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ing contracts made on the faith of the earlier adjudications. “ The sound and true rule is,” says Taney, C. J., “that if the contract when made was valid by the laws of the state, as then expounded by all the departments of its government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the state or decision of its courts altering the construction of the law.” “After a statute has been settled by judicial construction, the construction becomes, so far as contract rights under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes
same, in its effect on contracts, as an amendment of the law by means of a legislative enactment.” ?
$ 320. The maxim of stare decisis applies only to decisions on points arising and decided in causes; it has been held not to extend to reasoning, illustrations and references in opinions. The precedent includes the conclusions only upon questions which the case contained, and which were decided.' “ The members of a court,” says Downey, C. J., “ often agree in a decision, but differ decidedly as to the reasons or principles by which their minds have been led to a common conclusion. It is therefore the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the force of precedent in other cases. The reasoning adopted, the analogies and illustrations presented in real or supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not. So of the principle concurred in, and laid down as governing the point in judgment, so far as it goes or seems to go beyond the case under consideration.” 4 The precedent must include necessarily the logic and reasoning of a syllogistic legal proposition of which the judgment is the conclusion. If the major premise, which is the law of the case, may be stated in several forms, and is stated differently by different members of the
1 Ohio L. Ins. & Tr. Co. v. Debolt, 4 Lucas v. Commissioners, 44 Ind. 16 How. 416, 432.
524; Louisville, etc. R. R. Co. v. 2 Douglass v. Pike Co. 101 U. S. County Court, 1 Sneed, 637; Carroll 677, 687; Tayloe v. Thomson, 5 Pet. v. Carroll, 16 How. 275. 358; Geddes v. Brown, 5 Phila. 180. 5 3 Black. Com. 396; Lamphear v.
3 Lucas v. Commissioners, 44 Ind. Buckingham, 33 Conn. 237.
court who join in the conclusion, this diversity will impair the force of the precedent. A judicial decision is to be regarded as conclusive, not only of the point presented in argument and expressly decided, but of every other proposition necessarily involved in reaching the conclusion expressed. An opinion of the supreme court is the law of the case in which it is pronounced on a new trial, and in that court on a second review.?
$ 321. Effects and consequences. In the construction of statutes, where the language is obscure or ambiguous, or for any reason its precise intent is not plain ard cannot be made so by the context or other statutes in pari materia, the effects and consequences enter with more or less force into consideration; nor are they entirely ignored in the reading of any statute. But when the terms of a statute are plain, unambiguous and explicit, the courts are not at liberty to go outside of the language to search for a meaning which it does not reasonably bear. When there is no express repeal none is presumed to be intended; and the effect of a new statute in conjunction with other statutes, with reference to established institutions, systems and policies, is always in view. It is pre
1 Bloodgood v. Grasey, 31 Ala. 575, sarily involved in it; at least, when 587. In this case Walker, J., said: the contrary does not appear." “ It was contended in the discussion 2 Dewey v. Gray, 2 Cal. 374; Bane of this case that the only point de- v. Wick, 6 Ohio St. 13; Gray v. Gray, cided, or in the mind of the court, 34 Ga. 499; Thomason v. Dill, 34 was that made in argument. The re- Ala. 175: Stein v. Ashby, 30 id. 363; sult of that position would be to take Huffman v. State, id. 532; Pearson from judicial decisions, where there v. Darrington, 32 id. 227; Stacy v. was no opinion, the authority of an Vermont, etc. R. R. Co. 32 Vt. 551; adjudication upon all propositions Parker v. Pomeroy, 2 Wis. 112. which were too plain or too well rec- 3 United States v. The Sadie, 41 ognized by the bench and bar to be Fed. Rep. 396. questioned; and thus the universal 4 Greenhow V. James, 80 Va, 636; and undisputed sanction of a legal Baxter v. Tripp, 12 R. I. 310; Grenada principle would become a barrier to ('0. Supervisors v. Brogden, 112 proof by judicial decisions of its ex- U. S. 261; Att'y-Gen'l v. Smith, 31 istence. It better accords with reason Mich. 359; Blackwood v. Van Vleit, to regard a judicial tribunal as as- 30 id. 118; Rowley v. Stray, 39 id. serting, and intending to assert, every 70; Burnham v. Onderdonk, 41 N. Y. proposition which is indispensable to 425; Fort v. Burch, 6 Barb. 60; Minet the conclusion expressed, and neces- v. Leman, 20 Beav. 269; Lindsey y.
Rottaken, 32 Ark. 619.
sumed that there is no intention to affect them any further than the plain terms of the new statute require.
Although the word "citizen,” used in its most common and comprehensive sense, includes women, yet an act providing for the admission of a citizen of proper residence, age and character to practice as an attorney has been held not to include women, because such construction would be a departure from the antecedent policy of the legislature, and introduce a fundamental change in long-established principles.? Courts will be very reluctant to overturn them, or essentially modify them by extending the operation of a dubious statute.
$ 322. “In the consideration of the provisions of any statute, they ought to receive such a reasonable construction, if the words and subject-matter will admit of it, as that the existing rights of the public, or of individuals, be not infringed." Considerations of what is reasonable, convenient, or causes
1 Robinson's Case, 131 Mass. 376; land v. Stone, 17 Vt. 173; Ricard v. Bradwell's Case, 55 Ill. 535; Goodell’s Williams, 7 Wheat. 59, 115. A reaCase, 39 Wis. 232; Bradwell v. State, sonable time has no determinate num16 Wall. 130. See Opinion of Jus- ber of days or months, as applied to tices, 136 Mass. 578.
every case, but must be determined 2 Wales v. Stetson, 2 Mass. 146. in each case upon all the elements of
3 Haney v. State, 34 Ark. 263; State it which affect that question. Thompv. De Gress, 53 Tex. 387; Quin v. son v. Strickland, 52 Miss. 574. O'Keeffe, 10 Ir. C. L. (N. S.) 411; 4 Putnam v. Longley, 11 Pick. 489; Church v. Crocker, 3 Mass. 17, 21; In re Alma Spinning Co., L. R. 16 Ch. Commonwealth v. Cambridge, 20 Div. 686; Shute v. Wade, 5 Yerg. 8; Pick. 267, 272; Goddard v. Boston, id. Horne v. Railroad Co. 1 Cold. 72, 78; 407; Commonwealth v. Baily, 13 Van Rensselaer v. Sheriff, 1 Cow. 443, Allen, 541, 545; Paddock v. Cameron, 457. C., a German, came to this 8 Cow. 212; Van Rensselaer v. Sheriff, country with a woman whom he held 1 id. 443, 456; Kephart v. Farmers', out as his wife, with whom he lived etc. Bank, 4 Mich. 602; Green v.
many years as such, and by whom he Graves, 1 Doug. (Mich.) 351; Dixon v. had several children. He afterwards Caledonian R’y Co. L. R. 5 App. Cas. abandoned her and went away. After 827; Glenn v. Lopez, 1 Harper, 105; he had been gone eight or nine years, Neenan v. Smith, 50 Mo. 525. A she, not having heard of him, and statute will not be construed to re- supposing him to be dead, married quire a vain thing. Butler v. Roch- another man by whom she had chilester, 4 Hun, 321. When it requires dren. After the death of this man notice, it will require a reasonable C. returned. On the settlement of notice. Burden v. Stein, 25 Ala. his estate a question of the legitimacy 457. On general words reasonable of the children of the second marlimitations will be imposed. Martin riage was raised in Brower v. Bowers v. Robinson, 67 Tex. 368, 379; McFar- 1 Abb. App. Dec. 214. Harris, J.,
hardship and injustice,' have a potent influence in many cases. It is always assumed that the legislature aims to promote convenience, to enact only what is reasonable and just. Therefore, when any suggested construction necessarily involves a flagrant departure from this aim, it will not be adopted if any other is possible by which such pernicious consequences can be avoided.?
A statute declaring in full force all ordinances of a city or other corporation in operation at its date does not embrace one which has been pronounced judicially to be inoperative. An act validating certain sales made by persons in a fiduciary capacity, in the event of any irregularity or defect existing in the judicial appointment or qualification of such trustee, cures
said: “I am inclined to think that the Lombard v. Trustees, etc. 73 Ga. 322; fact that they came from Germany, Collins v. Carman, 5 Md. 503. professing to be husband and wife, 2 Metropolitan Asylum Dist. v. Hill, that they lived together in that re- L. R. 6 Ap. Cas. 208; Richards v. lation for several years, and had chil- Dagget, 4 Mass. 537; State v. Wiltz, dren who were acknowledged as the 11 La. Ann. 439; Bell v. Jones, 10 Md. issue of such a marriage, is sufficient 322; Robinson v. Varnell, 16 Tex. 382; evidence of a marriage in fact, even Ham v. McClaws, 1 Bay, 92; United though it may have the effect to in- States v. Hunter, Pet. C. C. 10; Flint validate a subsequent marriage. A R. St. Co. v. Foster, 5 Ga. 201; Mcvery considerable portion of the pop- Lelland v. Shaw, 15 Tex. 319; Reg. v. ulation of our country is made up of Mallow Union, 12 Ir. C. L. (N. S.) 35; European emigrants. Of these a River Wear Com’rs v. Adamson, L. R. large proportion are married when 2 Ap. Cas. 743; Mersey Steel & Ir. Co. they arrive here; and even when v. Naylor, L. R. 9 Q. B. Div. 648; marriages are celebrated here, so mi- Sturges v. Crowninshield, 4 Wheat. gratory are the habits of the Ameri- 202; Plumstead Board of Works v. can people that in many cases it Spackman, L. R. 13 Q. B. Div. 878; would be no easy thing to prove a Mayor, etc. v. Moore, 6 H. & J. 381 ; marriage by those who witnessed the Buckner v. Real Estate Bank, 5 Ark. ceremony. It is well remarked by 536; Thayer v. Dudley, 3 Mass. 296 ; Tilghman, C. J., in Chambers v. Dick- Holbrook v. Holbrook, 1 Pick, 248, son, 2 Serg. & R. 475, that, in estab- 254; Mendon v. County of Worceslishing rules of evidence, arguments ter, 10 Pick. 235; Eaton v. Green, 22 from inconvenience have just weight. id. 526, 532; Holbrook v. Bliss, 9 And we must pay great attention to Allen, 69, 75; Commonwealth v. the situation of our own country, Munson, 127 Mass. 459; Kerlin v. which is not in all instances adapted Bull, 1 Dall. (Pa.) 175, 178; Jersey Co. to regulations that are very proper in v. Davison, 29 N. J. L. 415. other countries."
3 Allen V. Savannah, 9 Ga. 286; 1 Plumstead Board of Works V. Bridge v. Branch, L. R. 1 C. P. Div. Spackman, L. R. 13 Q. B. Div. 878; 633.
only such defects as occur in proceedings of courts which have jurisdiction of the subject-matter. It does not validate a sale made by a trustee who was irregularly and defectively appointed or qualified by a court which had no jurisdiction to make such appointment. A statute authorizing an officer to convey to the state certain lands held by a county by virtue of tax deeds issued upon sales for delinquent taxes theretofore made, was held not to apply to lands of which the tax deeds were void upon their face. This conclusion was adhered to, though it was shown that there were no lands to which the statute could apply.”
$ 323. A construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, or not in so great a degree, unless the terms of the instrument absolutely require such preference. Of two constructions, either of which is warranted by the words of the amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended. A statute
may be construed contrary to its literal meaning, when a litTeral construction would result in an absurdity or inconsist
ency, and the words are susceptible of another construction which will carry out the manifest intention.”
$ 324. Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience, and to oppose all prejudice to public interests. The considerations of evil
1 Halderman v. Young, 107 Pa. St. McConnell, 9 Watts, 17; Welch v. 324.
Kline, 57 Pa. St. 428; Sinnott v. 2 Easley v. Whipple, 57 Wis. 485; Whitechapel, 3 C. B. (N. S.) 674; PatHaseltine v. Hewitt, 61 id. 121. ten v. Rhymer, 3 E. & E. 1; Whistler 3 Id.
v. Forster, 14 C. B. (N. S.) 248; Stone 4 Griffin's Case, Chase's Dec. 364. v. Yeovil, L. R. 1 C. P. Div. 691; Aus
5 Walton, Ex parte, L. R. 17 Ch. tin v. Bunyard, 6 B. & S. 687; Gatty Div. 746.
v. Fry, L. R. 2 Ex. Div. 265; Gibson v. 6 Van Fleet v. Van Fleet, 49 Mich. Jenney, 15 Mass. 205; Smith v. People, 610; Neenan v. Smith, 50 Mo. 525; 47 N. Y. 330; Bulkley v. Eckert, 3 Pa. People v. Burns, 5 Mich. 114; Jersey St. 368; Gore v. Brazier, 3 Mass. 523; Co. v. Davison, 29 N. J. L. 415; Opin- Wassell v. Tunnah, 25 Ark. 101; Duion of Justices, 7 Mass. 523; Kerlin quesne Savings Bank's Appeal, 96 Pa. v. Bull, 1 Dall. (Pa.) 175; Stewart v. St. 298; Kelly T. v. Union T. 5 Watts Keemle, 4 S. & R. 72; McCloskey v. & S. 535; Nicholas v. Phelps, 15 Pa.