwealth v. Loring, 8 Pick. ration. The court: “While the gen370; Bailey v. Commonwealth, 11 eral rule is that statutes of limitation Bush, 688; Henry v. Tilson, 17 Vt. do not apply to bank-bills, because 479; Plumstead Board of Works v. they are by the consent of mankind Spackman, L. R. 13 Q. B. Div. 878. and course of business considered as

5 Murray v. Gibson, 15 How. (U. S.) money, and that their date is no evi421; Robinson v. Varnell, 16 Tex. 382; dence of the time when they were Meade v. Deputy Marshal, 1 Brock. issued, as they are being continually 324; Commonwealth v. Slack, 19 returned and issued by the banks, Pick. 304. In Commercial Bank v. yet if such bills have ceased to circuFoster, 5 La. Ann. 516, the provision late as currency, and have ceased to of a bank charter that if the bank be taken in and reissued by the should suspend or refuse payment, banks, they no longer have that disthe holder should be entitled to in- tinctive character from other conterest from the time of the suspen- tracts which excepts them from the sion until payment, did not apply operation of the statutes of limitation. after resumption; that interest would Butts v. Vicksburg, etc. R. R. Co. 63 then cease. The object of the statute Miss. 462; 2 Danl. on Neg. Inst. was then answered, and the penalty S 1684; Kimbro v. Bank of Fulton,

$ 219. Not only may the meaning of words be restricted by the subject-matter of an act or to avoid repugnance with other parts, but for like reasons they may be expanded. The application of the words of a single provision may be enlarged or restrained to bring the operation of the act within the intention of the legislature, when violence will not be done by such interpretation to the language of the statute.' The propriety and necessity of thus construing words are most obvious and imperative when the purpose is to harmonize one part of an act with another in accord with its general intent. The statute itself furnishes the best means of its own exposition; and if the intent of the act can be clearly ascertained from a reading of its provisions, and all its parts may be brought into harmony therewith, that intent will prevail without resorting to other aids for construction. The intention of an act will prevail over the literal sense of its terms. So general words in one part may be controlled and restrained by particular words in another, taken as expressing the same intention with more precision. The true meaning of any clause or provision is that which best accords with the subject and general purpose of the act and every other part. The word notice was held to mean a written notice because certain provisions required it to be served or left in a particular manner. Where

49 Ga. 419.” Clark's Succession, 11 La. Scaggs v. Baltimore, etc. R. R. Co. 10 Ann. 124; United States v. Kirby, 7 Md. 268; Beal v. Harwood, 2 Har. Wall 482; Reiche v. Smythe, 13 Wall. & J. 167; Holl v. Deshler, 71 Pa. St. 162; Ellis, Ex parte, 11 Cal. 222; 299; Rogers v. Rogers, 3 Wend. 503, McLelland v. Shaw, 15 Tex. 319. 526; Learned v. Corley, 43 Miss. 687;

1 Maxwell v. Collins, 8 Ind. 38, 40; Reynolds v. Holland, 35 Ark. 56. Quin v. O'Keeffe, 10 Ir. C. L. (N.S.)393;

3 Id. Wainewright, In re, 1 Phil. 258; Brins- 4 Simonds v. Powers, 28 Vt. 354; field v. Carter, 2 Ga. 150; Cope v. Long v. Culp, 14 Kan. 412; Electro Doherty, 2 De G. & J. 614; Collins v. M. etc. v. Van Auken, 9 Colo. 204; Welch, L. R. 5 C. P Div. 29; Rich- Covington v. McNickle, 18 B. Mon. ards v. McBride, L. R. 8 Q. B. Div. 262; Maple Lake v. Wright Co. 12 119; Metropolitan B'd of Works v. Minn. 403; Rex v. Midland Ry. Co. Steed, id. 445; Sams v. King, 18 Fla. L. R. 10 Q. B. 389; Fredericks v. 557.

Howie, 1 H. &C. 381; Re Hermance, 2 Green v. Weller, 32 Miss. 650; 71 N. Y. 481; Spackman's Case, 1 Smith v. Bell, 10 M. & W. 378; Ste- Macn. & G. 170; Foster v. Blount, 18 phenson v. Higginson, 3 H. L. Cas. Ala. 687; Woodworth v. State, 26 638; Sussex Peerage, 11 Cl. & F. Ohio St. 196. 85; Cearfoss v. State, 42 Md. 406; 5 Moyle v. Jenkins, 51 L J. Q. B.

general and particular words occur, having reference to the subject of the act or some feature of it, the intention is the guide as deduced from a consideration of all its parts and the system of which it forms a part. Subsidiary provisions are not always co-extensive with those which define or indicate its full purpose. In Bank of United States v. McKenzie,' the question was whether corporations as plaintiffs were within the fourth section of the act of limitations of the state of Virginia; the proviso suspending its operation as to certain classes of persons in certain conditions being inapplicable; they were not liable to any of the disabilities which were enumerated in the twelfth section, not even that of being beyond seas. Section 4 was held applicable, and Marshall, C. J., said, speaking of the words of section 4: “They do not take into view the character of the plaintiff but of the action. In construing this section it is entirely unimportant by whom the suit is brought. The action is clearly barred by the length of time, whoever may be the plaintiff. The plain words of the statute are decisive. Nor does any reason or justice or policy exist which should take a corporation out of these words. The legislature could have no motive for limiting the time within which a suit should be brought by an individual which does not apply with exact force to a suit brought by a corporation. We find no words in the exception indicating an intention to make it co-extensive with the enacting clause, or to limit the general provision of the enacting clause to such general classes of persons as may comprehend individuals for whom justice would require the saving of rights which are found in the twelfth section. An exception is not co-extensive with the provision from which it forms the exception; and if a corporation cannot be brought within any of the savings of the statute, the inference is not that the corporation is withdrawn from the enacting clause, but that the legislature did not think it a being whose right to sue required a prolongation beyond the legal time given for suitors generally.” It is here intended only to illustrate the flexibility of words as they are treated for the purpose of harmonizing one part of an act

Wilson v. Nightingale, 8 Q. B. works, 7 B. & C. 314; Williams v. 1035. Compare Cortis v. Kent Water- McDonal, 3 Pin. (Wis.) 331.

12 Brock. 393.


with another and with its general purpose. Like considerations will require a statute to be construed as a whole with reference to the entire system of which it forms a part. The inquiry to ascertain the intention of an act with reference to other legislation, and, when dubious, to extraneous facts and the general canons of construction, are discussed further on.

§ 220. Effect of total conflict between two parts of an act.- Where one part of an act is in conflict with another, and they cannot be brought into harmony by any rule of construction; where they are of equal scope, and there is a pointblank repugnancy, so that if one operates at all it will necessarily antagonize any effect of the other, what is the consequence? Both are void, by one neutralizing the other, on the ground that the legislature uno flatu have enacted a contradiction; or one, for being earlier or later in position, must be deemed to render the other nugatory, or repeal it. There are several direct adjudications that the provision which is latest in position repeals the other. Being later in position, the


1 McDougald v. Dougherty, 14 Ga. should be forfeiture of twice the 674.

amount of the interest paid, substan2 Packer v. Sunbury, etc. R. R. Co. tially re-enacting the regulations and 19 Pa. St. 211; Ryan v. State, 5 Neb. penalties prescribed in the national 276, 282; Gibbons v. Brittenum, 56 bank act. The next section is: “It Miss. 232; Harrington v. Rochester, is hereby declared that the true in10 Wend. 547, 553; Commercial Bank tent and meaning of this act is to v. Chambers, 8 Sm. & M. 9; Brown v. place the banking associations, organCounty Commissioners, 21 Pa. St. 37, ized and doing business (under the 42; Quick v. Whitewater Township, 7 laws of this state), on ap equality, in Ind. 570; Albertson v. State, 9 Neb. the particulars in this act referred to, 429; Sams v. King, 18 Fla. 557; Bran- with the national banks organized agan v. Dulaney, 8 Colo. 408; Gee v. under the act of congress. And all Thompson, 11 La. Ann. 657; Peet v. acts and parts of acts inconsistent Nalle, 30 id. Pt. II., 949; Hamilton v. with the provisions hereof are hereby Buxton, 6 Ark 24; ante, & 170. Farm- repealed.” In 1872 the court had ers' Bank v. Hale, 59 N. Y.53, upon this held that the national bank act, in subject, is an interesting case. In these particulars, did not operate in 1870 the legislature enacted a statute that state, and that the general laws which was held by a majority of the of the state, prescribing a loss of the court to be self-contradictory. The debt as a penalty for usury, applied first section prescribed the rate of in- to those banks. First Nat. Bk. of terest that banking associations, or- Whitehall v. Lamb, 50 N. Y. 95. It ganized under the laws of the state, was therefore held in the case under might contract for and take; and review that the second section deprovided that the penalty for usury clared an intent directly opposed to

prevailing provision is deemed a later expression of the legislative will. This rule and the reason for it have been criticised,' because all the provisions of an act being adopted at the same time, there is no priority in point of time on account of their relative positions in the statute. This is strictly true; but, in the reading of a bill, matter near the close may be presumed to receive the last consideration, and, if assented to, is a later conclusion. Slight circumstances preponderate when a question is at equipoise. It receives some support from the analogous rule applicable in the construction of wills, but it is not even as to that subject carried to its full logical extent; for if one fund is bequeathed severally to two persons, they will both take by equal shares.)

$ 221. By a singular caprice of the law a saving clause to tally repugnant to the purview is rejected, while a proviso directly repugnant to the main body of the act repeals the purview, as it is said to speak the last intention of the makers. In the case of private writings other than wills, as deeds or other instruments inter vivos, the earlier repugnant part prevails, and the same seems to be the rule in legislative grants. Analogies, therefore, fail to furnish any consistent rule, and that which is sanctioned by adjudications is perhaps wise, since some rule should exist for such rare cases; it is a practicable solution, and there is a spice of reasoning to support it.

Such a contradiction will not be recognized so as to give arbitrary repealing effect to a provision later in position where


the express provisions of the first sec- 21 Redf. on Wills, 443, 451; 2 Par. tion. Church, C. J., said: “When on Cont. *513. different constructions may be put 3 Ridout v. Pain, 3 Atk. 493; Mcupon an act, one of which will ac- Guire v. Evans, 5 Ired. Eq. 269; complish the purpose of the legisla- Jones' Appeal, 3 Grant, 169. ture and the other render it nugatory, 4 Attorney-General v. Chelsea Water the former should be adopted; but Works Co., Fitzgibbons, 195; Rex v. when the provisions of an act are Justices, 2 B. & Ad. 818. such that to make it operative would 52 Par. on Cont. *513; Co. Litt. 112; violate the declared meaning of the Furnivall v. Coombes, 5 M. & G. 736. legislature, courts should be astute in 6 Fore v. Williams, 35 Miss. 533. construing it inoperative.” The sec- See Dugan v. Bridge Co. 27 Pa. St. ond section was treated as in the nat- 303; Mason v. Boom Co. 3 Wall. Jr. ure of a proviso, and controlling the 252; Matter of Second Ave. Church, previous provisions.

66 N. Y. 395. 1 Bish. W. L. SS 63–65.

« 이전계속 »