페이지 이미지

judicial function and appertains to the courts.' The legislature has exclusively the power to make laws, and thus declare what the law shall be. A legislative construction of a statute is entitled to consideration, and will often have much weight. In cases of doubt and uncertainty the solemn declaration of the legislative branch of the government, or practical construction by the executive department, gives a certain sanction, and will be influential with the courts. So the meaning of particular words in a recent statute will have weight; and their meaning may be inferred from earlier statutes in which the same words or language has been used, where the intent was more obvious or had been judicially established. The words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification; but if a contemporaneous construction by the legislature of the same words can be discovered, it is high evidence of the sense intended." Where the law-maker declares its own intention in the enactment of a particular law, or defines the sense of the words it employs in a statute, it not only exercises its legislative power, but exercises it with a plausible aim; for it professes to furnish aid to a correct understanding of its intention, and thus to facilitate the primary judicial inquiry in the exposition of the law after it is finished, promulgated, and has gone into practical operation.

1Ogden v. Blackledge. 2 Cranch, 272; Duncan v. State, 7 Humph. 148; Gough v. Pratt, 9 Md. 526; Ashley's Case, 4 Pick. 23; Watson v. Hoge, 7 Yerg. 344; Wayman v. Southard, 10 Wheat. 1; Governor v. Porter, 5 Humph. 165; Bingham v. Supervisors, 8 Minn. 441; Tilford v. Ramsey, 43 Mo. 410; People v. Supervisors, 16 N. Y. 431; Dash v. Van Kleeck, 7 John, 477. See Young v. Beardsley, 11 Paige, 93; Jackson v. Phelps, 3 Cames, 62; Jones v. Wootten, 1 Harr. (Del.) 77; Field v. People, 2 Scam. 79; Cotton v. Brien, 6 Rob. (La.) 115.

2 Id.

3 Philadelphia, etc. R. R. Co. v. Catawissa R. R. Co. 53 Pa. St. 20;

Hart v. Reynolds, 1 Heisk. 208; Dunlap v. Crawford, 2 McCord Eq. 171; Pike v. Megoun, 44 Mo. 491. See Aikin v. Western R. R. Co. 20 N. Y. 370; Prentiss v. Danaher. 20 Wis. 311; State v. Oskins, 28 Ind. 364; Morgan v. Smith, 4 Minn. 104.

4 Mathews v. Shores, 24 Ill. 27; Union Ins. Co. v. Hoge, 21 How. 35; Solomon v. Commissioners, 41 Ga. 157; Wright v. Forrestal, 65 Wis. 341, 348; Gough v. Dorsey, 27 id. 119; Harrington v. Smith, 28 id. 43; State v. Timme, 54 id. 318, 340; Dean v. Borchsenius, 30 id. 236; post, §§ 320,


5 Philadelphia, etc. R. R. Co. v. Catawissa R. R. Co. 53 Pa. St. 20. See United States v. Gilmore, 8 Wall. 330.

§ 230. Such provisions have been the subject of judicial comment and criticism. Lord Denman said: "We cannot refrain from expressing a serious doubt whether interpretation clauses will not rather embarrass the courts in their decision than afford that assistance which they contemplate. For the principles on which they are themselves to be interpreted may become matter of controversy; and the application of them to particular cases may give rise to endless doubts." 1

In Williams v. Pritchard," Lord Kenyon said: "It cannot be contended that a subsequent act of parliament will not control the provisions of a prior statute, if it were intended to have that operation; but there are several cases in the books to show that when the intention of the legislature was apparent that such subsequent statute should not have such an operation there, even though the words of such statute, taken strictly and grammatically, would repeal a former act, the courts of law, judging for the benefit of the subject, have held that they ought not to have such a construction." Blackburn, J., in Lindsay v. Cundy,' said, parenthetically, that such clauses are a modern innovation, and frequently do a great deal of harm, because they give a non-natural sense to words which are afterwards used in a natural sense, without noticing the distinction. In that case it was held not necessary to follow the statutory definition in every instance where the word occurred; that the statute could be satisfied by applying it to the word where there was nothing in the context to interpret it otherwise. This seems to be the effect of Queen v. Pearce, where the court said of such a clause that it "should control where the words occur without being accompanied by any others tending to show their meaning; or to interpret words which are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain." 5

1 Regina v. Justices, 7 Ad. & E. 480. being a turnpike road), and any road, 24 T. R. 2, 4.

3 L. R. 1 Q. B. Div. 358.

4L. R. 5 Q. B. Div. 386.

In Nutter v. Accrington Local Board, L. R. 4 Q. B. Div. 375, an act was in question in which it was provided that the word "street" should apply to and include any highway (not

public bridge (not being a county bridge), lane, footway, square, court, alley, etc. It was considered by Cotton, L. J., as enlarging and not restrictive; that it did not provide that it should not include a turnpike road. Bramwell, L. J., concurring in the view taken by Lord Justice Cotton,

same manner.

§ 231. Statutory provisions are made in various forms to have effect specially in the interpretation of the law. They are distinguishable, and all are not construed and applied in the There is a manifest difference between definitive or interpretation clauses which are special, and those which are general; the former always having the most controlling effect where it is obvious that the legislature, without misconception of the effect of other legislation, have precisely in view the particular words or provisions to which the clause in question ostensibly applies. A legislative enactment based on a misconception of the law does not per se change the law so as to make it accord with the misconception.' A provision which is special by pointing to a particular act and declaring for what definite purpose it was enacted, or defining certain words or phrases, has the fullest effect. It is a part of the law and must be construed and applied accordingly, and the act will have a construction, and the words and phrases a meaning, in harmony with the defining provisions, even though otherwise they would have a different effect.2

On the other hand, general statutory definitions and rules of interpretation will apply when the statute in question is not plain, or, in other words, does not define and interpret itself.3 Where positive provisions are at variance with the definitions which it contains, the latter, it seems, must be considered as modified by the clear intent of the former on the principle

said: "There is one interpretation clause which says: 'Words importing the singular number shall include the plural number, and that words importing the plural number shall include the singular number.' And, if that clause is to be taken in an exclusive sense, the words in the singular number would never mean the singular, and the words in the plural number would never mean the plural. It is thus, clearly, an additional interpretation. I read the words here [repeating the interpretation clause]. Then it is said that this is a street. And so it is. But it is also a turnpike road. The arguments upon the

interpretation clause are equally good for either party."

1 Byrd v. State, 57 Miss. 243; Davis v. Delpit, 25 id. 445; Farmers' Bank v. Hale, 59 N. Y. 53.

2 Herold v. State, 21 Neb. 50; Smith v. State, 28 Ind. 321; State v. Adams, 51 N. H. 568; State v. Canterbury, 28 id. 195; Philadelphia, etc. R. R. Co. v. Catawissa R. R. Co. 53 Pa. St. 20; State v. S. & S. Orphan Home, 37 Ohio St. 275; Hankins v. People, 106 Ill. 628; Byrd v. State, 57 Miss. 243; Nelson v. Kerr, 2 T. & C. 299.

3 Queen v. Pearce, L. R. 5 Q. B. 386; Midland R'y Co. v. Ambergate, etc. R'y Co. 10 Hare, 359.

that the special controls the general.' Such clauses are not to be taken as substituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves. The meaning of language depends on popular usage, and cannot, unless in a very slight degree, be affected by legislation. It was enacted that in construing statutes the words "spirituous liquors "should be taken to include intoxicating liquors, and all mixed liquors any part of which is spirituous or intoxicating. Under an indictment charging the selling of spirituous liquors, it was held error to admit proof of selling any liquor which was not such in fact, independently of the statutory definition; that the statute furnished a guide for the construction of the statute, not the indictment.*


§ 232. Punctuation.- When statutes were enacted without punctuation, it was a necessary conclusion that the punctuation subsequently inserted was no part of the law. That was often declared, and has been declared since the practice has changed and punctuated bills are enacted. So, when bills are not printed and furnished in their perfected form to members of the legislative body, and they are heard read, so that the ear and not the eye takes cognizance of them, the punctua tion, whether inserted or not, does not receive the attention of individual legislators. It may be assumed that the principal points are observed in the reading. The questions in court relating to punctuation or affecting construction have generally arisen on the presence, omission or misplacing of commas. In Ewing v. Burnet the court say: "Punctuation is a most fallible standard by which to interpret a writing. It may be

Egerton v. Third Municipality, 1 La. Ann. 435; Farmers' Bank v. Hale, 59 N. Y. 53.

2 Regina v. Justices, 7 Ad. & E. 480. 3 State v. Canterbury, 28 N. H 228; Neitzel v. Concordia, 14 Kans. 446.

State v. Adams, 51 N. H. 568; Jones v. Surprise, 4 New Eng. Rep. 292; 64 N. H. 243.

5 Barrington on St. (5th ed.) 439,

note; Dwarris on St. (2d ed.) 601; 3 Dane's Abr. 558.

Hammock v. Loan & Trust Co. 105 U. S. 77; Cushing v. Worrick, 9 Gray, 382; Albright v. Payne, 43 Ohio St. 8. See Commonwealth v. Shopp, 1 Woodw. Dec. 123.

Bish. W. L. § 78. 8 11 Pet. 41.

resorted to when all other means fail; but the court will first take the instrument by the four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it."1

Where effect may be given to all the words of a statute by transposing a comma, the alternative being the disregard of a material and significant word, or grossly straining and perverting it, the former course is to be adopted. Courts, in the construction of statutes, for the purpose of arriving at or maintaining the real meaning and intention of the law-maker, will disregard the punctuation, or repunctuate. When the intent is uncertain, punctuation may afford some indication of it, and even decide it. The punctuation of the original act as passed by the legislature governs instead of the punctuation of the printed copy.

§ 233. Headings and marginal notes.- In England marginal notes are not regarded as part of the law for the same reason that applies to the title and punctuation. Added to a section in the copy printed by the queen's printer, they form no part of the statute itself, and are not binding as an explanation, or as a construction of the section. Headings which were arranged in the bill and adopted with it, it was held, might be referred to to determine the sense of any doubtful expression.9

1 Albright v. Payne, 43 Ohio St. 8; Shriedley v. State, 23 Ohio St. 130; Hamilton v. Steamer R. B. Hamilton, 16 id. 428; Allen v. Russell, 39 id. 336; Morrill v. State, 38 Wis. 434; Commonwealth v. Shopp, 1 Woodw. Dec. 123; Caston v. Brock, 14 S. C. 104. 2 Commonwealth v. Shopp, supra. 3 Hamilton v. Str. R. B. Hamilton, supra; Martin v. Gleason, 139 Mass. 183; Hammock v. Loan & Trust Co. 105 U. S. 77; United States v. Isham, 17 Wall. 496; Gyger's Estate, 65 Pa. St. 311; Randolph v. Bayne, 44 Cal.

366; Matter of Olmstead, 17 Abb. New Cas. 320.

4 United States v. Three R. R. Cos. 1 Abb. (U. S.) 196.

5 Squires' Case, 12 Abb. Pr. 38; Cummings v. Akron Cement Co. 6 Blatchf. 509.

6 McPhail v. Gerry, 55 Vt. 174.

7 Claydon v. Green, L. R. 3 C. P. 521; Venour v. Sellon, L. R. 2 Ch. Div. 523; Sutton v. Sutton, L. R. 22 Ch. Div. 511. .

Claydon v. Green, supra.

9 Hammersmith, etc. R'y Co. v. Brand, L. R. 4 H. L. Cas. 171.

« 이전계속 »