cient authority for adopting the same construction.' Buller, J., said: "We find one solemn determination of these doubtful expressions in the statute, and as that construction has since prevailed, there is no reason why we should now put another construction on the act on account of any supposed change of convenience." This rule of construction will hold good even if the court be of opinion that the practical construction is erroneous; so that if the matter were res integra the court would adopt a different construction.3 Lord Cairns said: "I think that with regard to statutes it is desirable not so much that the principle of the decision should be capable at all times of justification, as that the law should be settled, and should, when once settled, be maintained without any danger of vacillation or uncertainty." Judicial usage and practice will have weight," and when continued for a long time will be sustained though carried beyond the fair purport of the statute."

§ 311. The uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight. The contemporary and subsequent action of the legislature in reference to the subject-matter has been accepted as control

1 Williams v. Newton, 14 M. & W. Morrison v. Barksdale, Harper, 101; at p. 757.

2 Rex v. Younger, 5 T. R. at p. 452. See Ellis v. Owens, 10 M. & W. at p. 521; Rex v. Great Driffield Inhabitants, 8 B. & C. at p. 690.

3 State v. Chase, 5 H. & J. 303. 4 Commissioners v. Harrison, L. R. 7 H. L. 9; McKeen v. Delancy, 5 Cranch, 22; Migneault v. Malo, L. R. 4 P. C. 136; Kernion v. Hills, 1 La. Ann. 419; Janvrin v. De la Mare, 14 Moore's P. C. 334; Kitchen v. Bartsch, 7 East, 53; Lord Avocate v. Sinclair, L. R. 1 Scotch App. 178; Jewison v. Dyson, 9 M. & W. 540; Nicol v. Paul, L. R. 1 Scotch App. 131; Evanturel v. Evanturel, L. R. 2 P. C. 462.

5 McKeen v. Delancy, 5 Cranch, 22; Bailey v. Rolfe, 16 N. H. 247; Packard v. Richardson, 17 Mass. 122, 144;

Att'y-Gen'l v. Bank of Cape Fear, 5 Ired. Eq. 71; Rogers v. Goodwin, 2 Mass. 475; Wetmore v. State, 55 Ala. 198; Plummer v. Plummer, 37 Miss. 185; Kernion v. Hills, 1 La. Ann. 419; Leigh v. Kent, 3 T. R. at p. 364. 6 Pease v. Peck, 18 How. 595; Reg. v. Scaife, 17 Q. B. 238; Smith v. Tilly, 1 Keble, 712; Leverson v. Reg. L. R. 4 Q. B. 394; Clow v. Harper, L. R. 3 Ex. Div. 198; The Anna, L. R. 1 P. Div. 259; Reg. v. Cutbush, L. R. 2 Q. B. 379; Migneault v. Malo, L. R. 4 P. C. 123, 136.

7 Hardy, Ex parte, 68 Ala. 303; Attorney-General v. Preston, 56 Mich. 181; Commonwealth v. Miller, 5 Dana, 320; Moog v. Randolph, 77 Ala. 597; Selma, etc. R. R. Co., Ex parte, 45 id. 696.

ling evidence of the intention of a particular act.' Legislative construction of old laws has no judicial force; whether right or wrong the courts must determine the proper interpretation from the statutes themselves. A practical construction of a statute of doubtful meaning, long continued and acquiesced in, and which has operated as a rule of property, and under which many important rights have accrued, will seldom be disturbed. "We cannot," say the court in an early case, "shake a principle which has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision [practice] is now supported is that long-continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words." In construing statutes applicable to public corporations, courts will attach no slight weight to the uniform practice under them, if the practice has continued for a considerable length of time. Municipal practice under indefinite provisions of a charter that official terms should expire on the last day of March was applied in the construction of a statute giving one appointed a two-years' term."

4

1 Doggett v. Walter, 15 Fla. 355; Bigelow v. Forrest, 9 Wall. 339.

2 Drain Com'r v. Baxter, 57 Mich. 127.

3 Rogers v. Goodwin, 2 Mass. 477; Stuart v. Laird, 1 Cranch, 299; Matter of the Will of Warfield, 22 Cal. 71; People v. Lowenthal, 93 Ill. 191; Brown v. State, 5 Colo. 496; Plummer v. Plummer, 37 Miss. 185; Nelson v. Allen, 1 Yerg. 360; Morgan v. Crawshay, L. R. 5 H. L. 304, 320; State v. Chase, 5 H. & J. 303; State v. Severance, 49 Mo. 401. In Steiner v. Coxe, 4 Pa. St. 13, Gibson, C. J., had to deal with the effect of a redemption from a tax sale permitted by an officer after the statutory period had elapsed. It had been permitted in pursuance of a practice which prevailed "to an almost unlimited extent." He said: "It will

6

be necessary to distinguish between redemption by permission and a right to redeem, for the one may be good independent of the other." He reached the conclusion that the owner may not redeem by right, but may by permission, if not done by collusion. "The evidence to show the universality of redemptions by permission was properly received; not, as was alleged, to prove a custom superior to the statutes, but to found an interpretation of them on the basis of the argument ab inconvenienti. It was evidence to the court, not to the jury."

Rogers v. Goodwin, 2 Mass. 476. 5 Sherwin v. Bugbee, 16 Vt. 444; State v. Severance, 49 Mo. 401; State v. Cook, 20 Ohio St. 252.

6 French v. Cowan, 4 New Eng. Rep. 682; 79 Me. 426.

§ 312. An important consideration affecting the weight of contemporary judicial construction is the length of time it has. continued. It is adopted, and derives great force from being adopted, soon after the enactment of the law. It may be, and is presumed, that the legislative sense of its policy, and of its true scope and meaning, permeates the judiciary and controls its exposition. Having received at that time a construction which is for the time settled, accepted, and thereafter followed or acted upon, it has the sanction of the authority appointed to expound the law, and under circumstances peculiarly favorable for reaching just and correct conclusions; when reached, they are, moreover, within the strongest reasons on which is founded the maxim of stare decisis. Such a construction is publicly given, and the subsequent silence of the legislature is strong evidence of acquiescence, though not conclusive. But in respect to a practical construction and usage not having judicial sanction, long duration is of their very essence. They are but interpreters of an obscure law, and to have weight should prevail for a long period, and their observance be uniform and notorious. Long periods have been mentioned as requisite or desirable in the English cases, varying from forty to five hundred years; shorter periods in this country suffice. This difference may come from the legislation in America being comparatively modern. A local or special act, however, may be acted upon and practically construed by parties for whose purposes it was enacted, so as to induce an adoption of their construction without reference to the time occupied in such practical construction. Thus, where a city pursuant to due authority passed an ordinance for the subscription of stock and the issue of bonds in aid of a railroad, and this had been acted upon, the court said there had been a contemporary construction "placed upon an ordinance by the parties themselves, and on which they have acted, and upon which large and important interests have

1 State v. Bosworth, 13 Vt. 402; Clinton v. Englebrecht, 13 Wall. 434; Mayor of Baltimore v. State, 15 Md. 376; Ferris v. Higley, 20 Wall. 375. 2 Bailey v. Rolfe, 16 N. H. 247.

3 Mansell v. Reg. 8 E. & B. 54, 72, 111; Dunbar v. Roxburghe, 3 CL &

3

Fin. at p. 354; Gorham v. Exeter, 15 Q. B. 52, 69; Fermoy Peerage Claim, 5 H. L. Cas. 729, 785.

4 Pease v. Peck, 18 How. 595; Clark v. Dotter, 54 Pa. St. 215, 216; United States v. Ship Recorder, 1 Blatchf. 218, 223.

vested. Although this would not be controlling, if the language was clearly the other way, yet in doubtful cases it is entitled to, and should receive, weight." Lord Eldon, in Attorney-General v. Forster, said: "According to Lord Hardwicke, usage would interpret the deed against the effect of any exposition upon the mere terms of the deed itself, if there was nothing else to resort to."

§ 313. Stare decisis. The certainty and stability of the law are among its chief excellencies. By following this legal injunction the common law has become a symmetrical system; the same authoritative rule applied to statutory construction gives a wholesome precision to dubious generalities, and otherwise removes doubts which arise upon obscure provisions, and has a salutary tendency to give confidence to those who must act upon statutes, but cannot settle their meaning. The rule of stare decisis is the authority of judicial decisions as precedents in subsequent litigations. When a point has been once settled by decision, it forms a precedent which is not afterwards to be departed from.3 Such precedents must from the nature of our legal system be the same to the science of the law as a convincing series of experiments is to any other branch of inductive philosophy. They are, on being promulgated, immediately relied upon, according to their character, either as confirming an old or forming a new principle of action, which, perhaps, is at once applied to thousands of cases. These are continually multiplying. Numerous and valuable rights, offensive and defensive, may be claimed under them. The court almost always, in deciding any question, creates a moral power above itself; and when the decision construes a statute, it is legally bound for certain purposes to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case. "The doctrine is not founded upon a mere rule of practice, changeable at the pleasure of the courts, but upon the solid basis of justice, and vitally and essentially affects the rights and interests of defendants." It is a rule applicable to all questions of law, whether declaring a principle of the common law or the conBates v. Relyea, 23 Wend. 340,

5

1 State v. Severance, 49 Mo. 401. 210 Ves. at p. 338.

Abb. L. Dic. 497.

341.

5 Shields v. Perkins, 2 Bibb, 230.

struction of a statute. A deliberate decision on a point of law given in a case becomes authority in other like cases; it is then the highest evidence of what the law is applicable to the subject; it should be followed unless reversed by a superior court or changed by the legislature,' unless the law was manifestly misunderstood or misapplied in the case decided; and even then, after long adherence to that error, it may become fixed and incapable of judicial correction. If it were otherwise, the public would suffer great inconvenience. It is only by the notoriety and stability of legal principles and rules as they are defined, declared and illustrated in judicial precedents that all human affairs may be regulated by one standard; that professional men can give safe advice to those who consult them; that people in general can venture with confidence to buy and trust, and to deal with each other.2

3

§ 314. There is a distinction in the application of this rule between questions which concern practice, or those rules of conduct which have a mere present importance, and those which affect the validity and control the construction of contracts, or are rules of property. As to the former, legal precedents are followed unless they are manifestly wrong. As to the latter, they are followed with more persistency. The importance, in a general sense, of stable laws induces a conservative opposition to vacillation in even the methods of administering justice, and has made the rule of stare decisis universally applicable; in some cases imperative, in others at least a precept.

1 Lemp v. Hastings, 4 Greene (Ia.), 448; Emerson v. Atwater, 7 Mich. 23. 21 Kent's Com. 476.

3 Duff v. Fisher, 15 Cal. 375, 381; Commonwealth v. Miller, 5 Dana, 320; State v. Thompson, 10 La. Ann. 122; Reg. v. Chantrell, L. R. 10 Q. B, 587; Waldo v. Bell, 13 La. Ann. 329; Davidson v. Allen, 36 Miss. 419; State v. Wapello Co. 13 Iowa, 388; Green v. Neal, 6 Pet. 291; Sydnor v. Gascoigne, 11 Tex. 455; Borden v. State, 11 Ark. 519; Greencastle Southern T. Co. v. State, 28 Ind. 382; Succession of Lauve, 6 La. Ann. 529; Seale v. Mitchell, 5 Cal. 403; Wolf v. Lowry, 10 La.

Ann. 272; People v. Cicott, 16 Mich.

283; New Orleans v. Poutz, 14 La. Ann. 853; Romaine v. Kinshiner, 2 Hilt. 519.

41 Kent, 475, 476; 27 Am. Dec. 632; In re Warfield, 22 Cal. 51; Panaud v. Jones, 1 id. 488; Rogers v. Goodwin, 2 Mass. 477; Aicard v. Daly, 7 La. Ann. 612; Farmer's Heirs v. Fletcher, 11 id. 142; Van Loon v. Lyon, 4 Daly, 149; Day v. Munson, 14 Ohio St. 488; Reed v. Ownby, 44 Mo. 204; Hihn v. Courtis, 31 Cal. 402; Meriam v. Harsen, 2 Barb. Ch. 270; Pioche v. Paul, 22 Cal. 110; Fisher v. Horicon I. Co. 10 Wis. 355; Van Winkle v. Constantine, 10 N. Y. 425.