페이지 이미지
PDF
ePub

generally known.' Facts stated even in standard publications, such as encyclopedias and dictionaries, will not be judicially noticed unless they are of such universal notoriety as to be a part of the common knowledge of all persons. Courts cannot take notice of minor geographical and other like facts, unless historically or traditionally well and generally known.'

$ 306. Courts will take judicial notice that the business of a barber on Sunday is not a work of necessity; 4 the peculiar nature of lotteries and how they are generally managed;8 what a billiard table is. They will take notice of the character of the circulating medium, and the meaning of popular language relating to it;? the different classes of notes and bills in circulation as money at a particular time; the gen

1 Ausman v. Veal, 10 Ind. 355; St. right of property connected with the Louis G. L. Co. v. American F. Ins. continuance of life, facts so far as Co. 33 Mo. App. 348. See Spensley v. they are known, in regard to the probLancashire Ins. Co. 54 Wis. 433. ability, the expectation, and the aver

2 Kaolatype Engraving Co. v. Hoke, age duration of human life, have al30 Fed. Rep. 444.

ways been in like manner admitted as 3 Buffalo, etc. Co. v. N. Y. etc. R. R. evidence, or as a ground from which Co. 10 Abb. N. C. 107. Chan. Bland presumptive evidence of the existence in Patterson v. McCausland, 3 Bland's of other facts may be fairly deduced. Ch. at p. 71, said: “The law respects And there can be no doubt that the the regular course of nature in every regular and known course of nature way; and, consequently, in all cases in the formation of vegetables may in so far as the course of nature is be as safely relied on as direct, or as known, all such facts, as well in re- presumptive evidence, as in that of gard to the revolution of the seasons, animals. The only point of difficulty as to animals and vegetables; as to as to both being the establishment of the mating of birds, and their co- the truth of that which is alleged to operation in rearing their young, the be the uniform and regular course of blooming time of roses, and the like, nature.” But it was held that, in the are received as being in themselves absence of evidence that the number entirely trustworthy, or as facts from of concentric layers in the trunk of a which inferences as to the truth of tree correspond with the years of its other facts may be safely drawn. Co. age, the hypothesis that the formation Litt. 40, 92, 197; 1 Stark. Ev. 472, of each one of such concentric layers note; Case of Swans, 7 Co. 82. In is evidence of the lapse of a year canquestions of bastardy, the time of not be judicially received. access being proved, the known term 4 State v. Frederick, 45 Ark. 347. of gestation, reckoning from the time 5 Salomon v. State, 28 Ala. 83. of birth, is always received as a most 6 State v. Price, 12 G. & J. 260. satisfactory kind of presumptive evi- ? Lampton v. Haggard, 3 T. B dence. Co. Litt. 1236, note; Rex v. Mon. 149. Luffe, 8 East, 193. So too, in all the 8 Hart v. State, 55 Ind. 599. various questions in relation to the

eral facts connected with the emission, use and circulation of the Confederate currency; the changes in the course of business in the country and of new processes to facilitate trade and communication;' that a railroad superintendent has authority to receive or refuse cord-wood; the customary price of ordinary labor;' the meaning of common and generally known abbreviations of proper names and of other things; that Free Masonry is a charitable institution; of the usual duration of a voyage across the Atlantic;& the ordinary incidents of railway travel;' that the language of all countries is subject to fluctuation ; 10 the distance between well-known cities of the United States and the speed of railway travel between them." There is considerable diversity of opinion in dealing with the multifarious facts for which judicial notice has been claimed, but these contrarieties have arisen in the application of conceded principles, and when compared will be found to merely illustrate different degrees of caution and conservatism.12

1 Simmons v. Trumbo, 9 W. Va. 75; State v. Russell, 17 Mo. App. 16; 858.

Wilcox V. Jackson, 109 Ill. 261; 2 Wiggins Ferry Co. v. Chicago, Bishop v. Jones, 28 Tex. 294; Bradetc. R. R. Co. 5 Mo. App. 347.

ford v. Floyd, 80 Mo. 207; State v. 3 Wisconsin Telephone Co. v. Osh- Wise, 7 Ind. 645; Ward v. Henry, 19 kosh, 62 Wis. 32.

Wis. 76; State v. Bruner, 17 Mo. App. * Sacalaris v. Eureka, etc. R. R. Co. 274; Stanberry v. Nelson, Wright 18 Nev. 155.

(Ohio), 766; Mosley v. Vt. Mut. F. Ins. 6 Bell v. Barnet, 2 J. J. Marsh. 516. Co. 55 Vt. 142; Ellis v. Park, 8 Tex.

6 Moseley v. Mastin, 37 Ala. 216; 205; Russell v. Martin, 15 id. 238; Stephen v. State, 11 Ga. 225; Weaver Seymour v. Marvin, 11 Barb. 80; v. McElhenon, 13 Mo. 89.

Modawell v. Holmes, 40 Ala. 391; Cic? Burdine v. Grand Lodge, 37 Ala. ero, etc. Co. v. Craighead, 28 Ind. 274; 478.

Riggin v. Collier, 6 Mo. 568; Whitlock 8 Openheim v. Wolf, 3 Sandf. Ch. v. Castro, 22 Tex. 108; Woodward v.

Chicago, etc. R. R. Co. 21 Wis. 309; 9 Downey v. Hendrie, 46 Mich. 498. Longes v. Kennedy, 2 Bibb, 607; 10 Vanada v. Hopkins, 1 J. J. Marsh. McDonald v. Kirby, 3 Heisk. 607; 285.

Cutter v. Caruthers, 48 Cal. 178; State 11 Pearce v. Langfit, 101 Pa. St. 507; v. Cleveland, 80 Mo. 108; Market Rice v. Montgomery, 4 Biss. 75. Bank v. Pacific Bank, 27 Hun, 465;

12 Goodwin v. Appleton, 22 Me. 453; Johnson v. Robertson, 31 Md. 476; Penn. Co. v. Frana, 13 Ill. App. 91; Grider v. Tally, 77 Ala. 422; Kelley v. Johnson v. Common Council, 16 Story, 6 Heisk. 202; Temple v. State, Ind. 227; Buckinghouse v. Gregg, 19 15 Tex. App. 304; Bennett v. North id. 401; Porter v. Waring, 69 N. Y. British Ins. Co. 8 Daly, 471; Feemster 250 ; Allen v. Scharinghausen, 8 Mo. v. Ringo, 5 T. B. Mon, 336; South & N. App. 229; Rice v. Montgomery, 4 Biss. A. R. R. Co. v. Wood, 74 Ala. 449;

571.

$ 307. Contemporaneous construction.—The aid of contemporaneous construction is invoked where the language of a statute is of doubtful import and cannot be made plain by the help of any other part of the same statute, nor by the assistance of any act in pari materia which may be read with it, nor of the course of the common law up to the time of its enactment. Under such circumstances the court may consider what was the construction put upon the act when it first came into operation. Where this has been given by enactment it is conclusive. A contemporaneous construction is that which it receives soon after its enactment. This after the lapse of time, without change of that construction by legislation or judicial decision, has been declared to be generally the best construction. It gives the sense of the community as to the terms made use of by the legislature. If there is ambiguity in the language, the understanding of the application of it when the statute first goes into operation, sanctioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice. A construction under such circumstances becomes established law. Where the statute is doubtful, a construction long acted upon by the inferior courts will generally be adopted and followed by the superior tribunals,' and

Esterbrook Mfg. Co. v. Ahern, 30 Vaughan, 169; Mansell v. Reg. 8 E. & N. J. Eq. 341; Shropshire v. State, 12 B. atp. 111; Gorham v. Bishop of ExArk. 190.

eter, 15 Q. B. 69; Booth v. Ibbotson, 1 Y. I Wilb. on St. 142; 2 Inst. 11, 136; 1 &J. 360; Nelson v. Allen, 1 Yerg. 360, Kent, Com. 465; Fermoy Peerage 376, 377; Harrison v. Willis, 7 Heisk. Claim, 5 H. L. Cas. at p. 747; Mor- 35; Simpson v. Willard, 14 S. C. 191; gan v. Crawshay, L. R. 5 H. L. at Martin v. Hunter, Wheat. 351; p. 315; Attorney-General v. Primate, 1 Wanet v. Corbet, 13 Ga. 441; Howell Jebb. & Symes, at p. 317.

v. State, 71 id. 224; State v. Mayhew, 2 Philadelphia & Erie R. R. Co. v. 2 Gill, 487; Garland v. Carlisle, 2 Cr. Catawissa R. R. Co. 53 Pa. St. 20, 61. & M. at p. 39; United States v. Ship

3 Packard v. Richardson, 17 Mass. Recorder, 1 Blatchf. 218, 223; Wind143; 2 Inst. 181; People v. Löwenthal, ham v. Chetwynd, 1 Burr. at p. 419; 93 III. 191; Opinion of Justices, 126 Wilton v. Chambers, 7 Ad. & El. at Mass. 551; Hahn v. United States, p. 532; Bank of England v. Anderson, 107 U. S. 402; Commonwealth v. 3 Bing. N. C. 666; Hamilton v. McNeil, Parker, 2 Pick. 550, 556; Scruggs v. 13 Gratt. 394; 4 Bac. Abr. 648; Dean Brackin, 4 Yerg. 528; Egnew v. v. Borchsenius, 30 Wis. 236; People v. Cochrane, 2 Head, 320; Cohens v. Vir- May, 3 Mich. 598. ginia, 6 Wheat. 264; Reg. v. Frost, 4 Plummer v. Plummer, 37 Miss 9 C. & P. 129; Sheppard v. Gosnold, 185.

especially as to rights which have accrued under it. If the decisions are conflicting it cannot be said there is a contemporary exposition, and the court must look to the words of the statute and interpret them by its own unfettered judgment. A construction of a constitution, if nearly contemporaneous with its adoption, and followed and acquiesced in for a long period of years afterwards, is never to be lightly disregarded, and is often conclusive.

$ 308. General usage.- If the words of a statute be doubtful a general usage may explain it, but it must be universal.4 A practice in a part of the state inconsistent with the letter and spirit of a statute cannot repeal it nor control its construction. A universal law cannot receive different interpretations in different localities; but when a statute is applicable to one place only, doubtful words in it may be construed by the usage in that place.' Long usage is of no avail against a plain statute; it can be binding only as the interpreter of a doubtful law, and as affording a contemporary exposition." Where a statute, expressive as to some points, is silent as to others, usage may supply the defect, if not inconsistent with anything which it expresses.10

$ 309. A practical construction, of long standing, by those for whom the law was enacted, will not be lightly questioned, especially in matters of form, though it will not be allowed to defeat the manifest purpose of the statute. This was held to

1 Plummer v. Plummer, 37 Miss. Bank of Ireland v. Evans's Charities, 185.

5 H. L. Cas. 405; Bailey v. Rolfe, 16 2 Rex, v. Leek Wootton, 16 East, at N. H. 247; Chesnut v. Shane, 16 Ohio,

599. 3 Opinion of Justices, 126 Mass. 551; 5 State v. Mayhew, 2 Gill, 487. 1 Kent's Com. 465 and note; Story 6 St. Paull v. Lewis, 4 Watts, 402; on Const. S 408; Cooley, Const. Lim. Ham v. Sawyer, 38 Me. 37; Evans v. 69; Surgett v. Lapice, 8 How. 48, 68; Myers, 25 Pa. St. 114. Commonwealth V. Lockwood, 109 . Frazier v. Warfield, 13 Md. 279. Mass. 322, 339; Commonwealth v. 8 Goldsborough v. United States, Costley, 118 Mass. 1, 36; Stuart v. Taney's Dec. 80. Laird, 1 Cranch, 299; McCulloch v. 9 Atty-Gen'l v. Bank, 5 Ired. Eq. Maryland, 4 Wheat. 316, 401 ; Portland 71; Gwyn v. Hardwicke, 1 H. & N. Bank v. Apthorp, 12 Mass. 252, 257; 53; Pochin v. Duncombe, 1 H. & N. Holmes v. Hunt, 122 Mass. 505, 516. 856.

4 Rex v. Hogs, 1 T. R. 721; Dyer v. 10 Dunbar v. Roxburghe, 3 Cl. & Fin. Best, L. R. 1 Ex. 152; Earl of Water- 335. ford's Peerage, 6 CL & Fin, at p. 173; 11 Westbrook v. Miller, 56 Mich. 148.

p. 122.

aid the presumption that the principal was under disability when a deputy officer acts, having authority to act only when the principal is unable to act. The practical construction given by the interior department of the general government, in reliance upon the uniform opinions of the attorney-general's office, of a statute granting lands, should be followed by the state authorities until reversed by the federal courts.?

2 Where a statute concerning the administration of tax-collectors' oaths has been uniformly construed in a certain way by the state and county authorities, and the construction has become a rule of property, many titles depending upon it, the maxim communis error facit jus may be invoked if the statute is doubtful. The practical construction given to a doubtful statute by the public officers of the state, and acted upon by the people thereof, is to be considered; it is, perhaps, decisive in case of doubt. This is similar in effect to a course of judicial decisions. The legislature is presumed to be cognizant of such construction, and after long continuance, without any legislation evincing its dissent, courts will consider themselves warranted in adopting that construction. Contemporary construction, and official usage for a long period, by the persons charged with the administration of the law, are among the legitimate aids in the interpretation of statutes.

$ 310. When a judicial interpretation has once been put upon a clause, expressed in a vague manner by the legislature, and difficult to be understood, that ought of itself to be a suffi

6

1 Continental Imp. Co. v. Phelps, 47 Lytle, 5 McLean, 9; Hahn v. United Mich. 299; Clark v. Mowyer, 5 id. 462; States, 14 Ct. Cl. 305; Swift Court Cameron v. Merchants', etc. Bank, 37 ney, etc. Co. v. United States, 14 Ct. id. 240; Employers' L. Co. v. Com- Cl. 481; Edwards v. Darby, 12 Wheat. missioner of Ins. 64 id. 614.

206; Stuart v. Laird, 1 Cranch, 299; 2 Johnson v. Ballou, 28 Mich. 379. United States v. Bank, 6 Pet. 29; 3 Malonny v. Mahar, 1 Mich. 26. United States v. Moore, 95 U. S. 760;

4 Solomon v. Com’rs, 41 Ga. 157; Brown v. United States, 113 U. S. People v. May, 3 Mich. 598; Kiersted 568; The Laura, 114 U. S. 411; Wright v. State, 1 G. & J. 231; United States v. Forrestal, 65 Wis. 341, 348. v. Gilmore, 8 Wall. 330; Union Ins. 5 The Anna, L. R. 1 P. Div. 259. Co. v. Hoge, 21 How. 35; Mathews 6 Wetmore v. State, 55 Ala. 198; V. Shores, 24 Ill. 27; Chesnut v. Nelson v. Allen, 1 Yerg. 376; Tipton Shane, 16 Ohio, 599, 607; Scanlan v. v. Davis, 5 Hayw. 278; People v. Childs, 33 Wis. 663; Goddard v. Glon- Dayton, 55 N. Y. 377. inger, 5 Watts, 209; United States v.

« 이전계속 »