페이지 이미지
PDF
ePub

by the owners of such property, the courts have nothing to do with the correctness or incorrectness of the determination, but must assume the fact to be as the legislature assumes or declares it. Where the constitution provides that legislative acts shall not take effect until a future day, unless, for some emergency, the legislature deems it necessary to provide otherwise, if an act contains a provision that it go into effect immediately, it will be implied that in the judgment of the legislature there was an emergency; and if the circumstance that an emergency exists is stated in the act, when such statement is required, it will be assumed by the courts that it is sufficient. Special acts of incorporation for constructing railroads, or probably any special act, will be valid notwithstanding the constitutional provision requiring general laws for such purposes, if in the judgment of the legislature the object in view cannot be attained under general laws. Such a determination is implied from the act being passed.

1 People v. Lawrence, 36 Barb. 177. 3 Johnson v. Joliet, etc. R. R. Co. 23 2 Gentile v. State, 29 Ind. 409. III. 202.

CHAPTER XIV.

STRICT CONSTRUCTION.

& 346. Literal and strict construction | 8 370. Statutes interfering with legitcompared

imate industries, etc. 349. Strict construction of penal 371. Statutes creating liability for statutes.

death by negligence. 356. Not construed so strictly as to 373. Civil damage acts. defeat intention.

378. Statutes for exercise of emi358. What statutes are penal.

nent domain. 361. Revenue laws.

381. Statutes granting power. 362. Statutes which impose burden 386. Jurisdiction of courts. of taxation.

389. Grants of titles and franchises. 365. Statutes delegating the taxing 398. Statutory rights.

400. Statutes in derogation of the 366. Statutes against

common law, right

402. Interpretation clauses. 368. Statutes of limitations.

407. Statutes affecting statutory 369. Limitations as to new trials

policy. and appeals.

power.

common

§ 346. Literal interpretation and strict construction compared.- Statutes are seldom written in such precise and categorical terms as to point out inclusively and exclusively all their intended applications. General and more or less flexible language is used. It is construed with reference to the subject of the act, its purpose; and popular words are read and understood according to their common acceptation. And if technical words are used they are construed according to their technical sense. There are many statutes of divers kinds which are strictly construed. And there is a great variety of other statutes which are remedial in their nature and are liberally construed. The statutes which are thus classified for strict or liberal construction include a large part of the legis

1 De Veaux v. De Veaux, 1 Strob. ner v. Real Estate Bank, 5 Ark, 536; Eq. 283; ante, SS 250–256.

Merchants' Bank v. Cook, 4 Pick. 405; 2 Weill v. Kenfield, 54 Cal. 111: United States v. Breed, 1 Sumn. 159; Opinion of Justices, 7 Mass. 523; Elliott v. Swartwout, 10 Pet. 137. McCool v. Smith, 1 Black, 459; Buck

lation of every state. The same language may have a broader scope and effect for remedial purposes than under the restraining influence of considerations which induce strict construction. In the case of Bones v. Booth construction was given to the phrase "a single sitting ” of a loser at play. The statute gave him a right for a limited time to recover his losses above 101. at “a single sitting;” and gave an informer, afterwards, the right to recover them and treble value besides. As to the loser the statute was held remedial, and the losses, those of a single sitting, though suspended for dinner; but as to the informer's right, the statute was penal, and the suspension for dinner broke the continuity of the sitting.

$ 347. Strict construction is not a precise but a relative expression; it varies in degree of strictness according to the character of the law under construction. The construction will be more or less strict according to the gravity of the consequences flowing from the operation of the statute or its infraction; if penal, the severity of the penalty;? if in derogation of common right, or capable of being employed oppressively, the extent and nature of the innovation and the consequences; and in any case, according to the combined effect and the reciprocal influence of all relevant principles of interpretation. A remedial statute, not clear as to any proposed application, admits of resort to many rules of construction to determine what the courts are authorized to assume is the meaning and intention of the law-maker. But a statute which must, on account of its subject or nature, be construed strictly, as the phrase is, must be read without expansion beyond its letter, without recourse to any such rules; it is to be confined to such subjects or applications as are obviously within its terms and purpose. In other words, a strict construction is a close and conservative adherence to the literal or textual interpretation."

12 W. Black, 1226.

v. Taylor, 8 Port. 564; Jordt v, 2 Commonwealth V. Fisher, 17 State, 31 Tex. 571; Andrews v. Mass. 46, 49; Taylor v. United States, United States, 2 Story, 203; United 2 How. 197, 210.

States v. Bassett, id. 389; State v. 3 See Chapin v. Persse & Brooks Graham, 38 Ark. 519; Watervliet T. Paper Works, 30 Conn. 461.

Co. v. McKean, 6 Hill, 616; Melody 4 Post, SS 419-444.

v. Reab, 4 Mass. 473; Schooner Enter6 Austin v. State, 71 Ga. 595; Bettis prise, 1 Paine, 32.

$ 348. The rule of strict construction is not violated by permitting the words of a statute to have their full meaning. The letter of remedial statutes may be extended to include cases clearly within the mischief they were intended to remedy, unless such construction does violence to the language used; but consideration of the old law, the mischief, and the remedy, are not enough to bring cases out of the terms within the purview of a penal statute. They must be expressly included in the words of the statute. This is all the difference between a liberal and a strict construction of a statute. A case may come within one unless the language excludes it, while it is excluded by the other unless the language includes it. In Attorney-General v. Sillem, Pollock, C. B., said: “We cannot and ought not to deal with it as a crime, unless it is plainly and without doubt included in the language used by the legislature.” 2 In another case 3 he said: “Although the common distinction taken between penal acts and remedial acts, that the former are to be construed strictly and the others are to be construed liberally, is not a distinction, perhaps, that ought to be erased from the mind of a judge,” yet the distinction now means little more than “that penal statutes, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope.” Strict construction is not the exact converse of liberal construction, for it does not consist in giving words the narrowest meaning of which they are susceptible. And a late writer adds: What is meant by it is that acts of this kind those which are to be strictly construed — are not to be regarded as including anything which is not within their letter as well as their spirit, which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the legislature.

1 State v. Powers, 36 Conn. 77. & C. 531; Foley v. Fletcher, 28 L. J. 22 H. & C. 431, 514.

Ex. 106; 3 H. & N. 769. 3 Nicholson v. Fields, 31 L. J. Ex. 5 United States v. Winn, 3 Sumn. 235; 7 H. & N. 810, 817.

* Attorney-General v. Sillem, 2 H. 6 Wilberforce, St. L. 246; Britt v.

209.

$ 349. Strict construction of penal statutes.— The penal law is intended to regulate the conduct of people of all grades of intelligence within the scope of responsibility. It is therefore essential to its justice and humanity that it be expressed in language which they can easily comprehend; that it be held obligatory only in the sense in which all can and will understand it. And this consideration presses with increasing weight according to the severity of the penalty." Hence every provision affecting any element of a criminal offense involving life or liberty is subject to the strictest interpretation; and every provision intended for the benefit of the accused, for the same humane reason, receives the most favorable construction. “The rule that penal laws are to be construed strictly is perhaps not much less old than construction

Robinson, L. R. 5 C. P. 513, 514; East 278; Schooner Enterprise, 1 Paine, India Interest, 3 Bing. 196; Parting- 32; Randolph v. State, 9 Tex. 521; ton v. Attorney-General, L. R. 4 H. L. Chicago, etc. R. R. Co. v. People, 67 122. In Nicholson v. Fields, 7 H. & Il. 11. N. 817, Pollock, C. B., said: “I ad

2 Id. mit that the common distinction be- 3 Commonwealth V. Keniston, 5 tween penal and remedial acts, viz., Pick. 420; United States v. Ragsdale, that the one is to be construed strictly, Hempst. 497; Heward v. State, 13 Sm. the other liberally, ought not to be & M. 261; Sneed v. Commonwealth, 6 erased from the mind of a judge; Dana, 338; Dull v. People, 4 Denio, 91. yet whatever be the act, be it penal, Spencer, J., said in Sickles v. Sharp, and certainly if remedial, we ought 13 John. 497: “The rule that penal always to look for its true construc- statutes are to be construed strictly tion. In that respect there ought to when they act on the offender and be no distinction between a penal and inflict a penalty admits of some a remedial statute. If the remedial qualification. In the construction of statute does not extend to the par- statutes of this description it has been ticular matter under consideration, often held that the plain and maniwe have no power to legislate so as to fest intention of the legislature ought extend it. Undoubtedly we are thus to be regarded. A statute which is far bound to a strict construction in penal as to some persons, provided it a penal statute, that if there be a fair is beneficial generally, may be equiand reasonable doubt, we must act tably construed.” State v. Canton, as in revenue cases, where the rule is, 43 Mo. 48, 52. Forfeitures are not that the subject is not to be taxed favored, and courts incline against without clear words for that purpose.” them. Where a statute may be con

1 Bish. Writ. L. SS 193, 199; Com- strued so as to give a penalty, and monwealth v. Fisher, 17 Mass. 49; also so as to withhold the penalty, it Commonwealth v. Snelling, 4 Binn. will be given the latter construction. 379; United States v. Moulton, 5 Renfroe v. Colquitt, 74 Ga. 619. Mason, 537; State v. Wilcox, 3 Yerg.

« 이전계속 »