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."1 "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 the 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." 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

1Ohio L. Ins. & Tr. Co. v. Debolt, 16 How. 416, 432.

2 Douglass v. Pike Co. 101 U. S. 677, 687; Tayloe v. Thomson, 5 Pet. 358; Geddes v. Brown, 5 Phila. 180. 3 Lucas v. Commissioners, 44 Ind. 541.

Lucas v. Commissioners, 44 Ind. 524; Louisville, etc. R. R. Co. v. County Court, 1 Sneed, 637; Carroll v. Carroll, 16 How. 275.

53 Black. Com. 396; Lamphear v. 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.1 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.2

§ 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 and 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, 587. In this case Walker, J., said: "It was contended in the discussion of this case that the only point decided, or in the mind of the court, was that made in argument. The result of that position would be to take from judicial decisions, where there was no opinion, the authority of an adjudication upon all propositions which were too plain or too well recognized by the bench and bar to be questioned; and thus the universal and undisputed sanction of a legal principle would become a barrier to proof by judicial decisions of its existence. It better accords with reason to regard a judicial tribunal as asserting, and intending to assert, every proposition which is indispensable to the conclusion expressed, and neces

sarily involved in it; at least, when the contrary does not appear."

2 Dewey v. Gray, 2 Cal. 374; Bane v. Wick, 6 Ohio St. 13; Gray v. Gray, 34 Ga. 499; Thomason v. Dill, 34 Ala. 175: Stein v. Ashby, 30 id. 363; Huffman v. State, id. 532; Pearson v. Darrington, 32 id. 227; Stacy v. Vermont, etc. R. R. Co. 32 Vt. 551; Parker v. Pomeroy, 2 Wis. 112.

3 United States v. The Sadie, 41 Fed. Rep. 396.

4 Greenhow v. James, 80 Va. 636; Baxter v. Tripp, 12 R. I. 310; Grenada Co. Supervisors V. Brogden, 112 U. S. 261; Att'y-Gen'l v. Smith, 31 Mich. 359; Blackwood v. Van Vleit, 30 id. 118; Rowley v. Stray, 32 id. 70; Burnham v. Onderdonk, 41 N. Y. 425; Fort v. Burch, 6 Barb. 60; Minet v. Leman, 20 Beav. 269; Lindsey v. 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; Bradwell's Case, 55 Ill. 535; Goodell's Case, 39 Wis. 232; Bradwell v. State, 16 Wall. 130. See Opinion of Justices, 136 Mass. 578.

land v. Stone, 17 Vt. 173; Ricard v. Williams, 7 Wheat. 59, 115. A reasonable time has no determinate number of days or months, as applied to every case, but must be determined in each case upon all the elements of it which affect that question. Thompson v. Strickland, 52 Miss. 574.

4 Putnam v. Longley, 11 Pick. 489; In re Alma Spinning Co., L. R. 16 Ch. Div. 686; Shute v. Wade, 5 Yerg. 8; Horne v. Railroad Co. 1 Cold. 72, 78; Van Rensselaer v. Sheriff, 1 Cow. 443, 457.

2 Wales v. Stetson, 2 Mass. 146. 3 Haney v. State, 34 Ark. 263; State v. De Gress, 53 Tex. 387; Quin v. O'Keeffe, 10 Ir. C. L. (N. S.) 411; Church v. Crocker, 3 Mass. 17, 21; Commonwealth v. Cambridge, 20 Pick. 267, 272; Goddard v. Boston, id. 407; Commonwealth v. Baily, 13 Allen, 541, 545; Paddock v. Cameron, 8 Cow. 212; Van Rensselaer v. Sheriff, 1 id. 443, 456; Kephart v. Farmers', etc. Bank, 4 Mich. 602; Green v. Graves, 1 Doug. (Mich.) 351; Dixon v. Caledonian R'y Co. L. R. 5 App. Cas. 827; Glenn v. Lopez, 1 Harper, 105; Neenan v. Smith, 50 Mo. 525. A statute will not be construed to require a vain thing. Butler v. Rochester, 4 Hun, 321. When it requires notice, it will require a reasonable notice. Burden v. Stein, 25 Ala. 455. On general words reasonable limitations will be imposed. Martin v. Robinson, 67 Tex. 368, 379; McFar- 1 Abb. App. Dec. 214. Harris, J.,

C., a German, came to this country with a woman whom he held out as his wife, with whom he lived many years as such, and by whom he had several children. He afterwards abandoned her and went away. After he had been gone eight or nine years, she, not having heard of him, and supposing him to be dead, married another man by whom she had children. After the death of this man C. returned. On the settlement of his estate a question of the legitimacy of the children of the second marriage was raised in Brower v. Bowers

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.3 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 fact that they came from Germany, professing to be husband and wife, that they lived together in that relation for several years, and had children who were acknowledged as the issue of such a marriage, is sufficient evidence of a marriage in fact, even though it may have the effect to invalidate a subsequent marriage. A very considerable portion of the population of our country is made up of European emigrants. Of these a large proportion are married when they arrive here; and even when marriages are celebrated here, so migratory are the habits of the American people that in many cases it would be no easy thing to prove a marriage by those who witnessed the ceremony. It is well remarked by Tilghman, C. J., in Chambers v. Dickson, 2 Serg. & R. 475, that, in establishing rules of evidence, arguments from inconvenience have just weight. And we must pay great attention to the situation of our own country, which is not in all instances adapted to regulations that are very proper in other countries."

1 Plumstead Board of Works v. Spackman, L. R. 13 Q. B. Div. 878;

Lombard v. Trustees, etc. 73 Ga. 322;
Collins v. Carman, 5 Md. 503.

2 Metropolitan Asylum Dist. v. Hill, L. R. 6 Ap. Cas. 208; Richards v. Dagget, 4 Mass. 537; State v. Wiltz, 11 La. Ann. 439; Bell v. Jones, 10 Md. 322; Robinson v. Varnell, 16 Tex. 382; Ham v. McClaws, 1 Bay, 92; United States v. Hunter, Pet. C. C. 10; Flint R. St. Co. v. Foster, 5 Ga. 201; McLelland v. Shaw, 15 Tex. 319; Reg. v. Mallow Union, 12 Ir. C. L. (N. S.) 35; River Wear Com'rs v. Adamson, L. R. 2 Ap. Cas. 743; Mersey Steel & Ir. Co. v. Naylor, L. R. 9 Q. B. Div. 648; Sturges v. Crowninshield, 4 Wheat. 202; Plumstead Board of Works v. Spackman, L. R. 13 Q. B. Div. 878; Mayor, etc. v. Moore, 6 H. & J. 381; Buckner v. Real Estate Bank, 5 Ark. 536; Thayer v. Dudley, 3 Mass. 296; Holbrook v. Holbrook, 1 Pick. 248, 254; Mendon v. County of Worcester, 10 Pick. 235; Eaton v. Green, 22 id. 526, 532; Holbrook v. Bliss, 9 Allen, 69, 75; Commonwealth v. Munson, 127 Mass. 459; Kerlin v. Bull, 1 Dall. (Pa.) 175, 178; Jersey Co. v. Davison, 29 N. J. L. 415.

3 Allen v. Savannah, 9 Ga. 286; Bridge v. Branch, L. R. 1 C. P. Div. 633.

T

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 literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction. which will carry out the manifest intention.5

§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

Easley v. Whipple, 57 Wis. 485; Haseltine v. Hewitt, 61 id. 121.

3 Id.

4 Griffin's Case, Chase's Dec. 364. 5 Walton, Ex parte, L. R. 17 Ch. Div. 746.

1 Halderman v. Young, 107 Pa. St. McConnell, 9 Watts, 17; Welch v. 324. Kline, 57 Pa. St. 428; Sinnott v. Whitechapel, 3 C. B. (N. S.) 674 ; Patten v. Rhymer, 3 E. & E. 1; Whistler v. Forster, 14 C. B. (N. S.) 248; Stone v. Yeovil, L. R. 1 C. P. Div. 691; Austin v. Bunyard, 6 B. & S. 687; Gatty v. Fry, L. R. 2 Ex. Div. 265; Gibson v. Jenney, 15 Mass. 205; Smith v. People, 47 N. Y. 330; Bulkley v. Eckert, 3 Pa. St. 368; Gore v. Brazier, 3 Mass. 523; Wassell v. Tunnah, 25 Ark. 101; Duquesne Savings Bank's Appeal, 96 Pa. St. 298; Kelly T. v. Union T. 5 Watts & S. 535; Nicholas v. Phelps, 15 Pa.

6 Van Fleet v. Van Fleet, 49 Mich. 610; Neenan v. Smith, 50 Mo. 525; People v. Burns, 5 Mich. 114; Jersey Co. v. Davison, 29 N. J. L. 415; Opinion of Justices, 7 Mass. 523; Kerlin v. Bull, 1 Dall. (Pa.) 175; Stewart v. Keemle, 4 S. & R. 72; McCloskey v.