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should be construed as applying only to future officers rather than that the act should be set aside as infringing a prohibition of any law increasing fees of officers during their term of office.' When the language of a statute is clear and unambiguous a meaning different from that which the words plainly imply cannot be judicially sanctioned. Even when a court is convinced, from considerations outside of the language of the statute, that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity. The correct rule of construction undoubtedly is, that where a law is clearly expressed the court should adhere to the literal expression without regard to consequences; then every construction derived from a consideration of its reason and spirit should be discarded.3 It is nevertheless presumed that the legislature do not intend absurdity, inconvenience or injustice. While courts are not at liberty to set aside a statutory provision on this presumption, where the intention is plain and unmistakable, they will presume, when the words are not precise. and clear, that some exception or qualification was intended to avoid such consequences; and such construction will be adopted as appears most reasonable and best suited to accomplish the objects of the statute.*


§ 333. It is presumed that the legislature is acquainted with the law; that it has a knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received. It necessarily results from the rules of construction with reference

1 Kerrigan v. Force, 68 N. Y. 381. 2Smith v. State, 66 Md. 215; Woodbury v. Berry, 18 Ohio St. 456; Bradbury v. Wagenhorst, 54 Pa. St. 180.

3 Bennett v. Worthington, 24 Ark. 487; Sneed v. Commonwealth, 6 Dana, 338.

4 Commonwealth v. Kimball, 24 Pick. 366, 370; Perry County v. Jefferson Co. 94 Ill. 214, 220; United States v. Kirby, 7 Wall. 486; Oates v. National Bank, 100 U. S. 239; Foley v. Bourg, 10 La. Ann. 129; Gilkey v.

Cook, 60 Wis. 133; Philadelphia v.
Ridge Ave. R'y Co. 102 Pa. St. 190, 196.
5 Reg. v. Watford,,9 Q. B. at p. 635;
Jones v. Brown, 2 Ex. 332; Phelan v.
Johnson, 7 Ir. L. at p. 535.

6 Bradbury v. Wagenhorst, 54 Pa. St. 180, 182; Tuxbury's Appeal, 67 Me. 267; Howard Association's Appeal, 70 Pa. St. 344.

7O'Byrnes v. State, 51 Ala. 25, 27; Banks, Ex parte, 28 id. 28; Bloodgood v. Grasey, 31 id. 575.

to the common law that the legislature is presumed to be familiar with it.1 It has been held that the legislature is presumed to know the existence of the difference between the practice in bankruptcy and the practice in chancery; that the onus is clearly thrown on those who assert the contrary." It has been suggested that this is more an expedient conclusion than a presumption of fact. A judicial construction of a statute of long standing has force as a precedent from the presumption that the legislature is aware of it, and its silence a tacit admission that such construction is correct. The reenactment of a statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the statute as thus construed. So, where the terms of a statute which has received a judicial construction are used in a later statute, whether passed by the legislature of the same state or country, or by that of another, that construction is to be given to the later statute; for if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effectuate that intention."


It is presumed that the legislature does not intend to make any change in the existing law beyond what is expressly declared. Hence repeals by implication are recognized only when there is an unavoidable contradiction. And for a like reason statutes in derogation of the common law are strictly

1 See Jones v. Dexter, 8 Fla. 276, O'Byrnes v. State, 51 Ala. 25; Tom286. son v. Ward, 1 N. H. 9; Mooers v.

2 Kellock's Case, L. R. 3 Ch. at pp. Bunker, 29 N. H. 420; Frink v. Pond, 781, 782.

3 Wilb. on St. 13.

4 Phelan v. Johnson, supra.

46 id. 125; Hakes v. Peck, 30 How. Pr. 104; Bank of Mobile v. Meagher, 33 Ala. 622; Re Murphy, 23 N. J. L. 180;

5 Cota v. Ross, 66 Me. 161; Tux- Matthews, Ex parte, 52 Ala. 51; bury's Appeal, 67 Me. 267.

Knight v. Freeholders of Ocean Co.

6 Commonwealth v. Hartnett, 3 10 Cent. Rep. 653; 49 N. J. L. 485; Gray, 450.

7 Id.; 6 Dane Abr. 613; Kirkpatrick v. Gibson's Ex'r, 2 Brock. 388; Pennock v. Dialogue, 2 Pet. 18; Adams v. Field, 21 Vt. 266; Whitcomb v. Rood, 20 id. 52; Rutland v. Mendon, 1 Pick. 154; Myrick v. Hasey, 27 Me. 17; The Abbotsford, 98 U. S. 440;

State v. Swope, 7 Ind. 91; La Selle v. Whitfield, 12 La. Ann. 81; Gould v. Wise, 18 Nev. 253; McKenzie v. State, 11 Ark. 594.

8 Graham v. Van Wyck, 14 Barb. 531.

9 Ante, § 138.




construed unless controlled by some other rule of construction. It is presumed, in the construction of general words or dubious provisions, that there is no intention to depart from any established policy of the law; to innovate upon fundamental principles; nor to oust the jurisdiction of the superior courts, or establish new jurisdictions, especially exclusive jurisdictions. There is also a presumption against any intention to surrender public rights, or to affect the government." The legislature is presumed to intend, except as the statute otherwise provides, that enactments be construed by the common law, and enforced according to its procedure. When courts are empowered to render judgments or give relief in a particular class of cases as they shall deem just, or according to their discretion, this power is expounded and limited by the principles of the common law; it is legal justice they are to administer, a legal discretion they are to exercise; so when any special duties are imposed or new jurisdiction granted. "Wherever such discretionary authority," said Woodward, P. J., "is conferred upon them in reference to subjects outside of their peculiar duties, it is always presumed by the legisla

1 Post, § 400.

2 Minet v. Leman, 20 Beav. at p. 278. See Overseers v. Smith, 2 S. & R. 363; Small v. Small, 18 Atl. Rep. 497.

3 Ante, § 395. 4 Post, § 400.

5 Hersom's Case, 39 Me. 476; Custer Co. v. Yellowstone Co. 6 Mont. 39; Pitman v. Flint, 10 Pick. 504.

6 State v. Kinne, 41 N. H. 238; Jersey City v. Hudson, 13 N. J. Eq. 420; Harrison v. Young, 9 Ga. 359; Bennett v. The Auditor, 2 W. Va. 441.

7 Willion v. Berkley, 1 Plowd. 236; Attorney-General v. Donaldson, 10 M. & W. 117; Huggins v. Bambridge, Willes, 241; Alexander v. State, 56 Ga. 478; Rex v. Wright, 1 Ad. & El. 437; United States v. Greene, 4 Mason, 427; United States v. Hewes, Crabbe, 307; United States v. Hoar, 2 Mason, 311; Jones v. Tatham, 20 Pa. St. 398;



Cole v. White Co. 32 Ark. 45; Stoughton v. Baker, 4 Mass. 522; State v. Milburn, 9 Gill, 105; Martin v. State, 24 Tex. 61; State v. Garland, 7 Ired. L. 48: State v. Kinne, 41 N. H. 238; Green v. United States, 9 Wall. 655.

8 Booth v. Kitchen, 7 Hun, 260, 264; Colburn v. Swett, 1 Met. 232; Elder v. Bemis, 2 id. 599; State v. Fletcher, 5 N. H. 257; Gearhart v. Dixon, 1 Pa. St. 224; State v. Parker, 91 N. C. 650; Graffins v. Commonwealth, 3 Pen. & W. 502; Edge v. Commonwealth, 7 Pa. St. 275; Phillips v. Commonwealth, 44 id. 197; Commonwealth v. Reiter, 78 id. 161; Oakland T'p v. Martin, 104 id. 303; Wood Mowing M. Co. v. Caldwell, 54 Ind. 270, 276.

9 Ex parte Barnett, L. R. 4 Ch. 351; Stevens v. Ross, 1 Cal. 94; Lash v. Von Neida, 109 Pa. St. 207; Doherty v. Allman, L. R. 3 App. Cas. 709, 728.

ture that it will be exercised in accordance with judicial usages, and upon uniform and established rules. The safety of the community, as well as the usefulness and independence of the judiciary, absolutely demands that all the duties of the court shall be defined either by statute or by practice." And when a discretionary power is granted to an officer or special tribunal, it is intended and presumed to be a reasonable discretion. As Lord Denman said, "not a wild but a sound discretion, and to be confined within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself." 2

$334. Implications and incidents.- Statutes are not, and cannot be, framed to express in words their entire meaning. They are framed like other compositions to be interpreted by the common learning of those to whom they are addressed; especially by the common law, in which it becomes at once enveloped, and which interprets its implications and defines its incidental consequences. That which is implied in a statute is as much a part of it as what is expressed." In case of a newly created felony it must necessarily possess all the incidents which appertain to felony by the rules and principles of the common law; therefore, by necessary implication, all the procurers and abettors of it are principals or accessories, upon the same circumstances which will make such in a felony by the common law. The same peremptory challenges are allowed. Where a common-law offense has been adopted by statute it is adopted with all its common-law elements, and in an indictment for such an offense all the common-law requirements must be observed." A statute of New York legalized all marriages where one or both of the parties were slaves and declared their issue legitimate.

1 Re Report of County Auditors, 1 Woodw. (Pa.) 270, 272. See Seely v. State, 11 Ohio, 501; 12 id. 496.

2 Wilson v. Rastall, 4 T. R. 757; Andrews v. King, 77 Me. 221; Ham v. Board of Fe, 142 Mass. 90; Reg. v. Sykes, L. R. 1 Q. B. Div. 52; Smith, Ex parte, 3 id. 574.

3 Hanchett v. Weber, 17 Ill. App. 114, 117; Koning v. Bayard, 2 Paine, 251;

By a proviso it was not to

Haight v. Holley, 3 Wend. 258;
Rogers v. Kneeland, 10 Wend. 218;
Fox v. Phelps, 20 Wend. 447; United
States v. Babbit, 1 Black, 55, 61.

4 Coalheavers' Case, 1 Leach, C. C. 64, 66.

5 Gray v. Reg. 11 Cl. & Fin. 427, 460.

6 State v. Absence, 4 Perter, 297.

operate as an emancipation. The rule was recognized that when both the parents were slaves the children would follow the condition of the mother, and it was held that a fortiori it ought to be so where the mother is free and the father a slave. It was held that the general law of baron and feme did not apply; by such a marriage a free wife was not subject to the custody and control of a slave husband; the husband was not emancipated nor the wife enslaved by such a marriage; that the condition of the children of such a marriage followed the condition of the mother.' A statute gave a right of action on the sheriff's official bond to any person aggrieved by his misconduct or that of his deputy. The requisite proof being made, the law which furnished this remedy supplies the necessary privity by giving the right of action.2

§ 335. The law annexes by implication the incident to all public laws that they be noticed ex officio by the courts.3 But private statutes will not be so taken notice of; statutes applying to private rights do not affect the crown or government. Where a statute, with a view of affording protection to the public, imposes a penalty for doing an act, it thereby prohibits it and renders it illegal. Thus, a statute which imposes a penalty on a person who exercises or occupies himself as a surgeon without being licensed, is a prohibition of such practice, as it disables the person not admitted to recover for services as a surgeon.'

§ 336. Every contract made for or about any matter or thing which is prohibited or made unlawful by statute is void, though the statute does not mention that it shall be so, but

1 Overseers, etc. v. Overseers, etc. 20 pressly named. Bac. Abr. Stat. I. C.; John. 1, 3. Gladney v. Deavors, 11 Ga. 79.

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6 D'Allex v. Jones, 2 Jur. (N. S.) 979; Bartlet v. Viner, Skin. 322; O'Brien v. Dillon, 9 Ir. C. L. (N. S.) 318; Stephens v. Robinson, 2 Cromp. & J. 209; Cope v. Rowlands, 2 M. & W. 149.

7 D'Allex v. Jones, 2 Jur. (N. S.) 979; Niemeyer v. Wright, 75 Va. 239; Bensley v. Bignold, 5 B. & Ald. 335; The Pioneer, Deady, 72; Holt v. Green, 73 Pa. St. 198; Taylor v. Crowland Gas. Co. 10 Ex. 293.

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