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 recovery. 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 so-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. 2 Grooms v. Hannon, 59 Ala. 510. 3 Marston v. Tryon, 108 Pa. St. 270. 4 Reed v. Davis, 8 Pick. 514. See Bay City, etc. R. R. Co. v. Austin, 21 Mich. 390. ९ 5 Aechternacht v. Watmough, 8 Watts & S. 162. 6 Renfroe v. Colquitt, 74 Ga. 618; 8 13 John. 497. 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 gov ernment 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." The liberality of construction relates to the 3 191 U. S. 29, 35. 2 47 Md. 217. 3 Citing Farmers', etc. Nat. Bank v. Dearing, supra. remedy and not to the provision giving the penalty.1 Park, J., in Gorton v. Champneys,2 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 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 Doug. 699, 706; Abbott v. Wood, 22 Me. 541. See Hahn v. Salmon, 20 Fed. Rep. 801; Cumming v. Fryer, Dudley, 182; Smith v. Moffat, 1 Barb. 65; Sharp v. Mayor, etc. 31 id. 577; White v. 4 38 Me. 103. 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.3 § 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. 2 Reed v. Northfield, 13 Pick. 94. 3 Gray v. Bennett, 3 Metc. 522; Brandon v. Pate, 2 H. Black. 308; Brandon v. Sands, 2 Ves. Jr. 514. 4 Wood v. United States, 16 Pet. 342; Taylor v. United States, 3 How. 197; Cliquot's Champagne, 3 Wall. 114; Twenty-eight Cases, In re, 2 Ben. 63; United States v. Willetts, 5 Ben. 220; United States v. Three Tons of Coal, 6 Biss. 379; United States v. Cases of Cloths, Crabbe, 356; United States v. Barrels of High Wines, 7 Blatch. 459; United States. v. Olney, 1 Abb. (U. S.) 275; United States v. Barrels of Spirits, 2 id. 305; United States v. Hodson, 10 Wall. 395; United States v. Breed, 1 Sumn. 159; United States v. One Hundred and Twenty-nine Packages, 2 Am. L 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.1 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. 197; United States v. Breed, 1 Sumn. 159; United States v. Distilled Spirits, 10 Blatchf. 428, 433. 2 2 Story, 369. 3 The characterizing of such laws as remedial has not escaped criticism. Mr. Cooley, in his work on Taxation, says: "It seems highly probable that the word remedial has been employed by the learned judge in this case [United States v. Hodson, supra] in a sense differing from that in which it is commonly used in the law. A remedial law, as the term is generally employed, is something quite different from the revenue laws. An author of accepted authority expresses the ordinary understanding, when he defines a remedial statute to be 'one which supplies such defects and abridges such superfluities of the common law as may have been discovered (1 Black. Com. 86); such as may arise either from the imperfection of all human laws, from change of time and circumstances, from mis takes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatever; and this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, has occasioned another subordinate division of remedial acts into enlarging and restraining statutes. So it seems that a remedial statute may also have its application to and effect upon other existing statutes, and give a party injured a remedy; and for a more general definition, it is a statute giving a party a mode of remedy for a wrong where he had none or a different one before."" Potter's Dwarris on St. 73. He concludes that in applying the word "remedial" to tax laws it was used in some political or special, rather than in the strict legal, sense, and that it was not the intention of the court to overrule the opinion of Mr. Justice Story in Wiggleworth's case. Cooley on Tax. 204, 205. |