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only inflicts a penalty upon the offender. Obedience to the laws is enforced by declaring illegal contracts void; by refusing to aid either party in the enforcement of them. When a statute is for revenue purposes, or is a regulation of a traffic or business, and not to prohibit it altogether, whether a contract which violates the statute shall be treated as wholly void will depend on the intention expressed in the particular statute. Unless the contrary intention is manifest the contract will be valid.” All cases to which a statute cannot constitutionally apply will be excepted by necessary implication, however absolute and express the provision may be. A necessary implication means not natural necessity, but so strong a probability of an intention that one contrary to that
1 O'Brien v. Dillon, supra; Grif- Tyson v. Thomas, McClel. & Y. 119; fith v. Wells, 3 Denio, 226; Bach v. Law v. Hodson, 11 East, 300; BrookSmith, 2 Wash. Ty. 145; Bancroft v. lyn L. Ins. Co. v. Bledsoe, 52 Ala. 538; Dumas, 21 Vt. 456; Boutwell v. Fos- Cundell v. Dawson, 4 C. B. 376; Little ter, 24 Vt. 485; Hook v. Gray, 6 v. Poole, 9 B. & C. 192; Niemeyer v. Barb. 398; Gray v. Hook, 4 N. Y. Wright, 75 Va. 239; Conley v. Sims, 449; Tylee v. Yates, 3 Barb. 222; 71 Ga. 161; Johnson v. Hudson, 11 Barton v. Port J. etc. Plk. R. Co. 17 East, 180; Brown v. Duncan, 10 B. Barb. 397; Pennington v. Townsend, & C. 93; King v. Birmingham, 8 B. 7 Wend. 276; Nellis v. Clark, 4 Hill, & C. 29; Milford v. Worcester, 7 424; De Begnis V. Armistead, 10 Mass. 48; Parton v. Hervey, 1 Gray, Bing. 107; Cope v. Rowlands, 2 M. & 119; Bly v. National Bank, 79 Pa. W. 149; Springfield Bank v. Mer- St. 453; Swan v. Blair, 3 Cl. & F. at rick, 14 Mass. 322; Hallett v. Novion, p. 632; Vining v. Bricker, 14 Ohio 14 John. 273; Seidenbender v. Charles, St. 331; Pangborn v. Westlake, 36 4 S. & R. 159.
Iowa, 546; Bemis v. Becker, 1 Kan. 2 Armstrong v. Toler, 11 Wheat. 258; 226; Lindsey V. Rutherford, 17 B. Bloom v. Richards, 2 Ohio St. 387; Mon. 245; Strong v. Darling, 9 Ohio, Steers v. Lashley, 6 T. R. 61; Cannan 201; Pratt v. Short, 79 N. Y. 437; v. Bryce, 3 B. & Ald. 179; Aubert v. Bailey v. Harris, 12 Q. B. 905; WatMaze, 2 B. & P. 371; Ætna Ins. Co. rous v. Blair, 32 Iowa, 58; Fergusson v. Harvey, 11 Wis. 394; Williams v. v. Norman, 5 Bing. N. C. 76; Fowler Cheney, 3 Gray, 215; Jones v. Smith, v. Scully, 72 Pa. St. 456; Foster v. id. 500; Towle v. Larrabee, 26 Me. Oxford, etc. R. R. Co. 13 C. B. 200; 464; Pattee v. Greely, 13 Met. 284; Chouteau v. Allen, 70 Mo. 290; HowLovejoy v. Whipple, 18 Vt. 379; ell v. Stewart, 54 id. 400; Babcock O'Donnell v. Sweeney, 5 Ala. 467; V. Goodrich, 47 Cal. 488; United Fennell v. Ridler, 5 B. & C. 406. But States v. Martin, 94 U. S. 400; O'Hare see Columbus Ins. Co. v. Walsh, 18 v. National Bank, 77 Pa. St. 96. Mo. 229; Clark v. Middleton, 19 id. 4 Opinion of Justices, 41 N. H. 53.
553. 3 Harris v. Runnells, 12 How. 79;
which is imputed to the party using the language cannot be supposed.
$ 337. Wherever the provision of a statute is general everything which is necessary to make such provision effectual is supplied by the common law ? and by implication. A grant of lands from the sovereign authority of a state to individuals to be possessed and enjoyed by them in a corporate capacity confers a right to hold in that character. A legislative grant made to an alien by necessary implication confers the right to receive and enjoy without prejudice on account of alienage. Trustees, under an act of parliament for dividing and inclosing a common, being intended to continue and hold permanently, were thereby constituted a corporation by implication." A right to recover expenses incurred for the public good, under certain conditions, was granted by statute to the “local authority” authorized to act in the execution of the statute; it was held the action for that purpose might be prosecuted by that collective statutory designation, though not made a corporation.
$ 338. A statute of Michigan “relative to the rights of married women,” in brief and comprehensive words, gave to the wife the full and absolute control of her real and personal estate, with power to contract, sell, transfer, mortgage, convey, devise and bequeath the same, in the same manner, and with the like effect, as if she were unmarried. This statute had the effect to abolish or abrogate the prospective estate by the curtesy. A statute declaring that property which accrues to a married woman shall be “owned and enjoyed” as her separate property will authorize her, if the property be merchandise, to trade. It is the nature of merchandise to be sold and exchanged. When, therefore, the statute authorizes married women to own, use and enjoy such property, it legalizes trade by them - makes them merchants. So she is liable for repairs
1 Wilkinson V. Adam, 1 Ves. & B. 4 Goodell v. Jackson, supra; Jack466; State v. Union Bank, 9 Yerg. 164. son v. Lervey, 5 Cow. 397.
26 Bac. Abr. 369; Booth v. Kitchen, 5 Newport M. Trustees, Ex parte, 7 Hun, 260, 264; Livingston v. Har- 16 Sim. 346. ris, 11 Wend. 329, 340.
6 Mills v. Scott, L. R. 8 Q. B. 496. 3 North Hempstead v. Hempstead, 7 Tong v. Marvin, 15 Mich. 60. 2 Wend. 109; Goodell v. Jackson, & Wieman v. Anderson, 42 Pa. St. 20 John. 706.
to her separate estate, made at her request and necessary for its preservation and enjoyment. The statute provides that any married woman might convey real estate "in the same manner, and with the like effect, as if she were unmarried.” This implied a repeal as to married women and their separate estates of the general statute requiring a private examination apart from their husbands upon their acknowledgment of the execution of conveyances.? A power given to a married woman to carry on a trade or business on her separate account includes the power to borrow money, and to purchase on credit property, real or personal, necessary or convenient, for the purpose of commencing, as well as the power to create debts in the prosecution of the trade or business after it has been established. Where a married woman who has a separate estate and carries on business in relation thereto, keeping a . bank account in her own name, draws a check upon such account payable at a future day, on which she borrows money, the law presumes, in the absence of evidence to the contrary, that such money was borrowed for the benefit of her separate estate, and holds her liable therefor.
$ 339. A statute of New York gave an appeal to “every person who shall think himself aggrieved by any judgment or order of any justice or justices,” etc. Where a defendant, served with a summons which was to show cause, failed to appear and judgment went against him by default, it was treated as equivalent to a judgment by confession, and therefore he was not entitled to consider himself aggrieved and to appeal. An association was granted the privilege of constructing the Albany basin, and it was made a condition that they should erect the necessary bridges for the public accommodation. The grant was construed to imply an obligation to keep the bridges in repair. A statute providing for par
1 Lippincott v. Hopkins, 57 Pa. St. Zurn v. Noedel, 113 Pa. St. 336; 328; Lippencott v. Leeds, 77 id. 420. Bovard v. Kettering, 101 id. 181;
2 Blood v. Humphrey, 17 Barb. 660; Morrison v. Thistle, 67 Mo. 596. Andrews v. Shaffer, 12 How. Pr. 441; 4 Nash v. Mitchell, 8 Hun, 471. Yale v. Dederer, 18 N. Y. 271; Wiles 5 Adams v. Oaks, 20 John. 282; v. Peck, 26 id. 47; Richardson v. Adams v. Foster, id. 452. See Schuster Pulver, 63 Barb. 67.
v. Supervisors, 27 Minn. 253; Vander3 Frecking v. Rolland, 53 N. Y. 422; stolph v. Boylan, 50 Mich. 330. Chapman v. Foster, 6 Allen, 136. See 6 People v. Cooper, 6 Hill, 516.
tition and requiring the plaintiff in his complaint to give a statement of all the rights and titles of the parties, directed service on all the parties concerned, and the guardians of such as were minors. As it was deemed that minors were not competent to make a statement of the rights and titles of the parties, it was held that the statute did not apply where all the owners were minors.
$ 340. It is a principle or truism that for every wrong there is afforded by the law an appropriate remedy. Upon every statute made for the redress of any injury, mischief or grievance, an action lies by the party aggrieved, either by the express words of the statute or by implication. In other words, if a statute which creates a right does not indicate expressly the remedy, one is implied, and resort may be had to the common law, or the general method of obtaining relief which has displaced or supplemented the common law. A statute provided a penalty for the commission of a fraud, which was “to be sued for in any court of competent jurisdiction for the benefit of the person or persons, etc., upon whom such fraud shall be committed.” It was implied the suit should be brought in the name of the defrauded party.*
$ 341. Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. It is a well established principle that statutes containing grants of power are to be construed so as to include the authority to do all things necessary to accomplish the object of the grant. The grant of an express power carries with it by necessary implication every other power necessary and proper to the execution of the power expressly
1 Gallatian v. Cunningham, 8 Cow. 3 Winn v. Ficklen, 54 Ga. 529. See 361.
post, $ 399. 2 Van Hook v. Whitlock, 2 Edw. 304, 4 Thompson v. Howe 46 Barb. 287. 311; Bullard v. Bell, 1 Mason, 290. To 51 Kent's Com. 464; Stief v. Hart, give a reasonable effect to the word 1 N. Y. 20, per Jewett, C. J.; Mitchell " from " in reference to the subject- v. Maxwell, 2 Fla. 594 ; Re Neagle, 39 matter, it was held proper to consider Fed. Rep. 833; S. C. 135 U. S. 1; the extrinsic situation, and if the ob- Commonwealth v. Conyngham, 66 ject of the act could not otherwise be Pa. St. 99; Witherspoon v. Dunlap, 1 accomplished it should be construed McCord, 546. as inclusive. Smith v. Helmer, 7 h People v. Eddy, 57 Barb. 593; Barb. 416.
Mayor, etc. v. Sands, 105 N. Y. 210, 218.
granted. Where the law commands anything to be done it authorizes the performance of whatever may be necessary for executing its commands. When a justice of the peace is required to issue a warrant for the collection of costs made on a hearing before him, it is implied that he has power to decide on the amount. When an existing jurisdiction is enlarged so as to include new cases, it is not necessary to declare that the old provisions shall apply to the new cases. If, for example, the jurisdiction of justices of the peace should be extended to actions of slander, the existing provisions for a review by certiorari and appeal would apply to cases coming under the en
11 Kent's Com. 404. The constitu- purposes. The latter may be regarded tion of New York declares “no pri- as a means or instrumentality of acvate or local bill which may be complishing the former. To secure passed shall embrace more than one this object it is assumed to be necessubject, and that shall be expressed sary for the city authorities to go bein the title.” The validity of an act yond the limits of the city to procure “to amend the several acts in relation the necessary supply, and, in doing to the city of Rochester" was ques- so, they must come in contact and tioned on the ground of embracing deal with private or other interests a multiplicity of subjects. The prin- in no way connected with the city. cipal point relied upon was that the They must take private property, authority conferred upon the water pass over and use public highways, commissioners, by one section of the streets, and, perhaps, railroads. The act, to contract with the trustees of authority to secure the right, alvillages through which the water to though it may involve details in no the city might be conducted to sup- other way connected with the city, ply such villages with water, and and may affect other persons or corauthorizing the trustees to levy the porations and their property, does annual expense with their annual not constitute it an independent subtax, was, one or both of them, an inde- ject. The power to supply villages pendent subject not embraced in the with water by contract is incidental title. “It is not denied,” said Church, to the main purpose, and may serve C. J., "that provisions for furnishing as a means of attaining it. The authe city with a supply of water relate thority conferred upon the trustees to the legitimate functions of a city to levy the tax was indispensable to government, and are properly in- render the contract effectual. The cluded in such a bill as this. That power to sell involves the power to object, it seems, was secured by an buy and pay for, and taxation was independent bill to which these pro- the only mode which could be adopted visions are amendments. The pur- for that purpose.” People v. Briggs, pose of both is to furnish the city 50 N. Y. 553. See Odell v. De Witt, with water for the extinguishing of 53 N. Y. 643. fires and other public uses, and 2 Foliamb's Case, 5 Coke, 116. also to furnish the inhabitants of the 3 Voorhees v. Martin, 12 Barb. 508. city with pure water for domestic