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the requirement is dependent upon a full performance of the conditions of the instrument.' It will not be applied to the assignee of a mortgage. A similar rule of strict construction has been applied to an act imposing a penalty for delinquency in discharging a satisfied judgment. An act gave treble damages for waste committed on land pending a suit for its recorery. It was held highly penal, and therefore to be limited in its application to the object the legislature had in view; it was necessary to aver a case within its terms. An act giving the party injured an action to recover a penalty imposed on a public officer for taking excessive fees was held a penal one, and, being construed strictly, was inapplicable to one who took the illegal fees after the expiration of his term for services performed while in office.5
$ 359. Statutes which provide a penalty recoverable by the party aggrieved are remedial as well as penal. Hence two diverse principles have some application: that of requiring strict construction on account of the penalty, and that of liberal construction to prevent the mischief and advance the remedy. Where a penalty, like double damages or any other form of pecuniary mulct recoverable by the party injured, is the only remedial instrumentality, the act as to that party is remedial only in the same sense that all punitory laws are 80—for the benefit of the public at large. The courts look with no favor upon the penalty, but incline against it. They will only permit it to be recovered upon a case which falls both within the letter and spirit of the act.? They will not permit a recovery of it in a case not within the letter, merely because it is not excluded by it and is within the mischief intended to be corrected. In Sickles v. Sharp. the court say: “The rule that penal statutes are to be strictly construed, when they act on the offender, and inflict a penalty, admits of some qualification. In the construction of statutes of this description it has been often held that the plain and manifest 1 Stone v. Lannon, 6 Wis. 497.
5 Aechternacht v. Watmough, 8 2 Grooms v. Hannon, 59 Ala. 510. 3 Marston v. Tryon, 108 Pa. St. 270. 6 Renfroe v. Colquitt, 74 Ga. 618;
4 Reed v. Davis, 8 Pick. 514. See Farmers' & Mechanics' Nat. Bank v. Bay City, etc. R. R. Co. v. Austin, 21 Dearing, 91 U. S. 29. Mich. 390.
i Ante, $ 348.
Watts & S. 162.
intention of the legislature ought to be regarded. A statute which is penal to some persons, provided it is beneficial generally, may be equitably construed.” The italicised sentence is too general; if applied in its full scope it would leave nothing for strict construction. The penalty was recovered in that case for an act held to be within the strict letter.
$360. In Farmers' & Mechanics' National Bank v. Dearing,' it was said by the court that the thirtieth section of the national bank act “is remedial as well as penal, and is to be liberally construed to effect the object congress had in view in enacting it.” Usury had been taken by a bank doing business in New York, and a forfeiture of the whole debt had been adjudged in accordance with the local law. This was held erroneous; section 30 prescribes the exclusive and uniform penalty — that is, the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon, when the rate knowingly received, reserved and charged by a national bank is in excess of that allowed by that section. The court emphasized the rule of strict construction, and the whole judicial argument is toward a milder view of the law than that taken by the state court, whose decision was reversed.
The true sense in which the section in question was remedial and to be liberally construed was probably declared in Ordway v. Central National Bank of Baltimore. An action was brought in the state court for the forfeiture declared by that section. The question was whether it was recoverable in that court. Recovery there was sustained. The court by Alvey, J., say: “ The cause of action is a forfeiture or penalty of a civil nature, for the exacting and taking of usurious interest upon money loaned, and the remedy given by the statute is by a private civil action of debt to the party grieved. The government or the public is not concerned with it. It is, therefore, a private right pursued by a private civil action. And it has been decided that the section upon which the action is founded is remedial as well as penal, and is to be liberally construed to effect the object which congress had in view in enacting it." 3 The liberality of construction relates to the 191 U. S. 29, 35.
3 Citing Farmers', etc. Nat. Bank v. Dearing, supra.
2 47 Md. 217.
remedy and not to the provision giving the penalty.' Park, J., in Gorton v. Champneys, speaking of a statute, said: “It is a law to prevent and suppress frauds; and it is a clear and fundamental rule in construing statutes against frauds, that they are to be liberally and beneficially expounded; and in our best text-book this position is to be found: that where the statute acts against the offender and inflicts a penalty, it is then to be construed strictly; but where it acts upon the offense, by setting aside the fraudulent transaction, here it is to be construed liberally.”: There is, therefore, a class of statutes which is
3 in part remedial and to be liberally construed, to advance the remedy, and in part penal, and to that extent, as it operates against the offender, to be construed like other penal laws, strictly. The liberal construction allowed to advance the remedy is well illustrated by the case of Frohock v. Pattee. A statute provided that “any person who shall knowingly aid or assist any debtor or prisoner in any fraudulent concealment or transfer of his property to secure the same from creditors, etc., shall be answerable in a special action on the case to any creditor who may sue for the same in double the amount of the property so fraudulently transferred; not, however, exceeding double the amount of such creditors' just debt or demand.” It appeared that a creditor had brought a suit and recovered on this provision. The question was whether, in the absence of an issue in regard to the amount of that recovery, it was a bar to the present suit, as would be its effect if it were treated as a penal statute proper. It was held not to be such a statute, and therefore the former judgment in favor of one creditor only barred another to the extent of the recovery towards twice the value of the property fraudulently conveyed. Such actions are not criminal actions and are not governed by the same rules. A decision for a defendant is not an acquittal which is final within the protection of the constitutional provision against being put twice in jeopardy.
1 See Abbott v. Wood, 22 Me. 541. Steam Tug, 6 Cal. 462; Ellis v. Whit21 Bing. 287, 300.
lock, 10 Mo. 781; Hyde v. Cogan, 2 See Hahn v. Salmon, 20 Fed. Rep. Doug. 699, 706; Abbott v. Wood, 22 801; Cumming v. Fryer, Dudley, 182; Me. 541. Smith v. Moffat, 1 Barb. 65; Sharp 4 38 Me 103. V. Mayor, etc. 31 id. 577; White v.
A defeated plaintiff may move for a new trial as in other civil cases. Where a statute gives penal damages to the injured party they are part of his indemnity.? And where the commonlaw action for the injury survives and is therefore assignable, the penal damages given by statute are also assignable.
S 361. Revenue laws.— There are many cases in the federal courts in which it has been declared that the revenue laws are not to be regarded as penal in the sense that requires them to be strictly construed in favor of the defendant, though they impose penalties and forfeitures. They have even been declared remedial in character, as intended to prevent fraud, suppress public wrong and to promote the public good. These declarations tend to establish an exceptional and arbitrary rule in this class of cases, at war with elementary principles universally recognized in other cases. Other penal laws are made to punish and prevent frauds, as, for example, statutes providing a punishment for obtaining money or goods under false pretenses. All penal laws are intended to promote the public good. Strict construction is based on humane considerations which are applicable with more or less force in all cases where a statute provides for punishment. These considerations are as pertinent to acts which are supposed to be infractions of a revenue law as to other criminal acts; as pertinent when the government is the sufferer as when a private citizen is injured; as well when the offense is odious fraud as when it is atrocious violence. These declarations, so frequently made in revenue cases, have not been practically followed by any notable departures from the strict rule. And they have generally been qualified by the enunciation of the sound principle applicable to all penal provisions that they are to be construed ac
1 Stanley v. Wharton, 9 Price, 301. Tons of Coal, 6 Biss. 379; United 2 Reed v. Northfield, 13 Pick. 94. States v. Cases of Cloths, Crabbe,
3 Gray V. Bennett, 3 Metc. 522; 356; United States v. Barrels of High Brandon v. Pate, 2 H. Black. 308; Wines, 7 Blatch. 459; United States Brandon v. Sands, 2 Ves. Jr. 514. v. Olney, 1 Abb. (U. S.) 275; United
4 Wood v. United States, 16 Pet. States v. Barrels of Spirits, 2 id. 305; 342; Taylor v. United States, 3 How. United States v. Hodson, 10 Wall. 197; Cliquot's Champagne, 3 Wall. 395; United States v. Breed, 1 Sumn. 114; Twenty-eight Cases, In re, 2 159; United States v. One Hundred Ben. 63; United States v. Willetts, and Twenty-nine Packages, 2 Am. L. 5 Ben. 220; United States v. Three Reg. (N. S.) 419.
cording to the true intent and meaning of their terms, and when the legislative intention is thus ascertained, that and that only is to be the guide in interpreting them. No case has
" arisen in which a penalty or forfeiture has been sustained for being within the supposed intention of the statute when not within its terms.
It was declared in United States v. Wigglesworth,2 that statutes levying taxes or duties on subjects or citizens are to be construed most strongly against the government, and in favor of the subjects or citizens, and their provisions are not to be extended by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out, although standing upon a close analogy: Blackstone laid down the rule that penal statutes must be construed strictly. Then he proceeds to say: “Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule;
1 Taylor v. United States, 3 How. takes and unadvised determinations 197; United States v. Breed, 1 Sumn. of unlearned (or even learned) judges, 159; United States v. Distilled Spir- or from any other cause whatever; its, 10 Blatchf. 428, 433.
and this being done either by enlarg2 2 Story, 369.
ing the common law where it was 3 The characterizing of such laws too narrow and circumscribed, or by as remedial has not escaped criticism. restraiping it where it was too lax Mr. Cooley, in his work on Taxation, and luxuriant, has occasioned another says: “ It seems highly probable that subordinate division of remedial acts the word remedial has been employed into enlarging and restraining statby the learned judge in this case utes. So it seems that a remedial [United States v. Hodson, supra) in a statute may also have its application sense differing from that in which it to and effect upon other existing is commonly used in the law. A re- statutes, and give a party injured a medial law, as the term is generally remedy; and for a more general defemployed, is something quite differ- inition, it is a statute giving a party ent from the revenue laws. An au- a mode of remedy for a wrong where thor of accepted authority expresses he had none or a different one bethe ordinary understanding, when he fore.'” Potter's Dwarris on St. 73. defines a remedial statute to be one He concludes that in applying the which supplies such defects and word “remedial” to tax laws it was abridges such superfluities of the used in some political or special, common law as may have been dis- rather than in the strict legal, sense, covered (1 Black. Com. 86); such as and that it was not the intention of may arise either from the imperfec- the court to overrule the opinion of tion of all human laws, from change Mr. Justice Story in Wiggleworth’s of time and circumstances, from mis- case. Cooley on Tax. 204, 205.