language."

Such laws are looked upon with general disfavor. In Dash v. Van Kleeck,2 Kent, C. J., said: "There has not been, perhaps, a distinguished jurist or elementary writer, within the last two centuries, who has had occasion to take notice of retrospective laws, either civil or criminal, but has mentioned them with caution, distrust or disapprobation."

§ 407. Construction of acts affecting previous statutory policy. It has often been judicially said that the policy of the law is too vague and capricious a consideration to have much weight in the construction of a statute. "What is termed the policy of the government," says Field, J., "with reference to any particular legislation, is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may be formed by different persons. It is a ground much too unstable upon which to rest the judgment of the court in the interpretation of statutes." It was remarked in Municipal Building Society v. Kent,' that "it is never very safe ground in the construction of a statute to give weight to views of its policy which are themselves open to doubt and controversy." It is not within the province of the courts to judge of the wisdom or expedience of a statute. With the policy of the law the courts have but little concern in construing an act of the legislature. The intention should be ascertained from its language, if possible, considered in connection with the every-day wants and objects of the people for whose government the same is enacted. That being ascertained and effectuated, the duty of the court is performed, whether the policy thereby subserved be good or bad. But it happens sometimes that the intention is not clearly expressed or is uncertain. Then the hardship, the injustice, and, in every point of view, the effects and consequences of particular constructions of a statute, will be considered; and the best effect of

1 Midland R'y Co. v. Pye, 10 C. B. (N. S.) 191; Bay v. Gage, 36 Barb. 447; Chew Heong v. United States, 112 U. S. 536; Maxwell v. Bay City, 46 Mich. 278; post, § 481.

27 John. at p. 506.

5 Reithmiller v. People, 44 Mich. 280; Sheley v. Detroit, 45 id. 431; Lindenmuller v. People, 21 How. Pr. 156; People v. Hoym, 20 id. 76; People v. Lawrence, 36 Barb. 177.

6 Pool v. Wedemeyer, 56 Tex. 287;

3 Hadden v. The Collector, 5 Wall. Coffin v. Rich, 45 Me. 507; Bosley v.

at p. 111.

L. R. 9 App. Cas. 273.

Mattingly, 14 B. Mon. 89; Baxter v.
Tripp, 12 R. L. 310.

the law, consistent with its language, ascertained in the light of all available aids to a true understanding of its meaning, will be deemed that intended by the legislature.' Arguments upon the policy of the law, though undoubtedly admissible, are to be listened to with much caution. The interpreters of the law have not the right to judge of its policy; and when they undertake to find out the policy contemplated by the makers of the law, there is great danger of mistaking their own opinions on that subject for the opinions of those who had alone the right to judge of matters of policy. But after a statutory system or policy has been long established and is well defined, it will not be lightly presumed to be departed from or abandoned. General language will be restricted to bring the act into harmony with it. Equivocal words will not be accepted as implying an intent to depart from a settled statutory policy. General words are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be put upon them consistently with the intention of preserving the existing policy untouched."

1 People v. Canal Com'rs, 3 Scam. 153; Collins v. Carman, 5 Md. 503; Putnam v. Longley, 11 Pick. 487; post, § 131 et seq.

4

Attorney-General v. Smith, 31 Mich. 359; Blackwood v. Van Vliet, 30 id. 118; Rowley v. Stray, 32 id. 70; Baxter v. Tripp, 12 R. I. 310; Grenada

2 Roberts v. Cannon, 4 Dev. & Bat. Co. v. Brogden, 112 U. S. 261; Fort v.

L. 267.

Burch, 6 Barb. 60.

3 Greenhow v. James, 80 Va. 636.

5 Minet v. Leman, 20 Beav. 269.

CHAPTER XV.

LIBERAL CONSTRUCTION.

§ 408. General explanation of subject. | § 413. Equitable construction. 409-412. Remedial statutes in the 415. Liberal construction. 431. Casus omissus.

sense of rule that they are
liberally construed.

§ 408. General statement of the subject. The law favors a liberal construction of certain statutes to give them the most beneficial operation. When they are liberally construed, the principles which induce strict construction are not lost sight of nor ignored. Liberal construction is given when these principles do not so antagonize it as to make it unjust. Two classes of statutes are liberally construed-remedial statutes, and statutes which concern the public good or the general welfare. What are such statutes, in the sense of being subject to liberal construction? Taken broadly, as thus generally characterized, they would include all legislation. This is not practically the scope of such construction; other principles govern and make the law conservative in the interpretation of statutes and their enforcement in the cases and upon the considerations discussed in the last chapter. Blackstone says that for the purpose of ascertaining the boundaries of right and wrong, and the methods which the law takes to command the one and prohibit the other, it consists of several parts; "one declaratory, whereby the rights to be observed and the wrongs to be eschewed are clearly defined and laid down; another directory, whereby the subject is instructed and enjoined to observe those rights and abstain from the commission of those wrongs; a third, remedial, whereby a method is pointed to recover a man's rights or redress his private wrongs.' This eminent writer adds that the declaratory and directory parts stand much upon the same footing, and the remedial part so necessary a consequence of those other parts that the laws would be very vague and imperfect without it."

On a subsequent page he says that "statutes also are either declaratory of the common law or remedial of some defects therein;" that "remedial statutes are those which are made to supply such defects and abridge such superfluities in the common law as arise either from the general imperfection of all human laws, from change of time and circumstances, from mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other causes whatever."1

§ 409. Remedial statutes to be liberally construed. In the modern sense remedial statutes not only include those which so remedy defects in the common law, but defects in our civil jurisprudence generally, embracing not only the common law, but also the statutory law. They are in a general sense remedial whether they correct defects in the declaratory, directory or remedial parts, as the author just quoted has defined them. There are also the three points mentioned by this author to be considered in the construction of all remedial statutes the old law, the mischief and the remedy; that is, how the law stood at the making of the act; the mischief for which that law did not adequately provide, and what remedy the legislature has supplied to cure this mischief. And it is the duty of judges so to construe the act as to suppress the mischief and advance the remedy. This injunction is simply to carry out the intention of the law-maker, which is the cardinal aim with reference to all statutes. The intention in statutes which are for this purpose recognized as remedial or enacted pro bono publico is more liberally inferred, and to a greater extent dominates the letter, than is admissible in dealing with those which must be strictly construed.

410. Broad as is the definition of statutes to be liberally construed, none will be excluded from the category except where some other paramount rule governs. Penal statutes, and many others for special reasons, are excluded. 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 a consideration of the old law, the mischief, and the remedy, is not enough to bring cases within the purview of penal statutes, nor, indeed, any statute which must be strictly con11 Cooley's Black. Com. 86, 87.

2 Id.

strued. Cases must be expressly included by the words of these statutes to be governed by them. This is all the difference between a liberal and a strict construction. A case may come within one unless the language excludes it; while it is excluded by the other unless the language includes it.' Construction, whether it be liberal or strict, is an inquiry for and determination of the law-makers' intention to give it effect. "As for construing a statute by equity," Lord Mansfield said, "equity is synonymous to the meaning of the legislature."" So conservative, however, is the law as to severe statutes, which, therefore, must be construed strictly, that every case must be brought within both their letter and their spirit.3 A remedial statute must be construed largely and beneficially so as to suppress the mischief and advance the remedy. And if its words are not clear and precise, such construction will be adopted as shall appear the most reasonable and the best suited to accomplish its object; a construction which would lead to an absurdity will be rejected. And, generally, it may be affirmed that, if a statute may be liberally construed, everything is to be done in advancement of the remedy or the purpose intended that can be done consistently with any construction that can be put upon it." The substance of the act

is principally regarded and the letter is not too closely adhered to. A remedial statute must be construed, if possible, so as to correct the mischief at which it is aimed; though, if the language is very explicit, there is great danger in departing from the words used to give an effect to the law which may be supposed to have been designed by the legislature. § 411. The courts construe remedial statutes most liberally to effectuate the remedy. This principle operates to exclude

1 State v. Powers, 36 Conn. 77.

2 Rex v. Williams, 1 W. Black. 93; Blakeney v. Blakeney, 6 Port. 109; Mayor, etc. v. Root, 8 Md. 95; Woodruff v. State, 3 Ark. 284.

3 Ante, § 349.

7 Fox v. Sloo, 10 La. Ann. 11; Fox v. New Orleans, 12 id. 154; Davenport v. Barnes, 2 N. J. L. 211; Wilber v. Paine, 1 Ohio, 117; Pancoast v. Ruffin, 1 Ohio, 177; Lessee of Burgett v. Burgett, 1 Ohio, 219; McCormick v.

4 Sprowl v. Lawrence, 33 Ala. 674; Alexander, 2 Ohio, 74; Franklin v.

Gilkey v. Cook, 60 Wis. 133.

5 Atcheson v. Everett, 1 Cowp. 391; Johnes v. Johnes, 3 Dow, 15; Turtle v. Hartwell, 6 T. R. 426.

Moody v. Threlkeld, 13 Ga. 55.

Franklin, 1 Md. Ch. 342.

8 Denn v. Reid, 10 Pet. 524; Guthrie v. Fisk, 3 B. & C. at p. 182; Brandling v. Barrington, 6 B. & C. 475. 9 Id.