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expressly repeals a specified portion of another act, it follows that, in the judgment of the legislature, no further repeal was necessary. The repeal of one clause of a section raises a clear implication that nothing else was intended. This application of the rule is not very important, for an implied repeal may result from an irreconcilable contradiction, or from other evidence of an intent to extend the repeal or a saving from a general repeal. When a revisory act prescribes its operation upon a previous act, it will have no other effect. A court of a justice of the peace, or other magistrate having only such jurisdiction as is granted by statute, and whose procedure is regulated thereby, has only such jurisdiction as is granted expressly or by necessary implication. And those particulars of procedure which the statutes regulate are to be substantially followed, and no others are essential. The appellate jurisdiction of the federal supreme court is conferred by the constitution“ with such exceptions and under such regulations as congress may make;" therefore, acts of congress affirming such jurisdiction have always been construed as excepting from it all cases not expressly described and provided for. Hence, when congress enacts that that court shall have appellate jurisdiction over final decisions of the circuit courts in certain cases, the act is held to operate as a negative or exception of such jurisdiction in other cases; and the repeal of the act necessarily negatives jurisdiction under it of those cases also.
$ 328. An express exception, exemption or saving excludes others. Where a general rule has been established by statute with exceptions the court will not curtail the former nor add to the latter by implication. Exceptions strengthen the
1 Pursell v. New York Life Ins. etc. 6 Ham v. Steamboat Hamburg, 2 Co. 42 N. Y. Super. Ct. 383, 397. Iowa, 460; Scovern v. State, 6 Ohio St.
2 State v. Morrow, 26 Mo. 131, 141; 288. Crosby v. Patch, 18 Cal. 438.
McCardle, Ex parte, 7 Wall. 506. 3 Burnham v. Onderdonk, 41 N. Y. See Yerger, Ex parte, 8 id. 85. 425.
8 See Reg. v. Mallow Union, 12 Ir. 4 Patterson v. Tatum, 3 Sawyer, 164. C. L. (N. S.) 40.
5 Wight v. Warner, 1 Doug. (Mich.) 9 Roberts v. Yarboro, 41 Tex. 452; 384; Beach v. Botsford, id. 199; Clark Wallace v. Stevens, 74 id. 559. v. Holmes, id. 390; Reynolds v. Orvis,
force of a general law, and enumeration weakens it as to things not expressed.' Power of eminent domain was granted to a railroad company to enter on land and appropriate as much of it, “except timber," as might be necessary for its purposes. “Why an exception,” asked Gibson, C. J., “if the word land was not supposed to embrace everything else? The expression of one thing is the exclusion of another; and consequently no further exception was intended.”? A statute declared that “all offices, posts of profit, professions, trades and occupations, except the occupation of farmers,” “shall be valued and assessed and subject to taxation;" it was held that the exception of farmers excluded any other, and that the calling of a minister of the gospel was a “profession” and taxable.: Certain exemptions from distress for taxes being expressed in a statute, by fair implication all other property is liable. When by a declaratory provision the legislature enact that a thing may be done which before that time was lawful, and adds a proviso that nothing therein shall be so construed as to permit some matter embraced in the general provision to be done, this is an implied prohibition of such act, though before that time it was lawful."
$ 329. The maxim does not apply to a statute the language of which may fairly comprehend many different cases, in which some only are expressly mentioned by way of example merely, and not as excluding others of a similar nature. So where the words used by the legislature are general and the statute is only declaratory of the common law, it will extend to other persons and things besides those actually named. If there is some special reason for mentioning one, and none for mentioning a second which is otherwise within the statute, the absence of any mention of the latter will not exclude it.? The specification in the statute that either of certain acts shall be taken as an appearance does not exclude other methods of appearing which have that effect on general principles of the
1 Page V. Allen, 58 Pa. St. 338; 4 Sherwin v. Bugbee, 16 Vt. 439, Countess of Rothes v. Kirkcaldy 445. Water-works Com’rs, L. R. 7 Ap. 706. 5 State v. Eskridge, 1 Swan, 413.
2 Brocket v. Ohio, etc. R. R. Co. 14 6 Broom's Max. 664; Scaggs v. BalPa. St. 241, 243.
timore, etc. R. R. Co. 10 Md. 268. 3 Miller v. Kirkpatrick, 29 Pa. St. 7 Brown v. Buzan, 24 Ind. 194. 226, 229
common law. The mention of one thing is not exclusive when the context shows a different intention. The enactment of a law does not raise a presumption that it did not exist before.3 If it be an explicit provision on a given subject it does not of itself prove that the law was different before; it may have been made in affirmance of the existing law and to remove doubts.
$ 330. Presumptions.- A legal presumption is sometimes conclusive; then no argument or consideration can be adduced to overturn it. Other presumptions are rebuttable, and good only until overthrown. A presumption therefore rests upon a matter treated as absolutely true by expedient assumption, or as probably true. The former is taken to be true because there is the highest and best evidence of it, and it is for the public convenience and security that its verity should be absolutely assumed. Other matters are presumptively true, but open to question; so that whoever claims contrary to it has the burden of argument, as against a presumption of fact he would have the burden of proof. A statute properly authenticated in the proper office is conclusively presumed to be duly enacted, except where by the fundamental law a question may be raised on extraneous evidence; that it is enacted from good motives, and no issue to the contrary is permitted. No issue of fact will be tried as to the motives of legislators voting for a law, nor to impeach it on the grounds of fraud or corruption, either at the suit of a private person or the state. Nor
1 Curtis v. McCullough, 3 Nev. 202. i Wright v. Defrees, 8 Ind. 298;
2 Mayor v. Davis, 6 Watts & S. People v. Shepard, 36 N. Y. 285; New269, 278-9.
man, Ex parte, 9 Cal. 502. 3 Nunnally v. White, 3 Met. (Ky.) 8 McCulloch v. State, 11 Ind. 424, 584.
430–1; Fletcher v. Peck, 6 Cr. 87; 4 Montville v. Haughton, y Conn. Ex parte McCardle, 7 Wall. 506; 543.
Flint, etc. ('0. v. Woodhull, 25 Mich. 5 Kilgore v. Magee, 85 Pa. St. 401; 99; Kountze v. Omaha, 5 Dill. 443; Gildewell v. Martin, 11 S. W. Rep. State v. Hays, 49 Mo. 604; People v. 882; 51 Ark. 559; State v. Algood, 10 Bigler, 5 Cal. 23; Ex parte Newman, 9 S. W. Rep. 310; 87 Tenn. 163; Terri- id. 502; Harpending v. Haight, 39 tory v. O'Connor, 41 N. W. Rep. 746; id. 189; Slack v. Jacob, 8 W. Va. State v. Robertson, 41 Kan. 200; S. C. 612; Mayor, etc. v. State, 15 Md. 376; 21 Pac. Rep. 382; People v. Dunr, 80 Johnson v. Higgins, 3 Metc. (Ky.) Cal. 211.
566; People v. Draper, 15 N. Y. 532; 6 Ante, SS 28-41; People v. McEl- State v. Fagan, 22 La. Ann. 545; roy, 40 N. W. Rep. 750.
State v. Cordoza, 5 S. C. 297; Hum
is the policy, moral justice or expediency of a statute to be considered by the judiciary in determining its validity."
$ 331. It is not to be presumed that the legislature have assumed the existence of a fact upon which an act of legislation is based, without evidence. On the contrary, courts are bound to presume that they acted upon good and sufficient evidence, and that presumption is conclusive on the question of the validity of the act. It was so held on an objection to the validity of an act organizing a new county, that it did not contain the population required by the constitution.? It is presumed, as well on the ground of good faith as on the ground that the legislature would not do a vain thing, that it intends its acts and every part of them to be valid and capable of being carried into effect. If a statute, however, is unconstitutional it is void, and the courts have power to treat it as a nullity, and will do so, or such parts as are in contravention of the fundamental law. But until it is shown to be plainly and manifestly in conflict with the constitution the presumption of its validity will hold good; all doubts will be resolved in its favor. Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law. Where there is
boldt Co. v. Churchill Co. 6 Nev. 30; & North Ala. R. R. Co. v. Morris, 65 Doyle v. Continental Ins. Co. 94 U. S. Ala. 193; People v. Bull, 46 N. Y. 68; 535; Wright v. Defrees, 8 Ind. 298; Sadler v. Langham, 34 Ala 311; State Sunbury, etc. R. Co. v. Cooper, 33 v. Dombaugh, 20 Ohio St. 173; ZeigPa. St. 278.
ler v. South, etc. R. R. Co. 58 Ala. 1 Brewer v. Blougher, 14 Pet. 198. 594; Commonwealth v. Hitchings, 5 See Richardson v. Crandall, 48 N. Y. Gray, 485; Newsom v. Cocke, 44 Miss. 356.
352; People v. Comstock, 78 N. Y. 2 De Camp v. Eveland, 19 Barb. 81; 356; Louisville, etc. R. R. Co. v. Farmers', etc. Co. v. Chicago, etc. R. County Ct. 1 Sneed, 637; S. C. 62 Am. R. Co. 39 Fed. Rep. 143.
Dec. 424; Cline v. Greenwood, 10 Ore3 Winter v. Jones, 10 Ga. 190. gon, 230; Opinion of Justices, 22 Pick.
4 People v. Briggs, 50 N. Y. 553; at p. 573; Bailey v. Commonwealth, 11 Winter v. Montgomery, 65 Ala. 403; Bush, at p. 691 ; Cutts v. Hardee, 38 Slack v. Jacob, 8 W. Va. 626; Gal. Ga. 350 ; People v. San Francisco, etc. veston, etc. R. R. Co. v. Gross, 47 Tex. R. R. Co. 35 Cal. 606; Commissioners v. 428; State v. Sorrells, 15 Ark. 664; Silvers, 22 Ind. 491; Morrison v. Griffin, In re, 25 Tex. (Suplt) 623; Springer, 15 Iowa, 304; Hartford Commissioners v. Ballard, 69 N. C. 18; Bridge Co. v. Union Ferry Co. 29 Conn. Edwards v. Williamson, 70 Ala. 145; 210; Inkster v. Carver, 16 Mich. 484; Quartebaum v. State, 79 id. 1; South State v. Cooper, 5 Blackf. 258; Santo v.
not in the law an express limitation to the power to do a certain thing, an inference cannot be made or sustained which will defeat the object of the law. “Before determining,' said Lumpkin, J., “that the constitution has been plainly and palpably infracted, incautiously or otherwise, by a co-ordinate branch of the government, the best energies of our minds should be employed in putting such construction upon it as to uphold it, if possible, and carry it into effect, ut res magis valeat quam pereat." ?
$ 332. It is a cardinal rule that all statutes are to be so construed as to sustain rather than ignore or defeat them; to give them operation, if the language will permit, instead of treating them as meaningless: ut res magis valeat, quam pereat. Whenever an act can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, this will be done. Where one construction will make a statute void for conflict with the constitution, and another would render it valid, the latter will be adopted though the former at first view is otherwise the more natural interpretation of the language. Every intendment should be made to favor the constitutionality of a statute. A provision as to officers' fees
State, 2 Iowa, 165; State v. Robinson, 1 13 S. C. 355; Tabor v. Cook, 15 Mich. Kan. 17; Brown v. Buzan, 24 Ind. 194; 322; Grand River B. Co. v. Jarvis, 30 Tyler v. People, 8 Mich. 320; Mayor, Mich. 308; Robinson v. State, 15 Tex. etc. v. State, 15 Md. 376; Rich v. Flan- 311; Roosevelt v. Godard, 52 Barb. ders, 39 N. H. 304; Speer v. School 533; Ogden v. Saunders, 12 Wheat. Directors, 50 Pa. St. 150; Neal v. 270 ; Speer v. School Directors, 50 Pa. Roberts, 1 Dev. & Batt. L. 81 ; Deering St. 150; Brown v. Buzan, 24 Ind. 194; v. York, etc. R. R. Co. 31 Me. 172. State v. Intoxicating Liquors, 19 Atl.
1 Cook v. Com’rs, 6 McLean, 112. Rep. 913; New Orleans v. Salamander 2 Winter v. Jones, 10 Ga. 190. Ins. Co. 25 La. Ann. 650; State v.
3 Howard Association's Appeal, 70 Fields, 2 Bailey, 554; Winter v. Jones, Pa. St. 344.
10 Ga. 190; Read v. Levy, 30 Tex. 738. 4 Newland v. Marsh, 19 Ill. 376; A law passed when it conflicted with Roosevelt v. Godard, 52 Barb. 533; the constitution in force, but in anColwell v. May, etc. Co. 19 N. J. Eq. ticipation of the adoption of a new 245.
constitution which had been prepared 5 Slack v. Jacobs, 8 W.Va. 612; New- and was awaiting the vote for its land v. Marsh, 19 III. 384; Bridges v. adoption. It, being in accord with Shallcross, 6 W. Va. 574; Marshall v. the new constitution which was subGrimes, 41 Miss. 27; Eyre v. Jacob, sequently adopted, was held valid. 14 Gratt. 422; Commonwealth v. Galveston, etc. R. R. Co. v. Gross, 47 Gaines, 2 Va. Cas. 172; Bull v. Rowe, Tex. 428.