페이지 이미지
PDF
ePub

act; in Indiana and Alabama acts somewhat similar have been passed. These acts although in part apparently declaratory are largely remedial, and their constitutionality seems to be established.

Federal Act. The Congress of the United States passed a similar act applying to employees of railroads engaged in interstate commerce. The constitutionality of this United States statute was called in question on the ground that the employment of an employee within a State is not a matter of interstate commerce and therefore not within the province of United States action, but purely a State matter. The United States Supreme Court in 1908 decided the act to be unconstitutional, on the ground that when the employee is not engaged in interstate work (although the railroad may be) the United States has no authority. A later act, passed in 1908, was intended to cure the defect, and apparently has done so.

Illustration. There is illustrated here the older rule of the “master and servant,” modified later purely through the action of the Common Law under the rule of “ fellow servants," modified again (constitutionally) by statute by the “ Employers' Liability Act," while the earlier attempted extension by United States legislation illustrates an interesting case of a statute set aside because unconstitutional.

Construction of Laws. When a statute has been passed it becomes necessary to determine what it means (as a law); and the law states clearly that it means what it says; it is not always, however, entirely easy to determine what it does mean or does say, and for this reason certain rules have been laid down by the courts in order to aid in determining the meaning. This determination of meaning is technically called the “ construction ” of the statute (or of a contract or of any document). Before entering critically into this matter it may prove helpful to briefly consider the character of a suit at law.

LAWSUIT AND COURT TRIAL Method of Bringing Suit. When a condition of affairs exists which seems to justify a lawsuit, the first step is to secure from the proper court certain papers so that the necessary notice may be served upon the person sued, who is called the defendant. The person who brings the suit is called the plaintiff; he has a complaint against the defendant. The technical features of these papers and of serving them are matters for the lawyer, and not for the engineer or any layman. It is well for the engineer to understand, however, that the correct name of the defendant should be known, both the surname, or family name, and the given, or Christian name; these should be stated in full to secure certainty as to the party sued. The middle name is less important and is generally not specified in full, but by initial only. Using the first initial and the middle name in full is not considered good practice in formal legal matters. Complete identification is the essential point, however. For all legal purposes the full Christian name should be given, whatever may be the ordinary signature of a person or popular way of using the name. It is worth while to suggest also that in any suit where the court is called upon to deprive the owner of control of property, as in attachment or replevin, a bond is required in many States, sometimes for twice the amount of the property involved. Statutes have been passed in some States doing away with the requirement of a bond in attachment. Where a bond is necessary, parties who can give bonds in satisfactory amount should therefore be secured before going to the lawyer, especially in cases where the party bringing the suit lives at a distance from his lawyer.

Proceeding In Personam and In Rem. When the action is against some person who is summoned into court, it is often referred to as a proceeding “in personam; and the remedy contemplated is a financial award in cases at Common Law. When the action, however, looks to a piece of property which is either to be returned, or else acquired as security for a debt and sold to satisfy it, the proceeding is “ in rem.

In Personam. In actions " in personam," the preliminary paper, the summons, must be served upon the defendant personally, or perhaps by leaving it at his residence, or possibly in some other way authorized by statute. The service must be within the State and within the jurisdiction of the court. Until such personal service of the summons is made, the court has not acquired jurisdiction of the case. A non-resident cannot be served unless, unwittingly, he enters the State.

In Rem. In a proceeding“ in rem,” personal service is not required. A man must look after property which he owns, so that notice may be given by tacking the summons on a piece of real estate, or seizing goods by attachment, together with such other notice, like advertising, as the statutes may require. While the court in the latter case obtains jurisdiction of the case, provided the property be within the jurisdiction of the court, even then its jurisdiction will not support a judgment for money against the defendant personally if the property reached is insufficient; the jurisdiction is confined to the property reached by the service.

Appearance. If a person upon whom notice has not been served allows his lawyer to appear generally for him in court, this act is held to acknowledge service, and the court then has jurisdiction.

Pleadings. The next thing is to specify distinctly or declare what complaint is made, and this is the work of the lawyer in the “ declaration." A reply to this is made by the lawyer for the defendant, and by a series

[ocr errors]

of such“ pleadings," as the term is, the real questions at issue between the parties are reduced to their lowest terms, so that the evidence submitted may be closely directed to the essential points; unless so directed it will not be accepted.

Examples. For instance, A sues B for money loaned. B says A loaned him no money.

In another case C sues D for money loaned. D says that it is true he borrowed, but that he has paid C and now owes him nothing.

In another case E sues F for $100, the value of furniture sold F. F rejoins that E owes him $105 for groceries sold E.

Again G sues H for 10 barrels of cement sold him. H claims failure of consideration because the cement was of poor quality and useless.

Pleadings by Lawyer. All pleadings are formal papers requiring the skill of the lawyer. The engineer is likely to have clearly in mind the evidence available in any suit in which he is interested, and this evidence will be the foundation for the pleadings. The collection of evidence is so important and the engineer is so often in position to gather evidence, that the next chapter will deal with “evidence," a branch or subject of the law very important to the engineer.

Questions of Law for Judge. When the case comes to trial before judge and jury, if all the evidence is harmonious, as is sometimes the case, the judge, or as more commonly expressed, the "court,” decides what is the law applying to this undisputed state of facts; there is nothing left for the jury unless to bring in the verdict which the court directs them to find. Similarly, if all the facts presented by the plaintiff, even if true, would not in point of law make the defendant liable in this case, the court will properly instruct the jury to bring in a verdict for the defendant. † Questions of Fact for Jury. When, however, the evidence presented is inharmonious, and it becomes necessary that there shall be some means of determining what part of the evidence is to be accepted as true, and what part rejected as false, then the settlement of this matter is for the jury, who are the sole judges of the facts; for example, the credibility of witnesses, or what was the position of a signal which was an element of a railroad accident, or the condition of a sidewalk where some one fell and was injured. The judge is not allowed, however good his judgment, to pass upon those facts which are in dispute; this is for the jury alone. On the other hand it is not allowable for the jury to determine what is the law in the case; the jury is not skilled in the law and is incompetent to do this. The judge instructs the jury what the law is, that is, so much as is applicable to the case and is necessary to enable them to reach a proper verdict, which must rest upon their findings as to the facts combined with the judge's instruction to them as to the law.

Appeal from Judge's Decision. What happens if the judge does (improperly, unlawfully) express an opinion upon a matter of fact, a function exclusively belonging to the jury? If the case be appealed to a higher court (as from the Superior Court to the Supreme Court), a new trial will probably be ordered as the result. Supposing the judge of the lower court is free from interference with the jury's duties but commits another error (through misapprehension) and declares that to be the law (applying to the case) which is in reality not the law; again an appeal to the higher court will result in setting aside the verdict and ordering a new trial or directing a different verdict, dependent upon the circumstances in each case.

Setting Aside Verdict of Jury. In case the jury makes the mistake of substituting its own ideas of justice instead of following the instructions of the court as to what the law is, the situation is of greater difficulty, since the action of the jury is secret and its methods of reaching a result are not evident; apparently to meet this emergency the law permits the judge to set aside any verdict of the jury which he regards as “contrary to the law and the evidence," and even here a refusal to set aside the verdict may be overruled on appeal to the higher court, if this decides that he should have set it aside. If improperly set aside in the lower court, again there is a chance for reversal of decision. The judge in the trial of a case needs to keep his head clear, and to possess an intimate knowledge of the law, so as to avoid rendering any incorrect decision as to any question of law involved in the suit.

Mixed Questions of Law and Fact. While the duties of judge and jury may be stated simply enough, nevertheless the line of cleavage becomes in some cases hard to determine. For instance, when there existed a defect in a sidewalk where an accident occurred, if there was no conflicting testimony as to the condition of the sidewalk, the judge might properly decide, as a matter of law, whether the city (or the owner) was negligent. If, however, there was some conflicting evidence as to the condition, then the jury must determine what that condition was, and in connection with this must find whether the city (or the owner) was negligent. There is a mixed question of law and fact, and the jury settles this. Trial Without Jury. The lawyer of the client who sues the city, or railroad, or manufacturing corporation, will generally present evidence of a character which raises questions of fact and so requires that the jury shall decide whether or not the corporation was negligent. Sometimes by arrangement between parties, the jury is dispensed with for some particular suit, and it is agreed that the judge shall decide in that suit all the questions, both of law and fact. This is a wise proceeding in those cases (not rare) where both parties to the suit desire what is right, but have an honest difference of opinion on it and desire the decision of some one skilled in sifting evidence, as well as competent to unravel a complicated set of accounts or a mass of technical evidence.

INTERPRETATION OR CONSTRUCTION OF STATUTES Definition. In the use of language, uncertainty and ambiguity are sure to occur. Feebleness or imperfection of language lends itself to various interpretations put upon it by ambitious fraud and also by honest difference of opinion. To settle such difference some tribunal is necessary, and the determination of the meaning, the “interpretation " or “ construction ” of a statute is a matter for the judge, and is quite outside the functions of the jury; nor can the legislature interpret it, although it may by a new enactment change the law.

Controlled by Common Law. Rules of interpretation are derived from the Common Law, and since that law constitutes the foundation and primarily the body and soul of our jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles. “Interpretation” and “construction” signify the ascertainment of the meaning and intent of the author, and this intent is that expressed in the instrument itself; the intent is what the writer actually expressed, and not what he may have intended or did intend to say; when this statement is clear and unambiguous, nothing further is needed or is considered in law.

Construe as a Whole. It is necessary to look into the writing as a whole, and it is a rule of law that every part (even every word) shall be given effect if possible, and that is the correct construction which does harmonize all the parts. In general a meaning will not be given or supplied if the maker in a simple way could, and naturally would, have expressed that meaning, but failed to do so. Where two constructions are possible, one valid and the other invalid, that one will be adopted which is valid. Similarly a construction is adopted which shows a legal purpose rather than an illegal; effective and useful, rather than frivolous; reasonable and just, rather than the contrary; nevertheless the clear language and intent prevails, and an argument as to reasonableness and justice will not prevail against a reading showing clear intent. Neither does bad grammar, nor wrong spelling, spoil what is clear in intent.

Intent. When a construction harmonious throughout cannot be secured, the intent is still the thing sought, and where words are written into a printed instrument or form, the written words are held to, as more surely having been in the minds of the maker of the instrument. The circumstances attending the making of the writing, the purpose in having

« 이전계속 »