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it is of dubious import, but only where the contradiction is clear and explicit. The rule may be reversed and effect given to the clause or provision standing first in the act when it is more in accord with the general purpose of the act, construed in the light and with the aid of all other statutes in pari materia.” “The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy." ;
$ 222. Provisos, exceptions and saving clauses.- It has not been an unfrequent mode of legislation to frame an act with general language in the enacting clause, and to restrict its operation by a proviso. It is often found difficult to limit the language in the enacting clause so as to admit every exception or limitation designed to be introduced into the section in its finished state. Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it. A proviso is something engrafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of a general class, or to guard against misinterpretation. The general intent will be controlled by the particular intent subsequently expressed. Where a stat
1 State v. Williams, 8 Ind. 191; rey, L. R. 5 Q. B. Div. 170; McRae v. Mason v. Boom Co. 3 Wall. Jr. 252. Holcomb, 46 Ark. 306; Stowell v.
2 Sams v. King, 18 Fla. 557; Kan. Zouch, 1 Plowd. 361. Pac. Ry. Co. v. Wyandotte, 16 Kan. 6 Savings Bank v. United States, 19 587; Folmer's Appeal, 87 Pa. St. 133; Wall. 227; Minis v. United States, 15 Renner v. Bennett, 21 Ohio St. 431. Pet. 445; Bank for Savings v. The See Savings Institution v. Makin, 23 Collector, 3 Wall. 495; Pott. Dwar. Me. 360.
118; Boon v. Juliet, 2 Ill. 258. 31 Kent's Com. 463, note b.
i Ihmsen v. Monongahela Nav. Co. 4 Savings Institution v. Makin, 23 32 Pa. St. 152; State v. Goetze, 22 Me. 360.
Wis. 363; Gregory's Case, 6 Co. 196; 5 Wayman v. Southard, 10 Wheat. Foster's Case, 11 Co. 566; Rex v. 1; Pearce v. Bank of Mobile, 33 Ala. Taunton St. James, 9 B. & C. 831, 693; Rawls v. Kennedy, 23 id. 240; 836; Minis v. United States, 15 Pet Vorhees v. Bank of United States, 10 445. Pet. 449; Mullins v. Treasurer of Sur
ute forbids the doing of an act except upon a condition precedent, as obtaining a license, and it is impossible to perform the condition, as if the act provides that no license shall be granted, the condition is valid and the prohibition absolute.' A proviso is so identified with the text of a statute which it qualifies that if such enacting part is repealed by a subsequent statute repugnant to it, the proviso will fall also. The effect of an exception which is a part of the enacting clause and is of general application is simply to restrict it as to the matter excepted. It operates for this purpose co-extensively with the matter which precedes. Hence in actions based on the statute the pleadings must negative the exception. It is not universally so extensive as the provision which it qualifies, as to subjectmatter, for its purpose may be, and usually is, to reduce the subject-matter by withdrawing a part from the operation of the general words, or to give them a qualified operation merely as to the matter of the exception. Where there is a prohibition, grant or regulation in general words, and a saving of particular things, there is a strong implication that what is excepted would have been within the purview if it had not been excepted; and thus the purview may be made more comprehensive than it would otherwise have been. Thus, if there be a grant of all trees on a piece of land, which, if nothing more had been said, would only have embraced forest trees, but there is an exception of apple trees, other fruit trees, as peach and pear trees, will pass. But it is a matter of common experience that savings and exceptions are often introduced from abundant and even excessive caution. And it would sometimes pervert the intention of the author of the writing, if every other thing of the same general tenor as that excepted should be regarded as embraced in the general words. The rule, therefore, should be so defined as to avoid this perversion, and be limited to the cases where it is equivocal upon the general
1 State v. Douglass, 5 Sneed, 608. 4 Bank of U. S. v. McKenzie, 2 2 Church v. Stadler, 16 Ind. 463. Brock. 393.
3 Vavasour v. Ormrod, 6 B. & C. 5 Gibbons v. Ogden, 9 Wheat. 191 ; 430; People v. Berberrich, 11 How. Brown v. Maryland, 12 id. 438; Pr. 333; Spieres v. Parker, 1 T. R. 141; United States v. Gilmore, 8 Wall. 330. Hoffman v. Peters, 51 N. J. L. 244; 6 Vin. Abr. Grants, H. 13, p. 61. Blasdell v. State, 5 Tex. App. 263.
language whether a particular thing is embraced; then the exception of another thing of a similar kind will show that the first was intended to be included.
$ 223. The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it unless it clearly appears to have been intended to apply to some other matter. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. If it be a proviso to a particular section, it does not apply to others unless plainly intended. It should be construed with reference to the immediately preceding parts of the clause to which it is attached.” In other words, the proviso will be so restricted in the absence of anything in its terms, or the subject it deals with, evincing an intention to give it a broader effect." It is not an arbitrary rule to be enforced at all events, but is based on the presumption that the meaning of the law-maker is thereby reached." If irrelevant to the enacting part and meaningless with reference thereto, it has been rejected. And it was remarked in argument in Ihmsen v. Monongahela Navigation Co.:9 “If it was not intended to restrain the general clause it was a nullity.” This is taking a proviso very strictly. The intention of the law-maker, if plainly expressed, must have the force of law, though it may be in the form of a proviso; the intention expressed is paramount to form. The form, however, is in
1 Tinkham v. Tapscott, 17 N. Y. 6 United States v. Babbit, 1 Black, 152.
55. 2 Pearce v. Bank of Mobile, 33 Ala. . Friedman v. Sullivan, 48 Ark. 213. 693; Bank for Savings v. The Col- See cases in last note. lector, 3 Wall. 495; Savings Bank v. 8 Mullins v. Treasurer of Surrey, L United States, 19 Wall. 227.
R. 5 Q. B. Div. 170. 3 Id.
932 Pa. St. 153. 4 Callaway v. Harding, 23 Gratt. 10 State v. Eskridge, 1 Swan, 413; 547.
Beaumont v. Irwin, 2 Sneed, 291, 302. 5 Partington, Ex parte, 6 Q. B. 649, See Foster v. Pritchard, 2 H. & N. 653; Spring v. Collector, 78 Ill. 101; 151; Gibbons v. Ogden, 9 Wheat. 191; Rex v. Newark-upon-Trent, 3 B. &C. Farmers' Bank v. Hale, 59 N. Y. 53; 71; Lehigh Co. v. Meyer, 102 Pa. St. Chapin v. Crusen, 31 Wis. 209; 479; Cushing v. Worrick, 9 Gray, McDermut v. Lorillard, 1 Edw. Ch. 382. See United States v. Babbit, 1 273, 276; State v. Harkness, 1 Brev. Black, 55; Mechanics', etc. Bank's 276; Ayers v. Knox, 7 Mass. 306; Appeal. 31 Conn. 63; Rogers v. Vass, 6 State v. King, 44 Mo. 283; Smith v. Iowa, 405.
People, 47 N. Y. 330; Castner v. Wal
fluential in the inquiry for the intent. The proper function of a proviso being to limit the language of the legislature, it will not be deemed intended from doubtful words to enlarge or extend the act or the provision on which it is engrafted.' Where it follows and restricts an enacting clause generally in its scope and language, it is to be strictly construed and limited to objects fairly within its terms.? To a statute allowing receivers of public moneys one per cent. on the money received, as a compensation for clerk hire, receiving, safe keeping and transmitting such money, was added this proviso: “that the whole amount which any receiver of public moneys shall receive under the provisions of this act shall not exceed, for any one year, the sum of $3,000.” Applying a strict construction, it was held that this proviso limited the amount which each individual receiver was annually entitled to, and not the amount payable annually to the incumbents of the office, whether one or more. Story, J., said he was led to the general rule of law which has always prevailed and become consecrated as almost a maxim in the interpretation of statutes, that when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is strictly construed, and takes no case out of the enacting clause which does not fall fully within its terms.” It should be within its letter and purpose.3 The general law of Illinois making exemption of certain amounts of personal property from execution in favor of debtors was qualified by a provision that “no personal property shall be exempted
when the debt or judgment is for the wages
laborer or servant." The court said “it would seem that the same policy which dictates a liberal construction of the statute in furtherance of its general beneficial purpose would necessitate a restricted construction of an exception by which its operation is limited and abridged;” but, independent of that consideration, the court held that provisos rod, 83 Ill. 171, 179; Carroll v. State, 50 Cal. 420; Butts v. Railroad Co. 63 58 Ala. 396 ; Commissioners v. Keith Miss. 462; McRae v. Holcomb, 46 Ark. 2 Pa. St. 218.
306; Looker v. Davis, 47 Mo. 140; 1 Re Webb, 24 How. Pr. 247. Mayor, etc. v. Magruder, 34 Md. 381 ;
2 Bragg v. Clark, 50 Ala. 363; Epps Southgate v. Goldthwaite, 1 Bailey, v. Epps, 17 Ill. App. 196; Roberts v. 367. Yarboro, 41 Tex. 449; Willingham v. 3 United States v. Dickson, 15 Pet. Smith, 48 Ga. 580; Blood v. Fairbanks, 141.
should be strictly construed, and accordingly it should be confined to those popularly known as laborers and servants, and did not include book-keepers, managers and other like employees, engaged for skill and knowledge. The erection of certain dams being authorized, the act provided for compensation for any damages, direct or consequential, which might be occasioned to private property by the dams. A more specific provision in the same section was that the company authorized to maintain the dams should be liable for all consequential damages resulting to the owner or owners of real property situate upon either side of the improvement. The court remarked that “there was no necessity for a proviso unless to restrain terms so general as to embrace injuries to every species of property, wherever situated, that might sustain damages in consequence of the dams.” ?
$ 224. The adjudications are instructive upon the exceptions to general statutes, extensively adopted, abolishing objections to the competency of witnesses. Where the general affirmative provision admits a witness, he can only be excluded where he is plainly included in the terms of the exception. The objection of being a party or interested being removed, an exception excluding a party in actions by or against the executor or administrator of the opposite party will not apply to a suit by a surviving partner.
Epps v. Epps, 17 Ill. App. 196. were parties to the issue, that is, par2 Ihmsen v. Monongahela Nav. Co. ties to the record; and those inter32 Pa. St. 153.
ested in the issue to be tried, that is, 3 Roberts v. Yarboro, 41 Tex. 449; those who, although not parties to Bragg v. Clark, 50 Ala. 363; Blood v. the record, held such relations to the Fairbanks, 50 Cal. 420; McRae v. Hol- issue that they would lose or gain by comb, 46 Ark. 306; Looker v. Davis, the direct legal operation and effect 47 Mo, 140.
of the judgment. A witness may be Bragg v. Clark, 50 Ala. 363; Rob- interested in the issue without being erts v. Yarboro, 41 Tex. 449; Bird v. a party thereto- a distinction which Jones, 37 Ark. 195; Nolen v. Harden, seems to have been recognized in all 43 id. 307; Wassell v. Armstrong, 35 the statutes to which reference has id. 247. In Potter v. National Bank, been made. But whether a party to 102 U. S. 163, Harlan, J., referring to or only interested in the issue, the section 858 of the Revised Statutes of witness is not excluded in the courts the United States, said: “The first of the United States upon either clause of that section shows that ground, except that in actions in there was in the mind of congress which the judgment may be rendered two classes of witnesses,- those who for or against an executor, adminis