« 이전계속 »
$ 290. It is not presumed that the legislature intended to make any innovation
common law further than the necessity of the case required. In other words, statutes in derogation of it, and especially of a common-law right, are strictly construed, and will not be extended by construction beyond their natural meaningWhen by a statute a charge is created on property for the satisfaction of a debt, unless the intention is clearly expressed, or is justly and fairly to be implied, it cannot be intended that such charge has a superiority which the common law does not attach to similar charges, nor especially such superiority as the common law has carefully withheld. It will be so construed, if possible, as not to interfere with fundamental rights. The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that observes in other cases. Where a statute directs anything to be done generally and does not appoint any special manner, it is to be done according to the course of the common law.
$ 291. In all doubtful matters, and when the statute is in general terms, it is subject to the principles of the common
1 Id. ; Scaife v. Stovall, 67 Ala. 237; 3 Jones' (N. C.) L. 357; Edwards v. Keech v. Baltimore, etc. R. R. Co. 17 Gaulding, 38 Miss. 118; Hollman y. Md. 32; Hooper v. Mayor, etc. 12 id. Bennett, 44 Miss. 322; Warner v. 464; Davis v. Commonwealth, 17 Fowler, 8 Md. 25; Brown v. Barry, 3 Gratt. 617; Wilbur v. Crane, 13 Pick. Dall. 365; Shaw v. Railroad Co. 101 284; Glover v. Alcott, 11 Mich. 470; U. S. 557; Lord v. Parker, 3 Allen, Heiskell v. Mayor, etc. 65 Md. 125; 127; State v. Norton, 23 N. J. L. 33; Dwar. on St. 695; 1 Kent's Com. 464 Mullin v. McCreary, 54 Pa. St. 230; and note.
Howey v. Miller, 67 N. C. 459; Hearn 2 Gunter v. Leckey, 30 Ala. 591; V. Ewin, 3 Cold. 399; Stewart v. State v. Whetstone, 13 La. Ann. 376; Stringer, 41 Mo. 400; Rue v. Alter, 5 Glover v. Alcott, supra; Sibley v. Denio, 119; Millered v. Railroad Co. Smith, 2 Mich. 486; Sharp v. Speir, 9 How. Pr. 238; Newell v. Wheeler, 4 Hill, 76; Sharp v. Johnson, id. 92; 48 N. Y. 486; Smith v. Moffat, 1 Esterley's Appeal, 54 Pa. St. 192 ; Com- Barb. 65; Graham v. Van Wyck, 14 monwealth v. Knapp, 9 Pick. 496; id. 531; Perkins v. Perkins, 62 id. 531 ; Gibson v. Jenney, 15 Mass. 203; Melody Bussing v. Bushnell, 6 Hill, 382; Eiv. Reab, 4 id. 471; Wilbur v. Crane, 13 lers v. Wood, 64 Wis. 422. Pick. 284; Sullivan v. La Crosse, etc. 3 Scaife v. Stovall, 67 Ala. 237. P. Co. 10 Minn. 386; Dwelly V. 4 Bush v. Brainard, 1 Cow. 78. Dwelly, 46 Me. 377; Burnside v. 5 Bac. Abr. Statutes, I. ; Stowell v. Whitney, 21 N. Y. 148; Lock v. Mil- Zouch, 1 Plowden, 365; Miles v. Willer, 3 Stew. & Port. 13; Young v. liams, 1 P. Wms. 249, 252. McKenzie, 3 Ga. 31; Bailey v. Bryan, 6 Id. ; Rex v. Simpson, 1 Str. 45.
law; it is to receive such a construction as is agreeable to that law in cases of the same nature. A statute in affirmance of a rule of the common law will be construed, as to its consequences, in accordance with such law. So provisions which are intended to remedy defects in the common law must be read and construed in the light of that law. When words of definite signification therein are used in such provisions, and there is no intention manifest that they are to be taken in a different sense, they are to be deemed employed in their known and defined common-law meaning:
$ 292. Extraneous facts in aid of construction.— Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of all legitimate aids to ascertain the true intention; and among them are some extraneous facts. The object sought to be accomplished exercises a potent influence in determining the meaning of not only the principal but also the minor provisions of a statute. To ascertain it fully the court will be greatly assisted by knowing, and it is permitted to consider, the mischief intended to be removed or suppressed, or the necessity of any kind which induced the enactment. If the statute has been in force for a long period it may be useful to know what was the contemporary construction; its practical construction; the sense of the legal profession in regard to it; the course and usages of business which it will affect. It may be necessary to apply the meaning of terms of art which it may contain. It is appar
1 Greenwood v. Greenwood, 28 Md. Wash. 209; Lewis v. State, 3 Head, 370; Arthur v. Bokenham, 11 Mod. 127; Hollman v. Bennet, 44 Miss. 323. 150; Miles v. Williams, 1 P. Wms. 4 Gorham V. Bishop of Exeter, 252; Wallace v. Taliaferro, 2 Call, Moore's Case of, 462; Hawkins v. 462.
Gathercole, 6 De G. M. & G. 1; Ton2 Baker v. Baker, 13 Cal. 87.
nele v. Hall, 4 N. Y. 146; Clark v. 3 Holt v. Agnew, 67 Ala. 360; McCool Janesville, 10 Wis. 136; Dodge v. Garv. Smith, 1 Black, 459; Rice v. Rail- diner, 31 N. Y. 239; Big Black Creek, road Co. id. 358; Vincent, Ex parte, etc. Co. v. Commonwealth, 94 Pa. St. 26 Ala. 145; United States v. Magill, 450; Keith v. Quinney, 1 Oregon, 364; 1 Wash. 463; 4 Dall. 426; Adams v. Ruggles v. Illinois, 108 U. S. 526. Turrentine, 8 Ired. L. 147; Brocket 5 It was held in Rex v. Mashita, 6 v. Railroad Co. 14 Pa. St. 241; Allen's Ad. & E. 153, that the word “inhabAppeal, 99 id. 196; Apple v. Apple, 1 itants” in a charter has not in itself Head, 348; The Kate Heron, 6 Saw- any definite legal meaning, but must yer, 106; United States v. Jones, 3 be explained in each case, extrinsic
ent, therefore, that the court must bring to its assistance a very considerable amount and variety of extrinsic information, which it is presumed to possess and can resort to at pleasure, as occasion requires, as matters of which it has, in a technical sense, judicial knowledge. Therefore, preliminary to the consideration of some of these collateral aids, it will be pertinent and useful to inquire briefly what facts other than the letter of the law itself are within judicial cognizance.
$ 293. Judicial knowledge.-Certain classes of facts are so fixed in their nature and so notorious that courts take notice of them and they are available without proof. They are, first, matters of public law which all are bound to know; second, matters so notorious as to be regarded as universally known; and third, matters peculiarly within the cognizance of the particular court. The courts take notice not only of the existence but the tenor of all public statutes which are laws of the land within their jurisdiction, whether state or national; this knowledge includes their commencement, expiration or repeal, and judicial decisions construing them;? if declared by competent authority unconstitutional, their invalidity is at once to be judicially noticed. When one state recognizes acts done in pursuance of the laws of another state, as, for example, in certifying the acknowledgment of the execution of a deed, its courts will take judicial cognizance of those laws so far as it may be necessary to determine the validity of the acts alleged to be in conformity with them. The federal courts while exercising their original jurisdiction take notice of the statutes of each of the states; and the supreme court, in the exercise of its appellate jurisdiction, does the same. But the latter court, in ally, by evidence of usage, or by ref- V. Chubb, 16 Gratt. 284; Miller v. erence to the context and objects of McQuerry, 5 McLean, 469; United the charter. See Smith v. Lindo, 4 C. States v. Turner, 11 How. 663; CarB. (N. S.) 395.
penter v. Dexter, 8 Wall. 513; Fourth * Kessel v. Albetis, 56 Barb. 362; Nat. Bank v. Francklyn, 120 U. S. 747. Morris v. Davidson, 49 Ga. 361; The 2 Hinde v. Vattier, 5 Pet. 398; ElScotia, 14 Wall, 170; Merrill v. Daw- mendorf v. Taylor, 10 Wheat. 152; son, Hempst. 563; Jasper v. Porter, 2 Pennington v. Gibson, 16 How. 65, 81. McLean, 579; Jones v. Hays, 4 id. 3 Cash v. State, 10 Humph. 111. 521; Terry v. Merchants' & Plant- * Carpenter v. Dexter, 8 Wall. at ers' Bank, 66 Ga. 177; Bird v. Com- p. 531 ; Shotwell v. Harrison, 22 Mich. monwealth, 21 Gratt. 800; Mims v. 410. Swartz, 37 Tex. 13; Bayly's Adm'r 5 Course v. Stead, 4 Dall. 22, 27,
the exercise of such jurisdiction on error to the highest court of a state, administers the law in the same view as the state court and can take no broader judicial notice.
$ 294. The requirement to take notice of public laws necessarily includes taking notice of all facts and proceedings which concern their validity and interpretation. “If the words of a statute are really and fairly doubtful,” said Lord Coleridge, C. J., “then, according to well-known legal principles and principles of common sense, historical investigations may be used for the purpose of clearing away the obscurity which the phraseology of the statute creates." 3 Whatever is decisive evidence relative to the due enactment of a statute, whether it be only the certificates of the presiding officers, the statute record, or also the journals of the legislative bodies, the courts which must take notice of the laws, and therefore have necessarily to determine which are valid and duly enacted, may consult. A treaty is the supreme law of the land, note; Hinde v. Vattier, 5 Pet. 398; v. The Collector, 6 Wall. 499; De Bow Owings v. Hull, 9 id. 607, 625; United v. People, 1 Denio, 9; Berliner v. States v. Turner, 11 How. 663, 668; Waterloo, 14 Wis. 378; People v. Pennington v. Gibson, 16 id. 65; Cov- Purdy, 2 Hill, 31; Board of Superington Drawbridge Co. v. Shepherd, visors v. Heenan, 2 Minn. 330. 20 id. 227, 230; Cheever v. Wilson, 9 3 Regina v. Most, L. R. 7 Q. B. Div. Wall. 108; Junction R. Co. v. Bank of at p. 251. Ashland, 12 Wall. 226, 230; Lamar v. 4 People v. Mahaney, 13 Mich. 481; Micou, 114 U. S. 218; Fourth Nat. Legg v. Mayor, 42 Md. 203; Berry v. Bank v. Francklyn, 120 id. 747, 751; Baltimore, etc. Co. id. 446; People v. Hanley v. Donoghue, 116 id. 1, 6. De Wolf, 62 Ill. 253; Board of Super
1 Hanley v. Donoghue, 116 U. S. 1. visors v. Heenan, 2 Minn. 330; People In this case the court say that State v. River Raisin, etc. R. R. Co. 12 of Ohio v. Hinchman, 27 Pa. St. 479, Mich. 389; People v. Purdy, 2 Hill, and Paine v. Insurance Co. 11 R. I. 31; De Bow v. People, 1 Denio, 9; 411, were decided on a misapprehen- Commercial Bank v. Sparrow, 2 sion of the functions of that court. Denio, 97; Duncombe v. Prindle, 12 See Butcher v. Bank of Brownsville, Iowa, 1; Green v. Weller, 32 Miss. 2 Kan. 70; Jarvis v. Robinson, 21 650 ; Pangborn v. Young, 32 N. J. L. Wis. 523; Hobbs v. Memphis, etc. 29; Kilbourn v. Thompson, 103 U. S. R. R. Co. 9 Heisk. 879; Baptiste v. 168; Pacific R. R. Co. v. The GovDe Volunbran, 5 H. & J. 86, 98; Bank ernor, 23 Mo. 353; Opinion of Justices, of U. S. v. Merchants' Bank, 7 Gill, 45 N. H. 607; State v. McLelland, 18 415; Coates v. Mackey, 56 Md. 416, Neb. 236; Gardner v. The Collector, 419; Green v. Van Buskirk, 7 Wall. 6 Wall. 499; Moody v. State, 48 Ala. 139.
115; Jones v. Hutchinson, 43 id. 2 People v. Mahaney, 13 Mich. 481; 721; Southwark Bank v. CommonCoburn v. Dodd, 14 Ind. 347; Gardner wealth, 26 Pa. St. 446.
and as such is within judicial knowledge of the courts;' they have even knowledge of such foreign laws as the treaties disclose.
$ 295. The courts have judicial knowledge of all territorial divisions, corporations and institutions established or recognized by public statutes. The orphans' court of Washington county, in the District of Columbia, being created by a public statute of the United States, its seal was judicially recognized by the courts of Maryland. Courts take notice of the constitution as the fundamental law, and of amendments thereto, and when they take effect. They take notice of the common law and the conditions of the country which affected its introduction and adoption; also the law of nations, and the law merchant. They do not take notice of the written laws of another state or of foreign countries; but the courts of a state take notice of its antecedent laws, whatever their origin; it is so though the state was carved out of an older state or acquired from a foreign power.S
$ 296. Courts take judicial notice of customs which are general and universally known, as of the meaning of C. 0. D. affixed to packages sent by common carriers, and the practice and responsibilities relative thereto;' the business of mercantile agencies; 10 the commercial usage to observe Sundays and
1 Dole v. Wilson, 16 Minn. 525. & G. 239; Wiggins F. Co. v. Chicago 2 Montgomery v. Deeley, 3 Wis. 709. & A. R. Co. 5 Mo. App. 347; Branch
3 Oxford Poor Rate, 8 E. & B. 184, v. Burnley, 1 Call, 147; Consequa v. 211; Harding v. Strong, 42 Ill. 148; Willings, 1 Pet. C. C. 225; Munn v. Sullivan v. People, 122 Ill. 385; State Burch, 25 III. 35. v. Reader, 60 Iowa, 527; Luck v. s United States v. Turner, 11 How. State, 96 Ind. 16.
663; Chouteau v. Pierre, 9 Mo. 3; Ott 4 Mangun v. Webster, 7 Gill, 78. v. Soulard, id. 581; Payne v. Tread5 Graves v. Keaton, 3 Cold. 8. well, 16 Cal. 220; Pecquet v. Pecquet,
6 The Scotia, 14 Wall. 170. In this 17 La. Ann. 204; Bouldin v. Phelps, 30 case the court say: “Historically, we Fed. Rep. 547; Stevens v. Bomar, 9 know that before the close of the Humph. 546; Henthorn v. Doe, 1 year 1864 nearly all the commercial Blackf. 157; Green v. Goodall, 1 Cold. nations of the world had adopted the 404; Wilson v. Smith, 5 Yerg. 379; same [navigation] regulations re- Delano v. Jopling, 1 Litt. 117. specting lights, and that they were 9 State v. Intoxicating Liquors, 73 recognized as having adopted them.” Me. 278. See contra, McNichol v.
7 Reed v. Wilson, 41 N. J. L. 29; Pacific Exp. Co. 12 Mo. App. 401. Goldsmith v. Sawyer, 46 Cal. 209; 10 Holmes v. Harrington, 20 Mo. Bank of Columbia v. Fitzhugh, 1 H. App. 661.