STATUTES STATUTORY CONSTRUCTION mcumnma \. A DISCUSSION OF LEGISLATIVE POWERS, CONSTITUTIONAL REGULATIONS RELATIVE TO THE FORMS OF LEGIS- LATION AND TO LEGISLATIVE PROCEDURE TOGETHER WITH AjJ ExPOSTTKm AT LE^SrGTH OF THE PrTN^CIPLES OF iNTBEPRETATIOir AlH) CoGNATE TOPICS BY J. G. SUTHERLAND Author of "A Treatise on the Law of Damages* CHICAGO CALLAGHAN AjSTD COMl^AKY 1891 109/ COFYiaGHT, 1891, BY CALLAGHAN AND COMPANY, STATE JOURNAL PRINTING COM»AKY, Printers and STEBEonrPEKS, MADISON, WIS. PREFACE. Ko apology to the profession is necessary from the author for offering a new book on Statutory Construction, although it is a subject which his predecessors in the same work have treated in a masterly manner. It is a field in no danger of being over-cultivated. The law for the construction of written contracts and other private documents is as certain and well defined as upon any other branch of legal science. This is not equally true of the law for the construction of Written Laws. They deal with subjects of greater complexity; they are the product of so many minds, not having common views, that incongruities cannot be whoUy excluded, and threads of diverse ideas are often interwoven; and, moreover, opposing considerations of broader range press for recognition in their construction. In many ways converse rules overlap, and the lines of distinction are faint and shifting. The natural tendency and growth of the law is towards system and towards certainty, towards modes of operation at once practical and just, by the process of its intelligent judicial administration; but this process is impair-^d by over- work and legislative interference. AVhen it is considered how many legislative bodies there are, and how many independent courts administer their laws, the diversities of construction which have occurred are not sur- prising; these divergencies lead to permanent contrarieties bounded by state lines. Under such circumstances it is im- portant that cognate cases be often collated and their princi- iv PREFACE. pies generalized, with a view to maintaining the domain of the law as a science by remarking the true lines. The frequent assertion of sound doctrine with copious illus- trations is promotive of harmony. The author has embodied in this work the result of thorough reading of the cases, and a thoughtful and earnest endeavor to extract and put in ele- mentary form their best teaching. And he submits it in the modest hope that his fellow-practitioners and the courts may find it useful and contributory to that end. J. G. S. Salt Lake City, December, 1890. TABLE OF CONTENTS. PAET FIEST. The Enactment, Dueation and Pkoof of Statutoet Laws. CHAPTER L THE LEGISLATIVE POWER AS DISTINGUISHED FROM OTHER SOVEREIGN POW- ERS, AND THE GENERAL NATURE OF STATUTORY LAW. Sec. Order of subjects 1 The legislative a distinct power 2 The nature of legislative power 6 Statutory laws, in general 7 Rules of action 9 Legislative rules of action — Essential limitations . . . .10 Statutes have no extraterritorial effect 12 Extraterritorial operation of laws in colonization of a new country . 14 English statutes passed after the establishment of the colonies . . 17 Continuance of laws on change of sovereignty . . . • .19 Laws of states in rebellion . 20 Federal and state statutes 21 Territorial statutes 23 CHAPTER 11 THE LEGISLATURE, AND THE ESSENTIAL PARLIAMENTARY PROCEDURE. The legislature 26 Common-law record of legislation conclusive 27 Our legislative record 28 Effect of constitutional regulations of legislative procedure ... 30 States lioldiug sfcitutes conclusive in Missoiu-i and Mississippi . . 33 Same in Louisiana, etc. ......... 35 Evidence of statutes in New York ; Indiana 3t» Constitutional regulations of procediu-e, where mandatory . . .41 Legislative journals and fdes are evidence ...... 4)i Presumption in favor of vahdity of statutes 4G Required reading of bills 4 Necessity of signatures of presiding oflScers 51 How vahdity of statutes tiied 52 When acts should be approved 52 VI TABLE OF CO:^TTENTS. CHAPTER III. FORMS OF LEGISLATION — REFEKEXCE TO THE ENACTING POWER, AND THE DELEGATION OF IT. Forms of legislation ....... Constitutional regulations of, directory in certain states Mandatory in others As to enacting style ...... Legislative power cannot be delegated . . "NMiat is a delegation of legislative j)ower Exceptions which have been established Effect of submitting laws, etc., to popular vote . Local laws may be submitted .... Sec. 60 62 64 65 67 69 70 71 75 CHAPTER IV. CONSTITUTIONAL REQUIREMENT THAT NO ACT EMBRACE MORE THAN ONE SUBJECT AND THAT IT BE EXPRESSED IN THE TITLE. Substantial agreement of constitutional provisions .... 76 Regarded as mandatory ......... 79 Liberally construed to sustain legislation 82 Provisions must be germane ........ 85 Requirement to state subject in title ....... 86 Provisions can have no greater scope than subject in the bill , . 87 Title need not index details of act 88 " Etc." may increase scope of title 89 Title too general 90 Title should accompany bill in process of passage .... 91 "Wliat general title includes ......... 93 Acts which relate to plurality of similar subjects .... 98 Title and subject of amendatory and supplementary acts . . . 101 Provisions not within subject in the title ...... 102 Effect of act containing more than one subject ..... 103 CHAPTER V. TIME OF TAKING EFFECT. AVhen silent as to commencement 104 Acts of parliament formerly took effect from first day of session . 105 Actual date of passage adopted in this covmtry 106 Legislature may fix the time for act to take effect .... 107 Constitutional regulations 108, 109 Precise time of taking immediate effect 110 Computation of time when to take effect in specific number of days 111-115 CHAPTER VI. REQUIREMENT OF GENERAL LAWS AND THAT THEY BE OF UNIFORM OPERA- TION. Constitutional requirements . 116 They are mandatory 117 General laws, or laws of general nature 120-123 Required uniform operation . 124-126 Special and local laws 127-129 Aiiieudatory and curative acts may not interrupt uniform operation . 130 TABLE OF CONTENTS. Vll' CHAPTER VIL AMENDATORY ACTS. Sec. Constitutional requirement and its purpose 131 Acts expressly amendatory . .132 Amendment " to read as follows" 133 Repeal and re-enactment . . , 134 Amendments by implication not within constitutional regulation . 135 CHAPTER VIIL EEPEALING ACTS. Duration of statutes and power of repeal 13G Express and implied repeal . . . . . . , , .137 Repeals by implication not favored . 13& Implication from negative or affirmative statutes .... 139^ Repealing effect of affirmative statutes conferring power . . . 140 Where there is grant of part of power already possessed . . .141 Repealing effect of acts changing criminal laws 142 Grant of greater or different power or right 145 Repeal by radical change of leading part 14G Repeal of inconsistent legislation 147 Reconcilement of affh'mative statutes 14S Repeal by revision . . . 154 General laws will not repeal those which are special . . , .157 The later law which causes repeal 160 Effect of repeal as to civU rights 163 Effect of repealing penal laws 166 Saving clauses ........... 167 Revival by repeal of repealing statute 168 CHAPTER IX STATUTES VOID IN PART. Statutes may be void in part and vaUd in part . . . Requisite separableness of void pai't ..... Slain piu-pose being imconstitutional, whole act void . Where void part inducement to residue .... Valid part must be complete and accord with legislative intent CHAPTER X. 169 171 174 176 178 JUDICIAL NOTICE AND PROOF OF STATUTES, AND THEIR AUTHORITATIVE EXPOSITION. Judicial notice of statuK*! 181 State statutes in federtil courts 185 Foreign statutes, how proved 188 Functions of coiu-t and jury in respect of foreign laws proved . .192 Private statutes 193 vm TABLE OF CONTENTS. PART SECOND. Statutory Constkuctioa, CHAPTER XL CLASSIFICATION AND DESCRIPTION OF STATUTES. The names applied to statutes Ancient statutes of England . ' . Federal, state, territorial and colonial statutes PubUc and private statutes .... Declaratory statutes Aflh-uiative and negative statutes Pi-eceptive, proliibitive and permissive statutes Prospective and reti'oactive statutes . Eemedial statutes Penal statutes Sec. 195 196 197 198 200 203 205 206 207 208 CHAPTER XIL PARTS OF A STATUTE AND THEIR RELATIONS. The title 210 The preamble 212 The enacting style 214 Tlie purview ......••••• 215 Exceptions, provisos, interpretation, repealing and saving clauses . 216 Pai-tial conflict resolved into an exception 217 Words expounded to accord vrith intent 218 Effect of total conflict 220 Punctuation 232 Headings and marginal notes . . . • • •• • 234 CHAPTER XHL INTERPRETATION AND CONSTRUCTION. The intent of a statute is the lavs^ 234 Its ascertainment the object of intei-pretation 235 236 237 238 239 240 245 246 247 248 Interpretation and construction compared . . . . ' . Intent first to be sought in language of statute itself .... If intent plainly expressed it is to be followed without further inquiry The intention to be ascertained from entu-e statute .... General intent of statute key to meaning of the parts The flexibility of words and claiises to harmonize with the general in- tent Literal sense of words not controlling . . . . Interpretation of words and phrases They should be construed as they are generally understood TABLE OF CONTENTS. IX How general words construed Words having popular and technical meaning Conimon-law words .... Statutory uses of words Change of phraseology of statute Statutes adopted by general reference . Interpretation with reference to grammatical sense ■Correction of mistakes Context and associated words Relative and qualifying words . •General words following particular . Reddendo singula singulis . Interpretation affected by other statutes Construction of statutes in pari materia Interpretation with reference to conunon law Extraneous aids to construction . Judicial knowledge .... Contemporaneous construction . General usage Stare decisis Effects and consequences . Expressio unius est exclusio alterixts . Presumptions ..... Implications and incidents . CHAPTER XIV. STRICT CONSTRUCTION, Literal and strict construction compared Strict construction of penal statutes . Kot construed so strictly as to defeat intention What statutes are penal Revenue laws . . . • • Statutes which impose burden of taxation Statutes delegating the taxing power . Statutes against common right . Statutes of limitations Limitations as to new trials and appeals Statutes interfermg with legitimate industries, etc, Statutes creatmg habihty for death by negUgence ■Civil damage acts .... Grants of titles and franchises . Statutes for exercise of eminent domain Statutes granting power Jurisdiction of courts .... Statutory rights Statutes in derogation of the common law Interpretation clauses .... Statutes affecting statutory policy See. 249 250 253 255 256 257 258 2C0 2G2 2G7 26S 282 283 280 289 292 290 307 308 313 321 325 330 33-t 346 349 356 358 361 362 365 3G0 368 369 3TU 371 373 378 387 390 395 398 4oa 402 407 X TABLE OF CONTENTS. CHAPTER XV. LIBERAL CONSTRUCTION. See; General explanation of subject 404 Remedial statutes in sense of rule that they are liberally construed 409-412 Equitable cousti-uction 413- Liberal construction . . 416 Casus omissus 431 CHAPTER XVL DIRECTORY AND MANDATORY STATUTES. Preliminary explanation 44& ProTisions as to time generally directory 448 Also formal and incidental provisions 451 Statutory bonds differing from statute 453' ]Mandatoiy statutes 454 Statutes which confer new rights, privileges, etc. ..... 458 Statutes which are in form permissive .460 CHAPTER XVIL RETROACTIVE STATUTES. Generally regarded with disfavor 463' Ex post facto laws 465 Reti'ospective laws relating to criminal procedure .... 467 Change of punishment by subsequent legislation .... 470 Laws impairing obhgation of contracts 471 Change of remedy 476 Vested rights inviolable 480 Curative statutes 483 TABLE OF CASES CITED. Aaron v. State, 40 Ala. 307. §§ 16G, 167, 227. Abbott V. Middleton, 7 H. of L. 68. §§ 236, 247. V. Wood, 22 Me. 541. § 360. Abbottsford, The, 98 U. S. 440. §§255, 333. Abel V. Douglass, 4 Denio, 305. § 184. T. Lee, L. R 6 C. P. 371. § 258. Aberdare Local Board v. Hanxtnett, L. R 10 Q. B. 162. § 429. Abernathy v. State, 78 Ala. 411. § 138. Abington v. Cabeen, 106 111. 200. §§ 93, 96. V. Duxbury, 105 Mass. 287. § 206. Ableman v. Booth, 21 How. 506. § 21. Abley v. Dale, 11 C. B. 878. §§ 237, 238. Acker v. Acker, 81 N. Y. 143. § 146. Ackley School Dist. v. Hall, 103 U. S. 135. §§ 93, 95. Adams v. Abram, 38 IMicli. 302. §371. V. Field, 21 Vt. 266. § 333. V. Foster, 20 Jolin. 452. § 339. V. Lockwood, 30 Kan. 773. § 393. V. Nashville, 95 U. S. 19. § 185. V. Oaks, 20 John. 282. § 339. V. Saratoga, etc. R R Co. 10 N. Y. 328. § 387. V. Tm-rentine, 8 Ired. L. 147. §§ 247, 253, 291. V. Tyler, 121 Mass. 380. § 428. V. Webster, 26 La, ^\jin. 142. §§ 93, 103. Adams Exp. Co. v. Owcnsboro, 85 Ky. 265. § 157. Adam son v. Davis, 47 Mo. 268. § 10. Adj. -Gen. v. Ranee Sm-nomoye Dos- see, 9 Moore's Ind. App. 387. § 15. Aechtcrnacht v. Watmouth, 8 Watts & S. 162. § 358. Aerated Bread Co. v. Gregg, L. R 8 Q. B. 355. §§ 247, 254, ^tna Ins. Co. v. Harvey, 11 Wis. 394. § 336. Ahl v. Rhoads, 84 Pa. St 319. § 206. Aicard v. Daly, 7 La. Ann. 612. §314. Aikin v. Western R R. Co. 20 X. Y. 370. §229. Alabama Ins. Co. v. Boykin, 38 Ala. 510. § 483. Alabama Med. College v. Muddon, 46 Ala. 603. § 162. Alberson v. Mayor, 82 Ga. 30. § 101. Albei-tson v. Robeson, 1 DalL 9. § 104. V. State, 9 Neb. 422. §§ 160, 220. Albon v. Pyke, 4 M. & Gr. 424 § 396. Albright v. Lapp, 26 Pa, St, 99, § 342. V, Payne, 43 Ohio St 8, § 232. Alcorn v. Hamer, 38 Miss, 652. §§ 67, 72, 75. Alderman v. Phelps, 15 ^lass. 225. §115. Aldrich v. Parnell, 147 Mass. 409. §377, Aldridge v, Mardoff, 32 Tex, 204. § 240, v, Tuscumbia, etc, R R Co, 2 St & P, 199. § 480. V. Williams, 3 How. 9. § 300. Alexander v. Bennett, 60 N. Y. 204. §385. V. Buruham, 18 Wis. 199. § 298. v. State, 56 Ga, 478. § 333. V. State, 9 Ind. 337. § 133. V. Saiilsbury, 37 Ala, 375. § 400. V. Worthington, 5 Md. 471. §§ 215, 236, 237. xu CASES CITED. Alina, The, 5 Ex. Div. 227 ; 5 Prob. DiT. 138. § 268. Alkins V. Jupe, 2 C. P. Div. 375. § 210. Allaire v. Howell Works Co. 14 N. J. L. 21. § 358. Allegheny Co. Home's Case, 77 Pa. St 77. §§103,170. Allen's Appeal, 81* Pa. St. 302. § 272. Allen's Appeal, 99 Pa. St. 196. §§ 247, 253, 291. Allen V. Hall, 14 Bush, 85. § 100. T. Hirsch, 8 Ore. 412. § 193. T. Louisiana, 103 U. S. 80. §§ 169, 174. V. Manasse, 4 Ala. 454. § 422. V. Massey, 17 WaU. 354. § 185. V. Parish, 3 Ohio, 198. § 246. V. Pioneer Press, 40 Minn. 117. §§ 122, 128. V. Ramsey, 1 Mete. (Ky.) 635. §256. V, Rovmdti-ee, 1 Spears, 80. § 424. v. Russell, 39 Oliio St. 336. § 232. V. Savannah, 9 Ga. 286. § 322. V. Scharinghausen, 8 Mo. App. 229. g 306. V. Stevens, 29 N. J. L. 509. § 358. V. Tison, 50 Ga. 374. §§ 93, 96, 98. V. Young, 76 Me. 80. § 243. V.Watson, 2 Hill (S. C), 319. §§ 184, 190. AUen, BaU & Co. v. Mayor, 9 Ga. 286. §257. Allentown v. Hower, 93 Pa. St. 332. §198. Alley in Kritztown, In re, 2 Woodw. Dec. (Pa.) 373. §204. Allliusen v. Brooking, L. R. 26 Ch. Div. 564 §§ 463, 484. Allman v. Owen, 31 Ala. 167. § 302. Allor V. Wayne Co. Auditors, 43 Mich. 76. §§ 92, 211. Allsop V. Day, 7 H. & N. 463. § 402. Alma Spinning Co., In re, L. R. 16 Ch. Div. 687. §§ 322, 324. Almy v. Harris, 5 John. 175, §§ 202, 204, 325, 399. Alsbath V. PhU brick, 50 N. J. L. 581. §128. Alter V. Shepherd, 27 La, Arm. 207. §§ 363, 420. Altrincham Union v. Cheshire Lines Committee, L. R. 15 Q. B. Div. 597. §199. Alvord V. Lent, 23 Mich. 372. §§ 238, 372. V. Little, 16 Fla. 158. § 10. American Fiu* Co. v. United States, 2 Pet. 367. § 349. American Ins. Co. v. Canter, 1 Pet. 541. §§ 19, 24, 25, 184. American Printing House v. Dupuy, 37 La. Ann. 188. § 88. American Print Works v. Lawrence, 23 N. J. L. 590. §§ 169, 191. American Ti-ansportation Co. v. Moore, 5 Mich. 368. § 271. Ames V. McCamber, 124 Mass. 85. §192. V. Martin, 6 Wis. 361. § 420. Anisbry v. Hinds, 48 N. Y. 57. § 206. Amy V. Watertown, 130 U. S. 301. §187. Anderson v. Anderson, 23 Tex. 639. §297. V. Commonwealth, 18 Gratt. 295. §135. V. Dunn, 6 Wlieat. 204. § 8. V. Foiger, 11 La. Ann. 269. § 297. V. Herriott, 4 Cow. 508. § 12. V. HiU, 42 N. J. L. 351. § 157. V. Hill, 54 Mich. 477. § 90. V. Levely, 58 Md. 192. §§68, 342. V. Trenton, 42 N. J. L. 486. § 128. Andi-ews v. Hoxie, 5 Tex. 117. §§ 184, 192. V. King, 77 Me. 224. § 333. V. Knox Co. 70 lU. 65. § 298. V. People, 75 lU. 605. § 154. V. RusseU, 7 Blackf. 474. § 164. V. Schott, 10 Pa. St. 47. § 364. V. Shaffer, 12 How. Pr. 441. § 338. V. United States, 2 Story, 202. §§ 208, 347, 350. Angela de Sentamanat v. Soule, 33 La. Ann. 609. §§ 260, 261. Anglo-Greek Steam Co., In re, L. R 2 Eq. 1. § 208. CASES CITED. XIU Anna, The, L. R. 1 P. Div. 259. §§ 309, 310. Annable v. Patch, 3 Pick. 360. g 206. Annan v. Houck, 4 CJUl, 332. 5^ 414. Anness v. Providence, 13 11. L 17. §392. Anonymous, 2 Stew. 228. § 483. Anonymous, 1 Strange, 86. § 115. Anonymous, 3 Hill, 375. § 115. Ansley v. Meikle, 81 Ind. 260. § 190. Antelope, The, 10 Wheat. 66. § 13. Anthony v. State, 29 Ala. 27. § 256. Appeal Tax Court v. Western, etc. R. R. Co. 50 Md. 274 §§ 138, 463, 480. Apple V. Apple, 1 Head, 348. §§ 247, 253, 291. Archbishop Canterbury's Case, 2 Rep. 46a. g 277. Arding v. Bonner, 3 Jur. (N. S.) 763. §300. Argeuti v. San Francisco, 16 Cal. 282. g380. ArgueUo v. United States, 18 How. 550. § 181. Aritt V. Elmore, 3 Bailey, 595. § 425. Armstrong v. Berreman, 13 lud. 423. §132. V. Ross, 20 N. J. Eq. 109. § 458. V. Toler, 11 Wlieat 358. § 336. V. United States, 1 Pet. C. C. 46. § 453. Arnold v. KeUey, 5 W. Va. 446. §§ 10, 119. V. United States, 9 Cranch, 104 §g 110, 113. Amoult V. New Orleans, 11 La. Ann. 54 § 133. Arthur v. Adam, 49 Miss. 404. § 451. V. Bokeuham, 11 Mod. 150. § 291. V. Dodge, 101 U. S. 34. § 156. V. Homer, 96 U. S. 137. § 138. V. Morrison, 96 U. S. 108. §§ 238, 254 Arundel v. McCulloch, 10 INIass. 70. §g 386, 388. Ashbury Co. v. Riche, L. R. 7 H. of L. 653. § 269. Ashford v. Walkins, 70 Ala. 156. § 194. AslUey, Appellant, 4 Pick. 21. §§ 154 201, 329. Asliley V. Harrington, 1 D. Chip. 348. §133. V. Martin, 50 Ala. 537. § 298. Asmale v. Goodwin. 2 Salk. 624 § 115. Aspinwall v. Daviess Co. 22 How. 364. §164 AspUn V. Blackman, 7 Ex. 386. §462. Assessor v. Osboi-nes, 9 Wall 567. §§ 165, 464 Atcheson v. Everitt, 1 Cowp. 391. §§ 410, 416, 430. Atkins v. Disintegratmg Co. 18 Wall. 272. §§ 215, 234 246. V. Kinnan, 20 Wend 249. §§ 390, 454 Atkinson v. Atkinson, 15 La. Ann. 491. §184 V. Duffy, 16 Minn. 49. §§ 82, 88, 92, 93. V. Dunlap, 50 Me. 111. §§ 10, 206. V. Rhea, 7 Humph- 59. §447. Atlantic City Water-works Co. v. Consumers' Water Co. 44 N. J. Eq. 427. § 128. Attorney-General v, Amos, 60 Mich. 372. § 94 v. Baker, 9 Rich. Eq. 521. § 447. V. Bank, 5 Ired. Eq. 71. §§ 308, 310. V. Brown, 1 Wis. 513. §§ 136, 202. V. Brunst, 3 Wis. 787. § 356. V. Chelsea Water-works Co., Fitzgib-195. §§ 160, 331, 328. V. Day. 1 Ves. Sr. 331. § 427. V. Detroit, etc. Co. 3 Mich. 138. §§ 239, 340. V. Donaldson, 10 31. & W. 117. §333. V. Edison Telephone Co. of Lon- don, L. R. 6 Q. B. Div. 244. §383. V. Erie, etc. R R Co. 55 3Iich. 21. § 193. V. Foi-ster, 10 Ves. 338. § 312. V. Joy, 55 Mich. 94. §§ 40, 41, 92. XIV CASES CITED. AtU>ruey-Geueral v. Knock- A-SiBg, L. R. 5 P. C. 179. §§218,246. V. Lamplough, L. R. 3 Ex. Div. 223. glG2. T. Lockwood, 9 M. & W. 391. g§ 143, 246, 258. V. Middleton, 3 H. & N. 138. § 362. V. Powis, Kay, 186. § 247. V. Preston, 56 Mich. 181. § 311. V. Primate, 1 Jebb & Symes, 317. §307. V. Rice, 64 Mich. 385. § 91. V. Sillem, 2 H. & C. 508. §§ 237, 238, 239, 300. V. Smith, 31 Mcli. 359. §§ 321, 407. V. Stewart, 2 Meriv. 162. § 184. T. Weymouth, 1 Amb. 22. §§ 196, 210. Atwater v. Schenck, 8 Wis. 160. §298. AtweU V. Grant, 11 Md. 104. §§ 164, 483. Aubert v. Maze, 2 B. & P. 371. § 336. Auditor V. Atcliison, etc. R. R. Co. 6 Kans. 500. §§ 3, 10, 68. V. Haycraft, 14 Bush, 284. § 300. Augusta V. Sweeney, 44 Ga 463. §473. Aui'ora, Cargo of Brig, v. United States, 7 Cr. 382. §§ 168, 182. Aurora, etc. Turnpike v. Holthouse, 7 Ind. 59. § 206. Ausman v. Veal, 10 Ind. 355. § 305. Austin V. Bunyard, 6 B. & S. 687. §324. V. Carter, 1 Mass. 230. §§ 386, 388. V. Gulf, etc. R. R. Co. 45 Tex. 234 §287. V. Murray, 16 Pick. 121. § 370. V. State, 71 Ga. 595. § 347. V. Stevens, 24 Mo. 520. § 206. V. The Aldermen, 7 Wall. 694. §171. Avanzo v. Mudie, 10 Ex. 203. § 458. Averill v. Perrott, 74 Mich. 296; 41 N. W. Rep. 929. § 397. Avery v. Groton, 36 Conn. 304u §§ 387, 416. V. Pixley, 4 Mass. 460. §§ 251^ 253. V. Stewart, 2 Conn. 69. § 115. Aycock V. Martm, 37 Ga. 124. § 478, Ayeridge v. Town Commissionere, 60' Ga. 405. §g 94, 102. Ayers v. Knox, 7 Mass. 306. §§ 218,- 223, 246, 428. Ayres v. Methodist Church, etc. 3- Sandf. 368. § 184. Babcock v. Goodrich, 47 CaL 48a §336. V. New J. Stockyard Co. 20 N. J. Eq. 296. § 381. Bach V. Smith, 3 Wash. T'y, 145. §336. Bacliman v. Chrisman, 23 Pa, St 162. §206. Backes v. Dant, 55 Ind. 181. §§ 164,^ 376. Backus V. Lebanon, 11 N. H. 19. g 473, BackweU's Case, 1 Vem. 152. § 460. Bacon v. Kennedy, 56 Mich. 329, §§ 113, 114. Bagg's Appeal, 43 Pa, St. 512. §§ 10, 484. Bagley v, Emberson, 79 Mo. 139. §458. BaUey \. Bailey, 21 Gratt. 43. § 482. V. Bailey, L. R. 13 Q. B. Div. 859. §204. V. Bryan, 3 Jones' L. (N. C.) 357. §§ 139, 207, 290, 325, 392, 393. V. Commonwealth, 11 Bush, 688; §§ 218, 240, 251, 331. V. Harris, 12 Q. B. 905. § 336. V. Kalamazoo Pub. Co. 40 Mcli. 251. § 304. V. McDoweU, 2 Harr. 34. § 190. V. Maguire, 22 WalL 226. § 364. V. Mason, 4 Mmn. 546. § 163. V. R. R. Co. 4 Harr. 389. § 482. V. Rolfe, 16 N. H. 247. §§ 308, 310, 312. Bailie's Case, 1 Leach's Cas. 396» §210. CASES CITED. XV Baines v. Williams, 3 Ired. L. 481. §368. Baii'd V. Bank of Washington, 11 Serg. & R 418. § 385. Baker, In re, 2 H. & N. 219. § 143. Baker v. Baker, 13 CaL 87. §§ 200, 291. V. Compton, 52 Tex. 252. § 104. V. Lorillard, 4 N. Y. 261. § 314. V. Taylor, 2 Blatck 82. § 458. V. TerreU, 8 Minn. 195. § 400. V. Wright, 1 Bush, 500. § 20. Baklro v. Tolmie, 1 Ore. 176. § 426. Baldwin v. Franks, 120 U. S. 678. §173. V. Newark, 38 N. J. K 158. §206. Balfour v. Malcohii, 8 CL & Fin. 500. §396. Ball V. Bullard, 52 Barb. 141. § 146. V. Lastinger, 71 Ga. 678. §§ 392, 393. Ballard v. Ward, 89 Pa. St. 358. § 206. BaUin v. Ferst, 55 Ga, 546. § 167. Ballon V. Black, 17 Neb. 389. § 54 Ballston Spa Bank v. Marine Bank, 16 Wis. 120. § 139. Baltimore, etc. R. R. Co. v. Glenn, 28 Md 287. §§ 190, 192. V. Grant, 98 U. S. 398. §§ 165, 464 V. Haiver, 12 Am. & Eng. R R. Gas. 149. §371. V. KeUy, 24 Md. 271. § 371. V. Trainor, 33 Md. 542. § 371. V. Wilson, 2 W. Va. 528. § 341. Baltimore, etc. Turnpike Co. v. Union R R Co. 35 Md. 224 § 388. Bancroft v. Dumas, 21 Vt 456. § 336. Bane v. Wick, 6 Oliio St 13. §§ 315, 320. Bangs V. Snow, 1 Mass. 181. § 380. Bank v. Dalton, 9 How. 522. § 427. V. Ibbotson, 5 Hill, 461. § 207. Bank for Savings v. Tlie Collector, 3 Wall 495. §§ 162, 222. Bank of Alexandria v. Dyer, 14 Pet. 141. § 424. Bank of Augusta v. Earle, 13 Pet. 519. §§ 12, 13, 385. Bank of Columbia v. Fitzhugh, 1 H. & G. 239. § 295. Bank of Commonwealth v. Spilman, 3 Dana, 150. § 193. Bank of the Dominion v. McVeigh, 20 Gratt. 457. § 473. Bank of England v. Anderson, 3 Bing. N. C. 666. § 307. Bank of Gallipolis v. Domigan, 12 Ohio St. 220. § 398. Bank of Hamilton v. Dudley, 2 Ptt. 492. §§ 165, 169. Bank of Indiana v. New Albany, 11 lud. 139. § 102. Bank of Ireland v. Evans' Charities. 5 H. of L. Cas. 405. § 308. Bank of Louisiana v. WiUiams, 46 MLss. 618. § 378. Bank of Mobile v. Meagher, 33 Ala. 622. § 333. Bank of Moni-oe v. \\'idner, 11 Paige, 529. § 394 Bank of Natchez v. State, 6 Sm. & M 599. § 473. Bank of Newberry v. Railroad Co., 9 Rich. 495. § 193. Bank of Pennsylvania v. Connuon- wealth, 19 Pa, St. 144. § 300. Bank of Rome v. Village of Rome, 18 N. Y. 38. § 75. Bank of St Marys v. State, 12 Ga. 475. §§ 163, 166. Bank of the State v. Bank of Cayie Fear, 13 Ired 75. § 473. Bank of Toledo v. Bond, 1 Oliio St 622. § 206. Bank of United States v. Halstead, 1 Wheat 51. § 68. V. Lee, 13 Pet 107. § 444. V. McKenzie, 2 Brock. 393. § 222. V. Merchants' Bank, 7 Gill, 415. §294 Bank of Utica v. Smcdes, 3 Cow. 684 § 193. Banks, Ex parte, 28 Ala, 28. g§ 333, 462. XVI CASES CITED. Banks t. Cage, 1 How. (Miss.) 293. § 302. T. Darden, 18 Ga, 318. §§ 207, 393. 393. Bannon t. State, 49 Ark. 167. § 125. Baptiste v. De Volunbran, 5 H. & J. 86. § 294. Barber, Cont. Election of, In re, 86 Pa. St 393. § 203. Barber v. Gamson, 4 B. & Aid. 281. §463. V. Waite, 1 Ad. & E. 514. § 340. Bard v. Yohn, 26 Pa. St. 483. §-377. Barden v. Crocker, 10 Pick. 383. §203. Bai-ker v. BeU, 46 Ala. 316. § 138. V. Esty, 19 Vt. 131. §§ 234, 246, 253. V. Jackson, 1 Paine, 559. § 187. V. MUlard, 16 Wend. 573. § 426. V. Pabiier, L. R. 8 Q. B. Div. 9. §455. Barkraan v. Hopkins, 6 Eng. (Ark.) 157. § 193. Barks v. Woodi-uff, 13 111. App. 96. §374. Barnard v. Viele, 21 Wend. 89. § 454. Bamawell v. Threadgill, 5 Ired. Eq. 86. §396. Barnes v. Doe, 4 Ind. 133. § 363. V. Mayor, 19 Ala. 707. § 463. V. Supervisors, 51 Miss. 305. § 75. V. Thompson, 2 Swan, 317. § 462. V. Williams, 3 Ii-ed. L. 481. § 436. Bamet v. Bamet, 15 S. & R. 73. § 483. Bamett, Ex parte, L. R 4 Ch. 351. §333. Bamett v. ScuUy, 56 Mich. 374. § 457. Barret v. Chitwood, 2 Bibb, 431. §435. Barrett v. Dolan, 130 Mass. 366. §§ 371, 376. Barrows v. Downs, 9 R. I. 447. § 190. Barry v. Merchants' Exchange Co. 1 Sandf. Ch. 289. § 385. V. Randolph, 3 Binn. 277. § 342. V. ViaU, 13 R. 1. 18. § 64. Bartemeyer v. Iowa, 18 WalL 139. §370. Bartlet v. King, 12 Mass. 545. § 154.. V. Viner, Skinner, 332. § 335. Bartlett v. Board, 59 lU. 364. § 453. V. Morris, 9 Port. 266. §§ 199, 210, 238. V. O'Donoghne, 72 Mo. 563. § 458. Barto V. Himrod, 8 N. Y. 483. §§ 67, 72, 180. Barton v. Gadsden, 79 Ala. 495. § 167. V. Hannant, 3 B. & S. 16. § 213. V. McWhinney, 85 Ind. 481. § 64. V. Mon-is, 15 Ohio, 408. § 206. V. Port J. etc. Plk. R. Co. 17 Barb. 397. § 336. Bartrull v. Remey, 15 Iowa, 257. §§ 167, 206. Basnett v. Jacksonville, 19 Fla. 664.. §§ 132, 133. Bass V. Mayor, etc. 30 Ga. 845. § 483.. Bassett v. United States, 3 Ct. of CI. 448. §§ 104, 201. Batchelder v. Shapleigh, 10 Me. 135. §422. Bates V. Clark, 95 U. S. 204. § 162. V. Davis, 76 Ilk 333. § 374. V. KimbaU, 2 D. Chip. 77. § 10. V. Nelson, 49 Mich. 459. § 87. V. Relyea, 23 Wend. 340. § 313.- V. Stearns, 23 Wend. 482. § 482. Battle V. Shivers, 39 Ga, 405. § 211. Baugher v. Nelson, 9 Gill, 299. §§ 474, 480, 484. Bavim V. MuUen, 47 N. Y. 577. § 400. Baumgartner v. Hasty, 100 Ind. 575. §81. Bay V, Gage, 36 Barb. 447. §§ 133, 306, 406. Bayard v. Smith, 17 Wend. 88. §§ 208 358. Bay City, etc. R. R Co. v. Austin, 21 Mich. 390. §§ 163, 166, 308, 358, Bay Co. v. Brock, 44 Mich. 45. § 453. Bayley v. Hazard, 3 Yerg. 487. § 454. Bayly v. Chubb, 16 Gratt 284. §§ 181, 293. Baxter v. Tripp, 12 R I. 310. §§ 321, 407. Beach v. Botsford, 1 Doug. (Mich.) 199. §§ 337, 391. CASES CITED. XV 11 Beach v. Reynolds, C4 Barb. 506. §463. V. Viles, 2 Pet. 678. § 186. BeaU V. Beall, 8 Ga. 210. j;g 400, 442. V. riarwood, 2 Har. & J. 167. §§219, 234. Beals V. Hale, 4 How. 37. §§ 138, 153. Beams, Matter of, 17 How. Pr. 459. §482. Bean v. Briggs, 4 Iowa, 464. § 184. Bear Brothers v. Marx, 63 Tex. 298. §§ 240, 262. Bearcamp River Co. v. Woodman, 2 Greenlf. 404. § 202. Beard v. Basye, 7 B. Mon. 144. §§ 12, 13, 188. v. Rowan, 9 Pet. 301. § 212. Beari^ark v. Hutchinson, 7 Bing. 186. §434. Beatty v. Biimes, 8 Cranch, 98. § 426. V. People, 6 Colo. 538. §§ 167, 225. Beaty v. Knowler, 4 Pet 152. §§ 193, 365, 387. Beaumont v. Irwin, 2 Sneed, 291. § 223. Beaver County Indexes, 6 Pa. County Ct. 525. § 128. Beawf age's Case, 10 Coke, 996. §§ 246, 436. Bechtol V. Cobaugh, 10 S. & R. 121. §163. Be.ke v. Smith, 2 M. & W. 195. §§ 246, 258, 419. Beckett v. Union town Building Asso. 88 Pa, St 211. § 456. Beckford v. Hood, 7 T. R 620. § 399. Beckman v. Stanley. 8 Nev. 257. §458. Beckwith v. Racine, 7 Biss. 142. §473. Bedell v. Janney, 9 lU. 193. § 367. Bedford v. Shilling, 4 S. & R 411. §§ 11, 206, 482. Beebe v. Scheldt 13 Ohio St 406. §395. Beecher v. Baldy, 7 Mich. 488. § 398. Beekman Street Matter of, 20 Jolm. 269. § 391. Beer Co. v. Massachusetts, 97 U. S. 25. §473. Beers v. Haughton, 9 Pet 359. § 478. V. Phoiuix Glass Co. 14 Baib. 358. § 385. V. Walliizer, 43 Hun, 254. § 375. Beeson v. Green Mountain G. ]VL Co. 57 CaL 20. § 371. Belfast V. Fogler, 71 Me. 403. §§ 167, 254 Bell V. Bai-net 2 J. J. Marsh. 510. §306. y. Holtby, L. R. 15 Eq. 178. § 234. V. Jones, 10 Md. 322. § 322. V. MoriLson, 1 Pet 315. §§ 186, 368. V. New York, 105 N. Y. 139. §246. V. Zelmer, 75 Mich. 66. § 376. Bellmeyer v. Independent Dist etc. 44 Iowa, 564. § 381. BeUville R R Co. v. Gregory, 15 III. 20. §§ 96, 215. BeUville S. Bank v. Richardi, 56 ilich. 453. § 190. Beltzhoover v. Gollings, 101 Pa. St 293. § 454. Belvidere v. WaiTen R R Co. 34 N. J. L. 193 ; 35 id. 587. §§ 163, 166. Beniis v. Becker, 1 Kan. 226. § 336. V. Leonard, 118 Mass. 502. §§ 111,. 112, 113. V. McKenzie, 13 Yla. 553. § 184. Bender v. State, 53 Ind. 254. § 39. Benkert v. Benkert, 32 CaL 467. §482. Benner v. Porter, 9 How. 242. §§24, 25. Bermet v. Hargus, 1 Neb. 419. §§ 163, 164. Bennett v. Bennett Deady, 309. §§22, 185. V. Birmingham, 31 Pa. St 15. §365. V. Drain Commissioner, 56 Mich. 634. §§ 456, 457. V. McWhorter, 2 W. Va. 441. §386. •xvm CASES CITED. Bennett v. North British Ins. Co. 8 Daly, 417. §306. V. State, 2 Yerg. 472. §§ 143, 166. V. The Auditor, 3 W. Va. 441. §833. V. Worthmgton, 24 Ark. 487. §§ 236, 332. Bensley v. Bignold, 5 B. & Aid. 335. §335. V. Ellis, 39 Cal. 309. § 206. T. Mountain Lake Water Co. 13 CaL 306. §§ 363, 387. Bentley v. Eotherham L. Board, L. R. 4 Ch. Div. 588. §§ 210, 212. Benton v. Wickwire, 54 N. Y. 226, §§ 133, 237. Berg V. Baldwin, 31 Minn. 541. § 420. Berger v. Duff, 4 Jolin. Ch. 368. § 67. Berkowitz v. Lester, 121 lU. 999. § 396. Berkshire v. Mss. etc. R'y Co. 28 Mo. App. 225. § 154. Berley v. Rampacher, 5 Duer, 183. §206. Berliner v. Waterloo, 14 Wis. 378. §§ 42, 109, 294. Berluchaux v. Berluchaux, 7 La. 539. §181. Bemier v. Becker, 37 Ohio St. 72. §201. Berne v. Bank of England, 9 Ves. 347. §297. Berry v. Baltimore, etc. R. R. Co. 41 Md. 446. §§ 40, 42, 43, 45, 110, 169, 181, 294. V. Bellows, 30 Ark. 198. § 20. V. Claiy, 77 Me. 482. §§ 215, 240, 482. V. Clements, 9 Humph. 312; 11 How. 398. § 111. Bertholf v. O'Reilly, 74 N. Y. 509. §373. Best V. Gholson, 89 IlL 465. §§ 207, 454, 455. Bestor v. Powell, 7 111. 119. § 247. Bethlehem v. Watertown, 51 Conn. 490. § 202. Bettis V. Taylor, 8 Port. 564. § 347. Bevena v. Baxter, 23 Ark. 387. §§ 193, 198. Biagi V. Howes, 66 Cal. 469. § 369. Bibb County Loan Asso. v. Richards, 21 G a. 592. § 49. Biddis V. James, 6 Binn. i321. § 190. Bidwell V. Whitaker, 1 Mcli. 469. § 324. Biffin V. Yorke, 5 Man. & Gr. 437. §238. Big Black Creek, etc. Co. v. Common- wealtli, 94 Pa. St. 450. §§240, 246, 292, 800. Bigelow V. Forrest, 9 WalL 339. § 31 1. V. Gregory, 73 IlL 197. § 456. V. WiUson, 1 Pick. 485. §§ 110, 111, 114 Biggs V. McBride, 17 Oregon, 640. §108. Billerica v. Chelmsford, 10 Mass. 394. §366. BilJiugs V. Baker, 28 Barb. 343. §§ 140. 400, 442. BUhngslea v. Baldwm, 23 Md. 85. §286. BiUingsley v. Dean, 11 Ind. 331. §297. ■ Bingham v. Camden, 40 N. J. L. 156. §127. V. Supervisors, 8 Minn. 441. § 229. Bingham's Trustees v. Guthrie, 19 Pa. St. 418. § 439. Bingham ton Bridge, 3 Walk 51. §378. Binney v. Canal Co. 8 Pet. 201. §246. Binz V. Weber, 81 lU. 288. §§ 91, 96. Bmzel V. Grogan, 67 Wis. 147. § 422. Birchard v. Booth, 4 Wis. 67. § 449. Bnd V. Commonwealth, 21 Gratt. 800. §§ 185, 293. V. County of Wasco, 3 Ore. 282. §§ 135, 138. V. Jones, 37 Ark. 195. § 224. Bu-dsaU V. Cai-rick, 3 Nev. 154 §§ 56, 57. Birmingham, etc. St R'y Co. v. Bir- mingham St. R'y Co. 79 Ala 465. §378. Bishop V. Barton, 2 Hun, 436. §§ 211, 218, 239, 284 OASES CITED. XIX -Bishop V. Globe Co. 135 Mass. 132. §14. V. Jones, 28 Tex. 294. § 306. Bissell V. Bissell, 11 Barb. 96. § 115. Bitters v. Board, 81 Ind 125. § 92. Bittle V. Stuart, 34 Ark. 224 §§ 1(59, 173. Black V. Cohen, 52 Ga. 626. §§ 77, 93. V. Johns, 68 Pa. St. 83. § 111. V. Tricker, 59 Pa. St 13. § 283. T. Trower, 79 Va 123. §§ 173, 174 Blackford v. Hui-st, 26 Gratt 206. §§ 156, 161. Blackman v. Gordon, 2 Rich. Eq. 43. §480. V. Nearmg, 43 Conn. 56. § 114 Blackwell v. State, 45 Ark. 90. §§ 142, 149. Blackwood v. Queen, L. R. 8 App. Cas. 96. § 246. V. Van Vliet, 30 Mich. 118. §§ 321, 407, 478. Bladen v. Philadelphia, 60 Pa. St. 464 §§ 139, 203, 447, 454, 459. Blain v. BaUey, 25 Ind. 165. §§ 158, 202. Blair v. Caxy, 9 Wis. 543. §§ 206, 482. V. Ridgely, 41 Mo. 63. § 21. Blake v. Brackett, 47 Me. 28. § 260. V. Crowningshield, 9 N. H. 304 §111. V. Heyward, Bailey's Eq. 208. §324 V. Midland R'y Co. 10 L. & Eq. 437. §371. V. National Banks, 23 WalL 307. §300. Blakemore v. Dolan, 50 Ind. 194 §§ 131, 132. Blaieney v. Blakeney, 6 Port 109. §§ 410, 416. Blanchard v. Russell, 13 Mass. 1. §191. V. Sprague, 2 Story, 164 § 380. V. Sprague, 3 Sumn. 279. §g 218, 261, 442, 463. b Blanding v. Burr, 13 CaL 357. §§ 71, 75. Blankard v. Galdy, 2 Salk. 414 §§ 15, 19, 184 Blasdell v. State, 5 Tex. App. 263. §222. Blatz V. Rohrbach, 42 Hun, 402. §375. Blemer v. People, 76 IlL 265. §§ 252, 260. Blessing v. Galveston, 43 Tex. 641. §§ 41, 46. Block V. State, 66 Ala. 493. § 85. Blodgett In re, 27 Hun, 12. § 92. Blodgett, Matter of, 89 N. Y. 392. §87. Blood V. Fairbanks, 50 CaL 420. §§ 223, 224. V. Humphrey, 17 Barb. 660. §338. Bloodgood V. Grasey, 31 Ala. 575. §§ 191, 320, 333. Bloom V. Burdick, 1 Hill, 130. §§ 392, 454 V. Richards, 2 Ohio St 387. §336. Bloomer v. StoUey, 5 McLean, 158. §136. Blue V. McDuffie, Busbee, L. (N. C.) 131. § 212. Bly V. National Bank, 79 Pa. St 453. §336. Board of Assessors v. Central R. R. Co. 48 N. J. K 146. § 127. Board of Commissioners v. Baker, 80 Ind. 374 §g 86, 87, 102. V. Potts, 10 Ind. 286. §§ 145, 154 V. SUver, 22 Ind. 491. § 170. V. Spitler, 13 Ind. 235. § 298. V. State, 9 Gill, 379. § 213. Board of Education v. Barlow, 49 Ga. 241. §77. Board of Health v. Hill, 13 C. B. (N. S.) 483. §301. Board of Supei-risors v. Auditor-Gen- eral, 65 IMich. 408. § 95. Boas V. Nagle, 3 S. & R 253. § 342. Boatwright v. Faust^ 4 McCord, 439. §480. CASES CITED. Bock V. Laiiman, 24 Pa. St 435. g§ 1S4, 190, 192. Bode V. State, 7 Gill, 328. § 246. Bodge V. Hughes, 53 N. H. 614. § 373. Boehm V. Engle, 1 DalL 15. §§ 15, 184. Bogai-dus V. Trinity Church, 4 Paige, 198. §15. Boggs V. Reed, 5 Iilart. 673. § 297. Boice V. Boice, 27 Minn. 371. § 478. Boismai-e v. His Creditors, 8 La. 315. §168. BoUin V. Shiner, 12 Pa- St. 205. § 252. Bolton V. King, 105 Pa. St. 78. §§ 207, 440. Bolton School, Ex parte, 2 Bro. C. C. 662 ; Madd. Ch. 719. § 194 Bond Debt Cases, 12 S. C. 200. §§ 41, 48. Bond V. Hopkins, 1 Sch. & Lef. 433. §427. V. Munro, 28 Ga. 597. §§ 206, 463, 481. Bonds V. Greer, 56 Miss. 710. § 237. Bonham v. Board of Education, 4 Dill 156. §204. Booker v. McRoberts, 1 CaU, 243. §§ 202, 399. Boon V. Bowers, 80 Miss. 246. §§ 194, 315. V. Juhet, 2 HL 258. § 222. Boone v. State, 12 Tex. App. 184. § 75. Boone Co. v. Keck, 31 Ark. 387. §428. Booth V. Ibbotson, 1 Y. & J. 360. §307. V. Kitchen, 7 Hun, 260. §§ 333, 337. V. State, 4 Conn. 65. § 367. V. WiUiams, 2 Ga. 252. § 411. Boothroyd, In re, 15 M. & W. 1. §210. Borden v. State, 11 Ark. 519. § 314. Borrowdale, The, 39 Fed. Rep. 376. §133. Borst V. Griffin, 5 Wend. 84 § 115. Bosanquet v. Woodford, 5 Q. B. 310. §448. Bosley v. Daviee, 1 Q. B. Div. 84 § 256. Bosley v. Mattingly, 4 B. Mon. 8^»- §§ 238, 407. Boston V. Cummins, 16 Ga. 102. §§ 105, 107. Boston, etc. Co. v. Gardner, 2 Pick. 33. §441. Boston, etc. R. R Co., Matter of, 53 N. Y. 574 § 388. Boston, etc. R. R. Co. v. Cilley, 44 N, H. 578. § 206. Boston Min. Co., In re, 51 Cai 624 §§ 210, 211. Boston Water Power Co. v. Boston, etc. R R Co. 23 Pick. 360. § 388. Botanic Med. College v. Atchinson, 41 Miss. 188. §§ 191, 256. Bouknight v. Epting, 11 S. C. 71. §480. Bouldin v. Lockhart, 1 Lea, 195. §48. V. Phelps, 30 Fed. Rep. 547. § 295. Boulton V. BuU, 2 H. BL 499. § 194 V. Royce, 10 Phila. 559. § 168. Bound V. R R Co. 45 Wis. 543. §§ 42, 45, 46. Bourgigncn Building Asso. v. Com- monweiltla, 98 Pa, St. 54 §§ 136. 266. BoutweU V. Foster, 24 Vt. 485. § 336. Bovard v. Kettering, 101 Pa. St 181. §338. Bowen, Matter of WiU of, 34 CaL 682. § 395. Bowen v. Lease, 5 Hill, 221. §§ 137, 138, 140, 152. Bower v. Hope Life Ins. Co. 11 H. of L. Cas. 389. § 462. Bowers v. Green, 1 Scam. 42. § 316. Bowles V. Cochran, 93 N. C. 398. § 283. Bowman v. BIyth, 7 EL & BL 47. §§ 139, 355. T. Cockrill, 6 Kan. 311. §§ 84, 93, 96. V. Wood, 41 IlL 203. §§ 111, 113, 114 Bows V. Fenwick, L. R 9 C. P. 339. §280. Bowyer v. Camden, 50 N. J. L. 87. §159. CASES CITED. XXI Boyce v. Holmes, 2 Ala. 54. § 206. V. Tabb, 18 Wall. 546. § 429. V. Wabash R'y Co. 63 Iowa, 70. §14. Boyd V. Alabama, 94 U. S. 645. § 318. V. Bi-yant, 35 Ark. 69. § 75. T. Hood, 57 Pa, St. 98. § 363. V. Lowry, 53 Miss. 353. § 393. V. Watt, 27 Ohio St. 359. § 377. Boyen v. Crane, 1 W. Va, 176. § 64 Boykin v. State, 50 Miss. 375. § 448. Boyle, In re, 9 Wis. 264. g§ 109, 130, 193. Bracken v. Smith, 39 N. J. Eq. lB9. §§ 154, 156. Brackett v. Brackett, 61 Mo. 223. §111. V. Norton, 4 Conn. 517. §§ 189, 190. Bradbum v. Great W. R'y Co., L. R. 10 Ex. 1. § 371. Bradbury v. Wagenhorst, 54 Pa. St 182. §§ 237, 238, 260, 332, 333. Bradford v. Barclay, 42 Ala. 375. §§ 206, 482. V. Floyd, 80 Mo. 207. § 306. V. Jones, 1 Md. 351. §§ 210, 211. T. Treasurer, Peck, 435. §§ 196, 236. Bradley v. Baxter, 15 Barb. 123. § 67. v. Clark, 5 T. R. 201. § 196. V. Commissioners, J Humph. 438. §183. V. Ins. Co. 3 Lans. 341. § 184. V. Jamison, 46 Iowa, 68. § 394 V. McAtee, 7 Bush, 667. § 473. V. New York, etc. R. R Co. 21 Conn. 305. § 388. V. Richmond, 6 Vt 121. § 428. T. State, 69 Ala. 318. § 256. Bradshavv v. Mayfield, 18 Tex. 21. §397. BradweU's Case, 55 111. 535. § 321. BradweU v. State, 16 WalL 130. §321. Brady v. ]Mayor, etc. 20 N. Y. 312. §381. V. Northwestern Ins. Co. 11 Mich. 425. §367. Brady v. Page, 59 Cal. 52. § 298. V. West, 50 Miss. 68. § 182. Brady Street, In re, 99 Pa. St 591. §273. Bragg V. Clark, 50 Ala. 363. §§ 223, 224 Brain v. Thomas, 50 L. J. Q. B. Div. 663. § 204 Brainard v. Bushnell, 11 Conn. 17. §10. Bramwell v. Penneck, 7 B. & C. 536. §270. Branagan v. Dulaney, 8 Colo. 408. §§ 160, 220. Branch v. Bm-nley, 1 Call, 147. § 295. Branch Bank v. Murphy, 8 Ala. 119. §104 V. Tillman, 12 Ala. 214 § 399. Brandling v. Barrington, 6 B. & C. 475. §§410,414 Brandon v. Pate, 2 H. Black. 308. §360. V. Sands, 2 Ves. Jr. 514 § 360. V. State, 16 Ind. 197. § 101. Branhani v. Lange, 16 Ind. 497. § 135. V. Long, 78 Va. 352. § 217. Bramston v. Colchester, 6 K & B. 246. § 159. Bratton v. Grey, 12 S. C. 42. § 133. Braun v. Sauerstein, 10 WalL 218. §136. Bray v. Hudson, 50 N. J. L. 82. § 128. V. Wallingford, 20 Conn, 416. §428. Breitenbach v. Bush, 44 Pa. St 313. §§ 364 478. Breitimg v. Lindauer, 37 Midi. 217. §§ 137, 138, 358, 476. Bremer v. Freeman, 10 Moore P. C. 306. §193. Brenham v. Brenham Water Co. 67 Tex. 542. §§ 378, 384. Brennan v. Bradshaw, 53 Tex. 330. §378. Brent v. Chapman, 5 Cr. 358. § 479. Brett V. Brett 3 Addams, 219. §§ 210, 213. Bretz V. Mayor, etc. 6 Rob. 335. §193. TTIl CASES CITED. Bi-etz V. Mayor, etc, 3 Abb. Pr. (N. S.) 478. §194 V. New York, 6 Eobt 325. § 198. V. New York, 4 Abb. Pr. (N. S.) 258. §198. Brevoort v. Grace, 53 N. Y. 245. § 194. Brewer v. Blougher, 14 Pet. 198. §§ 240, 246, 330. V. Brewer, 62 Me. 62. § 67. Brewster v. Syracuse, 19 N. Y. 116. §88. Brice v. State, 2 Ovei-t 254. §§ 17, 184, 189. Bridge v. Branch, L. R 1 C. P. Div. 633. §322. Bridge Co. v. Hoboken, etc. Co, 13 N. J. Eq. 94 §§ 378, 380, 473. Bridgeport v. R, R. Co. 15 Conn. 475. §380. Bridges v. Sballcross, 6 W. Va. 574 § 333. Bridgman, In re, 1 Drew. & S. 169. §462. Brieswick v. Mayor, etc. 51 Ga, 639. §102, Briffitt V. State, 58 Wis. 39. § 303. Brig Aon, The, 1 Gall 61. § 104 Brig AVilliam Gray, The, 1 Paine, 16. §355. Briggs V. Allen, 4 Hill, 538. § 371. V. Cottrell, 4 Strob. 86. § 464 V. Hubbard, 19 Vt 86. § 206. V. Smith, 83 N. C. 306. § 146. Brigham v. Edmunds, 7 Gray, 359. §370. Bright V, McCuUoch, 27 Ind. 223. §§ 88, 122. Brimhall v. Van Campen, 8 Minn. 13. §184 Brinkley v. Swicegood, 65 N. C. 626. §§ 162, 168. Brmsfield v. Carter, 2 Ga. 150. §§ 218, 219, 246. Brisbane v. Peabody, 8 How. Pr. 109. §454 Brisbin v. Farmer, 16 Minn. 215. §226. Briscoe v. Bank of Kentucky, 11 Pet 257. §197. Bristol V. SequevUle, 5 Exch. 275. g§ 12, 184, 190, 192. British Farmers', etc. Co., Re, 48 L. J. Ch. 56. § 238. Britt V. Robioson, L. R. 5 C. P. 513. §§ 348, 350. Broadbent v. State, 7 Md. 416. § 400. Broaddus v. Broaddus, 10 Bush, 299. §§ 154, 155, 156, 255. Broad Street Hotel Co. v. Weaver, 57 Ala. 26. § 296. Broadway Bap. Church v. McAtee, 8 Bush, 508. § 365. Brocaw v. Board, etc. 73 Ind. 543. §132. Brock V. Parker, 5 Ind. 538. § 206. Brockbank v. Whitehaven R Co. 7 H. & N. 834 § 205. Brocket v. Ohio & P. R. Co. 14 Pa. St. 241. §§ 247, 253, 291, 328, 378. Brodnax v. Groom, 64 N. C. 244. §47. Bronson v. Kinzie, 1 How. 819. §§ 206, 471, 476, 477, 478. V. Newberry, 2 Doug. (Mich.) 3a §206. Brooklyn Gravel R. Co. v. Slaughter, 33 Ind. 185. § 381. Brooklyn L. Ins. Co. v. Bledsoe, 53 Ala. 538. §336. Brooks V. Boswell, 34 Mo. 474 § 343. V. Cock, 3 Ad. & R 141. § 458. V. Cook, 44 IHich. 617. §§ 271, 373. V. Hicks, 20 Tex. 666. §241. V. Hyde, 37 CaL 375. §§ 121, 19a V. Hydom, 76 Mich. 273. §§ 90, 91. V. Mobile School Commissioners, 31 Ala. 227. §§215,240. Brookville Ins. Co. v. Records, 5 Blackf. 170. § 193. Broome v. Wellington, 1 Sandf. 660. §115. Brothers v. Mundell, 60 Tex. 240. §256. V. State, 2 Cold. 201. §166. Brotherton v. Brotherton, 41 Iowa, 112. §226. Broughton v. Branch Bank, 17 Ala. 82a §166. CASES CITED. XXUI Broughton v. Manchester Water- works Co. 3 B. & Aid. 1. § 345. Brewer v. Bowers, 1 Abb. App. Dec. 214 §323. Brown, In re, 21 Wend. 316. § 256. Brown, In re, 21 L. J. N. C. 113. §262. Brown v. Barry, 3 Dall. 365. §§ 136, 137, 168, 246, 290. V. Buzan, 24 Ind. 194 §§ 111, 329, 331, 332. V. ChanceUor, 61 Tex. 437. f§ 138. V. County Commissioners, 21 Pa. St 37. §§ 138, 157, 220. V. Cousens, 51 Me. 301. § 146. V. Denver, 7 Colo. 305. §§ 117, 130. V. Duncan, 10 B. & C. 93. § 336. V. Elms, 10 Humph. 135. § 298. V. Fifield, 4 Mck 322. §§ 207, 401. V. Fleischner, 4 Oregon, 132. §64 V. Fowzer, 114 Pa. St. 446. § 390. V. Gates, 15 W. Va. 131. §§ 411, 428. V. Graham, 58 Tex. 254 § 344. V. Great W. R'y Co., L. R. 9 Q. B. Div. 753. §§ 138, 240. V. Hamlett, 8 Lea, 732. § 246. V. Haywood, 4 Heisk. 357. § 124 V. McCormick, 28 Mich. 215. §§ 138, 148, 405. V. Maryland, 12 Wheat 438. §222. V. Mayor, etc. 63 N. Y. 239. §483. V. Miller, 4 J. J. Marsli. 474 § 202. V. Nasli, 1 Wyoming, 85. § 41. V. Pendergast, 7 AUen, 437. § 436. V. Piper, 91 U. S. 37. §§ 301, 304 V. R'y Co. 83 Mo. 478. § 454 V. State, 73 Ga. 38. §g 88, 93, 95, 96. V. State, 23 Md. 503. § 117. V. State, 5 Colo. 496. § 311. V. Thompson. 14 Bush, 538. §429. V. Tucker, 7 Colo. 30. § 394 V. United States, 113 U. S. 568. §309. Brown v. Wilcox, 14 S. & IL 127. §g 206, 479. Browning v. Jones, 4 Humph. 69. §138. V. Wheeler, 24 Wend. 258. § 439. Bruce v. County of Dodge, 20 Minn. 388. §119. V. Schuyler, 9 IlL 221. § 202. V. Wood, 1 Met 542. § 184 Brucker v. State, 19 Wis. 539. § 299. Bruffett V. G. W. R R Co. 25 HL 353. §473. Brush V. Scribner, 11 Conn. 407. §190. V. Wilkins, 4 Johns. Ch. 506. §190. Brunswick v. Litchfield, 2 GreenL 28. §206. Bryan v. Dennis, 4 Fla. 445. § 283. V. Sundberg, 5 Tex. 418. §§ 154, 204 Bryant, In re, Deady, 118. § 340. Bryant v. Kelton, 1 Tex. 434 § 190. v. Lefever, 4 C. P. Div. 172. §265. V. Tidgewill, 133 Mass. 86. §377. Buchanan v. Robinson, 3 Baxt 147. §138. Bucher v. Commonwealth, 103 Pa. St 528. § 273. V. Henderson, L. R. 3 Q. B. 335. §165. Buck V. Dowley, 16 Gray, 555. § 39L V. Spofford, 31 Me, 34. § 256. Buckallew v. Ackerman, 8 N. J. Lh 48. §§ 138, 142. Buckingham v. BiUings, 13 Mass. 82. §§ 372, 423. V. Gregg, 19 Ind. 401. §§ 298, 306. Bucklewv. R R Co. 64 Iowa, 603. §127. Buckley, Ex pai-te, 53 Ala, 42. §§ 463, 482. Buckley v. Lowiy, 2 Mich. 419. § 454 Bucklin v. Ford, 5 Barb. 393. § 436. Buckmaster v. McEh-oy, 20 Neb. 557. §§ 373, 375. Buckner v. Real Estate Bank, 5 Ark. 536. §§ 253, 322, 346. XXIV CASES CITED. Bucky - Willard, 16 Fla. 330. § 170. Budd V. State, 3 Humph. 483. §§ 119, 124 BueU T. State, 72 Ind. 533. § 299. Buffalo, Matter of the City of, 68 N. Y. 167. §§ 344, 388, 389. Buffalo City Cemetery Co. v. Buffalo, 46 N. Y. 506. § 364 Buffalo, etc. Co. v, N. Y. etc. R R. Co. 10 Abb. N. C. 107. § 305. Buffham v. Racine, 26 Wis. 449. §428. Buf ord V. Bostick, 58 Tex. 63. § 394 V. Tucker, 44 Ala. 89. § 298. Bugher v. Preapott, 23 Fed. Eep. 20. §§ 102, 103. Bulkley v. Eckert, 3 Pa. St 268. §§ 324, 428. Bull V. Comroe, 13 Wis. 238. § 119. V. Read, 13 Gratt. 88. §§ 72, 75. V. Rowe, 13 S. C. 355. §§ 171, 322. BuUard v. Bell, 1 Mason, 290. § 340. Bullock V. Fladgate, 1 Ves. & Bea. 471. tj 194 V. T.in p.oln, 2 Strange, 914 § 115. Bumsted v. Govern, 47 N. J. L. 368 : 48 id. 612. §§ 125, 127. Bunce v. Reed, 16 Barb. 127 § 112. Bunn V. Gorgas, 41 Pa. St. 441. § 478. Burch V. Newbmy, 10 N. Y. 374 g§ 10, 206, 480. V. Watts, 37 Tex. 135. § 393. Burden v. Stein, 25 Ala. 455. § 322. Burder v. Veley, 12 Ad. & E. 246. g362. Burdiae v. Grand Lodge, 37 Ala. 478. §306. Bvu-gess V. Hargrove, 64 Tex. 110. §§ 253, 255. V. Pue, 2 GiU, 11. § 72. V. Salmon, 97 U. S. 381. §§ 110, 182. Burgett V. Burgett, 1 Ohio, 219. §§ 207, 410. Burgoyne v. Supei"visors, 5 CaL 9. §§ 10, 204 Burhof V. Milwaukee, 21 Wis. 257. §§ 193, 194 Burke v. Monroe Co. 77 HL 610. §§ 97, 215, 240, 245. Burkholtz V. State, 16 Lea, 71. §§119, 123, 124, 169, 180. Bm-lander v. Railway Co. 26 Wis. 76. §154 Burlington v. Burlington, etc. R'y Ca 41 Iowa, 134 § 167. Burlington, etc. R R. Co. v, Thomp- son, 31 Kan. 108. § 14 Bum V. CarvaUio, 4 Nev. & K 893. §107. Burnet, Ex parte, 30 Ala. 461. § 380. Bm-nett v. Henderson, 21 Tex. 588. §298. v. Tm-ner, 87 Temu 124 § 132. Bm-nham v. Acton, 4 Abb. Pr. (N. S.) 1. §198. V. Acton, 35 How. Pr. 48. § 193. V. Fond du Lac, 15 Wis. 193. §428. V. Onderdonk, 41 N. Y. 425. §§ 147, 321, 327, 399. V. Stevens, 33 N. H. 249. § 256. V. Summer, 50 INIiss. 517. § 400. V. Webster, 5 Mass. 266. § 193. Bm-nside v. Lincoln Co. Court, 86 Ky. 423. § 92. V. Wliitney, 21 N. Y. 148. §§ 139, 207, 290, 439. Bm-r V. Dana, 22 CaL 11. §§ 218, 240, 246, 429. V. Ross, 19 Ark. 250. § 41. Burt V. WiUiams, 24 Ark. 91. § 478. V. Winona, etc. R R Co. 31 Minn. 472. §§41,54 Burton v. Anderson, 1 Tex. 93. § 190. V. School Commissioners, Meigs, 589. § 124 BurweU v. Tulhs, 12 Mmru 572. §133. Bush V. Brainard, 1 Cow. 78. § 290. V. RepubUc, 1 Tex. 455. § 144 Bussing V. Bushnell, 6 Hill, 382. §290. Butcher v. Bank of Brownsville, 3 Kan. 70. § 294 V. Hendei-son, L. R 3 Q. B. 335. §163. OASES CITED. XXV iButler V. Palmer, 1 HiU, 324 §§ 162, 464, 482. V. Penusylvania, 10 How. 402. §473. V. Robinson, 75 Mo. 192. § 194. V. Rochester, 4 Hvm, 321. § 322. V. RiisseU, 3 Cliff. 251. § 168. Butts V. Vicksbui'g, etc. R R Co. 63 Miss. 462. §§218,223. Butz V. Muscatine, 8 Wall. 575. § 478. Byard v. State, 57 Miss. 243. § 231. Byrd v. Brown, 5 Ark. 709. §§ 395, 397. V State, 57 Miss. 243. § 402. By water v. Brandling, 7 B. «& C. 643. §212. Cadogan v. Kennett, 2 Cowp. 434. §444. Cahall V. Citizens' Mut B. Asso. 61 Ala. 232. § 156. Cain V. Goda, 84 Ind. 209. §§ 108, 109. Calder v. BuU, 3 Dall. 386. §§ 143, 19G, 206, 465. V. Kui-by, 5 Gray, 597. § 473. Calderwood v. Calderwood, 38 Vt. 171. § 254. CaldweU v. Alton, 33 IlL 416. § 380. V. Barrett, 73 Ga. 604 §§ 75, 96. V. State, 34 Ga. 18. § 342. V. Vanvlissengen, 9 Haie, 425. § 13. Caledonian R'y Co. v. North British R'y Co., L. R 6 App. Cas. 122. §§ 238, 241, 246. Calhoun v. Dellii, etc. R R Co. 28 Hun, 379. §133. V. Kellogg, 41 Ga. 231. § 479. 10, V. McLendon, 42 Ga. 405. 11, 422. Calkin v. Cocke, 14 How. 227. § 189. Calking v. Baldwin, 4 Wend. 667. §§ 193, 325. Calkins v. State, 14 Ohio St 222. § 166. CaU V. Hagger, 8 Mass. 430. § 478. CaUaday v. Pilkmgton, 12 Mod. 513. §372. CaUaghan v. Chipman, 59 Mich. 610. §170. CaUanan v. Judd, 23 Wis. 343. § 397. Callaway v. Harding, 23 Gratt 547. §223. CaUis V. Waddy, 2 Munf. 511. § 427. CaUoway v. Laydon, 47 Iowa, 456. §374 V. WUhe's Lessee, 2 Yerg. 1. §184 CaUum V. Pettigiew, 10 Heisk. 394 §458. CaUy V. Anson, 4 Wis. 223. § 440. Calvert v. WiUiams, 34 Md. 672. §112. Cambria Iron Co. v. Ashbum, 118 U.S. 54 §156. Cambrian R'y Co.'s Scheme, In re, L. R 3 Ch. 278. §§ 257, 267. Cambridge v. Boston, 130 Mass. 357. §206. Camden v. Allen, 26 N. J. L. 39a §§ 204 325. Camden, etc. R R Co. v. Briggs, 23 N. J. L. 623. § 358. Cameron v. Blackman, 39 Mich. 108. §296. V. Merchants', etc. Bank, 37 jMich. 240. §309. V. Smith, 50 CaL 303. § 146. Campau v, Detroit, 14 Mich. 276. §§ 135, 137. CampbeU's Case, 2 Bland's Ch. 209. §194 Campbell, Ex parte, L. R 5 Ch. 703. §255. CampbeU v. AUison, 63 N. C. 568. §454 V. Board of Pharmacy, 45 N. J. I* 241. §93. V. Hall, 1 Cowp. 208. §§ 13, 19. V. International Life, 4 Bosw. 317. §115. V. Schlesinger, 48 Hun, 428. §375. CampbeU, etc. Co. v. Nonpariel, etc Co. 75 Ya. 291. § 464 Canady v. George, 6 Rich. Eq. 103. § 137. Canal and Walker Sts., Matter of, 13 N. Y. 406. § 342. XXVI CASES CITED. Canal Commissioners v. People, 15 WendL 445. § 184. Canal Co. v. Railroad Co. 4 Gill & J. 152. gg 210. 215, 411. Candee, Ex parte, 48 Ala. 386. § 397. Carman v. Bryce, 3 B. & Aid 179. §336. Cannon v. HemphiU, 7 Tex. 184. §80. V. Mathes, 8 Heisk. 504. §§ 66, 80. Canti-eU v. Conner, 51 How. Pr. 45. §422. Canty v. Sanderford, 37 Ala. 91. §400. Cape Girardeau v. Riley, 52 Mo. 428. §161. Caperon v. Sti-out, 11 Nev. 304. §§ 134, 167. Carey v. Cincinnati, etc R R. Co. 5 Iowa, 357. §§ 12, 297. V. GUes, 9 Ga. 253. § 444 Cargo of Brig Aui-ora v. United States, 7 Cr. 382. §§ 72, 168, 182. Carleton v. Goodwin, 41 Ala 153. § 10. Carlisle v. Carlisle's Adm'r, 2 Harr. 318. §67. V. State, 42 Ala. 523. § 166. V. Stitler, 1 Pen. & W. 6. § 364. Carmichael v. Hays, 66 Ala. 543. §154. Carmon v. State, 18 Ind. 450. § 303. Cames v. Parish of Red River, 29 La. Ann. 608. § 482. (.Jarothers v. Wheeler, 1 Oregon, 194. §§ 111, 114 Carpenter's Case, 14 Pa. St 486. §342. Carpenter v. Dexter, 8 Wall 513. §293. V. Herrington, 25 Wend. 370. §364 V. Montgomery, 7 Blackf. 415. §§ 107, 108. V. Pennsylvania, 17 How. 456. §§164197. T. People, 8 Barb. 603. § 208. Carr v. Thomas, 18 Fla. 736. §§ 86, 102. Carrier, Matter of, 13 Bankr. Reg. 208. §104 Carroll v. Carroll, 16 How. 275„ §320. V. Lessee of Olmsted, 16 Ohio, 251. § 194 V. Mo. Pac. R R. Co. 26 Am. & Eng. R R Cas. 268. § 371. V. State, 58 Ala. 396. § 223. Carrow v. Bridge Co., PhilL L. (N. C.) 118. §194 Carson v. Daltoru 59 Tex. 500. § 298. v. Love, 8Yerg. 215. §111. V. State, 69 Ala. 235. §§ 95, 354 Carter v. Balfom-, 19 Ala, 814 §§ 17, 184 V. Burt, 12 Allen, 424 §§ 144, 470. V. Hawley, Wright (Ohio), 74 §142. V. Peak, 138 Mass. 439. § 264 v. State, 6 Cold. 537. § 397. Caruthers v. Andrews, 2 Cold. 378. §124 Carver v. Smith, 90 Ind. 222. § 150. Carville v. Additon, 62 Me. 459. §115. Case of the Marshalsea, 10 Coke, 73a. §300. Case of Swans, 7 Coke, 82. § 305. Case V. KeUy, 133 U. S. 21. § 185. V. Mayor, etc. 30 Ala. 538. § 296. V. Serew, 46 Hun, 57. § 302. V. Storey, L. R 4 Ex. 319. § 262L V. Wndridge, 4 Ind. 51. § 237. Casement v. Fulton, 5 Moore's P. C. 141. § 256. Casey v. Hamed, 5 Iowa, 1. § 187. Cash V. State, 10 Humph. 111. §§293, 299. Casher v. Holmes, 2 B. & Ad. 593. §§ 276, 277. Cass V. DiUon, 2 Ohio St. 607. §§ 120; 121, 122, 137, 151, 152. Cass County v. Gillett, 100 U. S. 585. §157. Cassity v. Storms, 1 Bush, 452. § 164 eastern V. Groom, 18 Q. B. 490. § 462. Castle's Case, Cro. Jac. 644 § 325. Castle V. Burditt, 3 T. R 623. §§ 112, 253. OASES CITED. XXVll Castner v. WaJrod, 83 Dl. 171. §§ 146, 223. Caaton v. Brock, 14 S. C. 104 § 232. Caswell V. Cook, 11 C. B. (N. S.) G37. §362. V. Worth, 5 E. & B. 849. § 202. Catawissa R R Co. v. Ai'instrong, 53 Pa. St 282. §371. Gate V. State, 3 Sneed, 120. §§ 138, 143. Gates V. Knight, 3 T. R 443. §§ 165, 256, 396. Catesby's Case, 6 Coke, 62. § 253. Cathcart v. Robinson, 5 Pet 280. §§ 184, 191. Catlin V. Hull, 21 Vt 153. §§ 315. 240. V. Wheeler, 49 Wis. 507. § 396. Caulfield v. Hutlson, 3 CaL 389. § 397. V. Stevens, 28 Cai 118. § 395. Cavanagh v. Boston, 139 Mass. 426. §387. C, B. & Q. R R Co. V. Iowa, 94 U. S. 155. § 126. Cearf OSS v. State, 43 Md. 406. §§ 219, 234, 236, 239, 240, 241, 246. CecU Bank v. Barry, 20 Md. 287. §§190,192. Cedar Rapids, etc. R'y Co. v. Carroll Co. 41 Iowa, 153. § 167. Central Branch Union P. R Co. v. Atchison, etc. R R Co. 28 Kan. 453. §^5 176, 180. Centi'al Bridge v. LoweU, 15 Gray, 106. § 473. Central City Horse R'y Co. v. Fort Clark Horse R'y Co. 81 IIL 523. §888. Central & G. R Co. v. People, 5 Colo. 39. §§ 80, 103. Central Iowa R R Co. v. Board of Supervisors, 67 Iowa, 199. §§ 122, 129, 138. Central Plk, R Co. v. Hannaman, 33 Ind. 484. §§ 93, 95. Central R R Co. v. Gamble, 77 Ga. 584. § 298. V. Hamilton, 71 Ga. 461. 138, 286. §§185, Central R R Co. v. Swmt, 73 C a. 651. §14. Central Trust Co. v. Sheffield & B. Coal, etc. Co. 42 Fed. Rep. 106. § 263. V. Sloan, 65 Iowa, 655. §§ 125, 127. Chadwick v. Moore, 8 W. & S. 41-. §478. Chaffee's Appeal, 56 Mich. 244 §§ 390, 432. Chaffe V. Aaron, 63 Miss. 29. § 482. Chamberlain v. Chamberlain, 43 N. Y. 424 §§ 145, 152. V. EvansviUe, 77 Ind. 543. §§ 165, 166. V. Western Transp. Go. 44 N. Y. 305. §442. Chambers v. Carson, 3 "VVliart 9. § 256. V. Dickson, 3 Serg. & R 475. §322. V. State, 25 Tex. 307. § 136. Champion v. Kille, 15 N. J. Eq. 476. §297. Chance v. Adams, 1 Lord Raym. 77. §§ 196, 210, Chancellor of Oxford's Case, 10 Coke^ 57. §194 Chandler v. Hanna, 73 Ala. 390. §§ 140, 399. V. Nash, 5 Mick 409. § 395. V. VUett, 2 Saund- 120. §§ 434, 426. Chaney v. State, 31 Ala. 342. §§ 206, 483. Chapin v. Crusen, 31 Wis. 309. § 22a V. Curtenius, 15 IIL 427. § 420. V. Persse & Brooks Paper Works, 30 Conn. 461. §§ 347, 461. Chapman v. Foster, 6 Allen, 136. §338. V. Miller, 128 Mass. 269. § 240. V. MUvain, 5 Ex. 61. § 145. V. State, 16 Tex. App. 76. § 260. V. Woodi-uflf, 34 Ga, 98. § 277. Chapoton v. Detioit, 38, Mich. 636. §138. Chapron v. Cassaday, 3 Humph. 661. §184 xxvm CASES CITED. Charles River Bridge v. Warren Bridge, 11 Pet 420. §§ 164, 206, 289, 378. Ohaiies St. Ave. Co. v. Merryman, 10 Md. 536. § 242. Claarless v. Lamberson, 1 Iowa, 435. §§ 107, 422. Charleston v. County Com'rs, 3 Met 202. § 388. Charlotte v. Chouteau, 33 Mo. 194 §§ 190, 192. Charter v. Greame, 13 Q. B. 216. §448. Chai-tered Mercantile Bank, etc. v. WHson, L. R 3 Ex. Div. 108. §265. Chase v. Ins. Co. 9 Allen, 311. § 184. Cheatham v. Briens, 3 Head, 553. §447. Chealy v. Brewer, 7 Mass. 259. § 411. Cheever v. Wilson, 9 Wall 108. §§ 22, 185, 293. Chegaray v. Mayor, 13 N. Y. 220. §§ 271, 272. Chenango Bridge Co. v. Binghamton Bridge Co. 27 N. Y. 87. § 164 Cherry Overseers v. Marion Over- seers, 96 Pa. St 528. § 454 Chesapeake & O. Canal Co. v. Rail- road Co. 4 Gill & J. 1. §§ 234 239. Chesapeake & Oliio R. R. Co. v. Hoai-d, 16 W. Va. 276. § 157. Chesnut v. Shane, 16 Ohio, 599. §§ 308, 309, 316, 452, 483. Chester Glass Co. v. Dewey, 16 Mass. 102. § 385. Chew V. Calvert 1 Walk. (Miss.) 54 §19. Chew Heong v. United States, 112 U. S. 536. §§ 138, 407. Chicago V. Hasley, 25 BL 595. § 429. V. Vulcan Iron Works, 93 IlL 222. §115. Chicago, etc. Ry Co. v. Chicago, etc. R. R Co. 112 IlL 389. § 388. V. Chicago, 121 111. 176. § 387. V. Doyle, 60 Miss. 977. § 13. V. Dunn, 52 lU. 260. § 207. Chicago, etc. R'y Co. v. Hartshorn, SO Fed. Rep. 541. § 167. V. McGUnn, 114 U. S. 542. § 19. V. People, 67 III 11. § 349. v. Smitli, 78 111. 96. § 207. V. Sturges, 74 Mich. 538. § 371. V. Wiltse, 116 111. 449. § 387. Chicago Packing Co. v. Chicago, 88 IlL 221. § 473. Chicot Co. V. Davies, 40 Ark. 200. §49. Childs V. Shower, 18 Iowa, 261. §§ 137, 175, 180. V. Smith, 55 Barb. 45. §§ 326, 456. Chiles V. Drake, 2 Met (Ky.) 150. §85. V. Smith's Heu^, 13 B. Mon. 460. §§ 112, 114 V. State, 2 Tex. App. 37. § 325. Chisholm v. Northern Transportataon Co. 61 Barb. 363. § 399. Chollar IVIining Co. v. Wilson, 66 Cal 374 § 456. Chouteau v. Allen, 70 Mo. 290. § 336. V. Pierre, 9 Mo. 3. §§ 181, 295. Chi-istie v. Unwin, 3 Perry & Davi- son, 208. § 391. Christopherson v. Lotinga, 33 L. J. C. P. 123 ; 15 C. B. (N. S.) 809. §§ 258, 420. Christy v. Board of Supervisors, 39 CaL 3. § 170. V. Pridgeon, 4 WalL 196. § 185. Church, Matter of, 28 Hun, 476. § 183. Church V. Crocker, 3 Mass. 21. §§ 288, 322. V. Detroit 64 Mich. 571. § 102. V. Hubbart 2 Cranch, 237. §§ 190, 192, 247. V. Rhodes, 6 How. Pr. 281. §§ 138, 165. V. Stadler, 16 Ind. 463. § 222. Churchill v. Crease, 5 Bing. 177. §§ 159, 216. V. Merchants' Bank, 19 Pick. 532. §253. Cicero, etc. Co. v. Craighead, 28 Ind. 274 § 306. CASES CITED. XXIX Cincinnati College v. State, 19 Ohio, 110. §3G4. Cincinnati, etc. R. R Co. v. Carthage, 3G Oliio St. 031. § 472. V. Commissioners, 1 Ohio St 77. g§ 67, 68, 75. Citizens' Gas, etc. Co. v. Elwood, 114 Ind, 332. § 384. Citizens' Gas Light Co. v. Alden, 44 N. J. L. 648. § 201. City V. R. R Co. 35 La. Ann. 679. §482. T. Schellinger, 15 Pliila. 50. §§ 239, 241. City Bank v. Huie, 1 Rob. (La.) 236. §g 215, 240. City Council v. Adams, 51 Ala. 449. §113. V. Baptist Chmxh, 4 Sti'ob. 306. §136. V. Plank R Co. 31 Ala. 76. §380. V. Port Royal, 74 Ga, 658. §§ 94, 102. City CouncU of IMontgomeiy v. Wright, 72 Ala. 411. § 120. City of Berne v. Bank of England, 9 Yes. 347. § 297. City of Buffalo, Matter of, 68 N. Y. 167. §§ 344, 388, 389. Clanton v. Barnes, 50 Ala, 260. § 190. Clare v. State, 5 Iowa, 510. §§ 35, 109, 300. V. State, 68 Ind. 17. §132.- Clarence R'y Co. v. Great North of Eng. etc. R'y Co. 13 M. & W. 706. §344 Clarion Bank v. Gruber, 87 Pa. St. 468. § 194. Clark's Succession, 11 La. Ann. 124. §218. Clark V. Brown, 18 Wend. 213. § 399. V. Bynura, 3 McCord, 298. § 212. V. Clark, 10 N. H. 391. § 482. V. Crane, 5 Mich. 151. § 455. V. Davenport, 14 Iowa, 495. §§ 365, 380. V. Dewey, 5 Johns. 251. § 371. V. Dolter, 54 Pa. St 215. § 312. V. EUis, 2 Blackf. 8. § 172. Clark V. Ewing, 87 HI. 344. § 112. V. Fan-mgton, 11 Wis. 306. §385. V. Gaskarth, 8 Taunt 431. § 269. V. Hague, 2 E. & E. 281. § 280. 'f^ V. Hardunan, 2 Leigh, 347. § 425. V. Holms, 1 Doug. (Midi.) 390. §g 327, 391. V. JanesvillclOWis. 136. §§ 110, 120, 193, 198, 292. V. Lamoreux. 70 Wis. 508. § 459. V. McCanu. 18 Hun, 13. § 146. *~ V. Martin, 3 Grant's Cas. 393. §478. V. Mayor, etc. 29 Md. 283. § 237. V. Middletou, 19 Mo. 53. § 336. V. Mowyer, 5 :Micli. 462. § 309. V. Railroad Co. 81 Me. 477. § 238. V. Richardson, 15 N. J. L. 347. §426. V. Robinson, 88 HL 498. § 459. V. Smith, 13 Pet 195. § 185. V. Utica, 18 Barb. 451. § 247. V. Wasliington, 12 Wheat 40. §365. V. Wilkie, 4 Strob. 259. § 379. Clarke v. Bradlaugh, L. R 8 Q. B. Div. 69. § 257. V. Brookfield, 81 Mo. 503. § 345. V. Gibbons, 83 N. Y. 107. § 146. V. Ii-win, 5 Nev. 124 § 117. V. Pratt, 20 Ala. 470. g 12. V. Rochester, 28 N. Y. 605. §§70, 75. V. State, 23 Miss. 261. §§ 139, 470. Clarkson v. R R Co. 12 N. Y. 304 § 207. Clawson v. Eichbaum, 2 Grant's Cas. 130. g 110. V. Primrose, 4 Del Cli. 643. §§ 15, 184 V. United States, 114 U. S. 477. §396. Clay Covmty v. Society for Savings, 104 U. S. 579. § 138. Clay Co. Sup'rs v. Chickasaw Co. Sup'i^s, 64 Miss. 534. § 155. Claydon v. Green, L. R. 3 C. P. 521. ii 233. Clayton's Case, 5 Coke, 1. § 112. XXX CASES CITED. Cleiu T. State, 33 Ind. 418. § 124 Clements v. Smith, 3 E. & E. 238. §420. Clementson v. Mason, L. R 10 C. P. 209. §§239,246. v. WilUams, 8 Crancli, 72. § 368. Cleveland, etc. R R Co. v. Erie, 27 Pa. St 380. § 380. V. Eowan, 66 Pa. St 393. § 371. aeveland & P. R Co. v. Speer, 56 Pa. St 325. § 378. Cline V. Greenwood, 10 Ore. 230. §331. COinton v. Draper, 14 Ind. 295. § 87. V. Englebrecht, 13 WalL 434. §312. V. PhilHps, 7 T. B. Mon, 117. §454. Clinton Water Com'rs v. Dwight, 101 N. Y. 9. § 88. Cliquot's Champagne, 3 WalL 114. §361. Qosson V. Trenton, 48 N. J. L. 438. §128. Clow V. Harper, L. R 3 Ex, Div. 198. §310. Clu& V. Ins. Co. 13 Allen, 308. § 184 Coalheavers' Case, 1 Leach C. C. 64 §334 Coates V. Mackey, 56 Md. 416. § 294 Coats v. Hill, 41 Ark. 149. §§ 138, 143, 151, 152. Coatswoi-th V. Barr, 11 Mich. 199. §254 Cobb V. Bord, 40 Minn. 479. §§ 122, 128. Cobum V. Dodd, 14 Ind. 347. §§ 181, 294 V. Harvey, 18 Wis. 147. § 184. Cochran v. Baker, 60 Miss. 282. § 483. V. Library Co. 6 Phila, 492. § 210. V. Taylor, 13 Ohio St 382. §§ 167, 225. Cock V. Bunn, 6 John. 326. §§ 111, 113, 115. Cockrell v. Gurley, 26 Ala. 405. § 12. Coe V. Lawrence, 1 E. & B. 516. § 351. V. Schultz, 47 Barb. 64. § 68. Coffin V. Rich, 45 Me. 507. §§ 163, 167, 234 236, 246, 407. V. State, 7 Ind. 157. § 206. Cofifman v. Daveny, 2 How. (Miss.; 854 § 454 CoghiH V. State, 37 Ind. 111. §§ 142, 143. Cohen v. Barrett, 5 CaL 195. § 210. Cohens v. Virginia, 6 Wheat 380. §§ 21, 307. Cohn V. Neeves, 40 Wis. 393. §§ 208, 355, 371. Cohoes Co. V. Goss, 13 Barb. 137. §454 Coke V. Bobbins, 4 Halst 384 § 202. Colbran v. Bamess, 11 C. B. (N. S.) 244 §240. Colbmn V. Swett, 1 Met 232. § 833. Colby V. Dennis, 36 Me. 9. §§164, 167. V. Knapp, 13 N. H. 175. § 59. Colden v. Eldred, 15 Jolxo. 220. § 399. Cole V. Aune, 40 Minn, 80. § 393. V. Commissioners, 78 Me. 532. §169. V, Coulton, 2 E. & E. 695. § 143. V. Groves, 134 Mass. 471. § 358. V, HaU, 103 HI 30. § 92. V. PeiTy, 8 Cow. 214 § 207. V. Supervisors, 11 Iowa, 552^ §147. V. Thayer, 8 Cow. 249. § 204 V, AVhite, 32 Ark, 45. § 333. Colehan v. Cooke, WUles, 395. §§ 215i 213. Coleman v. Ballandi, 22 ]VIinn, 144. § 476, V. Davidson's Academy, Cooke- (Tenn.), 258. §288. V. Dobbins, 8 Ind. 156. §§ 183^ 300. V. Hohnes, 44 Ala. 124. § 368. V. Newby, 7 Kan. 88. § 68. Colgate V. Penn, Co. 102 N. Y. I'^T. §207. Colley V. London, etc. Co., L. R. 5 Ex. Div. 277. § 204 Collin V. Knoblock, 25 La, Ann. 2()i. §237. CASES CITED. XXXI •Obllins V. Carman, 5 Md. 503. §§ 332, 324, 407. V. Chase, 71 Me. 434. § 138. V. East Term. etc. R R Co. 9 Heisk. 841. §§ 476, 480. V. Henderson, 11 Bush, 74 § 88. V. Warren, 63 Tex. 311. § 167. V. Welch, L. R 5 C. R Div. 27. §§ 219, 248. Collier v. Early, 54 Ind 559. §§ 375, 376. Colt V. Eves, 12 Conn. 243, § 448. Columbia T. Co. v. Haywood, 10 Wend 422. §§ 111, 112, 113. Colmnbus Ins. Co. v. Walsh, 18 Mo. 229. § 836. ColweU V. Chamberlin, 43 N. J. K 387. §§ 131, 132, 170. Combe v. Pitt, 3 Burr. 1423. § 110. Comer v. Folsom, 13 Minn. 219. §206. Commercial Bank v. Chambers, 8 Sm. & M. 9. § 220. V. Foster, 5 La. Ann. 516. §§ 218, 240, 241, 246, 428. V. Ives, 2 Hill, 355. § 114. V. Markham, 3 La, Ann. 698. §482. V. Sparrow, 2 Denio, 97. §§ 181, 294 Commercial Bank of Natchez v. Chambers, 8 Sm. & M. 9. §§ 138, 140, 152. Commissioners, In re, 49 N. J. L. 488. §103. Commissioners v. Andrews, 18 Ohio St 64 § 379. V. Baker, 80 Ind. 374 §§ 86, 87, 102. V. BaUard, 69 N. C. 18. § 331. V. Hai-rison, L. R 7 H. of L. 9. §310. V. Higgrnbotham, 17 Kan. 75. §51. V. Keith, 2 Pa. St 218. § 223. V. Mighels, 7 Ohio St 109. § 380. V. Northern Bank, 1 Met (Ky.) 174 §164 V. Silvers, 22 Ind 491. § 331. Commissioners v. Spitler, 13 Ind 235. §298. Commissioners of Central Park, Mat- ter of, 50 N. y. 493. § 155. Commissioners of Knox Co. v. Ma- comb, 19 Ohio St 320. § 145. Commissioners of Lunatic Asylums, In re, 8 Irish Eq. Rep. 366. § 257. Commissionei-s of Public Schools v. County Commissioners, 20 Md 449. i^ 462. Commissionei-s of Sedgwick Co. v. BaUey, 13 Kan. 607. t;§ 79, 80. Common Coimcil of Albany, Ex parte, 3 Cow. 358. § 454 Commonwealth v. Alger, 7 Cush. 53. §§ 215, 239. v. BaUey, 13 Allen, 541. §§ 162, 322. V. Beatty, 1 Watts, 382. § 165. V. Bennett, 108 Mass. 27. §§ 75, 225. V. Bradley, 16 Gray, 241. §§ 206, 482. V. Breed, 4 Pick. 460. § 194 V. Cain, 14 Bush, 525. §§ 157, 166. V. Cambridge, 20 Pick. 267. §§ 215, 322. V. Chambre, 4 DalL 143. § 253. V. ChurchiU, 2 Met 118. §§ 147, 108, 184 V. Commissioners, etc. 37 Pa. St 237. § 397. V. Commissioners of Allegheny Co. 40 Pa. St 348. § 145. V. Conyngham, 66 Pa. St 99. §§ 215, 241, 245, 341. V. Cooley, 10 Pick. 37. §§ 142, 154 V. Coombs, 2 Mass. 489. §§ 386, 388. V. Costley, 118 Mass. 1. § 307. V. Cotton, 14 Pliila. 667. § 157. V. Council of Monti'ose, 52 Pa. St 391. § 240. V. Cromley, 1 Aslmi. 179. § 154. V. Cullen, 13 Pa, St 133. § 473. V. Doi-sey, 103 Mass. 412. § 469. XXXll CASES CITED. Commonwealth t. Duane, 1 Biim. 601. §§11,215,239. V. Edwards, 4 Gray, 1. § 225. V. Erie, etc. R R Co. 27 Pa. St 339. §378. T. Fisher, 17 Mass. 46. §§ 347, 349. V. Gaines, 2 Va. Cas. 172. §§ 210, 332. V. Gardner, 11 Gray, 438. §§ 142, 143. V. GetcheU, 16 Pick. 452. § 166. V. GHtinan, 64 Pa. St. 100. §§ 254, 351. V. Green, 17 Mass. 515. § 12. V. Green, 58 Pa. St. 226. §§ 88, 89, 95. V. Griffin, 105 Mass. 185. §§ 252, 285. Y. HaU, 97 Mass. 570. §§ 468, 482. V. Hall, 128 Mass. 410. § 243. V. Harris, 13 Allen, 534. § 260. V. Hartnett, 3 Gray, 450. § 333. V. Hewitt, 2 H. & M. 181. § 463. V. Hitchings, 5 Gray, 482. §§ 169, 176, 331. V. Hudson, 11 Gray, 64. § 396. V. Humphi-ies, 7 Mass. 242. §200. V. Intoxicating Liquors, 108 Mass. 19. § 240. V. Johnson, 42 Pa, St. 448. § 10. V. KeUilier, 12 Allen, 480. §§ 143, 154. V. Keniston, 5 Pick. 420. §§ 208, 349, 353. V. Kimball, 21 Pick. 373. §§ 142, 165, 166, 225, 332. V. Knapp, 9 Pick. 496. §§ 139, 290. V. Knowlton, 2 Mass. 534. §§ 15, 16, 17, 184. V. Leach, 1 Mass. 60. § 15. V. Leech, 24 Pa St 55. § 168. V. Leech, 44 Pa. St 332. § 384. V. Lockwood, 109 Mass. 322. §307. V. Logan, 12 Gray, 186. § 206. Commonwealth v. Loring, 8 Pick, 370. §§ 218, 350. V. McDonough, 13 Allen, 581. §142. V. McKenney, 14 Gray, 1. § 143. V. McWilliams, 11 Pa. St 61. §67. V. MarshaU, 11 Pick. 350. §§ 142^ 165, 166, 225. V. Marshall, 69 Pa. St 332. § 260. V. Martm, 17 Mass. 362. §§ 208,. 288, 357. V. Martm, 107 Pa. St 185. §§35,. 86, 91, 102, 103. V. Mason, 82 Ky. 256. §§ 154, 155, 156. V. Miller, 5 Dana, 320. §§ 311, 314. V. Monongahela Nav. Co. 66 Pa, St 81. § 263. V. Mott 21 Pick. 492. § 166. V. Munson. 127 Mass. 459. § 322. V. Meiser, 44 Pa. St 341. § 384 V. Painter, 10 Pa. St 214 § 75. V. Parker, 2 Pick. 550. § 307. V. Pattee, 12 Cush. 501. § 166. V. Patten, 88 Pa. St 258. § 129. V. Peckham, 2 Gray, 514 § 303. V. Peyram, 1 Leigh, 569. § 143. V. Perryman, 2 Leigh, 717. § 357. V. PhiUips, 11 Pick. 28. § 469. V. Pointer, 5 Bush, 301. § 225. V. Rainey, 4 W. & S. 186. § 256. V. Reiter, 78 Pa. St 161. § 333. V. Roxbury, 9 Gray, 451. §§ 378,. 386, 390. V. Sherman, 85 Ky. 686. § 166. V. Shopp, 1 Woodw. Dec. 123. § 232. V. Shortridge, 3 J. J. Marsh. 638. §253. V. Slack, 19 Pick. 304 § 218. V. Slifer, 53 Pa. St 71. §§ 210, 211. V. Snelling. 4 Binn. 379. § 349. V. Snowden, 1 Brewst 218. § 297. V. Sprmgtield. 7 Mass. 12. § 193. V. Standard Oil Co. 101 Pa. St 119. §§ 165, 227. CASKS CITED. XXXUl Commonwealth v. Stevens, 10 Pick. 247. §388. V. Sylvester, 13 Allen, 247. § 370. V. Tewksbuiy, 11 Met 55. § 36. V. Turner, 1 Cush. 493. § 380. V. Watts, 84 Ky. 537. g§ 137, 154. V. Welch, 2 Dana, 330. §§ 166, 480. V. WeUer, 14 Bush, 218. § 75. V. Wolbert, 6 Binn. 292. § 453. T. Worcester, 3 Pick. 473. § 193. V. Wyatt, 6 Eand. 694. § 143. V. Wyman, 12 Cush. 237. § 143. Ccaipany of Cutlers v. Ruslin, Skin- ner, 363. § 166. Compton V. Pierson, 28 N. J. Eq. 229. §400. Comstock V. Bechtel, 63 Wis. 656. §422. V, Judge, etc. 39 mch. 195. § 132. Cone V. Bowles, 1 Salk. 205. § 371. Conger v. Barker, 11 Ohio St. 1. §256. V. Weaver, 6 CaL 548. § 298. Conkey v. Hart, 14 N. Y. 22. § 478. Conkhng v. Parker, 10 Ohio St 28. §398. Conley v. Columbus, etc. R R Co. 44 Tex 579. § 194. V. Sims, 71 Ga. 161. § 336. V. Supervisors, 2 W. Va, 416. §157. Connecting Ry. Co. v. Union Ry. Co. 108 lU. 265. § 388. Connecticut etc. Ins. Co. v. Albert, 39 Mo. 181. § 211. Conner, Ex parte, 51 Ga. 571. §§ 94, 98. Coimer v. Mayor, etc. 5 N. Y. 285. §§ 88, 120. Connor v. Green Pond, etc. R R Co. 23 S. C. 427. § 96. V, Carp River Iron Co. 54 Mich. 168. §§ 138, 152. Connors v. Gorey, 22 Wis. 518. § 397. Conolly V. RUey, 25 Md. 402. § 184. Conover v. Wright 6 N. J. Eq. 613. §426. Conrad v. Nail, 24 Jlich. 275. § 133. Conse(iua v. WiUings, 1 Pet C. C. 225. §§ 190, 295. Conservators of River Thames "v. HaU, L. R 3 C. P. 415. § 157. ConsoUdated, etc. Co. v. Cashow, 49 Md. 59. §§ 190, 192. Constantino v. Constantine, 6 Ves. 100. §138. V. Van Winkle, 6 Hill, 177. §§ 202, 212, 399, 483. Continental Imp. Co. v. Phelps, 47 Mich. 299. §§ 94, 309. Converse v. Buitows, 2 Minn. 229. §§ 207, 440. V. United States, 21 How. 463. §§ 240, 283. Conwell V. Hagerstown Canal Co, 2 Ind. 588. §§ 204, 325. Cook V. Clark, 10 Bing. 21. § 442. V. Com'rs, 6 McLean, 112. § 331, V. Gray, 6 Ind. 335. § 112. V, Meyer, 73 Ala 580. §§ 138,400. V. Moffat 5 How. 295. § 197. V. Moore, 95 N. C, 1. § 111, V, Mutual Ins, Co, 53 Ala. 37. §206, V. Oliver, 1 Woods, 437. § 20. V, Sexton, 79 N. C. 305. § 206. V, Tower, 1 Taimt 372, § 462, Cook County Nat Bank v. United States, 107 U. S. 445. § 154. Cooley V. Granville, 10 Cusli. 56. §380. CooUdge V. Williams, 4 Mass. 140. §§ 366, 398. Coomber v. Berks, L. R 9 Q. B. Div. 33. § 210. Cooper, Matter of, 15 John. 532. § 440. Cooper V. Ciu-tis, 30 Me. 488. § 107. V. Reaney, 4 Minn. 528, § 184. Coosa R R Co. v, Barclay, 30 Ala. 120, §§ 10, 480, 481, 482. Cope V. Dohei-ty, 2 De G. & J. 614. §§ 218. 219, 239. V. Rowlands, 2 M & W, 149. §§ 335, 336. V. Thames Haven, etc, Co. 3 Ex. Ul. § 456, xxxiv CASES CITED. Copeland, Ex parte, De G. M. & G. 914. §288. Copeman v. Gallant, 1 P. Wms. 314 §212. Copland v. Davies, L. R 5 H. L. Gas. 358. §§212,213. V. Powell, 1 Bmg. 369. § 277. Copley V. Sanford, 2 La, Ann. 335. §297. Corbett v. Bradley, 7 Nev. 106. § 449. V. Nutt, 10 WalL 464 § 420. CordeU v. State, 22 Ind. 1. §§ 133, 150. Core V. James, L. R. 7 Q. B. 135. §§ 355, 429. Corliss V. Corliss, 8 Vt 373. § 451. Cornell V. Moulton, 3 Denio, 12. § 111. V. Moulton, 5 Denio, 12. § 114 Coming v. Greene, 23 Barb. 33. § 75. V. McCullough, 1 N. Y. 47. § 474 Cornwall v. Todd, 38 Conn. 443. §363. Corporation v. Scott, 1 Cai 544 §378. Cortis V. Kent Water-works, 7 B. & C. 314 §§219,421. Corwin v. Men-itt, 3 Barb. 341. §§ 400, 454 Corg V. Cai-ter, 48 Ind. 227. § 119. Costa Rica v. Erlanger, L, R. 3 Ch. Div. 69. § 482. Cota V. Ross, 66 Me. 161. § 383. Cotton V. Brien, 6 Rob. (La.) 115. § 229. V. James, Mood. & Mai 278. §265. V. Leon Comity, 6 Fla. 610. §75. Cotton Planter, The, 1 Paine, 23. § 104 CottreU V. State, 9 Neb. 128. § 51. Couch V. Jeffries, 4 Burr. 2460. § 464 V. McKee, 6 Ark. 484 § 463. Countess of Rothes v. Kirkcaldy Water-works, L. R 7 App. Cas. 702. §§ 236, 270, 325, 328. County Commissioners v. Commis- sioners, 51 Md. 465. § 120. V. FrankUn R. R Co. 34 Md. 163. §78. V. Meekins, 50 Md. 39. § 78. Coxmty of Hardin v. McFarlan, 83 IlL 138. § 390. Coimty of York v. Grafton, 100 Pa. St 619. §212. Coimty Seat Linn Co. 15 Kan. 500. §255. Coiu-se V. Stead, 4 DalL 27, n- §§ 185, 293. Courtauld v. Legh, L. R 4 Ex. 126. §255. Coutieri v. Mayor, etc. 44 N. J. L. 58. §§ 87, 128. V. New Brunswick, 44 N. J. L. 363. §§ 87, 90, 128. Covington v. East St Loviis, 78 111. 548. §157. V. McMickle, 18 B. Mon. 269. §§ 212, 215, 219, 246, 428. V. Voskotter, 80 Ky. 219. §§ 94, 120, 193. Covington Drawbridge v. Shepherd, 20 How. 227. §§ 185, 193, 293. Cowley V. Rushville, 60 Ind. 327. § 132. Cox V. Robinson, 2 Stew. & Port 96. §190. V. State, 8 Tex. App. 254 § 198. Coxe V. Martin, 44 Pa. St 332. § 478. Coxson V. Doland, 2 Daly, 66. §§ 255, 256, 259, 267. Coy V. Coy, 15 IVIinn. 119. § 324 Crafts V. Clark, 38 Iowa, 237. § 184 Cragin v. Lamkin, 7 Allen, 395. §§ 191, 192. Craig v. Fkst Presb. Church, 88 Pa. St 42. § 101. Crake v. Crake, 18 Ind. 156. § 184 V. PoweU, 2 E. & B. 210. § 462. Crane v. Ailing, 2 Green (N. J.), 593. §436. V. Hardy, 1 Mich. 56. § 184 V. McGinnis, 1 Gill & J. 463. §10. V. Reeder, 22 Mich. 322. §§ 157, 158, 217. Crawford v. Spooner, 6 Moore's P. C 9. § 431. V. Tyson, 46 Ala. 299. § 283. Crawf ordsville, etc. T. Co. v. Fletcher, 104 Ind. 97. §§ 93, 95, 240, 300. CASES CITED. XXXV CrawhaJl's Trust, In re, 8 De G. Macii. & Gord. 480. § 253. Creighton, In re, 12 Neb. 280. § 396. V. Pragg, 21 Cal. 115. § 164. Cresoe v. Laidley, 2 Binn. 279. § 432. Crespigny v. Wittenoom, 4 T. R. 790. §§ 210, 212, 246. Cressey v. Parks, 57 Me. 387. §§ 113, 115. Cressy v. Tatom, 9 Ore. 542. § 184. Creswell v. Green, 14 East, 537. §115. Crigler V. Alexander, 33 Gratt 674. §§ 463, 464. Ci-isp V. Bunbury, 8 Bing. 894 §§ 165, 396. Crispin v. Doglioni, 3 S. & T. 96. §13. Crittenden v. Wilson, 2 Cow. 165. §§ 194, 202. Crocker v. Crane, 21 Wend. 211. §§ 234, 246. Cromelien v. Brink, 29 Pa. St 522. §§ 111, 114. Crone t. State, 49 Ind. 538. § 215. Crooke v. Brookling, 2 Vern. 107. §253. Crosby v. Bennett, 7 Met 17. g 325. V. Brown, 60 Bai-b. 548. § 363. V. Hawiiiorn, 25 Ala. 221. §§ 349, 356. V. Huston, 1 Tex. 237. § 429. V. Patch, 18 CaL 438. §§ 147, 327. Crosier v. Tomlinson, 2 Mod. 71. §§ 424, 426. Cross V. Harrison, 16 How. 196. § 104 V. McMacken, 17 :Mich- 511. §393. V. Pinckneyville JMill Co. 17 III 54 § 456. Crossman v. Grossman, 33 Ala. 486. §482. CrosweU v. Crane, 7 Barb. 191. § 256. Crow Dog, Ex parte, 109 U. S. 556. §§ 138, 157, 162. Crowder v. Stewart, L. R, 16 CIl Div. 370. § 212. Croxall V. Shererd, 5 Wall 268. §§ 194, 390. c Crozier v. Hodges, 3 La. 357. tj 184. Cruger v. Cniger, 5 Barb. 225. ^ 247. V. Dougherty, 43 N. Y. 107. g.^ 365, 457. CucuUu V. Louisiana Ins. Co. 5 Mart. (N. S.) (La.) 613. § 189. Cull T. Austin, L. R 7 C. P. 234 §§ 247, 258. Cullerton t. Mead, 22 Cal 95. §§ 207, 436. Culver V. Third Nat Bank, 64 111. 528. § 154 V. Woodi-uff Co. 5 DilL 392. § 482. Cumberland Co. v. Boyd, 113 Pa. St 52. § 300. Cvmiberland, etc. Canal v. Hitchings, 57 Me. 146. § 358. Gumming v. Frj-er, Dudley (Ga.), 182. §§ 360, 444 Cummings v. Akron Cement Co. 6 BlatcM. 509. § 232. V. Chandler, 26 Me. 453. § 165. V. Coleman, 7 Rich. Eq. 509. §254 T. Missouri, 4 WaU. 326. §§ 465, 467. Cummins v. Garretson, 15 Ark. 135. §400. V. State, 12 Tex. App. 121. §§ 12, 190. Cundell v. Dawson, 4 C. B. 376. §336. Cimningham t. Hanney, 12 ILL Ajip. 437. § 400. V. Mahan, 112 Mass. 58. § 115. V. State, 2 Speers, 246. § 246. Curlewis v. Mornington, 7 EL & R 283. § 424 Curran v. Owens, 15 W. Va. 208. §162. V. Shattuck, 24 CaL 427. § 387. Currier v. Marietta, etc. R R Co. 11 Ohio St 228. § 378. Curtis V. Embery, L. R 7 Ex. 369. §256. V. Gill. 34 Conn. 49. §§ 141, 204. V. Leavitt. 17 Barb. 309. § 325. v. Leavitt 15 N. Y. 1. §§ 139, 163, 169. XXXVl CASES CITED. Cui-tis V. McCvilIough, 3 Nev. 202. § 339. V. March, 4 Jur. (N. S.) 1112. §302. V. Martin, 3 How. 106. § 254. Cusliiug V. Worrick, 9 Gray, 382. §§ 223, 232. Cusic V. Douglas, 3 Kan. 123. § 476. Custer V. Yellowstone Co. 6 Mont 39, §333. Custin V. City of Viroqua, 67 Wis. 314. §§240,260. Cutler V. Supervisors, 56 Miss. 115. § 483. CutUp V. SlieriiT, 3 W. Va, 588. § 97. Cutter V. Carutliers, 48 CaL 178. §306. Cutts V. Hardee, 38 Ga. 350. §§ 10, 331, 476, 478. Daggett V. State, 4 Conn. 60. § 271. Daines v. Heath, 3 C. B. 941. § 362. Dakins v. Wagner, 3 DowL P. C. 535. ^ 112. Dalby v. Wolf, 14 Iowa, 228. § 75. Dale V. Irwin, 78 IlL 170. § 459. D'Allex V. Jones, 3 Jur. (N. S.) 979. § 335. Dahymple v. Dalr3Tnple, 3 Hagg. Consist. 81. § 190. Dalton V. Mui-phy, 30 Miss. 59. §454. Daly V. James, 8 Wheat. 535. § 187. V. State, 13 Lea. 228. §§ 119, 124 Dame's Appeal, 63 Pa. St. 417. § 358. Dane v. McArthur, 57 Ala. 454. §§ 41, 49. Danforth v. Smith, 83 Vt 347. § 164. V. Woodward, 10 Pick. 433. §§ 373, 433. Daniels v. Moses, 13 S. C. 130. § 488. Danks v. Quackenbush, 3 Denio, 594. §476. V. Quackenbush, 1 N. Y. 139. ' § 207. Dano V. Railroad Co. 37 Ark. 564 §346. Danvers v. Boston, 10 Pick. 513. §366. Danville v. Pace, 35 Gratt 1. § 480. Darby v. Wilmington, 76 N. C. 133. §174 Dariirig, Ex parte, 16 Nev. 98. § 10. Darling v. Boescli, 67 Iowa, 702. § 58. v. Rodgers, 7 Kan. 592. § 122. Darmstaetter v. ]\Ioloney, 45 IVIich. 621. §§ 257, 390. Darragh v. McKim, 2 Hun, 337. §169. Darrow v. People, 8 Colo. 417. § 137. Dartmouth CoUege v. Woodward, 4 Wheat. 518. §§ 381, 473, 473. Dash V. Van Kleeck, 7 John. 508. §§ 3, 10, 201, 206, 406, 463, 464, 480. DashieU v. Mayor, etc. of Baltimore, 45 Md. 615. §§ 165, 167. Daubman v. Smith, 47 N. J. L. 200. §§ 88, 93, 98, 103. Davenport v. Barnes, 3 N. J. L. 211. §§ 207, 410. V. Kleiusclunidt, 6 Mont 503. §§ 378, 384 V. Raih-oad Co. 37 Iowa, 634 §107. Davey v. Bm-Ungton, etc. R E. Co. 31 Iowa, 553. § 215. David V. ^tna Ins. Co. 9 Iowa, 45. §342. V. Southwestern R. R Co. 41 Ga. 223. § 371. Davidson v. Allen, 36 Lliss. 419. §§ 314, 318. V. Carson, 1 Wash. T'y, 307. §283. V. Clayland, 1 Har. & J. 546. §210. V. Kulm, 1 Disney, 405. § 452. V. Moorman, 3 Heisk. 575. § 26. V. New Orleans, 96 U. S. 97. §480. V. Sharpe, 6 Ind. 14 § 191. Davies v. Creighton, 33 Gratt 696. §138. V. Harvey, L. R 9 Q. B. 433. §143. Daviess v. Fairbairn, 3 How. 636. §§ 141, 154, 157, 204 Davis, Ex parte, 21 Fed. Rep. 396. §§ 135, 147. CASES CITED. XXXVU Davis V. Bank of Fulton, 31 Ga. 09. §96. V. Bowling, 19 Mo. 651. § 297. V. Branch Bank, 13 Ala. 463. §483. V. Carew, 1 Rich. 375. § 154. V. Clark, 106 Pa. St. 377. § 139. V. Commonwealth, 17 Gratt. 617. §390. V. Cur'Jng, 8 Q. B. 386. § 343. V Delpit, 35 Miss. 445. §§ 331, 403. T, Tarnes, 36 Tex. 396. § 390. V. Gaines, 48 Ark. 370. § 365. V. Gray, 16 Wall 303. § 473. V. Hmnphrey, 33 Iowa, 137. §433. V. Jacquin, 5 Harr. & J. 100. § 13. V. Justice, 31 Ohio St. :r9. § 376. V. Lumpkin, 57 Miss. 506. § 464. V. Mason, 1 Pet. 503. § 187. V. Minor, 1 How. (Itliss.) 183. §§ 163, 479, 480. V. Rogers, 14 Ind. 434. § 184. V. Standish, 26 Him, 608. §§ 374, 375. 78, 81, 84, V. State, 7 Md. 160, 103, 103, 131, 170. V. State, 3 Lea, 376. § 134. V. State Bank, 7 Ind. 316. § 483. V. Van Arsdale, 59 Miss. 367. §483. V. Village of Menasha, 31 Wis. 491. §10. V. Woolnough, 9 Iowa, 104. §§ 129, 130. V. Wood, 7 Mo. 165. § 63. Davison v. Farmer, 6 Ex. 343. §§ 145, 153. V. GUI, lEa.st,64. §204. V. Johounot, 7 Met 388. § 194. Davys v. Douglas, 4 H. & N. 180. §263. Daw V. Metropolitan Board, 13 C. B. (N. S.) 161. §§ 140, 304. Dawson's Appeal, 15 Pa. St. 480. §454 Dawson v. Dawson, 33 Mo. App. 169. §§ 347, 255. v. Horan, 51 Barb. 459. § 153. Day v. McGinnis, 1 Ileisk. 310. §^ 104, 108. v. Munson, 14 Ohio St. 488. § 314. Dayton v. jMcIntj're, 5 How. Pr. 117. §111. Dean, Ex parte, 2 Cow. 605. § 114 Dean v. Borchsenius, 30 Wis. 236. §§ 339, 307. V. Charlton, 37 Wis. 533. § 363. V. Kmg, 13 Ired. L. 20. § 107. V. :Mellard, 15 C. B. (N. S.) 19. §164 Dean, and Chapter of York v. Mid- dlebm-gh, 2 Y. «fe J. 196. §§ 373, 416. Dean of Ely v. Bliss, 2 De G. M. & G. 471. §403. Dean of York, Matter of," 2 Q. B. 34 §300. Dearborn v. Brookline, 97 Mass. 466. §367. V. Patton, 3 Ore. 420. § 167. De Begnis v. Armstead, 10 Bing. 107. §336. Debevoise v. N. Y. etc. R. R Co. 98 N. Y. 377. §§ 12, 13. De Bow V. People, 1 Denio, 14 §§ 36, 40, 181, 182, 294 De Camp v. Eveland, 19 Barb. 81. §§ 183, 331. V. Hibernia R R Co. 47 N. J. L. 43. § 387. De Cells v. United States, 13 Ct of CL 117. §§ 297, 300. De Chastellux v. Fairchild, 15 Pa, St 18. §§ 10, 480, 484 Deck v. Gherke, 6 CaL 666. § 397. De Cordova v. Galveston, 4 Tex. 470. §206. Deddrick v. Wood, 15 Pa. St 9. §§ 310, 313. Deerfield v. Arms, 20 Pick. 480. §439. Deermg v. York, etc R R Co. 31 Me, 173. §331. De Giacomo, In re, 12 Blatch. 391. §469. De Graff v. St. Paul, etc R R Co. 33 Minn. 174 § 473. -XXXVUl CASES CITED. De Groot t. United States, 5 "Wall. 419. § 136. De Kay v. Darrah, 14 N. J. L. 288. g426. Delano v. Jopling, 1 Litt. 117. §§ 181, 295. Dela plane v. Cranshaw, 15 Gratt. 479. §§ 298, 300. Delaware, etc. R R. Co. v. Burson, 61 Pa, St 369. § 367. Dells V. Kennedy, 49 Wis. 555. § 174. Delmas v. Ins. Co. 14 Wall. 665. § 429. De Lorme v. Pease, 19 Ga. 220." § 342. Den T. Diamond, 4 B. & C. 243. § 362. v. Robinson, 5 N. J. L. 689. § 164. Dendy v. Gamble, 64 Ga. 528. § 422. Denliam V. Holeman, 26 Ga. 182. §424 Denn v. Reid, 10 Pet. 524. §§ 236, 237, 410. Dennick v. Centi-al R. R. Co. 103 U. S. 11. §§ 14, 188. Denning v. Cor win, 11 Wend. 647. §391. V. Foster, 42 N. H. 165. § 342. V. Smith, 3 John. Ch. 331. § 454. Denny v. Mattoon, 2 Allen, 361. § 10. Dent V. Ross, 52 Miss. 188. §§ 392, 398. Denton v. Reading, 22 La. Ann. 607. §§ 234, 236. Dentzel v. Waldie, 30 Cal. 138. §§ 164, 483. Denver Circle R. R. Co. v. Nestor, 10 Colo. 403. § 135. Department Pub. Works, In re, 86 N. Y. 347. §§ 92, 93. Depas V. Riez, 2 La. Ann. 30. § 246. De Pauw v. New Albany, 22 Ind. 204. § 202. Deposit, Village of, v. Vail, 5 Hun, 310. § 169. Dequasei v. Harris, 16 W. Va 345. §§ 394, 400. Dequindre v. WilUams, '31 Ind. 444. §206. Derr v. Lubey, 1 MacArthur, 187. - §428. De Russey v. Davis, 13 La. Ann. 468. §380. Desban v. Pickett, 16 La. Ann. 350. §138. De Sentamanat v. Sole, 33 La. Ann. . 609. §§ 260, 261. Des Moines V. Gilchrist, 67 Iowa, 210. §§ 390, 456. Desmond v. Dunn, 55 CaL 242. § 129. Desnoyer v. McDonald, 4 Minn. 515. §184. De Sobry v. De Laistre, 2 Har. & J. 191. §§ 192, 297. Deters v. Renick, 37 Mo. 597. § 157. Deti-oit V. Chaffee, 70 Mich. 80. §371. V. Plank Road Co. 43 Mich. 140. §473. V. Putnam, 45 Mich. 263. § 371. De Vaucene, In re, 31 How. Pr. 337. §§ 87, 93, 120, 124, 170. De Veaux v. De Veaux, 1 Strob. Eq. 283. §g 247, 346. Devine v. Board of Commissioners, 84 111. 590. ^ 129. Devoy v. Mayor, 35 Barb. 264. § 137. De Vries v. Conkling, 22 mdh. 255. §400. Dew V. Cunningham, 28 Ala. 471. §49. Dewart v. Purdy, 29 Pa. St 113. § 206. Dewees v. Colorado, 32 Tex. 570. §298. DeAvey v. Goodenough, 56 Barb. 54 §§ 350, 400. v. Gray, 2 CaL 374 § 320. Dewhurst v. Alleghany, 95 Pa. St 437. § 170. V. Fielden, 7 M. & G. 182. §§ 266, 327. De Winton v. Mayor, 26 Beav. 53a §153. V. Mayor of Brecon, 28 L. J. Ch. 600. § 217. De AVolf V. Rabaud, 1 Pet 479. §§ 185, 186. Dexter v. Cranston, 41 Mich. 44a §§ 113, 114 CASES CITED. XXXIX Dexter v. Limerick P. R. Co. v. Allen, 1(> Barb. 15. g 154. V. Sliepard. 117 Mass. 480. § 114. Deyiaud, Succession of, 9 Rob. (La.) 357. § 463. Diana, Tlie, 4 Moore, P. C. 11. § 3G4. Dibrell v. Dandridge, 51 Miss. 55. §^ 392, 398. Dick's Appeal, 106 Pa. St 589. §§ 157, 266, 396, 440. Dickenson v. Breedeu, 30 IlL 279. §181. V. Fletcher, L. R. 9 C. P. 8. §§ 256, 352. Dickey v. Hurlburt. 5 CaL 343. § 10. Dickins v. N. Y. Cent. R. R Co. 23 N. Y. 159. § 371. Dickinson v. Northeastern R'y Co. 2 H. & C. 735. § 371. V. Van Wormer, 39 Jklich. 141. §399. Diedrick v. Richley, 2 Hill, 271. §439. Diez, In re, 56 Barb. 391. §§ 184, 190. Diggle V. London, etc. R. R. Co. 5 Ex. 442. § 456. Dikeman v. Dikenian, 11 Paige, 484. §478. Dillard, Ex parte, 68 Ala 594. § 111. Dillard v. Alexander, 9 Heisk. 719. §20. V. Noel, 2 Ark. 449. § 397. Dillon V. Dougherty, 2 Grant's Cas. 299. § 480. V. Lmder, 36 Wis. 344 § 167. Dingley v. Moore, Cro. Ehz. 750. § 136. Dismukes v. Stokes, 41 Miss. 431. § 164. Di Sora v. Phillips, 10 H. of L. Cas. 624. § 192. Distilled Spirits, The, 11 Wall. 356. §138. Disti'ict of Columbia v. Washington Market, 108 U. S. 243. § 300. District Township of Dubuque v. Dubuque, 7 Iowa, 262. §§ 204, 325, 326. Divine v. Harvie, 7 T. B. Mon. 443. §335. Division of Howard Co. 15 Kan. 194. §300. Dixon V. Caledonian R'y Co., L. R. 5 App. Cas. 827. § 322. V. Nicolls, 39 IlL 372. § 302. V. Thatcher, 14 Ark. 141. § 190. Doan V. Boley, 38 Mo. 449. § 63. Dobbins v. First Nat. Bank, 112 IlL 553. §§ 225, 482. V. Northampton, 50 N. J. L. 496. § 128. Dobbs V. Grand Junction Water- Works, L. R, 9 Q. B. Div. 158. §138. Dockstader v. Sammons, 4 HUl, 546. § 371. Dodd v. State, 18 Ind. 56. § 211. Dodge, Ex parte, 7 Cow. 147. § 115. Dodge V. County of Platte, 16 Hun, 285. § 480. V. Gardiner, 31 N. Y. 239. § 292. V. Gridley, 10 Ohio, 173. § 287. V. Williams, 46 Wis. 92. §§ 15, 184. V. Woolsey, 18 How. 331. §§ 197, 480. Doe V. Avaline, 8 Ind. 6. § 367. V. Chuun, 1 Blackf. 336. § 390. v. Considine, 6 Wall. 458. §§ 246, 260. V. Eslava, 11 Ala. 1028. §§ 181, 189. V. Harvey, 4 B. «fe C. 610. § 247. V. Naylor, 2 Blackf. 32. § 168. V. Snaith, 8 Biug. 146. § 362. V. Waterton, 3 B. & Aid. 149. § 423. Doggett V. Catterns, 17 C. B. (N. S.). 669; 19 C. B. (N. S.) 765.' §280. V. Walter. 15 Fla, 355. § 311. Dohorty v. Alhnan, L. R. 3 App. Caa. 709. § 333. Dolan V. Thomas, 12 Allen, 421. §143. Dolder v. Huntingfield, 11 Yes. 283. § 297. xl CASES CITED. Dole V. Wilson, 16 Minn. 525. § 294. Dolese t. Pierce, 120 IM. 140. § 101. Domick v. Mchael, 4 Sandf. 374. § 256. Don V. Lippmann, 5 CL & Fin, 1. §479. Donaldson v. Beckett, 2 Bro. P. C. 129. § 399. Donnell v. State, 48 Miss. 679. §§ 4, 21. Donner v. Palmer, 23 Cal. 40. § 206. Donoliue v. Ladd, 31 Minn. 244. §260. Dooling V. Moore, 20 CaL 14 § 454. Doolubdass v. Ramloll, 7 Moore P. C. 239. § 206. Dorr V. Gibboney, 3 Hughes, 382. §20. Dorris v. Erwin, 101 Pa. St 239. §400. Dorsey's Appeal, 72 Pa. St 192. §§ 78, 83, 86, 87. 88, 102, 103, 170. Dorsey t. Dorsey, 31 Md. 64. § 119. Dougherty v. Bethime, 7 Ga. 90. §213. Doughty V. Hope, 3 Denio, 594. §§ 400, 457. V. Hope, 1 N. Y. 79. §§ 207, 390, 457. Douglas V. Douglas, 5 Hun, 140. §§ 156, 256. Douglass, In re Petition of, 58 Barb. 174. §§ 447, 457. Douglass V. Chosen Freeholders, 38 N. J. L. 212. §§ 235, 237, 238. V. Eyre, Gilpm, 148. §§ 252, 261. V. Mayor, etc. 18 CaL 643. § 365. V. Pike Co. 101 U. S. 677. §§ 206, 319, 474. V. Placerville, 18 CaL 643. § 380. Dousman v. O'Malley, 1 Doug. (Mich.) 450. §§ 111, 112. Dover Gas L. Co. v. Dover, 7 De G. M. & G. 545. § 443. Dow V. Beidehnan, 49 Ark. 325. §125. V. Johnson, 100 U. S. 158. § 20. Dowdell V. State, 58 Ind. 333. §§ 142, 143. Dowling V. Smith, 9 l\Id. 242. § 104 V. State, 5 Sm. & M. 664 § 469. Downer v. Rugar, 21 Wend. 178. §390. Downie v. Hendrie, 46 Mich. 498. §306. DowTiing V. Baldwin, 1 S. & R 298. §437. V. Lmdsay, 2 Pa St 382. § 424 V. IVmtonvale, 36 Kam. 740. § 296. Downs y. Town of Huntington, 35 Conn. 588. §§ 165, 167, 225. Doyle V. Continental Ins. Co. 94 U. S. 535. § 330. V. Howard, 16 Mich. 261. § 390. V. Mizner, 41 Mich. 549. §§ 111, 113. Dozier v. EUis, 28 Miss. 730. §§ 368, 426. Drain Com'r v. Baxter, 52 IVIich. 127. §311. Drake v. Andrews, 2 Mich. 203. § 115. V. Drake, 4 Dev. 110. § 261. V. FleweUen, 33 Ala. 106. § 194 V. Jordan, 73 Iowa, 653. § 469. V. State, 5 Tex. App. 649. § 325. V. Wilkie, 30 Hun, 537. § 479. Drennan v. People, 10 Mich. 169. §403. Draper v. FaUey, 33 Ind. 165. g§ 131, 132. Drayton v. Grimke, 1 Bailey's Eq. 239. §437. Dred Scott v. Sanford, 19 How. 445. §§ 24, 25, 70. Drew County v. Bennett, 43 Ark. 364 §142. Drew V. Dequindre, 2 DougL (Mich.) 93. § 893. V. Wakefield, 54 Me. 291. § 184. Drummond t. Drummond, L. R 2 Ch, 45. § 300. Duane's Case, 1 Binn. 601. § 166. Duanesburgh v. Jenkins, 46 Barb. 294. § 456. V. Jenkins, 57 N. Y. 191. §§ 482, 483. Dubos T. McLean, 4 McLean, 486. §206. CASES CITED. idi Dubuque v. Dubuque, 7 Iowa, 262. §g 204, 325, 326. Dubuque R. R Co. v. Des Moines R. R. Co. 109 U. S. 329. § 379. T. Litchlield, 23 IIovv. 66. § 379. Dudley, In re Corporation of, L. R. 8 Q. B. Div. 93. § 344. Dudley v. Mayhew, 3 N. Y. 9. §§ 204, 207, 325, 399. V. Reynolds, 1 Kan. 285. § 324. V. Steele, 71 Ala, 423. g 256. Duff V. Fisher, 15 Cal. 325. § 314. Duffy V. Ogden, 64 Pa. St. 240. § 111. Dugan V. Bridge Co. 27 Pa. St 303. g§ 221, 380. V. Gittings, 3 Gill, 138. §§ 138, 154, 283. Dulany v. lilghman, 6 G. & J. 461. §§ 164, 194. Dull V. People, 4 Denio, 94. §§ 227, 349. Dunbar v. Roxburghe, 3 CL & Fin. 335. §§ 308, 312. Duncan v. Drakeley, 10 Ohio, 47. §398. T. State, 7 Humph, 148. § 229. Duncombe v. Prindle, 12 Iowa, 1. §g 35, 183, 213, 294. Dunehn, The, L. R. 9 P. Div. 171. § 254. Dunham v. Sage, 52 N. Y. 229. § 146. V. Wright, 53 Pa. St 167. § 458. Dunlap, Ex parte, 71 Ala. 93. § 240. Dunlap V. Crawford, 2 McCord Eq. 171. § 229. T, Wagner, 85 Ind. 529. §§ 375, 376. Dunmore, Appeal of Borough of, 52 Pa. St 374 § 473. Dunnebaum v. Schram, 59 Tex 281. §445. Du Page County v. Jenks, 65 lU. 275. § 390. Duquesne Savings Bank's Appeal, 96 Pa. St 298. § 324. Duramus v. Han-ison, 26 Ala. 326. §256. Durham, Inhabitants of, v. Inliabit- ante of L. 4 Greenl. 110. § 10. Durham v. Lewiston, 4 Me. 140. § 119. Durkee v. JanesviUe, 26 Wis. 697. §§ 78, 90. Dm-yee v. Mayor, etc. 96 N. Y. 477. § 109. Dutton V. Howell, Show. P. C. 32. § 15. Duval V. Malone, 14 Gratt 28. §46a DweUy v. Dwelly, 46 Me. 377. §§ 139, 207, 290. Dwight V. Richardson, 12 Sm. & JL 325. §§ 184, 191. Dyer v. Best, L. R 1 Ex. 152. § 308. V. Covington Township, 28 Pa. St 186. § 157. V. Smith, 12 Conn. 384. §§ 190, 192. v. State, Meigs, 237. §§ 104, 168. Dyson v. Sheley, 11 Mch. 527. §39a V. West, 1 Har. & J. 567. g§ 394, 400. Eagan v. State, 53 Ind. 162. § 303. Eager, In re Petition of, 58 Barb. 557. §464 Eakin v. Raub, 12 S. & R 363. § 206. Earl of Ailesbmy v. Pattison, 1 Doug. 28. §§ 283, 288. Earl of Shrewsbury v. Scott, 6 C. R (N. S.) 1. § 194 Earl of Water! ord's Peerage, 6 CL «& Fin. 173. § 308. Earle v. Board of Education, 55 CaL 489. §§ 129, 132. Early v. Doe ex dem. Romans, 16 How. 615. § 114 Earthman v. Jones, 2 Yerg. 484 §391. Easley v. Whipple, 57 Wis. 485. § 322. East Haven v. Hemingway, 7 Corm. 186. § 386. East India Interest 3 Bing. 196. §§ 348. 350. Eastman v. :McAlpin, 1 Ga. 157. §210. East Union Townsliip v. Ryan, 86 Pa. St 459. § 390. Eastwood V. Miller, L. R 9 Q. B. 440. § 280. Eaton V. Green, 22 Pick. 526. § 322. xlii CASES CITED. Eaton V. Walker, 76 Mich. 579. § 103. Ebbs T. PovOnois, L. R. 10 Cli. 479. §243. Eby's Appeal, 70 Pa St. 311. § 267. Eckhart v. State, 5 W. Va. 515. g§ 174, 180. Eckloff V. Dist of Columbia, 2 Mackay, 573. §153. Edeubiu-gh R. R. v. Wauchope, 8 CI. & F. 710. § 193. Edge T. Commonwealtli, 7 Pa. St. 375. § 333. Edger v. County Commissioners, 70 Ind. 331. § 30 . Edgerly v. Bush, 81 N. Y. 199. § 188. Edinbm-gh, etc. R. R. Co. v. Linlith- gow, 3 Macq. H. L. Cas. 704. §313. Edmonds v. Lawley, 6 M. & W. 285. §§ 306, 464, 482. Edmundson v. Wragg, 104 Pa. St. 500. ^§ 114, 115. Edsou V. Hayden, 30 Wis. 683. § 273. Edward v. Trevellick, 4 E. & B. 59. §§ 356, 429. Edwards v. Darby, 13 Wheat. 306. §309. V. Davis, 16 John. 381. § 307. V. Dick, 4 B. & Aid. 313. § 240. V. Gouldmg, 38 Miss. 118. §§ 289, 290, 400. V. Grand Junction R. R. Co. 10 Eng. Ch. 85. § 194. V. HaU, 30 Ai-k. 31. § 448. V. Jagers, 19 Ind. 407. § 473. V. Kearzey, 96 U. S. 595. §§ 471, 477, 479. V. Williamson, 70 Ala. 145. §§ 206, 331. Egerton v. Tlurd Municipality, 1 La Ann. 435. §§231,246,429. Egnew V. Cochrane, 2 Head, 339. §§ 17, 184, 189, 301. 307. Egypt Street, 2 Grant's Cas. 455. §138. Eilers v. Wood, 64 Wis. 422. § 390. Eld V. Gorham, 30 Conn. 8. §§ 27, 53. Elder v. Bemis, 2 Met 599. § 333. Elder v. Bradley, Adm'r, 2 Sneed, 252L § 113. v. State, 96 Ind. 163. § 134. Eldi-idge v. Pierce, 90 111. 474 § 364 Electric M. etc. v. Van Auken, 9 Colo. 204. §§ 219, 438. Eliot V. Himrod, 108 Pa St. 569. §§ 355, 356. Elliot V. Lyell, 3 Call, 368. § 463. Elizabethto-wn, etc. R. R. Co. v. Ehza- bethtown, 13 Bush, 233. §§ 138, 151, 152. Ellingham v. Mount, 43 N. J. L. 470. §343. Elliott V. Chapman, 15 CaL 383. §454 V. Lochuane. 1 Kan. 135. § 160. V. Swartwout, 10 Pet 137. §§ 254, 346. Ellis, Ex parte, 11 Cal. 233. §§ 218, 338, 346. V. Hutcliinson, 70 Mich. 154 §103. V. Maxson, 19 Mick 186. § 184 V. Murray, 38 Miss. 139. §§ 267, 278. V. Owens, 10 M. & W. 521. § 310. T. Paige, 1 Pick. 45. §§ 154, 155. V. Park, 8 Tex. 205. § 306. V. Whitlock, 10 Mo. 781. §§ 360, 444. V. Wiley, 17 Tex. 134 § 190. Ellison V. Mobile, etc. R. R. Co. 36 Miss. 572. §§ 215, 239. Elmendorf v. Carmachael, 3 Litt 473. §194 V. Taylor, 10 Wheat 153. §§ 186, 191, 293. Elmwood V. Marcy, 92 U. S. 289. §185. Ekod V. Gilliland, 27 Ga 467. § 138. Elsworth V. Cole, 2 K & W. 3L §212. Elton V. Geissert, 10 Pliila 330. § 217. Elwood V. Flannigan, 104 U. S. 568. §185. Ely V. Holton, 15 N. Y. 595. §§ 133, 137. 206. V. James, 123 Mass. 36. §§190,192- CASES CITED. xliii Ely V. Thompson, 3 A. K ^larali. 70. §§ 136, 138. Emanuel v. Constable, 3 Russ. 436. g212. Emerick v, HaiTis, 1 Binn. 416. § 169. Emerson v. Atwater, 7 Midi. 33. §313. V. Clayton. 32 111. 493. § 146. V. Commonwealth, 108 Pa. St 111. § 433. Emery v. Berry, 28 N. H. 486. § 190. Emigrant Industrial Savings Bank, In re, 75 N. Y. 388. § 457. Emory v. Addis, 71 IlL 273. §§ 374, 375. Employers' L. Co. v. Commissioner of Ins. 64 Mich. 514. § 309. Emporia v. Norton, 13 Kan. 569. §g 130, 134. Enfield Toll Br. Co. v. Hartford, etc. R R Co. 17 Conn. 40 and 454. §473. Engelking v. Von Wamel, 26 Tex. 469. § 247. Engleken v. Hilger, 43 Iowa, 563. §375. V. Webber, 47 Iowa, 558. § 377. English V. Beard, 51 Ind. 489. § 373. V. OUver, 28 Ark. 317. §§ 46, 183. V. State, 7 Tex App. 171. §§ 93, 95. Enloe V. Reike, 56 Ala. 500. § 151. Emiis V. Cnimp, 6 Tex. 34. § 256. V. Smith, 14 How. 400. §§ 186, 190, 192. Enos V. Buckley, 94 HI. 458. § 146. Ensign v. Barse, 107 N. Y. 329. § 95. Enterprise, Schooner, The, 1 Paine, 32. §g 347, 349, 353. Entick V. Carriugton, 19 How. St Tr. 1029. § 414. Epps V. Epps, 17 III App. 196. § 223. Equitable L. Ins. Co. v. Gleason, 56 Iowa, 48. § 469. Erie v. Knapp, 29 Pa. St 173. § 428. Erie, etc. R R Co. v. Casey, 1 Grant's Gas. 274. § 10. Erliuger v. Boneau, 51 IlL 94. § 76. Ernst V. Morgan, 39 N. J. Eq. 391. §128. Eshleman's Appeal, 74 Pa. St 42. g§ 240, 253. Eskridge v. Ditmars, 51 Ala. 245. § 482. V. McGruder, 45 Miss. 294. § 283. Estep V. Hutchman, 14 S. & R. 435, §194 Esterbrook INIfg. Co. v. Ahem, 30 N. J. Eq. 341. § 306. Esterley's Appeal, 54 Pa. St 192. §290. Em-eka Case, 4 Sawyer, 302. §218. Em-eka v. Davis, 21 Kan. 580. §§ 88, 92. Eustis V. Kidder, 26 Me. 97. § 448. Evans v. Browne, 30 Ind. 514. § 38. V. Jones, 9 Bing. 311. § 419. V. Memphis, etc. R R Co. 56 Ala. 246. §§ 86, 102. V. Montgomery, 4 Watts & S. 218. §§ 10, 476. V. Myers, 25 Pa. St 114 § 308. V. Pratt, 3 M & G. 767. § 441. V. Stevens, 4 T. R 462. §§ 247, 270. V. WiUiams, 2 Drew. & Sm. 324 §§ 463, 481. Evansville v. Bayard, 39 Ind. 450. §§ 140, 159. Evansville, etc. R R. Co. v. Barbee, 74 Ind. 169. S 107. Evanturel v. Evantxirel, L. R 2 P. C. 462. §310. Everett v. Wells. 2 Man- & Gr. 269. §258. V. Wells, 2 Scott N. R 531. § 324 Evergreens, flatter of, 47 N. Y. 216. §152. Evernliam v. Huht, 45 N. J. L. 53. §135. Ewart v. WiUiams, 3 Drew. 21. §300. Ewell V. Daggs, 108 U. S. 148. § 164 Ewer V. Jones, 2 Salk. 415. § 399. Ewing's Case, 5 Gratt 701. §§ 206, 469. Ewing V. Biu-net 11 Pot 41. § 234 V. Ewmg, 24 Ind. 470. § 315. xliv CASES CITED. Ewing T. Hoblitzelle, 85 Mo. 64. § 93. Excelsior Manvif g Co. v. Keyser, 63 Miss. 155. § 482. Excelsior Peti'oleum Co. v. Embury, 67 Barb. 261. §§ 140, 154. Eyre t. Jacob, 14 Gratt 422. § '332. Eyston v. Studd, 3 Plowd. 464. §§ 334, 258, 411, 413. Eziekel v. Dixon, 3 Ga. 151. §§ 234, 236, 241. Fackler v. Fackler, 14 Mo. 431. § 424. Fairchild v. Gwynne, 14 Abb. Pr. 121. §§ 104, 107, 110, 300, 434. V. Masonic Hall Asso. 71 Mo. 526. § 261. Fairfield v. County of GaUatin, 100 U. S. 47. § 319. V. Ratcliff, 20 Iowa, 396. § 365. Falconer v. CampbeU, 2 McLean, 195. §54. V. Eobinson, 46 Ala, 340. §§ 88, 135. Falk, Ex parte, 42 Ohio St 683. §§ 117, 120, 123. Fall Brook Coal Co. v. Lynch, 47 How. Pr. 520. § 193. FaUon, Ex parte, 5 T. R 283. §§111, 113. Fant V. Gibbs, 54 Miss. 896. § 174. Faqua v. MuUen, 13 Bush, 467. §§ 102, 103, 170. Farley v. Bonham, 2 J. & H. 177. §300. V. De Waters, 3 Daly, 193. §§ 138, 145. V. Dowe, 45 Ala. 334. § 476. Farmer v. People, 77 la 322. §§ 164, 236. Farmers' Bank v. Hale, 59 N. Y. 53. §§ 160, 330, 333, 346. Farmers', etc. Co. v. Chicago, etc. R R Co. 39 Fed. Rep. 143. § 331. Farmers' Ins. Co. v. Highsmith. 44 Iowa, 330. §§ 93, 96. Farmers', etc. Nat Bank v. Dearing, 91 U. S. 29. § 351. Farmer's Heirs v. Fletcher, 11 La. Ann. 142. § 314. Farmers' L. & T. Co. v. Oregon, etc R R Co. 24 Fed. Rep. 407. §§ 93, 96. Farmers' & Mechanics' Nat Bank v. Deariag, 91 U. S. 29. §§ 359, 360. Farmers' Turnpike v. Coventry, 10 John. 389. § 303. Famswcrth v. Lisbon, 62 Ma 451. §67. Farnum v.. Blackstone Canal Corp. 1 Sumn. 46. § 324 Farr v. Brackett, 30 Vt 344. § 154. Farrar v. Bates, 55 Tex. 193. § 299. Farrell Foimdry t. Dart, 36 Conn. 376. §§ 337, 338, 431. Fairington v. Rennie, 3 Cai. 330. § 371. Farris v. Houston, 78 Ala. 350. § 464. Favers v. Glass, 32 Ala. 621. § 248. Favorite v. Booher, 17 Ohio St 548. §§ 368, 426. Fayette Co. v. Faires, 44 Tex. 514. §§ 138, 154. Featherstonh v. Compton, 8 La, Ann. 285. § 482. Feemster v. Rmgo, 5 T. B. Mon. 336. §306. Feibleman v. State, 98 Ind. 521. § 132. Feldman v. Morrison, 1 111. App. 460. § 325. FeU V. State, 42 Md. 71. §§ 73, 75. FeUowes v. Clay, 4 Q. B. 356. § 300. Fellows v. Walker, 39 Fed. Rep. 651. §138. Felt V. Felt 19 Wis. 193. §§ 158, 217, 325. Fenlon, Petition of, 7 Pa St 173. §§ 165, 464. Fenton v. Livingstone, 3 Macq. H. .L. Cas. 497. § 12. V. State, 100 Ind. 598. § 303. Fenwick v. SchmaLz, L. R 3 C. P. 315. §§ 270, 276, 278. Ferguson, Ex parte, L. R 6 Q. B. 291. §404. Fergusson v. Norman, 5 Bing. N. C. 76. § 336. Fermoy Peerage Claim, 5 H. of Lk Cas. 747. §§ 307, 313. CASES CITED. xlv Ferris v. Higley, 20 WalL 375. §§ 312, 395. 'Fertilizing Co. v. Hyde Park, 97 U. S. 659. §§381,473. Fessenden v. HiU, G Mich. 242. §§207, 393, 401. Fidelity Ins. Co. v. Shenandoah V. R R Co. 9 S. E. Rep. 759. § 103. Fidelity Trust Co. v. Gill Car Co. 25 Fed Rep. 737. § 396. Fidler v. Hershey, 90 Pa, St 363. §440. FieH V. Gooding, 106 Mass. 310. §aio. Field's Heirs v. Goldsby, 28 Ala. 218. §315. Field V. People, 3 Scam. 79. § 229. V. Silo, 44 N. J. L. 355. § 127. Fifield V. Marinette Co. 62 Wis. 532. §452. FUes V. Fuller, 44 Ark. 273. §§ 136, 225. Finch V. Birmingham Canal Co. 5 B. & C. 820. § 441. Finn v. Haynes, 37 Mich. 63. § 206. Finney t. Ackerman, 21 Wis. 268. § 206. Fire Department of Troy v. Bacon, 3 Abb. App. 127. § 198. Firemen's Benefit Asso. v, Loimsbury, 21 111. 511. § 96. First National Bank v. Yankton, 101 U. S. 129. §§ 23, 24. First Nat. Bank of Whitehall v. Lamb, 50 N. Y. 95. § 220. First School Dist v. Ufford, 53 Conn. 44 § 207. Fisher v. Bidwell, 27 Conn. 363. §400. V. Connard, 100 Pa. St 63. §§ 258, 259, 267. V Harnden, 1 Paine, 55. § 138. V. Horicon I. Co. 10 Wis, 355. § 314. V, McGu-r, 1 Gray, 1. § 170. V. New York, etc. R R Co. 46 N. Y. 644 § 166. Fishkill V. F. & B. Co. 22 Baib. 634. §§ 78, 87, 88, 93, 170. Fishwick v. Sewell, 4 H. & J. 399. §425. Fisk V. VameU, 39 Tex. 73. § 390. Fitzgerald, Matter of, 2 CaL 318. §400. Fitzgerald v. Champnejs, 30 L, J. (Ch.) 782 ; 2 Johns. & H. 31. §157. V. Quan, 109 N. Y. 441. § 139. Fitzpatrick v. Gebhart 7 Kan. 35, §§ 234 237, 238. Flaherty v. Thomas, 12 Allen, 428, §142. Flandei-s v. Merrimack, 48 Wis, 567. §162. Flanagan v. Plainfield, 44 N. J. L. 118. §180. Flanigan t. Washington Ins, Co, 7 Pa, St 306. §§ 181, 190, Flatan v. State, 56 Tex. 94 § 448. Fleischner v. Chadwick, 5 Ore, 153. §§ 135, 169, 170. Fletcher v. Lord Sondes, 3 Bing. 580. §349, V, Peck, 6 Cranch, 138, §§ 465, 472. V. State, 54 Incl 462. § 96. Flint V. Gawer, 66 Iowa, 696. § 377. Flint etc. Co. v. Woodhull, 25 Mich. 99. §§ 3, 237, 330. Flint River Steamboat Co. v. Foster, 5 Ga 194 §§ 322, 366. Flory V. Wilson, 83 Ind. 391. § 454 Flower t. Witkovsky, 69 Mich. 371. §§ 373, 374 Floyd V. Johnson, 2 Litt 109. § 303. V. Perrin, 30 S. C. 1. § 96. V. Ricks, 14 Ark. 286. § 303. Flynn v. Abbott 16 Cal. 358. § 211, Fogg V. Holcomb, 64 Iowa, 631, §§ 164 298. Foley V. Bourg, 10 La. Ann, 129, § 332. V. Fletclier, 28 L, J. Ex, 106. §348. FoUamb's Case, 5 Coke, 116. § 341, Folkers v. Powei-s, 42 ]\Iich. 283. §365. FoUiott V. Ogden, 1 H. Black. 135, § 12L xlvi CASES CITED. Folmers Appeal. 87 Pa. St 133. §221. Folsom, In re Petition of, 2 T. & C. 55. § 456. Foltz T. Hoge, 54 CaL 28. § 402. Fontaine v. Houston, 58 Ind. 316. §394. Foot V. Stevens, 17 Wend. 488. § 391. Foote V. Vanzandt, 34 Miss. 40. §§ 208, 350. Forbe v. Foot, 2 McCord, 331. § 424. Forbes v. Smith, 11 Ex. 161. §§ 424, 425. Ford, In re Petition of, 6 Lans. 92. §456. Ford V. Booker, 53 Ind. 395. § 132. V. Farmer, 9 Humph. 152. § 183. V. Ford. 143 Mass. 577. § 261. V. Johnson, 34 Barb. 364. § 422. Fordyce v. Bridges, 1 H. of L. Cas. 1. ^§ 235, 237. V. Godman, 20 Ohio St 1. §§ 42, 253. Fore V. WiUiams, 35 Miss. 533. § 221. Fork Ridge Baptist Cemetery Asso. V. Redd, 10 S. E. Rep. 405. § 387. Forqueran v. Donnally, 7 W. Va. 114 §§ 138, 288. Forshey v. Raihoad Co. 16 Tex. 516. §§ 401, 439. Forsyth v. Marbury, P. M. Charlt 333. § 206. V. Warren, 62 III 68. §§113, 114. Fort V. Bm-ch, 6 Barb. 60. §§ 288, 321, 407. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. § 164. Fosdick V. Perrysburg, 14 Ohio St 472. §§ 107, 157, 158, 256, 300. Fortune v. St Louis, 23 Mo. 239. S428. Foster's Case, 11 Rep. 586. §§ 217, 222 325. Foster v. Blount, 18 Ala. 682. §§ 219, 268, 279, 280, 365. V. Collner, 107 Pa. St 305. § 240. V. Commonwealth, 8 W. & S. 77. §§ 252, 260. V. Illinski, 3 111. App. 345. g 393. V. Neilson, 2 Pet 253. § 197. Foster v. Oxford, etc. R. R. Co. 13 C. B. 200. § 336. V. Pritchard, 2 H. & N. 151. § 223. V. Rhoads, 19 John. 191. §§ 350, 390. V. Taylor, 2 Overt. 190. § 190. Fouke V. Flemmg, 13 Md. 392. § 184. Fourth Nat Bank v. Francklyn, 1^0 U. S. 747. § 293. Fowle v. Alexandi-ia, 3 Pet 398. § 365. V. Ku-kland, 18 Pick. 299 § 167. Fowler v. Padget 7 T. R. 509. §§ 252, 260, 355. V. Peu-ce, 2 CaL 105. § 41. V. Pirkius, 77 IlL 271. § 138. v. ScuUy, 72 Pa. St 456. §§ 327, 336. V. Smith, 2 CaL 39, 568. § 19. V. Stoneum, 11 Tex. 478. § 184. v. Tuttle, 24 N. H. 9. § 267. Fox's Appeal, 112 Pa. St 337. § 363. Fox V. AUensville, 46 Ind. 31. § 114. V. New Orleans, 12 La. Amu 154. §§ 207, 410. V. Sloo, 10 La, Ann. 11. §§ 207, 410. Fox, Town of, v. KendaU, Town of, 97 IlL 72. §§ 75, 107. Francklyn v. Long Island City, 33 Hun, 451. § 483. Frank v. San Francisco, 21 CaL 668. §206. Frankhn v. Frankhn, 1 Md. Ch. 342. §§ 207, 410. V. Westfall, 27 Kan. 614. § 171. Franklin Glass Co. v. White, 14 Mass. 286. §454. Eraser v. Willey, 2 Fla. 116. § 449. Frazer, Ex parte, 54 CaL 94. § 169. Frazier v. Towti of Tompkins, 30 Him, 168. § 481. V. Warfield, 13 Md. 279. § 308. Frecking v. Rolland, 53 N. Y. 422. §338. Fredericks v. Howie, 1 H. & C. 381. §219. Free v.- Burgoyne, 5 B. & C. 400. .^. 210. CASES CITED. xlv^i Freeholders v. Stevenson, 40 N. J. L. 173. § 128. Freeman v. People, 4 Denio, 9. g 200. Freestone, Ex parte, 25 L. J. '^L C. 121. § 262. Freight Tax Case, 15 Wall. 232. § 171. IVeme t. Clement, 44 L. T. (N. S.) 399 ; L. R. 18 Ch. Div. 499. ^§241, 246. Fremont v. United States, 17 How. 542. §§ 181, 189. French v. Commonwealth, 78 Pa, St 389. §473. V. Cowen, 79 Me. 426. § 311. V. Teschemaker, 24 CaL 544. §121. Frend t. Dermett, 4 C. B. (N. S.) 576. §456. Friedman v. Sullivan, 48 Ark. 213. §223. Friend v. Dunks. 37 Itlich. 25. § 373. Frink v. Pond, 46 N. H. 125. § 333. Frohock v. Pattee, 38 Me. 103. §§ 208, 360. Frost V. Cherry, 122 Pa St 417. § 122. Frotliiugham v. March, 1 ^Mass. 247. §114. Fry v. Bennett 16 How. Pr. 402. §369. V. Booth, 19 Oliio St 25. § 450. Frye v. Partridge, 82 111. 267. § 129. Fryeburg Canal v. Frye, 5 Me. 38. §§ 193, 202. Fuhrman v. Jones, 68 Wis. 497. § 459. FuUer v. Rood, 3 HiU, 258. § 207. Fullerton v. Bank of United States, 1 Pet 604. § 342. V. Spring, 3 Wis. 667. §§ 133, 134. Fultz V. Fox, 9 B. Mon. 499. § 463. Furman v. Nichol, 3 Cold. 432. §§ 138, 154. T. Nichol, 8 Wall 44. § 138. Fiu-nivall v. Coombes, 5 M. & G. 736. §221. Gabbert v. Jefferson R. R Co. 11 Ind. 365. §§ 88, 97. Gaines v. Coates, 51 Miss. 335. § 378. Gaines v. Paris, 39 Miss. 403. §§ 343, 452. v. Horrigan, 4 Lea, 608. §;g 41, 43. Gale V. Laurie, 5 B. «& C. 156. § 364 v. Mead, 4 Hill, 109. § 168. V. Mead, 2 Denio, 160. § 449. Galena v. Amy. 5 Wall. 705. § 138. Gallagher v. Neal, 3 P. & W. 183. §351. Gallatain v. Cunningham, 8 Cow. 361. §§ 204, 339, 391. Gallaway v. Maries, L. P„ 8 Q. B. Div. 275." §280. Gaiha Co. v. Holcomb, 7 Ohio, 232. §380. Galpin v. Abbott, 6 ^lich. 17. §§ 207, 401, 456. Galusha v. Cobleigh, 13 N. H. 79. §424. Galveston v. Menard, 23 Tex. 349. §386. Galveston, etc. R'y Co. v. Dunlav^-, 56 Tex. 256. § 452. V. Gross, 47 Tex. 428. §§ 331, 332. V. Kutac, 37 Am. & Eng. R. R Cas. 470 ; 72 Tex. 643. § 371. v. Le Gierse, 51 Tex. 189. § 371. Galway Presentments, Ex parte, 9 W. R C. L. 114. § 158. Gamble v. Beattie, 4 How. Pr. 41. §133. Ganssby v. Perkuas, 30 Mich. 492. §§ 373. 374. Gantz V. Toles, 40 Mich, 725. § 114. Garaty v. Du Bose, 5 S. C. 493. § 422. Garby v. Harris. 7 Ex. 591. § 242. Gardenhire v. McCombs, 1 Sneed, 83. §482. Gardner v. Cole, 21 Iowa, 205. § 184. V. CoUector, 6 Wall 499. §§ 41, 44, 54, 104, 110, 160, 182, 183, 294, 300. V. Collins, 2 Pet 93. §§ 191, 236. V. Eberhart 82 111. 316. § 298. V. Heyer, 2 Paige, 11. § 371. V. Johnson, 22 Ala. 494. § 111. V. Lewis, 7 Gill, 377. §§ 12, 192. xlviii CASES CITED. Gardner v, Lucas, L. E. 3 App. Cas. 583. §§ 306, 482. Garforth v. Fearon, 1 H. BL 327. § 429. Gargorave v. Every, 1 Lutrvv. C. P. 260. § 424. Garland, Ex parte, 4 Wall. 390. g§ 465, 467. Gai-land v. Carlisle, 2 Cr. & M. 30. §307. V. Hickey, 75 Wis. 178. § 167. Garrigns v. Board of Com'rs, 69 Ind. 66. § 211. Garrison v. Cheeney, 1 Wash. T'y> 489. § 482. Garvey v. People, 6 CaL 554. § 470. Garvin v. State, 13 Lea, 162. §§ 87, 89, 92, 211. V. Wells, 8 Iowa, 286. § 296. Gas Co. V. Parkersburg, 30 W. Va, 435. § 384. V. Wlieeling, 8 W. Va. 320. §215. Gaskin v. Anderson, 55 Barb. 259. §102. V. Meek, 42 N. Y. 186. §§ 80, 95, 198. Gaston v. Merriam, 33 Minn. 271. §§ 155, 256. V. Stott, 5 Ore. 48. § 450. Gates V. Jolinson Co. 36 Tex. 144. §298. V. McDaniel, 3 Port. 356. § 342. V. Salmon, 35 CaL 576. §§ 215, 239, 240. V. Shugrue, 35 Minn. 392. § 138. Gatty V. Fry, L. R. 2 Ex. Div. 265. §324 Gaul V. Brown, 53 Me. 496. §§ 163, 166. Gauntlet, The, L. R. 3 Adm. 381. §§ 352, 404 Gayles' Heirs v. Williams, 7 La. 162. §§ 138, 283. Gearhart v. Dixon, 1 Pa. St 224. § 333. Geddes v. BroTVTi, 5 Phila. 180. § 319. Gedney v. Tewksbury, 3 Mass. 307. §325. Gee V. Thompson, 11 La. Ann, 657. §220. Geebrick v. State, 5 Iowa, 491. §§ 67, 72. Geiger v. Brown, 4 McCord, 423. §425. Geisen v. Heiderich, 104 DL 537. §146. Gelpcke v, Dubuque, 1 WaU. 175. §§ 185, 186. Genkinger v. Commonwealth, 32 Pa. St. 99. § 166. Gentile v. State, 29 Ind. 409 ; 11 id, 224 §§ 108, 117, 345. George v. Board of Education, 33 Ga. 344 §§ 254, 258. Georgia v. Atkins, 1 Abb. (U. S.) 22. §§ 239, 247. Geny v. Stoneham, 1 AUen, 319. §206. Geter v. Commissioners, 1 Bay, 354. §394 Gholston V. Gholston, 54 Ga. 285. §464 Gibbons v. Brittenrmi, 56 Miss. 232. §§ 141, 145, 153, 154 160, 215, 220. V. Ogde'n, 9 Wheat. 191. §§ 222, 223. Gibbs V. Morgan, 39 N. J. Eq. 126. §128. Gibhn v. Jordan, 6 Cal. 416. § 317. Gibson v. Belcher, 1' Bush, 145. §§ 103, 170. V. Commonwealth, 87 Pa. St 253. §207. V. Hibbard, 13 Mich. 215. ^g 164, 474 V. Jenny, 15 Mass. 205. §§ 139, 290, 324 V. Marquis, 29 Ala. 668. § 400. V. Midland R'y Co. 15 Am. & Eng. R. R. Cas. 507. § 371. V. Preston, L. R. 5 Q. B. 219. § 202. V. State, 16 Fla. 291. §§ 101, 132. V. State, 38 Ga. 571. §§ 208, 351. Giddings v. Cox, 31 Vt 607. § 154 Gilford V. New Jersey R. R. Co. 2 Stockt 172. § 78. CASES CITED. xiix Gilbank v. Stephenson, 30 Wis. 157. §154. Gilbert v. Columbia T. Co. 3 Jolins. Cas. 107. § 440. V. Flint, etc. R. R. Co. 51 Mich- 488. §301. V. Moliue Water Power Co. 19 Iowa, 319. § 298. Gilfillau V. Hobart, 35 Minn. 185. §463. Gilkey v. Cook, 60 Wis. 133. §§ 107, 389, 410. GUlelaiid v. Schuyler, 9 Kan. 569. §§ 136, 165, 225, 226. GUlespie v. White, 16 Jolin. 117. §§ 111, 113. GiUiland v. Sellers, 3 Ohio St. 333. §398. Gillitt V. McCarthy, 34 Minn. 318. §§ 93, 93. Gilman v. Philadelpliia, 3 Wall 713. §197. Gilmer v. Lime Pomt, 19 CaL 47. §§ 307, 387. Gihnore v. Shuter, 2 Lev. 227. § 463. " Gin " Webb v. Knight, 2 Q. B. Div. 530. § 254 Girard, etc. Co. v. Pliiladelphia, 88 Pa. St 393. § 340. Girardeau v. Riley, 53 Mo. 434. § 63. Girdlestone v. AUan, 1 B. & C. 61. §463. Girdner v. St^hens, 1 Heisk. 380. §10. Gist V. Drakely, 3 Gill, 330. § 342. Gittiugs V. Crawford, Taney's Dec. 1. §399. Given v. Simpson, 5 Me. 303. §§ 391, 395. Gladney v. Deavors, 11 Ga, 79. § 335. Glaiis V. State, 30 Ala. 529. § 356. Glassmgton v. Rawlins, 3 East, 407. § 112. Glenn v. Lopez, 1 Harper. 105. § 323. Glentz V. State, 38 Wis. 549. §§ 133, 134. Glidden v. Strupler, 52 Pa. St 400. §458. GUdeweUv.Martin,51Ark.559. §330. Glover v. Alcott, 11 Mich. 470. §§ 290, 400. Goddard v. Boston, 20 Pick. 407. g 322. V. Gloninger, 5 Watts, 209. § 309. Goeuen v. Schraeder, 8 Minn. 387. §478. Gohen v. Texas Pac. R R. Co. 2 Woods, 346. §§ 145, 202. Goillotel V. Mayor, etc. 87 N. Y. 441. § 13:5. Golden v. Prince, 3 Wash. 313. § 474 Golden Canal Co. v. Bright 8 Colo. 144. §§ 93, 95. Goldsborough v. United States, Taney's Dec. 83. § 308. Goldsmid v. Hampton, 5 C. E. (N. S.) 94 § 212. Goldsmith v. Georgia R. R Co. 63 Ga. 485. § 93. V. Rome R R Co. 62 Ga. 473. §88. V. Sa%\'yer, 46 CaL 209. §§ 295, 296. Gonder v. Estabrook, 33 Pa. St 374 §424 Goode v. Webb, 52 Ala. 452. § 111. GoodeU's Case, 39 Wis. 232. § 321. Goodell V. Jackson, 20 John. 706. §337. Goodenow v. Buttrick, 7 Mass. 140. § 154 Gooding v. Morgan, 70 IlL 275. § 181. Gooduo v. Oshkosh, 31 Wis. 127. §§ 133, 137, 154 162, 168. Goodon V. Tweedy, 74 Ala. 232. §302. Goodrich v. Russell, 42 N. Y. 177. §286. Goodsell v. Boynton, 2 IIL 555. § 104 Goodwin v. Appleton, 22 Ikle. 453. §§ 398, 306. V. MoiTis, 9 Ore. 333. § 184 Gordon v. Comes, 47 N. Y. 617. §§ 170, 177. V. Hobart, 2 Sumu. 401. § 185. V. Inghram, 1 Grant's Cas. 153. §10. V. People, 44 Mich. 485. § 13a 1 CASES CITED. Gordon v. State, 4 Kan. 489. § 225. V. Wansey, 19 Cal. 82. § 454. V. Winchester Building Asso. 12 Bush, 110. §456. Gordon's Ex'r v. Mayor, etc. 5 Gill, 231. § 364. Gore T. Brazier, 8 Mass. 523. § 324. Gorhani v. Bishop of Exeter, 15 Q. B. 69. §§ 307, 312. V. Bishop of Exeter, Moore's Case of, 462. §§ 292, 300. V. Luckett, 6 B. Mon. 146. §§ 137, 141, 154, 204. V. Springfield, 21 Me. 58. §§ 107, 108, 193. V. Wing, 10 Mich. 486. §§ 111, 114. Gorman v. Hammond, 28 Ga, 85. §§ 142, 143. T. Pacific R. E, 26 Mo. 441. §206. Gormley v. Clark, 134 U. S. 338. §§ 185, 187. V. Taylor, 44 Ga. 76. § 26. Gorton v. Champneys, 1 Bing. 301. §§ 360, 445. Goshen v. Stonington, 4 Conn. 225. §§169,463. - Goshom V. Purcell, 11 Ohio St. 641. §§ 206, 483. Goslmg V. Veley, 12 Q. B. 407. § 362. Goss V. Cahill, 42 Barb. 310. §§ 400, 442. V. Goss, 29 Ga. 109. § 341. Gossler v. Goodrich, 3 Cliff. 71. §137. Gough V. Dorsey, 27 Wis. 119. §§ 229, 395. V. Pratt, 9 Md. 526. §§ 184, 229. Gould V. Wise, 18 Nev. 253. § 333. Cover's Case, L. Pt, 1 Ch. Div. 198. §238. Governor v. Howard, 1 Mui-phy, 465. §§ 166, 225. V. McEwen, 5 Humph. 241. § 4. V. Porter, 5 Humpk 165. §§ 200, 201, 206, 229. V. Roby, 34 Ga. 176. § 334 Grace v. Donovan, 12 Minn. 580. §§ 167. 220. Graff V. Evans, L. R. 8 Q. B. Div. 377. §350. Grafiins v. Commonwealth, 3 Pen. & W. 502. § 333. Graham, Ex parte, 13 Rich. 277. §§ 164, 463. Graham v. Bradbury, 7 Mo. 281. §393. V. Charlotte, etc. R. R. Co. 64 N. C. 631. § 260. V. Chicago, etc. R. R. Co. 53 Wis. 473. §§ 164, 166. V. Long, 65 Pa, St. 383. § 458. V. Van Wyck, 14 Barb. 531. §§ 290, 333. Grammar School v. Burt, 11 Vt 632. §473. Grand Rapids Electric Light, etc. Co. V. Grand Rapids, etc. Co. 33 Fed- Rep. 659. §§ 378, 384. Grand River B. Co. v. Jarvis, 30 IMicli. 308. § 332. Grant v. Courter, 24 Barb. 242. §75. V. Grant, 12 S. C. 29. § 165. Grant County v. Sels, 5 Ore. 243. §138. Graves v. Keaton, 3 Cold. 8. §§ 181, 295. V. McWilliams, 1 Pin. 491. § 120. V. Otis, 2 Hill, 466. §400. Gravett v. State, 74 Ga 191. § 246. Gray v. Bennett, 3 Mete. 522. § 360. v. Gray, 34 Ga 499. § 320. V. Hook, 4 N. Y. 449. § 336. V. La Fayette Co. 65 Wis. 507. §364. V. Larrimore, 2 Abb. (U. S.) 542. §394. V. Nations, 1 Ai-k. 557. § 400. V. Obear, 54 Ga 231. § 168. V. Regina, 11 CI. & Fin. 427. §334. Great Centi-al Gas. Cons. Co. v. Clarke, 13 Com. B. (N. S.) 838. § 159. V. Clarke, 11 C. B. (N. S.) 814. §139. OASES CITED. Great Western R'y Co. v. Swindon, L. R 9 App. Cas. 808. §§ 267, 269. Greaton v. Griffin, 4 Abb. Pr. (N. S.) 310. §§ 87, 88. Green's Estate, 4 McL Cli. 349. §§ 378, 398. Green v. Abraham, 43 Ark. 420. §§ 483, 484. V. Anderson, 89 ]\Iiss. 359. §§ 463, 464, 481. V. Biddle, 8 Wheat 93. §§ 206, 471, 472, 474, 476. V. Cheek, 5 Ind. 105. §§ 215, 237, 240. V. Commonwealth, 12 Allen, 155. §§ 283, 428. V. Dikeman, 18 Barb. 535. § 464 V. Goodall, 1 Cold. 404. § 295. V. Graves, 1 Doug. 351. §§ 40, 322. V. Hudson R R R Co. 32 Barb. 25. §371. V. Lord Penzance, L. R 6 App. Cas. 675. § 399. V. Mayor, etc. 2 Hilt. 203. § 343. V. Mayor, etc., R K Charlt 368. §88. T. Neal, 6 Pet. 291. §§ 187, 191. 314, 316. V. Rugely, 23 Tex 539. § 184 V. Shumway, 39 N. Y. 418. § 470. V. State, 59 Md. 123. §§ 218, 234, 239. T. United States, 9 Walk 655. §333. V. Van Buskh-k, 7 Walk 139. §294 V. Weller, 32 Miss. 704 §§ 28, 34 183, 218, 219, 237, 247, 254 294 T. Wood, 7 Q. B. 178. §§ 252, 431. Greencastle Southern T. Co. v. State, 28 Ind. 382. §g 132, 314 Greencastle Townsliip v. Black, 5 Ind. 566. § 6G. Greene, Ex parte, 29 Ala 52. § 390. Greene v. Briggs, 1 Curtis, 311. § 5. •Greenfield v. Doitis, 1 Sneed, 550. §478. ,, Greenhow v. James, 80 Va. 636. §407. Greenlaw v. Greenkiw, 12 N. H. 200. §482. Greenough v. Greenough, 11 Pa. St. 489. §§ 6, 10, 201, 395, 480, 484 Greenville, etc. R. R. Co. v. Cathcart, 4 Rich. 89. § 399. Greenwade v. Green wade, 3 Dana, 495. §184 Greenwood v. Greenwood, 28 Md. 370. §291. Greer v. Rowley, 1 Pittsburgh, 1. §428. V. State, 22 Tex. 588. §§ 144, 166. V. State, 54 ISIiss. 378. § 40. Gregoiy's Case, 6 Rep. 196. §§217, 222. Gregory v. German Bank, 3 Colo. 323. § 163. Greig v. Bendeno, EL BL & EL 13a §213. Greiner v. Klein, 28 Mich. 17. § 256. Grenada Co. Supervisors v. Brogden, 112 U. S. 261. §§ 321, 407. Grey v. Mobile Ti-ade Co. 55 Ala. 387. §§ 164 166. Grider v. Tally, 77 Ala. 422. § 306, Griffin's Case, Chase's Dec 364 § 323. Griffin, In re, 25 Tex. (Supl't) 62a §331. Griffin v. Cimningham, 20 Graft 31. §§ 10, 119. V. Forrest 49 Mich. 309. § 111. V. Leshe, 20 Md. 15. §g 434 437. V. Stote, 39 Ala. 541. § 166. Griffing v. Gibb, 2 Black, 519. § 185. Griffith V. Beasly, 10 Yerg. 434. §184 V. Carter, 8 Kan. 565. § 28a V. Wells, 3 Denio, 226. § 336. Grigsby v. BaiT, 14 Bush, 330. § 137. V. Peak, 57 Tex. 142. § 10. Grinad v. State, 34 Ga 270. § 107. Grmer, In re, 16 Wis. 42a § 68. Griswold v. Pitcairn, 2 Conn. 85. § 297. lii CASES CITED. Grob V. Cushman, 45 111. 124 §§ 52, 183, 300. Groesch v. State, 42 Ind. 547. §§ 75, 124. Groflf, Ee, 21 Neb. 647. § 169. Grogan v. San Francisco, 18 Cal. 590. §472. Grooms v. Hannon, 59 Ala. 510. §§ 350, 351, 358. Gross V. Fowler, 21 CaL 892. §§ 247, 253. Grosvenor v. MagiU, 37 EL 239. §110. GroTer v. Fox, 36 Mich. 453. § 390. V. Trustees, etc. 45 N. J. L. 399. §§ 84, 85, 87, 88. Grubbs v. State, 24 Ind. 295. §g 78, 103, 316. Grumley v. Webb, 44 Mo. 444. §§ 275, 365. Guerard v. PoUiill, R M. Charlt. 237. §325. Guidry v. Rees, 7 La. 278. § 463. Giiild V. Chicago, 82 IlL 472. § 72. V. Rogers, 8 Barb. 502. § 478. Guilford v. Cornell, 18 Barb. 615. §473. V. Supervisoi-s, 13 N. Y. 143. §§ 11, 473. GuKck V. Loder, 13 N. J. L. 68. §479. Gulf, etc. R'y Co. v. Levy, 12 Am. & Eng. R. R Cas. 90. § 371. GuiUeaume v. MiUer, 14 Rich. 118. § 393. Guim V. Barry, 15 WalL 610. §§ 206, 477. Gunnestad v. Price, L. R 10 Ex. 69. §268. Gunnison Co. Com. v. Owen, 7 Colo. 467. §169. Gunter v. Lecky, 30 Ala, 591. §§208, 290, 366. Gut V. State, 9 WalL 35. §§ 185, 468. Guthrie v. Fisk, 3 B. & C. 182. §§ 410, 414. Gwinner v. Lehigh, etc. R R Co. 55 Pa St 126. § 145. Gwyn V. Hardwicke, 1 H. & N. 53. §308. Gwynne v. Burnell, 6 Bing, N. C. 559, §§ 196, 238. V. BumeU, 7 CL & F. 696. §§430, 431. . Gyger's Estate, 65 Pa. St 311. §§ 233, 259, 267. Hackett v. Smelsley, 77 lU. 109. §§ 374, 375. Hackley v. Sprague, 10 Wend. 114. §464. Hadden v. Collector, 5 WalL 110. §§ 196, 210, 211, 235, 407. Hadley v. Peabody, 13 Gray, 200. §428. V. Perks, L. R 1 Q. B. 457. §§ 256, 262. Haentze v. Howe, 28 Wis. 293. § 240. Hagerman v. Ohio Building, etc. Co. 25 Ohio St 186. § 114. Hagerstown v. Seliner, 37 Md. 180. §206. Hahn v. Salmon, 20 Fed. Rep. 801. §360. V. United States, 107 U. S. 402. §307. V. United States, 14 Ct of CL 305. §309. Haigh V. Corporation of Sheffield, L, R. 10 Q. B. 102. § 280. Haight V. Gay, 8 CaL 297. § 397. V. HoUey, 3 W^end. 258. § 334. Hakes v. Peck, 30 How. Pr. 104. §333. Halbert v. Skyles, 1 A. K. Marsk 369, §193. Haldane v. Beauclerk, 3 Ex. 658. § 256. Halderman v. Young, 107 Pa. St 324. §322. Hale V. Angel, 20 John. 342. § 207. V. N. J. St Nav. Co. 15 Conn. 539. §§ 190, 192. Hales V. Owen, 2 Salk. 625. § 115. Haley v. Petty, 42 Ark. 392. § 454. V. Philadelphia, 68 Pa. St 45. §206. V. Young, 134 Mass. 364. § 115. Hall, Ex parte, 1 Pick. 261. § 247. CASES CITED. lUl HaU V. Bray, 51 Mo. 288. § 117. V. Byrne, 1 Scam. 140. § 278. V. Cassidy, 25 Miss. 48. §§ 111, 113. V. Goodwyn, 4 McCord, 476. § 10. V. Newcomb, 3 Hill, 233 ; 7 id. 416. § 316. V. Pillow, 31 Ark. 32. § 184. V. State, 20 •Ohio, 7. g§ 208, 271, 350. V. Wisconsin, 103 U. S. 5. § 472. V. Woodson, 13 Mo. 462. § 184. HaUeman v. Halleman, 65 Ga. 476. §93. Hallett V. Novion, 14 Jolin. 273. § 336. HaUock V. Holliugshead, 49 N. J. L. 64. §129. Halloran v. T. etc. R R. Co. 40 Tex. 465. § 480. Ham V. Board of Police, 142 Mass. 90. §333. V. Ham, 39 Me. 263. § 298. V. McClaws, 1 Bay, 92. § 322. V. Sa^vyer, 38 Me. 37. § 308. V. State, 7 Blackf. 314. § 136. V. Steamboat Hamburg, 2 Iowa, 460. §§204,327. Hamilton v. Buxton, 6 Ai-k. 24 §220. V. McNeil, 13 Gratt 394. § 307. V. Smitli, 3 Murphy, 115. § 427. V. Steamer R. B. Hamilton, 16 Ohio St 428. § 232. Hamlet v. State, 5 Jones' L. 36. §106. Hamlyn v. Nesbit, 37 Ind. 284 § 138. Hammer v. State, 44 N. J. L. 667. §§ 122, 127. 129. Hammersmith, etc. R'y Co. v. Brand, L. R. 4 H. L. Cas. 171. § 233. Jiammock v. Loan & Trust Co. 105 U. S. 77. § 282. .Hammond v. American Ins. Co. 10 Gray, 306. § 115. V. Haines, 25 Md. 541. § 75. V. Lesseps, 31 La. Ann. 337. § 88. V. Webb, 10 Mod. 281. § 400. Hampton v. Coninionwealtli, 19 Pa, St 329. §g 11, 163, 165, 464 Hanchett v. Weber, 17 IlL App. 114 §334 Handley v. Cunningham, 12 Bush, 402. §112. Handy v. Hopkins, 59 Md. 157. § 342. Haney v. State, 34 Ark. 263. §§ 238, 260. Hankins v. People, 106 IlL 628. §§ 231, 325, 356. Hanley v. Donoghue, 116 U. S. 1. §g 185, 293, 294 Hanlon v. Board of Conomissioners, 53 Ind. 123. §§ 124, 127. Hanmann v. Mmk, 99 Ind. 279. § 299. Hannibal, etc. R R Co. v. Packet Co. 125 U. S. 260. § 378. Hannum t. Bank of Tennessee, 1 Cold. 398. § 206. V. TourteUott 10 Allen, 494 § 115. Hani-ick v. Andrews, 9 Port 9. §^ 190. 191. Hanson v. Dunn, 76 Wis. 455. § 459. Happel V. Brethauer, 70 IlL 166. §§ 43, 45, 183. Harbeck v. Mayor, 10 Bosw. 366, § 137. Harbord v. Perigal, 5 T. R 210. § 115. Hardeman v. Downer, 39 Ga. 425. § 476. Hardenburgh v. Lakin, 47 N. Y. 109. §483. Harding v. Bader, 75 Mich. 316. §365. V. Strong, 42 HL 148. § 295. Hardmann v. Bowen, 39 N. Y. 196. § 459. Hardy, Ex pai-te, 68 Ala. 303. § 311. Hardy v. Bern, 5 T. R 636. § 462. V. Heai-d, 15 Ark. 184. § 453. V. Ryle, 9 Barn. & Cr. 603. § 112. Hai-e V. Hare, 10 Tex. 355. § 482. Hai-ford v. United States, 8 Ci-anch, 109. §138. Hargi-ave v. Weber, 60 IMicli. 59. § 88. Harker v. Addis, 4 Pa. St 515. § 115. V. Harker, 3 Har. 57. § 400. Harlan v. Sigler, Morris, 39. § 169. V. State, 41 Miss. 566. § 20. liv CASES CITED. Harold v. State, 16 Tex. A pp. 157. §154. Harpending v. Dutch Church, 16 Pet. 493. §g 185, 186. V. Haight, 39 CaL 189. § 380. Han-eU v. HaiTell, 8 Fla. 46. g§ 133, 215, 288. Harriet, The Schooner, 1 Story, 251. §§ 349, 350, 356. Harrington v. Du Chatel, 1 Bro. C. C. 124. § 429. v. Harrington's Estate, 53 Vt 649. § 160. V. People, 6 Barb. 607. § 454. V. Rochester, 10 Wend. 547. §§ 137, 160, 220. V. Smith, 28 Wis. 43. g§ 229. 256. V. Wands, 23 Mich. 385. § 135. Han-is v. AUnutt, 12 La. 465. § 184. V. Gest, 4 Ohio St. 469. § 454' V. Glenn, 56 Ga. 94 § 206. V. Jenns, 9 C. B. (N. S.) 152. §152. V. People, 59 N. Y. 602. §§ 78, 84, 88, 94 V. Runnells, 12 How. 79. § 336. V. Rutledge, 19 Iowa, 388. § 164 V.Saunders, 4 B. & C. 411. §426. V. Supervisors, 33 Hun, 279. §§ 168, 170. V. Townshend, 56 Vt 716. §§ 164, 166, 167, 225. V. Vanderveer, 21 N. J. Eq. 424. §397. V White, 81 N. Y. 532. § 190. Harrisbui-g v. Sheck, 104 Pa. St. 53. §157. Harrison, Ex parte, 4 Cow. 63. §§ 215, 239, 241. Harrison v. Allen, Wythe (Va,), 291. §166. V. Gordy, 57 Ala. 49. §§ 46, 47. V. HaiTison, 39 Ala. 489. § 426. V. Harrison, 20 Ala. 629. § 12. V. James, 2 Chifcty, 547. § 420. V. Leach, 4 W. Va. 383. §§ 207, 367. V. Sayer, 28 Mch. 32. § 256. Harrison v. Sayer, 27 lilich. 476. § 115 V. Walker, 1 Ga. 32. §§ 138, 168, 288. V. WiUis, 7 Heisk. 35. § 307. V. Young, 9 Ga, 359. §§ 333, 378, 379, 386. Hart V. Bodley, Hardin, 98. § 298. V. Kennedy, 14 Abb. Pr. 432 ; 15 id. 290. §§ 259, 267. V. Reynolds, 3 Cow. 42, note. §451. V. Reynolds, 1 Heisk. 208. § 229. V. State, 40 Ala, 32, 206. § 468. V. State, 55 Lid. 591. §§ 298, 306. V. Walker, 31 Mo. 26. §§ 111, 113. Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210. §§ 331, 380. Hartford, etc. R. R. Co., Re, 65 How. Pr. 133. § 387. Hartford Fire Las. Co. v. Owen, 30 Mich. 441. §394 V. Raymond, 70 Mich. 485. § 95. Hartley v. Hooker, 2 Cowp. 523. §396. Hartman v. Greenhow, 102 U. S. 672. §472. Hartung v. People, 22 N. Y. 95. §§ 164, 166. V. People, 26 N. Y. 167. §§ 467, 470. Harvey v. Tyler, 2 WaJL 328. § 206. HarweU v. Steel, 17 Ala. 372. § 427. Hasbrouck v. Shipman, 16 Wis. 296. §478. Hascall v. Madison University, 8 Barb. 174 § 456. Haseltine v. Hewitt, 61 Wis. 121. §322. Haskel v. Burlmgton, 30 Iowa, 232. §125. Hasketh v. Lee, 2 Saund. 84 § 194. Hassenplug's Appeal, 106 Pa. St 527. §§ 207, 437. Hastings v. Aiken, 1 Gray, 163. § 168. Hathaway v. Johnson, 55 N. Y. 93. §208. Hatch V. Burrows, 1 Woods, 439. § 20. Hatchett v. BUhngslea, 65 Ala. 16. §154 CASES CITED. Hatfield v. Commonwealth, 120 Pa. St 395. g 103. Hatton V. Wier, 19 Ala. 127. § 400. Haven v. Foster, 9 Pick. 112. § 426. Hawes v. Clement, 64 Wis. 152. § 393. Hawkins v. Barney's Lessee, 5 Pet 457. § 472. V. Filkins, 24 Ark. 286. § 20. V. Gathercole, 6 Do G. K & G. 1. § 292. T. Great W. R'y Co. 17 Mich, 57. §§ 271, 373. Hawthorne v. Calef, 2 WalL 10. § 474 Hay V. Lord Provost of Perth, 4 Macq. Sc. App. 544. § 414. Haybui-n's Case, 2 DalL 409. § 10. Hayden's Case, 3 Rep. 7. § 418. Hayes v. Hanson, 13 N. H. 284. §§ 283, 288. V. Phelan, 4 Hun, 733. § 371. V. State, 55 Ind. 99. § 143. Haynie v. State, 32 Miss. 400. § 350. Hays V. Hays, 5 Rich. 31. § 400. v. Hunt, 85 N. C. 303. § 390. V. Miller, 1 Wash. T'y, 143. g 401. V. Richardson, 1 GiU & J. 366. §284. Hay ward v. Gunn, 82 IlL 885. § 146. V. Pilgi-im Society, 21 Pick. 270. §385. Hay\vood v. Mayor, 12 Ga. 404. § 157. Hazelton v. Valentine, 113 Mass. 472. §190. Hazen v. Union Bank, 1 Sneed, 115. §124. Head v. Providence Las. Co. 2 Cr. 127. §§ 381, 454. V. Ward, 1 J. J. :Marsh. 280. § 206. Heald v. State, 36 3Ie. 62. § 166. Healey v. Dudley, 5 Lans. 115. §§ 120, 129, 198. Heanley v. State, 74 Ind. 99. § 124 Heard v. Baskervile, Hob. 232. § 210. v. Heard, 8 Ga. 380. § 104 Heara v. Brogau, 64 Miss. 334 § 138. V. Ewm, 3 Cold. 399. §§ 207, 290, 393. Hearne v. Garton, 2 E. «&; E. 66. §§ 355, 429. Heath, Ex parte, 3 Hill, 42. §§ 202, 448, 450. Heath v. Kent Circuit Judge, 37 Mich. 372. § 397. Hebbert v. Purchas, L. R 3 P. C. 650. §§ 137, 300. Heckmann v. Pinkney, 81 N. Y. 211. §§ 154 156. Hedger v. Rennaker, 3 Met (Ky.) 255. §§ 107, 404 Hedley, Ex paiie, 31 CaL 108. § 260. Hedworth v. Primate, Hard- 318. §300. Hegarty's Appeal, 75 Pa. St 50a §484 Heim v. Bridault 37 Miss. 209. § IBS. Heiskell v. Mayor, etc. 65 I^Id, 125. §290. Helm V. Chapman, 66 Cal. 291. § 240. Hemphill v. Bank of Ala. 6 S. & M. 44 §190. Hemstrat v. Wassum, 49 Cal 273. § 138. Henderson's Distilled Spirits, 14 WalL 44 § 361. Henderson v. Alexander, 2 Gra. 8L §411. V. Bise, 3 Starkie, 158. §212. V. Grilim, 5 Pet 151. § 187. V. Maxwell, L. R 5 Ch. Div. 892. §458. V. Sherborne, 2 M. & W. 230. §§ 143, 358. Hendrickson v. Fries, 45 N. J. L. 555. §429. V. Hendrickson, 7 Ind. 13. § 109. Hendrix v. Rieman, 6 Keb. 516. §§ 283, 284 Henger v. Abbott 6 WalL 532. § 136. Hennepin County v. Jones, 18 Minn. 199. § 119. Henry v. Adey, 3 East 22L § 190. V. Chester, 15 Vt 460. §§ 362, 365. V. Davis, 13 W. Va. 230. § 453. V. Sargeant 13 N. H. 331. § 12. V. Tilson, 17 Vt 479. §^ 218, 28a Ilenscliall v. Schmidtz, 50 Mo. 454 §§ 206, 482. Ivi CASES CITED. Hensley v. Tarpey, 8 Cal. 288. § 296. Henthorn v. Doe, 1 Blackf. 157. §§ 295, 298. Hepburn v. Griswold, 8 WalL 603. §206. Herber v. State, 7 Tex. 69. § 470. Herbert, Succession of, 5 La. Ann, 121. §138. Herbert v. Easton, 43 Ala. 547. § 164 Heridia V. Ayers, 12 Pick. 344. §§ 193, 198. Hering v. Chambers, 103 Pa. St. 172. § 315. Hermance, In re, 71 N. Y. 481. §§219, 274, Herold t. State, 21 Neb. 50. §§ 231, 402. Hen- V. Seymour, 76 Ala. 270. § 138. Herrick v. Minneapolis, etc. R. R. Co. 31 Minn. 11. § 14. Herron v. Carson, 26 W. Va. 62. §§ 140, 156. Herschfeld v. Clarke, 11 Ex. 712. §420. V. Dexel, 12 Ga. 582. § 190. Hershoff v. Treasm-er, 45 N. J. L. 288. §210. Hershy V. Latham, 42 Ark. 305. § 146. Hersom's Case, 39 Me. 476. § 333. Hess V. Jolmson, 3 W. Va, 645. § 206. V. Pegg, 7 Nev. 23. §§ 117, 256. Hester v. Keith, 1 Ala. (N. S.) 316. §§ 452, 453. Heward v. State, 13 Sm. & M. 261. §§ 227, 349. Hewes v. Reis, 40 CaL 255. § 365. Hewey v. Nourse, 54 Me. 256. § 200. Heydon's Case, 3 Rep. 7b. §§ 162, 207, 300. Hibemia R. R. Co. v. De Camp, 47 N. J. L. 43. §387. Hickman v. Alpaugh, 21 Cal. 225. §184. V. Gaither, 2 Yerg. 200. § 316. Hickok V. Hine, 23 Oluo St. 523. §388. Hickory Tree Road, In re, 43 Pa. St. 139. §g 138, 164, 217. Hicks V. BeU, 3 CaL 219. § 397. Hicks V. Jamison, 10 Mo. App. 35. §§ 260, 261. Higginbotham v. State, 19 Fla. 557. §166. Higgins V. State, 64 Md, 419. §§ 138, 152. Hightstown v. Glenn, 47 N. J. L. 105. §128. Hightower v. Wells, 6 Yerg. 249. § 168. Higler v. People, 44 Mch. 299. § 271. Higley v. Gilmer, 3 Mont. 433. § 112. Hihn V. Courtis, 31 Cal. 402. § 214 Hildreth v. Crawford, 65 Iowa, 389. §68. V. Gwindon, 10 Cal 490. § 454 HJlke V. Eisenbeis, 104 Pa. St. 514 §264 HiU, Ex parte, 3 C. & P. 225. § 268. HiU, Ex parte, 6 Ch. Div. 63. § 240. Hill, Ex parte, 40 Ala. 121. § 75. HiU V. Bacon, 43 111. 477. § 298. V. Berry, 75 N. Y. 229. § 373. V. Grange, 1 Plowd. 178. § 413. V. Grigsby, 32 Cal. 55. § 184 V. Kessler, 63 N. C. 437. § 476. V. Mitchell, 5 Ai-k. 608. § 300. V. Nye, 17 Hun, 467. § 463. V. Pressley, 96 Ind, 447. § 114 V. Smith, Morris, 70. § 137. V. Sunderland, 3 Vt 507. § 169. Hillliouse V. Chester, 3 Day, 166. §253. Hillyard v. MiUer, 10 Pa St. 326. §145. Hinde v. Yattier, 5 Pet. 398. § 293, Hindmarsh v. Charlton, 8 H. of L. Cas. 166. § 236. Hine v. Pomeroy, 39 Vt 211. § 167. Hines v. Freeholders, etc. 45 N. J. L. 504 § 127. V. R. R. Co. 95 N. C. 434 §§ 210, 211. Hmgle V. State, 24 Ind. 28. § 120. Hintermister t. First Nat. Bank, 64 N. Y. 212. § 349. Hinze v. People, 92 UL 406. §§ 170, 173, 176, 180. Hiru V. State, 1 Oliio St. 15. § 47a CASES CITED. Ivii JUirschburg v. People, C Colo. 145. §§ 137, 138, 142, 167. Hirst V. Rlolesbuiy, L. R 6 Q. B. 130. §351. Hiss V. Baltimore, etc. R. R. Co. 52 Md. 242. § 171. Hitcliner v. Ehlers, 44 Iowa, 40. §377. Hoa V. Lefranc, 18 La. Ann. 393. §206. Hoagiand v. Sacramento, 52 CaL 142. §206. Hofd-e V. Silverlock, 12 Q. B. 624. §304. !Hobart v. Supervisors, 17 CaL 23. §§ 71, 75. Hobbs V. Memphis, etc. R R Co. 9 Heisk.879. §294 Hockaday v. Wilson, 1 Head, 113. §138. Hodges V. Baltimore Pass. R'y Co. 58 Md. 603. §§ 129, 130. V. Biiflfalo, 2 Denio, 110. § 380. Hodsden v. Harridge, 2 Williams' Saimd- 64a. § 424 Hoetzel V. East Orange, 50 N. J. L. 354 § 159. Hoffman v. Delihanty, 13 Abb. Pr. 388. § 256. V. Duel, 5 Jolm. 232. §§ 111, 113. V. Dunlop, 1 Barb. 185. § 207. V. Parsons, 27 Minn. 236. § 101. V. Peters, 51 N. J. L. 244 § 222. Hogan V. Gushing, 49 Wis. 169. §398. V. DevUn, 2 Daly, 184 § 462. V. State, 36 AVis. 226. § 405. Hoguet V. WaUace, 28 N. J. L. 526. §§ 413, 434 435, 437. Holbrook v. Bliss. 9 AUen, 69. § 322. Holbrook v. Holbrook, 1 Pick. 248. §§ 212, 213, 215, 241, 246, 288, 322. V. Nichol, 36 IlL 161. § 133. Solcomb V. Davis, 56 IlL 413. § 75. Holdeu V. James, 11 Mass. 396. §§ 119, 169. Molding, Ex parte, 56 Ala. 458. §451. HoU V. Deshler, 71 Pa. St 299. §§ 215, 219. Holland v. Davies, 36 Ark. 446. § 450. V. Mayor, 11 Md 186. §365. V. Osgood, 8 Vt 280. § 451. V. State, 34 Ga. 455. § 349. Hollenback v. Fleming, 6 Hill, 303. §§ 207, 390. HoUey v. HoUey, Lit SeL Cas. 505. §184 HoUingsworth v. Virginia, 3 DalL 378. §165. Hollingworth v. Palmer, 4 Ex. 267. §246. Hollis V. Francois, 1 Tex. 118. § 111. HoUister Bank, Matter of, 27 N. Y. 383. §374 HoUister v. HoUister Bank, 2 Keyes, 245. §§371,398,399. HoUman v. Bennett, 44 Miss. 322. §§ 207, 290, 291, 401. Holman's AppeaL 106 Pa. St 502. §§ 264, 301. Holman's Heirs v. Bank of Norfolk, 12 Ala. 369. §194 Holm an v. Johnson, 1 Cowp. 343. §12. V. King, 7 Met 384 § 192. Holmes v. Broughton, 10 Wend- 75. §§ 184, 190. V. Carley, 31 N. Y. 290. § 437. V. French, 68 Me. 525. § 165. V. Harrington, 20 Mo. App. 661. § 296. v. Hunt 122 Mass. 505. § 307. V. JennJson, 14 Pet 540. § 254 V. Paris, 75 Ma 559. §§ 243, 246, 429. Holt V. Agnew, 67 Ala, 360. § 289. V. Green, 73 Pa St 198. § 335. Holyland v. Lewin, L. R 26 Ch. Div. 266. §246. Holyoke Co. v. Lyman, 15 WalL 500. §378. Homan v. LisweU, 6 Cow. 659. § 111. Home Ins. Co. v. Swigert, 104 lU. 65a §74 V. Taxing District, 4 Lea, 644 §§ 135, 138. 162. Iviii CASES CITED. Home Ins. Co. v. United States, 8 Ct of CL 449. § 20. Homer v. Commonwealth, 106 Pa. St 221. §§ 137, 143. Homestead Cases, 22 Gratt 266. §477. Homestead Cases, 81 Tex. 677. § 422. Honey v. Clark, 37 Tex. 686. § 483. Hook T. Gray, 6 Barb. 398. § 336. Hooker v. Hooker, 10 Sm. & K 599. §480. Hooper v. Mayor, etc. 12 Md. 464. §290. Hope V. Deaderick, 8 Humph. 1. §8- V. Gainesville, 72 Ga. 246. § 96. V. Johnson, 2 Yerg. 123. § 10. Hopkins v. Haywood, 13 Wend. 265. §239. V. Jones, 22 Ind. 310. § 206. V. Sandidge, 31 Miss. 668. § 400. Hopt V. Utah, 110 U. S. 574. §§ 466, 468. Horn V. Lockhart, 17 Walk 570. § 20. Hombuckle v. Toombs, 18 WaU. 648. §397. Home V. RaUroad Co. 1 Cold. 72. §322. Horner v. State, 1 Oregon, 281. §353. Horton v. Sledge, 29 Ala. 478. § 184 Hoskmson v. Adkins, 77 Mo. 537. §458. Hotham v. Sutton, 15 Ves. 320. §§ 246, 276, 279. Hough V. Wmdus, L. R. 12 Q. B. Div. 229. § 240. Houghtalmg v. Ball, 19 Mo. 85. §§ 184, 297. Houghton, Appeal of, 42 Cal. 35. §395. Houghton County v. Auditor-Gen. 41 Mich. 283. § 365. V. Commissioners of St. L. O. 23 Mich. 270. § 136. Houk V. Barthold, 73 Ind. 21. §§ 416, 440. Housatonic R. R. Co. v. Lee & H. R' R. Ca 118 Mass. 391. g 388. House Ave., Matter of Opening, 67 Barb. 350. § 399. House V. House, 5 Har. & J. 125. §350. V. State, 41 Miss. 737. § 138. Householder v. Granby, 40 Ohio St. 430. § 452. Houston V. Boyle, 10 Ired. 496. § 20&. V. Moore, 5 Wheat 1. § 68. Houston, etc. R'y Co. v. Bradley, 45 Tex. 171. § 371. V. Ford, 53 Tex. 364. §§ 151, 153. V. Odum, 53 Tex. 343. §§ 41, 51. Howard v. Bodington, L. R 2 P. Div. 203. §447. V. Central Bank, 3 Ga. 380. § 411. V. Ives, 1 Hill, 263. § 115. V. Mansfield, 30 Wis. 75. § 240. V. Moot, 64 N. Y. 262. § 478. V. State, 5 Ind. 183. § 166. V. WiUiams, 2 Pick. 80. § 372. Howard Association's Appeal, 70 Pa, St 344. §§ 152, 238, 332, 333. Howard Co., Division of, 15 Kan. 194. §300. Howe V. Peckham, 6 How. Pr. 229. §289. HoweU V. Hair, 15 Ala. 194 §§ 3P8, 426. V. State, 71 Ga, 224 §§ 88, 96, 307. V. Stewart, 54 Mo. 400. g§ 325, 336. Howes, Matter of, 21 Vt 619. § 110. Howey v. IHiller, 67 N. C. 459. § 290. Howland v. Luce, 16 John. 135. § 44&. Howl and Coal & Iron W. v. Bro^vn, 13 Bush, 685. §§ 85, 87, 92, 93. Hoyt V. Commissioners of Taxes, 23 N. Y. 224 § 236. V. McNeil, 13 JVIimi. 390. § 297. Hubbard v. Jolmstone, 3 Taunt 177.. §361. V. State, 2 Tex. App. 506. § 166. Hubbell V. Denison, 20 Wend. 181. §207. V. Weldon, Lalor, 139. § 454 Huber v. People, 49 N. Y. 132. §§80,. 95. OASES CITED. lix Huber v. Sterner, 2 Bing, N. C. 202. §479. Hudler v. Golden, 36 N. Y. 440. g§ 207, 441. Huddleston v, Askey, 56 Ala. 218. g§ 255, 256. Hudson V. Buck, 51 N. J. L. 155. §128. V. Jefferson Co. Ct 28 Ark, 359. §454. V. Tooth, L. R 3 Q. B. Div. 46. §300. Hudson Co. Freeholders y. Freehold- ers, 49 N. J. L. 228. § 129. Hudspeth v. Davis, 41 Ala. 389. § 478. Hudston V. IVIidland R Co., L. R 4 Q. B. 366. § 256. Huecke v. Milwaukee City R'y Co. 69 Wis. 401. § 449. Huensteine v. Lynham, 28 Gratt 62. §480. Huffman v. State, 30 Ala. 582. § 320. V. State, 29 Ala. 40. § 349. Hugg V. Camden, 39 N. J. L. 620. §448. Huggins V. Bambridge, "Willes, 241. §333. V. Kavanagh, 52 Iowa, 368. § 377. Hughes V. Cannon, 2 Humph. 589. §483. T. Chester, etc. Ry Co. 1 Drew. & Sm. 524. § 213. V. Chester, etc. Ry Co. 8 J\ir. (N. S.) 221. § 370. V. Farrar, 45 Ma 72. §256. V. Felton, 11 Colo. 489. § 395. V. Griflitlis, 106 Eng. C. K 332. §115. HuU V. HuU, 2 Strob. Eq. 174. § 431. V. Miller, 4 Neb. 503. §§ 47, 49, 50, 51. Humboldt Co. v. Churchill Co. 6 Nev. 30. § 330. Hmnboldt Co. v. County Com'rs, 6 Nev. 30. § 101. Humes v. IMissouri. etc. Ry Co. 82 Mo. 221. §125. Humphrey v. Chamberlain, UN. Y. 274. §§ 207, 394. Humphreys v. Green, L. R 10 Q. B. Div. 148. § 427. Ilumphreyville Cop. Co. v. Sterling, 1 Brun. CoL Cas. 3. § 191. Hunt V. Grant, 19 Wend. 90. § 451. V. Jennings, 5 Blackf. 195. gg 162, 464. V. Murray, 17 Iowa, 313. § 109. Hunter v. Glenn, 1 Bailey, 542. § 424 V. Nockolds, 1 McN. & Gord. 651. §210. Huntington v. Brinkerhoff, 10 Wend- 278. § 424 V. Forkson, 6 Hill, 149. § 207. Himtingtower v. Gardiner, 1 B. & C. 297. § 355. Huntzinger v. Brock, 3 Grant's Cas. 243. §476. Hm-ford v. Omaha, 4 Neb. 336. §§ 139, 203, 455. Hurlburt v. Men'iam, 3 Mch. 144 §40. Hurley v. Town of Texas, 20 Wis. 634 §§ 156, 161. Hurst V. Hawn, 5 Oregon, 275. §138. Hurth V. Bower, 30 Hun, 151. § 396. Huth V. Ins. Co. 8 Bosw. 538. § 184 Hyatt V. Taylor, 42 N. Y. 258. § 238. Hyde v. Cogan, 2 Doug. 699. §§ 360, 416. v. Hyde, L. R 1 R & D. 134 §247. V. W^abash, etc R R Co. 61 Iowa, 441. §13. V. ^Miite, 24 Tex. 137. § 39. Hyde Pai'k v. Cemetery Asso. 119 HL 141. § 158. V. Chicago, 124 IlL 156. § 101. Hydi-ick v. Bvu-ke, 30 Ark. 124 §184 Hyman v. State, 87 Tenn. 109. § 101. lana, The, L. R 1 R C. 426. § 364 Ihmsen v. Monongahela Nav. Co. 32 Pa. St 152. §g 222, 223. Bes v. West Ham Union, L. R 8 Q. B. Div. 69. § 362. Illinois, etc. Canal v. Chicago, 14 lU. 334 §§165,464 Ix CASES CITED. Illinois Cent R R Co. v. Cliicago, etc. R R Co. 123 HL 473. §§ 387, 388. V. Wren, 43 IlL 77. §52. HLmois, etc. R R Co. v. Gay, 5 IlL App. 393. § 454. Independent Scliool District v. Bvir- lington, 60 Iowa, 500. § 130. India, The, 33 L. J. Rep. R K & A. 193 ; Br. & L. 221, §§ 137, 146. Indiana Central R'y v. Potts, 7 Ind. 681. §§ 86, 88. Indiana, etc. R'y Co. v. Attica, 56 Ind. 476. §390. Indianapolis v. Huegele, 115 Ind. 581. §92. V. Imberry, 17 Ind. 175. § 206. Indianapolis, etc. R R. Co. v. Case, 15 Ind. 42. § 298. V. Kercheval, 16 Ind. 84. § 473. V. Stephens, 28 Ind. 429. § 298. Industi"ial School District v. White- head, 13 N, J. Eq. 290. §§ 154, 204 Industry, The, 1 GaU. 114 §§ 143, 349. Inge V. Murphy, 10 Ala. 885. §§ 191, 192. Inghs V. Haigh, 8 M. & W. 769. § 426. V. Trustees, etc. 3 Pet. 99. § 187. Ingraham v. Hart, 11 Ohio, 255. §§ 190, 192. V. Regan, 23 Miss. 213. § 256. V. Speed, 30 Miss. 140. § 240. Ingram's Case, Coke Litt. 234a. § 429. Ingi-am v. State, 27 Ala. 17. § 298. Inhabitants of Charlestown v. County Com'rs, 3 Met. 203. § 386. Inkster v. Carver, 16 Mich. 484 §§ 92, 331. Innis V. Templeton, 95 Pa. St. 262. §458. Insurance Co. v. Stokes, 9 PhUa, 80. §210. International Patent P. etc. Co., In re, 37 L. T. (N. S.) 351. § 350. Intoxicating Liquor Cases, 25 Kan. 751. § 326. Iowa Land Co. v. Soper, 39 Iowa, 112. §125. Ireland v. Palestine, etc. T. Co. 19 Ohio, 369. § 474 Ironsides, The, Lushington, 458. §§ 480, 481. In-esistible, The, 7 Wheat 551. §§ 11, 166, 225. Irving V, Humphreys, Hopk. 364. §§ 111, 113. V. McLean, 4 Blackf . 52. § 297. Irwin, Succession of, 33 La Ann. 63. §103. Isabelle v. Iron Cliffs Co. 57 Mich. 120. §§ 112, 114 Isham V. Bennington Iron Co. 19 Vt 230. § 225. Isitt V. Beeston, L. R 4 Ex. 159, §265. Itawamba v. Candler, 62 l^Iiss. 193. §398. Iverson v. State, 52 Ala. 170. § 138. Ivey V. McQueen, 17 Ala. 408. § 372. Jackman v. Dubois, 4 John. 216. §402. V. Garland, 64 Me. 133. § 107. Jackson v. Bradt, 2 CaL 303. §§ 202, 240, 246. V. Butler, 8 Minn. 117. § 478. V. Canns, 20 John. 301. § 401. V. Catlin, 8 John. 520. § 194 V. Catlm, 2 John. 248. §§ 194, 390. V. Chew, 12 Wheat 153. § 187. V. CoUms, 3 Cow. 89. §§ 234, 246. V. Cory, 8 John. 385. § 378. V. DiUon, 2 Overt 261. § 483. V. Gilclu-ist 15 John. 89. §§ 212, 213, 483. V. Hammond, 2 CaL Cas. 337. §378. V. Hobby, 20 Jolm. 361. § 207. V. Lamphue, 3 Pet 290. §§ 378, 474, 478. V. Lervey, 5 Cow. 397. § 337. V. Moye, 33 Ga. 296. § 228. V. Noble, 54 Iowa, 641. §§ 373, 377. V. Phelps, 3 Caines, 62. § 229. V. Shepherd, 6 Cow. 444 §§ 207, 390. CASES CITED. 1X1 Jackson v. State, 7G Ala, 2G. § 138. V. Thurman, 6 John. 322, § 234. T.Warren, 32 IlL 331, §§ 207, 435. V. Young, 5 Cow. 269. §§ 448, 452. Jackson, etc. R R Co. v. Davison, 65 Mich. 416. §§ 379, 390. Jacksonville v. Basnett, 20 Fla. 525. §g 94, 483. Jacob V. State, 3 Humph. 493. g 184. V. United States, 1 Brock. 520. §§ 399, 400. Jacobs, Re, 98 N. Y. 98. §§ 370, 373. Jacobs V. Brett, L. R. 20 Eq. 6. § 396. V. Graham, 1 Blackf. 392. §§111, 112. V. Ki-uger, 19 Cal. 411. § 429. V. Smallwood, 63 N. C. 112. § 478. Jacoby v. Shafer, 105 Pa, St 610. §283. Jacquins v. Clark, 9 Cush. 279. § 483. V. Commonwealth, 9 Cusla. 279. §§ 206, 469. Jacubeck v. Hewitt, 61 Wis. 96. § 398. James v. Catherwood, 3 D. & R 190. §12. V. Commonwealth, 12 S. & R 220. § 137. v. Dubois, 16 N. J. L. 285. §§ 164, 165, 168. V. Rowland, 52 Md. 462. § 201. Janes v. Buzzard, Hempst. 259. § 168. Janney v. BueU, 55 Ala. 408. §§ 140, 399. Januaiy v. January, 7 T. B. Mon. 542. §478. Janvrin v. De la Mere, 14 Moore's R C. 334. § 310. Jaques v. Golightly, 2 W. Bl. 1073. §325. Jarman, Ex parte, L. R 4 CIl Div. 838. §§256,462. Jarvis V. Jarvis, 3 Edw. Ch. 462. §§ 206, 483. V. Robinson, 21 Wis. 523. §§ 294, 301. Jasper v. Porter, 2 McLean, 579. § 293. Jefferson Co. v. Reitz, 56 I'a. St 44. §157. Jefferys v, Boosey, 4 H. of L. 815. §§ 196, 210, 239, 240, 246. Jenkins v. Crevicr, 50 N. J. L. 351. §396. V. Ewm, 8 Heisk. 456. § 256. V. Union Turnpike Co. 1 CaL Cas. 86. §19a V. Wild, 14 Wend. 539. § 369. Jenkinson v. Thomas, 4 T. R 665. §349. Jennings v. Love, 24 Miss. 249. § 241. Jerome v. Ross, 7 John. Ck 315. §387. Jersey City v. Hud«on, 13 N. J. Eq. 420. §§333,386. Jersey Co. v. Davison, 25 N. J. L. 415. §§ 322, 324 Jesson V. Wright, 2 Bhgli, 2. § 247, Jessup V. Cai-negie, 80 N. Y. 441. §256. Jewell V. Weed, 18 Minn. 272. §§235, 237, Jewett V, Wanshura, 43 Iowa, 574. §§ 376, 377, Jenison v. Dyson, 9 JL & W. 540. §310. Johnes v, Johnes, 3 Dow, 15. § 410. Johns V. State, 78 Ind. 332. § 143. Johnson, Ex parte, 7 Cow. 424. § 449. Jolmson V. Ballou, 28 Mich. 379. §309. V. Bond, Hempst 533. § 478. V. Bmrell, 2 Hill, 238. § 464. V. Bush, 2 Barb. Ch. 207. § 152. V. Byrd, Hempst 434. § 138. V. Cliicago, etc. R R Co. 64 Wis. 425. § 371. V. Common Covmcil, 16 Ind. 227. §306. V. Drummoud, 16 111. App. 641. §375. V. Haines, 4 DalL 64 § 432. V. Higgms,3Met(Ky.)566. §§85, 330, 478. V. Hudson, 11 East, 180. § 836. V. Johnson, 52 Md. 66a §§ 463, 480. 1\ii CASES CITED. Johnson v. Johnson, 26 IncL 441. §206. V. Johet, etc. R R. Co. 23 Dl. 202. §345. V. Koockogey, 23 Ga. 183. § 482. V. Meeker, 1 Wis. 436. § 164. V. Merchandise, 2 Paine, 601. §104. V. People, 83 HL 431. §§ 87, 88. V. Raikoad Co. 49 N. Y. 456. §324 V. Raihroad Co. 49 N. Y. 455. §§ 236, 237, 238, V. Richardson, 44 Ark. 365. §§ 483, 484. V. Robertson, 31 Md. 476. §§ 296, 306. V. State, 33 Miss. 363. § 449. V. Stout, 42 Mnn. 514. § 398. v. Upham, 2 E. & E. 250. § 210. V. Wmslow, 63 N. C. 552. § 169. Johnston's Estate, 33 Pa. St 511. §§ 140, 156. Johnston v. Bank, 3 Strob. Eq. 263. §191. V. Pate, 95 N. C. 68. § 463. V. Rankin, 70 N. C. 550. §398. V. Spicer, 107 N. Y. 185. § 103. V. Wilson, 29 Gratt 379. § 296. JoUie V. Jaques, 1 Blatcli. 618. § 458. Jonas V. Cincinnati, 18 Oliio, 318. §365. Jones' Appeal, 3 Grant, 169. § 220. Jones, In re, 7 Ex. 586. § 262. Jones V. Brown, 2 Ex. 332. § 333. V. Gavins, 4 Ind. 305. § 109. V. Collins, 16 Wis. 594. §§ 207, 420. V. Columbus, 25 Ga. 610. § 101. V. Commissioner, 21 Mich. 236. §132. V. Dexter, 8 Fla. 270. §§ 257, 333. V. Hays, 4 McLean, 521. §§ 185, 293. T. Hutchinson, 43 Ala. 721. §§ 29, 41, 43, 45, 294. V. Jones, 18 Me. 308, § 249. V. Jones, 104 N. Y. 234. § 174. V. Kearns, Mart. & Y. 241. § 196. Jones V. Maffet, 5 S. & R. 523. § 190.. V. Robbms, 8 Gray, 329. § 176. V. Smart, 1 T. R. 44. §§ 430, 431. V. Smith, 3 Gray, 500. § 336. V. Smith, 14 Mich, 334, § 397. V. State, 1 Ga. 610. § 409. V. State, 1 Kan. 273, §§ 447, 451. V, State, 1 Iowa, 395, §§ 167, 225. V. Surprise, 64 N. H. 243 ; 4 New Eng. Rep. 292. §§ 231, 402. V. Tatham, 20 Pa, St 398. §§ 194, 333, 335. V. Theall, 3 Nev, 233. § 26. V. Thompson, 12 Bush, 394 §§ 102, 170. V. Water Com'rs, 34 Mch. 273. §240. T, Wootten, 1 Harr, (Del) 77. §§ 206, 229. Jones' Heu-s v. Perry, 10 Yerg. 59. § 5. Jordan v, Dobson, 2 Abb. (U. S.) 398. §480. V. Gibhn, 12 CaL 100. § 394 V. Wimer, 45 Iowa, 65. § 206. Jordt V. State, 31 Tex. 571. § 347. Jom'neay v. Gibson, 56 Pa. St 57. §§ 164 201, 483. Judd V. Fulton, 10 Barb. 117. §§ 110, 111. Judge of Campbell County Court v. Taylor, 8 Bush, 206. § 365. Judson V. Leach, 7 Cow. 152. § 204. Juhand v. Rathbone, 39 N. Y. 369. §459. Jvdius V. Lord Bishop of Oxford, L. R 5 App. Cas. 214 §§ 460, 462. Jump V. Batton, 35 Mo. 196. § 63. Junction City v. Webb, 23 Pac. Rep. 1073. § 134 Justices V. Griffin, etc. Plk. R Co. 9 Ga,475. §378. Kadgm v. MiUer, 13 IlL App, 474. §374 Kamerick v, Castleman, 21 Mo. App. 587, §133. Kane v. New York, etc. R'y Co. 4&' Conn. 139. § 134 V. State, 78 Ind. 103. § 96. CASES CITED. Lxiii Kankakee Co. v. ^tna Life Ins. Co. 106 U. S. 668. § 157. Kaolatype Engi-aving Co. v. Hoke, 30 Fed. Rep. 444. § 305. Kansas City, etc. R. R. Co. v. Camp- beU, 62 Mo. 585. § 391. Kansas Pac. R'y Co. v. Dunmeyer, 113 U. S. 629. § 379. V. Lundin, 3 Colo. 94. § 371. V. Wyandotte, 16 Kan. 587. §221. Karr v. Washburn, 56 Wis. 303. §420. Kate Heron, Tlie, 6 Sa^vye^, 106. §§ 247, 253, 291. Kean v. Stetson, 5 Pick. 492. § 388. Kearney v. Fitzgerald, 43 Iowa, 580. §377. Kearns v. Cordwainers' Co. 6 C. B. (N. S.) 388. §§ 213, 213. Keech v. Baltimore, etc. R. R. Co. 17 Md 32. § 290. Keemer v. HeiT, 98 Pa. St. 6. § 398. Keenan v. Stimson, 32 Minn. 377. §14. Keeton v. Keeton, 20 Mo. 530. § 424 Keith V. Clark, 97 U. S. 465. § 20. V. Quinney, 1 Ore. 364. §§ 240, 246, 293. Keitler v. State, 4 Greene (Iowa), 291. §395. Keller v. Commonwealth, 71 Pa. St. 413. § 159. V. Corpus Christi, 50 Tex. 614 §§ 392, 398. V. Houlihan, 32 Minn. 486. § 462. V. State, 12 Md. 325. §§ 164, 166. V. State, 11 Md 531. §§ 78, 349. Kelley v. State, 6 Ohio St 269. §§ 121, 123, 123, 174 1T9. V. Story, 6 Heist 202. § 306. KeUook's Case, L. R. 3 Ch. 781. §833. Kellogg, Ex parte, 3 Cow. 372. §449. KeUogg V. Oshkosh, 14 Wis. 623. §136. V. Page, 44 Vt 356. § 447. Kelly V. Meeks, 87 ]\Io. 396. § 70. V. State, 92 Ind. 236. § 117. Kelly's Heii-s v. McGuire, 15 Ark. 555. §§ 215, 240, 241, 259. KeUy Tp. v. Union Tp. 5 Watta & a 535. §§202,324 Kelsey v. KendaU, 48 Vt 24 §§ 133, 206. Kendall v. Dodge, 3 Vt 360. § 10. V. United States, 12 Pet 524 §257. Kenfield v. Irwin, 52 CaL 104 § 451. Kennedy, In re, 2 S. C. 216. § 476. Kennedy v. Cunningham, 2 Met (Ky.) 538. § 342. V. Gies, 25 Midi. 83. § 246. V. Kennedy, 2 Ala. 571. § 246. V. Pahiier, 6 Gray, 316. §§ 110, 182. Kenny v. Clarkson, 1 John. 385. §190. Kent V. Somervell, 7 Gill & J. 205. §§ 210, 213. Kephart v. Farmers', etc. Bank, 4 Mich. 602. g 323. Keppel V. Petersburg R R. Co., Chase's Dec. 167. § 398. Kerkow v. Bauer, 15 Neb. 150. §§ 303, 377. Kerlin v. Bull, 1 DalL (Pa.) 175. §§ 322, 324. Kerlinger v. Barnes, 14 Minn. 526. §133. Kermott v. Ayer, 11 IMich. 181. § 184. Kemion v. Hills, 1 La. Ann. 419. §310. Kerr, Matter of, 42 Barb. 119. § 473. Kerr v. Haverstick, 94 Ind 180. § 113. Kerrigan v. Force, 68 N. Y. 381. §§ 120, 129, 198, 332. V. Force, 9 Hun, 185. § 193. Kesler v. Smith, 66 N. C. 154. § 152. Kessel v. Albetis, 50 Barb. 302. §§ 181, 362. Ketcham v. Fox, 52 Hun, 284 § 374 Keyes v. Westford, 17 Pick, 373. §380. Keyport St B. Co. v. Farmers' Trans- portation Co. 18 N. J. Eq. 34 g^ 398. 300, 301. Kibbe v. Ditto, 93 U. S. 674 § 146. Ixiv CASES CITED. Kichner v. Meyers, 35 Ohio St 85 ; 35 Am. Rep. 598. §376. Kielley v. CarsoB, 4 Moore's P. C. 85. §17. Kiemcon, In re, 6 T. & C. 820. § 101. Kiei-sted v. State, 1 G. «& J. 231. §309. Kilboum v. Thompson, 103 U. S. 168. §§ 8, 294, 395. KUburn v. Deming, 2 Vt. 404. § 422. Kile V. Yellowhead, 80 111. 208. § 298. Kilgore v. Magee, 85 Pa. St 412. §§ 35, 128, 330. KUgow V. MHes, 6 GiU & J. 268. 115. EaUebrew v. Murphy, 3 Heisk. 546. §298. KiUip V. McKay, 13 N. Y. St Rep. 5. §303. Kilpati-ick v. Byrne, 25 Miss. 571. §368. KimbaU v. Lamson, 2 Yt 138. § 253. V. Rosendale, 42 Wis. 407. § 129. Kimbray v. Draper, L. R. 3 Q. B. 160. §§ 206, 482. Kimbro v. Bank of Fulton, 49 Ga. 419. §218. Kimm v. Osgood's Adm'r, 19 Mo. 60. §§ 111, 112. Kiuard v. Moore, 3 Strob. 193. § 364. Kinderley v. Jervis, 25 L. J. Ch. 541. §§ 236, 238. King, Ex parte, 2 Bro. C. C. 158. §194. Kmg V. Adderly, 2 Doug. 463. § 112. V. Ai-undel, Hob. 110. §§ 27, 44 V. Banks, 61 Ga. 20. §§ 94, 98. V. Birmingham, 8 B. & C. 29. §336. V. Bridges, 8 East 53. § 142. V. Burridge, 3 P. Wms. 496. §193. V. CorneU, 106 U. S. 395. § 154. V. Davis, 1 Leach's Cas. 271. §142. V. Dedham Bank, 15 Mass. 447. §473. V. DowdaU, 2 Sandf. 131. § 115. T. Downs, 3 T. R 569. § 138. King V. Haley, 86 HI 106. § 375. V. Herefordshire, 3 Bam. & Aid. 581. §112. V. Kent 29 Ala. 542. § 298. V. Moore, Jeff. (Ya.) 8. § 110. V. Pease, 4 B. & Ad. 30. §§ 254, 258. V. Thompson, 87 Pa St 365. §273. V. Thurston, 1 Lev. 91. § 105. V. Wilson, 1 Dili 555. § 185. King of Two Sicihes v. Wilcox, 1 Sun. (N. S.) 301. § 12. Kingsford v. Great W. R'y Co. 16 C. B. (N. S.) 761. § 420. Kmgsley v. Kingsley, 20 IlL 203. §§ 184, 192. Kmney v. Mallory, 3 Ala, 626. § 138. Kansey v. Hej'^vard, 1 Ld. Raym. 434» §424. Kirk V. Armstrong, Hempst 283. §454. Kirkpati-ick v. Gibson, 2 Brock. 388. §§ 256, 333. V. New Brimswick, 40 N. J. Eq. 46. §§93,95. Kirkstall Brewery, Re, 5 Ch. Div. 535. §255. Kistler v. Hereth, 75 Ind. 177. § 426. Kitchen v. Bartsch, 7 East 53. §310. V. Shaw, 6 Ad. & E. 729. § 270. v. Smith, 101 Pa. St 452. § 137. Klem V. Kmkead, 16 Nev. 194. §§93, 96. Khne v. Baker, 99 Mass. 253. §§ 188, 190, 192. Knapp v. Brooklyn, 97 N. Y. 520. §257. Knaust In re, 101 N. Y. 188. § 88. Kneeland v. ]\Iilwaukee, 15 Wis. 454. §317. Knight V. Aroostook R. R. 67 Me. 291. §154. V. Bate, 2 Cowp. 738. § 424 V. Freeholders of Ocean Co. 49 N. J. L. 485. § 333. V. West Jersey R. R. Co. 108 Pa^ St 250. § 14 CASES CITED. Ixv Kniper v. Louisville, 7 Bush, 599. § 365. Knoup V. Piqua Bank, 1 Ohio St 603. g§ 164, 167. Knox V. Baldwin, 80 N. Y. 610. §§ 154, 163, 167. V. Cleveland, 13 Wis. 249. §480. Knoxville v. Lewis, 12 Lea, 180. §§ 87, 102. Knoxville, eta R R. Co. v. Hicks, 9 Baxt 442. § 4. Koch v. Bridges, 45 Miss. 247. §§ 139, 234, 237, 326, 455. Koemer v. Oberly, 56 Ind. 284 § 374. Kohn V. Carrollton, 10 La> Ann. 719. §132. Kollock V. Parcher, 25 Wis. 372. §398. Koning v. Bayard, 2 Paine, 251. §334. Koontz V. Franklin Co. 76 Pa. St 754. § 473. v. Howsare, 100 Pa. St 504. § 284 Korah v. Ottawa, 32 IlL 121. § 145. Koser, Ex parte, 60 CaL 187. §§ 123, 129. Kossuth County v. Wallace, 60 Iowa, 508. §469. Kountze v. Omaha, 5 Dill. 443. §§ 186, 330. Ki-ach V. HeUman, 53 Ind- 517. §§ 375, 376. KJramer v. Holster, 55 Miss. 243. §394 Kreiger v. Shelby R R Co. 84 Ky. 66. § 383. Kreiter v. Nichols, 28 Mich. 496. §374 Ki-ing V. Missouri, 107 U. S. 221. §§ 465, 466, 467. Kroop V. Forman, 31 Mich. 144 §456. Kuckler v. People, 5 Park, Crimu Eep. 212. § 470. Kuhns V. Krammis, 20 Ind. 490. §102. Kimkle v. Franklin, 13 Minn. 127. §206. Kupfert v. Building Asso. 30 Pa St 465. § 201. Kutztown Alley, In re, 2 Woodw. Dec. (Pa.) 373. § 204. Kyle V. Malin, 8 Ind. 34 § 380. Lacon v. Higgins, 3 Stark. 178. § 190. V. Hooper, 6 T. R. 224. § 253. Lackawana Iron Co. v. Little Wolf, 38 Wis. 152. § 448. Lafayette v. Cox, 5 Ind. 38. § 380. La France v. . Eaayer, 42 Iowa, 143. § 377. La Grange v. Chapman, 11 IHich. 499. §298. V. Cutler, 6 Ind. 354 § 217. Lair v. KiJlmer, 25 N. J. L. 522. §§ 208. 350. Lake v. Caddo Parish, 37 La. Ann, 788. § 240. V. State, 18 Fla 501. § 135. V. WUliamsburg, 4 Denio, 520. §365. Lakeman v. Moore, 32 N. H. 410. §226. Lamar v. jMicou, 114 U. S. 218. §§ 185, 293. Lamb v. Lynd, 44 Pa. St 336. § 384 V. Schottler, 54 Cal. 319. §§ 165, 464 Lambertson v. Hagan, 2 Pa. St 25. §§ 10, 201, 206. Lammer, Re, 7 Biss. 269. § 364. Lamond v. Eiffe, 3 Q. B. 910. § 324 Lampliear v. Buckingham, 33 Conn. 237. § 320. Lampton v. Haggard, 3 T. B. Mon. 149. § 306. Landford v. Dunklin, 71 Ala. 694 § 256. Land Grant Railway v. Commission- ers, 6 Kan. 252. § 12. Landers v. Staten Island R R Co. 14 Abb. Pr. (N. S.) 346. § 397. Landis v. Landis, 39 N. J. L. 274 §§ 137, 152. Lanes Appeal, 105 Pa. St 49. § 371. Lane v. Bennett 1 M. & W. 70. § 430. V. Buruap, 39 Mick 736. § 457. v. Cai-y, 19 Bai-b. 539. § 440. Ixvi CASES CITED. Lane v. Nelson, 79 Pa. St 407. §§ 480, 482, 484. V. Schomp, 20 N. J. Eq. 82. § 261. V. State, 49 N. J. L. 673. § 102. V. Wheeler, 101 N. Y. 17. § 454 Lanfear v. Mestier, 18 La Ann. 497. §298. Lang V. PbiUips, 27 Ala. 311. § 110. V. Scott, 1 Blackf, 405. §§ 204, 325. , Langdeau v. Hanes, 21 Wall. 527. §19. Lange, In re, 85 N. Y. 807. § 457. Langdon v. Summers, 10 Oliio St. 79. §398. V. Y^oung, 33 Vt. 136. § 184 Languille v. State, 4 Tex. App. 31S. §206. Lanning v. Carpenter, 20 N. Y. 447. §§ 181, 183. Lanzetti, Succession of, 9 La. Ann. 333. §§ 82, 87. Lape^Te v. United States, 17 WalL ' 191. § 182. La Plaisance Bay Harbor Co. v. Mon- roe, Walk. Ch. (Mich.) 155. § 878. LaiTabee v. Talbott, 5 Gill, 426. § 107. Lan-ison v. R. R. Co. 77 111. 11. §§ 46, 52, 91, 188. Larzelere v. Haubert, 109 Pa. St 515. §246. La SeUe v. Wliitfield, 12 La, Ann. 81. §333. Lash V. Von Neida, 109 Pa. St 207. §333. Lasure v. State, 19 Ohio St 43. § 469. Lathrop v. Mills, 19 CaL 513. §§ 174, 180. V. Stedman, 42 Conn. 583. §§ 212, 213. Lattess v. Holmes, 4 T. R. 660. §§ 105, 107. Laude v. Chicago, etc. R'y Co. 33 Wis. 640. §§ 133, 134 167. Lauer v. State, 22 Ind. 461. § 92. Lauve, Succession of, 6 La Ann. 529. §314 Lai/ghlin v. Commonwealth, 13 Bush, 261. §§164, 46a Laughter v. Seela, 59 Tex. 177. § 287. Laura, The, 114 U. S. 411. § 309. Law V. Hodson, 11 East 300. § 336. V. Law, Cases Temp. Talbot 140 ; 3 P. Wms. 391. § 429. Lawrence v. Allen, 7 How. 785. § 254 V. GrambUng, 13 S. C. 125. § 185. V. Kmg, L. R. 3 Q. B. 345. § 256. Lawrence R. R. Co. v. Mahoning Co. 35 Ohio St 1. § 482. Lawson v. De Bolt 78 Ind. 56a §§ 132, 154 V. Jeffries, 47 IVIiss. 686. § 119. Lay V. Succession of O'Neil, 29 La Ann. 722. § 20. Layng v. Paine, Willes, 571. § 429. Lea V. Bumm, 88 Pa St 287. §§ 169, 170. Lead Smelting Co. v. Richardson, 8 BuiT. 1341. § 266. Leai-d v. Leard, 30 Ind. 171. § 137. Learned v. Corley, 43 Miss. 689. §§ 219, 234, 241, 246, 324 Leavenworth v. Brockway, 2 Hill, 201. § 184 Leavenworth Co. v. IVIiller, 7 Kan. 479. § 124 Leavenworth, etc. R. R. Co. v. United States, 92 U. S. 733. § 379. Le Couteulx v. Buffalo, 33 N. Y. 833. §380. Lee V. Barkhampsted, 46 Conn. 213. §240. V. Carlton, 3 T. R. 642. § 115. V. Clary, 38 Mich. 223. § 890. V. Cook, 1 Wyom. T'y, 418. §206. V. Forman, 3 Met (Ky.) 114 § 401. V. Kmg, 21 Tex. 577. § 184 V. Lmcoln, 1 Story, 610. § 254 V. Smipson, 3 C. B. 871. §§ 355, 429. V. State, 49 Ala 43. § 448. Lees V. Summersgill, 17 Ves. 508. §212. Leese v. Clark, 20 Cal. 387. § 800. LeffingweU v. Warren, 2 Black, 599. §§ 185, 186, 480. Leforest v. Tolman, 117 Mass. 109. §208. CASES CITED. IxvU Leftwiche's Case, 5 Rand. 657. § 166. Legg V. Mayor, etc. 43 Md. 203. gg29, 41, 42, 45, 110, 183, 294. Leggate v. Clark, 111 Mass. 308. § 458. Leggett V. Hunter, 19 N. Y. 445. §194. Lehigh Co. v. Meyer, 102 Pa St 479. g§ 223, 267. Lehigh Water Co. v. Easton, 121 U. S. 388. g§ 378, 384. Lehman, Durr & Co. v. Robinson, 59 Ala. 219. § 255. V. McBride, 15 Ohio St 573. §§ 80, 131, 132, 135. Leigh V. Kent, 3 T. R 362. §§ 137, 310. V. Thornton, 1 B. & Aid, 625. §426. Leighton v. Walker, 9 N. H. 59. §§ 142, 154. Leitensdorfer v. Webb, 20 How. 176. §19. Lelajid t. Tousey, 6 Hill, 328. §§ 202, 399. V. Wilkinson, 6 Pet 317. § 194. Lemp V. Hastings, 4 Greene (la.), 448. §313. Leonard v. Canton, 35 Miss. 189. §§ 300, 365, 380. V. Columbia N. Co. 84 N. Y. 48. §256. V. Columbia St Nav. Co. 84 N. Y. 48. § 14. V. Wiseman, 31 Md. 201. § 237. Leonie v. Taylor, 20 Mich. 148. § 234. Leroy v. ChaboUa, 2 Abb. (U. S.) 448. § 283. Les Bois v. BrameU, 4 How. 449. §201. Leschi v. Territory, 1 Wash- T'y, 13. §§ 104, 166. Lessley v. Phipps, 49 Miss. 790. §§ 164, 477. Lester v. Garland, 15 Ves. 248. §§111, 112. Leverson v. Regina, L. R 4 Q. B. 394. §§ 301, 310. Levet's Case, 1 Hale. 474. § 355. Levy V. State, 6 Ind. 381. § 198. e Levy V. Stewart, 11 Wall. ?44. § 368. Lewis V. Aylott, 45 Tex. 190. § 287. V. Brackturidge, 1 Blackf. 230. §306. V. Calor, 1 Post. & Fin. 306. § 115. v. Foster, 1 N. H. 61. g§ 164, 166. V. McClure, 8 Ore. 273. § 396. V. Mcllvaine, 16 Ohio, 347. § 164 V. State, 3 Head, 137. §§ 291, 463. V. Stout 22 Wis. 234. § 155. V. Webb, 3 Me. 326. § 119. V. Woodf oik, 85 Tenn. 25. § 104. License Cases, 5 How. 504. § 7. Lide V Parker, 60 Ala. 165. § 184. Life Ins. Co. v. Ray, 50 Tex. 512. §463. Lillard v. McGee, 4 Bibb, 165. § 202. Lima v. Cemetery Asso. 42 Ohio St 128. §§ 367, 380. Limestone Co. v. Rather, 48 Ala. 433. §448. Lincoln v. BatteUe, 6 Wend. 475. §§ 190, 297. Lincoln, etc. Asso. v. Graham, 7 Neb. 173. § 201. Lindenmuller v. People, 21 How. Pr. 150. § 407. Lindsay v. Cundy, L. R 1 Q. B. Div. 358. §§ 230, 403. V. Williams, 17 Ala. 229. § 298. Lindsey v. Rottaken, 32 Ark. 619. §321. V. Rutherford, 17 B. Mon. 245. §336. Lindzey v. State, 65 Miss. 542. §§ 142, 470. Lming v. Bentham, 2 Bay, 1. § 842. Linn v. Scott 3 Tex. 67. § 201. Linsing v. Washburn, 20 Cal 534. §119. Linton's Appeal, 104 Pa. St 228. §284. Linton v. Blakeney Joint Co-op. So- ciety, 3 H. & C. 853. §§ 164, 225. Lion Ins. Asso. v. Tucker, L. R 12 Q. B. Div. 180. §§ 239, 240, 247. Lippencott v. Leeds, 77 Pa. St 420. §33a Lxviii CASES CITED. Lippincott v. Hopkins, 57 Pa. St. 328. §338. Lipscomb v. Dean, 1 Lea, 546. § 8. Litch V. Brotherson, 25 How. Pr. 416. §482. Litbbridge v. Chapman, 15 Vul Abr. 103. § 424. Litchfield v. Vemon, 41 N. Y. 123. § 362. Little V. Poole, 9 B. & C. 192. § 336. Littlefield v. Winslow, 19 Me. 394. §365. Little Rock, etc. R R. Co. v. Barker, 39 Ark. 491. § 371. V, HoweU, 31 Ark. 119. §§ 215, 239, 241. Little Schuylkill Nav. Co. v. Rich- ards, 57 Pa. St. 142. § 377. Liverpool Borough Bank v. Turner, 2 De G. F. & J. 502 ; 30 L. J. Cli. 139. §§203,447. Livingston v. Harris, 11 Wend- 329. §337. V. Jordan, Chase's Dec. 454 § 20. V. Moore, 7 Pet. 469. § 185. V. Van Ingen, 9 John. 507. § 202. Lobrauo v. NeUigan, 9 Wall 295. § 194. Lock V. Miller, 3 Stew. & Port 13. §§ 139, 290. Locke's Appeal, 72 Pa. St 491. §§ 67, 72, 75. Lockett V. Usry, 28 Ga. 345. §§ 10, 482. Lockliart v. Troy, 48 Ala. 579. § 135. Lockwood v. Crawford, 18 Conn. 361. §§ 184, 190, 192. Logan V. Courtown, 13 Beav. 22. §237. V. State, 3 Heisk. 442. § 104. V. Walton, 12 Ind. 639. § 206. Lohman v. State, 81 Ind. 15. § 303. Lombard v. Antioch College, 60 Wis. 459. § 170. v. Trustees, etc. 73 Ga. 322. § 322. V. Whiting, Walker (Miss.), 229. §392. London Tobacco Pipe Makers v. Woodruffe, 7 B. & C. 838. § 285. Long v. Gulp, 14 Kan- 413. §§ 217, 219. Longes v. Kennedy, 2 Bibb, 607. §§ 296, 306. Longey v. Leach, 57 Vt 377. § 400. Longlois V. Longlois, 48 Ind- 60. §§ 133, 137, 168. Looker v. Davis, 47 Mo. 140. §§ 223, 224 Looney v. Hughes, 30 Barb. 605, §449. Lord V. Parker, 3 Allen, 127. § 290. Lord Advocate v. Sinclair, L. R. 1 Scotch App. 178. §310. Lormg v. Hailing, 15 John. 119. § 253. Lorman v. Benson, 8 IVIich- 18. § 181. v. Clarke, 2 McLean, 568. § 185. Losch V. St Charles, 65 Midi. 555. §102. Lougee v. Washburn, 16 N. H. 134 §184 Loughridge v. Huntington, 56 Ind. 253. § 114 Louisiana v. New Orleans, 102 U. S. 203. §§ 471, 476. v. Pillsbuiy, 105 U. S. 278. §§ 78, 94 Louisiana State Bank v. Flood, 3 Mai"t (N. S.) 341. § 193. Louisiana State Lottery Co. v. Richoux, 23 La, Ann. 745. §88. Louisville v. Commonwealth, 9 Dana, 70. § 285. v. Savmgs Bank, 104 U. S. 469. §§ 104, 110, 182, 183. LouisvUle, etc. Co. v. BaUard, 2 Met (Ky.) 168. §§ 85, 93, 96. Louisville, etc. R R Co. v. County Court 1 Sneed, 668. §§ 317, 320, 331. V. Mississippi, 133 U. S. 587. § 185. Lovejoy v. Whipple, 18 Vt 379. §336. Lowenberg v. People, 27 N. Y. 336. §168. Lower Chatham, In re, 35 N. J. L. 497. § 237. LovvTides County v. Hunter, 49 Ala. 507. §§ 102, 170. OASES CITKD. Ixii Lowry v. FrancLs, 3 Yerg. 534 § 472. Lucas V. Commissioners, 44 Ind. 541. §330. V. Ladew, 38 Mo. 342. § 184. V. McBlair, 13 Gill & J. 265. §310. Lucas County v. Chicago, B. & Q. R'y Co. 67 Iowa, 541. § 133. Luck V. State, 96 InA 16. § 295. Lucy V. Leviugton, 1 Vent 175. §194. Ludeling v. His Creditors, 4 Mart. (N. S.) 603. § 482. Ludington v. United States, 15 Ct of CL 453. § 259. Luehrman v. Taxing Dist. 2 Lea, 425. §§ 88, 97. Lueken v. People, 3 IlL App. 375. §375. Luke V. Calhoun Co. 56 Ala. 415. §167. V. CaUioun Co. 52 Ala 115. § 305. Luhug V. Racme, 1 Biss. 316. § 120. Lull V. Fox, etc. Improvement Co. 19 Wis. 100. § 377. Lusher v. Scites, 4 W. Va. 11. g§ 8, 181, 183. Luther v. Saylor, 8 Mo. App. 424. §§ 87, 88. Lycoming F. Ins. Co. v. Woodworth, 83 Pa St 323. § 263. Lyddy v. Long Island City, 104 N. Y. 218. §§ 138, 140. Lyman v. Martin, 2 Utah, 136. § 41. Lyn V. Wyn, Bridg. 122. § 217. Lynch v. State, 9 Ind, 541. § 343. Lynchburg v. N. & W. R. R. Co. 80 Va237. §280. Lynde v. Noble, 20 John. 80. § 435. Lynes v. State, 5 Port. 236. § 399. Lyon V. Jerome, 26 Wend. 485. §387. V. Smith, 11 Barb. 134 § 154 Mabry v. Baxter, 11 Heisk. 682. §§ 306, 482. MacDougall v. Paterson, 11 C. B. 755. §§ 258, 461, 462. Mace V. Cammel, Lofft 782. § 213. Macnaghten's Case, 10 C. & F. 20a § 355. Macnawhoe Plantation v. Thompson, 30 Me. 365. §§ 365, 464 Macoleta v. Packard, 14 CaL 179. § 19. Macon v. Macon Savings Bank, 60 Ga 133. § 280. Macon, etc. R. R. Co. v. Johnson, 38 Ga 409. § 371. V. Little, 45 Ga 370. § 26. Maddox v. Graham, 2 Met (Ky.) 56. §§ 138, 378. Madison, etc. P. R Co. v. Reynolds, 3 Wis. 287. § 260. Magruder v. Canoll, 4 Md. 335. §§ 215, 239, 480. v. State, 40 Ala 347. § 142. Maliomet v. Quackenbush, 117 U. S. 508. g§ 93, 96. Mahoney v. Wright 10 Irish C. L. (N. S.) 420. §§ 147, 157. IMahoon v. Greenfield, 53 Miss. 434 §355. Maize v. State, 4 Ind. 342. §§ 67, 75. Malcolm v. Rogers, 5 Cow. 188. § 403. Mallan v. May, 13 K & W. 511. § 250. IMallett V. Simpson, 94 N. C. 37. §345. Maloney v. Bmce, 94 Pa St 249. §364 IMalonny v. Mahar, 1 Mich. 26. § 309. Mallory v. HUes, 4 Met (Ky.) 53. §104 IMaUoy v. Commonwealth, 115 Pa St 25. §157. Maltby v. Cooper, Morris (la), 59. §426. Maudere v. Bonsignore, 28 La Ann. 415. § 194 Maugun v. Webster, 7 GUI, 78. § 295. INIanhattan R R Co., Matter of, 103 N. Y. 301. § 457. Manlove v. White, 8 CaL 376. § 136. Manly v. Downing, 15 Neb. 637. §398. Mann v. lUinois, 94 U. S. 113. § 7. V. McAtee, 37 CaL 11. §§ 133. 206, 482. Ixx CASES CITED. Mansell v. Regina, 8 E. & B. 111. §§ 307, 313. Manuel t. IManuel, 13 Ohio St. 458. §§ 283, 287. Maple V. Myers, 12 Pa, St 123. §3G4. Maple Lake v. Wright Co. 13 Minn. 403. t;§ 215, 219. Marblehead v. County ComTS, 5 Gray, 451. § 388. Marchant v. Langworthy, 6 HUl, 646 ; 3 Denio, 526. § 453. Marmer v. Dyer, 3 Me. 165. § 342. Market Bank v. Pacific Bank, 27 Hun, 465. § 306. Marqueze v. Caldwell, 48 Miss. 23. §256. Marion v. State, 20 Neb. 233. §§ 467, 469, 470. Mark's Ex'r y. RusseU, 40 Pa St. 372. §115. Mai'ks V. Trustees of Purdue UniTer- sity, 37 Ind. 161. § 117. Marquis of Chandos v. Commission- ers, 6 Ex. 464. § 362. Maxr V. Enloe, 1 Yerg. 452. § 8. Mai-sh V. Higgins, 9 C. B. 551. §§ 463, 481. V. Nelson, 101 Pa. St. 51. § 366. V. Supervisors, 43 Wis. 503. § 452. Marshall v. Grimes, 41 Miss. 27. § 333. V. Vultee, 1 E. D. Smith, 294. §§ 207, 443. Marshalsea's Case, 10 Rep. 73o. § 300. Marson v. Lund, 13 Q. B. 664. § 462. Marston v. Tryon, 108 Pa, St. 270. § 358. Martin, Ex parte, L. R. 4 Q. B. Div. 212. § 341. Martin t. Archer, 3 HUl (S. C), 211. §434. V. Broach, 6 Ga. 21. §§ 77, 88. V. Ford, 5 T. R 101. § 349. V. Gleason, 139 Mass. 183. § 283. V. Hemming, 18 Jur. 1002. § 300. V. Hewitt, 44 Ala, 418. § 97. V. Hughes, 67 N. C. 293. § 476. V. Hunt<»-r"s Lessee, 1 Wheat 326. g§ 21, 339, 347, 307. ]\Iartin v. Jennings, 10 La. Ann. 553. §303. V. Martin, 51 Me. 366. § 398. V. Martin, 1 Sm. & M. 176. § 184. V. O'Brien, 34 Miss. 31. §§ 239, 340. V. Robinson, 67 Tex. 368. § 333. V. State, 33 Tex. 314. § 306. V. Waddle, 16 Pet 411. § 378. Martindale v. Martindale, 10 Lad, 566. § 133. MartinsvUle v. Frieze, 33 Lid. 507. §132. Marvm v. Bates, 13 Mo. 217. § 424. Mason v. Armitage, 13 Ves. 36. § 213. V. Boom Co. 3 Wall Jr. 353. §221. V. Crosby, Davies, 303. § 427. V. Finch, 3 IlL 233. g§ 215, 245. V. Haile, 12 Wheat 370. §§ 471, 476. V. Harper's Ferry Bridge Co. 17 W. Va. 397. § 157. V. Johnson, 24 111. 159. § 424. V. Mason's Widow, 12 La. 465. §184. V. Mulliohi, 6 Dana, 140. § 198. V. Rogers, 4 Litt 377. § 334 T. Spencer, 35 Kan. 513. §§ 139, 130. T. Wash, 1 HL 16. § 297. Masterson v. Beasly, 3 Ohio, 301. §430. Mastronada v. State, 60 Miss. 86. §§ 164, 166. Matheson v. Heai-m, 29 Ala. 210. § 318. Mathews v. Densmore, 43 Mich. 461. § 393. V. Shores, 24 lU. 37. §§ 339, 309. Mathewson v. Phcenix Iron Foxmdry, 30 Fed. Rep. 281. § 168. Mathieson v. Harrod, L. R 7 Eq. 270. §458. Matthews, Ex parte, 53 Ala 51. §§ 256, 333. Matthews v. Ansley, 31 Ala 20. §§ 17, 184. V. Commonwealth, 18 Gratt 089. §§ 218, 241, 246, 367. CASES CITED. Lxxi Matthews v. Phillips, 2 Salk. 424 g424. V. Sands, 29 Ala. 136. §§ 257, 390. V. Skinker, 03 Mo. 329. §§ 207, 381. V. Zane, 7 Wheat 164. § 104. Matthewsou v. Speucer, 3 Sneed, 513. §483. Mattisoa v. Hart, 14 C. B. 385. § 258. Mattox V. Hightshue, 39 lud. 95. §458. MauU V. Vaughu, 45 Ala. 134. § 476. Maxwell v. Collins, 8 Ind. 38. §§ 240, 246. May V. Jameson, 11 Ark. 368. § 190. May's Heirs v. Frazee, 4 Litt 392. §194. May V. Great W. R'y Co., L. R. 7 Q. B. 377. §g 237, 238. V. Rice, 91 lud. 549. §^ 60, 64. Mayer, Matter of, 50 N. Y. 507. §§ 83, 88, 93. Mayers v. State, 7 Ark. 68. § 166. Maynard v. Valentine, 2 Wash. T'y, 8. §6. Mayor v. Davis, 6 Watts & S. 269. §329. V. Dearmon, 2 Sneed, 121. §§ 119, 124, 137, 154. V. Hartridge, 8 Ga 23. §§ 363, 366. V. Howard, 6 Har. & J. 388. §§ 239, 240, 283, 288. V. Macon, etc. R, R. Co. 7 Ga. 221. §§ 158, 378. V. Mmor, 70 Ga. 191. § 157. V. Magruder, 34 Md. 381. § 223. V. State, 30 Md. 118. §§ 78, 82, 164, 166. V. State, 4 Ga. 26. §§ 77, 88. Mayor of Baltimore v. State, 15 Md. 376. §§ 312, 330, 331. Mayor of Loudon v. The Queen, 13 Q. B. 33. g 139. Mayor, etc. v. Baltimore, etc. R. R Co. 6 Gill, 288. § 386. V. Central R R etc. Co. 50 Ga. 620. § 364. Mayor, etc. v. Clunet, 23 Md. 469. §72. V. Doris, W. & S. 269. § 370. V. Dechert, 32 ^ihi 369. § 170. V. Fiuuey, 53 Ga. 317. § 75. V. Green Mount Cemetery, 7 Md. 517. § 243. V. Groshon, 30 Md 430. § 154. T. Harwood, 32 Md. 471. § 183. V. Howard, 6 Har. & J. 38a §§ 202, 215. V. Jei^ey Citj' R. R. Co. 20 N. J. Eq. 360. §§ 138, 145. V. Lord, 17 Wend. 285 ; 18 id. 128. §§ 207, 370, 441. V. Marriott, 9 Md. 160. § 462. V. Moore, 6 H. & J. 381. §§ 213, 322. V, Ohio, etc. R. R. Co. 26 Pa. St. 365. § 378. V. Reitz, 50 Md. 575. §§ 93, 95. V. Root, 8 Md. 95. §§ 218, 324 410, 411, 428. V. Sands, 105 N. Y. 210. § 341. V. Second Ave. R R Co. 32 N. Y. 261. § 385. V. Trigg, 46 Mo. 288. §§ 131. 132. Mays V. Cincinnati, 1 Ohio St. 209. §§ 365, 380. MaysviUe, etc. R R Co. v. Herrick, 13 Bush, 122. § 259. Maxey v. Loyal, 38 Ga. 531. § 476. MaxweU v. Bay City, 46 Mich. 27a §407. v. Colhns, 8 Ind. 38. §g 219, 428, 429. v. Goetschius, 40 N. J. L. 383. §480. V. Wessels, 7 Wis. 103. § 454. McAfee v. Southern R R Co. 36 Miss. 669. §g 138, 148. McAnnich v. :Miss. & U. R. R Co. 20 Iowa, 338. § 125. McAi-thur v. Nelson, 81 Ky. 67. §§ 93, 96. McBee v. Hoke, 2 Speers, 138. § 448. JMcBride's Appeal, 72 Pa. St 4Sa §254. lyyji CASES CITED. McCabe t. Emerson, 18 Pa. St 111. §10. V. Kenny, 52 Hun, 514. § 102. McCallie v. Chattanooga, 3 Head, 321. § 124. McCalment v. State, 77 Ind. 250. §167. McCann v. State, 18 Sm. & M. 471. §142. McCai-dle, Ex pai-te, 7 Wall 506. §§ 165, 327, 330, 464. McCartee v. Orphan Asylum Society, 9 Cow. 437. §§ 287, 825. McCarthy v. Commonwealth, 110 Pa. St 243. § 129. McCarty v. Wells, 51 Hun, 171. §§ 374, 375. McCarver v. Jenkins, 2 Heisk. 629. §448. McCaslin v. State, 44 Ind. 151. §§ 88, 93, 96. McCloskey v. McConnell, 9 Watts, 17. §324. McClimg V. SiUiman, 3 Pet 270. §§ 186, 368. McCluskey v. Cromwell, 11 N. Y. 601. §§ 234, 237. McComb V. Gilkey, 29 Miss. 146. § 194. McConky v. Superior Court of Ala- meda Co. 56 Cal. 83. § 252. McCool V. Smith, 1 Black, 459. §§ 138, 148, 152, 240, 247, 253, 291, 846, 464. V. State, 7 Ind. 379. § 109. McCormack v. Terre Haute, etc. R R 9 Ind. 283. § 204. McCormick v. Alexander, 2 Ohio, 74. §§ 207, 410. V. Sullivant, 10 Wheat 202. § 187. McCorry v. Kmg, 3 Humph. 267. §184 McCowan v. Davidson, 43 Ga 480. §§ 464. 465. McCracken v. Hayward, 2 How. 612. §g 206, 471, 477. McCraney v. McCraney, 5 Iowa, 232. §482. McCready v. Sexton, 29 Iowa, 356. §171. McCuen v. State, 19 Ark. 634. g 167. McCulloch V. Maiyland, 4 Wlieat 327. §§ 197, 307, 362, 473. T. State. 11 Ind. 424. §§ 46, 330. McDade t. People, 29 Mich. 50. § 37a McDaniel v. Webster, 2 Houst 305. §476. McDeed v. McDeed, 67 HI. 545. §§ 184, 192. McDermut v. Lorillard, 1 Edw. Ch. 273. § 223. McDonald v. Kuby, 3 Heisk. 607. §306. V. Myles, 12 Sm. & M. 279. § 184. McDonough, In re Election of, 105 Pa St 488. § 459. McDougal T. Hennepin Co. 4 Minn. 184 § 428. McDougald v. Dougherty, 14 Ga 674 §§ 219, 28^1. McEwen v. Den, 24 How. 242. §§ 133, 206. •V. Montgomery Ins. Co. 5 Hill, 104 § 440. McFarland v. Bank of the State, 4 Ark. 410. § 283. V. Butler, 8 Minn. 116. § 478. V. Stone, 17 Vt 173. § 322. McFate's Appeal, 105 Pa St 323. §288. McGavick t. State, 34 N. J. L. 509. §§ 159, 225. McGee v. McGee, 10 Ga 477. § 341. V. McCann, 69 Me. 79. § 373. McGeehan v. Burke, 37 La Ann. 156. §133. McGill V. State, 34 Ohio St 239. §§ 121, 122, 123. McGinnis v. State, 24 Ind. 500. § 29a McGlade's Appeal, 99 Pa St 338. § 370. McGowan v. State, 9 Yerg 184 § 402. McGrath v State, 46 Md. 633. §§ 78, 86, 88, 95. McGraw v. Walker, 2 Hilt 404. § 114 McGuire v. Evans, 5 Ired. Eq. 269. § 220. Mclnery v Galveston, 58 Tex. 334 §234 CASES CITED. Ixxiii Mclnifife v. Wheelock, 1 Gray, COO. § llf»- Mclntire v. Western N. C. R R Co. 67 N. C. 278. § 398. Mcintosh V. Lee, 57 Iowa, 356. § 302. Mclntuit V. State, 20 Tex. App. 335. §470. Mclntyre v. Ingraham, 35 !Miss. 25. §§ 240, 245, 246, 276, 279, 282, 300. V. Marine, 93 Ind. 193. § 132. Mclves V. Ragan, 2 Wheat 29. § 427. McKee v. McKee, 17 Md. 352. §g 255, 256. M'Keen v. Delancy, 5 Cr. 32. §§ 187, 191, 310, 317. McKenna v. Edmundstone, 91 N. Y. 231. §157. McKennie v. Gorman, 68 Ala. 442. §47. McKenzie v. State, 11 Ark. 594. §333. V. Wardwell, 61 Me. 136. § 190. McKineron v. Bliss, 31 Barb. 180. §§ 17, 184. McKinney v. Memphis Overton Hotel Co. 13 Heisk. 104. § 124. McKinnon v. Bliss, 21 N. Y. 206. §§ 194, 298. McKune V. Weller, 11 Cal 49. §§446, 455. McLain v. New York, 3 Daly, 32. §§ 193, 198. McLaughlin v. Hoover, 1 Ore. 31. §§ 151, 202, 283. V. State, 66 Ind. 193. § 454. McLeUan v. Young, 54 Ga. 399. § 428. McLelland v. Shaw, 15 Tex. 310. §§ 218, 322. McLeod V. Burrouglis, 9 Ga. 213. ■ §§ 10, 11, 253, 378. McLean Coiinty v. Bloomington, 106 111. 209. § 364. McMahon v. Mayor, eta 33 N. Y. 642. §371. McMannrng v. Farrar, 46 Mo. 376. § 206. McMannis v. Butler, 49 Barb. 176. S§ 463, 464. McMannus v. Garvin, 77 N. Y. 36. §400. McMaster v. Lomax, 2 MyL & K 32. §300. McMeclien v. Mayor, etc. , H. & J. 41. §§ 164, 400. ]\IcMicken v. Commonwealth, 58 Pa. St. 213. §§ 255, 256. McMUlan v. BeUows, 37 Hun, 214. §168. McMinn v. Whelan, 27 Cal. 300. §394. McMullen v. Guest, 6 Tex. 278. §§ 133, 167. McNair v. Hunt, 5 Mo. 300. § 19. McNamara v. ^Minxu etc. R. R Co. 12 MinB. 388. §§ 206, 256, 482. McNeely v. Woodruff, 13 N. J. L. 352. §152. McNeil V. CoUinson, 130 Mass. 167. §373. V. Commonwealth, 12 Bush, 727. §§ 57, 136. McNichol V. Pacific Exp. Co. 12 Ma App. 401. § 296. V. United States, etc. Agency, 74 Mo. 457. § 201. McNiel, Ex parte, 13 WaU. 236. § 185. McNiel V. Holbrook, 12 Pet 84 § 185. McNulty V. Battj', 10 How. 72. § 165. McPhail V. Gerrj-, 55 Vt 174 § 232. McPherson v. Leonard, 29 Md. 377. §§ 63, 65. McQueen v. Middleton, etc. Ca 16 John. 5. § 207. INIcQuilkien v. Stoddard, 8 Blackf. 581. §162. McRae v. Holcomb, 46 Ark. 306. §§ 222, 223, 224 V. Mattoon, 13 Pick. 53. § 191. McRee v. M'Lemore, 8 Heisk. 440. § 165. McRoberts v. Washbume, 10 Minn. 23. §§ 137, 145, 325. McVey v. McVey, 51 Mo. 406. § 157. McWhorter v. Donald, 39 Miss. 779. §§ 394, 400. McWilhams v. Adams, 1 Macq. H. of K Cas. 120. §§ 196. 2b3, 2b8. Ixxiv CASES CITED. Main Street, In re, 98 N. Y. 454. § 257. Mead v. BagnaU, 15 Wis. 156. §§ 104, 109, 160. V. Stratton, 87 N. Y. 493. § 375. Meade v. Deputy Marslial, 1 Brock. 324 §218. Mears v. Stewart, 31 Ark. 17. § 155. Mecliam v. McKay, 37 CaL 154. § 395. Mechanics', etc. Bank's Appeal, 31 Comi. 63. §§ 164, 223. Mechanics' & Traders' Bank v Bridges, 30 N. J. L. 112. t5 159. Medbury v. Watson, 6 Met. 246, § 373. Medford v. Learned, 16 Mass. 215. § 206. Medical CoUege v. Muldon, 46 Ala. 003. g§ 133, 135. Medley, In re, 134 U. S. 160. § 466. Meeks v. Vassault, 3 Saw. 206. § 424. Meidel v. Anthis, 71 lU. 241. § 374. Melody v. Reab, 4 Mass. 471. §§ 139, 290, 347, 366, 400. Memphis v. Fisher, 9 Baxt. 239. §§ 119, 124. V. Laskie, 9 Heisk. 511. § 428. Mempliis F. Co. v. Mayor, 4 Cold. 419. J$41. Mendon v. County of Worcester, 10 Pick. 235. §§ 215, 288, 322. Menges v. Dentler, 33 Pa. St. 495. §484. V. Frick, 73 Pa. St 137. §§ 111, 114. Meracle v. Down, 64 Wis, 323. §§ 41, 42,45. Mercer v. Ogilvy, 3 Paton, 434. §112. V. State, 17 Ga. 146. § 206. Merchants' Bank, Re, 2 La. Ann. 68. §109. Mercliants' Bank v. Bliss, 13 Abb. Pr. 225. § 358. V. Cook, 4 Pick. 405. §§ 254, 346. Merchants' Ins. Co. v. Ritchie, 5 WaU. 541. § 165. Meredith v. Chancey, 59 Ind. 466. §114. Meriam v. Ilarsen, 2 Barb. Ch. 270. §314. INIerriam, In re. 84 N. Y. 596. § 457. Merriani v. Moody's Ex'rs, 25 Iowa, 163. § 380. Merrifield v. Robbins, 8 Gray, 150. §190. MerriU v. Grossman, 68 Me. 412. §283. V. Dawson, Hempst. 563. g«^ 185, 293. T. Melcliior, 30 Miss. 516. § 350. V. Sherburne, 1 N. H. 203. §§ 6, 11, 164, 206. Merritt v. Knife Falls B. Coi-p'n, 34 Minn. 245. §§ 119, 125. Mersey Steel & Ir. Co. v. Naylor, L. R. 9 Q. B. Div. 878. § 322. Merwin v. Ballard, 66 N. C. 398. §§ 206, 482. V. Chicago, 45 111. 133. § 428. Meslike v. Van Doren, 16 Wis. 319. §§ 193, 198. Meshmeier v. State, 11 Ind. 482. §§ 67, 169, 178, 180. Metropolitan Asylum Dist. v. HUl, L. R. 6 App. Cas. 208. § 322. Metropohtan Board of Health v. Schmades, 10 Abb. Pr. (N. S.) 205. §§ 106, 160. Metroi^ohtan Board of Works v. Steed, L. R. 8 Q. B. Div. 447. §§ 219, 252. Metropolitan District R'y Co. v. Sharpe, L. R. 5 App. Cas. 431. §217. Metropolitan Gas Light Co., Matter of, 96 N. Y. 477. § 169. Mew, In re, 31 L. J. Bankr. 89. § 300. Mewherter v. Price, 11 Ind- 201. §§ 87, 102, 170. Mewster v. Spalding, 6 McLean, 24. §185. Meyer v. Kalkmann, 6 Cal. 582. § 397. V. Meyer, 23 Iowa, 375. § 422. Meyers v. Kirt, 57 Iowa, 421. §§ 373, 376. lilichel V. Michel, 5 IMadd. 72. § 279. Michell V. Brown, 1 E. & K 267. §§ 142, 143, 144. Michigan State Bank v. Hastings, 1 Doug. (Mich.) 227. §47a OASES CITED. Lxxv MickleUnvait, In re, 11 Ex. 4rj2. § 363. Middleton, Matter of Village of, 83 N. Y. 196. § 170. Middleton v. New Jersey, etc. Co. 26 N. J. Eq. 269. §g 133, 134, 167. V. Sage, 8 Conn. 221. § 386. Midland R'y Co. v. Anibergate R'y Co. 10 Hare, 369. g§ 231, 403. V. Pye, 10 C. B. (N. S.) 191. § 407. Migueault v. Malo, L. R. 4 P. C. 136. ^310. MUbiiru v. State, 1 Md. 17. §§ 218, 334, 246. 411. Miles V. McDermott, 31 CaL 272. §115. V. State, 40 Ala. 39. §§ 143, 143. V. WiUiams, 1 P. Wms. 249. §§ 390, 39 L Milford V. Worcester, 7 Mass. 48. ^ 336. MiUer"s Case, 1 W. Black. 451. § 165. Miller v. Avery, 2 Barb. Ch. 583. §397. V. Craig, 11 N. J. Eq. 175. § 370. V. Edwards, 8 Colo. 528. §§ 137, 138. V. Fiery, 8 GiU, 147. § 10. V. Goodwin, 70 IlL 659. § 41. V. Graham, 17 Ohio St 1. §§ 206, 482. V. Grandy, 13 Mich. 540. § 420. V. Hurford, 11 Neb. 377. § 57. V. Kirkpatrick, 29 Pa. St 226. §338. V. McQuerry, 5 McLean, 469. §393. V. Mercier, 3 Mart (N. S.) 236. §156. V. MUler, 16 Mass. 59. § 206. V. Miller, 44 Pa, St. 170. § 327. V. Moore, 1 E. D. Smith, 739. §§ 200, 476. V. Reynolds, 5 Martin (N. S.), 665. §463. V. Ruble, 107 Pa. St. 395. § 458. V. Salomons, 7 Ex. 560. §§ 196, 237, 238, 246, 259. MUler V. State, 3 Ohio St 475. §§ 46, 48, 49, 50, 80. V. State, 33 Miss. 361. § 138. V. Wentworth, 83 Pa, St 280. §458. ]Millered v. Railroad Co. 9 How. Pr. 238. § 290. Mills V. Charlcton, 29 Wis. 400. §101. V. St Clair Co. 8 How. 581. § 378. V. Scott, L. R 8 Q. B. 496. § 337. V. Wilkins, 6 Mod. 62. §§ 196, 210. V. WUliams, 11 Ired. 558. §§ 380, 473. ]Millvale Borough v. Evergreen R'y Co. 131 Pa. St 1. § 101. Milne v. Huber, 3 McLean, 212. § 168. Milwaukee, etc. R. R. Co. v. Faribault, 23 Minn. 167. § 388. V. MUwaukee, 34 Wis. 271. § 364. Minis V. Swartz, 37 Tex. 13. § 293. Miner v. Clark, 15 Wend. 425. § 440. Minei-s' Bank v. United States, 1 Greene (la,), 553. §§ 378, 473. jMmet V. Leman, 20 Beav. 269. §§ 32 1, 333, 407. Minis V. United States, 15 Pet 445. §§ 218, 222. Minneapolis Gas L. Co. v. Minneapo- hs, 36 IVImn. 159. § 384. Minor v. CardweU, 37 Mo. 353. § 12. V. Mechanics' Bank, 1 Pet 46. ^ 246, 460, 462. Minturn v. Larue, 23 How. 435. §§ 365, 378, 380. Mirehouse v. Rennell, 1 CL «fc Fin. 546. ^237,238. Mississippi, etc. Co. v. Prince, 34 •Minn. 71. §§ 78, 87, 88, 103, 170. IMissouri, etc. R R Co. v. K P. R. R. Co. 97 U. S. 491. § 379. V. Lee, 35 Am. & Eng. R R Cas. 364 § 371. 3kIitcheU V. Doggett 1 Ha. 356. § 164. V. Dimcan. 7 Fla. 13. §§ 143, 151, 202, 383, 288, 399, 463. V. Halsey, 15 Wend. 241. § 156. V. Mitchell, 5 :\Iadd. 72. § 24& Ixxvi CASES CITED. MitclieU T. MitcheU, 1 Gill, 66. §§ 207, 434, 437. V. Eockland, 45 Me. 496. § 366. V. Tiicker, 10 Mo. 262. § 19. T. United States, 9 Pet. 732. § 19. V. Wells, 37 Miss. 235. § 188. V. Woodson, 37 Miss. 567. §§ 111, 253. Mitford V. ElUott. 8 Taunt 13. g 228. MLxer v. Sibley, 53 IlL 61. § 368. Moar V, Covington City Nat Bank, 80 Ky. 305. § 112. Mobile V Rowland, 26 Ala. 498. § 428. Mobile Bay Road Co. v. Yeind, 29 Ala, 325. §439. V. Malone, 46 Ala. 391. § 283. Mobile, etc. R. R. Co. v. State, 29 Ala. 573. §§104,169. Mobile Savings Bank t. Patty, 16 Fed. Rep. 751. § 161. Mobile & O. R. Co. v. Whitney, 39 Ala. 471. §12. Modawell v. Holmes, 40 Ala. 391. §306. Moeller v. Harvey, 16 Phila. 66. §262. Moers v. Reading, 21 Pa. St 189. §75. Mohawk Bridge Co. v. Utica, etc. R. R Co. 6 Paige, 554. § 164. Mohawk, etc. R. R. Co., Matter of, 19 Wend. 143. § 452. Monck V. Hilton, 2 Ex. Div. 268. §240. Monet V. Jones, 10 Sm. & Marsh. 237. §136. Mongeon v. People, 55 N. Y. 613. g§ 10, 136, 138, 143, 167, 218, 225- Monk V. Jenkins, 2 Hill's Ch- 12. §§ 392, 454 Monroe v. Douglass, 5 N. Y. 447. §§ 184, 297. V. Paddock, 75 Ind. 422. § 113. Monroe Co. Com'rs v. May, 67 Ind. 562. § 298. Monson v, Chester, 22 Pick. 385. § 400. ■ Montagu'i v. Smith, 17 Q. B. 688. §256. Montague v. State, 54 Md. 487. § 19a Montclair v. Ramsdell, 107 U. S. 155. §^ 82, 84, 86, 88. Montel & Co. v. ConsoUdated Coal Co. 39 Md. 164. § 154. Montgomery v. Board of Education, 74 Ga 41. § 138. V. Commonwealth, 91 Pa. St 125. §129. V. Deeley, 3 Wis. 709. § 294. V. Hobson, Meigs, 437. § 483. V. Kasson, 16 Cal. 189. § 472. V. Plank R Co. 31 Ala. 76. § 194. V. State, 2 Tex. App. 506. § 166. V. Wright 72 Ala. 411. § 120. Montgomery, etc. Asso. v, Robinson, 69 Ala, 413. §§ 78, 80, 82, 85, 88, 93. Montom-svUle Overseers v. Fairfield Overseers, 112 Pa. St 99. § 458. Monti-ose Peerage, 1 Macq. 406. §§ 196, 247. Montville v. Haughton, 7 Conn. 543. §§ 329, 453. Moody V. SeamaH, 46 Mich. 74 §§ 133, 168. V. State, 48 Ala. 115. §§ 24 41, 43, 45, 181, 294, 300. V. Threlkeld, 13 Ga. 55. § 410. Moores v. Bunker, 29 N. H. 420. § 333. Moog V. Randolph, 77 Ala. 597. §§ 29, 41, 43, 45, 200, 311. Moon V. Durden, 2 Ex. 22. §g 20P, 464 Mooney v. Union Pacific R R Co. 60 Iowa, 346. § 14 Moore, Ex pai-te, 62 Ala. 471. g§ 87, 103, 170. Moore v. Brown, 11 How. 424. § 453. V. Cooley, 2 Hill, 412. § 398. V. Gwynn, 5 Ired. 187. § 192. V. Houston, 3 Serg. & R 169. §253. V. Indianapolis, 120 Ind 483. §431. V. Kenockee, 75 Mich. 332. § 134 V. Luce, 29 Pa. St 260. § 480. V. McClief, 16 Oliio St 51. § 39a V. Mausert 49 N. Y. 332. §§ 133, 137. CASES CITED. Ixxvii Moore v, MaxwelL 18 Ark. 4G9. g 194. y. New Orleans, 33 La. Ann. 726. ^g 136, 180. V, Police Jiuy, 33 La. Ann. 1013. §103. V. Railroad Co. 34 Wis. 173. §154. V. State, 43 N. J. L. 203. §§ 467, 479, 480. V. Usher, 10 Eng. Ch. 107. § 194. Moore's Lessee v. Vance, 1 Ohio, 1. §140. Morant t, Taylor, 1 Ex. D. 194. §§ 196, 210. Morford v. Unger, 8 Iowa, 82. §§ 87, 88, 101. Morgan v. BoUes, 36 Conn. 175. § 400. V. Crawshay, L. R. 5 H. of L. 304. §§266, 306, 311. V. Davenport, 60 Tex. 230. § 256. V. Monmouth Plank R Co. 26 N. J. L. 99. § 170. V. Wolte, 37 Oliio St 23. § 123. V. Smith, 4 Minn. 104. § 229. V. State, 13 LicL 448. § 298. V. Stell, 5 Binn. 318. § 104. V. Thorne, 7 M. «& W. 400. §§ 163, 165. Morley v. Greenhalgh, 3 B. & S. 374 §280. Morlot V. Lawrence, 1 Blatch. 608. §139. MorraU v. Sutton, 1 PhiL 533. §§138, 247. Morrill v. State, 38 Wis. 434. § 232. Mon-is V. Barrett, 97 Eng. C. L. 139. §115. V. Chicago, etc. R R Co. 65 Iowa, 727. § 14. V. Davidson, 49 Ga. 361. §§ 181, 293. V. State, 62 Tex. 728. §§ 483, 484. V. Vanderen, 1 Dall. 64. § 17. V. Van Voast, 19 Wend. 283. §§ 416, 442. Mon-is Aqueduct v. Jones, 36 N. J. L. 206. § 307. Morris Canal, etc. Co. v. Central R. R. Ca 16 N. J. Eq. 419. § 37a Morris, etc. R R Co. v. Newark, 10 N. J. Eq. 352. § 388. Morris & Essex R R Co. v. Central R R Co. 31 N. J. L. 205. § 388. Morrissee v. Royal British Bank, 1 C. B. (N. S.) 67. §§ 133, 461, 462. Morrison v. Barksdale, Harper, 101. § 310. V. Fake, 1 Pin. (Wis.) 133. § 393. V. Rice, 35 Minn. 436. § 138. V. St Louis, etc. R R Co. 96 Mo. 603. § 132. V. Springer, 15 Iowa, 304. § 331. V. State, 40 Ark. 448. § 169. V. Stevenson, 69 Ala. 448. § 256. T. Thistle, 67 :Mo. 596. § 338. Morrow v. Wood, 56 Ala. 1. § 418. Morse v. Goold, 11 N. Y. 281. §§ 206, 476. v. Presby, 25 N. H. 302. § 391. V. Williamson, 35 Barb. 472. §454. Mosby V. Ins. Co. 31 Gratt 629. § 137. Moseley v. Mastin, 37 Ala. 216. § 306. V. Tift 4 Fla. 402. § 363. Moser v. White, 29 ]Mich. 59. § 20L Moses V. Mayor, etc. 52 Ala. 198. §90. Mosier v. Hilton, 15 Bai-b. 659. §§ 93, 117. Mosley v. Vt Mut F. Ins. Co. 55 Vt. 142. § 306. Mostyn v. Fabrigas, 1 Cowper, 174 §184 Moulton V. Posten, 52 Wis. 169. § 302. Moimsey v. Ismay, 34 L. J. Ex. 56 ; 3 H. & C. 486. §§ 265, 300. Mount v. Kesterson, 6 Cold. 452. § 447. Mt Holly Paper Co.'s Appeal, 99 Pa. St 513. § 383. Mouras v. The A. C. Brewer, 17 La. Ann. 83. § 160. Movius V. Arthur, 95 U. S. 144 §§ 138, 157. Moyce v. Newingtou, 4 Q. B. Div. 32. §246. Moyer v. Gross, 3 P. «& W. 171. § 30a V. Penn. Slate Co. 71 Pa St 293. §371. Ixxviii CASES CITED. Moyle V. Jenkins, 51 L. J. Q. B. 112 ; L. E. 8 Q. B. Div. 116. §§ 219, 245. Mugler V. Kansas, 123 U. S. 623. §370. Muhl's Adm'r v. Mich. Southern R. R Co. 10 Ohio St. 272. § 371. Muir T. Galloway, 61 Cal. 498. § 115. V. Keay, L. R. 10 Q. B. 594. § 262. Muldoon V. Levi, 25 Neb. 457. § 97. MuEiey v. State, 16 Tex. App. 53. §166. MuUaly v. Mayor, etc. 6 T. & C. 168. §444. Mullen V. People, 31 111. 444 §§ 142, 143, 202. V. State, 34 Ind. 540. § 97. MuKord V. Clewell, 21 Oliio St. 191. §§ 374, 375. Mulligan v. Cavanagh, 46 N. J. L. 45. § 154. Mullin V. IMcCreary, 54 Pa. St. 230. § 290. ]\IuUuis V. Ti-easurer of Surrey, L. R. 5 Q. B. Div. 170. §§ 222, 223. Munday v. Rahway, 43 N. J. L. 338. §475. ]Mundy v. Monroe, 1 Midi. 68. § 478. Munford v. Pearce, 70 Ala. 452. § 194 Municipal Building Society v. Kent, L. R. 9 App. Cas. 273. §§235, 407. MunicipaUty v. Hart, 6 La. Ann. 570. §429. Municipality No. 3 v. Michoud, 6 La. Ann. 605. §§ 82, 103, 170, 480. Munn V. Burch, 25 111. 35. § 295. v. lUinois, 94 U. S. 113. § 370. Munro v. Butt, 8 E. & B. 754 § 324. Munroe v. Guilleaunie, 3 Keyes, 30. § 190. Munson v. Hallowell, 26 Tex. 475. § 256. Murdock v. Memphis, 20 Wall. 617. §§ 154 156. Murfree v. Carmack, 4 Yerg. 270. § 111. Murphy, In re, 23 N. J. L. 180. § 333. Murphy, In re, 1 Woohv. 141. § 407. Murphy v. Leader, 4 Irish L. 143; Jebb & Bourke, 75. § 436. Murray v. Baker, 3 Wheat. 541. § 424. V. Charleston, 96 U. S. 432. § 475. V. Gibson, 15 How. 133. § 421. V. Hoboken Land Imp. Co. 18 How. 284. § 68. V. Hobson, 1 Colo. 66. I 260. V. Keyes, 35 Pa. St 384 §§ 252, 256. V. New York Cent R. R Co. 4 Keyes, 274 §§ 234, 246, 442. Muscogee R. R. v. Neal, 26 Ga. 121. §135. Musgrove v. Vicksburg, etc. R. R Co. 50 Miss. 677. §§ 136, 102, 163, 164 Mutual Ass. Society v. Watts, 1 Wheat 279. § 191. Myer v. Car Co. 102 U. S. 1. § 156. Myers v. Conway, 55 Iowa, 166. §376. V. FarreU, 47 Miss. 281. § 393. V. Manhattan Bank, 20 Ohio, 295. §8. V. Mai-shall Co. 55 Miss. 344 §154 V. Perigal, 2 D. Mac. & G. 619. §236. V. State, 1 Conn. 502. § 208. Myrick v. Hasey, 27 Me. 17. § 333. NaUe V. Ventress, 19 La. Ann. 373. §184 Napier v. Hodges, 31 Tex. 287. § 288. Nash V. AUen, 4 Q. B. 784 § 212. V. MitcheU, 8 Hun, 471. § >.38. V. State, 2 Greene (la.), 286. §438. V. SuUivan, 29 Minn. 206. § 379. V. Wliite's Bank, 37 Hun, 57. §133. Nashville, etc. R R Co. v. Foster, 10 Lea, 351. § 13. National Bank v. Barber, 24 Kao. 534 §169. V. Bryant, 13 Bush, 419. § 299. V. Com'rs, 14 Fed. Rep. 23a §101. T. :Matthews, 98 U. S. 621. § 327. CASES CITED. Ixxix National Bank v. Soutlieiu, etc. Co. 55 Ga, 36. g 88. V. Whitney, 103 U. S. 99. g 327. V. WUliams, 46 Mo. 17. § 115. V. Yankton Co. 101 U. S. 129. §§ 70, 197. Naught V. Oneal, 1 111. 30. § 164. Naylor v. Field, 29 N. J. L. 287. §149. Nazareth L. B. I. t. Commonwealth, 14 B. Mon. 266. § 153. Nazi'O V. Merchants' Ins. Co. 14 "Wis. 295. §§ 211, 260. Neaderhauser v. State, 28 Ind. 257. §303. Neagle, In re, 39 Fed. Rep. 833 ; 185 U. S. 1. § 341. Neal V. Burrows, 34 Ark. 491. § 447. V. Moultrie, 12 Ga, 104. § 424. V. Roberts, 1 Dev. & Batt L. 81. §331. V. Sa\\'yer, 60 Ga. 352. § 422. Neass v. Mercer, 15 Barb. 318. § 478. Neeld's Road, 1 Pa, St 353. § 283. Neely v. State, 4 Baxt 174. § 175. Neelly v. Lancaster, 47 Aik. 175. §400. Neenan v. Smith, 50 Mo. 525. §§ 322, 324. Neeves v. Biirrage, 14 Ad. & EL (N. S.) 504. § 181. Negro Bell v. Jones, 10 Md. 322. §240. Neifing v. Town of Pontiac, 56 111 172. § 92. Neitzel t. Concordia, 14 Kan. 446. §231. NeUis V. Clark, 4 HiU. 424. § 336. Nelson v. Allen, 1 Yerg. 360. §§ 307, 309, 311. V. Kerr, 2 T. & C. 299. § 231. V. McCrary, 60 Ala 301. §§ 15, 184, 206, 476. Nesbitt V. Lushington, 4 T. R 783. §264. Nester v. Busch, 64 Mich. 657. § 102. Neuendorff v, Duryea, 69 N. Y. 557. §§ 90, 102. NevU V. Chfford, 63 Wis. 435. § 129. New V. McKechnie, 95 N. Y. 632. § 374. New Albany, etc. R R Co. v. Con- nelly, 7 Ind. 32. § 325. Newark Plank R Co. v. Elmer, 9 N. J. Eq. 754. § 378. New Bnmswick v. Williamson, 44 N. J. L. 165. § 159. NewburghTurn. Co. v. Miller, 5 John. Ch. 113. § 462. Newby v. Blakey, 3 H. & N. 57. §479. Neweberg v. Gaulter, 4 IlL App. 348. §377. NeweU v. People, 7 N. Y. 97. § 324 V. Wheeler, 48 N. Y. 486. § 290. New Haven v. Whitney, 36 Conn. 373. §§ 140, 204, 325, 326. New Jersey v. Wilson, 7 Cr. 164. §472. New Jersey Southern R R Co. v. Long Branch Com'rs, 39 N. J. L. 28. ^ 388. Newland v. Marsh, 19 III. 370. §§ 252, 332. Ne^ London v. Brainard, 22 Conn. 552. §§ 380, 381. New London Northern R R. Co. v. Boston, etc. R. R Co. 102 Mass. 389. §§ 138, 165. Newman, Ex parte, 9 Cal. 502. § 330. Newman v. Emporia, 41 Kan. 583. §128. V. Keffer, 1 Bnmner CoL Cas. 502. § 185. T. Samuels, 17 Iowa, 518. § 483. New Orleans v. Holmes, 13 La. Ann. 502. § 107. V. Poutz, 14 La- Aim. 853. § 314. V. Salamander Ins. Co. 25 La. Ann. 650. §§ 240, 332. V. St Romes, 9 La. Ann. 573. ^•§ 207, 452. New Orleans Canal, etc. Co. v. Tem- pleton, 20 La. Ann. 141. § 298. New Orleans, etc. R R Co. v. Hemp- liill. 35 Miss. 17. §§ 234, 236. V. Municipalit}-, 7 La. Ann. 148. § 429. Ixxx CASES CITED. Newport ]\Iai-sli Tiustees, Ex parte, 16 Sim. 346. §^ 337, 383. New Portland v. New Vineyard, 16 Me. 69. §§ 108, 193. Newsom V. Greenwood, 4 Ore. 119. §§ 164, 482. V. Cocke, 44 Miss. 352. § 831. Newton v. Cocke, 10 Ark. 169. § 297, V. Commissioners, 100 U. S. 559. §473. Y. Co^^'ie, 4 Bing. 234. § 458. New York v. MUn, 11 Pet. 102. § 197. New York Cent. etc. R. R. Co., Mat- ter of, 60 N. Y. 112. § 369. New York Elevated R. R. Co., Matter of, 70 N. Y. 327. § 183. New York, etc. R. R. Co. v. Van Horn, 57 N. Y. 473. §§ 133, 164, 480, 481. New York & Brooklyn Bridge, Mat- ter of, 72 N. Y. 527. § 239. N. Y. Prot. E. Pub. School, Matter of, 47 N. Y. 556. § 452. Niantic Savings Bank v. Douglas, 5 111. App. 579. § 390. Niblack v. Goodman, 67 Ind. 174. §§ 132, 168. Nichol V. Nashville, 9 Humpli. 252. §§ 365, 380. Nicholas v. Phelps, 15 Pa. St. 36. § 324. NichoU V. AUen, 1 B. & S. 934 § 205. Nichols V. Bertram, 3 Pick. 342. §473. V. Levy, 5 Wall 433. § 187 V. Squu-e, 5 Pick. 168. § 142. V. Walter, 37 Minn. 264. § 128. V. WeUs, Sneed (Ky.), 255. § 239. Nicholson v. Fields, 31 L. J. Ex. 235. §348. V. Thompson, 5 Rob. (La.) 357. §463. Nicol V. Paul, L. R. 1 Scotch App. 131. §310. Niemeyer v. Wright, 75 Va. 239. §§ 335, 336. NUes V. Ransford, 1 Mich. 338. §390. Nixon V. Piffet, 16 La. Ann. 379. §§ 138, 152, 202. Noble V. State, 1 Greene (Iowa), 325. .:$§ 284. 287. Noell V. Fisher, 3 CaU, 215. § 429. Nolen V. Harden, 43 Ark. 307. § 324 Norfolk V. Chamberlaine, 29 Gratt 534. § 206. Norman v. Heist, 5 W. & S. 171. §g 480, 484. Norris v. Crocker, 13 How. 429. §§ 11, 142, 143. V. Harris, 15 CaL 226. § 184. V. Hundred of Gawtiy, Hob. 139. §112. V. Ti-ustees, etc. 7 G. & J. 7. § 473. v. Wrenshall, 34 Md. 492. § 474. North Bridgewater Bank v. Cope- land, 7 AUen, 139. § 206. North Canal St. Road Case, 10 Watts, 351. §§ 140, 165, 464. North Chicago Rolling Mills Co. v. Morrissey, 111 lU. 646. § 371. N. E. R'y V. Leadgate, L. R. 5 Q. B. 161. § 430. North Hempstead v. Hempstead, 2 Wend. 109. § 337. Northrop v. Cooper, 23 Kan. 432. §114. Northwestei-n Mauuf'g Co. v. Wayne Circuit Judge, 58 Midi. 381. § 96. Norwegian Street, 81 Pa St 349. §g 455, 456. Norwich Gas Light Co. v. Norwich City Gas Co. 25 Conn. 18. § 378. Notley V. Buck, 8 B. & C. 164. § 237. Nunally v. White, 3 Met. (Ky.) 584. §329. Nuues V. WeUisch, 13 Bush, 363. ^257. Nimn V. Fabian, L. R 1 Ch. 35. §427. Nusser v. Commonwealth, 25 Pa. St. 126. §§ 143, 144, 158, 159. Nuth V. Tamplin, L. R. 8 Q. B. Div. 253. §§ 218, 238, 259. Nutter V. Accrington Local Board, L. R 4 Q. B. 375. § 230. Nymph, Schooner, The, 1 Sumn. 516. §356. Gates V. National Bank, 100 U. S. 339. §§ 246, 332. Oakland T'p v. Martm, 104 Pa. St 303. § 33?. CASES CITED. Ixxxi Oath Before Justice, Matter of, 12 Coke, 130. § 341. Oatinan v. Bond, 15 WLs. 20. § 478. O'Brien v. County CominLssioners, 51 Md. 15. g§ 483, 484. V. Dillon. 9 Ir. Clu (N. S.) 318. §§ 335, 336. O'BjTnes v. State, 51 Ala. 25. §§ 256, 333. O'Conner v. Warner, 4 Watts & S. 227. § 10. O'Connor V. Towns, 1 Tex. 107. § 112. Odell V. De Witt, 53 N. Y. 643. § 341. O'DonneU v. Mclntyre, 37 Hun, 615. §456. V. Sweeney, 5 Ala. 467. § 336. O'Ferrall v. Simplot, 4 Iowa, 400. tiS 15, 184. O'FIaherty v. McDowell, 6 H. L, Cas. 143. §§ 138, 145, 202, 204. Ogbourne v. Ogbourne's Adni'r, 60 Ala. 616. § 154. Ogden V. Blackledge, 2 Cranch, 272. §§ 10, 11, 137, 201, 206, 229. V. FoUiott, 3 T. R. 733. § 12. V. Saunders, 12 Wheat. 266. §§ 169, 332, 465, 471, 472, 474, 478, 479. V. Sti-ong, 2 Paine, 584. §§ 137, 234, 237, 239. V. Witherspoon, 2 Haywood, 404. §137. O'Hanlon v. Myers, 10 Rich. L. 128. §137. O'Hare v. National Bank, 77 Pa. St. 96. § 336. Ohio, etc. R R. Co. v. McClelland, 25 IlL 140. § 473. Oliio Life Ins. & Tr. Co. v. Debolt, 16 How. 416. ^ 319, 378. Oliio Life Ins. etc. Co. v. Merchants' Ins. etc. Co. 11 Humph. 1. § 385. O'Kane v. State, 69 Ind. 183. § 96. Olcott V. Frazier, 5 HilL 562. § 456. U'Leary v. County of Cook, 28 IlL 534. § 96. V. Frisbey, 17 III. App. 553. § 377. Oleson V. R. R Co. 36 Wis. 383. §§ 136, 154 OUve V. Walton, 33 Miss. 114 g§ 218, 246, 400. Olive Cemetery Co. v. Philadelphia, 93 Pa, St 129. § 243. Oliver, In re, 17 Wis. 681. §§ 68, 73. Olmstcad, Matter of, 17 Abb. New Cas. 320. § 282. O'Meara v. Commissioners, 3 T. & C. 236. § 95. Omit V. Commonwealth, 21 Pa St 426. § 157. Ong V. Simmer, 1 Cincin. Sup. Ct 424 § 146. Openlieim v. Wolf, 3 Sandf. Ch. 571. §306. Opinion of Justices, 7 Masa 523. §g 240, 250, 324, 348. Opinion of Justices, 117 Mass. 603. §473. Opinion of Justices, 126 Mass. 551. §307. Opinion of Justices, 136 Mass. 578. §321. Opinion of Justices, 41 N. H. 553. §336. Opinion of Justices, 45 N. H. 607. §294 Opinion of Justices, 52 N. H. 622. §181. Opinion of Justices, 22 Pick. 573. §331. Orange, etc. R R Co. v. Alexandria, 17 Gratt 176. §§ 218, 240, 246. Ordway v. Centi'al National Bank of Baltimore, 47 Md. 217. § 360. Oregon, etc. Co., In re, 3 Sawy. 614 §136. Oregon R'y Co. v. Portland, 9 Ore, 231. § 388. O'Reilly v. Bard, 105 Pa. St 569. §371. Oriental Bank v. Freeze, 18 Me. 109. §§ 10, 163. V. Wright, L. R 5 App. Cas. 843. §362. Ornamental Woodwork Co. v. Brown, 2 H. & C. 63. §§ 237, 238. O'Rourke v. O'Rourke, 43 ilich. 5S. ' §184 Ixxxii CASES CITED. On- V. Baker, 4 Ind. 86. § 364 V Riine, 45 Tex. 345. §§ 198, 468. Osborn, Ex parte, 24 Ark. 479. §§ 138, 148. Osborn v. Bank of U. S. 9 Wheat 788. § 473. V. Nicholson, 13 WaU. 662. § 478. Osborne v. Huger, 1 Bay, 176. §§ 110, 206. Osbm-n v. Staley, 5 W. Va, 85. g§ 41, 43, 43, 48. Oshe V. State, 37 Ohio St 500. § 80. Oswego Bridge Co. v. Fish, 1 Barb. Ck 547. § 164. Ott V. Soulard, 9 Mo. 581. § 295. Overfield v. Sutton, 1 Mete. (Ky.) 621. § 256. Overmyer t. Wilhams, 15 Ohio, 31. §381. Overseers v. Overseers, 20 John. 1. §884. V. Smith, 2 S. «& R. 368. § 333. Overseers of Pittstown v. Overseers of Pittsburgh, 18 John. 407, § 344. Owen V. Boyle, 15 Me. 147. §§ 190, 192. V. Slatter, 26 Ala. 551. § 112. Owens V. Withee, 8 Tex. 166. § 489. Owmgs V. Hull, 9 Pet 624. §§ 22, 185, 293. Oxford Poor Rate, 8 E. & B. 184. §295. Oxley V. Bridge, 1 Doug. 67. § 112. Pacific Mail Steamship Co. v. Joliffe, 2 Wall 450. §§ 11, 164. Pacific R. R Co. v. Cass Covmty, 53 Mo. 17. § 157. Pacrfic Railroad v. Governor, 28 Mo. 353. §§ 81, 51, 63, 294. Pacific, etc. Tel. Co. v. Common- wealth, 66 Pa St 70. § 167. Pacific, Town of, v. Seifert, 79 Mo. 210. § 40. Pack V. Barton, 47 Mich. 520. §§ 26, 46. Packard v. Richardson, 17 Mass. 143, §§ 307, 310. Packer v. Noble, 103 Pa. St ISa §246. V. Sunbury, etc. R, R. Co. 19 Pa. St 211. § 220. Packet Co. v. Keokuk, 95 U, S. 80. §§ 170, 171. Paddock v. Cameron, 8 Cow. 212. §322. Padelford v. Mayor, etc. 14 Ga, 488. § 197. Paducah & M. R. R. Co. v. StovaU, 12 Heisk. 1. § 124. Page V. Allen, 58 Pa, St 338, § 328, Paget V, Curtis, 15 La. Ann, 451, § 184. Paine v. Insurance Co. 11 R I, 411, §294, V. Spratley, 5 Kan. 525, §§ 880, 390. Palmer, Matter of, 40 N, Y, 561. §164, Palmer v, Aldridge, 16 Barb. 131. § 296. v, Conly, 4 Denio. 374 ; 2 N, Y, 182, §g 166, 482, V. Cross, 1 Sm. & M. 48. § 464. v. Hicks, 6 John. 138, § 386. V. Lacock, 107 Pa. St 846, § 342, v. Palmer, 86 Mich, 487, § 368, V. State, 7 Cold, 82, § 247, V. York Bank, 18 Me. 166. §§ 208, 358. Palms V. Shawano Co. 61 Wis, 211. §§ 284, 260, Pana v. Bowler, 107 U. S, 529, § 154. Panaud v. Jones, 1 CaL 488, § 814. Pancoast v, Addison, 1 H, & J. 850, § 424, • v, Ruflfin, 1 Ohio, 177, § 410, Pangborn v. Westlake, 86 Iowa, 546. § 336. V. Young, 32 N. J. L, 29, §§ 85, 188, 294 Panter v, Att'y-General, 6 Brown, P. C, 486, §§ 105, 107, Papin V, Ryan, 32 Mo. 21, § 181, Parker v. Bogardus, 5 N, Y. 309. § 464. V. Commonwealth, 6 Pa. St 507. §§ 67, 75, 180. CASES CITED. Ixxxiii Parker v. Fassit, 1 Har. & J. 337. §424. V. Great W. R'y Co. 7 M. & Gr. 253. § 878. V. Hubbard, 64 Ala 203. § 138. V. Pomeroy, 2 Wis. 112. § 320. V. Taswell, 2 De G. & J. 559. §256. Parkinson v. Brandenburg, 35 Minn. 294. § 110. V. State, 14 Md. 184. §§ 78, 82, 88, 92, 104, 107, 215, 239, 247, 254. Parmelee v. Lawrence, 48 HL 331. §164. Parramore v. Taylor, 11 Gratt 220. §256. Paxrott V. Stevens, 37 Conn, 93. §141. Parsons v. Bedford, 3 Pet 433. § 254. V. Chamberlin, 4 Wend- 512. §253. V. Circuit Judge, 37 Mich. 287. §234 T. McCracken, 9 Leigh, 495. § 426. V. McGavock, 2 Tenn. Ch. 581. §428. v. Paine, 26 Ark. 124 § 206. V. Thompson, 1 H. BL 322. § 429. V. Tuolumne Co. W. Co. 5 Cal 43. § 397. Partington, Ex parte, 6 Q. B. 653. §§ 223, 267. PaitLugton v. Attorney-General, L. R 4 H. L. 122. §§ 348, 362. Parton v. Hervey, 1 Gray, 119. § 336. Parti'idge v. Badger, 25 Barb. 146. §385. V. Dorsey, 3 Har. & J. 307. § 194 V. Lis. Co. 15 WaU. 573. § 185. V. Naylor, Cro. Eliz. 480. § 353. V. Sti-ange, 1 Plow. 79. § 105. Patchin v. Brooklyn, 2 Wend. 377. §343. Patei*son v. McCaiisland, 3 Bland's Ch.71. §305. Paterson, City of, v. Society, 24 N. J. L. 385. § 75. Pattee v. Greely, 13 Met 284. § 336. f Patten v. Rhymer, 3 R & R 1. § 324 V. Smitli, 4 Conn. 450. § 422. Patterson v. Brindle, 9 Watta, 9a §420. V. CaldweU, 1 Met (Ky.) 489. ' §137. V. Tatum, 3 Sawyer, 164 §§ 166i, 327. V. Wmn, 5 Pet 233. § 15. Pattison v. Bankes, 2 Cowper, 543. §213. Paul, In re, 94 N. Y. 497. §§ 87, 98, 170. Paul V. Stone, 112 Mass. 27. § 114 Pausch V. Guerraid, 07 Ga. 319. §159. Pauska v. Daus, 31 Tex. 67. § 184 Pawlet V. Clark, 9 Cr. 292. § 472. Payne v. Conner, 3 Bibb, 180. § 137. V. Treadweli, 16 CaL 220. §§ 395, 298. Peables v. Hannaford, 18 Me. 106. §112. Peabody v. School Com. 115 Mass. 383. §384 Peachee v. State, 63 Lid. 399. § 88. Peacock v. Banks, Minor (Ala.), 387. §184 V. Regma, 93 Eng. C. L. 264 §115. Peake v. Yeldell, 17 Ala. 636. § 191. Pearce v. Atwood, 13 Mass. 324 § 288. V. Bank of Mobile, 33 Ala. 693. §§ 221, 223. V. Langfit 101 Pa. St 507. § 306. Pearl v. Conley, 7 Sm. & M. 358. §367. Pearpont v. Grahpju, 4 Wash. C. C. 232. §111. Pearson v. DarrLngton, 32 Ala. 227. § 320. V. Flannagan. 52 Tex. 266. § 452. V. International Distillery, 73 Iowa, 348. § 137. V. Lovejoy, 53 Barb. 407. §§ 207, 440. Pease v. Howard, 14 Jolin. 479. §369. Lsxxiv CASES CITED. Pease v. Peck, 18 How. 595. g§ 40, 310, 312. Peate v. Dicken, 1 C. K & R. 423. §270. Peck V. Pease, 5 McLean, 486. § 191. V. WeddeU, 17 Ohio St 271. §260. Pecquet v. Pecquet, 17 La. Ann. 204. §295. Peet V. Nalle, 30 La, Ann. Pt II, 949. §220. Peik V. Chicago, etc. R R. Co. 94 U. S. 164. § 185. Pelham v. Messenger, 16 La. Ann. 99. §367. V. Woolsey, 16 Fed. Rep. 418. §92. Pell V. Newark, 40 N. J. L. 550. §127. V. Ulmar, 18 N. Y. 139. § 398. PeUen v. Inhab. of Wonsf ord, 9 Bam. & Cr. 134. § 112. Pemble v. Clifford, 2 McCord, 31. §184 Penberthy v. Lee, 51 Wis. 261. § 452. Pendleton v. Bank of Kentucky, 2 J. J. Marsh. 148. § 401. V. Perkins, 49 Mo. 565. § 428. Penn v. Baltimore, 1 Ves. Sr. 454 §194 Penn. Co. v. Frana, 13 IlL App. 91. §306. Penniman v. Cole, 8 Met. 496. § 115. Pennington v. Coxe, 2 Cranch, 33. §215. V. Gibson, 16 How. 80. §§ 22, 185, 293. V. Townsend, 7 Wend. 276. § 336. V. Woolfolk, 79 Ky. 13. §§ 80, 101, 103. Pennock v. Dialogue, 3 Pet. 18. § 333. Pennsylvania Hall, In re, 5 Pa. St 304 §165. Penn. R. R. v. Butler, 57 Pa. St 335. §371. Pennsylvania R R Co. v. Canal Com- missioners, 21 Pa St 33. §§ 164, 383. V. Keller, 67 Pa. St 300. § 371. Penny wit V. Foote, 37 Ohio St 600. §20. Penobscot R. R. v. Bartlett, 12 Gray, 244. §§ 191, 192. Penrose v. Martyr, E. B. & E. 499. §444. Pensacola v. Louisville, etc. R R Ca 21 Fla. 492. § 390. V. Reese, 20 Fla. 437. § 456. Pensacola Telegraph Co. v.W. U. TeL Co. 96 U. S. 1. § 383. People V. Adirondack Co. 57 Barb. 656. § 456. V. AUen, 1 Lans. 248. § 198. V. Allen, 6 Wend. 486. §§ 139, 203, 448. V. AUen, 42 N. Y. 404 § 90. V. Arensberg, 105 N. Y. 123. § 96. V. Banks, 67 N. Y. 568. §§ 92, 135. V. BerbeiTich, 11 How. Pr. 333. §222. V. Bigler, 5 Cal. 23. § 330. V. Board of State Auditors, 9 Mich. 327. § 473. V. Bond, 10 CaL 563. § 475. V. Bowen, 21 N. Y. 520. §§ 55, 117. V. Bowen, 30 Barb. 24 § 117. V. Briggs, 50 N. Y. 558. §§ 46, 86, 88, 94 101, 103, 170. 237, 331, 341. V. BrisUn, 80 HL 423. §§ 88, 93, 96. V. Brooklyn, 69 N. Y. 605. §154 V. Bull, 46 N. Y. 68. § 331. V. Bums, 5 Mich. 114 §§ 73, 75, 215, 240, 324 V. Burt 43 Cal. 560. §§ 30, 138, 140, 204 V. Bussell, 59 Mich. 104 § 143. V. Butler, 3 Cow. 347. § 468. V. Butler, 16 John. 203. § 200. V. Butte, 4 Mont 174 §§ 72, 75. V. C. P. R R Co. 43 CaL 432. §121. V. Calder, 30 Mch. 87. § 190. V. Canal Com'rs, 3 Scam. 153. §407. OASES CITED. Lx.xxv People V. Carr, 36 Ilun, 488. § 154 V. Chapin, 105 N. Y. 309. § 343. V. Chee Kee, Gl Cal. 404. § 302. V. Chew, 6 CaL G;3G. g 342. V. Cicott, 16 ]\liclL 283. g 314. V. Clark, 1 Cal. 406. gg 104, 110. V. Clute, 50 N. Y. 451. § 260. V. Collins, 3 Mich. 343. ^§ 67, 73. V. Commissioners, 3 Hill, 601. g§ 218, 239, 341. V. Commissioners, 54 N. Y. 276. §§ 36, 40, 51. V. Commissioners, 59 N. Y. 92. §473. V. Commissionei"s, 47 N. Y. 501. §93. V. Comm'rs of Highways, 53 Barb. 70. § 90. V. Common Council, 13 Abb. Pr. (N. S.) 121. § 102. V. Common Council of Brooklyn, 22 Barb. 404. i; 454. V. Comstock, 78 N. Y. 356. § 331. V. Cook, 14 Barb. 259. §§ 448, 451, 455. V.Cooper, 83 IlL 585. §§ 170, 176, 180. V. Cooper, 6 HiU, 516. §§ 124, 339. V. Croton Aqueduct Board, 26 Barb. 248. § 440. V. DanieU, 50 N. Y. 271. § 395. V. Davenport, 91 N. Y. 574. §§ 210, 211, 246. V. Davis, 61 Barb. 456. §§ 120, 168, 198. V. Dayton, 55 N. Y. 377. § 309. V. Denahy, 20 Mich. 349. §§ 78, 82, 98. V. Doming, 1 Hilt. 271. §g 138, 256. V. Devlin, 33 N. Y. 269. §§ 36, 54. V. De Wolf, 62 IlL 253. §§ 41, 45, 52, 181, 294. V. Doe, 1 Mich. 451. § 449. V. Draper, 15 N. Y. 532. §§ 330, 395. V. Eddy, 57 Barb. 593. §g 341, 343. V. Fleming, 7 Colo. 230. §§ 78, 80, 101, 103, 135, 137. People V. Frisbie, 26 Cal. 135. § 20G. v. Gadway, 61 Mich. 285. § 102. V. Gardner, 59 Barb. 198. § 464. V. Gates, 57 Barb. 291. § 456. V. Gill, 7 Cal. 356. gg" 107, 225, 227. V. Goddard, 8 Colo. 432. §§ 93, 95. V. Green, 58 N. Y. 295. §§ 464, 473. V. Grippen, 20 Cal. 677. § 138. V. Hadden, 3 Denio, 220. § 400. V. Hall, 8 Colo. 485. §§ 103, 169, 170. V. Harper, 91 IIL 357. § 198. V. Hatch, 33 IlL 9. §§ 26, 59. V. Henshaw, 76 CaL 436. § 121. V. Hicks, 15 Barb. 160. ^ 341. V. HilL 3 Utah, 334 ^§ 258, 260. V. HU], 8 N. Y. 449. § 120. V. HiU.s, 35 N. Y. 499. gg SO, 101, 198. V. HiUsdale, etc. T. Co. 2 John. 190. g 456. V. Hobson, 48 ^Hch. 27. §§ 143, 166. V. Hoffman, 97 IlL 234. § 260. V. Hoffman, 116 ILL 587. § 72. V. HoUey, 12 Wend. 481. § 448. V. Hoym, 20 How. Pr. 76. § 407. V. Hulse, 3 Hill, 309. §§ 207, 254, 357, 400, 438. V. Hui-st, 41 Mich. 328. § 94 V. Ins. Co. 19 Mich. 392. §§ 82, 92. V. Inst of Prot Deaconesses, 71 IIL 229. § 78. V. Irvin, 21 Wend. 128. § 256. V. Jackson, etc. Plank Road Co. 9 Midi. 285. g§ 473, 474 V. Jobs, 7 Colo. 475. § 169. v. Kenney, 96 N. Y. 294 §g 169, 170. V. King, 28 Cal. 265. § 260. V. Kinsman, 51 CaL 92. § 206. V. Knight, 13 Mich. 424. § 405. V. Lake Co. 33 CaL 487. § 449. V. Lambert, 5 Mich. 349. gg 190, 192. V. Lambier, 5 Denio, 9. g 386. Ixxxvi CASES CITED. People V. Lawrence, 41 N. Y. 137. §§ 88, 97. V. Lawrence, 36 Barb. 185. §§ 60, 66, 80, 88, 213, 345, 407. V. Livingston, 6 Wend. 526. § 163. V. Lcewenthal, 93 ILL 191. §§ 45, 46, 96, 307, 311. V. Luby, 56 Mich. 551. § 170. V. Lyman, 2 Utah, 30. §§ 299, 300. V. Lyttle, 1 Idaho, 143. § 136. V. McCain, 51 Cal. 360. § 206. V. McCaUum, 1 Neb. 182. §§ 88, 132. V. McCann, 16 N. Y. 58. §§ 103, 120. V, McClave, 99 N. Y. 83. § 324 V. McClellan, 31 CaL 101. § 342. V. McDonald, 69 N. Y. 362. §483. V. McEh-oy, 72 Mich. 446; 40 N. W. Rep. 750. §§ 91, 330. V. Mahaney, 13 Mich. 481. §§ 41, 43, 48, 78, 82, 88, 131, 135, 181, 294. V. Manhattan Co. 9 Wend. 351. §473. V. Marx, 99 N. Y. 377. § 370. V. May, 3 Mich. 598. §§ 254, 807, 309. V. Mayor, etc. of N. Y. 32 Barb. 102. § 140. T. Meighan, 1 HiU, 298. § 453. V. Metzker, 47 CaL 524 § 384 V. Miner, 47 HL 33. § 159. V. IVIitcheU, 4 Sandf. 466. § 453. V. Mitchell, 35 N. Y. 551. §§ 483, 484 V. Molyneux, 40 N. Y. 113. §§ 211, 284. V. Morris, 13 Wend? 325. § 239. Y. N. Y. etc. R R Co. 84 N. Y. 565. §274 V. O'Brien, 38 N. Y. 193. §§ 95, 198. V. O'Brien, 111 N. Y. 1. § 210. V. O'Neil, 51 CaL 91. § 206. V. Palmer, 52 N. Y. 83. §§ 138, 157. T. Pahner, 109 N. Y. 110. § 139. People V. Parks, 58 CaL 635. §§ 80, 92, 103. V. Peacock, 98 IlL 172. §§ 206, 350, 482. V. Peck, 11 W^end. 604 § 450. V. Peralta, 3 CaL 379. § 397. V. Pico, 62 Cal. 50. § 402. V. Piatt, 17 John. 195. §§ 206, 472. V. Pond, 67 Mcli. 98. § 94 T. Porter, 90 N. Y. 68. §§ 169, 173, 174 V. Power, 25 111. 187. § 473. V. Pui-dy, 2 Hill, 31. §§ 36, 66. 294 V. Quigg, 59 N. Y. 83. § 157. V. Recorder, 6 HiU, 492. § 207. V. Reynolds, 5 Gilm. 1. §§ 72, 75. V. Richards, 108 N. Y. 137. §274 V. River Raisin, etc. R R Co. 13 Mich. 389. §§ 294, 380. V. Rochester, 5 Lans. 11. § 449. V. Salomon, 51 IlL 37. §§ 72, 75, 107. V. San Francisco, etc. R. R Co. 28 CaL 254 § 138. V. San Francisco, etc. R R Co. 35 Cal. 606. § 331. V. Schemerhorn, 19 Barb. 540. §§ 454 455. V. Schoonmaker, 63 Barb. 44 §§ 234 237, 238. V. Shepard, 36 N. Y. 285. § 330. V. Sheriff of Broome, 19 Wend- 87. § 114 V. Sloan, 2 Utah, 326. § 167. V. Starne, 35 IlL 121. § 48. V. Stevens, 13 Wend. 341. § 239. V. Stout, 23 Barb. 349. § 67. V. Supervisors, 8 N. Y. 317. §§35, 54 v. Supervisors, 16 N. Y. 425. §§ 10, 200, 201, 206, 229. V. Supervisors, 34 N. Y. 26a §452. V. Supervisors, 43 N. Y. 10. §§ 102, 103, 194 198. CASES CITED, Ixxxvii People V. Supervisors, 67 N. Y. 109, §§ 133, 137, 152, 168. T. Supervisors, 3 Barb. 332. § 11. V. Supervisors, 56 Barb. 542. §462. V. Supervisors, G3 Barb. 83. § 482. V. Supoi-visors, 6 Hun, 304. §g 207, 390. V. Supervisors, 40 Hun, 353. § 157. V. Supervisors, 13 Abb. New Cas. 421. §237. T, Supervisor, 14 Mich. 336. § 420. V. Supervisors, 16 IMicli. 254, § 91, V. Supervisors, 20 Mich, 95. § 483. V. Sweetser, 1 Dak. 295. §§ 252, 260. V. Thompson, 67 CaL 627. § 451. V. Tibbets, 4 Cow. 384. §§ 434, 482. T. Tiphaine, 3 Park, Cr, 241. §137. v.Tisdale,57CaL104 §§142,143. V. Trustees, 26 Hun, 488. § 168. V. Tyler, 36 CaL 522. § 168. V. Tyler, 7 Mich. 161. § 213. V. Utica Ins. Co. 15 John. 381. §§ 241, 254, 380, 436, V. Walker, 17 N. Y. 502. § 112. V. Wallace, 70 III 680. §§ 49, 122, 127. T. Weston, 3 Neb. 312, §§ 283, 284. V. Whipple, 47 CaL 592. § 49. V. Whitney's Pomt, 102 N. Y. 81. §391. V. WilUanis, 64 CaL 87. § 298, T. Willsea, 60 N, Y. 507. § 101. V. Wintermute, 1 Dak. 63. § 168. V. Wood, 71 N, Y, 371. § 211. V. Woods, 7 Cal. 579. § 475. V. Wriglit, 70 111. 388. §§ 124, 135, 193, 198. Peoria, etc. R. K, Co. v. Duggan, 109 HI. 537. § 125. Pepperell v. Bua-rell, 3 DowL P. C. 674. §112. Perchard v. Heywood, 8 T. R 472. §194. Perdicaris v. Bridge Co. 29 N. J. L. 367. §194. Perkins v. Perkins, 62 Baib. 631. g§ 283, 290. V. SeweU, 1 W. Black. 659. § 30a V. Thomburgli, 10 CaL 189. §§ 204» 327. Perrine v. Chesapeake, etc. Canal Ca 9 How. 172. § 381. Periy v. Commonwealth, 3 Gratt 632. §206. V. Gross, 25 Neb. 826. § 101. V. Mitchell, 5 Demo, 537. § 342. V. New Orleans R R Co. 55 Ala. 413. §194. V. Newsom, 1 Ired. Eq. 28. §§ 194, 199, 213, V. State, 87 Ala 30. § 469. Perry County v. Jefferson Co. 94 M. 214. § 332. V. Railroad Co. 58 Ala. 546. §§ 29, 41, 43, 46. Ferryman v. Greer, 39 Ala. 133. §400. Peters v. Bain, 133 U. S. 670. § 185. V. Condron, 2 S. & R 80. § 432. Petersburg v. Metzker, 21 EL 205. §380. Petrie v. Columbia, etc. R R Co. 35 Am. & Eng. R R Cas. 430; 29 S. C. 303. § 371. Pettit V. Fretz, 33 Pa. St 118. § 40a Petty, In re, 22 Kan. 477. § 470. Peugnet, Matter of, 67 N. Y. 444 §133. Peyton v. Moseley, 3 T. B. Mon. 77. §§ 139, 153. V. Smith, 4 McCord, 476. § 10. Phelan v. Johnson, 7 Ir. L. 535. §333. Phelps V. Hawley, 52 N. Y. 23. § 462. v. Rightor, 9 Rob. (La.) 531. § 283. V. Rooney, 9 Wis. 70. § 475. V. Wood, 9 Yt 399. § 425. Philadelphia v. Ridge Ava R'y Ca 102 Pa St 190. § 332. Philadelphia Bank v. Lambeth, 4 Rob. 403. § 184, Philadelpliia & Erie R R Co, v, Ca- tawis^a R R Co. 53 Pa St 20. §§ 229, 231, 307, 402. lixxviii CASES CITED. Philadelphia, etc. R R. Co. v. Leh- man, 56 Md 209. § 302. Phillips V. Ash, 63 Ala. 414 §§ 140, 399. T. Commonwealth, 44 Pa. St. 197. §333. V. Covington, etc. Co. 2 Met (Ky.)231. §§80,85,93. V. Evans, 1 Cr. & M. 450. § 448. V. Hopwood, 10 B. & C. 39. §§ 162, 165. V. Hunter, 2 H. Black. 402. § 13. V. Mayor, 1 HUt. 483. §§ 97, 120, 170. V. Missouri Pac. R. R. Co. 86 Mo. 540. § 125. V. PhilUps, L. R. 1 P. & D. 173. §430. V. Poland, L. R. 1 C. P. 204. §271. V. Pope's Heii-s, 10 B. Mon. 172. § 234. V. Schumacher, 10 Hun, 405. §129. V. State, 15 Ga. 518. § 246. Philpott V. St. George's Hospital, 6 H. of L. Cas. 338. §§ 247, 254. Pickering v. Fisk, 6 Vt. 107. § 12. Pickett V. Pipkm, 64 Ala. 520. § 194. Pierce V. Delamater, 1 N. Y. 17. §138. V. Kimball, 9 Me. 59. §§ 169, 193, 198. Pierpont v. Crouch, 10 CaL 315. §§ 30, 140. Piggott v. Rush, 4 Ad. & El. 912. §§ 424, 426. Pike's Estate, 45 Wis. 391. § 256. Pike V. Hoard, Eden, 184. § 237. V. Megoum, 44 Mo. 491. § 229. Pilkington v. Cooke, 16 M. & W. 615. §159. Pillon V. Bushnell, 5 Barb. 156. § 234. Piim V. Nicholson, 6 Ohio St. 178. §§ 50, 80. Pinckney v. Burrage, 31 N. J. L. 21. §426. Pingree v. Snell, 42 Me. 53. §§ 154, 255. Pinkerton v. Easton, K R. 16 Eq. 492. ^431. Pinkham v. Dorothy, 55 Me. 135. §366. Pioche V. Paul, 22 CaL 110. § 314 Pioneer, The, Deady, 72. § 335. Piscataqua Bridge Co. v. New Hamp- sliire Bridge Co. 7 N. H. 35. §§ 169, 378, Pitman v. Bump, 5 Ore. 17. §§ 10, 464 V. Commonwealth, 2 Rob. (Va.) 813. §§ 142, 143, 166. V. FUnt, 10 Pick. 504 § 333. Pitte V. Shipley, 46 Cal. 154 §§ 246, 255. Pittsbm-g's Appeal, 115 Pa. St 4 §380. Pittsburg v. Walter, 69 Pa. St 365. § 456. Pittsburg, etc. R. R Co. v. S. W. Pa. R'y Co. 77 Pa. St 173. § 324 V. yming's Adm'r, 27 Ind. 513. §371. Planche v. Fletcher, 1 Doug. 251. §13. Plantation No. 9 v. Bean, 36 Me. 359. §165. Planters' Bank v. Sharp, 6 How. 391. §§ 473, 474 V. State, 6 Sm. & M. 628. §§ 138, 202. Piatt V. Lock, 1 Plowd. 35. § 413. V. Stewart, 10 Mich. 260. § 391. Plowman, Ex parte, 53 Ala. 440. §443. Plumb V. Sawyer, 21 Conn. 351. §206. Plummer v. People, 74 Bl. 361. §§ 91, 210. V. Plummer, 37 Miss. 185. §§ 307, 310, 311. Plumstead Board of Works v. Spack- man, L. R 13 Q. B. Div. 878. §§ 218, 322. Pochin v. Duncombe, 1 H. & N. 856. § 308. Poe V. State, 85 Tenn. 495. § 255. Poindexter v. Barker, 2 Hayw. 173. §190. Polk's Lessee v. Wendall, 9 Cr. 98. §§ 187, 191. OASES CITED. Iyyyit Pollard, Ex parte, 40 Ala. 99. §§ 85, 135, 206, 476. PoUard v. Wegener, 13 Wis. 569. §394 Pomeroy v. Ainsworth, 22 Barb. 118. §184 Pomf ret v. Windsor, 2 Ves. 480. § 194 Pond V. Maddox, 38 CaL 572. § 132. V. Negus, 3 Mass. 230. g§ 448, 449, 450. Pons V. State, 49 Miss. 1. § 143. Poock V. Lafaj'ette Bdg. Ass. 71 Ind. 357. §260. Pool V. Wedemeyer, 56 Tex. 287. §407. Poor Dii-ectors v. R. R Co. 7 Watts & S. 236. § 168. Poor District v. Poor District, 109 Pa. St 579. § 207. Pope V. Pliifer, 3 Heisk. 701. §§ 119, 124 Porter v. Cocke, Peck, 30. § 184 V. Waring, 69 N. Y. 250. § 306. Porterfield v. Clark, 2 How. 76. § 187. Portland v. Stock, 2 Oregon, 69. § 132. Portland Bank v. Apthorp, 12 Mass. 252. § 307. V. Maine Bank, 11 Mass. 204 §111. Portsmouth Livery Co. v. Watson, 10 Mass. 91. § 193. Port Wardens of N. Y. v. Cartwright, 4 Sandf. 236. § 370. Posey V. Pressley, 60 Ala. 243. §§255, 256. Post V. Garrow, 18 Neb. 682. § 115. V. Supei-visors, 105 U. S. 667. §§ 41, 48, 53, 181. Postmaster-General v. Early, 12 Wlieat 148. § 201. Potter V. National Bank, 102 U. S. 163. § 224 V. Safford, 50 ]\Iicb. 46. §§ 215, 240. iPotwin V. Johnson, 108 EL 70. § 72. Poulsun T. Thirst, L. R 2 C. P. 449. §243. V. Union Nat Bank, 40 N. J. K 563. § 138. Pound V. Plumstead, L. R 7 Q. K 183. § 404 PowdreU v. Jones, 2 Smale & G. 407. §246. Powell V. Brandon, 24 Miss. 363. §184 V. De Blane, 23 Tex. 60. § 191. V. Jackson, 51 Mich. 129. § 26. V. State, 69 Ala. 10. §g 169, 175. V. l^ittle, 3 N. Y. 396. §g 207, 302, 390. Power V. Penny, 59 Miss. 5. § 483. Powers' Appeal, 29 Mich. 504 §§112, 114, 207. Powers V. Barney, 5 Blatch. 202. §§ 160, 363. V. Bergen, 6 N. Y. 358. § 194 V. Inferior Ct 23 Ga. 65. § 75. V. Shepard, 48 N. Y. 540. §§ 133, 147. Powlter's Case, 11 Coke, 33. § 210. Prangley, In re, 4 Ad. & EL 784 §112. Pratt V. Short, 79 N. Y. 437. § 336. V. Street Commissionei-s, 139 Mass. 559. §§ 154 156. Prell V. McDonald, 7 Kan. 426. §§ 189, 193. Prentiss v. Danaher, 20 Wis. 31 L §229. Presbrey v. WiUiams, 15 Mass. 193. §§ HI, 112, 114 Prescott V. Beebe, 17 Kan. 320. g 95. President, etc. of L. v. Harrison, 9 R & C. 524 § 166. Preston v. Louisville, 84 Ky. lia §128. V. Sui-goine, Peck, 80. § 184 Pretty v. Solly, 26 Beav. 606. § 217. Price V. Hopkin. 13 Mich. 318. § 107. V. Nesbitt, 29 Md. 263. § 164 V. ^y\ute, 27 Mo. 275. §§ 193. 198. V. Wliitman, 8 CaL 412. §§ 112, 115. Prieger v. Exchange, etc. Ins. Co. 6 Wis. 89. § 298. Prigg V. Pennsylvania, 16 Pet 53flL §§ 197, 253. Prigge V. Adams, Skin. 350. § 19a xc CASES CITED. Prince v. Lamb, Breese, 378. § 184. Pringle v. Carter, 1 HiU (S. C), 53. §395. Pritchett v. Stanislaus Co. 73 Cal 310. §121. Pritz, Ex parte, 9 Iowa, 30. §§ 129, 130. Probasco Co. v. Moundsville, 11 Wa, V. 501. §364 Proprietors of Fryeburg Canal v. Frye, 5 Me. 38. § 193. Proprietors of Locks, etc. v. Lowell, 7 Gray, 223. Prospect Park, etc. R R. Co., In re, 67 N. Y. 371 § 92. Protection Life v. Palmer, 81 IlL 88. § Ill- Protector, The, 1 W. Rob. 45. § 364 Protestant Ep. Pub. School, In re Application of, 58 Barb. 161. §§ 206, 464 Providence v. Union R. R Co. 12 R L 473. § 157. Providence Bank v. Billings, 4 Pet 514 §473. Providence Co. v. Chase, 108 Pa. St 319. § 454 Providence, etc. R R Co. v. Norwich, etc. R R 138 Mass. 277. § 389. Pryce v. Monmouthshire Canal & Ry. Co., L. R 4 App. Cas. 842. § 362. Pryor v. Rybum, 16 Ark. 671. §§ 368, 426. PubUc School TiTOstees v. Trenton, 30 N. J. Eq. 667. § 138. Pue V. Stetzel, 16 Md. 539. § 260. Pugh V. Duke of Leeds, 2 Cowp. 714 §112. V. State, 2 Head, 227. § 298. Pullan V. Cincinnati, etc. R R. Co. 4 Biss. 35. § 381. Purdy V. People, 4 HiU, 384 §§ 36, 181, 182. Pursell V. New York Life Ins. Co. 42 N. Y. Super. Ct 383. §§ 155, 327. Putnam v. Longley, 11 Pick. 489. §§ 322, 407. Pyle V. Maulding, 7 J. J. Iklarsh. 202. §§ 111, 112. Quackenbush v. Danks, 1 Denio, 128, §§ 206, 476. Quarrier v. Colston, 1 PhiL 147. §12. Quarterbaum v. State, 79 Ala. 1. §331. Queen v. Castro, L. R 9 Q. B. 360. §247. V. Champneys, L. R 6 C. P. 384 §157. v. Justices, etc. 8 Ad & EL 932. §112. V. The Justices, 7 Jurist, 396. §115. v. Pearce, L. R 5 Q. B. 386. §§ 230, 231. V. St GUes, 3 E. «& E. 224 § 133. Quick V. MiUer, 103 Pa, St 67. § 400. V. Whitewater Township, 7 Ind. 570. §220. Quigley v. Gorham, 5 CaL 418. § 247. Quilter v. Mapleson, L. R 9 Q. B. Div. 672. § 463. Qum V. O'Keeffe, 10 Irish C. L. (N. S.) 393. §§218, 219, 246, 260, 322, 324 Qmnlon v. Rogers, 12 Mich. 168. §175. Quinn v. FideUty Ben. Asso. 100 Pa. St 382. §§207.437. V. Lowell Electric L. Co. 140 Mass. 106. § 267. Rader v. Township of Union, 39 N. J. L. 509. §§ 103, 170, 180. Radnorshire Co. Road Board v. Evans, 3 B. & S. 400. §268. Rafael v. Verelst 2 W. Black. 105& §12. Raflferty v. Buckman, 46 Iowa, 195. §375. Ragio V. Sta,te, 86 Tenn. 272. §§ 103» 119, 124 Ragland v. The Justices, 10 Ga. 65. §§ 242. 411, 420. V. Wynn, 37 Ala, 32. § 298. Railroad v. Hurst H Heisk. 625. § 20, V. McKaskill, 94 N. C. 746. §398. V. MurreU, 11 Heisk. 715. § 463. CASES CITED. XCl Railroad Co. v. Bank of Ashland, 12 Wall. 229. §§ 22, 185, 293. V. BaiTon, 5 Wall 90. § 371. Railroad Cos. v. Schulte, 103 U. S. 118. §171. Railroad Tax Cases, 13 Fed. Rep. 722. §30. Railway Co. v. Board Public Works, 28 W. Va. 264. § 10. V. Loftin, 98 U. S. 559. § 364. Ralston v. Lothain, 18 Ind. 303. § 10. Ramagno v. Crook, 85 Ala. 226. § 92. Ramchander v. Hammond, 2 John. 200. §367. Ramsden v. Gibbs, 1 B. & C. 319. §429. Ramsey v. Glenn, 33 Kan. 271. § 14 Rand v. Commonwealth, 9 Gratt 738. §468. V. Rand, 4 N. H. 267. § 111. RandaU v. Pryor, 4 Ohio, 424. § 342. V. Van Rensselaer, 1 John. 95. §13. Randolph v. Bayne, 44 CaL 866. §232. V. State, 9 Tex. 521. §§ 208, 279, 349. Rankin v. Pine, 4 Abb. Pr. 309. §369. V. Tenbrook, 6 Watts, 388. § 364. Ranoul v. Griffie, 3 Md. 54 § 288. Rantz V. Barnes, 40 Ohio St 43. §377. Rape V. Heaton, 9; Wis. 328. §§ 184, 297. Rathbone v. Bradford, 1 Ala. (N. S.) 312. §§ 10, 104 Ratzky v. People, 29 N. Y. 124. §§ 469, 470. Raudebaugh v. Shelley, 6 Ohio St 307. §§ 151, 202. Raverty v. Fridge, 3 McLean, 230. §483. Rawley v. Rawley, 1 Q. B. D. 466. §210. RawUngs v. Jennings, 13 Ves. 46. §276. Rawlins v. Vidvard, 84 Hun, 205. §374 Pawls V. Kennedy. 23 Ala. 240. §222. Rawson v. Parsons, 6 Mich. 401. §449. Raymond v. State, 54 Miss. 563. §386. Raynard v. Chase, 1 Burr. 2. § 208. Raynliara v. Canton, 3 Pick. 293. §191. Read v. Edwards, 17 C. R (N. S.) 245. §256. V. Frankfort Bank, 28 Me. 318. §§ 10, 476. V. Levy, 30 Tex. 738. § 332. V. Stewart, 129 Mass. 407. § 358. V. Storey, 6 H. & N. 423. § 139. Reading v. Savage, 124 Pa. St 32& § 1^8. Ready v. Chamberlain, 52 How. Pr. 123. §115. Red Rock v. Henrj^ 106 U. S. 596. §§ 138, 154 157. Reed v. Clark, 3 McLean, 480. § 40. V. Davis, 8 I'ick. 514 §§ 208, 258. V. Northfield, 13 Pick. 94 §§208, 358, 360. V. Omnibus R. R Co. 33 Cal. 213L §174 V. Ownby, 44 Mo. 204 § 314 V. Rawson, 2 Litt 189. § 206. V. State, 12 Ind. 641. § 88. V. Thompson, 88 IlL 245. § 875. V. Toledo, 18 Ohio, 161. § 365. V. Wilson, 41 N. J. K 29. § 295. Reel V. Overall, 89 Ala. 138. § 400. Reeves v. White, 17 Q. B. 995. § 396. Regtna v. Adamson, L. R 1 Q. B. Div. 201. § 462. V. Allen, L. R 1 C. C. 367. § 255. V. Arnold, 5 B. & S. 322. § 432. V. Badcock, 6 Q. B. 787. § 257. V. Barclay, L. R 8 Q. B. Drv. 806. §362. V. Bennett 14 Cox C. C. 45. § 355. V. Bishop, 5 Q. B. Div. 259. § 855. V. Bishop of Oxford, L. R 4 Q. B. Div. 525. § 462. V. Boteler, 4 B. & S. 989. § 462. xcu CASES CITED. Regina v. Brown, 17 Q. B. 833. § 262. V. Biillock, L. R. 1 C. C. 117. §256. V. Buttle, L. R 1 C. C. 250. §256. V. CambridgesMre Justices, 7 Ad. &E. 491. §403. V. Chanti-ell, L. R 10 Q. B. 587. §314 V. Cleworth, 4 B. & S. 927. § 270. V. Cohen, 8 Cox C. C. 41. § 355. V. CoUingwood, 12 Q. B. 681. §418. V. Cutbush, L. R 2 Q. B. 879. §310. V. Dean, 12 M. & W. 39. §§ 355, 429. V. Doubleday, 3 EL & EL 501. §281. V. Edmundson, 28 L. J. M. G 215 ; 2 E. & E. 77. §§ 268, 281. V. Fordham, 11 A. & EL 73. § 139. V. Fi-ost, 9 0. & R 129. §§ 256, 307. V. Gibbons, 12 Cox C. C. 237. §355. V. Harden, 2 Ellis & B. 188. § 145. V. Harvey, L. R 1 C. C. R 284. §§ 355, 429. V. Houghton, 1 EL & BL 501. §213. V. Hertford College, L. R 3 Q. B. Div. 707. § 300. V. Hoi-ton, 11 Cox C. C. 670. §355. V. IngaU, L. R 2 Q. B. Div. 199. §448. V. Ingham, 5 B. & S. 257. § 256. V. Inhabitants, etc. 2 Q. B. 84 §138. V. Ipswich Union, 2 Q. B. Div. 269. § 206. V. Justices, 7 Ad. & E. 480. §§ 230, 231. V. Kershaw, 6 E. & B. 1007. §404 V. Lichfield, 2 Q. B. 693. § 270. V. Llangian, 4 B. & S. 249. §§ 145, 261. Regina v. Mallow Union, 12 Ir. Ch. (N. S.) 35. §§ 206, 210, 239, 322, 328, 400. V. Mayor, etc. 7 E. & B. 9ia §448. V. Mayor of Harwich, 8 Ad. & E. 919. § 462. V. Mews, 6 Q. B. Div. 47 ; L. R 8 App. Cas. 339. § 151. V. Midland R Co. 4 E. & B. 958. §266. V. Moore, 13 Cox C. C. 544 § 355. V. Most, L. R 7 Q. B. Div. 251. §294 V. O'Brien, 15 L. T. (N. S.) 419. §355. V. Overseers of South "Weald, 5 B. & S. 391. § 462. V. Payne, L. R 1 C. 0. 27. § 281. V. Pearce, L. R 5 Q. B. Div. 389. §402. V. Phillips, K R 1 Q. B. 648. §261. V. Pilkington, 2 E. & B. 546. §418. V. Pratt, 4 E. & B. 860. §§ 255, 256. v. Price, L. R 6 Q. B. 411. § 256. v. Prmce, L. R 2 C. C. R 154 §355. V. St Luke's, L. R 7 Q. B. 153. §441. v. Scaife, 17 Q. B. 238. § 310. V. Scale, 5 E. & B. 1. § 327. V. Shiles, 1 Q. B. 519. § 261. V. Skeen, BeU C. C. 134 § 416. V. Sleep, L. & C. 44 §g 355, 429. V. Smith, 1 L. & C. 131. § 227. V. South Weald, 5 B. & S. 391. §256. V. Spratley. 6 E. & B. 363. §§ 246, 275. V. Stock, 3 Nev. & Peny, 420. §147. V. Stock, 8 Ad. & E. 405. § 357. V. Sykes, L. R 1 Q. B. Div. 52. § 333. v. Tithe Commissioners, 14 Q. B. 459. §461. OASES CITED, XCIU Regina v. Tolson, L. R 23 Q. B. Div. 168. § 355. V. Tonbridge Overseers, L. R. 13 Q. B. Div. 342. §§ 288, 324. V. Turner, i) Cox C. C. 145. g 355. V. Vine, L. R. 10 Q. B. 195. § 206. V. Wilcox, 7 Q. B. 317. § 210. V. WUUams, 2 C. & K 1001. §462. V. Willmett, 3 Cox C. C. 281. §355. V. Wood, L. R. 4 Q. B. 355. § 254. v.Woodi-ow, 15 M. & W. 404. §355. V. Wymondham, 2 Q. B. 541. §418. V. Youle, 6 H. & N. 753. § 142. V. Zulueta, 1 C. & K 215. § 300. Rehoboth v. Hunt, 1 Pick. 224. § 472. Reiche v. Smythe, 13 AVaU. 162. §§ 218, 242, 266. Reid V. Morton, 119 lU. 118. § 170. V. State, 20 Ga. 681. § 206. V. Strider, 7 Gratt. 76. § 10. Pels V. Graff, 51 Cal. 86. §§ 201, 206. Reiser v. Tlie Wm. Tell S. F. Asso. 39 Pa. St. 147. §§ 2, 6, 10, 201. Reithmiller V. People, 44 Midi. 280. §g 215, 235, 240, 407. Remmingtou v. State, 1 Oregon, 281. §353. Ramsen, In re Petition of, 59 Barb. 317. §464. Renfroe v. Colquitt, 74 Ga, 619. §§ 349, 351, 359. Renick v. Boyd, 99 Pa. St 555. § 273. Renner v. Bennett, 21 Ohio St 431. §221. Rensselaer, etc. R R Co. v. Davis, 43 N. Y. 137. § 387. Ren wick v. Morris, 3 Hill, 621. §§ 202, 399. V. Morris, 7 Hill, 575. § 399. Renten v. Bauer, 3 Kan. 505. § 168. Report of County Auditors, In re, 1 Woodw. (Pa.) 270. § 333. Respublica v. ]\Iesca, 1 Dall. 73. § 17. v. Sparhawk, 1 Dall. 357. § 370. Restall V. London, etc. R'y Co., T^ K. 3 Ex. 141. § 163. Rex V, Abbot, 2 Doug. 553. § 396. V. Adderley, 2 Doug. 462. § 253. V, Archbishop of Canterbury, 11 Q. B. 665. § 247. V. Banljury, 1 A. & E. 142. § 237. V, Banks, 1 Esp. 144 § 355. V. Barhans, 8 B. & C. 99. § 324. V. Barlow, 2 Salk. 609. §§ 461, 462. V. Bond, 1 B. & Aid 392. § 350. V. Bristol Dock Co. 6 B. & C. 191. §282. V. Buggs, Skin. 428. §§ 193, 198. V. Bullock, 1 Taunt 80. § 244 V. Cator, 4 Burr. 2026. § 142. V. Charlesworth, 2 Lowndes, IL & P. 117. § 262. V. Coruforth, 2 Str. 1162. § 249. V. Cowell, 2 East's P. C. 617. §266. V. Cuniberworth Half, 5 Q. B. 484 §282. V. Cunningham, 5 East, 478. §266. V. Davis, 1 Leach, 271. §§ 143, 166. V. Denbyshire, 4 East 142. § 448. v. Dorsetshire, 15 East 200. §324 V. Downs, 3 T. R 569. § 143. V. Elkius, 4 Bm-r, 2130. § 115. V. Great Driffield Inhabitants, 8 B. & C. 690. § 310. V. Hand}-, 6 T. R. 286. § 349. V. Havering Alte Bower, 5 B. & Aid. 691. § 461. V, Heath, 2 East's P. C, 609, § 166. V, Hoduett 1 T, R 96. § 234 V. Hogg. 1 T. R 721. § 308. V. Hymen, 7 T. R 536. § 353. V. Inhabitants, 1 T. R 96. § 240. V. Inhabitants of Shipton, 8 B. & C. 94 § 259. V. Inhabitants of Stoke Damarel, 7 B. & C. 570. § 282. V. Jefferies, 1 Strange, 446. § 40. XCIV CASES CITED. Eex V. Justices, 4 Nev. & M. 378. §§ 112, 113. V. Justices of London, 3 Burr. 1456. §§165,225. V. Justices of Middlesex, 2 B. & Ad. 818. §§ 105, 136, 221. V. Justices of Norfolk, 4 B. & Ad. 238. §462. V. Leek Wootton, 16 East, 122. §307. V. Leicester, 9 D. & R. 772 ; 7 B. & C. 12. §§ 139, 448. V. Liverpool, 4 Burr. 2244. § 365. V. Loom, 1 Moo. C. C. 160. § 266. V. Luffe, 8 East, 193. §§ 305, 418. V. McKenzie, R. & R C. C. 429. §§ 143, 166. V. Manchester, etc. Water-Works Co. 1 B. & C. 630. § 262. V. Marks, 3 East, 160. § 213. V. Mayor of London, 9 B. & C. 27. §396. V. Meshita, 6 Ad. & E. 153. § 292. V. l^Iidland R'y Co., L. R. 10 Q. B. 389. §219. V. Middlesex, 1 Dow. P. C. 117. §138. V.Middlesex, 2 B. & Ad. 818. §160. T. Morgan, Str. 1066. § 136. V. Mortlake, 6 East, 397. . § 260. V. Newark-upon-Trent, 3 B. & C. 71. §223. V. Newcomb, 4 T. R 368. §§ 139, 203. V. Northleach & W. Road, 5 B. & Ad. 978. §§ 140, 145, 147. V. Palmer, 1 Leach C. C. 352. §282. V. Peckliam, Carth. 406. § 253. V. Poor Law Commissioner, 6 Ad. 17. 237, 238, 255, V. & E. 324 Proprietors Manchester & S. Water- Works, 1 B. & G §279. Ramsgate, 6 B. & C. §324. Robinson, 2 Burr. 803. § 325 630. 12. Rex V. Rogers, 10 East, 573. § 137. V. Sadi, 1 Leach C. C. 468. § 289. V. St George's Hanover Square, 3 Camp. 222. § 202. ' V. St Peter & St Paul in B. 1 Bott, 443. § 212. V. Sedgley, 2 B. & Ad. 65. § 266. V. Shrewsbury, 3 B. & Ad. 216. §279. V. Simpson, 1 Str. 45. § 290. V. Sparrow, 2 Str. 1123. § 448. V. Sutton, 4 M. & S. 532. § 213. V. Swiney, Alcock & Napier, 131. §136. V. Trustees, etc. 5 Ad. & E. 563. § 351. V. WaUis, 5 T. R 375. § 270. V. Waterford, 9 Q. B. 635. § 333. V. Wells, 4 DowL 562. § 137. V. "WTiiteley, 3 H. & N. 143. § 152. V. Wilhams, 1 W. Black. 93. §§ 210, 410. V. Worcestershire, 5 M. & S. 457. §204. V. Wright, 1 Ad. & E. 437. § 333. V. Yorksliire, 1 Doug. 192. § 324 V. Younger, 5 T. R 452. § 310. Reynolds v. Blue, 47 Ala. 711. § 64 V. HoUand, 35 Ark. 56. §§ 219,. 234 238, 246. V. Orvis, 7 Cow. 269. §§ 327, 390. V. Robinson, 64 N. Y. 589. § 400. V. State, 1 Ga. 222. § 206. Rhoades v. Delaney, 50 Ind. 253. § 114. Rhoads v. Hoernerstown Building, etc. Asso. 82 Pa St 180. § 156. Rhodes v. Smethurst, 4 M. & W. 42.. §424 V. Weldey, 46 Ohio St 234. § 255. Ricard v. Smith, 37 Miss. 644 § 394. V. WiUiams, 7 Wheat 59. § 322. Rice's Succession, 21 La. Ann. 614 §181. Rice V. Foster, 4 Harr. 479. §§ 67, 75. V. Kirkman, 3 Humph. 415. §394 V. Montgomery, 4 Biss. 75. § 306. V. Parkman, 16 Mass. 326. § 194 CASES CITED. XCT Rice V. R. R. Co. 1 Black, 358. §§ 1G4, 215, 240, 246, 289, 291, 378, 379. V. Ruddiman, 10 ]\Ilch. 125. §§ 107, 160. V. Shook, 27 Ark. 137. § 298. V. Wright, 46 Miss. 679. § 165. Rich V. Flanders, 39 N. a 804. §§ 206, 331. V. Keyser, 54 Pa. St 86. §§ 255, 256. V. Rayle, 2 Humph. 404 § 326. Eichards v. Dagget, 4 Mass. 537. § 322. V. Dyke, 3 Q. B. 256. § 396. V. Emswiler, 14 La. Ann. 658. §367. V. McBride, L. R 8 Q. B. Div. 119. §§ 219, 258, 261. V. Richards, 76 N. Y. 188. § 103. V. Rote, 68 Pa. St 248. § 484 Richardson, In re, 2 Story, 571. §§ 104 110. V. Cook, 37 Vt 599. § 206. V. CrandaU, 48 N. Y. 356. § 330. V. Mass. Charitable Asso. 131 Mass. 174 § 385. V. Pulver, 63 Barb. 67. § 338. V. Richardson, 6 Ohio, 125. § 424, Richland Co. v. Richland Center, 59 Wis. 591. § 473. Richmond v. Shickler, 57 Iowa, 486. §377. V. Smith, 15 WalL 429. § 186. Richmond R R Co. v. Louisa R. R Co. 13 How. 81. §§ 164 378, 381. Ricketson v. Richardson, 26 CaL 149. §394 Rider v. Maul, 46 Pa. St 376. § 364 Ridge Avenue R'y Co. v. Philadel- phia, 124 Pa. St 219. § 97. Ridout V. Pain, 3 Atk. 493. § 220. Riggin V. CoUier, 6 Mo. 568. § 306. Riggms V. State, 4 Kan, 173. §§ 206, 482. Riggs V. Brewer, 64 Ala. 282. §§ 138, 204 V. Martin, 5 Ark. 506. § 10. Right V. Martin, 11 Ind. 123. § 164. Rigoney v. Neiman, 73 Pa. St 830. §252. Ripple V. Ripple, 1 Rawle, 386. § 297. Risewick v. Davis, 19 Md. 82. §§ 104 391. 392. River Wear Com'rs v. Adamson, L. R 1 Q. B. Div. 546 ; 2 App. Cas. 764 §§ 300, 322. Rivers v. Cole, 38 Iowa, 677. §§ 206, 482. Rives V. Guthrie, 1 Jones' L. 88. § 253. Road in Hatfield Township, 4 Yeates, 392. § 165. Road in Salem Township, 103 Pa. St 250. § 454 Roane v. Innis, Wythe (Va.), 62. § 442. Robb V. Gurney, 2 Rick (N. S.) 559. §151. Roberts' Will, ]\Iatter of, 8 Paige, 446. §190. Roberts v. Cannon, 4 Dev. & Bat L. 267. §407. v. Fowler, 3 E. D. Smith, 633. §398. V. State, 2 Ovei-t 423. § 166. V. Yarboro, 41 Tex. 453. §§ 223, 224 328. Robertson v. Demoss, 23 I\Iiss. 298. §137. V. Land Commissioners, 44 Mich. 274 §472. V. State, 12 Tex. App. 541. § 133. Robbms v. State, 8 Ohio St 131. § 157, Robinson's Case, 131 Mass. 376. § 331. Robinson v. Bidwell, 23 CaL 879. §§ 170, 180. v. Dauchy, 3 Barb. 20. § 184 V. Emei-son, 4 H. & C. 355. § 143. V. Fair, 128 U. S. 53. § 395. V. Foster, 12 Iowa, 186. § 113. V. Gilman, 20 Me. 299. §190. V, Howe, 13 Wis. 341. §:478. V. Lane, 19 Ga. 337. § 101. V. Perry, 17 Kan. 248. § 123. V. Schmidt 48 Tex. 13. §§ 393, 393. V. Skipwoith, 33 Ind- 813. §§ 78, 102. V. Stnte, 15 Tex. 311. § 332. XCVl OASES CITED. Eobinson v. Yamell, 16 Tex. 382. §§ 218, 251, 322. V. Waddin^n, 13 Ad. & El. (N. S.) 753. § 112. Eobison v. Miner, 68 Mich. 549. § 85. Eoche V. Maj-or of Jersey City, 40 N. J. L. 257. §§ 154, 204. Rochester v. Barnes, 26 Barb. 657. §140. RockliiU T. Nelson, 24 Ind. 422. § 315. Rock Hill College v. Jones, 47 Md. 1. §164. Rockliold T. Blevins, 6 Baxt. 115. §20. EockweU V. Clark, 44 Conn. 534. §205. V. HubbeU, 2 Doug. (Mich.) 197. §§ 476, 482. Roddam v. Morley, 1 De G. & J. 1. §367. V. Ferrars, 2 B. & P. 547. § 368. V. Hersey, 3 Wils. 275. §§ 104, 110. Roff V. Johnson, 40 Ga. 555. § 284. Rogers' Case, 2 Greenlf. 303. § 193. Rogers, Ex parte, 7 Cow. 526. § 390. Rogers v. Goodwin, 2 Mass. 475. §§ 310, 311, 314. V. Hillhouse, 3 Conn. 398. § 426. V. Kennard, 54 Tex. 30. § 326. V. Kneeland, 10 Wend. 218. § 334. V. Mm-ray, 3 Paige, 390. § 454. T. Rogers, 3 Wend. 503. §§ 215, 219. V. State, 6 Ind. 31. § 132. V. Stephens, 86 N. Y. 623. § 99. V. Vass, 6 Iowa, 405. § 223. V. Watrous, 8 Tex. 62. § 154. V. Windoes, 48 Mich. 628. § 81. Rohrbacher v. City of Jackson, 51 Miss. 735. §§ 26, 237. Pu)les V. RoseweU, 5 T. R. 538. § 462. Rolfe V. McComb, 2 Head, 558. § 184. Rolland v. Commonwealth, 82 Pa. St. 306. §§ 252, 260. Rolle V. Whyte, K R. 3 Q. B. 305. §256. Romaine v. Kinshiner, 2 HOt 519. §314. Rood V. Chicago, etc. R'y Co. 43 Wis. 146. §166. V. McCargar, 49 CaL 117. §§ 170, 176. Roose V. Perkms, 9 Neb. 304. §§ 374, 375. Roosevelt v. Godard, 52 Barb. 553. §333. V. Maxwell, 3 Blatch. 391. § 254. Rosecrants v. Shoemaker, 60 Mich. 4 ; 26 N. W. Rep. 794. § 375. Rosenberg v. Frank, 58 CaL 387. §395. Rosenplanter v. Roessle, 54 N. Y. 262. §§ 237, 238. Ross' Case, 2 Pick. 165. § 468. Ross V. AustiU, 2 Cal. 183. § 298. V. Barland, 1 Pet. 655. § 442. V. RosweU, 60 Ind. 235. § 302. V. DaTis, 97 Ind. 79. §§ 87, 93^ 102. V. Duval, 13 Pet. 45. §§ 68, 482. V. Jones, 22 WaU. 576. § 368. V. M'Lung, 6 Pet. 283. § 187. V. Reddick, 2 IlL 73. § 193. V. Winsor, 48 N. J. L. 95. § 128. Rothgerber v. Dupuy, 64 IlL 452. §§ 366, 398. Rottenberry v. Pipes, 53 Ala. 447, §206. Roimds V. Waymart, 81 Pa. St 395. §157. Roundti-ee, Ex parte, 51 Ala. 42. § 256. Rowa, The, 7 Ex. Div. 247. § 268. Rowan v. Runnels, 5 How. 134. § 319. Rowberry v. Morgan, 9 Ex. 730. §115. Rowley v. Stray, 32 Mch. 70. §§ 321, 407. Royle V. Hamilton, 4 Yes. 437. § 253. Ruckmaboye v. LuUoobhoy Matti- chand, 8 Moore's P. C. 4. § 255. Ruckman v. Ransom, 35 N. J. L. 565. §151. Rude V. Mitchell, 97 Mo. 365. § 398. Rudderow v. State, 31 N. J. L. 512. §234. Rue V. Alter, 5 Denio, 119. §§ 290, 364. CASES CITED. XCVU Ruddy, Goods of, L. R 2 P. & D. 330. §§ 419, 440. RuiTner v. Hamilton Co. 1 Disney, 89. §138. Ruggles V. Illinois, 108 U. S. 526. §§ 234, 240, 293, 300, 381. V. Washington Co. 3 Mo. 496. §g 215, 240. Rumsey v. People, 19 N. Y. 48. §§ 181, 183. Rusling V. Sebree, 12 Busli, 198. § 241. R'jsrjel V. Transylvania University, 1 Wheat. 432. § 390. Russell V. cAge, 66 Tex. 428. § 384. V. Farquliar, 55 Tex. 359. §§ 234, 241, 429. V. Irby, 13 Ala, 131. § 399. V. Martin, 15 Tex, 238. § 306. V. Mayor, etc. 2 Denio, 461. § 370. T. Wheeler, Hempst. 3. §g 391, 435, 440. Rutgers v. New Bitms wick, 42 N, J. L. 51. §§ 127, 128. Ruther v. Harris, L. R 1 Ex. Div, 97. §259. Rutherford v. Greene, 2 ^Tieat 196. §§ 206, 259. V. HamUton, 97 Mo. 543. § 128. V. Heddens, 82 Mo. 388. § 129. V. Maynes, 97 Pa. St 78. § 390. Rutland v. Mendon, 1 Pick. 154. §§ 255, 333. Ryan's Case, 45 Mich. 173. § 138. Ryan v. Commonwealth, 80 Va. 385. §§ 395, 463. V. Couch, 66 Ala. 244 § 289. V, Johnson, 5 Cal. 86. § 121. V. Lynch, 68 IlL 160. §§ 41, 45, 48, 181. V. State, 32 Tex. 280. § 207. V. State, 5 Neb. 276. § 220. Ryder v. Cohn, 37 Cal. 69. § 19. Ryegate v. Wardsboro, 30 Yt 746. §§ 215, 238, 239. Ryers, Matter of. 72 N. Y. 1. § 169. Ryerson v. Laketon, 52 Mich. 509. §365. V. Utley, 16 Mich. 269. §§ 78, 82, 85, 87, 88, 102. Sacalaris v. Eureka, etc. R R Co. 18 Nev. 155. § 306. Sacia v. De Graaf, 1 Cow. 356. §§207, 368, 426. Sackett, etc. Streets, Matter of, 74 N. Y. 95. §§ 87, 88, 98, 102, 169, 170. Sackett v. Sackett, 8 Pick. 309. §§ 16, 17, 184. Saco V. Gumey, 34 Me. 14. §§ 165, 166. Sacramento v. Bird, 15 CaL 294. §§ 154, 204 Sadler v. Langham, 34 Ala, 311. §331. Sage V. Brooklj-n, 89 N. Y. 189. § 324 Saginaw Gas Light Co. v. Saginaw, 28 Fed, Rep. 529. §§ 378, 384 St Charles v. NoUe, 51 Mo. 123* §365. St Cross V. Howard, 6 T. R 338. §247. St Lawrence, etc. R R Co. v. Lett, 26 Am. & Eug. R R Cas. 454 §371. St Louis V. Alexander, 23 Mo. 589. §161. V. Goebel, 32 Mo. 295. § 354 V. Green, 7 IMo. App. 468. §§ 92, 95. V. Lauglilm, 49 Mo. 559. §§ 275, 365. V. Shields, 62 Mo. 247. § 117. V. Teifel, 42 Mo. 578. §§ 78, 82, 87, 89, 93, 101. St Louis Co. Ct V, Sparks, 10 Mo. 117. §448. St Louis G. L. Co. v. American F. Ins. Co. 33 Mo. App. 348. § 305. St Louis, etc. R'y Co. v. Berry, 41 Ark. 509. § 364 V. Clark, 53 Mo, 214 § 237. V, Wilder, 17 Kan, 244 § 453. St Martin v. New Orleans, 14 La. Ann. 113. § 217, St Paul V. Colter. 12 Mmn. 50. § 88. St PauU V. Lewis, 4 Watts, 402. § 30S. St Paul. etc. R'y Co., Matter of, 34 Minn. 227. § 387, XCVUl CASES CITED. St Paul, etc. R. R Co. v. Greenhalgh, 26 Fed. Eep. 563. § 379. V.Phelps, 26 Fed. Rep. 569. §§379, 393. Salkeld v. Johnson, 2 C. B. 756. § 300. V. Johnson, 2 Ex. 256. § 210. V. Jolinson, 1 Hare, 196. § 212. Sallee v. Ireland, 9 Mich. 154 § 112. V. Waters, 17 Ala. 482. § 422. Salhng V. McKiuney, 1 Leigh, 42. §429. Salomon v. State, 28 Ala, 83. § 306. Salter v. Bui-t, 20 Wend. 205. § 115. Salters v. Tobias, 3 Paige, 338. § 200. Saltovm V. Advocate-General, 3 Macq. 659. §247. Sampeyi-ac v. United States, 7 Pet 222. §§ 206, 482. Sams V. King, 18 Fla. 557. §§ 219, 220, 221. Sam Slick, The, 2 Curt 480. §§ 368, 426. Sanauels v. Commonwealth, 10 Bush, 491. § 324 San Antonio v. Gould, 34 Tex. 49. §80. V. Mehaffy, 96 U. S. 312. § 96. Sanders v. State, 77 Ind. 227. §§ 153, 167, 226, 227. San Diego v. Granniss, 77 CaL 511. §§ 239, 246. Sandiman v. Breach, 7 B. & C. 96. § 270. Sands v. Campbell, 31 N. Y. 345. §426. Sanford v. Tliompson, 18 Ga 554 § 13. San Francisco v. Hazen, 5 CaL 169. §§ 215, 239. Sangamon Co. v. Springfield, 63 IlL 66. § 473. San Mateo County v. R R Co. 8 Saw- yer, 238. §§41,45. San Pedro, The, 2 Wlieat 132. § 215. Santa Maria, The, 10 Wheat 442. §299. Sanson 1 v. Greenough, 55 Iowa, 127. §070 Santissima Trinidad, The, 7 Wheat 283. §297. Santo V. State, 2 Iowa, 165. §§ 67, 72, 180, 331. Sarahass v. Armstrong, 16 Kan. 192. §296. Sasscer v. Farmers' Bank, 4 Md. 409. §296. Satterlee v. Matthewson, 2 Pet 380L §§ 465, 474 480, 482, 483. Saul V. His Creditors, 5 Mart (N. S.) 569. §§ 12, 138, 191. Saunders v. Carroll, 12 La. Atiti. 793. §206. V. Provisional Municipality, 24 Fla. 226. §§ 101, 132. Savage v. O'Neil, 44 N. Y. 298. §184 V. State, 18 Fla. 970. § 110. V. Walshe, 26 Ala 619. § 449. Savannah v. KeUy, 108 U. S. 184 §157. Savannah, etc. R'y Co. v. Geiger, 21 Fla 669. § 170. Savings Bank v. Allen, 28 Conn. 97. §164 v. United States, 19 WalL 227. §§ 222, 223. Savings Institution v. Makin, 23 Ma 230. §§221,222. Sawyers v. Baker, 72 Ala 49. § 154 Sayre v. Elyton Land Co. 73 Ala 85. §394 V. Pollard, 77 Ala 608. §§ 41, 45. V. PoUard, 51 Mich. 129. § 26. V. Wheeler, 32 Iowa, 559. § 184 Scaggs V. Baltimore, etc. R R Co. 10 Md. 268. §§ 219, 236, 269, 329, 398, 431. Scaife v. StovaU, 67 Ala 237. §§ 290. 398. Scales V. State, 47 Ark. 476. § 135. Scanlan v. Childs, 33 Wis. 663. § 309. Schafer v. Smith, 63 Ind. 226. § 374 V. Eneu, 54 Pa St 304 § 484 V. State, 49 Ind. 460. § 374 Scheftels v. Tabert, 46 Wis. 439. §134 Schenley's Appeal, 70 Pa St 98. §263. Schenley v. Commonwealth, 36 Pa. St 29. 8 484 CASES CITKD. XCLX Schlandecker v. Marshall, 73 Pa. St 200. § 257. Schlegel v. Am. Beer, etc. Co. 12 Abb. New Cos. 280 ; 64 How. Pr. 190. §237. Schlict V. State, 56 Ind. 173. § 303. Schmidt, Ex parte, 24 S. C. 363. § 157. Schmidt v, Hoyt, 1 Edw. Ch. 652. §402. V. IVIitchell, 84 IlL 195. § 374. Schneider v. Hosier, 21 Oliio St. 98. §374 V. Staples, 66 Wis. 167. §§ 137, 145, 154. School Diiectors v. School Directors, 73 IlL 249. §§ 132, 260. School Inspectors v. People, 20 IH 525. §395. School Trustees v. Commissioners, 1 Nev. 335. § 56. Schooner Enteiprise, 1 Paine, 32. §§ 347, 349, 353. Schooner Han-iet, The, 1 Story, 251, §§ 349, 350, 356. Schooner Industry, The, 1 GalL 114. §349. Schooner Nymph, The, 1 Sumn. 516. §356. Schooner Pauhne's Cargo v. United States, 7 Cranch, 152. § 237. Schooner Rachel v. Umted States, 6 Cr. 329. §§ 163, 164. Schriefer v. Wood, 5 Blatch- 215. §§ 247, 254 Schroder v. Crawford. 94 HL 357. g§ 374, 375. Schulherr v. Bordeaux, 64 "Miss. 59. §§72,75. Schulenberg v. Harriman, 21 WalL 44 §379. Schuster v. Supervisors, 27 ^linn. 253. §339. Schuyler v. Mercer, 4 Gilm. 20. § 139. SchuylkiU Nav. Co. v. Loose, 19 Pa. St 15. § 207. Schwenke v. Union Depot & R. R. Co. 7 Colo. 512. gg 147. 157, 159. Scogins V. Perry, 46 Tex. 111. §§ 392, 393. Scorpion S. M. Co. v. Marsano, 10 Nev. 370. g 394 Scotia, Tlie, 14 WalL 170. §§ 293, 295, 29t>. Scott V. Duke, 3 La. Ann. 253. § 482. V. Lunt's Adm'r,7 Pet 603. § 184 v. Searles, 1 Sm. & ]M. 590. § 283. V. Simons, 70 Ala, 352. §§ 154, 400. V. State, 22 Ark. 369. §§ 215. 228. Scovem v. State, 6 Ohio St 268. §327. ScoviUe V. Canfield, 14 Jolm, 338. § 12. Scraflford v. Gladwin Supervisors, 41 Mich. 647. § 114 Scruggs V. Brackin, 4 Yerg. 528. §§ 301, 307. Scudder v. Trenton Delaware Falls Co. 1 N. J. Eq. 694 § 169. Scutfs Case, 2 Va. Cas. 54 § 166. Seal V. State, 13 Sm. & M. 286. § 44-5. Seale v. Mitchell, 5 CaL 403. §§ 314, 315. Seamans v. Carter, 15 Wis. 548. § 200. Searing v. Brinkerhoflf, 5 Jolin. Ch. 329. § 208. Searles v. Kanawha, etc. R R Co. 37 Am. & Eng. R R Cas. 179. § 371. Sears v. Burnham, 17 N. Y. 445. § 451. V. Cottrell, 5 i\Iich. 254 §g 5, 21, 197. Seat of Government Case, 1 Wash. T'y, 115. §65. Seay v. Bank of Rome, 66 Ga. 609. §§ 93, 96. Second Ave. Church, Matter of, 66 N. Y. 395. §§ 221, 365. Second German Am. B. Asso. v. New- man, 50 Md. 62. § 101. Second Municipality v. Morgan, 1 La. Ann. 111. § 175. Sedgwick v. Bimker, 16 Kan. 498. § 206. Seekonk v. Rehoboth, 8 Cusli. 371. g§lll. 113. Seely v. State. 11 Ohio, 501. § 333. Seidenbender v. Charles, 4 S. & R 159. § 336. g CASES CITED. Selby, In re, 6 Mich. 193. § 456. Selden v. Preston, 11 Bush, 191. § 20. Sellare v. Carpenter, 72 Me. 497. §343. V. Fite, 3 Baxt. 131. § 447. Sekiia, etc. R. R. Co., Ex parte, 45 Ala. 696. § 311. Selmau v. Wolfe, 27 Tex. 68. § 386. Semmes v. Hai-tford Ins. Co. 13 Wall 158. § 368. Sample v. Hagar, 27 CaL 163. § 181. Sequestration Cases, 30 Tex. 688. §478. Seven Hickory v. Ellery, 103 U. S. 433. § 55. SewaU V. Jones, 9 Pick. 412. §§ 863, 367. SeweU V. Taylor, 29 L. J. K C. 50. §262. Seymoiu- v. Bailey, 66 IlL 288. § 20. V. Judd, 2 N. Y. 464. § 456. V. Marvin, 11 Barb. 80. §§ 296, 306. V. Phillips, etc. Co. 7 Biss. 460. §342. Shadwell v. Angel, 1 Burr. 56. § 115. Shakman v. Schlueter, 46 N. W. Rej). 543. § 459. ShaUow V. Salem, 136 Mass. 136. §201. Shannon V. People, 5 Mich. 71. § 154. Sharp, Ex parte, 10 Jur. (N. S.) 1018. w§432. Sharp V. Johnson, 4 HUI, 92. §§ 207, 290, 365, 390, 456. V. Mayor, etc. 31 Barb. 572. §§ 83, 95, 360, 437. V. Speir, 4 Hill, 76. §§ 257, 290, 863, 865, 387, 890, 400, 454, 456. V. Warren, 6 Price, 131. §§ 138, 151. Shattuck V. Daniel, 52 Miss. 834. §20. Shaw V. Brown, 35 Miss. 246. §§ 12, 189. V. Clark, 49 Mich. 384. §§ 350, 353. V. Dodge, 5 N. H. 465. § 59. Shaw V. Morley, L. R 3 Ex. 137. § 380. V. Orr, 30 Iowa, 585. § 449, V. Railroad Co. 101 U. S. 557. §290. V. Rudder, 9 Irish C. L. (N. S.) 219. § 210. Shawnee Co. v. Carter, 2 Kan. 115. § 363. Shear v. Commissioners of Columbia, 14 Fla, 146. §§ 139, 147. Shedd V. Moran, 10 IlL App. 618. § 14. Sheets v. Hanbest, 81 Pa- St 100. §246. V. Selden, 2 WalL 177. §§ 111, 112. Shelby v. Guy, 11 Wheat. 361. §§185, 186, 191, 424, 479. Sheley v. Detroit, 45 Mich. 431. §§ 235, 407. Shelton v. Baldwin, 26 lyiiss. 439. §157. Shepardson v. Railroad Co. 6 Wis. 605. §137. Shepherd v. People, 35 N. Y. 406. §470. Sheppard v. Gosnold, Vaughan, 169. §307. V. Johnson, 2 Humph. 296. § 124 V. State, 1 Tex. App. 522. § 164. Sherbom v. Wells, 3 B. & S. 784. §256. Sheridan v. Stevenson, 44 N. J. L. 371. §157. Sheriff v. Caddo Parish, 37 La. Ann. 788. § 300. Sherman v. Dodge, 6 John- Ch- 107. §454. V. State, 17 Fla 888. §§ 143, 143. v. Story, 30 CaL 376. §§ 37, 28, 30, 183. Sherman Co. v. Sunons, 109 U. S. 735. §194. Sherwin v. Bugbee, 16 Vt 444. §§ 311, 328. Sherwood v. Judd, 3 Bradf. 419. § 13. V. Reade, 7 HiU, 431. §§ 207, 362, 390. Shiel V. Mayor, etc. 6 H. & N. 79G. §370. OASES CITED. CI Shields v. Bennett, 4 W. Va. 83. §§ 78, 80, 82, 83, 88, 93, 135, 170. V. Perkins, 2 Bibb. 230. § 313. Shiletto V. Thompson, L. R. 1 Q. B. Div. 12. § 280. Ship Cotton Planter, 1 Paine, 23. §280. Shipley v. Terre Haute, 74 InA 297. §§ 93, 96. Shipman v. Hanbest, 4 T. R. 109. §§ 168, 396. Shivers v. Newton, 45 N. J. L. 469. §§ 85, 86, 87, 88, 102. V. Wilson, 5 Har. & John. 130. §§ 391, 392. Shoemaker v. Lansing, 17 Wend. 327. §§ 218, 239. V. Smith, 37 Ind. 122. § 103. V. State, 20 N. J. L. 153. § 143. Shonk V. Brown, 61 Pa. St 327. §§ 483, 484 Shotwell's Ex'r v. Dennman, 1 N. J. L. 174. § 358. Shotwell V. Harrison, 22 Midi. 410. §293. Shrader, Ex parte, 33 CaL 283. § 11. Slu-ewsbury v. Boylstou, 1 Pick. 105. § 260. Slirewsbury, Earl of, v. Scott, 6 C. B. (N. S.) 1. §§ 194, 196. Sliriedley v. State, 23 Ohio St 130. §232. Shropshire v. State, 12 Ark. 190. §306. Shugai-t V. Egan, 83 IlL 56. §§ 374, 375. Shmnaker v. Johnson, 35 Ind. 33. §458. Shumate v. Williams, 84 Ga. 251. §411. S hum way v. Bennett, 29 Mich. 465. §5. Shute V. Wade, 5 Yerg. 8. § 322. Sibley v. Smith, 2 Midi. 486. §§ 290, 363, 390, 454, 455. Sickles V. Sharp, 13 John. 497. §§ 349, 359. Sidney v. White, 12 Ala. 728. § 191. Sidwell V. Evans, 1 Pen. & W. 383. § 192. Siebold, Ex parte, 100 U. a 371 §§ 21, 197. Siegbert v. Stiles, 39 Wis. 533. § 30a Sifred v. Commonwealtli, 104 Pa. St 179. § 143. Sika V. Chicago, etc. R R Co. 21 Wis. 370. § 147. Sill V. Village of Coming, 15 N. Y. 297. §395. V. Worswick, 1 H. Black. 672. §13. SUver V. Ladd, 7 Wall 219. §§ 218, 417. Silvergood v. Storrick, 1 Watts, 532. §342. Sirnco V. State, 8 Tex. App. 406. §§ 206, 482. Simmons v. Bradley. 27 Wia 68a §154. V. Jacobs, 52 Me. 147. § 111. V. Ti-umbo, 9 W. Va. 358. § 306. Simms v. Southern Exp. Co. 38 Ga. 129. § 297. Simonds v. Powers. 28 Vt 354 §§ 217, 219, 246. Simouson v. Durfce, 50 Mich- 80. § 115. Simontou v. Barrel!, 21 Wend. 362. §S 414 416, 437. Simpkin, Ex parte, 105 Eng. C. I* 392. § 115. Simpson v. BaUey, 3 Oregon, 515. §96. V. Fogo, 1 H. & IkL 195. § 13. V. Robert 35 Ga. 180. § 259. V. Uuwin, 3 B. & Ad. 134 ^•§ 355, 429. V. Willard, 14 S. C. 191. § 307. Sims V. Hampton, 1 S. & R 411. §§ 111, 112, 115. Singer v. Hassou, 50 L. T. 326. § 482. Singer M. Co. v. Graham, 8 Oregon, 17. §211. Smgle V, Supervisors, 38 Wis. 36a §483. Sinnott v. WTiitechapel, 3 C. B. (N. S.) 674 § 324. Skinner v. Collector, 42 N. J. L 407. §§ 127, 128. cu CASES CITED. Skinner v. Usher, L. R 7 Q. B. 423. §§ 256, 262. V. AVilhelni, 63 Mich. 568. § 103. Skyrme v. Occidental, etc. Co. 8 Nev. 219. § 134. Slack V. Highgate Ai-chway Co. 5 Taimt. 792. § 345. V. Jacob, 8 W. Va 640. §§ 78, 82, 96, 330, 331, 332. V. Maysville, etc. R. R Co. 13 B. Mon. 22. §§ 8, 75. Slade V. Drake, Hobart, 295. § 204. Slaughter-House Cases, 16 Wall. 36. §§ 164, 370, 473. Slauson v. Racine, 13 Wis. 398. In. SUdeU T. Grandjean, 111 U. S. 412. §§ 378, 379. Shnger v. Henneman, 38 Wis. 504. gg 67, 69, 174. Sloan V. Johnson, 14 S. & M. 47. §208. V. Pacific Co. 61 Mo. 24. g 473. Smails v. White, 4 Neb. 357. § 185. Small V. EtMck, 5 Wend. 137. §§111, 112. V. Small, 18 Atl. Rep. 497. § 333. Smets T. Weatherbee, R. M. Charlt 537. § 104. Smith, Ex parte, 40 CaL 419. §§ 137, 157, 158. Smith, Ex parte, L. R. 3 Q. B. Div. 52. §333. Smith V. Adams, 5 De Gex, M. & G. 712. §§ 218, 246. V. AUen, 39 Miss. 469. § 428. V. Appleton, 19 Wis. 468. § 475. V. Arapahoe Dist. Ct. 4 Colo. 235. §165. V. Ai-gaU, 6 Hill, 479. §§ 207, 400. V. Banker, 3 How. Pr. 142. § 225. V. Bartram, 11 Ohio St. 691. §§ 184, 192. V. Bell. 10 M. & W. 378. §§ 219, 258. V. Bohler, 72 Ga. 546. §§ 93, 96. T. Brown, L. R 6 Q. B. 729. §255. Smith V. Cassity, 9 B. Mon. 192. §114. V. Causey, 28 Ala. 568. g 208. V. Charter Oak Ins. Co. 64 Mo. 330. g 368. V. Commonwealth, 8 Bush, 108. gg 78, 82, 93, 97. V. Crittenden, 16 Mich- 152. g449. V. Dist. Court, 4 Colo. 235. g 464. V. Drew, 5 Mass. 514. §§ 325, 399. V. Dunn, 64 Cal. 164. § 119. V. Estes. 46 Me. 158. § 167. V. Gould, 4 Moore P. C. 21. § 184 v. Harris, 34 Ga. 182. § 111. T. Helmer, 7 Barb. 416. g 340. V. Hickman, Cooke, 330. g§ 138, 154. 288. V. Hoyt, 14 AVis. 252. §§ 109, 162. v. Janesville, 26 Wis. 291. § 73. - V. Judge, 17 Cal. 557. g§ 2, 5, 9, 121. T. Kernochen, 7 How. 198. g 185. V. Kibbee, 9 Ohio St 563. g 206. T. Lindo, 27 L. J. C. P. 200 ; 4 C. B. (N. S.) 395. §§ 247, 292. Y. Lockwood,13Barb.209. g§204, 825. V. LouisTille, etc. R R. Co. 62 Miss. 510. § 480. T. Madison, 7 Ind. 86. § 380. T. Mayor, etc. 34 How. Pr. 508. gjj 95, 103. T. Mitchell, Rice, 316. §§ 184, 256. V. Moflfat, 1 Barb. 65. §§ 207, 290, 360, 435, 437, 444 V. Morrison, 22 Pick. 430. § 107. V. Mumford, 9 Cow. 29. g 207. V. Nobles Co. 37 Minn. 535. § 154 V. OdeU, 1 Pm. (Wis.) 449. § 395. V. People. 47 N. Y. 330. §§ 137, 152, 153, 223, 243, 284, 324. v. Philadelphia, 81 Pa. St Sa §240. V. Randall, 3 Hill, 495. g§ 207, 400. V. RandaU, 6 CaL 47. g 246. V. Rines, 2 Sunm. 354 g 432. OASES CITED. cm Smith V. Rowles. 85 Ind 3G4. V. Smith, 17 Gratt. 545. { V. Smith, 19 Wis. 522. V. Speed, 50 Ala. 276. 151, 300. V. Spoouer, 3 Pick. 229. State, 28 Ind. 321, 402. State, 66 Md. 215. State, 14 Mo. 147. State, 1 Stew. 506. State, 17 Tex. 191. §114. §184. 256. §§ 138, §367. §§ 211, 231, §,§ 237, 332. §154. §§142,154. 5^§ 350, 352. Stevens, 82 IlL 554. g§ 207, 298, 416, 440. V. Stevens, 10 Wall 321. §§ 204, 325, 326. V. Strong, 2 Hill. 241. § 193. V. Tallapoosa. 2 Woods. 574. § 185. V. Tilly, 1 Keble. 712. ^ 310. V. Van Gilder, 56 Ark. 527. § 480. V. Waters, 25 Ind. 397. § 363. Smithee v. Garth, 33 Ark. 17. § 41. Smoot V. Fitzhugh. 9 Port. 72. § 190. V. Hart, 33 Ala. 69. § 429. Smythe v. Fiske, 23 Wall 374. §162. Sneed v. Commonwealth, 6 Dana, 339. §§ 227, 234, 237, 332, 349. Sneider v. Heidelberger, 45 Ala. 126. §476. Snell V. Bridgewater, etc. Co. 24 Pick. 296. § 254. V. Campbell. 24 Fed. Rep. 880. ^166. Snoddy v. Cage, 5 Tex. 106. § 256. Snyder v. Bauchman, 8 S. & R. 336. §342. V. Snyder, 3 Barb. 621. § 464 V. Warford, 11 Mo. 513. § 125. V, Warren, 2 Cow. 518. § 111. Society, etc. v. Wheeler, 2 Gall. 139. §§ 200, 482. Society for Propagating the Gospel v. NewHaven,8W^heat493. §§206, 472. Solomon v. Commissionei's. 41 Ga. 157. §§ 55, 229, 309. Solomons v. Freeman, 4 T. R. 557. §115. Solyer v. Romanet, 52 Tex. 562. § 29a Somerset v. Dighton, 12 Mass. 382. §§ 206, 240, 246. South v. State, 80 Ala. 617. § 469. South Carolina v. GaiUard, 101 U. S. 433. §^ 105, 464. South CaroUna R. R. Co. v. Nix, 68 Ga. 572. § 12. Southampton Bridge Co. v. Local Board of Southampton, 8 E. & R 804. g 396. Southgate v. Goldthwaite, 1 Bailey, 367. § 223. South &, North Ala. R. R. Co. v. Mor- ris. 65 Ala. 193. §§ 169, 33L V.Wood, 74 Ala. 449. §§ 296, 306. South Ottiiwa V. Perkins, 94 U. S. 26a ^i; 41, 42, 48, 53, 181, 182, 183. South war k Bank v. Commonwealth, 26 Pa. St. 446. §g 136, 138, 160, 168, 294, 300. South's Heu-s v. Hay, 3 Bibb, 522L §202. Southwestern R. R Co. v. Cohen, 49 Ga. 627. ^^ 350, 432. South-worth, Matter of, 5 Hun, 55. §156. Sovereign v. State, 7 Neb. 409. §§ 131, 132, 135. Spackman, Ex parte, 1 IMacn. & G. 170. ^§219, 268. Spangler v. Jacoby, 14 IlL 279. §§ 41, 43, 48, 462. Sparhawk v. Sparhawk, 116 Mass. 315. § 176. Sparks v. Clapper, 30 Ind. 204. § 206. Sparrow v. Commissioner of Land Office, 56 Mich. 567. § 170. V. Davidson CoUege, 77 N. C. 35. §252. V. Strong, 3 Wall. 97. § 298. Spalding v. ^Uford, 1 Pick. 33. §g 107. 137. v. Lowell, 23 Pick. 71. § 381. Speckert v. Louisville, 78 Ky. 287. §§ 164, 166. Speed v. Crawford, 3 Met (Ky.) 207. §26. OIT CASES CITED. Speer v. Mayor, etc. 42 Alb. L. J. 232. §47. V. Plank R. Co. 22 Pa, St 376. §g 46, 51. V. School Dii-ectors, 50 Pa. St 150. §§ 331, 332. Spence v. McGowan, 53 Tex 30. §§ 392, 393. Spencer's Case, 6 Coke, 9b. § 424. Spencer v. McBride, 14 Fla. 403. §§479,482. V. Metropolitan Board, L. R 22 Ch. Div. 162. § 246. V. State, 5 Ind. 41. §§ 136, 234 Spensley v. Lancashire Ins. Co. 54 Wis. 433. § 305. Spieres v. Parker, 1 T. R 141. § 222. Spooner v. Fletcher, 3 Vt 133. § 422. Sprague v. BirdsaU, 2 Cow. 419. §366. Sprecher v. Wakeley, 11 Wis. 432. §476. Spring Sti-eet, Ee, 112 Pa St 258. §204. Spring V. CoUector, 78 EL 101. §§ 223, 267. Springfield v. Commissioners, 6 Pick. 501. § 165. ^ Conn. R R Co. 4 Cush. 63. §388. Springfield Bank v. Merrick, 14 Mass. 322. § 336. ' Sprmg Valley Wat Works v. San Mateo W. Works, 64 Cai 123. §387. Bprott V. United States, 20 WaE 459 ; 8 Ct of CI. 499. § 20. Sprowl V. Lawrence, 33 Ala. 674. g§ 246, 302, 410, 418, 437. Squires' Case, 12 Abb. Pr. 38. § 232. Staats V, Hudson River R. R. Co. 4 Abb. App. Dec. 287. § 151. Stacy V. Vermont, etc. R R Co. 32 Vt 551. § 320. Stafford v. Bank, 16 How. 135. §454. V. Canal & Banking Co. 17 How. 283. §454. V. His Creditors, 11 La Ann. 470. §156. Stafford v. Ingersol, 3 Hill, 38. §§ 202, 399. V. Mayor, etc. 7 John. 541. § 391. Stanberry v. Nelson, Wright (Ohio), 766. § 306. Stange v, Dubuque, 62 Iowa, 303. §§ 129, 130. Stemland v. Hopkins, 9 M & W. 178. §267. Stanley v. Bolt, 5 Wall 119. g 194 V. Wharton, 9 Price, 301. §§ 208, 360. Staples V. Fox, 45 Miss. 667. §§ 392, 398. Starin v. Town of Genoa, 23 N. Y. 439. §75. Starr v. Camden, etc. R R Co. 24 N. J. L. 592. § 388. State V. Absence, 4 Porter, 397. § 334 V. Acufif, 6 Mo. 54 § 260. V. Adams, 64 N. H. 243. § 402. V. Adams, 51 N. H. 568. § 231. V. Addington, 2 Bailey, 516. § 166. V. Ah Sam, 15 Nev. 27. § 86. V. Alexander, 14 Rich. 247. §§ 138, 142, 143. V. Algood, 87 Tenn. 163. §§ 132, 330. V. Andrews, 20 Tex. 230. §§ 133, 137. V. Arlin, 39 N. H. 179. § 470. V. Atherton, 19 Nev. 332. § 9a V. Atkins, 35 Ga 319. § 239. V. Atft-ood, 11 Wis. 422. § 206. V. Auditor, 41 Mo. 25. § 206. V. Aulman, 76 Iowa, 624. § 97. V. Babcock, 21 Neb. 599. § 28a V. Baker, 47 Miss. 95. § 355. V. Baldwin, 45 Conn, 134 §§ 133, 134 137, 16a V. Baltimore County, 29 Md. 516. §§ 120, 198. V. Baltimore, etc. R R Co. 12 Gill & J. 399. §^ 283, 288. V. Bank, 1 S. C. 6a § 478. V. Bank, 12 Rich. L. 609. §§ 104, 166. V. Bank of ]\Id. 6 Gill & J. 205. g385. CASES CITED. CV St&te V. Bank of Newbern, 1 Dev. & Bat Eq. 219. § 381. V. Bank of Smj-rna, 3 Hoiist 99. §364. V. Barbee, 3 IncL 258. § 117. V. Barker, 4 Kan. 379. § 472. V. Barrow, 30 La An^ pt 1, 657. §147. V. Bartlett 30 Me. 132. § 355. V. Bavim, 33 La. Ann. 981. §§ 96, 103. V. Beasley, 5 Mo. 91. § 260. V. BeU, 3 Ired, L. 506. § 288. V. Belvidere, 25 N. J. L. 563. §157. V. Beneke, 9 Iowa, 203. § 67. V. Benjamin, 2 Oregon, 125. §143. V. Bentley, 23 N. J. L. 532. § 378. V. Bergen, 34 N. J. L. 438. § 198. V. Berry, 25 Mo. 355. § 206. V. Berry, 12 Iowa, 58. § 202. V. Beswick, 13 R L 211. § 154 V. Blair, 32 Ind. 313. § 429. V, Board, etc. 26 Ind. 522. §§ 86, 92. V. Boogher, 71 Mo. 631. § 142. V, Bosworth, 13 Vt 402. § 312. V. Bowen, 16 Kan. 475. § 299. V. Bowei-s, 14 Ind. 195. §§ 88, 92. V. Boyd, 19 Nev, 43. § 129. V. Boyd, 3 GiU & J. 374 §§ 411, 423. V. Boyle, 10 Kan. 113. §§ 167, 226. V. Bradford, 36 Ga. 422. §§ 206, 463, 481. V. Brandt, 41 Iowa, 593. §§ 2p2, 260. V. Branin, 23 N. J. L. 484. § 157. V. Brassfield, 81 Mo. 151. §§ 84, 98. V. Brewer, 22 La. Ann. 273. §§ 166, 255, 256. 'v. Brewster, 3 Am. & Eng. Corp. Gas. 551. § 133. T. Brewster, 39 Oliio St 653. §g 123, 132. V. Brookover, 22 W. Va. 214. §165. State V. Brown, 3 Heisk. 1. § 267. V. Brown, 31 Me. 522. § 354 V. Brown, 19 Fla. 563. § 169. V. Brown, 30 La Ann. 78. § 482. V. Bruner, 17 Mo. App. 274 §306. V. Buchanan Co. Ct 41 Mo. 254 § 419. V. Buckley, 54 Ala 599. §§ 41, 43, 48. V. Buckman, 18 Fla 267. §§ 236, 237. V. Burnett, 6 Heisk. 186. § 124 V. Burton, 11 Wis. 50. § 137. V. Cain, 8 W. Va 720. § 135. V. California ^lio. Co. 15 Nev. 234. § 122. V. Campbell, 44 Wis. 529. §§ 134, 154 166. V. Canterbmy, 28 N. H. 195. §§231, 402. V. Canton, 43 Mo. 48. § 349. V. Carney, 20 Iowa, 82. § 449. V. Cassidy, 22 Minn. 325. §§ 83, 88. V. Cazeau, 8 La Ann. 109. §§ 210, 212, 213. T. Chamberlin, 37 N. J. L. 38& §174 V. Chambers, 93 N. C. 600. §§ 193, 198. v. Chase, 5 H. & J. 303. §§ 310, 311. V. Chase, Governor, 5 Ohio St 528. §432. V. Cincinnati, 19 Ohio, 197. § 137. V. Cincinnati Gas Liglit Co. 18 Ohio St 262. §§ 378, 383, 384. T. Clark, 5 Dutcher, 96. § 2ia T. Clark, 57 Mo. 25. § 255. V. Clark, 54 Mo. 216. ^§ 153, 28a V. Clarke, 54 Mo. 17. §§ 169, 170, 235. V. Clarksville, etc. Co. 2 Sneed, 88. Jji; 241, 247, 254. V. Clevelaml. 80 Mo. 108. § 306. T. Click, 2 Ala 26. §§ 104, 448, 452. CVl CASES CITED. '* State V. Clinton, 37 La, Ann. 40. §§ 87, 94 V. Clinton, 28 La. Ann. 201. § 170. V. Cloksey, 5 Sneed, 482. § 300. V. Cole, 2 McCord, 117. § 454. V. Commissioner, 37 N. J. L. 240. §140. V. Commissioners, 41 Kan. 630. §90. V. Commissioners, 5 Ohio St. 497. §176. V. Commissioners, 38 N. J. L. 320. §§ r~K 180. V. Commissioners, etc. 4 Wis. 414. §472. V. Commissioners, etc. 34 Wis. 162. ij 240. V. Commissioner of R. R. Taxa- tion, 37 N. J. L. 228. § 287. V. Conklin, 34 Wis. 21. § 267. V. Conkling, 19 Cal. 501. §§ 154, 168, 204. V. Cook, 20 Ohio St. 252. § 811. V. Cooke, 24 Minn. 247. §§ 72, 75. V. Cooler, 8 S. E. Rep. 692. §§ 469, 470. V. Cooper, 5 Blackf. 258. § 331. V. Copeland, 3 R. L 33. §§ 67, 180. V. Cordoza, 5 S. C. 297. § 330. V. Corson, 59 Me. 137. § 469. V. Corwin, 4 Mo. 609., §§ 204, 325. V. County Commissioners, 17 Nev. 96. §g 88, 97. V. Countj' Commissioners, 29 Md. 516. § 449. V. County Comt, 50 Mo. 317. §117. V. County Court, 53 Mo. 128. §137. V. Coimty Judge, 2 Iowa, 282. §§ 78, 82, 87, 88. V. County of Dorsey, 28 Ark. 378. § 183. V. Court Com. Pleas, 36 N. J. L. 72. g 75. V. Courtupy. 73 Iowa, 619. § 155. V. Covington, etc. 29 Oliio St. 102. §§ 80, 81. State V. Craig, 23 Ind. 185, § 142. V. Cram, 16 Wis. 343. § 286. V. Crawford, 11 Kan. 32. §§ 167, 22G. V. Crawford, 35 Ark. 237. §§ 41, 49. V. Crawley, 33 La. Ann. 782. g§ 103, 170. V. Cross, 4 Jones (N. C), 421. §166. V. Cross, 68 Iowa, 180. § 184 V. Cross, 38 Kan. 696. § 135. V. Cumberland & Penn. R R Co. 40 Md. 22. § 122. V. Custer, 65 N. C. 339. § 252, V. Daley, 29 Conn. 272. §§ 142, 164, 166. V. Dalon, 35 La. Ann. 1141. §§ 103, 120, 170. V. Daniel, 28 La. Ann. 38. § 88. V, Davis, 22 La, Ann. 77, § 257. V. Davis, 70 Md. 237. § 160. V. De Bar, 58 Mo. 395. § 157. V. De Gress, 53 Tex, 387, § 322. V, Desliler, 25 N, J, L. 177, § 248. V, Dews, R M, Charlt 400. §§ 5, 11. V. Dexter, 10 R. L 341. § 5. V. Doherty, 60 Me. 504 § 206. V. Dombaugh, 20 Ohio St. 173. §331. V. Donehey, 8 Iowa, 396. § 109. V. Douglass, 33 N, J, L. 363. §225, V. Douglass, 5 Sneed, 608. §§ 222, 300. V. Dousman, 28 Wis. 541. §§ 118, / 130, 176. V. Dudley, 2 Oliio St. 607. § 151. V. Dulfy, 7 Nev. 342. §§ 119, 120. V, Duke, 42 Tex. 455, § 173, V, Duueau, 16 Lea, 79. § 143. V. Dunning, 9 Incl 20, §§ 108, 1C9, 345, V. Easton, etc. R. R Co. 36 N. J. L. 181. § 388. V. EUzabeth, 40 N. J. L. 27a §170. V. Elvins, 32 N. J. L. 362. § Sa CASES CITED. evil State V. Engle, 21 N. J. L. 347. § 233. V. Eskridge, 1 Swan, 413. §g 223, 328, 343. V. Exuicios, 83 La. Ann. 253. §§ 103, 170. V. Fagau, 22 La Ann. 545. §§ 55, 330. V. Fiala, 47 Mo. 320. § 157. V. Field, 17 Mo. 529. § 69. V. Fields, 2 BaUey, 554. § 332. V. Fitzporter, 17 Mo. App. 271. § 157. V. Fletcher, 5 N. H. 257. § 333. V. Fletcher, 1 R L 193. § 166. V. Foote, 11 Wis. 14. §§ 54, 106, 109. V. Forney, 21 Neb. 223. § 267. V. Francis, 26 Kan. 724 g§ 41, 43, 46, 48. V. Frederick, 45 Ark. 347. § 306. V. Gaines, 1 Lea, 734. § 135. V. Garland, 7 Ired. L. 48. § 333. V. Garrett, 29 La. Ann. 637. g§ 87, 88, 89, 101. V. Geiger, 65 Mo. 306. § 135. V. Gillick, 7 Iowa, 287. § 449. V. Gilman, 33 W. Va. 146. § 370. V. Glenn, 18 Nev. 39. §§ 35, 51. V. Goetze, 22 Wis. 363. §§ 158, 217, 222. V. Goyette, 11 R. L 592. § 303. V. Grady, 34 Conn. 118. §§ 142, 143. V. Graham, 16 Neb. 74. § 129. V. Graham, 38 Ark. 519. § 350. V. Guniber, 37 Wis. 298. §§ 134, 142, 166, 167. V. Gupton, 8 Ired. 271. § 254. V. Haygood, 13 S. C. 46. §§ 41, 45. V. Hall, 2 Bailey, 151. g 356. V. Hallock, 14 Nev. 202. § 137. V. Hainbliu, 4 Rich. (N. S.) 1. t5§ 142. 143. V. Hammer, 42 N. J. L. 435. §127. V. Hammett, 7 Ark. 492. § 298. V. Hanger, 5 Ark. 412. S HO- V. Harkness, 1 Brev. 276. g 223. State V.Harris, 17 Ohio St 608. §§447, 449. V. Harrison, 11 La. Ann. 722. §98. V. Haskell Co. 40 Kan. 65. § 94 V. Hastings, 24 Minn. 78. §§ 41, 40. 183. V. Hayes, 78 Mo. 307. § 303. V. Haynes, 72 Mo. 377. § 345. V. Hays, 49 Mo. 604 § 330. V. Heidorn, 74 Mo. 410. § 161. V. Helmes,3 N. J. L. *1050. § 198. V. Heman, 70 Mo. 441. §§ 235, 260. V. Herrmann, 75 Mo. 340. g 129. V. Hey ward, 3 Rich. 389. § 473. V. HUmantel. 21 Wis. 566. § 459. V. Hinchman, 27 Pa. St 479. §294 V. Hitchcock, 1 Kan. 186. §§ 55, 117. V. Hoagland, 51 N.J. L. 62. § 127. V. Holman, 3 McCord, 306. § 279. V. Horner. 34 ^Id. 569. § 449. V. Horsey, 14 Ind. 185. §§ 142, 143. V. Hudson County, 37 N. J. K 12. §67. V. Hurds, 19 Neb. 317. §§103, 170. V. IngersoU, 17 Wis. 631. §§ 133, 137, 154 166. V. Intoxicating Liquoi-s, 19 AtL Rep. 913. § 332. V. Intoxicating Liquors, 73 Ma 278. § 296. V. Jackson, 39 ^le. 291. § 193. V. Jaeger, 63 Mo. 403. § 325. V. Jeruigan, 3 Murph. 18. § 259. V. Johnson, 26 Ark. 281. § 66. V. Jones, 22 Ark. 331. § 397. V. Judge, 12 La. Ann. 777. §§ 240, 300. V. Judge, 14 La, Ann. 486. §§ 109, 137. V. Judge, 29 La. Ann. 223. § 26. V. Judge, 37 La. Ann. 578. § 155. V. Judge Bermudez, 12 La. 353. §463. CVIU CASES CITED. State V. Judge of St Louis P. Ct. 38 Mo. 529. § 157. V. Judges, 21 Ohio St. 1. §§ 121, 122, 193, 198. V. Kalb, 50 Wis. 178. § 473. V. Kantler, 33 Minn. 69. § 169. V. Keith, 63 N. C. 140. § 467. V. KeUey, 34 N. J. L. 75. g§ 140, 147, 154. V. Kellogg, 41 Mo. 16. § 153. V. Kempf, 69 Wis. 470. § 384 V. King, 12 La. Ann. 593. g 166. V. King, 44 Mo. 283. §g 218, 223, 244. V. Kinne, 41 N. H. 238. § 333. V. Ki-ebs, 64 N. C. 604. § 381. V. Lancaster Co. 17 Neb. 87. § 103. V. Lasater, 9 Baxt 584. §§ 78, 82, 88. V. Lean, 9 Wis. 284 §§ 110, 193. V. Learned, 47 Me. 426. § 469. V. Lewis, 5 Mo. A pp. 465. § 159. V. Liedtke, 9 Neb. 462. § 45. V. Little Rock, etc. R. R. Co. 31 Ark. 701. § 41. V. Loftin, 2 Dev. & Bat. 31. § 325. V. Long, 78 N. C. 571. § 166. V. Lorell, 23 Iowa, 304 §§ 350, 351. V. Loyd, 3 Ind. 659. § 166. V. McCann, 4 Lea, 1. §§ 80, 103. V. McCann, 21 Oliio St 198. §119. V. McConnell, 3 Lea, 332. §§ 46, 88, 93, 96, 97. V. McCoy, 2 Speers, 711. § 252. V. McCracken, 42 Tex. 383. §§ 80, 260. V. Mace, 5 Md. 337. §§ 253, 397. V. McFetridge, 64 Wis. 130. § 364. V. McGarry, 21 Wis. 496. § 273. V. McLean, 9 Wis. 292. § 455. v. McLeUand, 18 Neb. 236. §§ 41, 43, 46, 294 V.Macon Co. Ct 41 Mo. 453. §§ 137, 202. V. Madison, 15 Wis. 30. g 475. V. Madson, 45 N. W. Rep. 856. §101. State V. Mann, 21 Wis. 684 § 240. V. Manning, 14 Tex. 602. § 469. V. Marsh, 37 Ark. 356. § 169. V. Marshall, 13 Tex. 55. § 356. V. Massey, 103 N. C. 356. § 142. V. ]\Tayhew, 2 Gill, 487. § 307. V. Maynard, 14 IlL 419. § 395. V. M;iyor, 5 Port 279. § 380. V. Mayor, 35 N. J. L. 196. §§ 239, 240, 247. V. Milbum, 9 Gill, 105. § 333. V. Miles, 2 Nott & McCord, 1. §252. V. Miller, 58 Ind. 399. § 143. V. Miller, 30 N. J. L. 368. § 159. V. Miller, 23 Wis. 634 § 342. V. Miller, 45 Mo. 495. §§ 76, 80, 82, 88, 92. V. Mills, 34 N. J. L. 177. §§ 157, 364. V. Mister, 5 Md. 11. § 283. V. Mitchell, 31 Ohio St 592. § 129. v. IVIitchell, 5 Ired. L. 350. § 252. V. Montclair R'y Co. 35 N. J. L. 328. § 388. V. Mooty, 3 HiU (S. C), 187. § 283. V. Morrill, 16 Ark. 384. § 342. V. Morris Canal, etc. Co. 13 N. J. L. 192. § 421. V. Morrow, 26 Mo. 131. §§ 147, 327. V. Myers, 10 Iowa, 448. § 252. V. Newark, 28 N. J. L. 491. § 140. V. Newark, 3 Dutch. 185. § 206. V. Newark, 25 N. J. L 399. § 164 V. NcAvark, 34 N. J. L. 236. ^ 88, 101. V. Newton, 59 Ind. 173. §§ 169, 170. V. Nicholls, 30 La. Ann. 980. §300. V. Northern, etc. R'y Co. 18 Md. 193. § 397. V. Norton, 23 N. J. L. 33. §§ 139, 290. V. Norwood, 12 Md. 195. §§ 164, 463. V. Noyes, 47 Me. 189. §§ 345, 473. V. Noyes, 30 N. H, 279. § 75. CASES CITED. ClI State V. Nutt, PliU. L. 20. § 166. State V. Rollins, 8 N. H. 550. §§ 15, V. O'Conner, 13 La. Ann. 486. ICH. §166. V. Rorie, 23 Ark. 726. g 352. V. O'NeiU, 24 Wis. 149. §§ 73, 75. V. Rosen-stock, 11 Nev. 128. § 170. V. Oskins, 28 Ind. 364. g 229. V. Ross, 49 Mo. 416. gg 167, 226. V. Parker, 91 N. C. 650. § 333. V. Russell, 17 Mo. Apj). 16. g 306. V. Parker, 20 Vt. 362. §g 67, 73. V. Ryan, 13 Minn. 370. g 469. V. Parkhm-st, 9 N. J. L 427. T. S. & S. Orphan Home, 37 Ohio §169. St 275. §231. V. Partlow, 91 N. C. 550. § 261. V. Schnierle, 5 Rich. L. 299. V. Patterson, 2 IrecL L. 346. gill. §§ 184, 189. V. Scliool Board Fimd, 4 Karu V. Pearcy, 44 Mo. 159. § 159. 261. §109. V. Persinger, 76 Mo. 346. § 170. V. Scudder, 39 N. J. L. 203. g 206. V. Pierce, 14 Ind. 302. §§ 142, 143. V. Seaborn, 4 Dev. 305. § 154 T. Pierson, 44 Ark. 265. § 289. V. Severance, 49 Mo. 401. §§ 157, V. Pinckney, 22 S. C. 484. § 464. 311, 312. V. Piper, 17 Neb. 614. § 119. v. Shaffer, 21 Iowa, 486. § 226. V. Pitts, 58 Mo. 556. § 449. V. Showers, 34 Kan. 269. § 325. V. Piatt, 2 S. C. 150. §§ 41, 43, 45, V. Silver, 9 Nev. 227. g§ 78, 88, 49, 182. 102, 103. V. Pollard, 6 R. I. 290. § 155. T. Sinks, 42 Ohio St 345. §§ 176, V. Pool, 74 N. C. 402. §j^ 252, 260. 180. V. Powder Mfg. Co. 50 N.J. L. 75. V. Slaughter, 70 Mo. 484. § 16& §132. v. Slotter, 38 Iowa, 321. § 275. V. Powei-s, 36 Conn. 77. §§ 348, V. SmaUs, 11 S. C. 262. g§ 41, 44 410, 416. V. Smith, 5 Hvmiph. 394 § 247. T. Powers, 38 Ohio St 54. §§ 117, V. Smith, 38 Conn. 397. g§ 206, 123. 482. V. Poydras, 9 La. Ann. 65. g 246. V. Smith, 67 Me. 328. gg 139, 203. V. Preston, 34 Wis. 675. § 253. 449. V. Price, 12 G. & J. 260. § 306. V. Smith, 52 Wis. 134. § 253. V. Pugh, 43 Ohio St. 98. § 180. V. Smith, 46 Iowa, 670. §§ 252, V. Rackley, 2 Biackf. 249. § 153. 255. V. Ranson, 73 Mo. 78. §§ 78, 82. V. Smith, 44 Tex. 443. gg 142, V. Rauscher, 1 Lea, 96. § 124 143. V. Ray, 97 N. C. 510. § 298. T. Smith, 35 Minn. 257. g 101. V. Reader, 60 Iowa, 527. § 295. T. Sneed,25Tex.(Supp.)66. §467. V. Reed, 4 H. & McH. 10. g 213. V. Solomon. 33 Ind. 450. g 279. V. Reitz, 62 Ind. 159. g§ 124, 127. V. Solomons, 3 Hill (S. C), 96w V. Richmond, etc. R R Co. 73 gg 208, 467, 482. N. C. 527. g 473. v. Sorrells, 15 Ark. 664. g 331. T. Riordan, 24 Wis. 484 §g 117, V. Spaude, 37 Minn. 322. g 125. 118, 130. V. Squires. 26 Iowa, 345. gg 93, V. Robertson, 41 Kan. 200. g 330. 117, 129, 130,480,483. V. Robinson, 1 Kan. 17. §331. V. Standley. 76 Iowa, 215. § 12a V. Robinson, 42 Minn. 107. g 365. V. Stark, 18 Fla. 255. gg 175, 176L V. Rogers. 10 Nev. 250. §§ 65, V. State Auditor, 32 La. Ann. 8flt 154 §92. ex CASES CITED. State V. State Bank, 5 InA 356. § 453. V. Stephensou, 2 Bailey, 334. §§ 208, 210, 234, 242. V. Sterling, 8 Mo. 697. § 473. V. Stiuson, 17 Me. 154. § 152. V. StoU, 17 Wall. 425. g§ 154, 157. V. Stumpf, 23 Wis. 630. § 459. V. Stunkle, 41 Kan. 456. § 95. V. Sturgess, 10 Oregon, 58. § 157. V. Stiidt, 31 Kan. 245. § 154. V. SuUivan, 14 Rich. L. 281. § 469. V. Supervisors, 25 Wis. 339. §§ 117, 118, 130. V. Supervisors, 62 Wis. 376. § 179. V. Swift, 10 Nev. 176. §§ 35, 183. V. Swisher, 17 Tex. 441. § 67. V. Swope, 7 Ind. 91. § 333. V. Taylor, 35 N. J. L. 184. § 362. V. Tliompson, 10 La. Ann. 122. §314 V. Tombeckbee Bank, 2 Stew. 30. §473. V. Tootle, 2 Harr. 541. § 298. V. Towle, 48 N. H. 97. § 438. V. Town of Union, 33 N. J. L. 350. §§ 78, 82, 86, 87, 88, 483, 484 V. Treasurer, 41 Mo. 16. § 157. V. Trenton, 38 N. J. L. 64 g§ 217, 225, 325. V. Timme, 54 Wis. 318. § 229. V. Troutman, 72 N. C. 551. § 146. V. Tucker, 46 Ind. 355. §§ 82, 85, 96, 97, 117, V. Turnpike Co. 16 Ohio St 308. §§ 240, 246, 260, 267. V. Tuttle, 53 Wis. 45. §g 169, 170. V. Twitty, 2 Hawkes, 441. § 190. V. Union Bank, 9 Yerg. 164 § 336. V. Upchurch, 9 Ired. 454 § 208. V. Van Stralen, 45 Wis. 437. §§ 134 166. V. Vicksbuig, etc. R. R. Co. 51 Miss. 361. § 237. V. Wapello Co. 13 Iowa, 388. §314 V. Wardens, 23 La. Ann. 720. §§ 95, 102, 103. State V. Warren, 28 Md. 338. § 164 V. Washington Social L. Co. 11 Oliio, 96. § 385. V, Washoe Co. 6 Nev. 104 § 238. V. Watts, 23 Ai-k. 304 §§ 138. 143. V. Weigel, 48 Mo. 29. §§ 315, 239, 246. V. Weir, 33 Iowa, 134 §§ 67, 72. V. Welch, 21 Minn. 22. § 193. V. Wheeler, 64 Me. 532. § 115. V. Wheeler, 25 Conn. 290. §§ 169, 170. v. Whetstone, 13 La. Ann. 376. §§ 208, 290. V. Whisner, 35 Kan. 271. § 56. V. Whitener, 93 N. C. 590. § 253. V. Whitworth, 8 Lea, 594 §§ 88, 93, 95. V. Whitworth, 8 Port. (Ala.) 434 §§ 142, 154 V. Wilbor, 1 R. I. 199. § 138. V. Wilcox, 42 Conn. 364 §§ 72, 75. V. Wilcox, 45 Mo. 458. §§ 67, 120, 124, 125, 127. V. Wilcox, 3 Yerg. 278. § 349. V. WiUiams, 5 Wis. 308. § 298. V. WiUiams, 13 S. C. 558. § 288. V. WiUiams, 8 Ind. 191. § 221. v. WUliams, 2 Stiob. 474 § 379. V. WilUs, 66 Mo. 131. § 470. V. WUmington, etc. R. R. Co. 74 N. C. 143. § 206. V. Wilson, 43 N. H. 419. § 154 V. WUson, 48 N. H. 398. § 469. V. WUson, 7 Ind. 516. § 170. V. Wilson, 12 Lea, 246. §§ 88, 169. V. WUtz, 11 La. Ann. 439. §§ 126, 236, 238, 322. V. Wise, 7 Ind. 645. § 306. V. Wish, 15 Neb. 448. §§ 134, 137, 138, 142, 167. V. Wolfarth, 42 Conn. 155w §206. V. Woodson, 41 Mo. 227. § 394 V. YeweU, 63 Md. 120. § 138. V. Young, 47 Ind. 150. §§ 85, 92, 103. " V. Young, 3 Kan. 445. § 344 CASES CITED. CXI State Bank v. Cooper, 2 Yerg, 599. §§ 5, 119, 124. V. Knoop, 16 How. 369. ^'g 472, 473, 480. V. Plaiulield Bank, 34 N. J. Eq. 450. § 13. State Board of Assessors v. Central R. R Co. 48 N. J. K 146. § 122. State Lime, etc. Co.'s Appeal, 77 Pa. SL 429. §§ 88, 101. State Lottery Co. v. Richovix, 28 La. Ann. 743. §§ 31, 33. Stay ton v. Hulings, 7 Ind. 144. § 459. Steamboat Co. v. Collector, 18 Wall 478. § 137. Steamboat Farmer v. McCraw, 31 Ala, 659. § 206. Steamboat Northern Indiana v. Jlil- liken, 7 Ohio St. 383. g 80. Steamboat Ohio v. Stmit, 10 Ohio St 582. gg 371, 372. Steamer Mary Blane v. Beehler, 12 Mo. 477. §§ 111, 112, 114. Steamship Co. v. Joliflfe, 2 Wall. 450. §§ 134, 156. Stebbins v. Anthony, 5 Colo. 356. §§ 111, 112, 114. V. State, 22 Tex. App. 32. §§ 154, 155. Steckert v. East Saginaw, 22 Mch. 104. § 462. Steele v. Midland R Co., L. R 1 Ch. 282. § 300. V.Steele, 64 Ala. 438. §§480, 481. V. Thompson, 42 Mich. 596. § 377. Steers v. Lashley, 6 T. R 61. § 336. Stein V. Ashby, 30 Ala. 363. § 320. V. Leeper, 78 Ala. 517. g§ 41, 48, 45, 78, 86, 91. Steiner v. Coxe, 4 Pa. St 13. § 311. Stephen v. State, 11 Ga. 225. § 306. Stephens v. Ballon, 27 Kan. 594. §§ 137, 138, 151. V. Robinson, 2 Cromp. & J. 209. §335. V. Watson, 1 Salk. 45. § 325. Stephens Co. v. R R Co. 88 N. J. L. 229. § 198. Stephenson v. Doe, 8 Blackf. 508. §§ 165, 193, 424. V. Higginson, 3 H. of L. Cas. 638. §§ 219, 254. V. Osborne, 41 Miss. 119. § 164 Stetson V. Kemi)ton, 18 Mass. 272. §380. Stevens v. Andrews, 31 Mo. 205. §478. V. Bomar, 9 Humph. 546. § 295. V. Brown, 20 W. Va. 450. § 12. V. Cheney, 36 Hun, 1. § 873. V. Fassett, 27 Me. 266. § 234. V. Gourley, 7 C. B. (N. S.) 99. §459. V. Ross, 1 Cal. 94. § 388. V. State, 2 Ark. 291. § 370. Steward v. Greaves, 10 M. & W. 712. §§ 145, 152, 202, 204. Stewart v. Commonwealth, 10 Watts, 307. § 367. V. Davidson, 10 Sm. & M. 35L §480. V. Griffith, 33 Mo. 13. § 194 V. Keemle, 4 S. & R 72. § 324. V. Stringer, 41 Mo. 400. §§ 290, 394. V. Swanzy, 23 Miss. 502. § 190. Stickworth, Estate of, 7 Nev. 22a §164 Stief V. Hart, 1 N. Y. 20. §§ 341, 343. Stiefel V. Marj-land Institute, 61 Md, 144 §§ 87, 170. Stiles V. Easley, 51 111. 275. § 368. Stillman v. Isham, 11 Conn. 123. § 42a Stimpson v. Pond. 2 Curtis, 502. § 325. Stine V. Bennett 18 Minn. 153. §§107, 108, 206, 345. Stingle V. Nevel, 9 Oregon, 62. § 133. Stinson v. Smith, 8 Minn. 366. § 57. Stirman v. State, 21 Tex. 734. § 154 Stockett V. Bird, 18 Md. 484. §g 153, 158, 159, 215, 216, 428. Stocking V. Hunt 3 Denio, 274 §§ 164, 476. Stockle V. Silsbee, 41 Mich. 616. § lOa Stoddard v. Sloan, 65 Iowa, 680. § 29a Stoever v. Immell, 1 Watts, 25a §§ 11, 105, 106. cxu CASES CITED. Stokes V. Macken, 63 Barb. 145. g§ 181, 184, 189. V. People, 53 N. Y. 164. § 469. V. Rodman, 5 R I. 405. § 206. Stone V. Bassett, 4 Minn. 298. § 478. V. Dickinson, 5 Allen, 59. § 377. V. Lannon, 6 Wis. 497. § 358. V. aiississippi, 101 U. S. 814. §473. V. Stone, 1 R L 425. § 275. V. Yeovil, L. R 1 C. R Div. 691. §§ 240, 324. V. Wisconsin, 94 U. S. 181. § 185. Storm V. Cotzhausen, 38 Wis. 139. g283. Story V. Furman, 25 N. Y. 214. §§474, 476. Stougliton V. Baker, 4 Mass. 522. ^ 333. Stourbridge Canal v. Wheeley, 2 Barn. & Ad. 792. § 378. Stout V. Keyes, 2 Doug. (Mich.) 184. § 184. Stowell V. Zouch, 1 Plowd. 361. §§ 222, 253, 290. Strader v. Graham, 10 How. 82. § 197. Stradling v. Morgan, 1 Plowd. 206. §204. Straight v. Crawford, 73 Iowa, 676. §138. Straus V. Eagle Ins. Co. 5 Ohio St 59. §381. Strauss v. Heiss, 48 Md. 292. §§ 110, 139, 160. Street v. Commonwealth, 6 Watts & S. 209. §§ 138, 139. Streissguth v. Reigehnan, 71 Wis. 212. § 393. Streubel v. Milwaukee, etc. R. R Co. 12 Wis. 67. § 164 Sti-iker v. KeUy, 7 Hill, 9. §§ 63, 390, 452. V. KeUy, 2 Denio, 323. § 390. Strode v. Stafford Justices, 1 Brock. 162. §§ 215, 239, 241. Strong V. Birchard, 5 Conn. 357. § 251. V. Clem, 12 Ind. 639. § 206. V. Darling, 9 Ohio, 201. § 336. Strong V. Dennis, 13 Ind. 514. § 206. V. State, 1 Blackf. 193. § 470. Strother v. Hutchinson, 4 Bing. N. C. 83. § 413. Stuart V. Earl of Butte, 3 Ves. 212. §§ 246, 276, 279. V. KinseUa, 14 Minn. 525. §§ 88, 103. V. Lau-d, 1 Cranch, 299. §§ 307, 309, 311. Studley v. Sturt, 2 Strange, 782. § 115. Stump V. Napier, 2 Yerg. 35. § 184. Sturgeon v. State, 1 Blackf. 39. § 325. Sturges V. Crowninshield, 4 Wheat. 202. §§ 236, 238, 322, 471, 476, 478. Sturgis V. HuU, 48 Vt. 302. § 206. Suche, In re, 1 Ch. Div. 48. § 206. Suckley v. Rotchford, 12 Gratt 60. §342. Suffolk Bank v. Worcester Bank, 5 Pick. 106. § 358. Sulhvan's Api^eal, 77 Pa. St. 107. §272. SulUvan v. Adams, 3 Gray, 476. § 137. V. Brewster, 1 E. D. Smith, 681. §476. v. Hense, 2 Colo. 424. § 296. V. La Crosse, etc. P. Co. 10 Minn. 386. § 290. V. MitcaKe, L. R 5 C. P. Div. 455. §249. V. Oneida, 61 lU. 242. § 469. V. People, 122 IlL 385. § 295. V. People, 15 lU. 233. § 138. Smnner v. Miller, 64 N. C. 688. § 482. Sumter Co. v. Gainesville Nat. Bank, 62 Ala. 464. §§ 174. 180. Sunbmy, etc. R R Co. v. Cooper, 33 Pa. St. 278. § 330. Sun Mut Ins. Co. v. Mayor, 8 N. Y. 241 ; 5 Sandf. 10. §§ 78, 88, 95. Supervisors v. Auditor-General, 65 Mich. 408. § 95. V. Auditor-General, 68 Mich. 659. §102. V. Board of Commissioners, 12 Minn. 403. §§ 150, 153. V. Briggs, 3 Denio, 173. § 164. CASES CITED. CXIU Supervisors v. Heenan, 2 ^linn. 330. §§ 29, 41, 43, 45, 80, 92, 97, 181, 294. V. Kaiine, 39 Wis. 468. § 453. V. Lackawaua I. & C. Co. 93 U. S. 619. § 138. V. People, 25 IlL 181. §§ 46, 96, 462. V. Schenck, 5 WalL 772. § 429. V. Stanley, 105 U. S. 305. § 171. V. United States, 4 WalL 446. §462. V. United States, 18 WalL 71. §§ 185, 319. Surgett V. Lapice, 8 How. 48. §§ 307, 308. Surlott V. Pratt, 3 A. K. Marsh. 174 §184. Surtees v. Ellison, 9 B. & C. 750. §162. Sussex Peerage Case, 10 CL & Fin. 85. §§ 190, 219, 234, 237, 247. Sutherland v. De Leon, 1 Tex. 250. §§ 212, 481, 482. Sutterly v. Camden Common Pleas, 41 N. J. L. 495. § 127. Sutton V. Chenault, 18 Ga. 1. § 480. V. Hays, 17 Ark. 462. § 286. V. Sutton, L. R 22 Ch. Div. 511. §§ 213, 233. Swan V. Blair, 3 CL & F. 632. § 336. Swann v. Buck, 40 Miss. 268. §§ 34, 61, 62, 63, 64, 107, 138, 141, 154, 204, 215, 241. V. Jenkins. 82 Ala 478. §§ 379, 393. Swans, Case of, 7 Coke, 82. § 305. Swartwout v, Mich. Cent R R Co. 24 Mich. 389. §§ 101, 135, 239, 241. Swayze v. Britton, 17 Kan. 625. § 95. Swepston v. Barton, 39 Ark. 549. §450. Swett V. Sprague, 55 Me, 190. § 114. Swickard v. Bailey, 3 Kan. 507. §479. Swift's Appeal, 111 Pa. St 516. § 324. Swift V. Applebone, 23 Midi. 252. §208. Swift V. Luce, 27 Ma 285. §§ 234, 431, 432. V. Newport, 7 Bush, 37. §§ 101, 136. V. Tyson, 16 Pet 1. §§ 246, 429. Swift Courtney, etc. Co. v. United States, 14 Ct of CL 481. § 309. Swigert. Matter of, 119 ILL 83. § 272. Swiutiu V. Lowry, 37 M inn. 345. § 375. Sydnor v, Gascoigne, 11 Tex. 455. §314. Sykes v. People, 127 HL 117. § 95. Syracuse Bank v. Davis, 16 Barb. 188. §164. Syracuse Savings Bank v. Seneca Falls, 86 N. Y. 317. § 133. Tabor v. Cook, 15 Mich. 322. § 332. Tackett v. Volger, 85 Mo. 480. § 395. Tadlock v. Eccles, 20 Tex. 782. §§ 78, 80. Tafova v. Garritt, 1 New Mex. 486. §154 Taggart v. McGinn, 14 Pa. St 155. §10. Talbot v. Seeman, 1 Cranch, 38. § 190. Tallamon v. Cardenas, 14 La. Ann. 509. § 168. Tallman v. Syracuse, etc. R R Co. 4 Keyes, 128. § 442. Talmadge v. Coal, etc. Co. 3 Head, 337. §378. Tankersley v. Richardson, 2 Stewart; 130. § 439. Tappan v. Campbell, 9 Yerg. 436. §184. Tappen, Matter of, 36 How. Pr. 390. §§ 87, 102. Tarlton v. Briscoe, 4 Bibb, 73. § 184. V. Peggs, 18 Ind. 24. § 104. Tarver v. Commissioners' Court, 17 Ala. 527. § 462. Tate V. Stoltzfoos, 16 S. & R 35. §483. Taunton v. St James, 9 B. & C. 831. § 222. Tayloe v. Thompson, 5 Pet 35a §319. CXIV CASES CITED. Taylor v. Bank of Illinois, 7 T. B. Mon. 576. § 190. V. Boardman, 25 Vt 581. g 297. V. Carroll, 145 Mass. 95. g 373. V. Corbiere, 8 How. Pr. 385. §115. V. Crowland Gas Co. 10 Ex. 293. §335. V. Graham, 18 La. Ann. 656. § 298. V. Keeler, 30 Conn. 324. § 206. V. Chandler, 9 Heisk. 349. § 124. V. McGill, 6 Lea, 294. §§218,411. V. MitcheU, 57 Pa. St. 209. § 206. V. Newman, 4 B. & S. 89. §§ 210, 355. V. Oldham Corporation, L. E. 4 Ch. Div. 395. §§ 159, 212, 217. V. Pahuer, 31 Cal. 240. §§ 115, 215, 239, 240, 241. V. Penn. Co. 78 Ky. 348. § 14. V. Place, 4 R. I. 324. §§ 3, 4, 10. V. Porter, 4 Hill, 146. § 5. V. Eountree, 15 Lea, 725. § 463. V. Rushing, 2 Stew. (Ala.) 160. §164. V. St Helens, L. R. 6 Cli. Div. 264. §878. V. State, 26 Ala 283. §§ 104, 106. V. State, 7 Blackf. 93. g§ 166, 225. V. Stearns, 18 Gratt 244. § 478. V. Taylor, 10 IVIinn. 107. §§ 300, 326. V. United States, 2 How. 197. §§ 347, 361. V. Wilkinson, L. R 4 Q. B. Div. 228. § 243. V. Williams, 78 Va. 422. § 396. Telf er v. Northern R. R. Co. 30 N. J. L. 188. § 371. Tempe v. State, 40 Ala 350. § 167. Temple v. Hays, Morris (la), 12. § 104. V. State, 15 Tex. App. 304. § 306. Templeton v. Home, 82 111. 491. §§ 164, 206. V. Morgan, 16 La Ann. 438. § 299. Tennant's Case, 3 Neb. 409. § 26. Tennant v. Brookover, 12 W. Va 337. §482. Tennessee v. Davis, 100 U. S. 251. §21. V. Sneed, 96 U. S. 69. §g 471, 476, 478. Terrett v. Taylor, 9 Cr. 43. § 472. Terrill v. Jennings, 1 Met. (Ky.) 450. §444 Territory v. Lee, 2 Mont 124. § 25. V. O'Connor, 41 N. W. Rep. 746. §330. Territt v. Woodruff, 19 Yt 182. §184. Terry v. Merchants' & Planters' Bank, 66 Ga 177. § 298. Teter v. Clayton, 71 Ind. 237. § 168. Tetzner v. Naughton, 12 111 App. 148. §374. Tewksbm-y v. Schulenberg, 41 Wis. 584. § 405. Texas v. White, 7 Wall 733. § 20. Texas Land Co. v. Williams, 48 Tex. 602. § 342. Thames, etc. Ins. Co. v. Hamilton, L. R. 12 App. Cas. 484. § 275. Thatcher v. Powell, 6 Wheat 119. §§ 187, 391. Tharp v. Fleming, 1 Houston, 580. §194. Thayer v. Dudley, 8 Mass. 296. §§ 288, 322. V. Felt 4 Pick. 854. § 115. V. Hedges, 22 Ind. 282. § 21. V. Seavey, 11 Me. 284. § 165. Theriat v. Hart 2 HiU, 380. § 256. Thistle V. Frostbm-g Coal Co. 10 Md. 129. § 480. Thomas v. Beckman, 1 B. Mon. 29. §184. V. Collins, 58 Mich. 64 §§ 102, 160. V. Dakin, 22 Wend. 9. § 36. V. Douglass, 2 John. Ca& 226. §112. V. Huesman, 10 Ohio St 152. §398. V. Railroad Co. 101 U. a 82. §381. V. Richmond, 12 WalL 349. § 380. V. Scott, 23 La Ann. 689. § 109. CASES CITED. cxv Thomas v. Stephenson, 3 E. & B. 108. § 433. V. Wabash, etc. R. R Co. 40 Fed. Rep. 126. § 102. Thomason, Ex parte, IG Neb. 238. ^•g 102, 103. Thomason, Ex parte, 7 Md. 151. § 170. Thomason v. Ashworth, 73 Cal. 73. § 125. V. DiU, 34 Ala. 175. § 320. Thompson v. Bassett, 5 Ind. 535. §166. V. Buckhannon, 2 Marsli. 416. §453. V. Ellison, 78 111. 277. §§ 215, 239. V. Caldwell, 3 Litt 136. § 479. V. Clay, 60 Mich. 62. § 207. V. Cox, 8 Jones' (N. C.) L. 311. §395. V. Egbert, 17 N. J. L. 459. § 400. V. Farrer, 9 Q. B. Div. 372. § 246. V. Floyd, 2 Jones' L. 313. §§ 68, 70. V. HaskeU, 25 HI. 215. § 298. V. Howe, 46 Barb. 287. § 166. V. Lee County, 3 Wall. 327. §§ 380, 484 V. Musser, 1 DalL 402. § 190. V. Read, 41 Iowa, 48. § 10. V. Smith, 7 Serg. & R 209. § 364 V. State, 20 Ala. 54. § 246. V. State, 26 Ark. 323. § 452. V. Strickland, 52 Miss. 574 § 322. V. Ward, L. R 6 C. P. 353. § 441. T. Weller, 85 lU. 197. §g 400, 401. Thornburg v. Thornburg, 18 W. Va. 522. § 482. Thome v. Cramer, 15 Barb. 112. §§ 67, 180. V. San Francisco, 4 CaL 127. § 206. Thornton v. Lane, 11 Ga, 459. § 213. V. McGrath, 1 Duv. 349. § 483. Thorpe t. Adams, L. R 6 C. P. 125. §157. V. Corwin, 20 N. J. L. 311. § 426. V. R & B. R R Co. 27 Vt 140. §g 370, 373, 473. V. Schooling, 7 Nev. 15. §§ 138, 154. h Thouvenin v. Rodrigues, 24 Tex. 468. §399. Thrasher v. Everhart, 3 Gill & J. 234 §§ 188, 190. Thurston v. Percival, 1 Pick. 415. §§ 184, 297. V. PreutLs'!, 1 Midi. 193. §§ 204 325, 456. Ticknor's Estate, Matter of, 13 ^lich. 44. §§ 341, 271. Tide Water Canal Co. v. Archer, 9 Gill & J. 479. § 387. Tidey v. Mollett, 16 C. B. (N. S.) 298. §256. Tiernan v. Rinker, 102 U. S. 123. § 169. Tierney v. Dodge, 9 Minn. 166. § 157. Tiger v. IMorris Pleas, 42 N. J. L. 631. §§ 127, 128. Tilford V. Ramsey, 43 Mo. 410. §§ 10, 229. Tilley v. Hudson R. R R. Co. 24 N. Y. 474 § 371. Tillman v. Cocke, 9 Baxt 429. § 169. Tilton V. Swift, 40 Iowa, 78. §§ 206, 469, 482. Tmilow V. Railroad Co. 99 Pa. St 284 §194 Timm v, Harrison, 109 IlL 593. §§ 131, 135. Timms v. Williams, 3 Q. B. 413. §396. Tims V. State, 26 Ala, 165. § 137. Tindal v. Drake, 60 Ala. 170. § 194 Tingue v. Port Chester, 101 N. Y. 294 §101. Tinkham v. Tapscott, 17 N. Y. 153. §332. Tioga R R Co. v. Blossburg, ete. R R Co. 30 Walk 137. § 185. Tipton V. Carrigan, 10 IlL App. 318. §336. V. Davis, 5 Hayw. 378. § 309. Tisdell V. Combs, 7 Ad. & E. 796. § 379. Titcomb v. Insurance Co. 8 ]\Iass. 338. § 325. Titus V. Scantling, 4 Blackf. 89. § 184 Titusvill's Appeal, 108 Pa. St 600. § 358. CXVl CASES CITED. Tivey v. People, 8 Mich. 128. §§ 11, 163, 481. Trimmer v. Heagy, 16 Pa. St. 484. g458. Tobin V. Hartshorn, 69 Iowa, 648. §167. Todd V. Clapp, 118 Mass. 495. § 201. V. Flournoy's Heirs, 56 Ala. 99. §194. V. Landry, 5 Martin, 459. § 165. Toledo, etc. R R. Co. v. Dunlap, 47 Mich. 456. § 94. V. Jacksonville, 67 111. 37. § 473. Tolford T. Chiu-ch, 66 Mich. 431. § 97. Toll V. Wright, 37 Mich. 93, § 368. Tohnie v. Dean, 1 Wash. T'y, 47. §462. Tolson V. Kaye, 3 Brod. & B. 223. §368. Tomkins v. Ashby, 6 B, & C. 541. §363. Tomhnson v. BuUock, L. R. 4 Q. B. Div. 230. §110. V. Greenfield, 31 Ark. 557. § 302. Tomson v. Ward, 1 N. H .9. § 333. Tong V. Marvin, 15 Mich. 60. §§ 146, 338. Tonnele v. HaU, 4 N. Y. 140. §§ 240, 292, 300. Torrance v. McDougald, 13 Ga. 536. §215. Torrey v. Corliss, 33 Me. 333. § 206. V. MUlbm-y, 31 Pick. 64 §§ 448, 455. Torreyson v. Board of Examiners, 7 Neb. 19. § 311. Toutm V. Douglas, 33 L. J. Q. B. 66. §335. Touzalm v. Omaha, 25 Neb. 817. § 103. TovveU V. HoUwey, 81 Ind. 154. § 113. Towle V. Larrabee, 26 Me. 464. § 336. V. Man-ett, 3 Greenlf. 22. § 154. Towles, Ex parte, 48 Tex. 413. §§ 170, 173, 175. Town of Fox v. Town of Kendall, 97 III 72. § 75. Towns V. Mead, 16 C. B. 123. § 434. Townsend's Case, Plowd. 113. § 140. Townsend v. Brown, 24 N. J. L. 8ft. §§ 338, 378. V. Deacon, 3 Ex. 706. §§ 434, 435. V. Jamison, 9 How. 407. § 479. V. Little, 109 U. S. 504. §§ 158,. X36. V. Read, 10 C. B. (N. S.) 308. § 353. V. Todd, 91 U. S. 453. § 185. V. Townsend, Peck, 1. § 478. Tracy v. Elizabethtown, etc. R. R. Co. 80 Ky. 259. § 387. V. Tnffly, 134 U. S. 306. §§ 138, 154. Trade Mark Cases, 100 U. S. 83. , § 173. TrapnaU, Ex parte, 6 Ai-k. 9. § 336. Trask v. Green, 9 Mich. 866. § 10. Treacy, In re Petition of, 59 Barb. 535. § 464. Treadwell v. Commissioners, 11 Ohio St. 190. § 378. Treasurer v. Wygall, 46 Tex. 447. §164. Treasiu-ers v. Lang, 3 Bailey, 430. §313. Treat v. Strickland, 33 Me. 334. §167. Trevor's Case, Cro. Jac. 269 ; 12 Coke, 369. § 429. Ti-igally v. Mayor, etc. 6 Cold. 382. §70. Trigg V. State, 49 Tex. 645. § 356. Triplett v. Graham, 58 la. 135. § 400. Tripp V. Overocker, 7 Colo. 73. § 169. Trist V. Cabenas, 18 Abb. Pr. 143. §482. Troup V. Smith, 30 John. 33. § 437. Troy, etc. R. R. Co. v. Tibbits, 18 Barb. 297. § 399. Trueman v. Lambert, 4 K & S. 238. §212. Trustees v. Bailey, 10 Fla. 338. § 119. V. Laird, 4 De G. M. & G. 732. §137. V. McConnel, 12 HI. 140. § 380. V. Osborne, 9 Ind. 458. § 365. Ti-ustees of V. University v. Indiana, 14 How. 208. § 473. Tuckahoe C. Co. v. T. R R. Co. 11 Leigh, 42. § 378. CASES CITED. CXVll Tuohy V. Chase, 30 Cal. 524, § 449. Turloy v. County of Logan, 17 111. 153. §48. V. Thomai!, 8 C. & P. 103. § 296. Turner v. Board of Commission- ers, 27 Kan. 314. g§ 109, 170, 197. V. Fish, 28 Miss. 306. § 296. V. Patton, 49 Ala. 406. § 298. V. State, 40 Ala. 21. §§ 142, 144, 260, 470. Turaey v. Wilton, 36 111. 385. §§ 133, 390. Turnpike Co. v. Davidson Co. 3 Tenn. Ch. 396. § 473. V. State, 3 Wall. 210. § 378. V. State, 1 Sneed, 474. § 247. Turtle V. Hartw-ell, 6 T. R 426. §§ 207, 410, 416, 430. Tuskaloosa Bridge Co. v. Jemison, 33 Ala. 476. §§ 207, 439. V. Obnstead, 41 Ala. 9. §§ 131, 132, 135. Tuten V. Gazan, 18 Fla. 751, § 190. Tuttle V. Gates, 24 Me. 395. § 115. v. Griffin, 64 Iowa, 455. § 315. V. State, 4 Conn. 68. g 367. V. Sti-out, 7 Minn. 465. § 92. V. Walton, 1 Ga. 51. § 400. Tuxbury's Appeal, 67 Me. 267. § 333. Twenty-eight Cases, In re, 2 Ben. 63. §361. Twenty-eighth St 102 Pa. St 140. §396. Two Hundred Chests of Tea, 9 Wheat 430. § 254. Twycross v. Grant, 2 C. P. D. 530, §207, Twyne's Case, 8 Co, 826, § 444, Tylee v. Yates, 3 Barb. 222. § 336. Tyler v. People, 8 Mich. 320. § 331. V. Trabue, 8 B. Mon. 306. § 190. Tynan v. Walker, 35 Cal. 634. §§ 236, 415, 425. Tyng V. Commercial Warehouse Co. 58 N. Y. 308. § 381. Tyson v. State, 28 Md. 587. § 122. V. Thomas, McC. & Y. 127, §§ 137, 337. Uliler V, Semple, 29 N, J. Eq. 28a §190. Uncas National Bank v. Rith. 23 Wis. 339. § 204. Underwood v. Irving, 3 Cow. 59. §207. V. McDuffee, 15 Midi. 801. g 132. Union v. Rader, 39 N. J. L. 509. §§ 86, 88, 93. Union Bank v. Jacobs, 6 Humph. 315. §385. V. Laird, 2 WHieat 390. § 459. Union Canal Co. v. Young, 1 Whart 410. § 428. Union Horse Shoe Works v. Lewis, 1 Abb. (U. S.) 518. § 185. Union Ins. Co. v. Hoge, 21 How. 85. §§ 229, 309. V. United States, 6 Wall. 759. §252. Union Iron Co. v. Pierce, 4 Biss. 327. §§ 166, 206. Union Pac. R. R Co. v. Dunden, 34 Am. & Eng. R R. Cas. 8& §371. V. United States, 10 Ct of CI. 559 ; 91 U. S. 72. § 199. Union Passenger R'y Co.'s Appeal, 81* Pa. St 91. §§ 80, 90. United Hebrew B. Asso. t. Bens- Iiimol, 130 Mass. 325. §§ 133, 134, 167, 480. United States v. Arredondo, 6 Pet 738. §378. V. Athens Armory, 35 Ga. 344. §§ 349, 356. V. Babbit, 1 Black, 55. §§ 223, 267, 334. V. Bank, 6 Pet 29. § 309. V. Barr, 4 Sawy. 254. §§ 154. 167. V. Barrels of High Wines, 7 Blatch. 459. § 361. V. Barrels of Spirits, 2 Abb. (U. S.) 305. § 361. V. Bassett, 2 Storj-, 389. §§ 215, 241, 246, 347. V. Beaty, Hempst 487. § 354. V. Boisdore, 8 How. 113. § 165. CXVlll CASES CITED. United States v. Bowen, 100 U. S. 508. §§ 156, 161. V. Breed, 1 Sumn. 159. §§ 254, 346, 361. V. Bui-cliard, 125 U. S. 176. § 442. V. Case of Pencils, 1 Paine, 406. §§ 142, 143. V. Cases of Cloths, Crabbe, 356. §361. V. Central Pac. R. R. Co. 118 U. S. 235. § 171. V. Cheeseman, 3 Sawy. 424. § 154. v. Claflin, 97 U. S. 546. §§ 137, 138, 154, 155. V. Dickey, Morris (la.), 412. §325. V. Dickson, 15 Pet. 141. § 223. V. DistUled Spii-its, 10 Blatchf. 428. § 361. V. Ferreira, 13 How. 40. § 10. V. Fifty -six Barrels of Whisky, 1 Abb. (U. S.) 93. § 353. V. Finlay, 1 Abb. (U. S.) 364. §166. V. Fisher, 2 Cr. 358. g§ 197, 210. v. Four Thousand Am. Gold Coin, 1 Woolw. 217. § 298. V. Fox, 94 U. S. 315. § 187. V. Freeman, 3 How. 565. §§ 283, 414. T. Garrelson, 42 Fed. Rep. 22. §353. V. Gear, 3 How. 120. §§ 136, 138. T. GUmore, 8 Wall 330. §§ 206, 222, 229, 255, 309, 402. V. Green, 4 Mason, 427. § 333. V. HaU, 2 Wash. 366. § 466. v. Harris, 106 U. S. 629. § 173. V. Harris, 1 Sumn. 21. § 283. V. Hartwell, 6 Wall 395. §§ 234, 237, 350, 473. V. Hawkins, 4 Martin (N. S.), 317. ^§ 215, 240. V. Helen, 6 Cranch, 203. § 225. V. Hewes, Crabbe, 307. §§ 333, 335. V. Hirsch, 100 U. S. 33. § 156. V. Hoar, 2 Mason, 311. § 333. V. Hodson, 10 WaU. 395. § 361. V. Huggfctt, 40 Fed. Rep. 636. §349. United States v. Hunter, Pet. C. C. 16. §322. V. Isham, 17 Wall 496. § 232. V. Jarvis, Davies, 274 g§ 218, 240. V. Johns, 4 DaU. 412. § 190. V. Johnson, 2 Sawyer, 482. § 298. V. Jones, 3 Wash. 209. § 247. V. Kmg, 7 How. 883. § 181. V. Kirby, 7 Wall 486. §§ 218, 332. V. Klein, 13 Wall. 128. § 10. V. Kohnstamm, 5 Blatchf. 222. § 225. V. Lacher, 134 U. S. 624. § 156. V. Langston, 118 U. S. 389. § 150. V. Lytle, 5 McLean, 9. § 309. V. McKenzie, 2 Brock. 393. § 219. V. Megill, 1 Wash. 463. §§ 247, 253, 291. V. Mann, 1 Gall. 177. § 11. V. Martin, 94 U. S. 400. § 336. V. Mayor, etc. 2 Am. L. Reg. (N. S.) 394. § 365. V. Moore. 95 U. S. 760. § 309. V. Morrison, 4 Pet 124 §§ 186, 191. V. Morse, 3 Story, 87. §g 371, 419. V. Moulton, 5 Mason, 537. § 349. V. New Bedford Bridge, 1 Woodb. & M. 401. §§ 208, 342. V. Olney, 1 Abb. (U. S.) 275. §361. . V. One Hundred Barrels of Spir- its, 2 Abb. (U. S.)305. §§ 138, 253. V. One Hundred and Twelve Casks of Sugar, 8 Pet. 277. §254 V. One Hundred and Twenty- nine 'Packages, 2 Am. L, Reg. (N. S.) 419. § 361. V. Palmer, 3 Wheat 610. § 210. V. Passmore, 4 Dall 372. § 11. V. Paul, 6 Pet 141. §§ 257, 350. V. Pearce, 2 McLean, 14 § 355. V. Perchenian. 7 Pet 51. § 19. V. Philadelphia, 11 How. 609. § 181. CASES CITED. CXIS United States v. Powers' Heirs, 11 How. 577. § 19. V. Ragsdale, Hempst 497. §§208, 236, 238, 349. V. R. R. Cos. 1 Abb. (U. S.) 196. § 232. V. Ramsay, Hempst 481. § 208. V. Rathbone. 2 Paine, 578. § 197. V. Reese. 92 U. S. 214. § 173. V. Reissinger, 128 U. S. 398. gl67. V.Rhodes, 1 Abb. (U. S.) 36. §234. V. Rossvally, 3 Ben. 157. § 260. V. Samperyac, 1 Hempst 118. §10. V. Sarchet, Gilpin, 273. § 254. V. Saundei-s, 22 WaU. 492. § 240. V. Schooner Peggy, 1 Cranch, 103. §197. V. Sheldon, 2 Wheat. 119. §§ 350, 351. V. Ship Recorder, 1 Blatcli. 218. §§ 307, 312. V. Six Fermenting Tubs, 1 Abb. "(U.S.) 364. §166. V. Sixty -seven Packages, 17 How. 85. §138. V. Star, Hempst 469. §§ 206, 208. V. Stern, 5 Blatch. 512. § 260. V. Ten Cases of Shawls, 2 Paine, 162. §§ 252, 351. V. Ten Thousand Cigars, 1 Woolw. 123. § 141. V. Tlie Peggy, 1 Cr. 103. § 164. V. The Sadie, 41 Fed. Rep. 306. §321. V. Three Tons of Coal, 6 Biss. 379. §361. V. Tingey, 5 Pet 115. § 453. V. Turner, 11 How. 663. §§ 181, 189, 293, 295. V. Twenty-five Cases of Cloth, Crabbe, 356. § 138. V. Tynen, 11 WaU. 88. §§ 142, 143, 154, 155, 165. V. Union Pacific R R Co. 91 U. S. 72. § 300. United States v. Walker, 22 How. 299. § 138. V. Warner, 4 McL<-an, 463. § 2381 V. Watts, 1 Bond, 580. § 363. V, Webster, Davies, 38. f§ 212, 300. V. Wigglesworth, 2 Storj-, 309. §§ 361, 362, 363. V. Wilder, 13 Wall. 254. § 368. V. Willetts, 5 Ben. 220. § 361. V. Wilson, Baldw. 78. § 255. V. Wiltberger, 5 Wheat 76. §§ 208, 234, 349. V. W^um, 3 Sumn. 209. §§ 348, 350, 357. V. Wyngall, 5 HiU, 16. §§ 202, 341, 399. § 456. United States Bank v. Longworth. 1 McLean, 35. § 10. United States Express Co. v. EUyson, 28 Iowa, 370. § 125. United States Tr. Co. v. Brady, '20 Barb. 119. § 117. Unity v. BuiTage, 103 U. S. 447. §§ 93, 96, 103, 170, 193, 198. University of Nortli CaroUna v. Fay, 1 Murph, 58. § 472. Upson, In re, 89 N. Y. 67. § 93. Usener v. State, 8 Tex, App. 177. § 46. Utica Water- W^orks Co. v. Utica, 31 Hun, 426. § 95. Utsey v. Hiott 30 S. C. 360. § 122. Uwchlan Township Road, 30 Pa. St 156. §§ 165, 206, 464. VaU V. Dinning, 44 Mo. 210. § 397. V. Easton, etc. R R Co. 44 N. J. L. 237. § 157. V. McKernan, 21 Ind. 421. § 342. Vanada v. Hopkins, 1 J. J. Marsh. 285. § 306. Van Antwerp, In re, 1 T. & C. 423 : 56 N. Y. 261. § 483. Van Antwerp, In re, 1 T. «fe C. 423. §99. Van Antwerp, Matter of, 56 N. Y. 261. §170. Vanatta v. Anderson, 3 Bin. 417. §343. tJXX CASES CITED. Van Buren v. Wylie, 56 Mich. 501. g 350. Vance v. Grainger, N. C. Conf. 71. §426. V. Gray, 9 Bush, 656. § 260. Van Denbm-gh v. President, etc. 66 N. Y. 1. g 168. Vanderberg, In re, 28 Kan. 243. § 48. Vanderbilt v. Adams, 7 Cow. 349. §473. Vanderburgh v. Rensselaer, 6 Paige, 147. §§ 111, 113. Vanderkar v. Railroad Co. 13 Barb. 390. § 11. Vander Donckt v. Thelluson, 8 C. B. 812. § 190. Vanderstolph v. Boylan, 50 Mich. 330. §339. Vanderwerker v. People, 5 Wend. 580. §298. Van Deusen v. Hayward. 17 Wend. 67. § 453. Vaudike v. Rosskam, 67 Pa. St. 330. §364. Vane v. Vane, L. R. 8 Ch. 383. § 428. Van Fleet v. Van Fleet, 49 Mich. 610. §§ 206, 215, 324. Van Giesen v. Bloomfield, 47 N. J. L. 442. § 128. Van Hagan, Ex parte, 25 Oliio St. 426. §§ 138, 151. Vanhorne v. Dorrance, 2 DalL 304. §§ 363, 390. Vandall v. South T. F. Dock Co. 40 CaL 83. § 381. Vau-in v. Edmonson, 5 GUm. 270. §§ 113, 114. Vallance v. Falle, L. R. 13 Q. B. Div. 109. § 204. Valton V. National Loan, etc. Co. 19 How. Pr. 515. § 369. Van Hook v. Whitlock, 2 Edw. 304. §§ 340, 434 Van Horns v. Petrie, 2 CaL 213. § 371. Van Horenburgh v. Case, 4 IliU, 541. §371. Van Inwagen v. Chicago, 61 IlL 31. §163. Van Loon v. Lyon, 4 Daly, 149. §§ 314, 317. Vanneman v. Young (N. J.), 20 Atk Rep. 53. § 456. Van Ness v. Pacard, 2 Pet. 137. §184. Van Norman v. Jackson Circuit Judge, 45 Mich. 204. §§ 10, 393, 402. Van Rensselaer v. Ball, 19 N. Y. 100. §206. V. Kearney, 11 How. 297. § 187. V. Livingston, 12 Wend. 490. §206. V. Sher.iff, 1 Cow. 443. §§ 208, 322. V. Snyder, 13 N. Y. 299. § 206. V. Snyder, 9 Barb. 302. § 138. V. Snyder, 9 Barb. 302 ; 13 N. Y. 299. § 478. Van Riper v. Essex P. R B'd, 38 N. J. L. 23. §§ 283, 288. V. Parsons, 40 N. J. L. 123. § 127. Van Sicklen v. Bui-Ungton, 27 Vt 70. §345. Van Swartow v. Commonwealth, 24 Pa St. 131. § 193. Van Slyke v. Trempealeau, etc. Ins. Co. 39 Wis. 390. § 395. Van Valenburgh v. Torrey, 7 Cow. 252. §§ 168, 208, 398. Van Winkle v. Constantine, 10 N. Y. 314. §§ 422, 483. Van Wyck v. Hills, 4 Rob. 140, §184. Vanzant v. Waddel, 2 Yerg. 260. §§ 5, 119, 124 Vardeman v. Lawson, 17 Tex. 10. §184 Vaughan v. Swayzie, 56 Miss. 704 §483. VauxhaU Bridge Co. v. Earl Spencer, 2 Mad. 356. § 194 Vavasour v. Ormrod, 6 B. & C. 430. §222. Vawter v. Pac. R'y Co. 84 Mo. 679. §14 Veats V. Danbury, 37 Conn. 412. §165. CASES CITED. CXXl Veazie v. China, 50 Me. 518. § 454. Venour v. Sellon, L. R. 2 Ch. Div. 523. § 233. Ventress v. Smith, 10 Pet 161. §344. Vicar, etc. of St. Sepulchre's, Ex parte, 33 L. J. Ch. 373. § 238. Vicksbiirg, etc. R'y Co. v. Dennis, 116U. S. 665. §364. T. State, 62 Miss. 105. § 363. Victory v. Fitzpatrick, 8 lud. 281. §§ 204. 325. Vidal V. Girard's Heirs, 2 How. 128. §15. Viehe v. Towers, Cohnan & CaL 90. §371. Victor V. Arthur, 104 U. S. 498. §§ 156, 161. Vigo's Case, 21 Wall. 648. §§207, 416, 440. Vincent, Ex parte, 26 Ala. 145. §g 247, 291. Vincent v. Nantucket, 12 Cush. 103. § 380. Vining v. Bricker, 14 Ohio St. 331. §336. Vhisant v. Knox, 27 Ai'k. 266. §§ 41, 48. Vinton v. Builders', etc. Asso. 109 Ind. 351. § 245. Virden v. Allen, 107 111. 505. § 96. Virginia City, etc. R. R. Co. v. Lyon County, 6 Nev. 68. § 236. Virginia Coupon Cases, 114 U. S. 305. §§ 173, 174. Viterbo v. Friedlander, 120 U. S. 707. §239. Viti V. Dixon, 12 Mo. 479. § 114. Volans V. Owen, 74 N. Y. 526. §375. Volmer v. State, 34 Ark. 487. § 167. Von Baumbach v. Bade, 9 Wis. 559. § 475. Von Hoffman v. Quincy, 4 Walk 535. §§ 206, 471. 476, 477, 478. Voorhees v. IMartin, 12 Barb. 508. §341. Vorhees v. Bank of United States, 10 Pet 449. § 222. Wabash, etc. Co. v. Beers, 2 Black, 448. g 472. Wade V. St Mary's School, 43 Md, 178. §§ 164, 165. Wadsworth Board of Works v. United Telephone Co., L. R. 13 Q. B. Div. 904. ' § 390. Wagar v. Briscoe, 38 Mich. 587. § 398. Wagner v. Stoll, 2 Rick (N. S.) 539. §151. Wainewright In re, I Pliil. 258. §§ 218, 219, 246, 324. Wait V. Van Allen, 22 N. Y. 319. §207. Wakelield v. Phelps, 37 N. H. 295. §§ 287, 288. V. Smart, 8 Ark. 488. § 424. Wakeley v. Mohr, 15 Wis. 609. § 170. Wakker, In re, 3 Bai-b. 162. §§82, 100. Wakker, Re, 1 Edm. Sel. Cas. 575. §198. Waldby v. Callendar, 8 Mich. 430. §397. Waldo V. BeU, 13 La. Ann. 329. §§ 202, 314, 399. Wales V. Belcher, 3 Pick. 508. §§ 75, 193, 469. V. Muscatme, 4 Iowa, 302. § 428. V. Stetson, 2 Mass. 146. §§ 322, 473. Walker v. Board of PubUc Works, 16 Ohio, 540. § 370. V. Bmt, 37 Ga 20. § 392. V. Caldwell, 4 La. Ann. 298. §§ 78, 131, 132. V. Chapman. 22 Ala, 116. § 448. V. Chicago, 56 111. 277. §§ 366, 398, 441. V. Ducros, 18 La. Ann. 703. § 342. V. Forbes, 31 Ala, 9. §§ 190, 191. V. Griffith, 60 Ala. 361. §§ 46. 47. V. Sheftall, 73 Ga. 806. § 371. V. State, 7 Tex. App. 245. §§ 133, 134, 143. V. State. 49 Ala. 329. § 170. V. Wliitehead, 16 Wall 31^ §§ 206, 471, 476. cxxu CASES CITED. "Walkins v. Eureka Springs, 49 Ark. 131. g 135. Wall, Ex parte, 48 Cal. 279. §§ 67, 75, 183. WaU V. Garrison, 11 Colo. 515. § 132. V. State, 18 Tex. 682. § 166. V. State, 23 Ind. 153. §§ 136, 142. Wallace v. Burden, 17 Tex. 467. § 184. V. Finch, 24 Mich. 255. § 355. V. Holmes, 9 Blatchf. 65. § 204. V. San Jose, 29 Cal. 180. § 380. V. SeaJes, 36 Miss. 53. § 284. V. Stevens, 74 Tex. 559. § 328. V. Taliaferro, 2 CaU (Va), 389. §§ 255, 291, 463. WaUer v. Harris, 20 Wend. 562. §§ 196, 207, 235. Wallwyn v. Lee, 9 Ves. 25. § 194. Wally V. Kennedy, 2 Yerg. 554. §g 119, 124. Walpole V. Elliott, 18 Ind. 258. § 483. Walsh V. Boyle, 30 Md. 262. §§ 111, 112, 113. V. Dousman, 28 Wis. 541. g§ 118, 130. V. Trustees, etc. 96 N. Y. 427. §383. Walsingham's Case, 2 Plowd. 565. §228. Walston V. Commonwealth, 16 B. Mon. 15. §§ 206, 469, 482. Walter v. People, 32 N. Y. 147. § 469. Walton, Ex parte, L. R. 17 Ch. Biv. 746. §§ 238, 241, 246, 323, 414. Walton V. Dickerson, 4 Ricli, L. 568. §480. V. State, 62 Ala. 197. §§ 289, 349, 350. Wahvin v. Smith. 1 Salk. 177. § 353. Wanet v. Corbet, 13 Ga. 441. § 307. Wanestead Board v. HiU, 13 C. B. (N. S.)479. §275. Warburton v. Loveland, 2 Dow. & CL 489. § 236. V. Loveland, 1 Hudson & Brooke, 648. §258. Ward V. Flood, 48 Cal. 36. § 119. V. Hartford. 12 Conn. 404. § 428. V. Hemy, 19 Wis. 76. § 306. Ward V. Thompson, 48 Iowa, 588, §377. V. Walters, 63 Wis. 44 § 114 Warder v. Arell, 2 Wash. (Va.) 282. §463. Wardle v. Townsend, 75 Mich. 305. §96. Ware v. Owens, 42 Ala 212. § 206. V. St. Louis, etc. Co. 47 Ala 667. §135. Warehouse Co. v. Lewis, 56 Ala. 514 §246. Warfield, Matter of Will of, 22 Cal 71. §§ 311, 314 Warfield v. Fox, 53 Pa. St. 382. §§367, 426. v. Ravasies, 38 Ala 518. § 400. Waring v. Jackson, 1 Pet 570. § 187. Warne v. Beresford, 2 M. & W. 848. §165. V. Varley, 6 T. R. 443. § 348. Warner v. Beers, 23 Wend. 125. §36. V. Commonwealth, 2 Va Cas. 95. § 190. V. Commonwealth, 1 Pa St. 154. §208. v. Fowler, 8 Md. 25. §§ 290, 450. Warnick v. Grosholz, 3 Grant's Cases, 234 § 192. Warren v. Commonwealth, 37 Pa. St. 45. § 469. V. Englehart, 13 Neb. 283. § 371. V. Jones. 9 S. C. 288. § 480. V. Lusk, 16 Mo. 102. § 184 V. Mayor, 2 Gray, 84 §§ 176. 180. V. Shuman, 5 Tex. 441. § 217. V. Windle, 3 East, 205. § 168. Warren R. R. Co. v. Belvidere, 35 N. J. L. 584 § 137. Warrick v. Roimds, 17 Neb. 411. § 375. Warrington v. Furbor, 8 East. 242. §§ 208, 362. Washer v. ElUott, L. R. 1 C. P. Div. 174 § 268. Washington v. Page, 4 Cal. 388. § 80. V. Washington, 69 Ala 281. § 483. Wassel V. Armsti'ong, 35 Ark. 247^ §224 CASES CITED. CXXUJ Wassel V. Tximiah, 25 Ark. 101. g§ 218, 240,324 Water Commissioners v. Brewster, 42 N. J. L. 125. § 234 "Water Commissioners of Amsterdam, 96 N. Y. 351. § 387. Waterford v. Hensley, Mart & Yerg. (Tenn.) 275. § 260. Waterhouse v. Keen, 4 B. & C. 200. 252. "Waters v. Campbell, 4 Sawyer, 121. §267. Watertown v. Mayo, 109 Mass. 815. §370. Watervliet T. Co. v. McKean, 6 Hill, 616. §§260,347. "Water "Works Co. v. Burkhart, 44 Ind. 864 § 154 "Wathen v. Beaumont, 11 East, 271. §115. "Watkins v. Holman, 16 Pet 60. § 3. V. Major, L. R. 10 C. P. 662. §355. V. WasseU, 20 Ark. 410. §§ 204, 325. "Watrous V. Blair, 32 Iowa, 58. §336. "Watson V. Blaylock, 3 Mills (S. C), 351. § 137. V. Hoge, 7 Yerg. 344 §§ 229, 234 236. V. Kent, 78 Ala. 602. § 188. V.Martin, 34 L. J. ]\L C. 50. §351. V. Mercer, 8 Pet 88. §§ 465, 483. V. Gates, 58 Ala. 647. § 194 V. State, 55 Ala. 158. § 303. V. Stone, 40 Ala. 451. § 20. V. Tarpley, 18 How. 517. § 429. Waugh V. ]\Iiddleton, 8 Ex, 352. §§ 258, 260, 463, 481. V. Riley, 68 Ind. 482. § 168. Waxahachie v. Brown, 67 Tex. 519. §380- Wayman v. Southard, 10 "Wheat 1. §§ 3, 67, 68, 222, 229. "Weakley v. Pearce, 5 Heisk- 401. §168. "Wear River Commissioners v. Adam- son, L. R. 1 Q. B. Div. 549. § 238. "Weatherf ord v. "Weatherf ord, 8 Port- 171. § 104 "Weaver v. Lapsley, 43 Ala. 224 § 80. V. McElhenon, 13 Mo. 89. § 306. Webb, Re, 24 How. Pr. 247. § 223. Webb V. Anspach, 3 Ohio St 522. § 398. V. Baird, 6 Ind. 13. § 366. V. Bird, 10 C. B. (N. S.) 268 ; 13 id. 841. §265. V. Fairmaner, 3 LL & W. 473. §§ 111, 112. V. Knight 2 Q. B. Div. 530. § 254 V. Mullen, 78 Ala. 111. § 400. W^ebber v. Howe, 36 Mch. 150. § 164 Weber v. Weber, 47 Mich. 569. § 400. Webster v. Comity Commissioners, 63 Me. 27. § 167. V. French, 12 111. 302. §§ 112, 458. V. Little Rock, 44 Ark. 536. §§41, 43. V. ]\Iorris, 66 Wia 366. §§ 15, 184 V. People, 98 IlL 343. § 385. V. Rose, 6 Heisk. 93. § 478. Weckler v. First Nat Bank, 42 Md. 581. §381. Weed V. Lyon, Walk. Ch. 77. § 456w V. Tucker, 19 N. Y. 422. § 443. Weeks v. Hull, 19 Conn. 376. § 111. V. Weeks, 5 Ired. Eq. 111. § 106. Weil, In re, 83 N. Y. 543. § 457. Weil V. Suite, 46 Ohio St 450. § 95. WeiU V. Kenfield, 54 Cal. 111. §§ 41, 48, 45, 250, 346. Weinman v. Wilkinsbvu-g, etc. R'y Co. 118 Pa St 192. § 129. Weir v. Cram, 37 Iowa, 649. § 72. Weister v. Hade, 52 Pa. St 474 §§242,420. Welch v. Battem, 47 Iowa, 147. §109. V. Hannibal, etc. R'y Co. 26 'Mo, App. 358. § 110. V. Kline, 57 Pa St 428. § 324 V. Stowell, 2 Doug. (]Mich.) 332. §370. V. SuUivan, 8 Cal. 188. § 316. V. Wadswortli, 30 Conn. 149, §§ 166, 474 •CXXIV CASES CITED. Welker v. Potter, 18 Ohio St 85. §§ 127, 457. Weller v. Weyand, 2 Grant's Cas. 103. §893. Wells, Ex parte, 21 Fla, 280. § 170. Wells V. Bright, 4 Dev. & Batt. L. 173. § 110. V. Child, 12 AUen, 333. §§ 368, 426. V. County Commissioners, 79 Me. 522. § 388. V. Supervisors, 102 U. S. 625. S140. Welman, Matter of, 20 Vt. 658. § 110. Wendel v. State, 62 Wis. 300. § 385. Wendell v. Durbin, 26 Wis. 390. §454. Werborn v. Austm, 77 Ala, 381. §154. Werner v. Edmiston, 24 Kan. 147. §377. West V. Blake, 4 Blackf. 234. §§ 193, 198. V. Creditors, 1 La. Ann. 365. §104. V. Downman, L. R. 14 Cli. Div. 111. § 204. V. Francis, 5 B. & Aid. 737. § 256. V. Pickesimer, 7 Ohio, 235. § 424. V. Sausom, 44 Ga. 295. § 478. West Boston Bridge v. County Com- missioners, 10 Pick. 270. § 388. "Westbrook v. Miller, 56 Mich. 148. §309. V. Rosborough, 14 Cal. 180. § 451. V. WiUey, 47 N. Y. 457. § 457. WTest End, etc. R. R. Co. v. Atlanta St. R R. Co. 49 Ga. 151. § 140. Western Union R. R. v. Fulton, 64 IlL 271. § 206. Western Union Tel. Co. v. State, 62 Tex. 630. §§ 170, 180. Westervelt v. Gregg, 12 N. Y. 202. §480. V. People, 20 Wend. 416. § 405. 'West F. R. R Co. v. Johnson, 5 How. (Miss.) 278. § 107. West Ham Overseers v. lies, L. R. 8 App. Cas. 886. § 218. Westinghausen v. People, 44 Micli. 265. § 405. W. Phila. R R Co. v. Union R R. Co. 9 Phila, 495. §§ 86, 90, 102. Weston V. Charleston, 2 Pet 401. §254 V. Supervisors, 44 Wis. 242. § 3G4. West River Br. Co. v. Dix. 16 Vt 440 ; 6 How. 507. § 473. Wetumpka v. Winter, 29 Ala. Col. §247. Weyand v. Stover, 85 Kan. 545. §§48,98. Westerfield, Ex parte, 55 CaL 550. §§ 123, 129. Wetherbee v. Dunn, 32 CaL 106. § 299. Wetmore v. State, 55 Ala. 198. g§ 309, 310. V. Tiacy, 14 Wend. 250. § 202. Wharton v. State, 5 Cold. 1. § 1C6. Wheatley v. Lane, 1 Saund. 216. §413. Wheaton v. Peters, 8 Pet 591. § 458. Wheeler v. Chicago, 24 Hi 105. §448. V. Chubbuck, 10 111. 301. § lU.. V. McCormick, 8 Blatch. 20 i. §§ 218, 246, 428, 429. V. MiUs, 40 Barb. 644. § 456. V. Philadelphia, 77 Pa. St 33b. §§ 121, 128, 198, 198. V. Roberts, 7 Cow. 536. § 168. V. Winn, 53 Pa St 122. § 437. Whidden v. Drake, 5 N. H. 18. § 428. V. Seelye, 40 Me. 247. § 184. Whipley v. Mills, 9 Cal. 641. § 454. Whipple V. Judge, 26 JNlich. 84o. §§ 240, 383. V. Williams, 4 How. Pr. 208. § 1 15. Whistler v. P^orster, 14 C. B. (N. S.) 248. § 324 Whithorn v. Evans, 2 East 135. § 107. Whitcomb v. Rood, 104 Pa. St 228. §284 v. Rood, 20 Vt 52. §833. White v. Boot, 2 T. R 274 § 137. v. Crutcher, 1 Bush, 472. § 112. V. German Ins. Co. 15 Neb. 660. §118. V. Hart 13 Wall 646. §§ 206, 476. OASES CITED. CXXV "White V. Haworth, 21 Mo. App. 439. §§ 111, 114. V. Ivey, 34 Ga. 186. § 275. V. Jolmson, 23 Miss. G8. §§ 139, 202, 283, 287. V. Lincoln, City of, 5 Neb. 505. §78. V. NashvDle, etc. R R Co. 7 Heisk, 515. § 138. V. Railroad Co. 7 Heisk. 518. 5^228. V. Steam Tug, 6 Cal. 462. § 360. V. White, 2 Met. (Ky.) 185. § 225. "Wliite Co. V. Key, 30 Ark. 603. § 441. Whited V. Lewis, 25 La. Ann. 568. g§ 31, 33, 103, 170. Whitehead v. Commonwealtli, 19 Gratt. 640. § 455. V. Wells, 29 Ark. 99. § 104. Whiteley t. Chappell, L. R 4 Q. B. 147. § 431. Wliitesides v. Poole, 9 Rich. 68. §297. White W. Valley Canal Co. v. Val- lette, 21 How. 414 § 385. Whitford V. Panama R R Co. 23 N. Y. 465. § 297. Whiting V. Mt. Pleasant, 11 Iowa, 482. §§ 87, 88, 101. Wlaitlock V. Casti-o, 22 Tex 108. .§ 306. Whitman v. Hapgood, 10 Mass. 437. §206. Whitney v. Brtmette, 15 Wis. 61. §393. V. Gauche, 11 La. Ann. 432. §301. V. Thomas, 23 N. Y. 281. § 456. V. Whitney, 14 Mass. 298. §§ 240, 436. Whittaker v. Canal Co. 87 Pa St. 34. §378. Whyte V. Mayor, etc. 2 Swan, 364. § 384. Wieman v. Anderson, 42 Pa. St 311. §338. Wiener v. Davis, 18 Pa. St 331. §§ 246, 370. Wight V. Warner, 1 Doug. (Mich.) 384. §§ 327, 391. Wiggin V. Peters, 1 Met 127. § 111. Wiggins F. Co. v. Chicago & A. R Co. 5 Mo. App. 347. §§ 295, 306. Wilber v. Paine, 1 Ohio, 117. §§ 207, 410, 427. Will)ur V. Crane, 13 Pick. 284. §§ 139, 290. Wilcox V. Hemming, 58 Wis. 144. §170. V. Jackson, 109 111. 261. § 306. V. State, 3 Heisk. 110. § 138. Wilder v. Lumpkin, 4 Ga. 208. § 206. V. Maine Cent R 65 Me. 332. § 206. V. Railway Co. 70 Midi. 382. §119. AVilderman v. Baltimore, 8 Md. 551. § 164. Wiles V. Peck, 26 N. Y. 47. § 338. Wiley V. Yale, 1 Met 553. § 325. WiKord v. State, 43 Ark. 62. § 452. Wilkinson t. Adam, 1 Ves. & B. 466. §336. V. Colley, 5 Burr. 2698. § 435. V. Leland, 2 Pet 657. §§ 194, 206, 215, 240, 241, 245. Willard v. Conduit 10 Tex. 213. § 192. T. Fralick, 31 Mich. 431. §§ 207, 392, 393. V. Newburyi^ort, 12 Pick. 227. §380. Willcox V. Huggins, Fitzg. 172; 2 Str. 907. § 424. Willets V. Jeffries, 5 Kan. 473. §§ 226, 464. William Gray, Brig, The, 1 Paine, 16. §355. Wilhams v. Beard, 1 Rich. (N. S.) 309. §286. V. Bidleman, 7 Nev. 68. § 129. V. Bruffy. 90 U. S. 176. § 20. V. Cammack, 27 Miss. 209. § 75. V. Cheney, 3 Gray, 215. § 336. V. Commissioner, 35 Me. 345. §11- V. Ellis, L. R 5 Q. B. Div. 176. §§ 241. 280. V. Evans, L. R 1 Ex. Div. 277. §259. CXXVl CASES CITED. Williams v. Golding, L. R 1 C. P. 69. §276. V. Johnson, Adm'x, 30 Md. 500. §206. V. McDonal, 3 Pin. 331. §§ 219, 242, 246, 423. V. Middlesex, 4 Met. 76. §§ 163, 165. V. Newton, 14 Jil. & W. 757. § 310. V. People, 24 N. Y. 405. §§ 103, 120, 123. V. People, 17 111. App. 274. § 215. V. Peyton, 4 Wheat. 74 § 390. V. Potter, 2 Barb. 316. §§ 138, 189. V. Pritchard, 4 T. R. 2. §§ 157, 158, 230. V. Regina, 7 Q. B. 250. § 142. V. Sangar, 10 East, 66. § 362. V. Smith, 4 H. & N. 559. §§ 206, 482. V. State, 67 Ga, 260. g§ 297, 300. V. State, 64 Ind. 553. § 298. V. State, 6 Lea, 549. §§ 41, 43, 46. V. State, 6 Blackf. 36. § 363. V. Swansea C. Nav. Co., L. R. 3 Ex. 158. §§ 139, 213. V. Tripp, 11 R. I. 447. § 364. V. Wade, 1 Met. 82. § 184. V. Weaver, 94 N. C. 134. § 476. V. Williams, 5 Ohio, 444 § 426. V. WUliams, 8 N. Y. 541. § 184. Williamson v. Farrow, 1 Bailey, 611. §§ 112, 253. V. Field, 2 Sandf. Ch. 533. § 206. V. Keokuk, 44 Iowa, 88. §§ 101, 103. V. New Jersey, 130 U. S. 189. §365. V. Suydam, 6 Wall. 723. § 194 WilUamsport v. Commonwealth, 84 Pa. St 487. § 345. Willing V. Bozman, 52 Md. 44 § 159. WUlingham v. Smith, 48 Ga. 580. §223. Willion V. Berkley, 1 Plowd. 236. § 333. Willison V. Watkins, 3 Pet 43. §368. Willmarth v. Crawford, 10 Wend^ 342. § 385. Willis V. Jelineck, 27 Minn. 18. §480. V. Owen, 43 Tex. 48. §§ 67, 317. V. R. R. Co. 32 Barb. 398. §§ 364^ 372. V. R. R Co. 61 Tex. 432. § 14 V. Thoi-p, L. R 10 Q. B. 383. §275. Wills V. Audi, 8 La Ann. 19. g 390. V. Russell, 100 U. S. 621. ^§ 255,. 261. Wilson V. Arnold, 5 Mch. 98. §§ 207, 393, 401. V. Biscoe, 11 Ark. 44. §§ 215, 239. V. Booth, 57 Mich. 249. § 375. V. Buckman, 13 Minn. 441. § 206. V. Carson, 12 Md. 54 §§ 190, 102. V. Hahfax, L. R 3 Ex. 114 §§ 243, 262. V. Herbert, 41 N. J. L. 454 § 226. V. Knubley, 7 East, 128. §§ 196, 212. V. Lewis, 10 R. I. 285. § 428. V. Nightingale, 8 Q. B. 1034 §§ 219, 245. V. Ohio, etc. R'y Co. 64 IlL 542. 465, 466. V. Pahner, 75 N. Y. 250. § 454 V. Rastall 4 T. R. 757. § 333. V. Shorick, 21 Iowa, 332. g 203. V. Smith, 5 Yerg. 379. §§ 190,. 295. V. Spauldmg, 19 Fed. Rep. 304 §§210,211. V. State Bank, 3 La. Ann. 196. §448. V. Wall, 34 Ala. 288. § 480. V. Wentworth, 25 N. H. 347. §350. V. West Hartlepool Co. 2 De G. J. &S. 475. §427. WUton V. Chambers, 7 Ad. «& E. 532. §307. Wimbish v. TaUbois, 1 Plowd. 38. §413. Winchester's Case, 3 Rep. 4. § 419. Winchester v. Cain, 1 Rob. (La.) 42L §420. CASES CITED. CXXVU "Windliam v. Chetvvynd, 1 Burr. 419. §307. Windsor v. China, 4 GreenL 298. §§ HI, 112. Wing V. Benham, 76 Iowa, 17. § 376. Winn V. Ficklan, 54 Ga. 529. § 340. V. Jones, 6 Leigh, 74. §§ 156, 161. Winona v. Whipple, 24 Minn. 61. §260. Winona, etc. R. R Co. v. Barney, 113 U. S. 618. § 379. Winooski v. Gokey, 49 Vt 282. § 198. Winslow V. Kimball, 25 Me. 493. §§ 234, 436. Winter v. Dickerson, 42 Ala. 92. §168. V. Jones, 10 Ga. 190. §§ 237, 331, 332. V, IMoutgoraery, 65 Ala. 403. §331. Winterfield v. Stauss, 24 Wis. 394 §§ 252, 255. Wis. Cent. R R Co. v. Taylor Co. 52 Wis. 37. § 300. Wisconsin Telephone Co. v. Oshkosh, 63 Wis. 32. g§ 306, 383. Wise V. Bigger, 79 Va. 369. §§ 41, 43, 44, 45, 46. V. State, 34 Ga. 348. § 452. Wishmier v. State, 97 Ind. 160. i§ 93, 95. WiswaU V. Hall, 3 Paige, 313. § 379. Witherspoon v. Dunlap, 1 McCord, 516. § 341. Witkouski v. Witjiouski, 16 La. Ann. 232. §168. Wolcott V. Des Moines Co. 5 Wall. 681. §379. V. Pond, 19 Conn. 597. §§ 207, 443. V. Wigton, 7 Ind. 44. § 66. Wohlscheid v. Bergarth, 46 IMich. 46. § 107. Wolf V. Lowry, 10 La. Ann. 272. §314. Wolfe V. Henderson, 28 Ark. 304. §§ 164. 1G7. V. McCaull, 76 Va. 87a § 56. Wolff V. New Orleans, 103 U. S. 35a g 475. V. Oxholm, 6 M. & S. 99. § 12. WolfkeU V. Mason, 16 Abb. Pr. 221. §476. WoLsey v. Chapman, 101 U. S. 755. §379. Womack v. Womack, 17 Tex. 1. § 482. Womelsdorf v. Heifuer, 104 Pa. St 1. § 398. Wood's Case, 1 Co. 40a. § 228. Wood, Ex parte, 34 Kan. 645. §§ 102. 103. Wood, In re, L. R. 7 Ch. 306. § 256. Wood V. Bank, 9 Cow, 194. § 204. V. Chapin, 13 N. Y. 509. § 449. V. Commonwealth, 11 Bush, 220. §112. V. Election Com'rs, 58 Cal. 561. § 157. V, Kennedy, 19 Ind. 68. §§ 166, 474. V. Mayor, etc. 34 How. Pr. 501. §480. V. Oakley, 11 Paige, 400. § 464. V, Rowcliffe, 6 How, 191, § 210. V. State, 47 Ark. 488. § 154. • V. United States, 16 Pet 342. §§ 138, 152, 361. Woodard v. Brien, 14 Lea, 520. §§ 119, 124. Woodbuiy v. Berry, 18 Ohio St 456. §§ 237, 261, 332. Woodman v. Fulton, 47 Miss. 682. §479. Wood Mowing, etc. Co. v. Caldwell, 54 Ind. 276. §§ 300, 333. Woodrow V. O'Conner, 28 Vt 776. §184. Woodruff V, State, 3 Ark. 285. §§ 218, 410, 411, 412. Woods V. Buie, 5 How. (Miss.) 285. § 10. V. Jackson Co. 1 Holmes, 379. § 138. T. state, 36 Ark. 36. § 354. V. AVicks, 7 Lea, 40. § 12. Woodstock V. Hooker, 6 Conn. 35, S 100. CXXVUl CASES CITED. "Woodward v. Chicago, eta R Co. 21 Wis. 309. § 306. V. Donally, 27 Ala. 196. § 12. V. Foxe, 3 Lev. 289 ; 2 Vent. 187. § 439. V. London, etc. R'y Co. 3 Ex. Div. 121. §265. v. R'y Co. 23 Wis. 400. § 371. Woodworth v. Paine's Adm'r, Breese (111.), 374. § 279. V. Spaflfords, 2 McLean, 175. §§ 22, 185. V. State. 26 Ohio St. 196. §§ 219, 279. Wooley V. Watkins, 22 Pac. Rep. 102, §468. Woolheather v. Risley, 38 Iowa, 486. § 377. Woolsey v. Cade, 54 Ala. 378. §§ 255, 256. Worcester Bank v. Cheney, 94 111. 430. § 298. Worcester, etc. R. R Co. v. R. R. Cora'rs, 118 Mass. 561. g 388. Workingmen's Bank v. Converse, 33 La, Ann. 963. g 296. Workingmen's Building Asso. v. Coleman, 89 Pa. St. 428. g 456. Wormley v. Hambui'g, 40 Iowa, 25. §469. Worthen v. Badgett, 32 Ark. 496. g§ 41, 46, 183. V. Ratchffe, 42 Ark. 330. § 164. Worthley v. Steen, 43 N. J. L. 542. §127. Wright, In re, L. R 3 Ch. Div. 78. §256. Wright V. BoUes Woodenware Co. 50 WLs. 167. § 353. V. Bolton, 8 Ala. 548. § 439, V. Dalafield, 23 Barb. 498. § 184. V. Defrees, 8 Ind. 298. § 330. V. Forrestal, 65 Wis. 341, §§ 114, 229, 309, V. Frant, 4 B. & S. 118. § 261, V, Hale, 6 H. & N. 227. §§ 206, 482. V, Hammer, 5 Md. 375. § 434, V. Hawkins, 28 Tex. 452. §§ 198, 298. Wright V, Nagle, 101 U, S. 791. § 378. V. Oakley, 5 Met 400, §§ 184, 156, V, Phillips, 2 Greene (Iowa), 191. §298, V. Sperry, 21 Wis. 331. ? 448. V. Williams, 1 M. & W. 99. § 246. Wroughton v. Turtle, 11 M. & W. 561. § 362. Wulftange v. McCoUom, 83 Ky. 361. §102. Wyandotte v. Drennan, 46 Mick 478. § 473. Wynehamer v. People, 43 N. Y. 378. §§ 172, 370, Wynkodp v. Cooch, 89 Pa. St. 450, §1-0. Wynne, In re, Chase's Dec. 227. § 110. Wynne v. Middleton, 1 Yv'ils. 125. g§ 208, 444. V. Wynne, 2 Swan, 405. § 480. Wyth V. Blackman, 1 Ves. Sr. 197. §253. Wythe V. Thui"ston, 2 Ambler, 555. §253. Yale V. Dederer, 18 N. Y. 271. § 338. Yates' Case, 4 John. 318. § 256. Yates V. Lansing, 9 Jolin. 395. § 342. Yazoo R R Co. v. Thomas, 132 U. S. 174 §§ 212, 364. Yeager v. Weaver, 64 Pa St. 425. §g 78, 86, 87, 210. Yeaton v. United States, 5 Cr. 281. §§ 163, 164, 165, 166, 467. Yell V. Lane, 41 Ark. 53, § 299, YeUow River Imp't Co, v. Arnold, 46' Wis. 214. §§ 93, 97, 101, 193, 198, Yerby v. Lackland, 6 Har, & J. 446, §g 391, 392, Yerger, Ex parte, 8 W^all. 85. § 327. York's Appeal, 100 Pa. St 69; 17 W. N. C. 33. § 315. York, etc. R'y Co. v. The Queen, 1 E. & B, 858, § 235. Young V. Bank of Alexandria, 4 Cr. 384. § 193. V. Beardsley, 11 Paige, 93. §§ 201,. 229. CASES CITED. CXXIX Young V. Crattridge, L. R. 4 Q. B. 106. §281. V. Higgon, 6 M. & W. 49. §§ 111, 113. V. Hughes, 4 H. & N. 76. § 206. V. McKenzie, 3 Ga, 40. §§ 290, 366. V. Martin, 2 Yeates, 313. § 390. Yoiingblood v. Sexton, 23 Mich. 406. §143. Youngs V. Ransom, 31 Barb. 49. § 296. Yung Jon, Ex parte, 28 Fed. Rep. 308. §93. Zander v. Coe, 5 Cal. 230. § 39.1 Zeigler v. Gaddis, 44 N. J. L. 363. §§ 128, 130. V. South, etc. R R. Co. 58 Ala. 594. § 331. Zimmerman v. Hclser, 32 JId. 274. §190. V. Perkiomen, etc. Co. 81* Pa. St 96. § 168. Zouch V. Empsey, 4 Bam. & Aid. 522. §112. Zum V. Woedel, 113 Pa. St 386. § 338. < PART FIRST. THE ENACTMENT, DURATION AND PROOF OF STAT- UTORY LAWS. CHAPTER I. THE LEGISLATIVE POWER AS DISTINGUISHED FROM OTHER SOVEREIGN POWERS, AND THE GENERAL NATURE OF STAT- UTORY LAW. § 1. Order of subjects. 2. The legislative a distinct power. 6. The nature of legislative power. 7. Statutory laws, in general 9. Rules of action. 10. Legislative rules of action — Es- sential limitations. 12. Statutes have no extraterritorial effect. § 14. Extraterritorial operation of laws in colonization of a new country. 17. English statutes passed after the establishment of the coloniea 19. Continuance of laws on change of sovereignty. 20. Laws of states in rebellion. 21. Federal and state statutes. 23. Territorial statutes. §1. The order of subjects. — The elementary nature of statutory law; the source and extent of its authority; the process of enactment ; its commencement and duration, and the mode of proving it, when necessary, are subjects which naturally precede any consideration of the legal principles by which courts determine its meaning, construction and effect. Therefore, this order and sequence of topics will be pursued. § 2. The legislative a distinct power. — In our republican system a written constitution is the great charter by which the sovereign pe9ple establish and maintain government, de- fine, distribute and limit its powers. It is the organic and paramount law. In the federal constitution, and in the state constitutions, the three fundamental powers — the legislative, executive and judicial — have been separated, organized in three distinct de- partments. This separation is deemed to be of the greatest importance ; absolutely essential to the existence of a just and L'^GISLATIYE POWEK, ETC. free government.' to make This is not, however, such a separation as these departments wholly independent ; bnt only so 1 About the middle of the last cen- tury Baron Montesquieu uttered words of wisdom to patriots and statesmen. He said : " When the leg- islative and executive powers are united in the same person, or the same body of magistrates, tliere can be no liberty, because appreliensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical man- ner. Again, there is no liberty of the judiciary power if it be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbiti-ary con- trol; for the judge would be the legislator. Were it joined to the ex- ecutive power, the judge might be- have with violence and oi:)pression. There would be an end of every- tliing were the same man, or the same body, whether of nobles or of the people, to exercise these three powers — that of enacting laws, that of executing the public resolutions, and of trying the causes of individ- uals." Sphit of Laws, B. 11, ch. VI. Dr. Paley remarks in his Moral Pliilosophy, B. 6, cli. 8: "The first maxim of a free state is that the laws be made by one set of men, and administered by another; in other words, that the legislative and judi- cial characters be kept separate. When these ofifl^ces are united in the oame person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends. "W^iilst they ai'e kept separate gen- eral laws are made by one body of men, without foreseeing whom they may affect; and when made, they must be appUed by the other, let them affect whom they will." Blackstone, in Ms Commentaries (voL 1, 146), says : " In aU tyrannical governments the supreme magis- tracy, or the right both of making and of enforcing laws, is vested in the same man, or one of the same body of men; and whenever these two powers are united together, there can be no pubhc liberty. The magisti'ate may enact tyrannical laws and execute them in a tyran- nical manner, since he is possessed, in quality of dispenser of justice, with aU the power wliich he as legislator tliinks proper to give liimself. But when the legislative and executive authority are in distinct hands, the former wiU take care not to intrust the latter with so large a power as may tend to the subversion of its own independence, and therewith of tlie liberty of the subject." He also says in another part of liis Commentaries (vol. 1, 269) : " In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not re- movable at pleasm-e by the crown, consists one main presei-vative of the public hberty, which cannot subsist long in any state vmless the adminis- tration of common justice be in some degree separated both from the legis- lative and also from the executive power. Were it joined with the leg- islative, the life, liberty, and property of the subject would be in the hands of ai'bitrary judges, whose decisions would be then regulated only by their own opinions, and not by any funda- mental principles of law; whicli, though legislators may depart from, yet judges are bomid to observe. Were it joined with the executive, this union might soon be an over- balance for the legislative." In Dash v. Van Kleeck, 7 Jolm. 508, LEGISLA'nVE POWER, ETC. 6 that one department shall not exercise the power nor perform the functions of another. They are mutually dependent, and could not subsist without the aid and co-operation of each other. Under the constitutions the legislature is empow^ered to make laws ; it has that power exclusively ; the executive has the power to carry them by all executive acts into effect, and the judiciary has the exclusive power to expound them as the law of the land between suitors in the administration of justice. The legislature can do no executive acts, but it can legislate to regulate the executive office, prescribe law^s to the executive which that department, and every grade of its offi- cers, must obey. The legislature cannot decide cases, but it can pass law^s which will furnish the basis of decision, and the courts are bound to obey tliem.^ The functions of each branch are as distinct as the stomach and lungs in our bodies. They are intended to co-operate; not to be antagonistic; they are functions in the same system ; when each functionary does its appropriate work no interference or conilict is possil)le.- § 3. A distinguished writer and jurist says : " When we speak of a separation of the three great departments of the government, and maintain that that separation is indispensable to public liberty, w^e are to understand this maxun in a lim- ited sense. It is not meant to affirm that they must be kept W' holly and entirely separate and distinct, and have no com- mon link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exer- cised by the same hands which possess the whole power of either of the other departments; and that such exercise of the W'hole w^ould subvert the principles of a fi'ce constitu- tion. This has been shown with great clearness and accu- racy by the author of the Federalist.' It was obviously the view taken of the subject by Montesquieu and Blackstone in their commentaries ; for they were each speaking with ap- probation of a constitution of government which embraced this division of powers in a general view"; 1)ut which at the Kent, C. J., speaking of the legisla- ^ Smith v. Judge, 17 CaL 557. tive and judicial powers, said : " It is a 2 Reiser v. The Wm. Tell S. F. weU-setUod axiom that the union of Asso. 39 Pa. St 147. these two powers is tj'rauuy." Fed- ^ Federalist, No. 42. eralist, No. 47. 4: LEGISLATIVE POWER, ETC. same time established an occasional mixture of each with the others, and a mutual dependency of each upon the others. The slightest examination of the British constitution w411 at once convince us that the legislative, executive and judiciary departments are by no means totally distinct and separate fi'om each other. The executive magistrate forms an integral part of the legislative department ; for parhament consists of king, lords and commons ; and no law can be passed except by the consent of the king. Indeed, he posseses certain prerog- atives, such as, for instance, that of making foreign treaties, by which he can to a limited extent unpart to them a legisla- tive force and operation. He also possesses the sole appointing power to the judicial department, though the judges, when once appointed, are not subject to his w^ill or power of re- moval. The house of lords also constitutes not only a vital and independent branch of the legislature, but is also a great constitutional councO of the executive magistrate, and is in the last resort the highest appellate judicial tribunal. Again, the other branch of the legislature, the commons, possess in some sort a portion of the executive and judicial power, in ex- ercising the power of accusation by impeachment ; and in this case, as also in the trial of peers, the house of lords sits as a grand court of trial for public offenses. The powers of the judiciary department are indeed more narrowly confined to their own proper sphere. Yet still the judges occasionally as- sist in the deliberations of the house of lords by giving their opinion upon matters of law referred to them for advice ; and thus they may, in some sort, be deemed assessors to the lords in their legislative as well as judicial capacity." ^ As co-ordinate branches of one government they are poUtically connected and bound together ; but their powders and functions are not blended ; they occupy no common ground, nor do they exercise any con- current jurisdiction. To some extent, and for certain purposes, the powers appro- priate in their nature to one department are exercised by each of the others ; sometimes by express direction of the supreme law ; but otherwise only w^hen it is done incidentally or as a means of exercising its ow^n proper power.^ 1 Story on Const. § 525, kins v. Holman, 16 Pet 60, 61 ; « Taylor v. Place, 4 R. L 324 ; Wat- Wayman v. Southard, 10 Wheat 1, LEGISLATIVE POWER, ETC. D § 4. The whole legislative power delegated to tlie federal government is vested in congress, with the exceptions made in the constitution, as in the instance of making treaties. Con- gress has only enumerated powers ; the residue is retained by the states, and is vested by their constitutions in their legisla- tures, subject to restrictions and limitations in the federal con- stitution and that of the particular state. In creating a legis- lative department of a state government, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the Umitations which are contained in the constitution of the United States.' So all the executive power which caji be exercised is vested in the executive department, and all the operative judicial power in the judiciary department.'^ § 5. The power which is entu'ely and exclusively vested in the judiciary department is the power conferred on judicial courts and tribunals to administer punitive and remedial jus- tice to and between persons subject to, or claiming rights under, the law of the land. The exercise of this power in- cludes invariably actor, reus and judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings. It is part of this judicial power to determine what the law is ; and all questions involving the validity and effect of statutes when thus determined are au- thoritatively settled.* § 6. The legislative power. — It results from this division of the fundamental powers that the legislature is confined to the exercise of the law-making power ; its sole function is the enactment of laws. Kone of these great powers are defined 42; The Auditor v. Atcliison, etc. 465; Taylor v. Porter, 4 IIiU, 146; R R. Co. 6 Kans. 500 ; s. C. 7 Am. Vanzaiit v. Waddel, 2 Yorg. 260 ; R. 575 ; Fliut, etc. P. R. Co. v. Wood- State Bank v. Cooper, id. 599 ; Jones' Inill, 25 Mich. 99. Heus v. Perry, 10 id. 59 ; Greene v. iCooley's Const Lim. (4th ed.) 100; Briggs, 1 Curtis, 311 ; State v. Dews, DonneU v. State, 48 Miss. 661 ; Gov- R, M. Chai-lt 400 ; Seai-s v. CottreU. 5 eruor v. McEwen, 5 Hunipli. 241; Midi. 254. See Smith v. Judge, 17 Knoxville, etc. R R Co. v. Hicks, 9 Cal. 558 ; State v. Dexter, 10 R I. 341 ; Baxt 442. Mui-ray's Lessee v. Hoboken, etc. Co. 2 Taylor v. Place, 4 R I. 324 18 How. 272. ^Shumway v. Bennett, 29 Mick 6 LEGISLATIVE POWER, ETC. in constitutions. They are distributed by name, and, therefore, their scope and limits have to be determined from their in- trinsic nature. They are deemed thus sufficiently distinguish- able. A state legislature, by this grant of legislative power, is vested with all power which is of that nature, whether it had been exercised wholly, by the parhament of Great Britain, or in part, by prerogative, by the crowm.^ As legislative power is merely a power to make laws, its nature may be in- ferred from the definition of statutory law ; for a statute form- ulates whatever is resolved, ordained or enacted by the forms of legislation in the exercise of that power. § 7. Statutory law, iu general. — A statute is, in a general sense, the written w^ill of the legislature rendered authentic by certain prescribed forms and solemnities,'- prescribing rules of action or civil conduct.^ This is comprehensive as applied to 1 In Merrill v. Sherburne, 1 N. H. 203, WcoJbmy, J., said: "No par- ticular definition of judicial power is given in the constitution, and consid- ering the general natiu'e of tlie instru- ment none was to be expected. Critical statements of the meanings in which all important words were to be employed would have swollen into volumes ; and when these words possessed a customary signification a definition of them would have been useless." Lowi-ie, C. J., in Reiser v. The WiUiam TeU Saving Fimd Associa- tion, 39 Pa. St. 146, said : " We must again insist that the making of laws and the apphcation of them to cases as they arise are clearly and essen- tially diiferent fimctions, and that one of them is allotted by the consti- tution to the legislature and the other to the courts. 9 Casey, 495. Chief Justice Gibson expressed tliis in Greenough v. Greenough, 1 Jones, 494: 'Every tjTO or sciolist knows that it is the f)rovince of the legisla- ture to enact, of the judiciary to ex- I)Ound, and of the executive to en- force.' " In IVIaynard v. Valentine, 1 W. Coast Eep. 848, Greene, C. J., speaking of the distinction between legislative and judicial functions, said: "It could not be destroyed without de- struction of one or the other fmic- tion. For it consists in diversity of the deep-seated organic relations which court and legislature respect- ively bear to the central sovereignty wliich speaks and acts thi-ough them. The sovereign, thi'ough the legislative organ, sj^eaks spontaneously, and imposes on that organ no obhgation to reply to any petition. It speaks through its courts upon petition only, and obhges its coiu-ts to answer every petition. The voice of the covn-t is explanatory, and assertative of that of the legislature ; the voice of the legislatm-e is determinative of that of the court. Legislatures de- clare about persons and things in general, and, in particular, what the sovereign will is. Coui'ts declare what, according to that will, the parties before them are boimd or free to do or sufl'er. In fine, the legisla- ture gives, and the court appUes, the law." 2 Wash. T'y, 3. 2 1 Kent's Com. 447. 3 1 Black. Com. 44. LEGISLATIVE POAVERj ETC. i persons. " Statute law may, we think," says Wilberforcc, " be [)roperly deliued as the will of the nation expressed l>y the legislature, expounded by the courts of justice. The legisla- ture, as the re})resentative of the nation, expresses the national will by means of statutes. These statutes are exi)oun(led by the courts so as to form the body of the statute law." ' Mr. Austin says : " A law in the literal and proper sense of the word may be defined as a rule laid down for the guidance of an intelhgent being by an intelligent being having power over hhn." ^ He also says : " Legislative powers are powers of es- tablishing laws and issuing other commands." '^ In what capacity does a legislature act in issuing other com- mands? In other words, in what other way, or to what other end, may " legislative powers " act or issue commands than to establish laws? It would seem to be a truism that the prod- uct of law-making is law. The foregoing definitions confine law to persons. If it is so confined, then the legislature in the exercise of the law-making or legislative power may not legis- late in regard to things. Nor should those doctrines and prin- ciples which have been accepted as part of the common law, relating to things, be regarded as law. The truth is that law is a rule, not necessarily a rule of conduct, though a rule of conduct is a law — a branch, not the whole of it. As a rule a statute may, besides prescribing a rule of civil conduct to sentient subjects, create or establish legal qualities and rela- tions, operating as a fiat. Statutes may be institutive, creat- ino- and oroanizina: le^'al entities and endowing them with qualities and powers — for example, pubUc and private corpo- rations. They create offices, courts, and other governmental agencies; they define crimes and torts; property, corporeal and incorporeal ; titles, contracts ; prescribe remedies and pun- ishments ; they impart a legal vitality to and regulate aU the minutia of civil polity, including every social and business relation or institution deemed conducive to the well-being and happiness of the governed.'' § 8. As a rule for persons, it is not a transient, sudden order from a superior to or concerning a particular person, but some- Uvub. st.L. 8. -'ici^aao. ^Austin's Jurisprudeuce, vol. 1, p. 3, ••License Cases, 5 How. 504, oSU; § 3. Mauu V. lUiuois, 94 U. S. 113, 125. LEGISLATIVE POWER, ETC. thing permanent, uniform and universal.^ It is a rule, because not merely advisory, but imperative ; it emanates from the su- preme power as a command, and does not depend for effect on the approval or consent of its subjects ; it is a rule of ciml conduct, because it does not extend into the subjective domain of morals or religion ; it is prescribed, and therefore operates prospectively, though it may under certain circumstances and lunitations operate retrospectively, as will be seen hereafter.^ It is permanent, uniform and universal, not in the sense of being irrepealable or necessarily operating upon aU the per- sons and things within the jurisdiction of the legislature, but because a law in general has a continuing effect and operates impartially throughout the state or some district of it, or upon the whole or a class of the pubhc.^ 1 1 Black. Com. 44 2Seepos^, ck XVII. 3 In Slack v. MaysviUe, etc. R. R. Co. 13 B. Mon. 22, Marshall, J., speak- ing for the court, said : " It would be difficiilt, perhaps impossible, to de- fine the extent of the legislative The nature and scope of legislative power in the enactment of laws as treated in an article on " The Constitu- tionality of Local Option Laws" in 12 Am. L. Reg. (N. S.) 129, are too narrow. Conti-ary to the assumptions there made, it is beheved that all valid acts power of the state, imless by saying of the legislatm-e, whether national that so far as it is not restricted by the higher law of the state and fed- eral constitutions, it can do every- thing which can be effected by means of a law. It is tlie gi-eat, supervising, controlling, creative and active power in the state, subject to the funda- mental resti-ictions just referred to. Whatever legislative power the whole commonwealtli has, is by the consti- tution vested in the legislative de- or state, are laws. The enumerated powers gi-anted to congress are leg- islative in their nature; no other would vest in a state legislature imder a general grant of legislative power. Other clauses in the constitutions, re- quiring or regulating the action of the legislatui-e in reference to specific subjects in the internal sj'stem or pohty of the state, are not intended to confer or regulate any other than partment, wliich, representing the the power of making laws — saving popular majorities in the several local the special jurisdiction in cases of divisions of the state, and under no other restraint but such as is unposed by the fundamental law, by its own wisdom and its own responsibiUties, may regulate the conduct and com- mand the I'esources of all, for the impeachment, and such as relate to the autonomy of the separate branches or are incidental to the ex- ercise of its legislative f imction. Hope V. Deaderick, 8 Humph. 1 ; Lusher v. Scitss, 4 W. Va. 11 ; Myers v. Man- safety, convenience and happiness of hattan Bank, 20 Ohio, 295 ; Anderson all, to be promoted in such manner v. Dunn, 6 Wheat. 204-235 ; Kilbourn as its own discretion may determine, v. Thompson, 103 U. S. 168 ; Von Hoist, The legislative department performs Const. L. § 28. The taxmg power is and tinislies its ofiice by the mere legislative. Marr v. Enloe, 1 Yerg. enactment of a law." 452 ; Lipscomb v. Dean, 1 Lea, 546. LEGISLATIVE POWER, ETC. V § 9. Rules of action. — Courts judicially formulate rules of action, but only by a})})lying to a particular party an existing law. The. court ascertains by trial that the party is within a rule which is hiw, and the facts necessary to its special oper- ation upon him. What that law enjoins in general the court adjudicates and administers in the particular case. Thus, in a statute before me is this provision : " Every person guilty of fighting any duel, although no death or wound ensues, is pun- ishable by imprisonment in the penitentiary not exceeding one year." This is a statute — a law. Mr. A. is accused of the offense and brought before a court of competent jurisdiction, by proper form of accusation and by proper arrest, and not pleading guilty a trial takes place. The court ascertains by the verdict of a jury that A. is guilty of the acts denounced in the statute. The sentence based on that verdict is that " you, Mr. A., be imprisoned in the penitentiary one year." The statute was general that every person so guilty should be so imprisoned. That was making a laAV — prescribing a rule of conduct. The court having judicially ascertained that A. had done these acts applied the law to him — repeats the statutory rule of action on A. Enacting the rule is legislative ; trying A. and applying the rule to him, repeating and formulating it for accomplishing the imprisonment provided for in the rule, is judicial. § 10. Legislative rules of action — Essential limitations. — Even rules of action are not valid laws, if, Avhen enacted by the legislature, they are judicial in then' nature or trench on the jurisdiction and functions of the judiciary. The legisla- ture may prescribe rules of decision which will govern future cases ; these rules will have the force of law ; so general rules of practice, regulating remedies and so operating as not to take away or impair existing rights, may be made applicable to pending as well as subsequent actions.^ But it has no power iRiggs V. Martin, 5 Ark. 506; 18 lud. 303; Evans v. Montgomery, Smith V. Judge, 17 CaL 558 ; United 4 AVatts & S. 218 ; Oriental Bauk v. States V. Samperyac, 1 Hempst 118; Freeze. 18 Me. 109; Read v. Frauk- Cutts V. Hardee, 88 Ga. 350; Rath- fort Bank, 2'i id. 318; kVoods v. Buio, bone V. Bradford, 1 Ala. 312 ; Coosa 5 How. (Miss.) 285 ; United States R S. B. V. Barclay, 30 id. 120 ; Hope Bank v. Longworth, 1 McLean, 35 ; V. Johnson, 2 Yerg. 123 ; Lockett v. Taggart v. McGiun, U Pa. St 155 ; Usiy, 28 Ga, 345 ; lialston v. Lothain, Van Norman v. Judge, 45 Mich. 204. 10 LEGISLATIVE POWER, ETC to adiniiiister judicial relief,— it cannot decide cases, nor direct liow existing cases or controversies shall be decided by the courts ; it cannot interfere by subsequent acts with final judg- ments of the courts. It cannot modify such judgments,^ nor grant or order new trials.^ No declaratory act, that is, one professing to enact what the law now is or was at any past time, can affect any existing rights or controversies.^ § 11. The merits of every legal controversy depend on the rights of the parties as determined by the law as it was when the rights in question accrued, or the wrong complained of was done.^ A statutory right, howevei', is inchoate until re- 1 Denny v. Mattoon, 2 Allen, 361. - Atkinson v. Dunlap, 50 Me. Ill ; Griffin v. Cunningham, 20 Gratt. 31 ; Reid, Adm'r, v. Stridor, 7 id. 76 ; Cal- hoim V. McLeudon, 42 Ga^ 405; Reiser v. Wm. Tell, etc. Assoc. 39 Pa. St. 147 ; Carleton v. Goodwin, 41 Ala, loo; O'Conner v. Warner, 4 Watts & S. 227 ; Arnold v. KeUey, 5 W. Va. 446; De CliasteUux v. Faircliild, 15 Pa. St. 18 ; Greenough v. Greenough, 11 id. 489 ; McCabe v. Emerson, 18 id. Ill ; United States v. Klein, 13 WaU. 128; United States v. Samperyac, 1 Herapst 118 ; Bagg's Appeal, 43 Pa. St. 512 ; Taylor v. Place, 4 R. I. 324 ; Erie, etc. R. R. Co. v. Casey, 1 Grant's Cas. 274; Miller v. Fiery, 8 Gill, 147; Crane v. McGinnis, 1 GiU & J. 463 ; Trask v. Green, 9 Mich. 366 ; Bates v. Kimball, 2 D. Cliip. 77 ; Burch v. New- bury, 10 N. Y. 374 ; Commonwealth V. Johnson, 42 Pa. St. 448 ; Inhabit- ants of Durham v. Inliab. of L. 4 GreenL 140; Ex parte Darling, 16 Nev. 98 ; Davis v. Village of Menasha, 21 Wis. 491 ; Kendall v. Dodge, 3 Vt. 360. ^Tilford V. Ramsey, 43 Mo. 410; People V. Supervisors, 16 N. Y. 425, 432 ; Ogden v. Blackledge, 2 Crancli, 272; Gordon v. lughram, 1 Grant's Cas. 152; Dash v. Van Kleeck, 7 John. 477; Mongeon v. People, 55 N. Y. 613 ; McLeod v. Burroughs, 9 Ga. 213 ; Lambertson v. Hagan, 2 Pa. St. 25 ; Peyton v. Smith, 4 McCord, 476 ; Hall v. Goodw-yn, id. 442 ; Grigs- by V. Peak, 57 Tex. 142; Van Nor- man V. Judge, 45 Mich. 204. It was held (Alvord v. Little, 16 Fla. 158) that an act extending the time to ap- peal, passed after the expii-ation of the tune allowed therefor by existing law, did not affect vested rights, be- cause it apphed only to the remedy. So does a statute of limitations ; but an act would not be sustained which revived a right of action after it was barred by the existing law. Girdner V. Stephens, 1 Heisk. 280 ; Adamson v. Davis, 47 Mo. 268 ; Thompson v. Read, 41 Iowa, 48 ; Pitman v. Bmnp, 5 Ore- gon, 17 ; Wood on Lim. § 11, The leg- islature is not only incapable of per- forming judicial functions, but it can confer no other than judicial powers on the courts. The Auditor v. Atclii- son, etc. R, R. Co. 6 Kans. 500 ; S. C. 7 Am. R. 575 ; Burgoyne v. Supervis- ors, 5 Cal. 9 ; Dickey v. Hurlburt, id. 343; Hayburn's Case, 2 DalL 409; Railway Co. v. Board Pub. Works, 28 W. Va. 264. See United States v. Fer- reira, 13 How. 40. ■1 Pacific, etc. Co. v. Joliffe, 2 Wall. 450; Vanderkar v. Raih'oad Co. 13 Barb. 390; People v. Supervisors, 3 id. 332. LEGISLATIVE POWER, ETC. 1 1 duced to possession or fixed and perfected by a judgment.' It is judicial to determine what the hiw was or is; and the kind and measure of redress due to parties, founded upon the facts of a case, by apphcation of that law. New laws cannot be passed to affect existing controversies, or to interfere with the administration of justice according to those principles. To pass new rules for the regulation of new controversies is in its nature a legislative act ; but if these rules interfere with the ]jast or the present, and do not look wholly to the future, they violate the definition of a law as a rule of civil conduct ; because no rule of civil conduct can with consistency operate upon what occurred before the rule itself was promulgated.- "Whether in their inquiries the legislature and the courts proceed upon the same or diilerent evidence does not change the nature of legis- lative acts. Kor can their inquiries, deliberations, orders and decrees be both judicial and legislative, because a marked dif- ference exists between the functions of judicial and legislative tribunals. The former decide upon the legahty of claims and conduct; the latter make rules upon which in connection with the constitution these decisions should be founded.^ Leg- islative power prescribes rules of conduct for the future gov- ermuent of the citizen or subject ; whde judicial power pun- ishes or redresses wrongs growing out of a violation of rules previously established. The distinction lies, in short, between a sentence and a rule.^ § 12. Statutes have no extraterritorial eifect. — Statutes derive their force from the authority of the legislature which enacts them ; and hence, as a necessary consequence, their au- tliorit}^ as statutes will be limited to the territory or country to which the enacting power is limited. It is only within iNorris v. Crocker, 13 How. 429; volves on the courts, not the legis- The Irresistible, 7 Wheat. 551 ; Cal- lature, to determine the meaui\ig of houn V. McLendon, 42 Ga. 407; "head of a family," as used in the United States • v. Mann, 1 Gallison, constitutional provision for a home- 177; United States v. Passmore, 4 stead. Ball. 372 ; Town of Guilford v. Su- -' :\Ierrill v. Shorbm-ne, 1 N. H. 204. pervisors, 13 N. Y. 143; H;ui:i)tou v. iJd.; State v. Dews, R M. Charlt Commonwealth, 19 Pa. St. 329 ; Sto- 400 ; Bedford v. ShiUing, 4 S. & R 411 ; ever v. Immell, 1 Watt , 258 ; Williams Ogden v. Blackledge, 2 Crimch, 273 ; V. Commissioners, 35 Me. 345 ; Tivey McLeod v. Biu-rouglis, 9 Ga. 213. V. People, 8 Mich. 128; Common- ■« Ex parte Slu-ader, 33 CaL 283; wealth V. Duane, 1 Binn. 601. It de- Cooley's Con. L. 110, 111. 12 LEGISLATIVE POWEE, ETC. these boundaries that the legislature is law maker, that its laws govern people, that they operate of their own vigor upon anv subject. No other laws have effect there as statutes. Stat- utes of other states, or national jurisdictions, are foreign laws, of which the courts do not take judicial notice. They may be proved and taken into consideration in proper cases, subject to the provisions of domestic statutes and of the constitution ; but they are so considered only by the principles of the com- mon and international law, originating in the comity which exists between nations and by force of the federal constitution between the states of the Union.* The observance or recognition of foreign laws rests in comity and convenience, and in the aim of the law to adapt its reme- dies to the great ends of justice.^ But there is a limit to this principle of comity ; and cases may and do arise where the ob- servance of foreign laws would neither be convenient nor an- swer the purposes of justice. Foreign laws are not regarded where they conflict with our own regulations, our local policy, or do violence to our views of religion or public morals.^ Whatever force and obligation the laws of one country have in another depends upon the laws and municipal regulations of the latter ; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. When 1 Shaw V. Brown, 35 Miss. 346, 316 ; ingly receiving of stolen property, Minor v. Cardwell, 37 Mo. 353 ; Clarke though perpeti-ated in a foreign V. Pratt, 20 Ala. 470 ; Harrison v. coimtry or state, if the property was Han-ison, icL 629 ; CockreU v. Gurley, brought into tlie state, provided that 26 id. 405 ; Woodward v. DonaUy, 27 by the law of the foreign coimtry or id. 196 ; Mobile & O. R, Co. v. Whit- state the inculpatory act woidd have uey, 39 id. 471 ; Bank of Augusta been the offense charged in the in- V. Earle, 13 Pet 519 ; Carey v. Cin- dictment It was held in Cummins ciunati, etc. R. R. Co. 5 Iowa, 357 ; v. State, 12 Tex. App. 121, that ui such Debevoise v. N. Y. etc. R. R, Co. 98 a ciise the law of the foreign country N. Y. 377 ; S. C. 50 Am. R. 683 ; Land or state is an element of the offense Grant Railway v. Commissioners, 6 and an issuable fact to be alleged ua Kan. 252 ; Pickering v. Fisk, 6 Vt. the indictment, but the indictment 107 ; Andrews v. Herriott, 4 Cow. need not aver that the accused was 508, and note ; Saul v. His Creditors, punishable or amenable to the laws 5 Mart. (N. S.) 569 ; 3 Am. & Eng. of the foreign countiy or state. Cyclop. L. 502. ' Pickermg v. Fisk, 6 Vi 107 ; Story, Articles 798 and 799 of the penal Conf. L. § 35. code of Texas provide for the pimish- ^ xd. ment of robbery, theft, aad the know- LEGISLATIVE POWER, ETC. 13 a statute or tlio unwritten or common law of the country for- bids the recognition of the foreign law, the latter is of no force whatever. AVhen both are silent, then the question arises, which of the conflicting laws is to have effect. Gen- erally, force and effect will be given by any state to foreign laws in cases where from the transactions of the parties they are applicable, unless they affect injuriously her own citizens, violate her express enactments, or are contra honos mores} The courts of one state will not enforce the penal,* nor the police, revenue or political laws of another.' Crimes are in their nature local, and the jurisdiction of them is local* They are cognizable and punishable exclusively in the country where they are committed.* § 13. As every nation possesses an exclusive sovereignty and jurisdiction within its own territory, its laws affect and bind directly all property, whether real or personal, within that territory ; and all persons w^ho are resident within it, whether natural-born subjects or aliens, and also all contracts made and acts done within it. A state may, therefore, regulate the manner and circumstances under which such property, in possession or in action, within it shall be held, transmitted, be- queathed, transferred or sued for ; the condition, capacity, and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties growing out of these contracts and acts ; and the remedies and modes of administering justice in all cases calling for the in- 1 Lawi-ence's Wlieaton (2d ed.), 102 ; S.) 301 ; Holman v. Johnson, 1 Cowp. Bouv. L. Die. tit Conflict of Laws ; 3 13 ; James v. Cathenvood, 3 D. & R Story, Conf. L. §§ 23, 29; Minor v. 190 (16 Eng. C. L. 165); RandaU v. Cardwell, 37 ]\Io. 354 ; 3 Am. & Eng. Van Rensselaer, 1 Jolin. 95 ; Stevens Cyclop. L. 502-503 ; Caldwell v. Van- v. Brown, 20 W. Va, 450 ; Woods v. vlisseugen, 9 Hare, 425 ; Fenton v. Wicks, 7 Lea, 40. See South Carolina Livingstone, 3 Macq. H. L. Cas. 497 ; R. R Co. v. Nix, 68 Ga, 572 ; Whart Gardner v. Lewis, 7 Gill, 377 ; Beard Am. L. § 253. V. Basye, 7 B. Mon. 144. 3 James v. Cathenvood, 3 D. & R. 2 The Antelope, 10 A\Tieat 60, 123 ; 190 ; Blanche v. Fletcher, 1 Doug. Scoville V. Confield, 14 John. 338; 251; Bristol v. Sequeville, 5 Exch. Commonwealth v. Green, 17 Mass. 275 ; Quarrier v. Colston, 1 PliiL 147. 515; Folliott v. Ogden, 1 H. Black. See Heniy v. Sargeant, 13 N. H. 321. 135; Ogden V. Folliott, 3 T. R 733; * Rafael' v. Verelst, 2 W. Black. Wolff V. Oxholm, 6 M. & S. 99 ; King 1058. of Two SiciUes v. Wilcox, 1 Sim. (N. » Story's Conf. L. g 630. 14: LEGISLATIVE POWER, ETC. terposition of its tribunals to protect and vindicate and secure the wholesome agency of its own laws within its own domains.^ Transitory rights accruing under any municipal laws may be enforced in another jurisdiction, subject to the principles just stated, that they be not repugnant to its policy or prejudicial to its interests ; and personal states and relations, originating under and valid by the law of the domicile or place of contract, will be aniversally recognized as valid, subject to the same con- dition.- A legal title, duly acquired in any one count r}^, is a good title over all the world. ^ § 14. Where either by common law or statute a right of action has become fixed and a legal liabihty incurred, if tran- sitory, it may be enforced in the courts of any state which can obtain jurisdiction of the defendant, provided it is not against the public policy of the laws of the state w^here it is souffht to be enforced. The statute has no extraterritorial force, but rights under it will ahvays in comity be enforced, if not against the policy of the laws of the forum. In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of ac- tion,* while all that pertains merely to the remedy will be con- trolled by the law of the state where the action is brought.* 1 Story, Conf. L. §§ 18, 29, 30 ; Chi- * Herrick v. Minneapolis, etc. R R cago, etc. R. R Co. v. Doyle, 60 Miss. Co. 31 Minn. 11 ; S. C. 47 Am. R. 977 ; Debovoise v. N. Y. etc. R. R. Co. 771 ; Knight v. West Jersey R R 98 N. Y. 377 ; PhiUips v. Hunter, 2 Co. 108 Pa. St. 250 ; S. C. 56 Am. R H. Black. 402 ; Sill v. Worswick, 1 200 ; Dennick v. R. R Co. 103 U. S, H. Black. 672; Campbell v. Hall, 11; Leonard v. Columbia St Nav. 1 Cowp. 208 ; Liverm. Dis. 26-30 ; Co. 84 N. Y. 48 ; S. C. 38 Am. R 491 Hyde v. Wabash, etc. R R Co. 61 Central R R Co. v. Swint, 73 Ga. 651 ; Iowa, 441 ; S. C. 47 Am. R 820 ; Law- Morris v. Chicago, etc. R R Co. 65 rence's Wheat 160, 161 ; Davis v. Jac- Iowa, 727 ; S. C. 54 Am. R 39 ; Shedd quin, 5 Harr. & J. 100. v. Moran, 10 111. App. 618 ; Ramsey t. 2 Nashville, etc. R R. Co. v. Foster, Glenn, 33 Kan. 271 ; Boyce v. Wabash 10 Lea, 351 ; State Bank Receiver v. R'y Co. 63 Iowa, 70 ; S. C. 50 Am. R. Plainfield Bank, 84 N. J. Eq. 450; 730; Keenan v. Stunson, 32 Minn. Whart Am. L. ch. V; Bank of Au- 377; Bishop v. Globe Co. 135 Mass. gusta V. Earle, 13 Pet 519, 589 ; Sher- 132 ; Taylor v. Penn. Co. 78 Ky. 348 : wood V. Judd, 3 Bradf. 419 ; Sanford S. C. 39 Am. R 244. See WiUis v. R. V. Thompson, 18 Ga. 554. R Co. 61 Tex. 432 ; Vawi;er v. Pac. ■i Simpson v. Fogo, 1 H. & M. 195 ; R'y Co. 84 Mo. 679 ; S. C. 54 Am. R. Crispin v. Doglioni, 3 S. & T. 96; 105. Beards Ex'r v. Basye, 7 B. Mon. 144. ^ Itl ; Burlington, etc. R R. Co. v. LEGISLATIVE POWER, ETC. 15 § 15. Extraterritorial operation of laws in case of coloni- zation of a new conntry. — It was declared by the lords of the priv}'' council in England, over a hundred and fifty years ago, upon ap])eal from the foreign plantations, that if there be a new uninhabited country found out by English subjects, as the law is the birthright of every subject, so Avherever they go they carry the laws with them ; therefore, such new found country is governed by the laws of England,' English statutes enacted prior to the settlement of the colonies in America ■were brought thither with the common law; or rather the common law, and the statutes amendatory of it, by the colo- nists from England, as a birthright ; not to operate of their own vigor in the colonies, as statutes, but as part of the unwritten law. The colonists brought the laws of the mother country as they brought the mother tongue ; not all the laws, but such as were adapted to their needs in the new country under the novel conditions and circumstances which there existed.- § 16. The existence of this law in the colonies was recog- nized and sanctioned by the royal charters, subject to modifica- tion by colonial usage and legislation. Our colonial ancestors could live under the old laws, or make new ones. "When they legislated, their own laws governed them ; when they did not, the laws they brought with them were their rules of conduct.* Thompson, 31 Kan. 180; S. C. 47 Am. Adj. -Gen. v. Ranee Sumomoye Dos- R 497 ; Mooney v. Union Pacific R. see, 9 Moore (Ind. App.), 387 ; Com- R Co. 60 Iowa, 346. " A contract, so monwealth v. Leach, 1 Mass. 60 ; Corn- far as concerns its formal making, is monwealth v. Kuowlton, 2 id. 53-1 ; to be determined by the law of the Boehm v. Engle, 1 Dall. 15 ; Bogardus place wliere it is solemnized, unless v. Trinity Church, 4 Paige, 198. See the lev situs of property disposed of Chalmers' Colonial Op. 206, 232. otherwise requu-es ; so far as concerns 2 State v. Rollins, 8 N. H. 550, 501 ; its interpre»:ation, by tlie law of the Commonwealth v. Knowlton, 2 Mass. place where its terms are settled, im- 534 ; Patterson v. "Wmn. 5 Pet 233 ; less the parties had the usages of an- Clawson v. Primrose, 4 Del Cli. 643 ; otlier place in view ; so far as con- OTerrall v. Simplot, 4 Iowa, 400 ; earns the remedy, by the law of the Vidal v. Girard's Heu's, 2 How. 128; place of suit ; and so far as concei-ns Webster v. Morris, 66 "Wis. 366 ; its performance, by the law of the Dodge v. Williams, 46 id. 92 ; Nelson place of performance." Whart. Conf. v. McCrary. 60 Ala. 301. L. (2d ed.) § 401. s Sackett v. Sackett, 8 Pick. 309 ; 1 ' ^lem. 2 P. Wms. To ; 1 Black. Com. Kent's Com. 473 ; Commonwealth v. 107 ; Blaukard v. Galdy, 2 Salk. 411 ; Knowlton, smva, Dutton V. Howell, Show. P. C. 32; 16 LEGISLATIVE POWER, ETC. The English statutes thus imported, though the written law m England, and there in force as the expression of the sov- ereign will, did not cling to the emigrant and attend him to the colonies against his wiU to preserve his subjection to the crown ; but he brought it as a boon for his protection.^ In the colonies these statutes were interw^oven with the common law. Their authority was the same as that which gave force and sanction to the common law ; the force of each depended on the same consideration — the presence of this spirit in the emigrant's mind and their adaptation to his condition and cir- cumstances in the colonies. In 1774 the congress declared the rio-ht of the colonies to the common law and statutes of the D mother country.^ § 17. English statutes passed after the establishment of the colonies. — The colonies were subject to the authority of parliament ; they were a part of the British domain.^ It could, 1 The declaration of Dr. Franklin able as might be to the laws of Eng- quoted by Mr. Wharton (Wharton's Am. L. § 22, note) truly states the force of EngUsh laws brought to this country by the colonists. He said: " The settlers of colonies in America did not carry with them the laws of the land as being bound by them wherever they should settle. They left the realm to avoid the inconven- iences and hardships they were under where some of these laws were in force, particularly ecclesiastical laws, those for the payment of tithes, and others. Had it been tmderstood that they were to carry those laws with them, they had better have stayed at home among their friends unexposed to the risks and toils of a new settle- ment. They carried with them a right to such part of the laws of the land as they should judge advanta- geous or useful to them ; a right to be free from those that they thought hurtful, and a right to make such otliers as they should think neces- sary, not infringing the general rights of Englishmen ; and such new laws as they were to form as agree- land." See speech of Burke on mov- ing resolutions of conciliation, Mai'ch 22, 1775. 2 Journal of Cong. Oct. 14, 1774 3 In a late work, entitled " ParUa- mentary Grovemment in the British Colonies," by Alpheus Todd, p. 128, it is said: "Subject, however, to the constitutional oversight and discre- tion of the crown, by which all colo- nial legislation is hable to be con- ti'olled or annulled, if exercised un- lawfully or to the prejudice of other parts of the empire, complete powers of legislation appertain to aJl duly constituted colonial governments. Every local legislature, whether cre- ated by charter from the crown or by imperial statute, is clothed with supreme authority, witliin the limits of the colony, to provide for the peace, order and good govei-nment of the inhabitants thereof. (See Baron Burke's judgment in Kielley v. Car- son, 4 IMoore's Privy Council Rep. 85.) This supreme legislative authority is subject, of course, to the paramovmt supremacy of the imperial parlia- LEGISLATIVE POWER, ETC. 17 and to some extent it did, legislate directly for their govern- ment. But its enactments did not extei. I to the colonies un less the intention to so extend them was manifested in the statutes.* Nor did such statutes, in which no such intention was expressed, become part of the unAvritten law of the colo- nies.* In some instances, statutes of England passed after the emi- gration, and not in terms made apphcable to the colonies, were adopted by the colonial courts; thus by long practice they acquired the authority of law.' By statutory and con- stitutional pro^asion, the common law and English statutes, prior to specified dates, have been very generally adopted, or assumed by the courts to be in force so far as consistent with our condition and sj'stem of government, not only by states formed from the colonies, but in the newer states.* The legis- lative and juridical history of the colonies does not confirm the theory that English laws were imposed on the colonies by authority of parliament, or that their adoption is traceable alone and everywhere to the nationality of the colonists. They unconsciously, by usage and custom, adopted laws adapted to their situation and needs, according to such enlightenment as they had, under the conjoint influence of dissenting re- ligion and national bias. They legislated to the same end, and under the same influence ; independently of the crowTi, despite the restrictions in their constitutions, and the practice or requirement in some cases to legislate in the name of the king and the ostensible recognition of his veto power.^ ment over all minor and subordinate liberate and determine absolutely in legislatures within the empire. The regard to aU matters of local con- functions of control exercisable by cern." the imperial legislatm-e are practi- ' McKineron v. Bliss, 31 Barb. 180. cally restrained, however, by the op- See Brice v. State, 2 Overt 254 ; eration of certain constitutionjxl prin- Egnew v. Coclu-ane, 2 Head, 329. ciples. ... It may suffice to 2 Matthews v. Ansley, 31 Ala. 20 ; observe that tlie right of local self- Carter v. Balfour, 19 Ala. 829 ; Sack- government conceded to all British ett v. Sackett, 8 Pick. 309 ; Common- colonies wherein representative insti- wealth v. Knowlton, 2 Mass. 534. tutions have been inti'oduced confers * Commonwealtli v. Knowlton, upon the local legislature, with co- suprcu operation and consent of the crown, * Id. ; ^Morris v. Vanderen, 1 DaLL as an integral part of such institution, 64, 67 ; Respublica v. Mesca, id. 73. ample and um-eserved powers to de- * Edmund Burke, in his speech in 18 LEGISLATIVE POWEK, ETC. The original British colonies had been practically self-govern- ing, and the result of the revolution was to confirm their right of self government. The people of the several col- onies, in provisional union, won in that struggle the sover- eignty of themselves. The republican system which replaced the colonial constitutions abrogated only the prior laws which were inconsistent with the genius and form of the new govern- ment. § 18. The fi.rst settlements were not all made by English people, nor were all the Enghsh settlements made by persons of the same class or from the same motives. Von Hoist has truly remarked, that " the thirteen colonies had been founded at very different times and under very different circum- stances. Their whole course of development, their pohtical institutions, their religious views and social relations, were so divergent, the one from the other, that it was easy to find more points of difference than of similarity and comparison. moving resolutions of conciliation March 22, 1775, said : " When I know- that the colonies in general owe Uttle or nothing to any care of ours, and that they are not squeezed into this happy form by the constraints of watchful and siispicious government, but that, through a wise and salutary neglect, a generous nature has been suffered to take her own way to per- fection — when I reflect upon these effects, when I see how profitable they have been to us, I feel the pride of power sink, and aU presumption in the vsdsdom of human contrivances melt and die away within me, — my \-igor relents, — I pardon something to the spirit of Uberty." Having ad- dressed a series of considerations to show the f utiUty and inexpedience of employing force against the revolt- ing colonies, he said: "Lastly, we have no sort of experience in favor of force as an instrument in the rule of our colonies. Their growth and their utihty has been owing to methods altogether different. Our ancient in- dulgence has been said to be pursued to a fault It may be so; but we know, if feeling is evidence, that om* fault was more tolerable than our attempt to mend it, and our sin more salutary than our penitence. . . . But there is stUl beliind a third con- sideration, concerning this object, which serves to determine my opinion on the sort of poUcy wlaich ought to be pursued in the management of America, even more than the popu- lation and its commerce ; I mean its temper and character. In this char- acter of Americans, a love of freedom is the predominating feature whicli marks and distinguishes the whole; and as an ardent is always a Jealous affection, your colonies become sus- picious, restive, and mitractable, whenever they see the least attempt to wrest from them by force, or shuffle from them by chicane, what they think the only advantage wortli Living for. Tliis fierce sphit of liberty is stronger in the English colonies, probably, than in any other people of the earth, and tliis from a great variety of powerful causes." LEGISLATIVE POWER, ETC. 19 Besides, commercial intercourse between the distant colonies, in consequence of the great extent of their territory, the scantiness of the population, and the poor means of transpor- tation at the time, was so slight, that the similarity of thought and feeling, which can be the result only of a constant and thriving trade, was wanting."^ It is not surprising, therefore, that the same English statutes were not equally applicable to the local condition in aU the colonies. In Dana's Abridgment- it is said, "there is no e[uestion more difficult to be answered than this : ' What British stat- utes were adopted in the British colonies ? ' In the chartered colonies but few w^ere adopted and practiced upon; in the proprietary colonies, not many ; in the royal colonies, usually a great many." § 19. Contiiiuaiiceoflaws after a change of sovereignty. — Laws, customary and statutory, continue in force, though they originate under a sovereign whose power has ceased by cession of the country and all pohtical jurisdiction, or by conquest. " The usage of the world is," says Chief Justice Marshall, " if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty the acquisition is confirmed, and the ceded terri- tory becomes a part of the nation to which it is annexed ; either on the terms stipulated in the treaty of cession, or on such as its new master sliaU impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country trans- fers the allegiance of those who remain in it ; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state." ^ Among civihzed na- 1 Von Hoist, Const Hist U. S. vol I, Pet 541 ; United States v. Percheman. p. 2. 7 id. 51 ; Mitchel v. United States. - Vol. 6, ch. 196, art 7. Pet 732 ; ISIitchell v. Tucker, 10 Mo. ^ The American Ins. Co. v. Canter, 1 262 ; Leitensdorf er v. Webb, 20 How. 20 LEGISLATIVE POWER, ETC. tions having established laws, the rule is that laws, usages and municipal regulations, in force at the time of the con- quest, remain in force until changed by the new sovereign.' 176 ; Langdeau v. Hanes, 21 Wall 527 ; Chicago, etc. R R Co. v. McGliim, 114 U. S. 542 ; Whart. Am. L. § 154. • United States v. Powers' Heirs, 11 How. 577 ; Chew v. Calvert, 1 Miss. (Walk.) 54 ; Fowler v. Smith, 2 CaL 39, 568 ; Blankard v. Galdy, 2 Salk. 411 ; Macoleta v. Packard, 14 CaL 179 ; CampbeU v. Hall, 1 Cowp. 209. Fowler v. Smith, supra, was a case which arose before there was any legislation of the state of California changing the original Mexican law of interest It was an action to fore- close a mortgage for purchase money. There was an express promise to pay interest at two per cent, per month. It was stated that by the law of Mex- ico aU contracts to pay a higher rate than six per cent per annum, either upon money loaned or otherwise, were void. Murray, J., speaking for the court, said : " I cannot approach the point [error having been alleged to the ruling of the trial covu't that the contract was not usurious] with- out great hesitation, weU knowing that I shaU have to contend with what, by many, is considered the settled rule upon tliis subject But the frequency of these pleas, and the growing disposition of counsel to ap- ply the principles of the civil or Mexi- can law to every contract entered into before the passage of the act abolishing all laws previously exist- ing in Cahfornia, require that some adjudication should be had wliich may govern these cases for the futura The argument of the appel- lant is based upon the well-recognized principle of international law that the laws of a ceded country remain in force until changed by tlxe con- quering or acquiring power. This principle is to be found in almost every work upon the subject of na- tional law, and is reiterated and affirmed by the courts of England and th§ United States. Its appUca- tion to this case can, however, only be determined by an examination of the rule and the pai-ticular circum- stances under which it is sought to be appUed. " The law of nations is said to be founded on right, reason, soiind mo- rality and justice ; but although it is said to be binding upon nations in their intercom-se and transactions, still we find the courts of tlie United States and Europe in many instances differing in their appUcation of the rules, and even disregarding them. As the world has advanced in civili- zation and learning, the influence of religion has been felt and recognized by the christian countries of Em-ope in their intercourse with each other. War has been stripped of many of its most disgusting features. It is no longer considered as the normal con- dition of man smd nations ; but only justifiable when resorted to to pre- serve national honor, prosperity and happiness. . . . " In an acquired territory contain- ing a population governed in their business and social relations by a sys- tem of laws of their own, well under- stood and generally accepted, it is but reasonable that the inhabitants should continue to regidate their conduct and commercial ti'ansactions by then- own laws, until the same are changed. The reason is obvious and founded, in many instances, on the difference of language and systems of jurispru- dence, the peculiar cu-cumstances of the coimtry, the confusion conse- LEGISLATIVE POWER, ETC. 21 For a still stronger reason, this would be true in case of ac- quisitions by purchase and cession.^ § 20. Laws of states in rebellion. — The laws of the insur- gent states passed during the rebelUon, not enacted in aid of quent on such change, and the time necessary to ascertain tlie appUca- bility of the new laws. It will be observed that the rule presupposes that the acquired counti-y contains a population governed by well settled laws of their own. Let us inquire whether these reasons apply with equal force to this case. " Cahfomia, at the time of its ac- quisition by the United States, con- tained but a sparse population. It had long been looked upon as one of the outposts of civilization. Its com- mercial, agricultural and mineral re- Bom'ces undeveloped, it was consid- ered of little importance by the Mexi- can govermnent The body of Mexi- can laws had been extended over it ; but there was nothing upon which tliey could act, and they soon fell into disuse. The system of govern- ment was patriarchal, and adminis- tered without much regard to the forms of law, which were scarcely alike in any two districts. Such was the state of the country when tlie dis- coveiy of our mineral weidtli roused the whole civilized world to its im- portance. In a few montlis the emi- gration from older states exceeded live times the original population of the coimtiy. A state government was immediately formed to meet the wants of this imexpected population. The whole world was amazed by oiu: sud- den progress; and even the federal government, startled from her usual caution by so novel a spectacle, beheld us take ovu" place as a sovereign state, before her astonishment had subsided. Emigration brought with it business, htigation, and the thousand attend- ants that follow in the tram of enter- prise and civilization- The laws of Mexico, written in a different lan- guage, and founded on a dilTerenl system of jui'isprudence, were to them a sealed book. The necessities of trade and commerce required prompt action. This flood of population had desti-oyed every ancient landmark; and finding no established laws or institutions, they were compelled to adopt customs for their own govern- ment The proceedings in coiirts were conducted in the English lan- guage ; and justice was administered by American judges witliout regard to Mexican laws. Custom was for all purposes law. No law concermng usmy was recognized or supposed to exist Under this pecidiar system tills coimtiy acquired its present wealth and prosperitj". But it would have been much better for tlie per- manent interests of this country, that its progress had been less rapid, if, after escaping from tlie tutelage of a teiTitorial government we ai"e to be fettered by the dead carcass of a law which expired at its bu-th, for want of human tiansactions on which to subsist; the appHcation of whicli would overturn almost every contract entered into before the act abolishing all laws, etc., — would imhinge busi- ness and entirely destroy confidence in the country. " There is no case like the present to be found in the liistory of the world In every instance ^ited in 1 United States v. Powers' Heirs, supra; McNair v. Hunt 5 Mo. 300, 308. 22 LEGISLATIVE POWER, ETC. the rebellion but relating to the domestic affairs of the people of the state as a community, were valid after the war and the restoration of the states to all their rights in the IJnion.^ The same general form of government, the same general laws for the administration of justice and the protection of private rights, which had existed in the states prior to the rebellion, remained dm-ing: its continuance and afterw^ards. As far as the acts of the states did not impair, or tend to impair, the supremacy of the national authority, or the just rights of the citizens under the books the acquired country had a population of its own, governed by known laws ; and the rate of eniigra- lion had been small, compared to the number of the original inhabitants. History may be searched in vain for an instance parallel with the emigration to tbia country. If it would be vm- just to compel a densely populated state to take notice of the laws of the conqueror or acqiui'ing power, with- out any other act than that of sub- mission or cession, it wovild be still more unjust in this country, where tiie American population so greatly outnumbered the natives, to compel us to apply then law, instead of om: own, to contracts. In this case, the rule consequent upon the discovery of an uninhabited territory might al- most apply; and to construe ttiese conti'acts by a system of laws not adapted to the age nor to the sphit of our institiitions, altering the plain meaning of the parties, and giving to them conditions which were never intended, would work the grossest in- justice." A rehearing was granted, and at a subsequent term a different conclu- sion was arrived at, and the foregoing views were rejected. A majority of tiie covui;, by Heydenfeldt, J., said; " When the territory now comprised in the state of California was under Mexican dominion, its judicial sys- tem was that of the Roman law, modi- fied by Spanish and Mexican legisla- tion. Upon the formation of the pres- ent state government that system was ordained by a constitutional provis- ion to be continued vmtil it should be changed by the legislature." 2 CaL 568. See Ryder v. Cohn, 37 CaL 69, per Rhodes, J., dissenting. When the King of England con- quers a countiy, there, the conqueror, by saving the hves of the people con- quered, gains a right and property in such people, in consequence of which he may impose upon them such laws as he pleases. Btit until such laws are given by the conquer- ing prince, the laws and customs of the conquered countiy hold place, imless they are conti-ary to the con- queror's rehgion, enact something malum in se, or are silent ; in all such cases the laws of the conquering countiy prevail. 2 P. Wms. 75. 1 Horn V. Lockhart, 17 Wall 570 ; Texas v. White, 7 id. 733 ; Sprott v. United States, 20 Wall 459 ; S. C. 8 Ct. of CL 499 ; Wilhams v. Bruffy, 96 U. S. 176 ; Watson v. Stone, 40 Ala. 451 ; Home Ins. Co. v. United States, 8 Ct. of CI. 449 ; Hawkms v. Filkins, 24 Ark. 286 ; Harlan v. State, 41 Miss. 566 ; BeiTy V. Bellows, 30 Ark. 198 ; Shat- tuck V. Daniel, 52 Miss. 834 ; Cook v. Ohver, 1 Woods, 437 ; Hatch v. Bur- roughs, id. 439 ; Seymour v. Bailey, 66 III 288. LEGISLATIVE POWER, ETC. 23 the constitution, they have, in general, been treated as bind- ing.i These laws, necessary in their recognition and administra- tion to the existence of organized society, were tlie same, with slight exception, whether the authorities of the state ac- knowledged allegiance to the true or the false federal power. They were the fundamental principles for which civil society is organized into government in all countries, and must be re- spected in theu' administration under whatever dominant au- thority they may be exercised. It is only when in the use of these powers substantial aid and comfort was given or in- tended to be given to the rebellion, when the functions neces- sarily reposed in the state for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that these acts are void.^ § 21. Federal and state statutes. — The sovereign power of making laws in the United States is divided and qualified ; a part is vested in the federal congress, and a part in the several state legislatures. Congress has a legislative power only in respect to certain subjects enumerated in the federal constitu- tion ; the state legislatures have a general legislative power within the several states. They have not an unlimited power ; for the power of each is diminished by the legislative power granted to congress, and it is also restricted by various pro- visions in the state constitutions.'^ The acts of congress passed in the exercise of the enumer- ated powers are the supreme law of the land, — in the states, in the District of Columbia, in the territories throughout the 1 Williams v. Bruffy, 96 U. S. 176; military cover, suspended co-extcn- Keith V. Clark, 97 id. 465 ; Livingston sively with tlieu- potential range tlie V. Jordan, Chase's Dec. 454 ; Selden government and the laws of the state, V. Preston, 11 Bush, 191 ; Penny wit v. and not only compelled but legalized Foote, 27 Ohio St 600 ; Ddlard v. Alex- submission to the authority, however ander, 9 Heisk. 719; Rockhold v. spurious, of the de facto power. Blevins, 6 Baxt 115; Dow v. Jolm- Baker v. Wright, 1 Bush, 500; Lay son, 100 U. S. 158 ; Dorr v. Gibboney, v. Succession of O'Neil, 29 La. Ann. 3 Hughes, 382. 722; Raih-oad v. Hurst, 11 Heisk. 625. 2Sprott V. United States, 20 Wall sDonnell v. State, 48 Miss. 679; 464; Thorrington v. Smith, 8 id. 10. Thayer v. Hedges, 22 Ind. 282; Blair The occupation of a place by a Confed- v. Ridgely, 41 Mo. 63; Sears v. Cot- erate army and the installation of a trell, 5 Midi. 251, 256. temporary civil government under its 2-i LEGISLATIVE POWER, ETC. federal domain, or over such part as such acts are by theu" terms intended to operate. The state go\''ernment cannot gainsa}" such laws, nor resist their authority. All individuals within the territory to which such laws are applicable are subject to theu' constraining and restraining effect. In the same sense, the state laws are supreme within the state on aU the subjects to which they constitutionally relate. The federal government cannot gainsay such laws nor resist their authority.* Both federal and state laws in their proper domain of sub- jects are supreme laws of the land ; the former as concerning the interests of all the states or the Union, and the latter as concerning the local affairs and internal interests of the par- ticular state. § 22. Both the federal and state laws belong to one sys- tem, and though emanating from different legislative bodies, they are not hostile nor foreign to each other. In each state, the laws of congress appHcable thereto operate of their own vigor. AU persons must take notice of them, and are pre- sumed to know them ; all branches of the state government take notice of them ; they are within the judicial knowledge of the state courts. The laws of one state are foreign to other states, and are so regarded in their jurisprudence even as administered in the federal courts. But the law^s of each state are laws operating within the territorial sovereignty of the Union, and therefore, as to the federal courts, they are not foreign laws. All the federal courts take judicial notice of the pubUc statutes of the states. In Owings v. Hull,^ a resort was had to the laws of Louisiana to determine the evidentiary value of a copy of a bill of sale on record in a notary's office. Mr. Justice Story, speaking for the court, said : " We are of opinion that the circuit court [sitting in the district of Maryland] was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by congress, not for the pur- 1 Ableman v. Booth, 21 How. 506, Hunter, 1 Wheat 804, 843 ; Donnell 516 ; Cohens v. Vii-ginia, 6 Wheat. 380- v. State, 48 IVIiss. 679 ; Cooley's Const. 390 i Gibbons v. Ogden, 9 Wheat. 1 ; Lim. 7-27. Tennessee v. Davis, 100 U. S. 237; 2 9Pet.624 Ex parte Siebold, id. 371 ; Martin v. LEGISLATIVE POWER, ETC. 25 pose of administering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively apply. The judicial power conferred on the general government by the constitution extends to many cases arising under the laws of the dififerent states. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurLsprudcnce of all the states. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States, by the ordinary modes of proof by which the laws of a foreign country are to be established ; but it is to be judicially taken notice of in the same maimer as the laAvs of the United States are taken notice of by these courts." ' § 23. Territorial laws. — It is settled that congress has a plenary power of legislation over territory belonging to the United States, subject to the restrictions resulting from our repubhcan system and the constitutional guaranties of per- sonal rights.^ " All territory," says Waite, C. J., speaking for the supreme court,' " within the jurisdiction of the United States, not included in any state, must necessarily be governed by or under the authority of congress. The territories are but political subdivisions of the outlying dominion of the United States. They bear much the same relation to the gen- eral government that the counties do to the states, and con- gress may legislate for them as states do for their respective municipal organizations. The organic law of a territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial au- thorities ; but congress is supreme, and, for the purposes of this department of its governmental authority, has all the 1 Pennington v. Gibson, 16 How. 80, j^rinciple, then, in the courts of the 81; Raih'oad Company v. Bank of United States, the judgment of a state Asliland, 13 Wall. 239; AVoodworth court ought to be regarded as a domes- V. Spaff ords, 2 McLean, 1 75 ; Cheever v. tic judgment — a judgment given Wilson, 9 WaU. 131 ; Bennett v. Ben- within the territorial sovereignty of nett, Deady, 309. In this last case tlie United States, and provable in the Deady, J., said: "The national and ordinary way by tlie certificate of the state governments, although vested custochan of tlie original — the clerk with distinct jurisdictions, are in no of the comt" sense foi'eigu to each other, but are ^ Whart. Am. L. § 464. subordinate and limited parts of one ^ First National Bank v. Yankton, complete system of government. On 101 U. S. 129. 2G LEGISLATIVE POWEE, ETC. powers of the people of tlie United States, except such as have been expressly or by implication reserved in the prohibitions of the constitution. In the organic act of Dakota there was no express reservation of the power in congress to amend the acts of the territorial legislature; but none w^as necessary. Such a power is an incident of sovereignty, and continues untO granted away. Congress may not only abrogate law^s of the territorial legislatures, but it may itself legislate directly for the local government. It may make a void act of the terri- torial legislature vahd, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories, and aU the departments of the territorial government. It may do for the territories what the people, under the constitution of the United States, may do for the states." § 24. The existence of this authority in congress was from the early days of the republic a foregone conclusion. It does not rest on any acknowledged specific ^rant in the constitu- tion, nor did it await a discovery of any other power from which by general agreement it was to be implied. In Ameri- can Insurance Co. v. Canter,^ Marshall, C. J., said : " Perhaps the power of governing a territory belonging to the United States which has not, by becoming a state, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquh-e territory. Whichever may be the som^ce whence the power is derived, the possession of it is unquestioned." And in another part of the opinion he said : " In legislating for them [the territories] congress exercises the combined powers of the general and of a state government." ^ In the late case which has been referred to,* the chief justice, deliv- ering the opinion of the court, recognizes the same uncertainty of derivation, and repeats the announcement absolutely that the existence of the power is conceded.* 1 1 Pet. 511, 541. « In Dred Scott v. Sandf ord, 19 How. 2 Dred Scott v. Sandl'ord, 19 How. 393, the learning on tliis point was 445 ; Benner v. Porter, 9 How. 242. exhausted. In the opinion of the 3 First National Bank v. Yankton, court, dehvered by Taney, C. J., it is supra. said: "The counsel for the plaintiff LEGISLATIVE POWEE, ETC. 'i i § 25. Territories have but temporary governments — Are in tutelage to become states. — The federal constitution pro- vides for the admission of new states.' The provision is gen- eral and has been applied not only to the admission of new states in territory belonging to the government when the con- stitution was adopted, but to new states formed in newly- acquired territory. It has been decided to be contrary to the constitution to acquh'e territory with any other view than to the formation and admission of new states.'^ has laid much stress upon that article iu the constitution wliich confers on congi-ess the power 'to dispose of and make all needful rules and regu- lations respecting the territoiy or other property belonging to the United States ; ' but, in the judgment of the com't, that provision has no bearing on the present conti'oversy, and the power there given, whatever it may be, is confined, and was in- tended to be confined, to the territory which at that time belonged to or was claimed by the United States, and was within their boimdaries as settled by the treaty with Great Brit- ain ; and can have no influence upon a ten-itory afterwards acquired from a foreign government. It was a spe- cial provision for a known and par- ticular territory, and to meet a pres- ent emergency, and nothiug more." In another part of the opinion the authority of congress over territory subsequently acquii'ed was thus dis- cussed : " And indeed the power exercised by congress to acquire territoiy and establish a government there, accord- ing to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the FederaUst (No. 38), writ- ten by ]Mr. IMadison, he speaks of tlie acquisition of the Northwestern Ter- ritory by the confederated states, bj- the cession from Vii-ginia, and the establishment of a government there, as an exercise of power not waiTanted by tlie articles of confederation, and dangerous to the hbeities of the peo- ple. And he m-ges the adoption of the constitution as a secmlty and safeguard against such an exercise of power. "We do not mean, however, to question the power of congress in this respect The power to expand the territoiy of the United States by the admission of new states is plainly given ; and in the constiiiction of this power by aU the departments of the government, it has been held to au- thorize an acquisition of teiTitoiy, not fit for admission at the time, but to be admitted as soon as its popula- tion and situation would entitle it to admission. It is acquued to become a state, and not to be held as a colony and governed by congress with abso- lute authority ; and, as the propriety of admitting a new state is committed to the sound discretion of congress, the power to acquu-e territoiy for that purpose, to be held by tlie United States until it is m a suitable condi- tion to become a state upon an equal footing with the other states, must rest upon the same discretion." 1 Sec. 3, ai-t 4. 2 In tlie majority opinion in Dred Scott V. Sandford, ah-eady cited, the cliief justice said : " Tliere is cei-tainly no power given by tlie constitution to 28 LEGISLATIVE POAVEK, ETC. " The very fact," says Mr. Wharton, " that territories are infant states, to be admitted into the Union on maturity, shows that they are to be governed on the same general principles, as far as is appUcable, as are states, just as infants, mutatis mutandis, are governed on the same general principles, so far as concerns safeguards, as are adults." ^ Only a political change is produced by admission into the Union as a state. Congress then ceases to legislate for its people, or in regard to their in- ternal and domestic concerns. They have thus been admitted to the exercise of the right of self-government. The territorial laws enacted by congress or the local legislature continue in force so far as they are consistent with the new condition of statehood and the provisions of the state constitution.^ the federal govemment to establisli or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleas- ure ; nor to enlarge its ten-itorial Lim- its in any way, except by the admis- sion of new states. That power is plainly given ; and if a new state is admitted, it needs no f m-ther legisla- tion by congress, because the consti- tution itself defines the relative rights and powers and duties of the state, and the citizens of the state and the federal govemment But no power is given to acquhe a territoiy to be held and governed permanently in that character." He amphfies thus on another page : " The pruiciple upon which our govermnents rest, and upon which alone they continue to exist, is the xmion of states, sovereign and independent, witliin their own hmits in then- internal and domestic concerns, and bound together as one people by a general government pos- sessing certain enimierated and re- stricted powers, delegated to it by tlie people of the several states, and ex- ercising supreme authority witliin the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the general govemment to obtain and hold colonies and dependent tej- I'itories over wliich they might legis- late "without resti'iction, would be inconsistent with its own existence in its present form. Whatever it ac- quires it acquires for the benefit of the people of the several states who created it. It is theii* trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the ex- ercise of the powers specifically granted." See historical notes in opinion of Mr. Justice CampbeU in same case, pp. 507-508. Whart. Am. L. §§ 4G2, 4G4. 1 Id. § 464. 2 Ante, § 19. See Benner v. Porter, 9 How. 234 ; Territory v. Lee, 2 Mont. 124; Am. Ins. Co. v. Canter, 1 Pet 511. CHAPTER 11. THE LEGISLATURE, AND THE ESSENTIAL PARLIAMENTARY PROCEDURE. 26. The legislatura 27. Common-law record of legisla- tion conclusive. 28. Our legislative record. 30. Effect of constitutional regula- tions of legislative procedure. 83. States holding statutes conclu- sive in Missouri and Missis- sippi. 35. Same in Louisiana, etc 36. Evidence of statutes in New York; Indiana. 41 42, 46 Constitutional regulations of procedure, where mandatory. Legislative journals and tiles are evidence. Presumption in favor of valid- ity of statutes. 49. Required reading of bills, 51. Necessity of signature of pre- siding officers. 52. How validity of statutes tried. 52. When acts should be approved. ' § 26. The legislature. — It is a primary requisite to the enactment of laws that there be a legal legislatm-e. In time and place the members entitled so to do must lawfully con- vene.^ The American legislature, acting under written constitutions, can only exercise a delegated power. It must keep within the limits of power granted to it and observe the directions as to membership, the time of meeting and length of its sessions, procedure in its deliberations, the number of votes necessary for an}^ purpose, and the making of its records. When convened in extra session and limited by the consti- tution to business for which the session was specially called, all acts passed relating to other subjects will be void.* If the constitution prohibits the introduction of bills after a certain period in a session, the regulation cannot be evaded by substituting new measures by amendment of pending bills.' 1 Tennant's Case, 3 Neb. 409 ; State V. Judge, 29 La. Ann. 223; Macou, etc. R. R. Co. V. Little, 45 Ga. 370; Gormley v. Taylor, 44 Ga, 76. See Rohrbacker v. Jackson, 51 Miss. 735 ; People V. Hatch, 33 IlL 9, 151. 2 Davidson v. Moorman, 2 Heisk. 575 ; Jones v. Theall, 3 Nev. 233. See Speed V. Crawford, 8 Met. (Ky.) 207. 3 Pack V. Barton, 47 Midi. 520; Powell V. Jackson, 51 id. 129. See Sa^-re v. Pollai-d, 77 Ala. 608. 30 THE LEGISLATURE, ETC. But whatever is within the proper scope of amendment is ad- missible after that period, and this embraces whatever is ger- mane to the purpose which the bill had in view. Therefore, it was held that a bill to organize a township might be changed by amendment to organize the same territory into a county.^ § 27. The common-law record of legislation conclusive. — The British parliament, including the three great estates of the realm — the king, lords and commons, — possesses a tran- scendent power. It enacts laws by a procedure devised by itself, and it is subject to no paramount law. When a statute is framed and recorded according to its traditional forms as an act of parliament, it is a record which expresses the will of the sovereign power. General acts are " enrolled by the clerk of the parliament, and delivered over into the chancery, which enrollment in the chancery makes them the original record." Private acts filed, sealed, and remaining with the clerk of par- liament, are also original records.^ The record is deemed a 1 Pack V. Barton, supra. 2 King V, Arundel, Hob. 110; 5 Comyn's Dig. Parliament; 1 PML Evi. 316. Anciently, the manner of proceeding in parliament was much different from what it is at the pres- ent day ; for, formerly, the bill was in the form of a petition, and these pe- titions were entered upon the lords rolls, and upon these rolls the royal assent was likewise entered; and upon this, as a groundwork, the judges used, at the end of the parUa- ment, to draw up the act of parUa- ment into the form of the statute which was afterwards entered upon the rolls, caUed the statute-rolls; which were different from those called the lords-rolls, or the rolls of parliament; upon these sta,tute-roll3 neither the bill nor petition from the commons, nor the answer of the lords, nor the royal assent, were en- tered, but only the statute, as it was drawn up and penned by the judges ; and this was the method till about Henry the Fifth's time. In his time, it was desired that the acts of parlia- ment might be drawn up and penned by the judges before the end of par- Uament ; and this was by reason of a complaint then made, that the stat- utes were not equally and fairly drawn up and worded. After the parUament was dissolved or pro- rogued in Henry the Sixth's time, the former method was altered, and these bills contenentes forniam actus par- Uamenti were first used to be brought into the house. The bills (before they were brought into the house) were ready drawn, in the form of an act of parhament, and not in the form of a petition, as before; upon which bill it was written by the commons, soite baile al seigneurs; and by the lords, soit bayle al roye; and by the king, le roy le veut; aU this was wi-it- ten upon the bill, and the bill, thus indorsed, was to remain with the clerk of the parliament, and he was to enter the bill thus di-awn at first, in the form of an act of parhament or statute, upon the statute rolls, without entering the answer of the king, lords or commons upon the THE LEGISLATURE, ETC. 31 higli record. It imports absolute verity, and must be tried by itself, teste meipso. This is the dignity and quality of all tech- nical records. ]^o plea can raise any other question regard- ing a record than that of its existence. Upon that issue the record itself is the only evidence ; the trial is merely by the record. A record or enrollment is a monument of so high a nature, and imports in itself such absolute verity, that if it be pleaded that there is no such record there is no trial by witnesses, jury or otherwise than by the court inspecting the record itself.^ The court being bound to take judicial notice of the laws, no plea can be necessary or permitted denying the existence of the record of an act of parliament. In Prince's Case 2 it was resolved " that against a general act of parlia- ment, or such act whereof the judges ex officio ought to take notice, the other party cannot plead mil tiel record; for of such acts the judges ought to take notice ; but if it be misrecited the party ought to demur in law upon it. And, in that case, the law is grounded upon great reason ; for God forbid, if the record of such acts should be lost or consumed by fire or other means, that it should tend to the general prejudice of the commonwealth; but rather, although it be lost or con- sumed, the judges, either by the printed copy, or by the record in which it was pleaded, or by other means, may inform themselves of it," ^ § 28. Legislative records. — The conclusiveness of records is a conclusion of the common law. We have in America the common law so far as it is suited to our condition. A tech- nical record here has the same effect as by the common laAv of England, except as it is modified by the written law, or con- ditions are so changed as to render the common law inappli- cable. The conditions in respect to legislation in this country, where a mandatory procedure is prescribed in a constitution, are not the same as in England.* statute rolls, and then issued out ' 2 Black. Com. 331. VTits to the sheriffs, with transcript of - 8 Coke, 28. the statute rolls, viz, : of the bill » Dwarris on St 613 ; Sherman v. drawn at first in the form of a stat Story, 80 Cal. 276 ; Eld v. Gorham, 20 ute and without the answer of the Conn. 8. king, lords and commons, to the bill, * Tlie dissenting opinion of Smith, to procliiiui the statute. Bac. Abr, C, J., in Green v, Weller, 32 Miss. 704, title Court of Pai-liament, F. is instructive on this point lie says : 32 THE LEGISLATURE, ETC. § 29. A legislature in our republican system of government is a representative body. Its power is delegated by a charter from the people — a constitution. This is a sacred instrument, " In Great Britain there is no written fundamental law defining and lini- iting the powers of the government, by which the valicUty of the acts of any of the departments may be tested. The parliament, in a poUtical and legislative sense, is omnipotent and suprema The power and jm'isdic- tion of parliament, says Lord Coke, ai-e so ti'anscendent and absolute that it cannot be confined, either for causes or persons, witliin any bounds. 4 Inst. 36. 'And so long,' adds Sir Wilham Blackstone, 'as the British constitution lasts, it may be safely afiirmed that the power of parUa- meut is absolute and imcontroUed.' 2 Com. 162. "A void act of legislation neces- sarily Implies the existence of a su- perior and controlling power in the state. There are but two conceivable reasons for which an act can be void. First, for want of power in the legis- lature to pass it Second, because it has not been passed in the method required to make it vaUd. And the universally received doctrine in Eng- land is, that an act of parliament of which the terms are explicit, and the meaning plain, cannot be questioned or its authority controlled iu any court whatever. The idea, therefore, of an unconstitutional law of parUa- ment can have no existence imder the English system of government The parliament rolls, which are ti"an- scripts of the acts, made up imder the supervision of ofScers appoiuted by parliament, and declared by law to be records, necessarily, I may say naturally, are conclusive evidence of the existence of the statute, and im- ply the due performance of the nec- essary prerequisites in their enact- ment It is a rule which flows from the absolute and unlimited jurisdiC" tion and power of parhament ''The principles of the conmion law, unsuited to our condition, or re- pugnant to the spirit of our govern- ment have no existence within this commonwealth. It required no act of positive legislation to repeal them. They have been excluded by the si- lent operation of our institutions. It is clear, therefore, that this rule, as a principle of the common law, can have no operation witliin this state. "For tinder the American theory of government the jus summi im- perii, the supreme, absolute, uncon- trolled authority does not reside in any of the departments of the gov- ernment, nor in all of them united. It is inherent in the people, from whom aU power is derived, and upon whose consent all government is founded. The constitution derives its existence from the immediate act and consent of the people. It is a law to the government which derives its just powei"S therefrom, or from the assent of the governed, for whose benefit that power is intrusted. As the constitution is the supreme law, aU the acts of the government or the departments thereof, done in contra- vention of its provisions, are inopera- tive and void. An act of the legisla- ture which has not been passed in conformity with the du-ections of the constitution, is equally void with one whose terms violate its provisions. Bill of Rights, art 3. " The judiciary, like all the depart- ments, are bound by the constitution, and sworn to support it. It is, there- fore, their duty to pronounce an act of the legislature null, and to refusa THE LEGISLATUEEj ETC. 33 and upon it as a foundation is reared the whole faljric of our civil government. It confers all the powers deemed necessary to that government ; in its limitations is all the security of the people against usurpation. Thercf(jre, it is one of the benefi- cent axioms of our constitutional jurisprudence that the peo- ple are the source of all the power possessed and exercised by the organized state ; its restrictions are of the nature of pro- hibitions and mandatory. The authority which confers the power to make laws has the acknowledged right to qualify the grant and peremptorily regulate the exercise of the power conferred ; so that acts of legislation to be valid must not only be within the grant and not exceeding the restrictions im- posed, but also be passed or adopted in the mode or by the procedure prescribed.^ § 30. Effect of coKstitiitional provisions prescribing par- liamentary procednre. — The federal constitution and that of nearly every state in the Union contain directions in respect to the manner of enacting as well as of authenticating stat- utes. These directions vary in terms and to considerable ex- tent in substance. As to some very important particulars compliance will not appear upon the face of the statute. The procedure thus regulated and directed includes the meeting of the two houses, their action respectively in the introduction, amendment and passage of bills, communications between the houses, the time of presenting bills to the governor for ap- proval, and of his action thereon. In part their procedure is historically entered, and in some particulars required to be en- tered in the legislative journals; in part it so occurs that ma- terial points will not be or are not required to be mentioned in any record or official memorial ; as for instance when a bill is presented to the governor, or when he approves it. Legisla- tive journals were in use in the British parliament at the time to give it effect, if it be void for either ^ Legg v. Mayor, etc 42 Md. 203 ; of these causes." Moog v. Randolph, 77 Ala. 597 ; Jones In Sherman v. Story, 30 CaL 253, is v. Hutchinson, 43 id. 721 ; Perry a lucid and thorough exposition of County v. Railroad Ckx 58 id. 546; the common law on tliis subject, and Moody v. State, 48 id. 115 ; S. C. 17 it seems to have been properly ap- Am. R 28 ; Supervisors v. Heenan, 2 plied to the case under consideration, Minn. 330. for there was no departure from a constitutional practice complained of. 3 34 THE LEGISLATURE, ETC. our legislative practice under constitutions commenced, and had been for centuries. If the process of enacting laws is not regulated by constitution; or if so regulated, the provisions on that subject are deemed addressed solely to the law-mak- ing dej^artment, the journals hold the same place in our polity and jurisprudence as is assigned to them by the common law. They cannot be appealed to to impeach the regular record of a statutory" enactment. That record whatever it may be im- ports absolute verity ; imports the regular enactment of the statute by the proper forms of legislation ; it speaks in its own words the sovereign will. Found in the proper custody it proves and identifies itself; it is a record not to be contra- dicted by the legislative journals, nor by any other evidence.^ §31. States holding statutes conclusive — 3Iissouri. — If the enrollment or original record of a statute is regular on its face ; that is, if the act is framed with no infirmity on its face, is duly promulgated,^ or properly authenticated and deposited in the proper office, it is conclusively presumed to have been regularly enacted ; the record is invulnerable to collateral at- tack and proves itself. This is the rule in several states having constitutions regulating the legislative procedure and requir- ing legislative journals to be kept. A leading case on this subject is Pacific Railroad v. The Governor.^ The act under discussion had been vetoed by the governor, and the question was whether it had been subsequently passed by the proceedings required by the constitution.* 1 Sherman v. Story, 30 CaL 253 ; on the journal, at the desire of any People V. Burt, 43 id. 560 ; RaDroad two members." Art. 3, sec. 18. Tax Cases, 13 Fed. Rep. 722. See ante, Sec. 21. " Bills may originate in § 28 ; post, § 52. either house, and may be altered, 2 State Lotteiy Co. v. Richoux, 23 amended or rejected by the other ; La. Ann. 743 ; S. C. 8 Am. R. 602 ; and every biU shaU be read on three Whited V. Lewis, 25 La. Ann. 568. different days in each house, unless 3 23 Mo. 353. two-thirds of the house where the * The case arose under the constitu- same is depending shall dispense tion of 1820, which contained these with tliis rule ; and every bill, having provisions : ". . . They [the houses] passed both houses, shall be signed by shall each, from time to time, pubUsh the speaker of the house of represent- a journal of their proceedings, except atives and by the president of the such parts as may, in their opinion, senate." require secrecy ; and the yeas and Art. 4, sec. 10. " Every bill which nays on any question shall be entered shall have been passed by both houses THE LEGISLATURE, ETC. 35 Scott, J., delivering the opinion of the court, used this lan- guage : " Whilst the power of the courts to declare a law un- constitutional is admitted on all hands as being necessary to preserve the constitution from violation, j^et such power is claimed and exercised in relation to laws which show on their face that the constitutional limit has been transcended. The rea- son of this principle limits the claim of jurisdiction to such cases. The constitution is designed to limit the powers of the gov- ernment, and to confine each of the departments to its appro- priate sphere. If the legislature exceed its powers in the enactment of a law, the courts being sworn to support the con- stitution must judge that law by the standard of the constitu- tion and declare its [in]validity. But the question whether a law on its face violates the constitution is very different from that growing out of the non-compliance with the forms required to be observed in its enactment. In the one case a power is exercised, not delegated, or which is prohibited, and the question of the validity of the law is determined from the language of it. In the otlier, the law is not, in its terms, con- trary to the constitution ; on its face it is regular, but resort is had to something behind the law itself in order to ascertain whether the general assembly, in making the law, was gov- erned by the rules prescribed for its action by the constitution. This would seem like an inquisition into the conduct of the members of the general assembly, and it must be seen at once that it is a very delicate power, the frequent exercise of which must lead to endless confusion in the administration of the law." § 32. Further on in the opinion the learned judge said : ^ " The sense of the words in which the forms to be observed in lesfis- of the general assembly, shall, before to pass the same, it shall be sent to- it becomes a law, be presented to the gether with the objections to the governor for his approval. If he ap- other house, by wliich it shall be in hke prove, he shall sign it ; if not, he shall manner reconsidered, and if approved return it, with his objections, to the by a majority of all the members house in which it shall have origi- elected to that house, it shall become nated, and the house shall cause the a law. In all such cases the votes of objections to be entered at large on both houses shall be taken bj- yeas its journal, and shall proceed to re- and nays ; the names of the persons consider the bill. If, after such rccon- voting for and against the bill shall sideration, a majority of all the mem- be entered on the jomnal of each bers elected to tliat house shall agree hovise respectively. , . ." 36 THE LEGISLATUEE, ETC. lation are prescribed may be matter of doubt. Different opinions may be entertained as to the meaning of the language in which they are expressed, as well as to the end or object of them. This very case furnishes an illustration of the truth of this remark. The members of the general assembly may con- scientiously believe that they have pursued the constitutional course.^ But to give the executive and judicial departments a right to revise this exercise of their judgment, would it not be subjecting the legislature to a surveillance which, instead of making it a co-ordinate department, would subject it to a de- pendence on the others ? There is a fitness in making each department the sole judge of the rules prescribed for its con- duct ; this is necessary to render them co-ordinate, and not dependent on each other. . . . We do not maintain that 1 In State v. Mead, 71 Mo. 266, the conditions here deprecated were fully- adopted as a result of subsequent changes in the constitution. The act in question was passed under a con- stitution containing the following provision : " No bUl shall become a law until the same shaU have been signed by the presiding officers of each of the two houses in open session. And be- fore such officer shall affix his signa- ture to any bill he shall suspend all other business, declare that such bUl wiU now be read, and that if no ob- jection be made he will sign the same, to the end that it shall become a law. The bUl shall then be read at length, and if no objection be made he slmll in the presence of the house, in open session, and before any other business is entertained, affix liis sig- nature, which fact shall be noted on the journal and the bill immediately be sent to the other housa When it reaches the other house the presiding officer thereof shall immediately suspend all other business, announce the reception of the biU, and the same proceedings shall thereupon be ob- served in every respect as in the house in which it was first signed. If in either house any member shall object that any substitution, omission or insertion has occurred, so that the bOl proposed to be signed is not the same in substance and form as when considered and passed by the house, or that any particular clause of this article of the constitution has been violated in its passage, such objec- tions shall be passed upon by the house, and, if sustained, the pi^esiding officer shall witliliold liis signature, but if such objection shaU not be sustained, then any five members may embody the same over their signatui-es, in a written protest, under oath, against the signing of the bill. Said protest, when offered in the house, shall be noted upon the jour- nal, and tlie original shall be annexed to the biU to be considered by the governor in connection therewitli." The first clause was held manda- tory, but the others directoiy, except that in case of protest they were sub- mitted with the bill to the governor, and to be considered by him, — that tills was the remedy provided by the constitution for any supposed infrac- tion of those clauses. THE LEGISLATUEE, ETC. 37 the legislature can prevent a scrutiny into its acts, whicli the constitution designed should be made, by any mode of authen- tication it may adopt. We have endeavored to show that the constitution never contemplated that ol)joctions of the charac- ter urged against the law whose validity is now under consid- eration should be raised against a bill passed with the approval of the governor. There is no reason Avhy objections of Uke character should be raised against a bill passed against his will. . , . Upon the whole, we are of the opinion that the objections taken against the mode of passing this law by the general assembly on its reconsideration are untenable, and the constitution and law preclude an inquiry as to the exist- ence of such objections ; the constitution regarding the provis- ions alleged to have been violated in the passage of this law as merely directory, and, being so, a departui'e fi'om them, even if there was a departure, would not render the law void." § 33. Statute-record conclusive in Louisiana and Mis- sissippi. — All the constitutions of Louisiana have required each house of the general assembly to keep and publish weekly a journal of its proceedings, and to enter therein the yeas and nays of the members on any question at the desu'e of any two of them. And also has provided that " Ko bill shall have the force of a law until on three several days it be read in each house of the general assembly, and free discussion be allowed thereon, unless, in case of urgenc}^, four-fifths of the house where the bill shall be depending deem it expedient to dis- pense with this rule." In State Lottery Co. v. Eichoux,^ it was said by the court : " When a legislative act is duly pro- mulgated according to the constitution and laws under which it is passed, we find no authority in the judiciary department to look behind it and determine its validity or invalidity fi'om the proceedings of the general assembly in adopting it. Such a course, it would seem, is not sustainable on the theory of the independent and separate action of the three branches of the state government. Where a legislative act is attacked on the ground that it contains provisions that are unconstitu- tional, the question of its validity is properly within the scoi>e of judicial action. The courts have power, when a constitu- 123 La. Ann. 743; S. C. 8 Am. R. 603. See Whited v. Lewis, 35 La. Ann. 568. 38 THE LEGISLATURE, ETC. tional question is raised, to examine whether the thing ordered, permitted or forbidden to be done may have effect under the sanction of the constitution. The question should be, is the law itself constitutional as to its provisions and what it de- clares, and not whether it is constitutional as to the manner of its enactment or the proceedings by which it was enacted." § 3-4. In Mississippi the same subject was thus discussed in Green v. Weller : ^ "It may be that legislative acts may be passed without a compliance with the requii'ements of the con- stitution. If such defect or violation appear on the face of the act, or by that which constitutes the record, which can be ju- dicially noticed, the power of the court to determine the ques- tion is indisputable. But if the proper record shows that the act has received the sanctions requu-ed by the constitution as evidence of its having been passed agreeably to the constitu- tion, and its provisions be not repugnant to the constitution, the regularity and stability of government and the peace of society require that it should have the force of a valid law." ^ § 35. Same — In other states. — The constitution of ]N"evada requires particular proceedings in the passage of a legislative act. Each house must keep a journal of its own proceedings which shall be published ; that " every bill shall be read by sections on tliree several days in each house, unless in case of emergency two-thirds of the house where such bill may be pending shall deem it expedient to dispense with this rule; but the reading of a biU by sections on its final passage shaU. in no case be dispensed with, and the vote on the final passage of any biU or joint resolution shall be taken by yeas and nays to be entered on the journals of each house ; and a majority of all the members elected to each house shaE be necessary to pass every bill or joint resolution ; and all bills or joint resolu- tions so passed shall be signed by the presiding officers of the respective houses, and by the secretary of the senate and clerk of the assembly." '^ It is there held that the court, for the purpose of informing itself of the existence and terms of a law, cannot look beyond the enrolled act certified by these offi- cers who are charged by the constitution with the duty of 1 32 ]VIiss. G90. 3 Art. 4, sec. 18. 2 Const. 1868, art. 4, sees. 14, 23. See Swann v. Buck, 40 Miss. 268. THE LEGISLATURE, ETC 39 certifying and with the duty of deciding what laws have been enacted.^ Like rulings have been made under similar con- stitutional provisions in Pennsylvania,^ lowa,^ Kew Jersey * 1 State V. Swift, 10 Nov. 17C ; Staoe V. Gleun, 18 id. 39. 2 Const 1873, art. 3, sec. 4 ; art 2, sec. 12; Commonwealth v. Martin, 107 Pa. St 185 ; Kilgore v. Magee, 85 id. 412. 3 Const 1846, art 3, sees. &, 11; Const 1857, art 3, sees. 9, 17 ; Clare V. State, 5 Iowa, 510 ; Dmicombe v. Prindle, 12 id. 1. 4 Const 1876, art 4, sec. 4. In tlie leading case in that state on this sub- ject (Paugborn v. Young, 32 N. J. L. 29), the court by Beasley, C. J., said : " From the earliest times, so far as I am able to ascertain, it has been tlie invariable course of legislative prac- tice in tliis state, for tlie si)eaker of each house to sign the bill as linally engrossed and passed. It is likewise certified by indorsement by the clerk of the liouse in Avliich it originated. Witli tliese attestations of authentic- ity upon it, it is then tiled in the of- fice of the secretary of state. Tliis has been tlie coiu-se of proceeding from certainly a very remote period to the present tune ; under our pres- ent constitution tlie written ai)proval of the governor is requisite. There seems, therefore, to be no doubt whatever that these copies, thus au- thenticated and filed, are to be re- gai'ded as enrolled bUls, con-espond- ing in then* general character, and partakuig, if not in all, at least in most respects, of the nature of par- liamentary rolls. In the statute book they are frequently referred to as en- rolled bills; and if we go back to provincial times we find indorsed upon these copies, with the executive approval, a direction to enroll them, winch meant nothing more than to tile them. These are the character- istics and nature of the copies of leg- islative bUls deposited according to the ordinary routine in the office of the secretary of state. . . . The principal argument in favor of this judicial appeal from the enrolled law to the legislative journal, and which was much pressed in the discussion at tlie bar, was, that the existence of this power was necessary to keep the legislatm-e from overstepping tlie bounds of the constitution. The course of reasoning urged was that if the court cannot look at the facts and examine the legislative action, that department of the government can, at will, set at defiance, in the en- actment of statutes, the restraints of the organic law. Tliis argument however specious, is not sohd." The answer of the court, briefly stated, was that if the legislature intends a violation of the constitution in the enactment of a statute it is futile to rely on its journals or any exti'iusic evidence to show tlie irregularitj-. The journals are imder its duection, and not kept nor authenticated in a manner to weigh as evidence against enrolled acts. " In my estimation," said the chief justice, " the docti'ine in question if entertained would, as against legislative encroachments, be useless as a guard to the constitution, and it certainly would be attended with many evils. Its practical appli- cation would be full of embaiTass- nient If the courts, in order to test the validit}' of a statute, are to draw the compai'ison between the enrolled copy of an act and tlie entries on the legislative journal, how great, to have the elTect of exploding the act must be tlie discrepancy befsveen the two? Will the omission of any provision, 40 THE LEGISLATURE, ETC. and jSTew York since the adoption of the constitution of 1846.1 § 36. Evidence of statutes iu New York.— Though the con- stitution of New York provides that the votes requhed on the passage of bills shall be taken by yeas and nays and en- tered on the journals, it is nevertheless held that a certificate made pursuant to a statute by the secretary of state on acts being deposited in his office, certifying the day, month and year when the same became a law, excludes all resort to any other evidence of its passage, and makes the act so deposited and certified the original record of it, invulnerable under the com- mon-law rules applicable to enrolled acts of parliament. The statute 2 provides that such certificate shall be conclusive evi- dence of the facts therein declared.^ § 37. Same — State of Indiana. — The Indiana constitution of 1851 required each house to keep a journal of its proceed- ings and publish the same.* It also provides that " every biU shall be read by sections, on three several days in each house, unless, in case of emergency, tAvo-thirds of the house where such bill may be depending shall, by a vote of yeas and nays, deem it expedient to dispense with this rule ; but the read- ing of a biU by sections, on its final passage, shall in no case no matter how unimportant, liave given to tlie judiciary, to inquii-e into that effect? Tlie difficulty of a satis- tlie veracity of the certificate by factory answer to tliese and similar which tlie legislature by its officers inteiTOgatories is too apparent to need authenticates its enactments. In the comment. And, again, to notice one opinion of the court, the power to among the many practical difficul- certify to the public laws itself has ties which suggest themselves, what enacted is one of the trasts of the is to be the extent of the application constitution to the legislatm-e of the of this docti-ine? If an enrolled stat- state. ute of tliis state does not carry witliin » Art. 3, sees. 11, 15 ; People v. Su- itself conclusive evidence of its own pervisors, 8 N. Y. 317, 327, 328. authenticitjs it would seem that the 2 1 R, s. p. 187, §§ 10, 11. same principle must be extended to 3 See People v. Devhn, 33 N. Y. the statutes, however authenticated, 369, 283 ; People v. Commissioners, of other states." The court also men- 54 id. 276 ; Purdy v. People, 4 Hill, tions that m the frame of the state 384 ; People v. Purdy, 2 id. 31 ; De- govemment there are tliree co-ordi- Bow v. People, 1 Denio, 14 ; Warner nate branches, in aU things equal v. Beers, 23 Wend. 125 ; Thomas v. and independent, each in its sphere Dakin, 22 id. 9. tiie trusted agent of the public ; and * Ai't. 4, sec. 13. it is arrogating an authority, not TUE LEGISLATUKE, ETC. 41 be dispensed with ; and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays." ^ By an- other section it is declared that " a majority of all the mem- bers elected to each house shall be necessary to pass every bill or joint resolution ; and all bills and joint resolutions so passed shall be signed by the presiding officers of the respective houses." '^ A like vote after a veto will adopt the bill, and give it the force of law; but no similar certificate of the pre- siding officers in that case is provided for.' If the governor fail for three days, Sundays excepted, to act upon a bill after it is presented to him, it becomes a law without his signature, unless a general adjournment prevents its return, and he does not, within five days after the adjournment, file his objections thereto in the office of the secretary of state. Xo verifica- tion of these facts appears to be provided for in the constitu- tion preliminary to the deposit of the act with the secretary of state. The constitution also prohibits the presentation to the governor of any bill during the last two days before the final adjournment. § 38. In Evans v. Browne,* the act appears without the gov- ernor's approval. It Avas accompanied, however, by a state- ment signed by the governer, and it may be inferred he caused it to be filed. In his statement he explains that it was a house bill amended in the senate, and the amendments concm-red in by the house the day after forty-two members had resigned by delivering their resignations to him in writing, and thereby as clauned reducing the number below a constitutional quorum. The biU was certified by the presiding officers. It was held that where a statute is authenticated by the signature of the presiding officers of the two houses, the courts wUl not search further to ascertain whether such facts existed as gave constitutional warrant to those officers to thus authenticate the act as having received legislative sanction in such manner as to give it the force of law. The court say : '' The f ramers of our govermnent have not constituted it [the judiciary] with faculties to supervise co-ordinate departments and cor- rect or prevent abuses of their authority. It cannot authenti- cate a statute; that power does not belong to it; nor can it » Ai-t 4, sec. 18. 'See art 5, sec. 14. ■i Art i, sec 20. ^COIml 514. 42 THE LEGISLATUEE, ETC. keep the legislative journal. It ascertains the statute law by looking- at its authentication, and then its function is merely to expound and administer it. It cannot, we think, look be- yond that authentication, because of the constitution itself." § 39. In Bender v. State,^ it was held not for the court to look beyond the enrolled act of the legislature to ascertain whether there had been a compliance with the injunction of the consti- tution that " 'No bill shall be presented to the governor within the last two days next preceding the final adjournment of the general assembly." ^ § 40. It thus appears that in these several states legislative acts may be em'oUed ; that is, become of record in the ofiice of the secretary of state by agencies not appointed in the con- stitution, and without any verification on certain points as to which there are positive directions or prohibitions in the constitution, without verification by any ofiicer charged in the constitution with the duty to know the essential facts, or standing in such relation to the people that in his certificate should be reposed an abs0i.ate confidence that the require- ments of the constitution have been obeyed in all the pro- cedure which it regulates. If it may be said that there are no certificates requu-ed by the constitution to authenticate the journals, so it may be said that none is so required to verify the entire process of enactment, whether the act be enrolled with or without executive approval. The printed statutes under all the authorities may be cor- rected by reference to the enrolled act, especially if the dis- crepancy is pointed out before pubhc acquiescence in or ratifi- cation of the statute as pubhshed. ^ 1 53 Ind. 254 1868, art. 4, § 25 ; Const 1866, art 5, 2 In the Texas constitution the gov- § 17. eruor must act on every bill presented ^ Hulburt v. Merriam, 3 Mch. 144 ; to him one day previous to the ad- Reed v. Clark, 3 McLean, 480 ; People journment of the legislature before v. Commissioners, 54 N. Y. 276 ; Greer the adjournment ; otherwise it will v. State, 54 Miss. 378 ; De Bow v. Peo- become a law without his approval ; pie, 1 Denio, 9 ; Rex v. Jefferies, 1 and under it it is held that the gov- Strange, 446. ernor must have the bill at least It was held in Town of Pacific v. twenty-four hours before the ad- Seifert 79 Mo. 210, that the original journment Hyde v. White, 24 Tex. roU, as deposited with the secretary 137 ; Const 1845, art. 5, § 17 ; Const of state, is the best evidence of a leg- THE LEGISLATUKE, ETC. 43 § 41. Constitutional regulations of procedure, where man- datory. — The authority of the organic law is uuiversally ac- knowledged; it speaks the sovereign will of the people. The sovereign power of the state being inherently in them, their injunctions in the constitution regarding the process of legisla- tion is as authoritative as are those touching the substance of it. If the former are treated as directory to the legislature, acts passed in violation of them, either by intention, inad- vertence, or erroneous construction, are nevertheless vahd; and the same would be true of like violations of the constitu- tion in respect to the substance of legislation. The law has always been recognized as clear and indisputable, and has been settled without dissent, that acts which are unconstitutional on their face are nullities. And it was settled early in our constitutional jurisprudence that it was the peculiar function and duty of the judiciary to pronounce on then' validity. In the exercise of this function the judiciary docs not trench on the domain of the legislative department, though it pronounces judgment on its official work. The courts are bound bv stat- utes when they are constitutional, but when otherwise it is the duty of the courts to treat them as void. Acts which con- travene any provision of the constitution in their substance are invalid though the constitution has not declared that con- sequence. The function of the courts is the same to deter- mine the validity of acts questioned on the ground of having been passed by a proceeding not in accordance with the pro- cedure prescribed in the constitution. In a large majority of the states in which the question has arisen, the courts have islative enactment. Wliere, however, tion of the defendant upon tlie trial, there is a discrepancy between the about twenty years after the euact- charter of the town as pubUshed in nient of the chai'ter, in an action by the printed laws of the state and the tlae town to recover of him tlie pen- statute roll on file in the office of the alty of ^90 for refusing to take out a secretary of state in this, that in the merchant's hcense as required by au former it was provided that the ordinance, it was held that, uuder trustees of the town might impose these exceptional circumsUuices, tlie fines for breach of any of the ordi- printed copy of tlie charter shuukl nances not to exceed twenty dollars control in determining the defend- in amount, and in the latter the word ant's liability. See Att'y-General v. twenty was ninety, and for aught that Joy, 55 Mich. 94; Pease v. Peck, 18 appeared on the record this discrep- How. 595. ancy was first brought to the atten- 44 THE LEGISLATURE, ETC. held constitutional provisions in reference to parliamentary- procedure in legislation to be mandatory, and against permit- tiuo- any careless or dishonest officer's certificate or use of the great seal, or filing for record of documents having the form of legislative acts, to give the force of law to such acts, if they have not been constitutionally enacted. These courts unite in holding that a valid statute can be passed only in the manner prescribed by the constitution ; and when the provisions of that instrument in regard to the manner of enacting laws are dis- regarded in respect to a particular act, it will be declared a nullity though having the forms of authenticity.^ § 42. Legislath e journals aud files as evidence. — The sub- ject of proof has been a prominent one in the discussion of the constitutional provisions relative to legislative procedure. The inconvenience, and sometimes great hardship, to the pub- lic resulting from allowing records and published statutes to be, at any time, modified or avoided by extrinsic evidence has been the principal cause of the diversity of judicial opinion 1 Legg V, Mayor, etc. 42 Md. 203 ; Berry v. Baltimore, etc. R. R. Co. 41 id. 446 ; S. C. 20 Am. R. 69 ; People V. Malianey, 13 Mich. 481 ; Green v. Graves, 1 Doug. 351 ; Att'y-General V. Joy, 55 Mich. 94 ; Meracle v. Dowm, 64 Wis. 323; South Uttawa v. Per- Mns, 94 U. S. 260 ; State v. Piatt, 2 S. C. 150 ; S. C. 16 Am, R. 647 ; State v. McLelland, 18 Neb. 236 ; Board of Su- pervisors V. Heenan, 2 Mimi. 330; State V. Hastings, 24 IMinn. 78 ; Bm-t V. Winona, etc. R. R. Co. 31 id. 472 ; S. C. 4 Am. & Eng. Cor. Cas. 426 ; Wise V. Bigger, 79 Va. 369 ; Fowler v. Peirce, 2 CaL 165 ; Smithee v, Camp- ■ bell, 41 Ark. 471 ; Webster v. Little Rock, 44 Ark. 536 ; Worthen Covmty Clerk V. Badgett, 32 id. 496 ; State v. Little Rock, etc. R. R, Co. 31 id. 701 ; State V. Crawford, 35 id. 237 ; Vin- sant V. Knox, 27 id, 266 ; Smithee v. Garth, 33 id. 17 ; Burr v. Ross, 19 id. 350; Post V. Supervisors, 105 U. S. 667; State v. Francis, 26 Kan. 724; WDlianis v. State, 6 Lea, 549 ; Gaines V. Horrigan, 4 Lea, 608 ; Memphis F. Co. V. Mayor, 4 Cold. 419 ; Spangler v. Jacoby, 14 111. 297 ; People v. Stame, 35 id. 121 ; Ryan v. Lynch, 68 id. 160 ; Miller v. Goodwin, 70 id. 659 ; People V. DeWolf, 62 id. 253 ; Houston, etc. R. R. Co. V. Odum, 53 Tex. 343; Blessing v. Galveston, 42 id. 641; Opinion of Justices, 35 N. H. 579, 53 id. 622 ; Weill v. Kenfield, 54 CaL 111 ; County of San Mateo v. R. R. Co. 8 Sawyer, 238 ; S. C. 8 Am. & Eng. R R. Cas. 1 ; Moog v. Randolph, 77 Ala. 597 ; Jones v. Hutcliinson, 43 id. 721 , Perry Covmty v. R, R. Co. 58 id. 546 ; Dane v. McAithui-, 57 id. 454 ; Moody V. State, 48 id. 115 ; S. C. 17 Am. R 28; Sayre v. PoUard, 77 Ala. 608; State V. Buckley, 54 id. 599 ; Steia v. Leeper, 78 id. 517 ; Osburn v, Staley, 5 W. Va. 85 ; S. C. 13 Am. R 640 ; Gard- ner V. CoUector, 6 Wall. 499 ; State v. SmaUs, 11 S. C. 263 ; State v. Hagood, 13 S. C. 46 ; Bond Debt Cases, 12 id. 200 ; Lyman v. Martin, 3 Utah, 136 ; Brown v. Nash, 1 Wyoming, 85. THE LEGISLATUKE, ETC. 45 which exists on this subject. The tendency, however, of the law's growth is to preserve the supremacy of constitutional authority, leaving it to the wisdom of the legislature to mit- igate any incidental inconvenience by closer observance of the prescribed procedure, and more diligent attention to the mak- ing and preservation of a public record of the essentials. The cases cited in the preceding section hold the constitutional injunctions imperative; and as the constitutions require the ke3ping and publication of legislative journals, these are treated as sources of information to be relied on by the courts as well as the public. In Fordyce v. Godman,^ the court say " if it could be shown that the requisite vote were not given on the passage of a bill, and the evidence were rejected be- cause the })ill was properly authenticated, the court would, in effect, hold that a single presiding officer might, by his signa- ture, give the force of law to a bill which the journal of the body over which he presides and which was kept under the supervision of the whole body showed not to have been voted for by the constitutional number of members." The court con- cluded that " the plain provisions of the constitution are not to be thus nullified, and the evidence which it requires to be kept under the supervision of the collective body must control when a question arises as to the due passage of a bill." ^ § 43. The courts have been exceedingly conservative in their researches involving the validity of statutes having a regular record or authentication ; they have not opened the door to all kinds of evidence nor freely consulted all sources of in- formation. They have given great weight to such authentica- tion ; u-rcgularity by departing from a practice laid down by the constitution is not readily inferred, where written evi- dence should exist, in the absence of proof of that nature. The intention of constitutional provisions that they should operate as conditions, or be treated as mandatory, is inferred largely from the accompanying requirement that legislative journals be kept, preserved and given publicity by publication, and that certain steps in the process of legislation be therein 120 Ohio St 1. Ottowa v. Perkins, 94 U. S. 260; '-' Berliner v. Town of W. 14 Wis. Osburn v. Staley, 5 W. Va. 86 ; Berry 878 ; Bound 7. R R Co. 45 Wis. 543 ; v. Baltimore, etc. R. R Co. 41 :M(i Meracle v. Down, 64 Wis. 323 ; South 440 ; Legg v. Mayor, etc 42 MA 203. 4b THE LEGISLATURE, ETC. recorded.^ The parliamentary history of any act in question in the legislative journals and files is the only evidence which the cases generally recognize,^ though some cases intimate that other evidence may be considered.^ Parol evidence of the action of the two houses is excluded.* § 44. The journals, by being required by the constitution or laws, are records. At common law the legislative journals were not strictly records; while admissible in evidence for certain purposes as official memorials or remembrances, they were not admissible to show that an act of parhament had not been passed according to its own rules.* But when required, as is extensively the case in this country, by a paramount law, for the obvious purpose of showing how the mandatory pro ■ visions of that law have been followed in the methods and forms of legislation, they are thus made records in dignity, and are of great importance.^ The legislative acts regularly authenticated are also records ; the acts passed, duly authenti- cated, and such journals are parallel records, but the latter are superior when explicit and conflicting with the other, for the acts authenticated speak decisively only when the journals are silent, and not even then as to particulars required to be en- tered therein. In Gardner v. The Collector,^ Mr. Justice MiUer, speaking for the whole court on the question of proving the date of the president's approval of a bill, laid down this general rule : that " on principle as weU as authority, whenever a question arises lOsbum V. Staley, 5 W. Va. 80; 115; Gaines v. Harrigan, 4 Lea, 608; People V. Mahaney, 13 Mich. 481 ; Perry County v. R. R. Co. 58 Ala. Spangler v. Jacoby, 14 III 297 ; State 546 ; Jones v. Hutchinson, 43 id. 721 ; T. Buckley, 54 Ala. 599; Jones v. Stein v. Leeper, 78 icL 517; Spangler v. Hutchinson, 43 id. 721. Jacoby, 14 111. 297 ; S. C. 58 Am. Dec. -• Moog V. Randolph, 77 Ala. 597 ; 571. Osburn v. Staley, 5 W. Va 86 ; Hap- 3 state v. Piatt, 2 S. C. 150 ; S. C. 16 pel V. Brethauer, 70 111. 166 ; Wise v. Am. R. 647. Bigger, 79 Va. 269 ; State v. McLelland, . ^ Berry v. Baltimore, etc. R. R Co. 18 Neb. 236 ; Board of Supervisors v. 41 Md. 446 ; Wise v. Bigger, 79 Va, Heenan, 2 Minn. 330 ; People v. Ma- 269. haney, 13 Mich. 481; Webster v. 5 King v. Arundel, Hob. 110. Little Rock, 44 Ark. 536 ; Smithee ^ Opinion of Justices, 35 N. H. 579 ; V. Campbell, 41 id. 471 ; Weill v. 52 id. 622 ; Wise v. Bigger, 79 Va. Kenfield, 54 Cal. Ill ; State v. Fran- 269 ; State v. SmaUs, 11 S. C. 262. cis, 26 Kans. 724; Williams v. State, '6 Wa^ 499, 511. 6 Lea, 549 ; Moody v. State, 48 Ala THE LEGISLATURE, ETC. 47 in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to re- sort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory an- swer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule." § 4:5. A statute will not be declared void for having been enacted in violation of provisions of the constitutions relating to procedure on the admissions of parties in pleadings or other- wise, but only on facts being ascertained from proper evi- dence.' When it clearly appears by the journals and legislative files that any required proceeding was omitted ; as when one of the prescribed readings did not take place, or was by title, when required by sections or at length ; - or when it appears that the bill, passed by one branch of the legislature, was in materially differei t terms from the bill passed by the other branch, or when one branch wholly failed to pass it ; ^ or when the bill approved by the governor and authenticated as the law requires is materially different from the bill passed by the two houses,* it will be held a nullity. § 46. Presumption in favor of validity of statutes. — When an act is found lodged in the office of the secretary of state, with the public acts passed at the same session, signed by the presiding officers, approved and signed by the governor, and it is published by authority as one of the public statutes of the state, or is otherwise authenticated according to law, and in proper custody, the presumption is that it was regularly J Happel V. Brethauer, 70 IlL 166 ; Wolf, 62 111. 253 : Opinions of Justices, Legg V. Mayor, etc. 42 Md. 203. 35 N. H. 579 ; 52 id. 622. 2 Ryan V. Lynch, 68 IlL 160; Super- ••Moog v. Randolph, 77 Ala. 597; visors V. Heenan, 2 Minn. 330 ; Weill v. Moody v. State, 48 id. 115 ; S. C. 17 Kenfield, 54 C>aL 111; People v. Loe- Am. R 28; Jones v. Hutchinson, 43 wenthal. 93 111. 191 ; State v. Hagood, Ala. 721 ; Sayre v. Pollard, 77 id. 608; 13 S. C. 46. See Count}- of San Mateo Stein v, Leeper, 78 id. 517; Legg v. V. R R Co. 8 Am. & E. R R Cas. 1 ; Mayor, etc. 42 :Md. 203 : State v. S. C. 13 Fed. Rep. 722. Liedtke, 9 Neb. 462 ; Beny v. Balti- 3 Bound V. R R Co. 45 Wis. 543; more, etc. R R Co. 41 Md. 446; S. C. Jleracle v. Down, 64 id. 323 ; Wise 20 Am. R. 69 ; State v. Piatt. 2 S. C. V. Bigger, 79 Va 269 ; People v. De 150 ; S. C. 16 Am. R 647 ; State v. Hagood, 13 S. C. 46. 48 THE LEGISLATURE, ETC. passed, unless tliere is evidence of which the courts take judicial notice showing the contrary.^ The journals are records, and in all respects touching proceedings under the mandatory provisions of the constitution wiU be effectual to impeach and avoid the acts recorded as laws and duly authenticated, if the journals affirmatively show that these provisions have been disregarded. In the absence of such an affirmative showing, and even in cases of doubt, it will be presumed that a quorum was present; that the necessary readings occurred ;2 that amendments made by one branch, though extensive, were ger- mane ; ^ that they were concurred in by the other branch, though the journals may be silent.* § 47. As all particulars of compliance with the constitution are not specially required to be entered on the journals, such compliance will be presumed in the absence of proof to the contrary ; the silence of the journals will not be accepted as proof that a proceeding required and not found recorded was omitted, even though it be a proceeding required in the two houses, and such as would appear in the journals if it occurred and they contained a memorial of all that was done.' The presumjDtion of regularity is exemplified also in cases where notice is required to be published before application to the legislature for certain private or local legislation. In the absence of any entry in the journals showing such previous notice or alluding to it, it will be presumed in favor of the law, that such notice was given, and that the legislature ex- acted proof of it.® The legislature need not express on the iSee2X)sf,§ 52; Opinions of Justices, SMcCulloch v. State, 11 Ind. 424; 35 N. H. 579 ; 52 id. 622 ; Lamson v. Supervisoi-s v. People, 25 IIL 181 ; R. R. Co. 77 111. 11 ; State v. Francis, Miller v. State, 3 Ohio St 475. 26 Kan, 724 ; State v. McLelland, 18 ' Miller v. State, supra; Pack v. Neb. 236 ; People v. Briggs, 50 N. Y. Barton, 47 Mich. 520. 558 ; Williams v. State, 6 Lea, 549 ; * State v. Hastings, 24 Minn. 78 ; State V. IMcConnell, C id. 332 ; MiUer Walker v. Griffith, 60 Ala 361 ; Bless- V. State, 3 Ohio St 475 ; Supervisors ing v. Galveston, 42 Tex. 641 ; Miller v. V. People, 25 III 181 ; Perry County v. State, 8 Ohio St 475 ; Vmsant v. Knox, R R Co. 58 Ala. 546 ; Bound v. R R 27 Ark. 279 ; English v. OUver, 28 id. Ca 45 Wis. 543 ; Harrison v. Gordy, 317 ; Usener v. State, 8 Tex. App. 177 ; 57 Ala, 49 ; People v. Loewenthal, 93 Worthen v. Padgett 32 Ark. 616 ; lU. 191 ; Speer v. Plank R Co. 22 Supervisors v. People, 25 HI. 181. Pa. St 376; Wise v. Bigger, 79 Va. »Id. 269. « Walker v. Griffith. 60 Ala. 361: THE LEGISLATURE, ETC. 49 Journals the cause, or the facts constituting the occasion or urgency, for dispensing with the rule requiring three readings on different days when it has power to dispense with it.^ § 48. If the constitution, however, requires a certain pro- ceeding in the process of legislation to be entered in the jour- nals, the entry is a condition on whicli the validity of the act will depend. The vital fact that on the final passage of a bill the required number of votes are given in its favor is exten- sively directed by constitutions to be entered on the journals. Under the operation of these provisions, there is no presump- tion that the required vote was given if the journal is silent. It must affirmatively appear by the journals that this constitu- tional requirement has been comphed with.- Harrison v. Gordy, 57 id. 49; Mc- Kemie v. Gorman, 68 id. 442 ; Brod- nax V. Groom, 64 N. C. 244 ; Speer v. Mayor, etc. 42 Alb. L. J. 232 (Ga.). i HuU V. IMiUer, 4 Neb. 503. 2 State V. Buckley, 54 Ala. 599; State V. Francis, 26 Kan. 724 ; In re Vanderberg, 28 id. 243; AVeyand v. Stover, 35 id. 545; South Ottawa V. Perkins, 94 U. S. 260; People v. Mahauey, 13 Mich. 481 ; Spangler v. Jacoby, 14 111. 297 ; People v. Starne, 35 id. 121 ; Ryan v. Lynch, 68 id. 160 ; Post T. Supervisors, 105 U. S. 667; Osburn v. Staley, 5 W. Va. 85 ; Boul- din v. Lockliart, 1 Lea, 195. \Miere it appeared upon the joiir- nals of the house of representatives that the bill did not receive the requi- site vote on its third reading in that body, but did ujwn its final passage by the house after its retm-n from the senate with amendments, it was held a substantial compliance. Bond Debt Cases, 12 S. C. 200. In Osburn v. Staley, aiipra, it ap- peared that the full senate had con- sisted of tAventy-tAvo members; that one afterwards resigned. On the final passage of the bill in question, after such resignation, there -sAcre eleven votes in its favor, and it was 4 declared passed and by a majority of the members elected. Held, that there was doubt whether the vote was not sufficient, and the act was sustained by resolving the doubt in favor of its vahdit}'. In State v. Francis, supra, the act in question was passed in the house by a vote in its favor, including to make the requu-ed majority, the votes of f om' members (who were identified) beyond the maximum membei-sliip fixed by the constitution ; held void. Under the ]Micliigan constitution, requiring on the final passage of a bill a majority of all the membei-s elected, it was held that the court woidd not enter into an inqiiiiy whether cle facto members were properly electecL People V. Mahauey, supra. In Tiu-ley v. Coimt^- of Logan, 1 7 HI. 153, it was said by the comi; that "while the absence of facts in tJie joruTials may rebut the presumption raised by the signatures of the proper officers, and the publication of tlie act as a law, stUl we cannot doubt the power of the same legislature, at the same or a subsequent session, to correct its own jomnals by amend- ments wliich show the true facts as they actually occurred, when they 50 THE LEGISLATURE, ETC. In Miller v. State,^ Thurman, C. J., used this emphatic lan^ guage : '" That the power to make laws is vested in the assem- bly alone, and that no act has any force that was not passed by the number of votes required by the constitution, are nearly or quite self-evident propositions. These essentials relate to the authority by which, rather than to the mode in which, laws are to be made." § 49. Required readings of bills. — The readings required of bills are intended to afford opportunities for deliberate con- sideration of them in detail, and for amendment.- Hence, amendments are admissible during the progress of a bill through the process of enactment ; they are not subject to the same rule as bills in regard to the number of readings. They must be germane to the subject of the bill, and are not re- quired to be read three tunes.* Nor does concurrence by one house in amendments made by the other require the yeas and nays, and their entry on the journal, under the provision for these things on the final passage of bills.* It is not necessary that everything which is to become law by the adoption of a bill be read. Thus a bUl may be passed for the adoption of the common law, and it would not be nec- essary to set it forth in the bill. An act was held valid which provided for the punishment as at common law of misdemean- ors for which no punishment was provided by statute.^ The requirement that bills be read on different days will not prevent one house from reading a bUl the first time on the same day it was read the third time and passed in the other house.^ § 50. What shall be sufficient cause for suspending the rule requiring the readings on different days is solely within the discretion of the legislative body voting it, where power to dispense with it is given.'' are satisfied that by neglect or design * Hull v. ^Rliller, 4 Neb. 503. the truth has been omitted or sup- ^ Dew v. Cunningham, 28 Ala. 471 : pressed." Dane v. McArthur, 57 Ala. 454 ; Peo- 1 3 Ohio St. 475. pie v. Wliipple, 47 Cal. 593; Bibb 2 State V. Piatt, 2 S. C. 150 ; S. C. 16 County Loan Asso. v. Richards, 21 Am. R. 647. Ga 592. 3 Miller v. State, 3 Oliio St 475 ; 6 Chicot Co. v. Davies, 40 Axk. 200 ; People V. Wallace, 70 IlL 680 ; State State v. Crawford, 35 id. 2«7. V. Piatt, mpra. 7 Hull v. Lliller, 4 Neb. 503. THE LEGISLATUKE, ETC. The requirement that there be three readings and that they occur on three different days, being intended to prevent hasty and imprudent legislation, ought on principle to be, and by the weight of authority is, regarded as mandatory.' In Ohio it seems to be regarded as direct ory.- § 51. Necessity of signature of presiding officers.— T7here the constitution requires every bill passed to be signed by the presiding officers of the respective houses, it is mandatory, and cannot be dispensed with where the journals are not rec- ords, and the act when passed and duly authenticated is con- clusive as a record. But where such fact is required to be en- tered on the journal it is necessary as the evidence of the due passage of the bill.'' If the constitution does not require their signing, it is not deemed essential.'' And since it is no part of the essential process of legislation, and is designed solely to verify the passage of the bill or resolution, where the legis- lative journals and files are records of which the court takes judicial notice, or which may be brought to judicial notice, and fi'om them it plainly appears that the bill or resolution, not signed by one or both of the presiding officers, was regu- larly considered and passed, there is much reason to sustain it as valid notwithstanding the absence of those signatures. If that evidence will prevail to avoid a statute erroneously signed by them, it should suffice to sustain one which was duly passed, though lacking that particular verification, if the other record evidence sufficiently shows the essential proceed- ings.^ The signature of the presiding officer is in such cases only a certificate to the governor that the bill or resolution has passed the requisite number of readings, and been adopted by the constitutional majority of the house over which he pre- sides. But where the vote must be determined by the jour- nals, the absence of the signatures of the presiding officers is not fatal, if the governor has signed the bill, for it wiU be pre- 1 Ante, § 45 ; Cooley, Const L. 170. * Speer v. Plank Road Co. 22 Pa. St miller V. State, 3 Oliio St 481; 376. Pirn V. Nicholson, 6 id. 178, s Hull v. IMiUer, 4 Neb. 503 ; Cot- ' People V. Commissioners, 54 N. Y. trell v. State, 9 Neb. 138 ; Commis- 276; Pacific R R. Co. v. The Gov- sioners v. Higginbotham, 17 Kan. eraor, 23 Mo. 364 ; Cooley's Const 75 ; State v. Glenn, 18 Nev. 39 ; Hous- Lim. 153 ; Burrough, Pub, Securities, ton, etc. R R Co. v. Odum, 53 Tex. 425. 343. 52 THE LEGISLATURE, ETC. sumed that tlie governor had suflBcient evidence, the assur- ance which the journals afford to t'\e court, of its passage at the time of his approval § o2. How the validity of statutes is tried. — The court takes judicial notice of all general laws. This is a cardinal rule, and necessarily includes cognizance of whatever must be considered in determining what the law is ; not because it is the prerogative of the courts arbitrarily to determine what are the pubhc statutes, nor because they are required or sup- posed to have a knowledge of those laws without evidence of them, but because they have the means, and it is their duty, to make themselves acquainted with tliem.^ "Whatever ex- trinsic facts are proper to be considered, the courts may have recourse to to aid them in their duty to ascertain the law. Ju- dicial knowledge takes in its whole range and scope at once ; it embraces simultaneously, in contemplation of law, all the facts to which it extends. It would be a solecism to hold that a statute regularly authenticated is jprima facie valid, if there exist facts of which the court must take judicial notice showing it to be void. On principle and the weight of authority the courts take ju- dicial notice of the legislative journals. If they invalidate a statute it is not apparently valid, for in every view of it the court perceives what impugns it and prevents its having force. And if the court has other sources of information which explored disclose facts fatal to an act, it is void from the beginning, void on its face ; for what is manifest to the judicial mind is legally palpable to the whole public, ]Sione can plead ignorance of it. It is, however, held in some of the states that the courts do not take such judicial notice of legislative journals and extrin- sic facts. In Grob v. Cushman,- the court say : " It is true that they are public records, but it does not foUow that they are to be regarded as within the knowledge of the courts like pubhc laws. Lil^e other records and public documents they should be brought before the court as evidence. But when offered they prove their own authenticity. Until so produced they cannot be regarded by the courts." It is held in that 1 Eld V. Gorham, 20 Conn. 8. Peoria, etc. R. R. Co. 77 id 18 ; People 2 45 III 124, 125 ; lUinois Cent. R. R v, De Wolf, 63 ILL 253. Co. V. Wren, 43 IlL 77 ; Larrison v. THE LEGISLATURE, ETC. 0^ state not to be the province of the court, at the suggestion or request of counsel, to explore the journals for the purpose of ascertaining- the manner in which a law duly certified went throuirh tlie legislature and into tlic liands of the f^^overnor.' § 53. These cases came under review in the supreme court of the United States in Town of South Ottawa v. Perkins,' and that court was in doubt and divided on the question whether by the state decision the validity of a statute was a conclusion of law or fact, when the statute, properly authenti- cated, is avoided by the legislative journals showing it was not constitutionally enacted. The majority, by Bradley, J., say : "In our judgment it was not necessary to have raised an issue on the subject, except by demurrer to the declaration. The court is bound to know the law without taking the advice of a jury on the subject. When once it became a settled con- struction of the constitution of Illinois that no act can be deemed a valid law unless by the journals of the legislature it appears to have been regularly passed by both houses, it became the duty of the courts to take judicial notice of the journal entries in that regard. The courts of Illinois may decline to take that trouble, unless the parties bring the matter to their atten- tion ; but on general principles the question as to the existence of a law is a judicial one, and must be so regarded by the courts of the United States." ^ § 54. The investigation upon an objection that an act was unconstitutionally passed may be expected to be made primar- ily by the parties ; they will desii'e to be heard in respect to the source and the evidentiary quality of information obtained, and the effect of facts considered. Doubtless this interest of the parties, and a conservatism of the courts restraining them from a consideration of any important ingredient of a case without notice to the parties, and the aid of their counsel, have induced the course of decision in Illinois and in some other states in which it is held that the courts will not take judicial notice of the legislative journals, though they are requu-ed by the constitution to be kept, and will be considered only when brouo-ht before the court as evidence.^ It has been intimated o 1 Illinois Cent R. R. Co. v. Wren, 3 Post v. Supervisors, 105 U. S. 667. supra. * Biut v. Winona, etc. R R. Co. 31 2 94 XJ. S. 200. Minn. 472 ; S. C. -4 Ain. & Eng. Corpi 54 THE LEGISLATURE, ETC. in some cases tliat the objection should be made by plea,' which implies that the validity may be made to depend on the determination of an issue of fact. But this notion has been abandoned in the court in which it originated, and never obtained a footing in any other jurisdiction.- The court is re- quired to take notice ex ojjicio of general laws ; its peculiar function is to determine what the law is, and expound it; therefore it would be at once absurd and inconvenient to submit such a question to a jury. It is more logical and more con- sistent with principle to treat the evidence, so called, produced upon such an objection as being presented for the information of the court in the same sense in which law-books are read ; facts are only incidental to the research, as when a court must deal with them to some extent, to learn if authorities cited are authentic. In Gardner v. The Collector,^ Miller, J., said of the public statute in question : " It is one of which the court takes judicial notice, without proof, and therefore the use of the words ' extrinsic evidence ' is inappropriate. Such statutes are not proved as issues of fact as private statutes are." § 55. When acts sliould be approved. — The legislative power is generally in terms vested by the organic law in the legislature or general assembly consisting of two branches ; though in acts of congress organizing territorial governments it has been usual to vest it in the governor and general assem- bly. He is thus made a constituent of the legislature, as the king in the English system is a constituent of parliament. The legislative practice, however, is the same in the territories as in the states, and the same as in parliament, as to the part taken by the executive in the enactment of laws. The two houses formulate and adopt in the first instance all legislative measures, and the executive acts merely to approve or dis- approve these measures. His function is of the same nature as that of members of the two houses, except that it is nega- tive, and that by pursuing the course prescribed in the para- Cas. 426; Ballou v. Black, 17 Neb. People v. Commissioners, 54 N. Y. 389. 276 ; State ex reL v. Foote, 11 Wis. 1 People Y. Supervisors, 8 N. Y. 317 ; 11. Falconer v. Campbell, 2 ]\IcLean, 195. » 6 WalL 50a 2 People V. Devlin, 33 N. Y. 269; THE LEGISLATURE, ETC. 55 mount law acts may acquire the force of laws without his concurrence. 1 In People v. Bowen, 21 N. Y. 520 et seq. (S. C. 30 Barb. 24), Denio, J., thus discusses the nature of the duty and power of the executive in the en- actment of laws : " The question as to the nature of the governor's agency raises, I think, rather a dispute about terms than one concerning the sub- sUmce of tilings. Whatever the au- thority touching the enactment of laws, with wliich the governor is clothed, shall be called, it is of the same general nature with that which is exercised by the members of the two houses. He is to consider as to the constitutionaUtj-, justice and pub- lic expediency of such legislative measures as shall have been agreed upon by the two houses, by the ordi- nary majorities, and be presented to him ; and he is to accord or witlihold liis approbation according to the re- sult of liis dehberations. This is plainly the fimction of a legislator. The sovereign of England, who is charged with the same duty in respect to acts of parhament, is considered to be a constituent part of the su- preme legislative power. 1 BL Com. 261. It is true that his determination to disapprove a bill de^jrives it of any effect, whUe one disallowed by the governor may yet be established by an extraordinary concurrence of votes in the houses. Thus, though the action of the executive is less po- tential here tlian in England, the quality of the act, namely, deliberat- ing and determining upon the pro- priety of laws proposed to be enacted, is precisely the same. Besides mak- mg his determination the governor is required, in case it is unfavorable to the law, to submit his objections to the legislature wliich is to examine them, and again pass upon them in the light of the discussion which they have thus undergfjne. To my mind it is clear that this involves a partici- pation on the part of the governor with the two houses of the legislature in the enactment of laws. It would not be correct language to say that he forms a branch of the legislature, for the constitution has limited that designation to the senate and assem- bly ; but it would be equally incorrect to allii'm that the sanction which he is required to give to or withhold from bills before they can become operative does not render him a par- ticipator in the function of making laws. The foity-seventh number of ' The Federalist,' AATitteu by ]Mr. Madison, ti'eats of the separation of the great departments of the govern- ment, and it is there shown that the concmrence of the executive magis- ti'ate with the jnoper legislatm^e in the enactment of laws as arranged in the constitution of the United States is not, in spuit, a violation of the principle, so strongly insisted upon by Montesquieu and other writers upon constitutional government, that constitutional hberty cannot exist where the legislative and executive powei^s are united in the same per- son. Mr. IMadison considers the quali- fied veto accorded to the president as effecting a partial distribution of the legislative authority between him and the congress, but argues that it is not objectionable, because neither author- ity can, in any case, exercise the whole power of the other. He shows, also, that in certain states, in the con- stitutions of which the principle of Montesquieu is laid down in terms with gi'eat positiveness, there is an intermingling of the legislative and executive departments in the actual 56 THE LEGISLATCTRE, ETC. In Xew York it is held that after the final adjournment of the legislature the governor may act upon bills submitted to him.^ Such seems to have been the practice sanctioned by ju- dicial decision under similar constitutional provisions in Geor- gia,'- lUinois ' and Louisiana.'' arrangemeut of the details of govern- ment Our own constitution fur- nishes another example ; for though it is declared that the whole legisla- tive authority shall be vested in the senate and assembly ; still no law can be enacted which has not been sub- mitted to the judgment of the gov- ernor. His agency cannot, therefore, be considered as merely a power to refer back bills for further considera- tion by the legislatm-e. His approval is regarded as generally essential to tlie enactment of laws, though his disapproval is not necessarily fatal to them, but may be overcome, where the legislature, upon a consideration of his objections, shall repass them by an extraordinary majority." 1 Id. Denio, J., contmuing the opinion from which we quoted in the last note, said that, m his opinion, " it is not a just consti'uction of the power inti'usted to the governor to consider it as merely an authority to require a further consideration of bills which he shall disapprove. In one respect the effect of the govern- or's determination is different when the legislature is in session and when it is not In the latter case, if he ap- proves, the concm'rence of the whole law-making power is secured, pre- cisely as though the legislatui-e was in session. The bill has received the concui'rence of all the fimctionaries wliich the constitution requires shall unite in enacting a perfect law. He cannot state ol)jections, for there is no puijhc body ui existence to whom they can be submittecL If he neglect to act, wliich he wiU of course do if the bill is disapproved of by liim, it falls to the ground by the express provisions of the constitution, for the grounds of his disapproval cannot be passed upon by the legislatm-e. But if the proposed law meets with liis approval, tliei'e is no reason why the pubhc will, expressed by aU the offi- cial bodies and persons with whom the constitution has inti-usted the province of making laws, should fail of effect " It has been argued that as the governor cannot, in the recess of the legislature, compel the reconsidera- tion of bUls to which he is unwilling to yield his consent, he might be in- duced to approve those which are, in some respects, objectionable, but which contain other provisions im- portant to the pubhc wehare. This argument is not without force, but I think it should be assumed that he would never interpose a veto to a bill which he did not conscientiously be- lieve ought not to become a law, and that he would never approve one to wliich such objection, in his opinion, existed. Should a bih of the charac- ter suggested be left in liis hands at the adjournment, the remedy for the pubhc inconvenience, which might be occasioned by the failure to enact the soimd parts, would be found in the power to again caU the legislature together, which is vested in him for this and the like occasions." 2 Solomon v. Commissioners, 41 Ga» 157. 3 Const 1848, art. 4, §21; Seven Hickory v. Ellery, 103 U. S. 423. * State v. Fagan, 22 La. Amu 545. THE LEGISLATURE, ETC. 57 § 56. The organic act of Nevada territory vested the legis- lative power in the governor and legislative asseraljly. It was therefore held that, being a part of the legislative body, he could only concur in the passage of a law Avhilst the other branches had a legal existence.' The signing of a bill by the governor is the mode appointed in the constitutions for him to signl.'y his approval. AVhen he has signed it it will become a law though he send a message to the legislature, or the house in which it originated, setting forth ol)jections to it.^ So it has been held that after a bill has been regularly passed by the two houses, and has been presented to the governor for ap- proval, it cannot be recalled by their joint resolution.'^ The schedule of the Kansas constitution provides that all officers under the territorial government should continue in the exer- cise of the duties of their respective departments until super- seded under the authority of the constitution. Under this provision it was held that the territorial governor properly approved an act after the act of admission had passed.^ § 57. How a bill will become a law without approval.— Without the express approval of the executive a bill passed by the leo-islature can become a law onlv in two cases. First, when he fails to return it with his objections within the time prescribed by the constitution ; second, when it is passed over his objections by the required vote.'^ Many constitutions pro- vide that an act shall become a law without the governor's signature if he retain it for a certain number of davs after it is presented to him for approval,*^ unless the adjournment of the legislature shall prevent him from returning it within that time, and in that case that it shall not become a law. The adjournment intended by this provision is the final adjourn- ment, not adjournments from time to time.^ Where Sundays are excepted in the specification of the period ; and under the pro- vision sometimes added, that "the governor may approve, sign and file in the office of the secretar3"of state within tiiree days after the adjourment of the legislature, any act passed during 1 School Trustees v. Commissioners, < State v. Hitchcock, 1 Kan. 186. 1 Nev. 335 ; Birdsall v. Carrick, 3 » Birdsall v. CaiTick. 3 Nev. 154. Nev. 154. ^ilcNeil t. Commonwealth, 13 2 State V. Wliisner, 35 Kan. 271. Bush, 727. » Wolfe V. McCaull, 76 Va. 876. 'Miller v. Hurford, 11 Neb. 377. 58 THE LEGISLATURE, ETC. the last three days of the session, and the same shall become a law," Sunda^^s will be excepted by construction, as intended by the constitution, in order to give the governor three fuU working days after the adjournment. Such time being ex- pressly granted in the limitation of time during the session, it is deemed not unreasonable to hold that there is imphed the same exception of Sundays in the period given after the ad- journment, for there is the same and stronger reason for it in the greater number of important bills usually passed during the last days of a session. ^ § 58. This provision is made in Iowa for biUs passed during the last three days of a session: that they " shall be deposited by him [the governor] in the office of the secretary of state within thirty days after the adjournment, with his approval, if approved by him, and with his objections, if he disapproves thereof." In a case in which the bill was presented to the governor during the last three days of the session, and he omitted to sign it, but within the thirty days filed it without objections with the secretary of state, it was held that it did not become a law — it could only become a law by his subse- quent approval of it.- § 59. When a bill has been presented to the executive for his approval his responsibility commences, and the tune speci- fied in the constitution for his action is important and man- datory, for precise consequences of his action or non-action are defined. It must be presented to him during the session of the legislature, and he can only return it with objections when the body is in session to which the return must be made. If the session is ended or interrupted by adjournment ; if the members have dispersed, and the officers are not in attend- ance, he cannot return it to the house in which it originated. He is not authorized to return a bill to the speaker of the house, to the clerk, or to any other officer, but only to the house in which it originated, and that can only be as a body.* The return of a bill by laying it on the speaker's table and the announcement of a message from the governor, before the adjournment of the house, is a sufficient return of it, though J Stinson v. Smith, 8 Minn. 366. 3 People v. Hatch, 33 IlL 9, 135. 2 Darling v. Boesch, 25 N. W. Eep. 887 ; S. C. 67 Iowa, 702. THE LEGISLATURE, ETC. 69 the house was at the time taking a vote by ayes and noes on a motion to adjourn, which Avas carried.^ The computation of the time for different purposes, both for executive action on bills 2)resented for approval and in determining when acts take effect, is a subject of considerable interest. The discussion of it will be deferred until the latter topic is reached.' 1 Opinion of Justices, 45 N. H. 608. As to what shall be regarded as a re- turn, and what should be considered as a day in this connection, the jus- tices in this opinion say : " Nor are we by any means prepared to say that the legislative day was ended necessaiily by the adjoiminient of the house, even though it might have been at the usual hour in the after- noon ; or that the retium of the bill at any convenient time during the day to the speaker, although after the house adjoiu-ned for the day, would not have been sufficient Tlie provis- ion of the constitution in relation to this subject should receive a reason- able constiTiction ; and it can hardly be supposed that the time Limited for the retiu-n of the bill has expired be- cause that branch of the legislatiu*e in which the bill originated has ad- jom-ned for the day, if the five days limited by the constitution have not expired. The word " day," in its com- mon acceptation, means a civil day of to'enty-four hours, beginning and ending at midnight." Shaw v. Dodge, 5 N. H. 465 ; Colby v. Knapp, 13 id. 175. Tliis opinion answers the question whether the biU was profierly pre- sented to the governor. It was left in the executive office in the governor's absence, and it came to liis notice on the following day. It is supposed that custom and habit have designated where the executive business is done ; and leaving the bill there on the gov- ernor's table, even in liis absence, is a presentation. The justices say as to personal presentation elsewhere : " It would be absurd to hold that the offi- cers of the senate and house of repre- sentatives are obliged, in order to perform theii* dutj', to follow the gov- ernor wherever he may chance to go, whether in the state or out of it, upon his private business as weU as public, and present it to him in person wher- ever he may happen to be." ^ See post, ch. V. CHAPTER III. FOmiS OF LEGISLATION — REFERENCE TO THE ENACTING POWER, AND THE DELEGATION OF IT. § 60. Forms of legislation. | § 69. What is a delegation of legis- lative power. 70. Exceptions wliich have been established. 71. Effect of submitting laws, etc., to popular vote. 75. Local laws may be submitted. 63. Constitutional regulations of, dii-ectory in certain states. 64. Mandatory in others. 65. As to enacting style. 67, Legislative power cannot be delegated. § 60. Forms of legislation. — A bill is a form or draft of a law presented to a legislature, but not yet enacted, or before it is enacted; a proposed or projected law.^ This is the mean- ing of a bni in practice, and has been judicially commended.- It is an act after it has gone through the process of enactment and become a law. A legislative act or statute is a bill passed and approved under the introductory words, formula or style, " Be it enacted." The term bill is sometimes loosely applied, to mean the same as an act, as well as to other forms of pro- posed or completed legislation.* These terms, hill and act, are used as synonymous in some of our constitutions.* § 61. Ordinances have sometimes been distinguished from statutes in practice ; not that to ordain is of less force than the expression to enact, but, as Lord Coke says, because an ordi- nance has not the assent of the king, lords and commons, being made by only one or two of those powers. It is, however, stated in Bacon's Abridgment that this distinction has been disputed. It is there laid down that " with regard to parha- mentary forms this much seems agreed : that where the pro- ceeding consisted only of a petition from parliament, and an answer from the king, these were entered on the parliament roU ; and if the matter was of a public nature, the whole was i Webster's Diet 3 Gushing, L. & P. of Leg. Ass. » May V. Rice, 91 Ind. 549. § 2055. < People V. Lawrence, 36 Barb. 185. FORMS OF LEGISLATIOX, ETC. 61 then usually styled an ordinance ; if, however, the petition and answer were not only of a pubUc but a novel nature, they were then formed into an act by the king, with the aid of his coun- cil and judges, and entered on the statute roll/' ^ It is also laid down by the same authority that an ordinance on the par- liamentary roll, with the king's assent upon it, has, neverthe- less, equal force with a statute.^ The term ordinance is more usually applied to the acts of a corporation, and as synony- mous with by-law.'' It has, however, been often used in more solemn acts of the states and of the general government.* Eesolutions, or joint resolutions, are a form of legislation which has been in frequent use in this country, chiefly for ad- ministrative purposes of a local or temporary character, and sometimes for private purposes only. It is recognized in many of our constitutions, in w^hich, and in the rules and orders of our legislative bodies, it is put upon the same footing and made subject to the same regulations as bills properly so caUed.* By legislative practice and usage, joint resolutions have the force of law, whether applied to administrative, local or tem- porary matters, or intended for important measures.^ § 62. Constitutional forms directory in certain states. — Many constitutions provide that laws shall be enacted by bill, and direct that the style shaU be, " Be it enacted," etc. In a few states such provisions have been held to be directory. Thus, in Swann v. Buck,^ it was so held that a joint resolution passed by all the forms of legislation was valid — that the word " resolved " is as potent to declare the legislative will as the word " enacted." The court say : " The argument against re- quiring a literal compliance with any form of words in the enacting clause, as a condition of giving effect to a statute, would be very strong on the score of convenience; for the plainest expressions of the legislative will, and the most urgent in their character, would be constantly liable to be defeated by the slightest omission or departure from the established phraseology. No possible good could be achieved by such strictness, and the greatest evil might result from it. There 1 Bac. Abr. Statute A. 5 Cusliing, L. & Pr. Leg. Ass. § 2403 ; 2 Id. Swann v. Buck, 40 Miss. 29a 3 Bish. Written Laws, § 18. « Id. 4 Cush. L. & Pr. Leg. Ass. § 2046. '40 Miss. 26a 62 rOKMS OF LEGISLATION, ETC. are uo exclusive words in tlie constitution negativing the use of any other language, and we think the intention will be best effectuated by holding the clause to be directory only." § 63. The several constitutions of Mississippi mal^e a plain distinction between bills and resolutions, as does the constitu- tion of Indiana. There seems to be many of the contrasts pointed out in the opinion in May v. Pace,' which will pres- ently be referred to particularly.^ The constitutions of Mary- land have made no provision for any form of legislation but by " original bill." They have provided that " The style of aU laws . . . shallbe, 'Beit enacted by the general assembly of Maryland ; ' and all laws shall be passed by original bill." * The case of McPherson v. Leonard * does not altogether follow Swann v. Buck ^ in the reasoning upon which the court ar- rived at the conclusion that the foregoing provisions are direct- ory. The Mississippi case concedes that, to be vaHd, an act should refer to the enacting authority. That was the point of the objection to the act in the Maryland case. The court held the above provisions dhectory, and, therefore, as the court said, " may be disregarded without rendering the act void." It was so held upon the rule apphcable in the con- struction of statutes that provisions which relate to form, and not to the essence and substance of the thing to be done, are dhectory unless the statute is restrictive to the mode and form prescribed.^ The constitution of Missouri prescribes also a precise ^ijlQ, and declares it shaU be the style of the laws of that state.'^ The act in question in the City of Gu-ardeau v. Kiley ^ had no en noting clause or style. That provision of the constitution v, i. held du-ectory and the act vahd, and upon the same argument put forth in 191 Ind. 546. Const. 1817, art. 3, 540 Miss. 293. §§ 4, 23, 24 ; art. 4, §§ 15, 16 ; art 6, e Citing Sedgw. on St & Con. L. §§ 2, 8, 10, 11, 14. Const 1832, art 3, 368 et seq., and cases there cited ; gg 4, 23, 24 ; art 5, §§ 15, 16 ; art 7, Smith on S. & C. Con. § 679 ; Sti'iker §§ 2, 6, 7, 9, 10. Const 1868, art. 4, v. KeUy, 7 Hill, 24; Pacific R R. v. g§ 23, 24, 25, 26, 32 ; art 12, §§ 2, 4, The Governor, 23 Mo. 308. See post, 8, 11. §§ 448, 451. •-' See posi, §64. < Const 1820, art 3, § 36; Const 3 Const 1851, art. 3, §§ 17, 18, 19, 20 ; 1865, art 4, § 26 ; Const 1875, ai-t 4, Const 1864, art 3, §§ 26, 27, 28 ; Const § 24. 1867, art 3, §§ 27. 28, 29, 33. 8 52 Mo. 424 *29Md.377. FORMS OF LEGISLATION, ETC. 63 McPherson v, Leonard.^ The court remarked on the simi- larity of the language as to process requiring writs to run in the name of the state, and that that provision had been held to be directory.- § 01. Constitutional forms mandatory in other states. — The requirement that laws shall be passed under a j^recise enacting style, commencing with the words, '• Be it enacted," and referring to the enacting authority, has been held man- datory in Indiana, Nevada, Alabama, Rhode Island and West Virginia. In other states the courts have held other provis- ions of the constitutions of like nature to be mandatory.' In Indiana the constitution plainly distinguishes between bills and resolutions, as does the constitution of Mississippi. In May V. Eice,* the question was whether money could be ap- propriated by a joint resolution. It was held that such a reso- lution is ineffectual for that purpose. The constitution pro- hibits the drawing of money fi'om the state treasury, except in pursuance of appropriations made by law. It also requires that " the style of every law shall be : 'Be it enacted b}^ the general assembly of the state of Indiana,' and no law shall be enacted except by bill." •' The resolution was held not, eo nomine^ enacted as a " bill." The opinion answers thi'ee in- quiries : 1st. " Is it essential to constitute a law, in the sense in which that term is used in the constitution, that the enact- ment shall have been presented and passed as a bill? 2d. Is it essential in the enactment of a law that the words prescribed for the enacting clause shall be used, or may the words ' Be it resolved' be substituted for ' Be it enacted ? ' Out of these inquiries," say the court, " springs the more general one : 3d. Is this resolution a law, in any sense, as that term is used in these sections of the constitution ... in relation to the appropriation of money?" The first two were answered in the affirmative, and the last in the negative. The opinion points out important differences in the proced- ure for the passage of bills from that which may be foUowed in the adoption of resolutions, showing that the former only 1 Supra. 3 See anie, %% 29-35 ; ^sr, § 79. 2 Davis V. Wood, 7 Mo. 165 ; Jump * 91 lud 546. V. Batton, 35 id. 196; Doan v. Boley, 5 Const 1851, art 4, sec. 1 ; art 10, 38 id. 449. sec 3. 64 FORMS OF LEGISLATION, ETC. are intended, for the enactment of laws. These differences may be observed in other constitutions, and therefore a con- siderable extract from the opinion has been quoted in note below.^ The words of the enacting style need not precede a preamble, but should precede the entire law.- 1 Zollards, J. : " Is a resolution a bill? Perhaps as accurate a defini- tion of a bill as can be f oimd is that given in Webster's Dictionary : ' A form or di-af t of a law, presented to a legislatiu-e, but not yet enacted; a proposed or projected law.' ' In some cases statutes are called bills, but usually they are qualified by •some description; as, a bill of attain- der.' Bills and acts are sometimes used as sjTiouymous terms. Gush- ing, sec. 2055. The definition of a bill as given by Webster is that usu- ally accepted and acted upon; but as we shall see, our constitution ex- tends it. The idea conveyed by the word bill is different from that con- veyed by the word resolution. The distinction between a biU and resolu- tion is clearly kept up in the consti- tution of this state as an examina- tion of its provisions will show. AVe caU attention to some of the sections of article 4. BiUs may originate in either house, except revenue bills. Sec. 17. The vote on the passage of a bill or joint resolution shall be taken by yeas and nays. The bill must be read by sections on three different days, etc. Sec. 18. A joiat resolution of different sections doubt- less may be passed upon one reacUug. Every act shall embrace but one sub- ject and matters properly connected therewith, which subject shall be em- braced in the title. Sec. 19. There is no such provision in relation to joint resolutions. No act shall ever be revised or amended by mere refer- ence to its title. Sec. 21. This section has no reference to joint resolutions. No "act" shall take effect until the same shall have been published and cux'ulated in the several coimties of the state by authoritj-, except in cases of emergency, etc. Sec. 28. This can have no reference to joint resolutions. They take effect as soon as passed. .Bfils and joint resolu- tions must be passed by a vote of a majority of the members of the le^- islatm-e, and w^hen so jiassed shall be signed by the presiding ofiicers of the respective houses. Tliese requisites they have in common, but the distinction is clearly kept up. Sec. 25. In section 14 of article 5, a bm is recognized as stiU a biU, after its passage and until it has reached the governor. Eveiy bill which has passed, etc., shall be presented to the governor. The governor is required either to sign the biU, or return it to the house in which it may have originated, with his objections, etc. If he sign the biU, it becomes a law. If he veto it, and it is not repassed by the requisite vote, it does not be- come a law. Notliing of the kind is requu-ed in relation to a joint resolution under our constitution as we imderstand and interjiret that instiimient. Such a resolution, if passed by the requisite vote, and signed by the presiding officers, is in full force. Notliing would be added to its validity and force by the signature of the governor, nor has he any power to defeat it by a veto. It does not go to him for any pm-pose of approval or disap- 2 Barton v. McWhinney, 85 Ind. 481. FOR^rS OF LEGISLATION, ETC. 65 § 65. Same — The required enacting style must bo adopted. — The same question arose in Kevada as in McPher- son V. Leonard.' The provision of the constitution in Nevada provaL It appears from tlie consti- tutional debates that a proposition to include joint resolutions witli bills in the above section, so that they should be sent to the governor, was voted down. 2 Deb. Const. Conv. p. 1331. Tliis action of the convention is the more significant when we recollect that the convention was in a work of reform, adapting the new constitu- tion to the increased wants and dan- gers of a rapidly increasing and pro- gressive population, and that the constitution of 1816, which was be- ing superseded, pro\dded for joint resolutions as well as biUs to be sent to the governor for liis approval or disapproval, and to be ti-eated by Mm and the legislatiu'e as bills if vetoed by Mm. It is very apparent from this examination of the consti- tution that the terms bill and joint resolidion, as used therein, do not mean the same thing. They are widely different. Theii- functions are altogether different. Authority to act by joint resolution is given, af- fii-matively, by the constitution in but few ioiitances. " By such resolution, the two houses may adjom-n for more than tlu-ee days. Art. 4, sec. 10. Certeiin offi- cers may be removed by such resolu- tion. Art 6, sec. 7. Possibly ixnder section 17 of article 5, the powers granted to grant pardons, etc., may be exercised by such resolution. Be- sides the authority tlius granted, a joint resolution doubtless may be the means of expressing the legislative wiU in refei'euce to the dischai'ge of an administi-ative duty, if such ex- pression f iiUs short of the enactment of a law. The general and most 5 common use of resolutions is in the adoption of rules and ordei-s relative to the proceedings of the legislative body. Cusliing, supra, sec. 779; Mays Par. Prac. pp. 440, 447, 450. Oui- conclusion upon this branch of the case is that a joint resolution under oiu- constitution is not a bill, and that laws for the appropriation of money for public purposes or the payment of private claims . . . cannot be enacted by joint resolu- tion. This view is sustained by the cases of Bany v. Viall, 12ll. I. 1, 18 ; Eeyuolds v. Blue, 47 Ala, 711 ; Brown V. Fleischner, 4 Oregon, 133 ; Boyen V. Crane, 1 W. Va. 176." In deference to the opinion in Swann v. Buck, 40 ]\Iiss. 268, the court in May v. Rice appear to con- sider the expression " every law," in the provision of the Indiana consti- tution relative to the enacting style, as more comprehensive and exclusive tlian the expression " the laws of this state" in the corresponding provis- ion of the Mississippi constitution. The latter are the words of the Mis- sissippi constitution, and the court, in Swann v. Buck, said, " there are no exclusive words in the constitu- tion negativing the use of any other language ; " meaning, doubtless, that the constitution did not forbid the use of any other words, or the pas- sage of a law without those pre- scribed ; for " the laws of this state " include all, as much as the expres- sion "every law." If a command broad enough affirmatively to include aU the laws impUes a negative, tlien one is imphed from tlie language of the constitutions of both states. 1 29 Md. 386 ; ante, % 2. Q6 FORMS OF LEGISLATION, ETC. is that " tlie enacting clause of every law shall be as follows : ' The people of the state of ISTevada, represented in senate and assembly, do enact.' " In the case in which the question was discussed,' it appeared that an act was passed in the enacting clause of which there was omitted the words " senate and." The act was held unconstitutional and void. In the opinion, the court responds to the declaration in the Maryland case that the enacting style is not of the essence and substance of the enactment. Hawley, C. J., said that statement is clearly erroneous and the opinion fallacious. " How can it be said that these words are not of the essence and substance of a law when the constitution declares that the enacting clause of every law shall contain them." He quoted, with apparent ap- proval from the dissenting opinion of Stewart, J., in the Maiy- land case, that it is incumbent on the law-making department to pursue the constitutional mode. "If a positive requu^e- ment of this character . . . can be disregarded, so may others of a different character ; and where wiU the limit be affixed or practical discrimination made as to what parts of the organic law of the state are to be held advisory, directory or mandatory? Disregard of the requirements of the consti- tution, although, perchance, in matters of mere form and st3de, in any part, in law, may establish dangerous examples, and should in aU proper ways be discountenanced. The safer policy, I think, is to follow its plain mandates in matters that may appear not to be material, in order that the more- sub- stantial parts may be duly respected. If those who are dele- gated with the trust of making the laws, from the purest motives improvidently omit the observances of the constitution under any circumstances, such oversight may be referred to in the future by others, with far different views, as prece- dents, and for the purpose of abuse. A higher responsibility is imposed upon those selected by the people for the discharge of legislative duty, and a greater obligation is demanded of them to exemplify, by their practice, a careful comphance with the constitution. By a vigilant observance of its com- mands, the more reasonable is the probability that the best order wiU be secured. It is unnecessary to illustrate, by any 1 State V. Rogers, 10 Nev. 250. FORMS OF LEGISLATION, ETC, 67 argument, the soundness of this general consideration, which I am sure all will admit to bo unquestionable, that a strict conformity is an axiom in the science of government. I cer- tainly entertain such profound conviction of its truth that I do not feel authorized to give my approval to this act as a valid law; but, on the contrary, am constrained to say that the omission of the style requu-ed by the constitution is fatal to its validity." ^ § 66. The modern constitutions go more and more into de- tail in regulating the exercise of the several powers which they grant. The object is manifestly to correct existing or apprehended mischief ; not to legislate merely for order and convenient system. These regulations are in the fundamental law ; they express the sovereign will of the people, and ought to be treated as limitations on the exercise of those powers. The modes prescribed for the exercise of the granted powers cannot be severed from the substantive things authorized to be done ; the manner directed is the means — the appointed action — through which alone the power is effective for the substantive objects intended to be accomplished. The legis- lature must be constituted, sit at the time and place, and pro- ceed in the methods dictated by its creator ; otherwise it is not clothed with nor exercising the sovereign legislative power. The great weight of authority supports this view." 1 Cushing's L. & Pr. Leg. Ass. to establish those f uudamental max- J. 819, § 2102 ; Seat of Government ims, and fix those unvarying rules. Case, 1 Wash. T. 115. by which aU departments of the gov- 2 See ante, §§ 30, 41 ; j^o^ff § ''Q 5 ernment must at aU times shape their Cooley, Con. L. 94 This learned conduct; and if it descends to pre- author says the courts ti-ead upon scribing mere iTdes of order in unes- veiy dangerous gTOimd M'hen they sential mattei-s, it is lowering tlie venture to apply the rules which dis- proper dignity of such an instru- tinguish directory and mandatory ment and usmrping the proper prov- statutes to the provisions of a consti- ince of ordinary legislation. We are tution. " Constitutions do not usually not, therefore, to expect to find in a undertake to prescribe mere rules of constitution provisions wliich the proceeding, except when sucli rules people, in adopting it, have not re- are looked upon as essential to the garded as of liigh importance, and thing to be done ; and they then must worthy to be embraced in an instru- be regarded in the light of h nutations ment which, for a time at least, is to upon the power to be exercised. It control alike the government and tlie is the province of an instrument of govarned, and to form a standard by this solemn and permanent character which is to be measured the power GS rOEMS OF LEGISLATION, ETC. §67. The legislatiye poAver cannot be delegated. — The power to make laws for a state vested in the legislature is a sovereign power, requiring the exercise of judgment and dis- cretion. It is a delegated power, — delegated in a constitution by the people in whom inherently are all the powers. On com- mon-law principles, as well as by settled constitutional law, it is a power which cannot be delegated.^ This is a general rule or maxim ; but like all other rules of the common law it is flexible, extending as far as the reason and principles on which it is founded go, and ceasing when the reason ceases. It admits of exceptions connected with the principle Avhich supports the rule, or which may be presmned whicli can be exercised as well by tlie delegate as by the sovereign people themselves. If dii'ections are given respecting the times or modes of pro- ceeding ill which a power should be exercised, there is at least a strong presumj)tion that the people designed it should be exercised in that time and mode only." State v. Johnson, 26 Ark. 281; Wolcott v. Wigton, 7 Ind. 44; per Bronson in People v. Pm-dy, 2 Hill, 36 ; Greencastle Town- sliip V. Black, 5 Ind. 566 ; Opinion of Judges, 6 Sheply, 458. See People v. Lawi-ence, 36 Barb. 177. " The essen- tial nature and object of constitu- tional law being resti-ictive upon the powers of the several departments of the government, it is difficult to com- prehend how its provisions can be re- garded as merely directory." Nichol- son, C. J., in Cannon v. Mathes, 8 Heisk. 504, 517. Mr. Cooley adds that " We impute to the people a want of due appreciation of the purpose and proper province of such an instru- ment, when we infer that such direc- tions are given to any other end. Especially when, as has been akeady said, it is but fan- to presume tliat the people in then* constitution have ex- pressed themselves in careful and measured terms, con-esponding with the immense importance of the pow- ers delegated, and with a view to leave as httle as possible to impHca- tion." People v. Supervisors of Che- nango, 8 N. Y. 328. 1 Carhsle v. Carlisle's Adm. 2 Harr. 318 ; Berger v. Duff, 4 John. Ch. 368 ; Hunt V. Bun-el, 5 Jolm. 137; Fams- worth V. Lisbon, 62 Me. 451 ; Brewer V. Brewer, id. 62 ; State v. Hudson County, 37 N. J. L. 12 ; State v. Cope- land, 3 R. I. 33 ; Willis v. Owen, 43 Tex. 41; People v. CoUins, 3 Michu 343 ; Rice v. Foster, 4 Harr. 479 ; State V. Parker, 26 Vt. 362 ; Lockes' Appeal, 72 Pa. St 491 ; Parker v. Common- wealth, 6 id. 507 ; State v. Swisher, 17 Tex. 441 ; Barto v. Hunrod, 8 N. Y. 483; People v. Stout, 23 Barb. 349; Thorne v. Cramer, 15 Barb. 112 ; Brad- ley V. Baxter, id. 122 ; State v. Wil- cox, 45 Mo. 458; Santo v. State, 2 Iowa, 165'; Ex parte Wall, 48 Cal 279 ; Geebrick v. State, 5 Iowa, 491 ; State V. Beneke, 9 id. 203 ; State v. Weir, 33 id. 134; S. C. 11 Am. R. 115; Com- monwealth V. ]McWiUiams, 11 Pa. St 61 ; Maize v. State, 4 Ind. 842 ; Mesh- meier v. State, 11 id. 482 ; Cincinnati, etc. R. R. Co. V. Commissioners, 1 Ohio St 77 ; Cooley's Con. Lim. 142 Slinger v. Hemieman, 38 Wis. 504 Wayman v. Southard, 10 Wheat 1, 42 Alcorn v. Hamer, 38 Miss. 652. FOKJIS or LEGISLATION, ETC. 69 to have been intended by the party or people wlio are the original source of the power. § 68. The legislative department as an integral part of our political system is confined to tlie exercise of its proper pow- ers, and possesses them exclusively, as the other departments severally have theu's. As the possessor of the law-making power, it may confer authority and impose duties upon the others and regulate the exercise of their several functions. It may pass general laws for that purpose, giving them expressly or by necessary implication an incidental discretion to employ the proper means to fill up and regulate the details for them- selves and subordinates, though the exercise of that discretion be quasi legislative. This is iQustrated by laws empowering the courts in the exercise of their jurisdiction to adopt rules of practice and forms of procedure ; ^ and by the powers 1 Wayman v. Southard, 10 Wheat 1 ; Bank of United States v. Halstead, id. 51 ; Coleman v. Newby, 7 Kan. 88 ; Andei-son v. Levely, 58 Md. 192; Thompson v, Floyd, 2 Jones' L. 313 ; Ross V. Duval, 13 Pet 45. In Wayman v. Southard, supra, Marshall, C. J., said : " It wiU not be contended that congress can delegate to the courts, or to any other ti-ibunal, powers which are stiictly and exclu- sively legislative. But congress may certainly delegate to others powers which the legislature may rightfully exercise itself. Without going fur- ther for examples, we will take that tlie legality of wliich the counsel for the defendants admit The seven- teenth section of the judiciary act, and the seventh section of the adtU- tional act, empower the courts re- spectively to regTilate their practica It certainly will not be contended that tbis might not be done by con- gress. The courts, for example, may make rules cUrecting the returning of \\Tits and processes, the filing of declarations and other pleadings, and other thii^gs of the same description. It wiU not be contended that these things might not be done by tlie leg- islature without the intervention of the courts ; yet it is not alleged that the power may not be conferred on the judicial department "The hne has not been exactly drawn wliich separates those impor- tant subjects wliich must be entirely regulated by the legislature itself, from those of less interest in wliich a general provision may be made, and a general power given to those who are to act under such general provisions to fill up the details. The seventeenth section of the juchciary act of 1787, ch. 20, enacted ' Tliat all the said coui-ts shall have power to make and establish all necessary lilies for the orderly conducting busi- ness in the said courts, provided such rules are not repugnant to tlie laws of the United States ; ' and the sev- enth section of tlie act refeired to as the additional act (act 1793, ch. 22, § 7) details more at large the powers conferred by the seventeenth section of the judiciary act These sections were held to give the court f uU jm-is- diction over all matters of practice" The question in this case related to execution. " A general superintendence," say ro FORMS OF LEGISLATION, ETC. granted to the president in such cases as that disclosed in Houston V, Moore.' An act of congress authorized the presi- dent in certain exigencies to call forth such number of the mi- litia of the states most convenient to the scene of action as he might judge necessary, and to issue his orders for that purpose to such officers of the militia as he should thiiik proper.^ It prescribed a punishment for failing to obey the orders of the president as an offense against the laws of the United States.* Another conspicuous example of such discretion confided to the president was the act of congress in 1863 empowering him to suspend the writ of habeas corpus} The true distinction is between the delegation of power to the court, " over this subject seems to be properly within the judicial prov- ince, and has always been so consid- ered. It is, imdoubtedly, proper for the legislatm-e to prescribe the man- ner in which these ministerial offices shall be performed, and tliis duty wUl never be devolved on any other de- partment without ui'gent reasons. But in the mode of obeying the man- date of a Avrit issuing from a court, so much of that which may be done by the judiciary, vmder tlie authority of fhe legislatui'e, seems to be blended with that for wliich the legislatm-e must expressly and dii-ectly provide, that there is some difficulty in dis- cerning the exact limits within wliich the legislature may avail itself of the agency of its courts. The diif erence bet'ween the departments undoubt- edly is, that the legislature makes, the executive executes, and the judi- ciary construes the law; but the maker of the law may commit some- thing to the discretion of the other departments, and the precise bound- ary of this power is a subject of deli- cate and difficult inquiiy, into which a court wUl not enter vmnecessarily." In Coleman v. Newby, supra, Val- entine, J., said: "If the legislature says that the district courts shall, in certain cases, be clothed with certain discretionary power, where does the supreme court get authority to say that the district coui't shall not be clothed with such discretionaiy power by making iTdes hmiting that discretion? It is not in the natui-e of things for one court to exercise dis- cretion for another court; and if it cannot, who shall say that it can, as a judicial act or otherwise, make rules limiting or regulating the de- cision of another court? An attempt to do so is an attempt to legislate. It is claimed, however, that the legis- latm-e have authorized the supreme court to make rules for the district com-t ; but this the legislature could not do if they would. The making of rules is not a subject of judicial power, as has already been shown ; and the legislatm-e cannot bi-ing under the judicial power a matter wliich from its natm-e is not a subject for judicial determination." Mur- ray V. Hoboken Land Imp. Co., 18 How. 284 ; AucUtor of State v. A. T. & S. Fe R. R. Co. 6 Kan. 500. 1 5 Wheat. 1. 2 Act 2d May, 1862. 3 In re Griner, 16 Wis. 423. 4 In re OUver, 17 Wis. 681 ; Coe v. Schultz, 47 Barb. 64; Hilcb-eth v. Crawford, 65 Iowa, 339; 21 N. W. Rep. 667. FORMS OF LEGISLATION, ETC. 71 make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done ; to the latter no vahd objection can be nuide.^ § GO. What is a delegation of legislative power? — The constitution vests this power in the legislature ; it must there remain by force of the constitution. It is exclusively vested in the legislature. The legislature cannot divest itself of the power, nor impart it to others, except in accordance with this distinction, though there are some recognized exceptions which ■will presently be considered. Legislative power is delegated contrary to the maxim stated when the legislature attempts to confer on others a power of substantive legislation, to be exercised independently or in conjunction with the legislature, or when it constitutes an inferior leo:islature or law-makinof body. An instance of such delegation is furnished by the case Slinger v. Henneman.^ A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of its vicious disposition ; by a provision of the act, power was given to the board of supervisors to determine whether or not during the current year theii' count}" should be governed by the provisions of the act of which that sec- tion constituted a part. It was held that the legislatm^e could not confer that power. The court pertinently remark that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the stat- ute of limitations. A similar statute in Missouri was held void for the same reason.' A general statute formulating a road system contained a provision that " if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operat ion of the same for any specified length of time ; and thereupon the act should become inoperative in such county for the period specified in such order, and thereupon order the road to be opened and kept in good repair under the 1 Cincinnati, etc. E. R Co. v. Com- 2 33 Wis. 504, 50S-510. niissioners, 1 Ohio St 77. 3 State v. Field, 17 Mo. 529. 72 FORMS or LEGISLATION', ETC. laws theretofore in force." Gamble, J., said, " this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be in force in their county. The act does not submit the question to the county court as an original question, to be de- cided by that tribunal, whether the act shall commence its operation within the county ; but it became by its own terms a law in every county not excepted by name in the act. It did not then require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of the previous laws, the county court is . . . empowered to suspend this act, and revive the repealed pro- visions of the former act. When the question is before the county court, for that tribunal to determine which law shall be in force, it is urged before us that the power then to be ex- ercised by the court is strictly legislative power, which, under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case the question is not presented in the abstract ; for the county court of Salem county, after the act had been for several months in force in that county, did, by order, suspend its operation ; and during that suspension, the offense was committed which is the subject of the present indictment." § 70. Exceptions wliicli have been established. — There are some valid delegations of legislative power. Congress has delegated it to territorial governments ; other legislatures have delegated it to municipalities. Congress has power to annul territorial legislation ; so state legislatures may annul munici- pal laws ; but the annulling act has only the effect of a repeal. They are valid until annulled ; they are not thus made void from the beginning. The delegation of legislative power to cities is a limited one — to make by-laws or ordinances ; but still a delegation of legislative power.^ The delegation of power in these instances is to formulate and put in force rules of civil conduct of more or less scope. The territorial grant extends to " all rightful subjects of legislation ; " it is granted as broadly as by constitutions to the state legislatures. The power to legislate for the territories was granted to congress by the fed- 1 KeDy v. Meeks, 87 Mo. 396 ; S. C. 13 Am. & Eng. Corp. Cas. 220. FORMS OF I.FGISLATIOX, ETC 73 eral constitution.^ The delegation of it to the territorial gov- ernment is a departure from the general rule, but consistent with the principles which support the rule ; for it is a conces- sion of the right of self-government to those who Avould other- Avise have no voice in making the laws which govern them. The delegation of this power to municipalities is justified on the ground of presumed intention of the people, from the im- memorial practice in this country and in England of creating their local governments.- These departures decentralize the governing power ; the governed have thus a direct voice in the regulation of their local affairs. »Dred Scott v. Sandford, 19 How. 393; National Bank v. County of Yankton, 101 U. S. 129. 2 Ti-igaUy v. Mayor, etc. 6 Cold. 383 ; Clarke v. Rochester, 28 N. Y. 605; Cooley's Con. Lim. 143. This subject is thus discussed by Battle, J., in Thompson v. Floyd, 2 Jones' L. 313 : " Neither is it necessary for us to con- sider the general question whether the general assembly can delegate any portion of its legislative func- tions to any man or set of men act- ing either in an individual or corpo- rate capacity. That it may has been too long settled and acquiesced m by every department of tV'i govern- ment and by the people to be now disputed or even discussed. The tax- ing power is unquestionably a legis- lative power, and one of the highest importance, and yet it has, ever since the adoption of the constitution, been partially delegated to the justices of the coimty courts and to eveiy in- corporated city, town and vUlage throughout the state. The power to pass laws and ordinances for the gov- ernment of the members of a corpo- ration is a legislative power, and yet no person has yet thought it an in- fringement of the constitution for the legislatiu-e to confer the power of making by-laws upon the corpora- tion itself. The power of prescribing nilos for the orderly conduct of busi- ness in a court of justice is a legis- lative power, and yet it has often been intnisted to the com-ts them- selves with the approbation of every- body. The ti'uth is, that in the man- agement of all the various and mi- nute details which a highly civilized and refined society requires, the gen- eral assembly must have, and are imiversaUy conceded to have, the power to act by means of agents, which agents may be either individu- als or poUtical bodies, most generally the latter. "Without such power the legislature would be an unwieldy body, incapable of accomplishing one-half of tlie gi'eat purposes for wliich it was created. "The act [in question] authorized the coimty court to ascertain a fact, i. e., whether a majority of them were in favor of smTender- ing the jurisdiction of having jury ti'ials in that court, and in the event of the fact being thus foimd, enacted tliat thereafter such juris- diction should be taken from them and vested exclusivelj' in the su- perior coiu't of the county. When the fact was ascertained and the con- sequence ensued, the county coiu-ts were func'ti officio — had no furtlier power over the matter ; they had not in any proper sense legLslative power." 74 FORMS OF LEGISLATION, ETC. § 71. Effect of submitting laws or questions controlling their eft'ect to popular vote. — The legislature having the gen- eral power of enacting laws may enact them in its own form when not restricted, and give them such effect, to be worked out in such a way and by such means as it chooses to prescribe. It may provide that a law shall go into effect at one time or another ; absolutely or on condition ; upon certain terms or on a certain event, or without regard to future events.' § 72. It is agreed by all the authorities that an act may be vahd though its taking effect is made to depend on a future contingent event. The case of the Cargo of Brig Aurora v. United States^ presents an instance of such an act. The result of a popular vote is an uncertain event ; but there is some diversity of decision on the question whether the tak- ing effect of a general act can be made to depend on such a contingency. Yery few cases, however, have come before the courts involving that question. Barto v. Himrod ^ is an early one of that limited number, decided in 1853. An act "estab- lishing free schools throughout the state " was by its terms 1 Hobart v. Supervisors, 17 CaL 23. In Blanding v. Buit, 13 Cal. 357, Field, J., said of a local law provid- ing for its submission to popular vote : ■"The act in question authorizes the issuance of the bonds upon the con- dition that objection to their issuance was not interposed in a specified man- ner. As an emanation of the legisla- tive will it was perfect in aU its parts. Tlie condition upon the exercise of authority was imposed by the legis- lature itself, and involved no delega- tion of legislative authority. Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions a? the legislature, in its wisdom, may impose. They may take effect only upon the hap- pening of events which are future and uncertain; and, among others, the voluntary act of the parties upon whom they are designed to operate. They are not less perfect and com- plete when passed by the legislature. though future and contingent events may determine whether or not they shaU ever take effect. In anticipation of invasion or insurrection or local disturbance, or other emergencies re- quiring the exercise of special powers, acts were constantly passed, and yet no one has ever questioned their vaHdity as laws, because dependent in then* operation upon occasions wliich may never arise. So the legis- lature may confer a power without desiring to enforce its exercise, and leave the question whether it shall be assumed to be determined by the electors of a particular district The legislature may determine absolutely what shall be done, or it may author- ize the same thing to be done upon the consent of tliird parties. It may command, or it may only permit ; and in the latter case, as in the former, its acts have the efficacy of laws." 2 7Crancli,383. 3 8N. Y. 488. FOKMS OF LEGISLATION, ETC. 75 to bo submitted to the qualified voters of tbe state to deter- mine " whetber tbis act sball or sball not become a law." Tbe act — not merely tbe provisions for submission — was beld void, because tbere was a delegation of legislative power to tbe people; tbey were to decide wbether it sbould become a law or not. Tbe act was framed and duly passed by tbe legislature and approved. It provided for a system of free scbools. It enacted tbat it sbould be voted upon ; wliat sbould be tbe effect of a majority in tbe negative, and tbe effect of a majority in tbe affirmative. In one event tbe system Avas to be practically adopted — put in operation; in the otber, it was to be abandoned ; these effects were alternatives in the act; it was so written. If valid, the system would go into effect or not, because the legislature had so provided. In either case tbe act would operate as a law. Tbe expressions, there- fore, in one event, that tbe act should " become a law," and in tbe otber that it should " not become a law," were precisely equivalent in substance to " take effect " or " not take effect." And Euggles, C. J., said : " If, by tbe terms of the act, it bad been declared to be law from the time of its passage, to take effect in case it sbould receive a majority of votes in its favor, it would nevertheless have been invalid, because tbe result of tbe popular vote upon the expediency of tbe law is not such a future event as the statute can be made to take effect upon, accordino- to tbe meaning- and intent of the constitution." ^ 1 The chief jiostice amplified ta this man or men to judge for them in re- language : " The event or change of lation to its present or f utm-e expe- circumstances on which a law may diency. They exercise that power be made to take effect must be such themselves, and thus perform the as, in the judgment of the legislature, duty which the constitution imposes affects the question of the expediency upon them. of the law ; an event on which the " But in the present case, no such expediency of the law in the judg- event or change of circumstances af- ment of the law makers depends. On fecting the expediency of the law tliis question of expediency the legis- was expected to happen. The wis- lature must exercise its own judg- dom or expediency of tlie free-school raent definitively and finally. When a act, abstiactlj^ considered, did not de- law is made to take effect upon the peud on tlie vote of the people. If it happening of such an event, the leg- was unwise or inexpedient before islature in effect declare the law in- that vote was taken, it was equally so expedient if the event should not afterwards. The event on which the happen; but expedient if it should act was made to take effect was notli- Jiappen. They appeal to no other iug else than tlie vote of the people "iQ FORMS OF LEGISLATION, ETC. A case arose in Iowa involving a similar question, and it Tvas decided in the same way.^ It recognized the validity of laws made to take effect upon the happening of a contingent event. On the question whether the result of a popular vote on the act going into effect was an event on which its going into effect could be made to depend, the court used this lan- guage : " If the people are to say whether an act shall become a law, the}'' become, or are put in the place of, the law makers. And here is the constitutional objection. Their will is not a contingency upon which certain things are, or are not, to be done under the law, but it becomes the determining power whether such shall be the law or not. This makes them the ' legislative authority,' which, by the constitution, is vested in the senate and house of representatives, and not in the people." The legislature cannot refer a bill to the people for them to make it a law by popular vote. When such vote is caUed for to give the force of law to a proposal or plan of a law formulated by the legislature and submitted to the people^ the courts only declare a truism, on which there is no dissent, in holding acts so adopted unconstitutional. But if an act is adopted by the legislature as a law, and, pursuant to its pro- visions, it is submitted to the people, and on their expression of approval or disapproval, as a fact or event, the act by its terms does or does not take effect, or takes effect at one par- ticular date rather than another, then apparently the only question is whether the legislature can pass a law to take effect on such a contingency. The authorities would seem now to have established the doctrine, though not universally, that the on the identical question wliich the ereign, but their sovereignty must be constitution makes it tlie duty of the exercised in the mode wliich they legislature itself to decide. The leg- have pointed out in the constitution,, islatvire has no power to make a stat- AU legislative power is derived from ute dependent on such a contingency, the people ; but when the people because it would be confiding to adopted the constitution, they sur- othei's that legislative discretion rendered the power of making laws which they are bovmd to exercise to the legislature, and imposed it upon themselves, and which they cannot that body as a dutj\" delegate or commit to any other man i Santo v. State, 2 Iowa, 165. See or men to be exercised. They have Geebrick v. State, 5 id. 491 ; Weir v. no more authority to refer such a Cram, 37 id. 649; State v. Weu", 33 question to the whole people than to id. 134 an individuaL The people are sov- FORMS OF LEGISLATION, ETC. 77 result of a popular vote is a contingency on wliicli laws may be enacted to take effect.' In a very late case in Mississippi,- Campbell, J., delivering the opinion of the court, said : " On the question of the right to make an act of the legislature to depend for its operation on a future contingency, argument was exhausted long ago, and the principle established by oft-repeated examples, and by ad- judications in this state and elsewhere in great numbers, that this may be done without violating the constitution. It is idle to talk of precedent and subsecjuent contingencies or condi- tions, between defeating the operation of an act or putting it in operation. There is no such distinction. It is merely fan- ciful and deceptive. It is for the legislature in its discretion to prescribe the future contingency, and it is not an objection on constitutional grounds that a popular vote is made the con- tingency." § 73. Same — Cases maintaining constitutionality of such acts. — Two cases arose in 1854 involving the question whether a provision of an act was vaUd which referred to the people a choice of the time when an act should take effect. One was State V. Parker.^ By the terms of the act it was to take effect on the second Tuesday of March, 1853, with a proviso "that if a majority of the ballots to be cast as hereinafter provided shall be ' no,' then this act shall take effect on the first Mon- day of December, A. D. 1853." The act was held vaM. The case must have been determined in the same way had the pro- viso for submission to the people been held void, and the act otherwise valid ; but the proviso was sustained upon thorough consideration. Eedfleld, C. J., dehvering tlie opinion of the court, used this language: "It seems to me that the distinc- tion attempted between the contingency of a popular vote and other future uncertainties is without all jubt foundation in sound policy or sound reasoning, and that it has too often iSee cases cited ante, g§ 71, 72; uokls, 5 GUm. 1; Alcorn v. Hamer, People V. Hoffman, 116 111. 587 ; S. C. 38 :\Iiss. 653 ; Gmld v. Chicago, 82 lU. 11 Am. & Eng. Corp. Cas. 40; Fotwin 472; Locke s Appeal, 72 Pa. St. 491 ; V. Jolmson, 108 111. 70 ; Fell v. State, People v. Butte, 4 Mont. 174 ; State v. 42 Md. 71 ; Mayor, etc. v. Climet, 23 Wilcox, 42 Conn. 304 ; State v. Cooke, id. 469 ; Bull v. Read, 13 Gratt 88 ; 24 Minn. 247. Biu-gess V. Pue, 2 Gill, 11; People v. 2 gehulherr v. Bordeaux, 64 IMiss. 59. Salomon, 51 IlL 37 ; People v. Key- 3 oq Vt 357. 78 FORMS OF LEGISLATION, ETC. been made more from necessity tlian choice — rather to escape- fi'om an overwhelming analogy than from any obvious differ- ence in principle in the two classes of cases ; for . . . one may find any number of cases in the legislation of congress where statutes have been made dependent upon the shifting character of the revenue laws, or the navigation laws, or com- mercial rules, edicts or restrictions of other countries." The other case is People v. Collins.^ The act in question was passed in February, 1853. It provided in substance that if a majority of the votes were " yes," the act should " become a law of the state from and after the 1st day of December, 1853, and if a majority were 'no,' then the act should take effect and become a law from and after the 1st day of March, 1870." The court was equally divided on the question of the validity of the act,' In Smith v. Janesville,* the supreme court of Wisconsin held a general act valid which by its provisions was to take effect only after approval by a majority of the electors voting on the subject at a general election. The court by Dixon, C. J., thus maintains the validity of acts referred to the people for approval or disapproval : " This," he says, " is no more than providing that the act should take effect on the happening of a certain future contingency, that contingency being a popular vote in its favor. Iso one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute or conditional, and contingent ; and if the latter, they may take effect on the happening of any event which is future and uncertain. Instances of this kind of legislation are not unf requent. The law of congress suspending the writ of habeas corpus during the late rebellion is one.* ... It being conceded that the legislature pos- sesses this general power, the only question here would seem to be whether a vote of the people in favor of a law is to be excluded from the number of these future contingent events upon which it may be provided that it shaU take effect. A similar question was before this court in a late case ^ and was 1 3 Mich. 343. " In re Oliver, 17 Wis. 681. 2 See People v. Bums, 5 Mch. 114 5 State v. O'NeiU, 24 Wis. 149. a 26 Wis. 291. FORMS OF LEGISLATION, ETC. 79 very elaborately discussed. We came unanimously to the con- clusion in that case, that a provision for a vote of the electors of the city of Milwaukee in favor of an act of the legislature, before it should take effect, was a lawful contingency, and that the act was valid. That was a law affecting the people of Milwaukee particularly, while this was one affecting the people of the whole state. There the law was submitted to the voters of that city, and here it was submitted to those of the state at large. What is the difference between the two cases? It is manifest, on principle, that there cannot be any." § 74. The operation and terms of an act may be made to d3pend on foreign legislation. A statute of Illinois provides a general rate of taxation and scale of fees to be paid by for- eign insurance companies doing business in that state. It also provides, by way of exception, that where the laws of the state to which such foreign company belonged had imposed, or should thereafter impose, upon Illinois insurance companies doino; business therein a higher rate of taxation than is re- quired by the laws of Illinois, then the insurance companies of that state doing business in Illinois should there pay the higher rate charged in the state to which they belonged upon lUinois companies doing business in such state. The validity of this statute came in question in a late case in that state.^ It was objected to on the ground that thereby the legislature had abdicated its legislative functions and surrendered them to a foreign state. The court denied the force of this objection, and by Mulkey, J., thus answered it : " It is competent for the legislature to pass a law the ultimate operation of which may by its own terms be made to depend upon some contingency, as upon the affirmative vote by the electors of a given district, or upon any other indifferent contingency the legislature in its wisdom may prescribe. Where the contingency upon which the ultimate operation of a law is made to depend consists of a vote of the people, or the action of some foreign deliberative or legislative body, as is the case here, it is erroneous to sup- pose the legislature in such case abandons its own legislative functions, or delegates its powers to the people in the one case or to such foreign deliberative or legislative body in tlic other. In either case the law is complete wdien it comes from the 1 Home lus. Co. v. Swigert, 104 111. Co3 ; Plioeuix lus. Co. v. Welch, 29 Kan. 672 ; People v. Fire Association, 92 N. Y. 311. 80 FOEMS OF LEGISLATION, ETC. hands of the legislature, otherwise it would be inoperative and void ; for we fully recognize the principle that a law, properly so called, cannot have a mere fragmentary or inchoate exist- ence ; and even if it could, neither the people by a vote, nor any other independent body, could complete the unfinished work of the legislature, and thus make it a law. But while this is so, nothing is better settled than that the operation and even remedial character of a perfect and complete law may, by virtue of limitations contained in the law itself, based upon contingent extraneous matters, be enlarged, diminished or wholly defeated. Such laws, though adopted, and abso- lutely perfect in all their parts, yet by their own limitations they are applicable to a hypothetical condition of things only, and which may or may not ever happen," § 75. Local laws dependent on popular vote generally held valid. — It is now settled that laws, at least of local applica- tion, may be imperative or permissive ; they may authorize the people of cities, villages, townships, counties, groups of counties, or other hmited districts, not otherwise defined than for the purposes of such acts, to determine for themselves local questions of pohce, taxation, or any other matter affecting their local welfare ; and the law may be conditioned to carry into effect their determination or option.^ They have thus been authorized to decide by popular vote and execute their decision to contribute for the building of railroads or other like public improvements ; ^ to divide a county or organize a new one;' to establish or remove a county seat;* whether there shall be license or prohibition of the liquor trafSo;* 1 Blanding v. Buit, 13 CaL 343 ; Peo- Hamer, 38 Miss. 652 ; Slack v. Mays- pie Y. Salomon, 51 IIL 37. ville, etc. R, R. Co. 13 B. Mon. 1. 2 Starin v. Town of Genoa, 23 N. Y. 3 People v. Reynolds, 5 Gilm. 1 ; 439 ; Clarke v. Rochester, 28 N. Y. 605 ; People v. Burns, 5 Mich. 114. Grant v. Courter, 24 Barb. 242 ; Corn- ■» Barnes v. Supervisors, 51 ]\Iiss. 305 ; ing V. Greene, 23 id 33 ; Cincinnati, Ex parte Hill, 40 Ala. 121 ; Common- etc. R. R. Co. V. Commissioners, 1 wealth v. Painter, 10 Pa. St 214. Ohio St. 77 ; Hobart v. Supervisors, 5 CaldweU v. Barrett, 73 Ga. 604 ; 17 CaL 23; Moers v. Reading, 21 Pa. Hammondv. Haines, 25 Md. 541; Com- St. 189 ; Bank of Rome v. Village of monwealth v. WeUer, 14 Bush, 218 ; Rome, 18 N. Y. 38 ; Cotton v. Leon State v. Cooke, 24 Minn. 247 ; Fell v. County, 6 Fla. 610 ; Powers v. In- State, 42 Md. 71 ; Locke's Appeal, 7- ferior Ct. 23 Ga. 65 ; State v. O'Neill, Pa. St. 491 ; S. C. 13 Am. R 715 ; Eoouo Mayor, etc. 24 Wis. 149; Alcorn ^ t. State, 12 Tsx .^j^. lo4; Gtoesch v. FORMS OF LEGISLATION, ETC. 81 ■whether paupers shall be a county or a township charge;* whether they will have a system of free schools ; ^ whether domestic animals shall be permitted to run at large.* The people locally interested may have the option to accept or re- ject a municipal charter or amendatory acts,* or local pohce law.^ Acts giving such local options have not unfrcqucntly been framed to secure it by making a new law go into effect or not according to the result of a popular vote. In State v. Noyes,*^ the people in a town meeting adopted a general law to suppress bowling alleys, and thereby, pursuant to its provisions, put it locally in operation. In Mississippi an act for local taxation was, by its terms, suspended, and ceased to have effect by a protest of a majority of the legal voters.' By the terms of a local act of Wisconsin it was to be void unless the legal voters of the city to which it was applicable should vote to accept it. It was an act to establish a board of public works. It was held valid ; that it was a constitu- tional act to take effect or go into operation only upon a con- tingency provided in the law itself.^ In a Yirginia act for local fi^ee schools it was provided that the act should not be carried into effect untd a majority of the people of the district should approve it. It was sustained as constitutionaL® In Boyd v. Bryant,'" a general police law, to take effect upon local adoption, was held constitutional. State, 42 IncL 547 ; Schullierr v. Bor- * IMayor, etc. v. Fiiiney, 54 Ga 317 ; deaux, 64 Miss. 59 ; Commonwealth Wales v. Belcher, 3 Pick. 508 ; City V. Bennett, 108 INIass. 27 ; State v. Wil- of Patersou v. Society, 24 N. J. L. 385 ; cox, 42 Conn. 364 ; State v. Coui-t People t. Butte, 4 Mont T. 179 ; S. C. <;om. Pleas, 36 N. J. L. 72; S. C. 13 47 Am. R. 346. Am. R 422 ; Barnes v. Supei-visors, 51 & Boyd v. Bryant, 35 Ark. 69 ; S. C. Miss. 307 ; Alcoru v. Hamer, 38 id. 37 Am. R. 6. 745. 6 30 N. H. 279. 1 Town of Fox v. Town of Kendall, • Williams v. Cammack, 27 Miss. 97 111. 72. 209. 2 Bull V. Read, 13 Gratt 7a « State v. O'Neill, Mayor, etc. 24 Wis. 3 Holcomb V. Davis, 56 BL 413 ; Er- 149. linger v. Boneau, 51 id. 94 ; Dalby v. » Bull v. Read, 13 Gratt 78. Wolf, 14 Iowa, 228. ''^ 35 Ark. 69 ; S. C. 37 Am. R 6, 6 82 rOKMS OF LEGISLATION, ETC. Such cases as Kice v. Foster,^ Parker v. Commoiiwealtli,^ Ex parte Wall,^ and Maize v. State,* are now exceptional, and are simply out of harmony with the law as generally held throughout the country. On the whole it may perhaps be considered a sound conclu- sion, and I think it is supported by a preponderance of author- ity, that whether an act is general or local the legislature may in their wisdom take into consideration the wishes of the pub- lic, and determine not to impose a law on an unwilling or non-consenting people. Having the power to make their laws conditional to take effect only on the happening of contingent events, what the event shall be on which the taking effect of an act shall depend is not a judicial question, but wholly and absolutely within the discretion of the legislature, like the emergency which will induce them to make an act take im- mediate effect, and that the result of a popular vote is a con- tingent event within that discretion. 1 4 HaiT. 479. 3 43 CaL 279. 2 6 Pa St 507, now overruled in < 4 Ind. 343, substantially over- Locke's Appeal, 72 id, 491. ruled by Groesch v. State, 42 Ind. 547. CHAPTER lY. CONSTITUTIONAL REQUIREMENT THAT NO ACT EMBRACE MORE THAN ONE SUBJECT AND THAT IT BE EXPRESSED IN THE TITLK § 76. Substantial agreement of con- stitutional provisions. 79. Regarded as mandatory. 82. Liberally construed to sustain legislation. 85. Provisions must be germane. 86. Requirement to state subject in title. 87. Provisions can have no greater scope than subject in the bill. 88. Title need not index details of act. 89. " Etc." may increase scope of title. 3 90. Title too general 91. Title should accompany bill in process of passage. 93. What general title includes. 98. Acts which relate to pluraUty of similar subjects. 101. Title and subject of aniend- atoiy and supplementaiy acts. 102. Provisions not within subject in the title. 103. Effect of act containing more than one subject § 76. Substantial agreement of constitutional proyisions — Exceptions. — In the constitutions of a large majority of the states are provisions relating to the title and singleness of the subject-matter of legislative acts. It is not uniformly ex- pressed in the same words, but it is in substance the same — that no law shall embrace more than one subject which shall be expressed in the title.^ 1 Alabama — 1865: Art 4, sec. 2. Each law shall embrace but one subject which shall be described in the title. 1868: Each law shall contain but one subject which shall be clearly expressed in tlie titla Art 4, sec. 2. 1875, adds : Except general appro- priation bills, general revenue bUl, and bills adopting a code, digest or revision of statutes. California — 1849: Art 4, sec. 25. Every law enacted by the legis- lature shall express but one ob- ject, and that shall be expressed in the title. Colorado — No bill, except general appropriation biUs, shall be passed containing more than one sub- ject wliich shall be clearly ex- pressed in its title; but if any subject sliaU be embraced in any act which shall not be expressed in tlie title, such act shall be void only as to so mucli thereof as shall not be so expressed. Florida— 1868: Art 4, sec. 14. Each law enacted in the legis- lature shall embrace but one sub- 84 CONSTITUTIONAL REQUIREMENT, ETC. In the constitutions of New York, "Wisconsin, and in the Illinois constitution of ISiS, the provision is confined to private ject, and matter properly con- nected therewith, which subject shall be briefly expressed in the title. Cccorgia — 18G5: Nor shall any law or oi'dinance pass which refers to more than one subject-matter or contains matter different from what is expressed in the title thereof. Art. 2, sec. 4. Illinois — 1848: Art. 3, sec. 23. No private or local law which may be passed by the general assem- bly shall embrace more than one subject, and that shaU be ex- pressed in the title. 1870: Art. 4, sec. 18. No act here- after passed shall embrace more than one subject, and that shall be expressed in the title ; but if any subject shall be embraced in an act which shall not be ex- pressed in the title, etc. (as in Colorado). ludiaiiii — 1851: Art. 4, sec. 19. Every act shall embrace but one subject and matters properly connected therewith, which sub- ject shall be expressed in the title ; but if any subject shall be embraced in an act, etc. (as in Colorado constitution). Iowa— 184G: Art. 3, sea 26. Same as in Indiana. 1857: Art. 3, sec. 29. Same as in Indiana. Kansas — 1855: Art. 4, sec. 14. Eveiy act shall contain but one subject, which shall be clearly expressed in its title. 1857: Art. 5, sec. 20. Every law enacted by the legislature shall embrace but one subject, and that shall be expressed in its title, and any extraneous matter introduced in a bill which shall pass shall be void. 1859: Art. 2, sec. 16. No bill shall contain more than one subject, which shaU be clearly expressed in its title. Kentucky — 1850: No law shall re- late to more than one subject, and that shall be expressed in the title. Art. 2, sec. 37. Louisiana — Every law enacted by the legislattu-e shall embrace but one object, and that shaU be ex- pressed in the title. 1852: Art. 115. 1864: Art. 118. 18G8: Art. 114. Every law shall express its object or objects in its title. Maryland — 1851: Art 3, sec. 17. Eveiy law enacted by the legis- lature shall embrace but one sub- ject, and that shall be described in the title. 18()4: Art. 3, sec. 28 ; art. 3, sec. 29. Micliigan — 1850: Art. 4, sec. 20. No law shall embrace more than one object, wiiich shall be ex- pressed in its title. Minnesota — 1857: Art. 4, sec. 27. No law shall embrace more than one subject, which shall be ex- pressed in its title. Missouri — 18(>5: Art. 4, sec. 32. No law enacted by the general as- sembly shall relate to more than one subject, and that shall be ex- jjressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so ex- pressed. State V. Miller, 45 Mo. 495. Nevada — 1864: Art. 4, sec. 17. Each law enacted by the legisla- ture shall embrace but one sub- ject and matter properly con- nected therewith, wliich subject CONSTITUTIONAL REQUIREMENT, ETC. 8» and local laws. It will be noticed that in several tlie injunc- tion is against embracing more than one " object " in a bill. shall be briefly expressed in the title. New Jersey — 1844: Art 4, sec. 7. To avoid improper influences which may result from intermix- ing ia one and the same act such things as have no proper relation to each other, eveiy law shall embrace but one object, and that shall be expressed in the title. New York — 184G: Ai-t 3, sec. 16. No private or local bill wliich may be passed by the legislatm-e shall embrace more than one subject, and that shall be ex- pressed in the title. Ohio — 1851: Art 2, sec. 16. No bill shall contain more tlian one subject, which shall be clearly ex- pressed in its title. Oregon — 1857: Art 4, sec. 20. Every act shall embrace but one subject and matters properly con- nected there%vith, wliich subject shall be expressed in the titla But if any subject shall be em- braced in an act which sliall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title, Penusylvania — Added in 1864 by amendment to constitution of 1838, art 2, sec. 3. No bill shaU be passed by the legislature con- taining more than one subject which shall be expressed in the title, except appropriation bills. 1873: Art 3, sec. 3. No bill, ex- cept general appropriation biUs, shall be passed containing more than one subject which shall be clearly expressed in its title. South Carolina — Everj^ act or reso- lution having the force of law shaU relate to but one subject^ and that shall be expressed in the title. 1868: Art 2, sec. 20. Texas — 1845: Art 7, sec. 24. Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title. 18()(>: Art 7, sec. 24 1868: Art 12, sec. 17. 1876: Art 3, sec. 35. No bill (ex- cept general appropriation bills wliich may embrace the various subjects and accounts for and on account of which moneys are ap- propriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. Tennessee — 1870: Art 2, sec. 17. No bill shall become a law wluch embraces more than one subject ; that subject to be expressed in the titla Virginia — 1850: Art 4, sec. 16. No law shall embrace more than one object, which shaU be expressed in its title. 1864: Art 4, sec. 16. 1870: Ai-t 5, sec. 15. West Virginia — 1861-1863: Same as in Virginia. 1872: Art 6, sec. 30. No act here- after passed shall embrace more than one object and that shall be expressed in the title. But if any object shall be embraced in an act wliich is not so expressed, the act shall be void only as to so much thereof as shall not be so expressed. S6 CONSTITUTIONAL EEQUIKEMENT, ETC. In many instances the subject o^ object is required to be *' cZm;'/^ " and in one " JW^y " expressed in the title. The provision that only one subject shall be embraced in an act is in some states qualified by adding " and matters properly con- nected therewith." § 77. The former constitution of Georgia merely inhibited the passage of any law containing matter different from that expressed in its titlQ. Under it, according to the rulings and practice in that state, when there was added to the words in the title the phrase " and for other purposes," it gave an un- lunited capacity to the body of the act.^ The present consti- tution, however, prohibits the passage of any law which refers to more than one subject-matter or contains matter different from what is expressed in the title. § 78. The miscliief iuteuded to be remedied — The pur- pose of these restrictive provisions. — In the construction and application of this constitutional restriction the courts have kept steadily in view the correction of the mischief against which it was aimed. The object is to prevent the prac- tice, which was common in aU legislative bodies where no such restriction existed, of embracing in the same bill incongruous matters having no relation to each other, or to the subject specified in the title, by which measures were often adopted without attracting attention.^ Such distinct subjects repre- sented diverse interests, and were combined in order to unite the members of the legislature who favored either in support of all.^ These combinations were corruptive of the legislature and dan:gerous to the state.^ Such omnibus bills sometimes included more than a hundred sections on as many different subjects, with a title appropriate to the first section, " and for other purposes." ^ The failure to indicate in the title of the bill the object in- Wisconsin — 1848-: Art. 4. sec. 18. low, 49 Ga. 241 ; Black v. Cohen, 53 No private or local biU, which Ga. 626. may be passed by the legislature, ^ Louisiana v. Pilsbury, 105 U. S. shall embrace more than one 278. subject, and that shall be ex- 3 Shields v. Bennett, 8 W. Va. 83 ; pressed in the title. Town of FishkiU v. F. & B. Co. 23 1 Martin v. Broach, 6 Ga. 21 ; S. C. Barb. 634 50 Am. Dec. 306 ; Mayor, etc. v. State, ^ People v. Mahaney, 13 Mich. 494 4 Ga 26 ; Board of Education v. Bar- » Yeager v. Weaver, 64 Pa St 425. CONSTITUTIONAL REQUIREMENT, ETC. 87 tended to be accomplished 15y the legislation often resulted in members voting ignorantly for measures which they would not knowingly have approved. And not only were legislators thus misled, but the public also ; so that legislative provisions were stealthily pushed through in the closing hours of a session which, having no merit to commend them, would have been made odious by popular discussion and remonstrance if their pendency had been seasonably announced. 'The constitutional clause under discussion is intended to correct these evils ; to prevent such corrupting aggregations of incongruous measures by confining each act to one subject or object ; to prevent sur- prise and inadvertence by requbing that subject or object to be expressed in the title.^ § J9. Regarded as mandatory. — The efficiency of this con- stitutional remedy to cure the evil and mischief which has been pointed out depends on judicial enforcement ; on this -constitutional injunction being regarded as mandatory, and •compliance with it essential to the validity of legislation. The mischief existed notwithstanding the sworn official obUgation -of legislators ; it might be expected to continue notwithstand- ing that that obligation is formulated and emphasized in this ■constitutional injunction, if it be construed as addressed exclu- sively to them, and only directory. It would, in a general sense, be a dangerous doctrine to announce that any of the 1 Davis V. State, 7 MtL 160 ; Parkin- 9 Baxter, 584 ; Eyerson v. Utley, 16 son V. State, 14 Md, 184 ; Slack v. Ja- Midi. 269 ; Smith v. Commonwealth, cob, 8 W. Va. 640 ; State v. Comity 8 Bush, 108 ; People v. Inst, of Prot Judge, 2 Iowa, 282; Brieswick v. Deaconesses, 71 III. 229; White v. Mayor, 51 Ga 639 ; State ex rel. Att'y Citj^ of Lincoln, 5 Neb. 505 ; Missis- Gen'l V. Ranson, 73 Mo. 78; Mont- sipj^i, etc. Co. v. Prince, 10 Am. & gomeiy, etc. Asso. v. Robinson, 69 Eng. Cor. Cas. 891 ; Sun Mut. Ins. Co. Ala 413; McGrath v. State, 46 Md. v. Mayor, 8 N. Y. 241 ; S. C. 5 Sandf. ■ess ; People v. Mahaney, 13 Midi. 494 ; 10 ; To^vn of Fislikill v. F. & B. Co. Gi-ubbs V. State, 24 Ind. 295 ; Harris 22 Barb. 634 ; Robmson v. Skipwortli, V. People, 59 N. Y. 602; People v. 23 Ind. 312 ; City of St Louis v. Teif el, Denaliy, 20 Midi. 349 ; Durkee v. City 42 Mo. 578 ; Dorsey's Appeal, 72 Pa, of Janesville, 26 Wis. 697 ; People v. 192 ; Walker v. Caldwell, 4 La Ann. ^Fleming, 7 Colo. 230 ; Stein v. Leeper, 298 ; State v. To\\ti of Union, 33 N. J. L. 78 Ala 517 : County Comm. v. Meek- 350 ; Gilford v. New Jei-sey R R Co. ins, 50 Md. 39 ; KeUer v. State, 11 Md. 2 Stockt 173 ; Tadlock v. Eccles, 20 •531 ; County Commissioners v. Frank- Tex. 782 ; Yeager v. Weaver, 64 Pa liu R R Co. 34 Md. 163 ; Mayor, etc. St. 427 ; State v. Silver, 9 Nev. 227. •v. State, 30 Md, 118 ; State v. Lasater, 88 CONSTITUTIONAL KEQUIKEMENT, ETC. provisions of the constitution may be obeyed or disregarded at the mere will or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of that instrument. It would seem to be a lowering of the proper dignity of the fundamental law to say that it descends to prescribing rules of order in unessential matters which may be followed or disregarded at pleasure.^ The fact is this : that whatever constitutional provision can be looked upon as a di- rectory merely is very likely to be treated by the legislature as if it was devoid of moral obligation, and to be therefore habitually disregarded.- § 80. The provision has been held mandatory in Tennessee on its particular language. Thus, in Cannon v. Mathes,^ Nich- olson, C. J., called attention to the words : " No bill shall be- come a law which embraces more than one subject." " This," he said, " is a direct, positive and imperative limitation upon the power of the legislature. It matters not that a bill has passed through three readings in each house on different days, and has received the approval of the governor, still it is not a law of the state if it embraces more than one subject." So, in Central & G. R. Co. v. People,^ the last clause in the provision,, as adopted in Colorado and several other states, was held de- cisive. That clause is, " but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so ex- pressed." ^ But in aU the states having such a restrictive pro- vision in which the question has arisen, except Ohio," and California under her former constitution,' the command has been held to be mandatory.^ 1 Commissioners of Sedgvtdck Ca V. '"Washington v. Page, 4 CaL 388; Bailey, 13 Kan. 607. Pierpont v. Crouch, 10 Cal. 315. 2 Cooley, Const. Lim. *78. « People v. Hills, 35 N. Y. 449 ; 3 8 Heisk. 504 Gaskin v. Meek, 42 N. Y. 186 ; Peo- 4 5 Colo. 39. pie v. Allen, 42 N. Y. 378 ; People v. 5 Art 5, sec. 21. Lawrence, 36 Barb. 185 ; Huber v. 6 Miller v. State, 3 Ohio St 475 ; People, 49 N. Y. 132 ; People v. Parks,. Pim V. Nicholson, 6 Ohio St 176; 58 CaL 635; People v. Fleming, T Steamboat Northern Indiana v. MU- Colo. 230 ; Centi-al & G. R. Co. v. Peo- liken, 7 Ohio St 383 ; Lehman v. pie, 5 Colo. 39 ; S. C. 9 Am & Eng. R. McBride, 15 Ohio St 573 ; State v. R Cas. 546 ; Montgomery, etc. Asso. Covington, etc. 29 Ohio St 1C2 ; Oshe v. Robinson, 69 Ala 413 ; Supei-risoi-s- V. State, 37 Oliio St 500. v. Heenan, 2 Minn. 330 ; Caimon t. CONSTITUTIONAL REQUIREMENT, ETC. 89- § 81. The courts possess and exercise the same power to expound and apply the provision of the constitution under consideration as they do to construe and enforce any other. It is as fatal to an act to be framed contrary to the constitu- tion in its title and by embracing a plurality of subjects, as it would be to insert provisions to operate contrary to its other limitations.^ The courts of Ohio, in holding this constitutional clause di- rectory, are not to be understood as conceding that it is with- out obligatory force. On the contrary it is declared to be a direction to the general assembly which each member is under the solemn obligation of his oath to observe and obey. To the legislature it is of equal obligation with a mandatory provis- ion, but a failure to observe it does not render the act void. It is there a rule of decision based on grounds of expediency .^ The present constitution of Cahfornia, besides adding to the clause as it stood in the former constitution, another direction implying that provisions in an act on a subject not expressed in the title are void, contains a general provision that "the provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." ^ The constitutional pi'ovision under consideration does not apply to statutes lawfully enacted before its adoption,'* nor to city ordinances, unless the constitution is broad enough in terms to embrace municipal legislation, or the same require- ment is enacted in the charter.' § 82. Liberally construed to sustain legislation not within the mischief. — The courts with great unanimity enforce this constitutional restriction in all cases falling within the mis- Hemphill, 7 Tex. 184; Cannon v. 383; Pennington v. Woolfolk, 79 Mathes, 8 Heisk. 504 ; State v. McCann, Ky. 13. 4 Lea, 1 ; Sliields v. Bennett, 8 W. Va, i Id. ; Davis v. State, 7 Md. 151 ; S. C 85 ; Phillips v. Covington, etc. Co. 2 61 Am. Dec. 331, and reporter's note. Met (K}%) 221; Commissioners of 340. Sedgwick Co. V. Bailey, 13 Kan. 607 ; 2 state v. Covington, 29 Ohio St Weaver v. Lapsley, 43 Ala. 224; 102. Union Passenger R'y Co.'s Appeal, 3 Const 1879, art 1, sec. 22. 81* Pa, St 91 ; State v. Miller, 45 Mo. < Rogers v. Wmdoes, 48 Mich. 628. 495 ; Tadlock v. Eccles, 20 Tex. 782 ; 5 Baumgai-tner v. Hasty, 100 Ind.. City of San Antonio v. Gould, 34 575. Tex. 49 ; State v, McCracken, 42 Tex. ^0 CONSTITUTIONAL EEQUIEEMENT, ETC. -chiefs intended thereby to be remedied. And, in cases not within those mischiefs, they construe it Uberally to give con- venient and necessary freedom, so far as is compatible with the remedial measure, to the law-making power. They agree that whilst it is necessary to so expound this provision as to prevent the evils it was designed to remove, it is no less de- sirable to avoid the opposite extreme, the necessary effect of which would be to embarrass the legislature in the legitimate exercise of its powers, by compelling a needless multiphcation of separate acts as well as to introduce a perplexing uncer- tainty as to the validity of many important laws which must be daily acted upon.' To facilitate proper legislation, it will not be interpreted in a strict, narrow or technical sense,^ but reasonably.* In State v. Miller * the court say : " The courts in all the states where a like or similar provision exists have given a very hb- eral interpretation, and have endeavored to construe it so as not to limit and cripple legislative enactment any further than what was necessary by the absolute requhement of the law." * The supreme court of Louisiana, in commenting on an argu- ment of counsel which demanded a strict construction, uses this language : " We think the argument invokes an interpre- tation too rigorous and technical. If in applying it we should foUow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the legislature without fulfilling the intention of the framers of the constitution." ® The intent of this provision of the constitution is to prevent the union in one act of incongruous matter, and of objects having no connection or relation ; to require singleness of sub- ject-matter, and an indicative or suggestive title to prevent 1 Parkinson v. State, 14 Md. 184, 269 ; State ex rel. Atty. Gen. v. Ran- 194 ; People v. JMahaney, 13 Midi, son, 73 Mo. 78 ; Slack v. Jacob, 8 W. 481, 495 ; City of St. Louis v. Tiefel, Va, 640 ; State v. Totvti of Union, 33 42 Mo. 578 ; Montgomery Mut. B. & L. N. J. L. 350 ; Shields v. Bennett, 8 W. Asso. V. Robinson, 69 Ala. 413 ; In re Va. 83. Wakker, 3 Barb. 162 ; Sharp v. Mayor, 2 MunicipaUty No. 3 v. IMichoud, 6 ^tc. 31 Barb. 572 ; People v. Ins. Co. La Ann. 605. 19 Mich. 392; Atkinson v._ Duffy, 16 SRyerson v. Utley,16 Midi. 269. Minn. 49 ; State v. Lasater, 9 Baxt. * 45 Mo. 497. 584 ; Smith V. Commonwealth, 8 Bush, ^ Cooley's Const. Lim. 176. 108 ; Mayor, etc. of Annapolis v. State, 6 Succession of Lanzetti, 9 La. Ann. -30 Md. 1 12 ; Ryerson v. Utley, 16 Midi. 333. CONSTITUTIONAL UKQLIKKJIKNT, K'iC. Dl surprise by having matter of one nature embraced in a 1)111, while its title is silent or expresses another. But there must be some limit to the division of matter into separate bills or acts.^ A reasonable construction permits the single subject to be .comprehensive enough for practical purposes, for it only necessitates the separation of entireties, and great latitude is allowed in stating the subject in the title. But a disregard of the constitutional restriction even in an otherwise meritorious biU will be fatal.^ The departure, how- ever, must be plain and manifest, and all doubts will be re- solved in favor of the law.' The objections should be grave, and the conflict between the statute and the constitution pal- pable, before the judiciary should disregard a legislative en- actment upon the sole ground that it embraced more than one subject , or, when it contains but one subject, on the ground that it is not sufliciently expressed in the title.* Legislation is also liberally construed to render it, in proper cases, con- formable with this feature of the fundamental law. This lib- erality will be fully illustrated in the ensuing sections. § S3. The subject or object of a statute. — The subject of a statute is the matter of public or private concern in respect to which its provisions are enacted ; its object is its general aim or purpose.^ The constitutional clause under considera- tion, m some instances, is that no law shall embrace more than ■one suhject; in others, no more than one object. These words are not strictly synonymous ; but the provisions thus verbally varying have received substantially the same construction. The decisions made in New Jersey, Michigan and "West Vir- ginia are freely quoted in the other states ; practically the same rule or principle of construction is acknowledged, and no dis- tinctions have been established on the use of one of these words instead of the other, though allusion has sometimes been made to this difference of terms.'* The particular object of a statute cannot be expressed without also expressing the 1 State V. County Judge, 2 Iowa, * Montclair v. RamsJell, 107 U. S. 280. 155. 2 People V. Denahy, 20 IMich. 349 ; •^ :Matter of Mayer, 50 N. Y. 507 ; State V. Tucker, 46 Ind. 355. Doi-sey's Appeal, 72 Pa, St 192. 3 State V. County Judge, 2 Iowa, « Shields v. Bennett, 8 W. Va, 83 ; 282. State v. Cassidy, 22 Minn. 325. 92 CONSTITUTIONAL REQUIKEMENT, ETC. subject of it. Thus in an act to divide the state into judicial districts, the subject and object are identical ; that is, the an- swer would be the same respectively to questions pointed by those words. There is, therefore, no impropriety in using them indifferently. § 84. There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act. One to establish the government of the state embraces but a single subject or object, yet it includes aU its institutions, aU its- statutes.^ The unity of such an act, covering the multiform concerns of a commonwealth, is the congruity of all the details as parts of one " stupendous whole," of one government. That is the grand subject of such a statute or system of laws; it is equally the object of all its varied titles of chapters and sec- tions. There is similar unity in acts creating municipal corpora- tions. Such a statute creates the corporate entity, invests it with and regulates the exercise of the necessary legislative, taxing, judicial and police powers. It embraces but one sub- ject. The separate provisions granting, defining and regulat- ing these powers are but parts of a whole, and essential to make a whole — the municipality.^ One act may define aU the crimes and provide a procedure in prosecutions. Each crime is distinct ; the practice is distinct ; but all the provisions of such an act are congruous parts of a larger subject which is an entirety.^ The California codes are good illustrations of comprehensive acts, each of which is a composite unity. One is entitled " An act to establish a political code." The first section defines its scope and parts : " This act shall be known as the political code of the state of California, and is divided into five parts as follows : Part 1. Of the sovereignty and people of the state, and of the political rights and duties of all persons subject to its jurisdic- tion. 2. Of the chief political divisions, seat of government, and legal distances of the state. 3. Of the government of the state. 4. Of the government of counties, cities and towns. 5. Of the definitions and sources of law ; the com- mon law ; the publication and effect of the codes ; and the ex- 1 Bowman v, Cockrill, 6 Kan. 311. Grover v. Trustees, etc. 45 N. J. L. 2 Harris V. People, 59 N. Y, 599; 399. Montclair v. RamsdeU, 107 U. S. 147 ; 3 State v. Brassfield, 81 Mo. 151, 162. CONSTITUTIONAL KEQCIREMENT, ETC. 93 press repeal of the statutes." The constituents of this section are congruous as parts of a political system. But in less com- prehensive legislation, the subject or object may admit of joining only the topics in one of these subdivisions. So in legislating still more in detail the suljject may be so circum- scribed that even two topics in one subdivision would render the act multifarious.^ The constitution does not enumerate the integers of statutory law, and therefore the legislature may make such divisions as it thinks proper, if it confines each act to a single subject ; nor is it any objection, under this clause of the constitution, that an act does not dispose of the whole subject to which it relates.^ § 85. The provisions of an act must he germane to one subject. — "Whatever may be the scope of an act, it can era- brace but one subject, and all its provisions must relate to that subject ; they must be parts of it, incident to it or in some rea- sonable sense auxiliary to the object in view. That subject must be expressed in the title of the act. The constitutional requirement is addressed to the subject, not to the details of the act. The subject must be single; the provisions, to ac- complish the object involved in that subject, ma}^ be multi- farious.* It is a matter of some difficulty, in many instances, to determine precisely what is the subject of an act by reason of the contrariety of its provisions and the complexity of its machinery and aims. All acts are not methodically framed ; they do not always declare directly the subject or ultimate end in the enacting part, and then define its constituents and adjuvants, so that the coherence and subordination of the parts, and their relation to a subject in which they converge, can be at once perceived. In the body of an act the subject in which the operation of all the details unite, or are intended to unite, is not unfrequently left to inference. If it can be made out by construction, is single, and embraces aU the pro- visions of the act, it is enough so far as the purview is con- cerned.^ The statement of the subject in the title when cor- rectly and comprehensively expressed will furnish a key to the 1 Grover v. Trustees, etc. 45 N, J. L. •* State v. Tucker, 46 Ind. 355 ; State 599. V. Young. 47 Ind. 150; Robison v. 2 Davis V. State, 7 Md. 158. Miner, G8 Mich. 549. 3 Block V. State, 60 Ala. 493. 94 CONSTITUTIONAL EEQUIEEMENT, ETC. intended unity of the enacting part. The whole act can be^ vaUd only when the subject so stated includes all the provis- ions in the body of the act.^ 'None of the provisions of a stat- ute will be held unconstitutional when they all relate, directly or indirectly, to the same subject, have a natural connection^ and are not foreign to the subject expressed in the title.- § 86. The reiiuiremeiit to state the subject in the title. — The direction is, generally, that the subject be " expressed in the title." It is varied in some instances. In ITevada it is to be hriefly expressed ; in several it is to be dearlij expressed. These qualifying words do not add any new element ; they merely assist in the interpretation. A brief statement of the subject will suffice under the provision as it is generally worded ; ^ and the decisions in Nevada afford no ground for inferring that a prolix title, otherwise unobjectionable, would satiate an act.* The requirement that it be clearly expressed imports no more than that it be expressed; though it may add some emphasis.* If the title does not clearly express the subject, but is ambiguous and suggestive of doubt, still it is- believed the doubt, if possible, would be resolved in favor of the validity of the act." The title of an act was formerly na part of it, and was not much resorted to in the exposition of the act; but under this constitutional clause it is an indis- pensable part of every act.'^ § 87. The subject in an act can be no broader than the statement of it in the title. — It is required not only that an act shaU contain but one subject, but that that subject be ex- 1 Montgomery M. B, & L. Asso. v. Commonwealth v. Martin, 107 Pa. St Eobinson, 69 Ala, 413 ; Ex parte Pol- 185 ; W. Phila R. R. Co. v. UnioL R. R. lard, 40 Ala, 99 ; Grover v. Trustees, Co. 9 Pliila. 495 ; Carr v. Thomas, 18 etc. 45 N. J. L. 399 ; Shivers v. New- Fla. 736 ; Evans v. Memphis, etc. R. R. ton, 45 N. J. L. 469 ; Ryerson v. Utley, Co. 56 Ala. 246 ; Board of Com'rs 16 Mich. 269. v. Baker, 80 Ind. 374 ; Townsliip of 2 Rowland Coal & Iron W. v. Union v. Rader, 39 N. J. L. 509. Brown, 13 Bush, 685 ; Phillips v. ^ Montclair v. RamsdeU, 107 U. S. Bridge Co., 2 Met (Ky.) 222 ; LouisviUe, 147 ; State v. Board, etc. 26 Ind. 522 ; etc. Co. V. Ballard, 2 Met (Ky.) 168 ; People v. Briggs, 50 N. Y. 553. Chiles V. Drake, 2 Met (Ky.) 150; ^McGrath v. State, 46 Md. 633; Johnson v. Higgins, 3 id. 566. State v. Town of Union, 33 N. J. L. » Shivers v. Newton, 45 N. J. L. 469. 350 ; Indiana Central R'y Co. v. Potts, « State V. Ah Sam, 15 Nev. 27. 7 Ind. 681 ; Yeager v. Weaver, 64 Pa. 6 Dorsey's Appeal, 72 Pa, St 192 ; St 427 ; Stein v. Leeper, 78 Ala. 517. CONSTITUTIONAL REQUIREMENT, ETC. 95» pressed in the title. The title, thus made a part of each act, must agree with it by expressing its subject ; the title will fix bounds to the purview, for it cannot exceed the title-subject, nor be contrary to it.^ xin act will not be so construed as to extend its operation beyond the purpose expressed in the title.^ It is not enough that the act embraces but a single subject or object, and that all its parts are germane; the title must ex- press that subject, and comprehensively enough to include aU the provisions in the body of the act.* The unity and com- pass of the subject must, therefore, always be considered with reference to both title and purview. The unity must be sought, too, in the ultimate end which the act proposes to accomplish, rather than in the details leading to that end.* The particu- lar effect of the purview exceeding the title, or of the latter misrepresenting the purview, wiU be discussed in another sec- tion.* The title cannot be enlarged by construction when too narrow to cover all the provisions in the enacting part, nor can the purview be contracted by construction to fit the title ; ^ but the title, if not delusively general, may be suMcient though, more extensive than the purview.'^ § 88. Requisites of title — It need not index the details of the act. — The title must state the subject of the act for the purpose of information to members of the legislature and pub- 1 Board of Com'rs v. Baker, 80 Ind * State v. Town of Union, 33 N. J. 374 ; Matter of Tappen, 36 How. Pr. L. 350 ; State v. County Judge, 2 390 ; State v. Garrett, 29 La. Ann. 637 ; Iowa, 280 ; City of St. Louis v. Tief el,. Coutieri v. Mayor, etc. 44 N. J. L. 58 ; 42 Mo. 578 ; Morford v. Unger, 8 Iowa,. IMississippi, etc. Boom Co. v. Prince, 82; Wliiting v. Mt. Pleasant, 11 Iowa, 10 Am. & Eng. Cor. Cas. 391 ; S. C. 34 482 ; Clinton v. Draper, 14 Ind. 295 ^ Mum. 71 ; Ex parte Moore, 62 Ala. Supervisors v. People, 25 IIL 181 ; 471 ; Matter of Blodgett, 89 N. Y. 392. Succession of Lanzetti, 9 La, Ann. 329. 2 Bates V. Nelson, 49 IMich. 459. 5 gee post, g§ 102, 103. 3Mewherter v. Price, 11 Ind. 201; SHowland Coal & Iron Works v. Ryerson v. Utley, 16 Midi. 269 ; Dor- Brown, 13 Bush, 681 ; In re Paul, 94 sey's Appeal, 72 Pa. St 192 ; Ross v. N. Y. 497 ; Matter of Sackett, etc. Sts. Davis, 97 Ind. 79 ; Knoxville v. Lewis, 74 N. Y. 95; State v. Clinton, 27 La. 12 Lea, 180 ; Stiefel v. Md. Inst for Ann. 40. Blind, 61 Mtl 144; Town of Fishkill ' Yeager v. "Weaver, 64 Pa. St 427; V. Fishkill, etc. P. R. Co. 22 Barb. 634 ; In re De Vaucene, 31 How. Pr. 337 ; Grover v. Trustees, etc. 45 N. J. L. Luther v. Saylor, 8 Mo. App. 424 ; 399 ; Shivers v. Newton, 45 N. J, L. Johnson v. People, 83 IH 431 ; Cou- 469 ; Cooley's Const L. 179 ; Greaton tieri v. New Brunswick, 44 N. J. L. 58 ^ V. GriflBn, 4 Abb. Pr. (N. S.) 310. Garvin v. State, 13 Lea, 162. -QQ CONSTITUTIONAL KEQUIKEKENT, ETC. lie while the bill is going through the forms of enactment.^ It is not required that the title should be exact and precise.^ It is sufficient if the language used in the title, on a fair con- struction, indicates the purpose of the legislature to legislate according to the constitutional provision; so that making every reasonable intendment in favor of the act, it may be said that the subject or object of the law is expressed in the title.^ As said by the supreme court of Illinois, the consti- tution does not require that "the subject of the bill shall be specifically and exactly expressed in the title ; hence we con- clude that any expression in the title which caUs attention to the subject of the bill, although in general terms, is all that is required." ^ It may be general, but must be specific enough to answer reasonably the purpose for which the subject is re- quired to be expressed in the title.^ When the subject is stated in the title the constitution is so far complied with that no criticism of the mode of statement Duffy, 16 1 Grover v. Trustees, etc. 45 N. J. L. S99 ; McGratli v. State, 46 McL 633 ; People V. Lawrence, 36 Barb. 185 ; Dorsey's Appeal, 72 Pa. St. 192; Indi- ana Cent. Ry. Co. v. Potts, 7 Incl. 681 ; Shields v. Bennett, 8 W. Va. 83 ; Peo- ple V. McCaUum, 1 Neb. 182 ; State V. County Judge, 2 Iowa, 282; Sun Mut. Ins. Co. V. Mayor, etc. 8 N. Y. 252 ; Mississippi, etc. Boom Co. v. Prince, 10 Am. & Engt Cor. Cas. 392 ; S. C. 34 JVIinn. 71 ; Harris v. People, 59 N. Y. 602 ; Parkinson v. State, 14 Md. 184 ; Ryerson v. Utley, 16 Mich. 269 ; Prewster v. Syi-acuse, 19 N. Y. 116 ; National Bank v. Southern, etc. Co. 55 Ga. 36 ; Town of Fishkill v. Fish- kill, etc. P. R. Co. 22 Barb. 634 ; Har- gi-ave V. Weber, 66 Mich. 59. 2 Grover v. Tinistees, etc. 45 N. J. L. •399 ; Daubman v. Smith, 47 N. J. L. 200 ; In re Mayer, 50 N. Y. 506 ; Peo- ple V. Briggs, 50 N. Y. 558 ; Louisiana State Lottery Co. v. Richoux, 23 La. Ann. 745 ; Jolmson v. People, 83 IIL 431. 3 Grover v. Trustees, etc. supra; State Line, etc. R R. Co.'s Appeal, 77 Pa St. 429 ; Atkiuson v. Minn. 49. 4 Johnson v. People, 83 IIL 436. 5 Sliivers v. Newton, 45 N. J. L. 469 ; State V. Garrett, 29 La. Ann. 637; Montclaii- v. Ramsdell, 107 U. S. 147 ; Matter of Sackett, etc. Sts. 74 N. Y. 95 ; Sliields v. Bennett, 8 W. Va. 83 ; Green v. Mayor, etc. R. M. Charlt. 368 ; Mayor, etc. v. State, 4 Ga. 26 ; City of Eureka v. Davis, 21 Kan. 580; Grover v. Trustees, etc. 45 N. J. L. 399 ; People v. McCallum, 1 Neb. 183 ; Montgomery, etc. Asso. v. Robinson, 69 Ala. 413; American Printing House v. Dupuy, 37 La. Ann. 188 ; State V. Wilson, 12 Lea, 246; State V. McConneU, 3 Lea, 332; State v. Wliitworth, 8 Lea, 594; Common- wealth V. Green, 58 Pa. St 226; Luelu-man v. Taxing Dist. 2 Lea, 425 ; Clinton Water Com'rs v. Dwight, 101 N. Y. 9 ; In re Knaust, 101 N. Y. 188 ; Greaton v. Griffin, 4 Abb. Pr. (N. S.) 310 ; Daubman v. Smith, 47 N. J. L. 200 ; State v. Elvins, 32 N. J. L. 362 ; Parkinson v. State, 14 Md. 184; Fal- coner V. Robinson, 46 Ala. 340. CONSTITUTIUXAL REQUIREMENT, ETC. 97 will affect the validity of the act. The statute is valid in such a case ; the degree of particularity in expressing the subject iu the title is left to the discretion of the legislature.^ No par- ticular form has been prescribed in the constitution for ex- pressing the subject or purpose of a statute iu its title.- It need not index the details of the act, nor give a synopsis of the means by which the object of the statute is to be effectu- ated by the provisions in the body of the act.' § 89. ^^ Etc." may increase the scope of a title — ^' And for otlier purposes " will not. — It has been decided in Ten- nessee that " etc." added to a title has force in extending the enumeration which precedes it.* The question arose as to the vahdity of provisions in an act having this title : " An act to punish as felons all parties who may engage in keeping or €onducting haUs or houses for conduct of games of keno, faro, three-card monte and mustang, etc." Turney, J., deUvering the opinion of the court, said : " The ' etc' used at the end and as part of the title may not be rejected; it has a meaning. Webster defines it, ' et cetera,' ' and others,' ' and so forth.' This definition applied here makes it import ' and the rest of 1 In re INIayer, 50 N. Y. 504 ; Siin etc. 5 N. Y. 285 ; People v. LaAvrence, Mut Ins. Co. V. Mayor, etc. 8 N. Y. 41 N. Y. 137 ; Daubman v. Smith, 47 241 ; State v. Town of Union, 33 N. J. N. J. L. 200 ; Luehrman v. Taxing L, 350 ; State v. Newark, 34 N. J. L. Dist. 2 Lea, 425 ; Township of Union 236 ; j\Iontgomery, etc. Asso. v. Eobin- v. Eader, 39 N. J. L. 507 ; Brown v. son, 69 Ala. 413 ; Ryerson T. Utley, 16 State, 73 Ga. 38; Reed v. State, 13 Midi. 269; People v. Mahaney, 13 Ind. 641; State v. Lasater, 9 Baxt. Mich. 494 ; Morford v. Unger, 8 Iowa, 584 ; State t. Miller, 45 Mo. 495 ; Ham- 82; "Whiting v.Mt. Pleasant, 11 Iowa, mond v. Lesseps, 31 La. Ann. 337; 482 ; Indiana Cent R. R. Co. v. Potts, Peachee t. State, 63 Ind. 399 ; Howell 7 Ind. 681 ; State v. Bowers, 14 Ind. v. State, 71 Ga. 224 ; Luther r. Saylor. 195 ; State v. County Judge, 2 Iowa, 8 Mo. App. 424 ; Mailin v. Broach, oO 280 ; Brewster t. SjTacuse, 19 N. Y. Am. Dec. 306 ; People v. BrisUn, 80 116. IlL 423 ; Bright v. McCulloch, 27 Ind. 2 Grover v. Tiiistees, etc. 45 N. J. L. 223 ; State v. Cassidy, 22 ISIinn. 325 : 399 ; People v. IMcCallum, 1 Neb. 182. State v. Coimty Comm'rs, 13 Am. & 3 People V. McCallimi, supra; SUiart Eng. Cor. Cas. 203 ; S. C. 17 Nev. 96 ; V. KinseUa, 14 Mmu. 525 ; St. Paul v. Goldsmith v. Rome R. R. Co. 62 Ga. Colter, 13 Minn. 50 ; State v. Daniel, 473 ; State v. Silver, 9 Nev. 227 ; Gab- 28 La. Ann. 38; McCaslki v. State, bert v. Jefferson R R Co. 11 Ind 44 Ind. 151 ; CoUins v. Henderson, 11 365. Bush, 74 ; Sun Mut Ins. Co. v. :\Iayor, •* Garvin v. State, 13 Lea, 163. etc. 8 N. Y. 241 ; Conner v. Mayor, 7 98 CONSTITUTIONAL EEQUIKEMENT, ETC. the games,' or ' other games.' It gives the members of the legislature notice that the subject of the title is drawn or elaborated in the body of the act ; that the reformatory force of the act is not to be confined to houses, or to persons keep- ing houses for playing the four games recited, but is extended to other games. It has a significant and pointed conclusion which could not escape the attention of any member of the legislature who has regard to his obligations and duties. It said to him in terms, other games are leveled at besides the four mentioned in the title, and you are imdted to look at them. It admonished him, the act is not made to cover a leg- islation incongruous in itself. By fair intendment, the bill had a necessary and proper connection with the act. ... It cannot be objected that- the title upon the subject is broader than the act under it. The title notified the legislature of a thoroughly comprehensive thrust at all parties engaged in conducting gambhng houses; the act confines the thrust to parties conducting houses in the playing of nine games. The record shows there are a great many other games which are played everywhere, besides these mentioned in the act, of which, however, we presume the draftsman of the act was un- informed, but which might have been embraced under the title to his act. . . . It is now insisted the abbreviation ' etc.* has no meaning at all, or, at most, means ' and for other pur- poses.' . . . The abbreviation may no longer be called such. It is thoroughly incorporated into our language, is defined by our lexicographers, and is a perfect Enghsh word in almost common use. " It cannot mean ' and for other purposes,' for the reason that such definitions would include any and all purposes, how- ever foreign to the object of the legislation, one of the incon- veniences and inconsistencies intended to be remedied by the present constitution." The phrase, " and for other purposes,'* expresses no specific purpose, and imports indefinitely some- thing different from that which precedes it in the title. It is therefore universally rejected as having no force or effect, wherever this constitutional restriction operates.^ 1 City of St Louis v. Tief el, 42 Mo. 637 ; Commonwealth v. Green, 58 Pa. 578 ; State v. Gan-ett, 29 La. Ann St 233. CONSTITL'TIOX.VL KEQUini.MEXT, ETO. 99 § 00. A title too gonoral to answer the purpose inteiuled, or otherwise misleadiiij;, will vitiate the act.— A title so general as practically to conceal the subject of the statute, or a false or delusive title, will be treated as not constitutionally framed, and the act held void.' An act " to legalize and au- thorize the assessment of street improvements and assess- ments " was held void for undue generality in not mention- ing the place where it was intended to operate. It was a local act, and yet it did not name the city to which it applied.^ So an act " to regulate a road in the town of Palatine, Mont- gomery county," was held to conceal its true subject and to be false and delusive.'* The following acts, as entitled, received the same construction : An act to fix the salaries of the of- ficers of a particular city, and confined to that city in its pro- visions, but entitled "An act to fix and regulate the salaries of city officers in cities of this state." * An act legalizing by its provisions a lottery scheme for a private partnership, under the title of " An act to estabUsh the Mobile Charitable Asso- ciation for the benefit of the common school fund of Mobile county, without distinction of color." = A supplement to a railroad charter providing for extension of its track into a new territory under a clause in the title " to lay additional tracks." « The case of Anderson v. Hill ' mvolves an act with a mis- leading title. The title of the act is "to provide for the straightening or otherwise deepening the channel of the Dow- agiac river in Van Buren county." There were three sections in the act. They authorized either or both of the two named townships in Van Buren county to vote money to be raised by tax, and the expenditure of it " for such river improve- ments." It was held unconstitutional in part on the ground 1 People V. Allen, 42 N. Y. 404. one of the particulars going to make 2 Durkee v. City of Janesville, 26 up the public peace and good order. Wis. 697. In Neuendorff v. Durj-ea, ^ People v. Conim'rs of Highways, 69 N. Y. 557, an act by its provisions 53 Barb. 70. local to New York City was general * Coutieri v. New Brunswick, 44 in its title : " An act to preserve the N. J. L. 58. pubUc peace and order on the first 5 Closes v. Mayor, eta 53 Ala. 198. day of the week, commonly called ^ Union Passenger R'y Co. 's Appeal, Sunday." It was held sufficient to 81* Pa, St 91 ; West Phila. R R Co. v. cover provisions prohibiting dramatic Union R R. Co. 9 Phila. 495. performances on that day, since the " 54 Mcb- 477. cassation of such entertainments was 100 CONSTITUTIONAL KEQUIKEMENT, ETC. that '• the object " was not suiRciently stated in the title. The <30iirt say : " The state having the right to engage in and carry on works of internal improvement by the expenditure of grants to the state of lands, the obvious inference from the language of the title would be that the state proposed to provide for the straightening or deepening of the channel of the Dowagiao river by doing what they constitutionally could do, namely, by appropriating land for that purpose. This is the method she has provided for making her internal improvements since 1850. In view of the constitutional restriction, and the long course of practice pursued by the state in making internal im- provements, would any one be justified in assuming that the language in the title of this act was intended to embrace the object of permitting the legal voters of the township of Deca- tur to vote a tax upon the taxable property of the township to aid the state in carrying on the work of straightening and deepening the channel of the Dowagiac river? Yet such was the real as well as the principal object of the act. "Without this legislation the state possessed full power, acting under its state board of control of swamp lands, to make the improve- ment named in the title of the act. The state has never acted and has no occasion to act under the provisions of act No. 323 [the act in question]. The circuit court, however, finds as a fact, that the Dowagiac state ditch mentioned in the contract [for work on the ditch entered into with the state] was the same improvement as that contemplated by the special act No. 323. If this be true, then clearly the object of the act was not expressed in the title and could not be otherwise than in some manner indicating that the object of the law was to authorize or enable the townships of Decatur and Hamilton to aid the state in straightening or deepening the channel of the Dowagiac river in the county of Yan Buren. As weU. might an act to authorize the construction of a railroad from one point to another include provisions for municipalities along its route to vote aid in its construction, without violating the constitution." ^ § 91. The title should accompany a hill in its passage through the legislature. — It is during the passage of a Ijill that its title is intended by the constitution to impart informa- 1 See Brooks v. Hydom, 76 JVIich. 273 ; State v. Coni'rs, 41 Kan. 630. CONSTITUTIONAL REQUIREMENT, ETC. 101 tion to the public and to members of the legislature of the gen- eral subject of legislation. To effectuate that intent the title should accompany the bill in all its stages through the process of enactment. As stated by Shnonton, P. J. : " If a bill can be passed with a title which does not denote its subject, and after its passage the title can be amended so as for tlie firj^t time to express its purpose, the constitutional provision is of little value." ' Only such portions of a bill as were in- cluded in the subject as expressed in the title Avhen it jiassed the two houses,- and when approved by the governor,^ will acquii'e the force of law. A mere clerical mistake or a mere clerical change, not altering the sense of the title, will be dis- regarded.^ § 92. Title ami subject-matter liberally construed to sus- tain legislatiou.-^ — In cases not clearly within the mischief intended to be remedied by requiring the subject or object of an act to be single and expressed in the title, legislation will not be adjudged void on any nice or hypercritical interpreta- tion.^ Sound policy and legislative convenience dictate a lib- eral construction of the title and subject-matter of statutes to 1 Commonwealth v. Martin, 107 Pa, legislative jji-actice, it frequently be- St 185. In Attorney-General V. Rice, comes necessary to amend the title 64 Midi. 385, it appeared that to an as introduced in order to conform to act to organize the to^vnsllip of Iron- changes in the bilL The title to a wood, in the county of Ontonagon, bill is usually adopted after it has it was objected that it had been sub- passed the house, and it is not an es- stituted after the time for introduc- sential part of a biU, although it is ing new bills had expu-ed for a of a law. Larrison v. Peoria, etc. R. skeleton biU entitled "An act to or- R. Co. 77 111. 17." The facts stated gauize the township of Au Train ; " in tlie contention were not accepted that therefore the title of the bUl as by the court, and it was held that inti'oduced did not express the object the journals not showing the facts, of the act as passed. The court say : parol evidence was not admissible. " We cannot extend the provisions of People v. McEh-oy, 72 ^MIcIl 446 ; the constitution beyond its express Brooks v. Hydorn, 76 id. 273. terms in this respect If the object -' Biuz v. Weber, 81 111. 288. of the act as passed is fully expressed ^ Stein v. Leeper, 78 Ala. 517. in its title, the form or status of such •* Pliunmer v. People, 74 111. 361 ; title at its inti-oduction, or during People v. Supervisors, 16 Mich. 254. any of the stages of legislation before -^ See ante, § 82. it becomes a law, is immaterial. To '> Gillitt v. McCai'thy, 34 Minn. 318 ; hold otherwise would, in many cases. St. Louis v. Green, 7 Mo. App. 468 ; prevent any alteration or amendment Supervisoi-s v. Heenan, 2 Minn. 330 ; of a bill after its introduction, as, in Peo]ile v. Parks, 58 CaL 635. 102 CONSTITUTIOXAL EEQUIEEMENT, ETC. maintain tlieir validity ; infraction of this constitutional clause must be plain and obvious to be recognized as fatal. The sub- ject of an act may be expressed generally in the title,^ or spelled out from details, and occasionally from details which are independent and unconnected except through some general subject as cousins german are related through a common an- cestor.2 An act in relation to grading Eighth avenue in a city was held a subject broad enough for provisions to make the grade of intersecting streets conform to the altered grade of that avenue.* An act, among other things, for "laying out " certain portions of a city, and to provide means there- for, might contain provisions for opening streets. In so ruhng the court say: " The words ' laying out ' must be interpreted in a broad and liberal sense, . . . and may be regarded as covering the opening, for without such opening the laying out would be of no avail." * An act " to indemnify the owners of sheep in case of damage committed by dogs," properly con- tained a provision imposing a Ucense fee upon the owners and keepers of dogs ; ^ and an act " to regulate the foreclosure of real estate," a provision that the right of redemption might be waived," as well as provisions to otherwise regulate rights of redemption from sales under executions, judgments, orders or decrees of courts, and under mortgages by advertisement ; ^ an act "for the registration of all adult persons in each county," a provision that whenever it should be necessary to ascertain the number of adult persons with a view to any ac- tion by county commissioners or other county officers, the list 1 Ante, § 88. 3 in re Blodgett, 27 Him, 12. 2 Attorney-General v. Joy, 55 Mich. ^In re Dept. Pub. Parks, ^6 N. Y. 94 ; State v. Young, 47 Ind. 150 ; Bit- 437. ters V. Board, etc. 81 Ind. 125 ; State & Cole v. HaU, 103 111. 30. V. Board, etc. 26 Ind. 522; State v. 6 Atkinson v. Duffy, 16 Minn. 49. Miller, 45 Mo. 495 ; State v. Bow- In Tuttle v. Strout, 7 id. 465, under an ers, 14 Ind. 195 ; Lauer v. State, 22 act " for a homestead exemption," Ind. 461 ; In re Dept. Pub. Parks, 86 exemptions of personal property hav- N. Y. 487 ; People v. Ins. Co. 19 Mich, ing no special connection with land 392 ; Garvin v. State, 13 Lea, 162 ; occupied as a homestead were sus- Neifingv. Town of Pontiac, 56111. 172; tained. Such provisions would ap- People V. Banks, 67 N. Y. 568 ; Ram- pear clearly beyond the scope of the agnano v. Crook, 85 Ala, 226 ; Burn- title. side V. Lincoln Co. Court, 86 Ky. 423 ; ' GiUitt v. McCai-tliy, 34 Minn. 3ia Indianapolis v. Huegele, 115 Ind. 581. CONSTITUTIONAL REQUIREMENT, ETC. 103 on file should be taken as conclusive on that subject.' An act "to repeal all existing- laws, rules and provisions of law re- stricting or controlling the right of a party to agree w^ith an attorney, solicitor or counselor for his compensation, and to more accurately fix and determine the costs to be allowed to the prevailing parties in suits at law in the circuit court,'* contained provisions for the taxation of costs in suits at law, including attorneys' fees, and also permitting parties to suits to make such private arrangements with their attorneys for carrying on suits as they might agree upon. The court held that the object of the act was to settle and declare the law of compensation for skill and ser\ices in suits at law in the cir- cuit court, and was not multifarious.'- Acts entitled to regu- late the sale of intoxicating liquor will justify provisions against giving it away to consumers.'' An act '• to regulate the sale of opium and suppress opium dens " was held suffi- cient to cover provisions forbidding a sale or gift of opium to any one but a druggist or practicing physician, except on the prescription of a practicing physician.* Expenses may be pro- vided for under a title relating to " debts." '" An act Avith a general title for relief of a named railroad company was held properly to have authorized the extension of its tracks through certain streets and avenues of a city, and to consolidate with any other company and thus to form a new one ; that an act for relief of a railroad company must be one to remove some restriction upon its powers, or to give it greater powers.'* Though a title be broad it will be restrained by construction to lawful purposes,^ An act " to authorize the town of P. to raise money to construct a dock " was held broad enough for provisions to maintain it afterwards and to collect wharfage.' 1 Eureka v. Davis, 21 Kan. 580. does not preclude conferring in part 2 lukster v. Carver, 16 ^lich. 484. civil jm-isdiction. In Howland Coal & Iron Works v. 3 Parkinson v. State, 14 Md. 184 ; Brown, 13 Bush, 681, it was held that Wilhams v. State, 48 Ind. 306. an act professing by its title to pro- •iExparteYungJon,28FecLRep.308. vide for estabUshing a eriminal court 5 State v. State Auditer, 33 La- is not so restricted by tliis title that Ann. 89. the body of the act may not confer •' In re Prospect Park, etc. R R Co. also some other than criminal juris- 67 N. Y. 371. diction. The opinion construes the " Allor v. Board, etc. 43 ^lich. 76. word crwii«o/ as merely part of the ^Xown of Pelham v. Woolsoy, 16 name of the court, tmd being so used Fed Rep. 418. 104: CONSTITUTIONAL REQUIREMENT, ETC. The court said : " One purpose of the constitutional provision referred to was to prevent secret or fraudulent legislation, or people from being misled by the title. . . . And that rea- sonable notice of the object of the bill should be given by the title ; " and in referring to the foregoing title, in connection "with the subject-matter, used this language : " It is true that strictly the maintenance of this work, or the power to keep and maintain the same in good repair at the expense of the town," is not identically the same as " constructing the dock," spoken of in the title. ]N"o one, however, could imagine that the dock was to be abandoned by the town the moment its origi- nal construction was completed. Subsequent repair is neces- sary in the nature of the case ; and authority to construct the dock would therefore, in a general sense, seem to imply and include the power to keep it constructed by means, of neces- sary repairs." The provision for charging dockage was con- nected with the construction as a means of raising the money to pay the cost. § 93. The siilyect or object stated generally in the title includes incidents and subsidiary details. — It appears al- ready from what has been said in the preceding sections and the cases which have been cited, that the constitutional pro- vision in question permits an announcement of the subject in general terms in the title of an act ; that to facihtate legisla- tion which is intended to be germane to that subject, a very liberal construction is adopted, both of the constitutional re- quirement and of legislation affected by it, to sustain all laws not within the mischief intended to be remedied. It only remains to illustrate some general principles which the course of decision has estabhshed for determining the singleness of legislative subjects; whether the provisions under them are congruous and pertinent ; and the consequences of a total or partial departure from the constitutional injunction. Where the title of a legislative act expressed a general sub- ject or purpose which is single, all matters which are naturaUv and reasonably connected with it, and all measures which wiU or may facilitate the accomplishment of the purpose so stated, are properly included in the act, and are germane to its title.^ 1 In re :Mayer, 50 N. Y. 504 ; State Commissioners, 47 N. Y. 501 ; Smith V. Squires, 26 Iowa, 345 ; People v. v. Commonwealth, 8 Bush, 108 ; CONSTITUTIONAT. REQUIREMENT, ETC. 105 The fiegree of relationship of 'each provision is not material, if it legitimately tends to the end disclosed in the title.' What- ever the scope of the subject, it comprehends not only its con- stituent parts, but its general incidents, and those which pertain to either of its parts, and everything contributary to the pur- pose the title expresses or necessarily implies.^ This principle is recognized in several of the constitutions, which conline an act to a single subject, " and the matters properly connected therewith." § 94r. Same — Acts of incorporation. — Any definite sub- ject is generally capable of almost infinite arbitrary division; many particular or subordinate subjects may be included in one general subject,^ and each of these particular or subordi- nate subjects may be selected for the subject of the bill, and may itself be divisible and may embrace other particular or subordinate subjects. Acts to create corporations contain man, 65 Ga. 476 ; Daubman v. Smith, 47 N. J. L. 200 ; Yellow River Imp't Co. V. Arnold, 46 Wis. 214 ; Unity v. Sliiekls V. Bennett, 8 W. Va. 83 ; Ship- ley V. Terre Haute, 74Ind. 297 ; Black V. Cohen, 53 Ga. 621 ; Golden Canal Co. V. Bright, 8 Colo. 144 ; Wishmier V. State, 97 Ind. 160; McCashn v. State, 44 Ind. 151 ; Ewing v. HohUt- zelle, 85 Mo. 64; State v. Ather- ton, 13 Am. & Eng. Cor. Cas. 203 ; S. C. 19 Nev. 332; People v. Bris- Un, 80 III. 423 ; Howland Coal & Iron Works V. BrowTi, 13 Bush, 681 ; Hosier V. Hilton, 15 Barb. 657 ; City of St. Louis V. Tief el, 42 Mo. 578 ; State v. AVliitworth, 8 Lea, 594; PliiUips v. Covington, etc. Bridge Co. 2 Slet (Ky.) 219 ; Brown v. State, 73 Ga. 38 ; Town- ship of Union v. Rader, 39 N. J. L. 509 ; Montgomery M. B. & L. Asso. v, Robinson, 69 Ala. 413 ; Goldsmith v. Georgia R. R. 62 Ga. 485 ; To%\ti of Abmgton v. Cabeen, 106 III 200; Mayor, etc. v. Reitz, 50 Md. 575; Farmers' L. & T. Co. v. Oregon, etc. R. R. Co. 24 Fed. Rep. 407 ; State v. McConnell, 3 Lea, 332 ; Allen v. Tison, 50 Ga, 374 ; Adams v. Webster, 26 La. Ami. 142 ; Campbell v. Board of Phar- macy, 45 N. J. L. 241 ; McArthur v. Nelson, 81 Ky. 67 ; Halleman v. Halle- Burrage, 103 U. S. 447 ; Ackiey School Dist. V. HaU, 113 U. S. 135 ; Gilhtt v. McCarthy, 34 Minn. 318 ; Central Plk. R Co. V. Hannaman, 22 Ind. 484; Smith V. Bohler, 72 Ga, 546 ; Kirkpat- rick V. New Brunswick, 40 N. J. Eq. 46 ; CrawfordsvUle, etc. T. Co. v. Fletcher, 104 Ind. 97; People v. Goddard, 8 Colo. 432 ; Mahomet v. Quackenbush. 117 U. S. 508 ; Seay v. Bank of Rome, 66 Ga. 609 ; State v. Squires. 26 Iowa, 346 ; Louisville, etc. R. R. Co. v. Bal- lard, 2 Met. (Ky.) 165 ; In re De Vau- ceue, 31 How. Pr. 337 ; Bowman v. Cockrill, 6 Kan. 311 ; Farmei-s' Ins. Co. V. Highsmith, 44 Iowa, 330 ; Town of FLshkUlv. FishkiU,22Barb. 634; At- kinson V. Duffy, 16 3Iinu. 49 ; In re Dept Pubhc Parks, 86 N. Y. 437 ; En- glish v. State, 7 Tex. App. 171 ; Klein V. Kinkead, 16 Nev. 194 ; Ross v. Davis, 97 Ind. 79. ■' In re IMayer, 50 N. Y. 504. ^ In re Upson, 89 N. Y. 67. 3 People V. Briggs, 50 N. Y. 553, 563. 106 CONSTITUTIONAL EEQTJIKEMENT, ETC. general subjects capable of much division ; they are not con- lined to the mere creation of a corporate entity. Such an act defines the powers of the corporate body and regulates their exercise. An act to incorporate a city may contain provis- ions relating to the various subjects upon which municipal leg- islation may be required for the preservation of the peace, the promotion of its growth and prosperity, and for the raising of revenue for its government.^ It may confer the necessary leg- islative, taxing, judicial and police powers — the grant of them is one subject.- The whole thing, the creation of the munici- pahty, is that subject ; the parts of it are separate subjects, but parts of one general subject.* So an act to consolidate a city and provide for its government embraces but one subject. It may properly embrace the details for uniting different municipali- ties, providing for the payment of their debts, the government of the cit}^, and all the minutia to which the general adminis- tration of its affairs would lead.^ The revision of an act which has incorporated a municipality announces but one subject. It may treat of the essential parts of the whole as well as may the orio'inal creative enactment.^ An act to revise and con- solidate the several acts in relation to the charter of a city embraces but one subject. The charter consists of the creative act and aU acts in force relating to the corporation. The word consolidate signifies that all the acts are to be brought into and re-enacted in one act. The subject is broad enough to embrace the details of the city government.^ " An act to re- vise the laws providing for the incorporation of raih'oad com- panies, and to regulate the running and management, and to fix the duties and liabilities of all railroad and other corpora- tions owning and operating any railroad in this state," covers but one object. It is to bring together the legislation con- cerning the creation and management of raih'oads.'' An act 1 Loviisiana v. Pilsbury, 105 U. S. 3 1± 278 ; City of Jacksonville v. Basnett, * Louisiana v. Pilsbuiy, supra; City 20 Fla. 525 ; People v. Briggs, 50 N. Y. of Covington v. Voskotter, 80 Ky. 560. 219 ; State v. HaskeU Co. 40 Kan. 65. 2 Han-is v. People, 59 N, Y. 599 ; & Harris v. People, 59 N. Y. 602. Attorney-General v. Amos, 60 Mich. 6 People v. Briggs, 50 N. Y. 560, 372 ; People v. Pond, 67 id. 98 ; Peo- 561. pie V. Hui-st, 41 id. 328. "^ Toledo, eta R R Co. v. Dunlap, CONSTITUTIO.N'AL KEQUIKEMENT, ETC. 107 to prescribe the manner of organizing corporations, public or private, is prospective, and provides the mode of creating new corporations. In such an act provisions to modify the char- ter of an existing corporation is a new subject, not germane to the title.' An act so entitled will operate to govern the in- corporation of all subsequent companies ; it is not multifarious on that account, but an act which in terms incorporates several companies is so.- § 95. The subject expressed in the title includes not only all matters which are constituent parts of it, but all matter di- rectly incidental to it.' An act " concerning drainage " in- cludes for this reason assessments upon lands benefited to pay the expense.'* An act providing for the sale of school lands may define the rights acquired by a purchaser.* So a grant of lands in aid of a public improvement may contain a provision exempting the land from taxation for a limited time.^ An act to regulate a specified business may prescribe penalties for violations of the act.'' An act " to authorize the Utica Water- Works Company to increase its capital stock and to contract with the common council of a city named for a supply of water in that city for the extinguishment of fires" was held to em- brace but one subject, namely, the giving of authority to two corporate bodies therein named to enter into a contract for the purpose therein specified. The power to increase the cap- ital of the company was given simply to enable it to raise such 47 Mich. 456 ; Continental Improve- ^ Prescott v. Beebe, 17 Kan. 320. ment Co. v. Phelps, id. 299. It was held in Swayze v. Britton, 17 lAyeridge v. Tow-n Commission- Kan. 623, that an act " concerning no- ers, 60 Ga. 405 ; City CouncU v. Port taries public " was not broad enough Eoyal, 74 Ga. 658. See State v. Clin- to include a provision authorizing ton, 27 La Ann. 40. notaries pubhc protestuig conimer- -Kingv. Banks, 61 Ga. 20; Ex parte cial paper to give notice thereof to Conner, 51 id. 571. parties secondarily liable. This con- 3 Central Plk. R. Co. v. Hannaman, elusion cannot be reconciled with 22 Ind. 484 ; Mayor, etc, v. Reitz, 50 the i-ule of construction generally Md. 574 ; City of St Louis v. Green, adopted. 7 Mo. App. 468 ; Golden Caual Co. v. 6 Board of Supervisors v, Auditor- Bright, 8 Colo. 144 ; State v. Wlut- General, 65 IMieli. 408. worth, 8 Lea, 504 ; McGrath v. State, ' Hartford F. lus. Co. v. Raymond, 46 Md 633 ; Brown v. State, 73 Ga. 70 Mich. 485 ; Weil v. State, 46 Ohio 38 ; Carson v. State, 69 Ala. 235 ; Eug- St 450 ; Sykes v. People, 127 IlL 117 ; lish v. State, 7 Tex. App. 171. State v. Stunkle, 41 Kan. 456. * Wishmier v. State, 97 Ind. 160. 108 CONSTITUTIONAL KEQUIEEMENT, ETC. sums of money as might be necessary for a performance of its contract ; it was a mere incident to the main object.^ An act to establish a court necessarily includes provisions for the ap- pointment or election of a judge and other oflBcers, how and by whom jurors should be chosen and summoned.^ An act to make further provision for the government of a city or county is one to provide ways and means for its support, a revenue act, not one which can contain any provision to reorganize or change the government or its organic law.^ Under a title to enable a public corporation to raise money by tax, provisions may be included not only prescribing the procedure to assess and collect the tax, but the objects may be designated for which the money is to be raised,^ An act entitled a supple- ment to " An act concerning taxes " is not open to the objec- tion that it embraces more than one subject expressed in its title because it deals with several details of the matter of taxes.-^ A statute embracing only one general subject, indi- cated by its title, is constitutional, no matter how fully it may enter into the details of that subject.^ An act for the more rigid collection of the revenue properly provides for the dif- 1 Utica Water-works Co. v, Utica, Co. v. Bright, 8 Colo. 144 ; People v. 31 Hun, 426 ; O'Meara v. Commission- Goddard, id. 433. . ers, 3 T. & C. 236. In Ackley School District v. Hall, 2 Commonwealtli v. Green, 58 Pa. 113 U. S. 135, was considered an St 233. " Act to authorize independent school 3 Gaskin v. Meek, 42 N. Y. 186 ; districts to borrow money and issue People V. O'Brien, 38 id. 193. This bonds therefor for the pm-pose of last case decides that there cannot be erecting and completing school- included in a revenue bill entitled to houses, legalizing bonds heretofore give authority to raise money by tax issued, and making school orders for the use of a city corporation, and draw six per cent, interest in certain regulating its disbursement, a provis- cases," which was held not in viola- ion amending the charter in relation tion of the provisions of the state to the official term of councilmen constitution (Iowa), that "every act and the time of their election- See shall embrace but one subject and Huber v. People, 49 N. Y. 132. matter properly connected tlierewith, * Sun Mut Ins. Co. v. Mayor, etc. 8 which subject shall be expressed in N. Y. 252 ; Sharp v. IMayor, etc. 31 the title." Barb. 572-575 ; Smith v. Mayor, etc. The act is thus summarized ua the 34 How. Pr. 508. opinion of the com-t : s Kirkpatiick v. New Brunswick, 40 "The act contains six sections, the N. J. Eq. 46 ; Brown v. State, 73 Ga. 38. fourth providing that ' all school 6 Crawf ordsville, etc. T. Co. v. orders shall draw six per cent inter- Hetcher, 104 Ind, 97 ; Golden Canal est after havmg been presented to CONSTITUTIONAL REQUIREMENT, ETC. 100 ferent classes of taxes and defines tlie duties of officers charged with their collection. It may define the jurisdiction of justices in revenue cases and prescribe the practice.^ An act " to reg- ulate the use of water for irrigation, and providing for settling the priority of rights thereto, and for payment of the expenses thereof, and for payment of all costs and expenses incident to said regulations and use," is only equivalent to the briefer title which might have been adopted : An act to regulate the use of water for irrigation. This was held to be the controlling purpose of the law ; that the rest of the title refers to nothing which is not germane to the subject thus expressed. Inci- dental to a proper regulation of the use of water diverted from natural streams in (Colorado) is a determination of the prior- ities of water rijrhts.^ the treasurer of the district and not paid for want of funds, wliich fact shall be indorsed upon the order by the treasui'er.' As there are two kinds of school districts in Iowa, * district township ' and ' independent disti-ict,' — the latter carved out of the former, — it is contended that the title to the act in question embraces two subjects: one relating to mat- ters in which independent school districts alone are concerned, and the other to matters in wliich the town- ship disti'ict and independent districts are concerned ; that whether school orders, which may be issued for many purposes, by districts of either kind, shovdd bear interest or not, is whoUy foreign to the borrowing of money to build school-houses in in- dependent districts. Iowa Code, 1873, ch. 9, tit. 12. " We are not referred to any adju- dication by the supreme court of Iowa which supports the point here made. On the contrary the princi- ples annoimced in State v. Coimty Judge, 2 Iowa, 281, show that the act before us is not liable to the objection that its title embraces more tlian one subject . . . The doctrines of that case have been approved by the same court in subsequent decisions, and they are decisive against the point here raised. Morf ord v. Unger, 8 Iowa, 83 ; Davis v. "VVoolliough, 9 id. 104 ; People v. BrisUn, 70 lU. 423 ; McAm-ich v. R R Co. 20 Iowa, 342 ; Farmers' Ins. Co. v. Highsmith, 44 Iowa, 334. The general subject to which this special act relates is the system of common schools. Tliat sj'stem is maintained tlirough the instrumentality of district schools of different kinds. Provisions in re- spect to these insti'umentahties — those referring to the erection and completion of school-houses in inde- pendent school districts with money raised upon negotiable bonds, and others, to the rate of interest which all school orders shall bear — relate to the same general object and are only steps towards its accomplish- ment." 1 State V. "Whit^vorth, 8 Lea, 594 ; Ensign v. Barse, 107 N. Y. 329. See State v. Wardens, 23 La. Ann. 720. 2 Golden Canal Co. v. Bright, 8 Colo. 144 110 CONSTITUTIOXAL REQUIREMENT, ETC. § 96. A subject expressed in the title includes all subsidiary details, which are means for carrying into effect the object or purpose of the act disclosed in that subject.' An act to in- corporate a raih-oad or other like comj^any may, besides grant- ing its corporate powers, confer on townships or municipalities through which its road passes, or which otherwise derive a public advantage from the enterprise and improvement of such company, power to subscribe to the capital stock of, or make donations to, the company ; and it may provide for elections to decide as to such subscriptions or donations ; for taxation to pay such subscriptions or donations, if voted ; and for the issue of bonds to represent the same.'^ It may also provide for the personal liability of stockholders for labor.* A charter to create an institution for the education of young men presents a subject which embraces everything which is designed to faciUtate that object ; everything intended and adapted to pro- mote the well-being of the institution or its students.* An act to establish a house of refuge for the correction and reforma- tion of juvenile offenders may include an appropriation, not only of money, but land with directions for its sale.' An act incorporating a bank may provide that all parties hable on any bill negotiated at the bank may be sued in one action.® An act for the benefit of a turnpike company may authorize it to borrow money and to execute mortgages to secure its payment ; to sell the road, right of way, etc., applying the 1 Farmers' Ins. Co. v. Higlismith, 15 id, 20; Fireman's Benefit Assoc 44 Iowa, 330 ; State v. Tucker, 46 Ind v. Lounsbmy, 21 ILL 511 ; People v. 355 ; State v. Baum, 33 La. Ann. 981 ; Loewenthal, 93 BL 191 ; City of Vir- AUen V. Tison, 50 Ga. 374 ; Brown v, den v. AUan, 107 id. 505 ; Slack v. State, 78 Ga, 38 ; McArthur v. Nel- Jacob, 8 W. Va. 640 ; Hope v. Gains- son, 81 Ky. 67 ; State v. McConneU. 3 viUe, 72 Ga 246 ; Unity v. Burrage, Lea, 332; Smith v. Boliler, 72 Ga. 103 U. S. 447; San Antonio v. Me- 546 ; Farmers' L. & T. Co. v. Oregon, haffy, 96 U. S. 312 ; Binz v. Weber, etc. R. R. Co. 24 Fed. Rep. 407 ; Floyd 81 IlL 288 ; People v. Brislin, 80 ILL V. Perrin, 30 S. C. 1 ; Fahey v. State, 423. 27 Tex. App. 146. 3 Sh pley v. Terre Haute, 74 Ind. 2 Mahomet v. Quackenbush, 117 297. U. S. 508; Town of Abmgton v. Ca- ^O'Leary v. County of Cook, 28 IIL been, 106 ILL 200 ; S. C. 12 Am. & 534. Eng. R. R. Cas. 581 ; Connor v. Green sMcCaslin v. State, 44 Ind. 155; Pond, etc. R. R. Co. 23 S. C. 427 ; Klem v. Kinkead, 16 Nev. 194. Board of Super, v. People, 25 IlL 6 Davis v. Bank of Fulton, 31 Ga. 69. 181 ; BeUville R R. Co. v. Gregory, CONSTITUTIONAL KEQDIEEMENT, ETC. Ill proceeds to the payment of its debts ; may authorize a judicial sale at the instance of creditors giving the purchaser the rights and powers of the company.^ An act to estaljlish state depos- itaries and prescribe their duties and liabilities will cover pro- visions requiring a bond, and regulating the enforcement of it in case of default.- A statute of limitations may be inserted in a tax law for the purpose of aiding and assisting in the col- lect ion of taxes.' As a means of enforcing a law for regulat- ing and licensing the sale of intoxicating liquors, it may pro- vide that a house where such Hquors are sold, if kept in a dis- orderly manner, may be deemed a common nuisance ; that so keeping it shall cause a forfeiture of the license, and subject the proprietor to a fine.* For a like purpose the act may pro- vide that the applicant for a license shall give a bond to the state conditioned, among other things, that he will pay all fines and costs that may be assessed against him for violating the provisions of the act.^ As a means of enforcing the pay- ment of a special tax on dealers in liquors, it is germane to provide that upon failure to pay such tax the dealer may be indicted and punished for a misdemeanor.^ An act entitled "to prevent deception in the sale of dairy products, and to preserve the public health," goes beyond its title in making the manufacture of imitation butter a crime.^ A provision for submitting an act or any question on which its operation de- pends to a popular vote is germane to the subject or object of such act, and is a means to facilitate its execution,^ § 97. The subject or object stated generally in the title includes the abolition of things inconsistent — Cases of sub- stitution. — It is germane to the subject of an act to repeal previous acts relating to it.^ Such repeal is ancillary to the pur- 1 Louisville, etc. Co. v. Ballard, 2 Wajnie Circuit Judge, 58 IMich. 381 ; Met (Kj.) 165. S. C. 55 Am, R 693. See People v. 'i Seay v. Bank of Rome, 66 Ga. 609. Arensberg, 105 N. Y. 123. See Wardle v. Townseiid, 75 Mich. *City of Virdeu v. Allan, 107 HL 385. 505 ; Caldwell v. Barrett, 73 Ga. 604 ; 'Bowmanv. Cockrill, 6Kan. 311. Simpson v. BaUey, 3 Oregon, 515; * Fletcher v. State, 54 Ind. 462 ; Unity v. Burrage, 103 U. S. 447. O'Kane v. State, 69 Ind. 183. a YeUow River Imp. Co. v. Arnold, 5 Kane v. State, 78 Ind. 103. 46 Wis. 215 ; State v. Countj- Com'rs. 3 Brown v. State, 73 Ga. 38 ; Howell 13 Am. & Eng. Cor. Cas. 203 ; Gabbert V. State, 71 Ga. 224. v. JeffersonvUle R R Co. 11 Ind. 365 ; ■^ Northwestern Manuf 'g Co. v. Burke v. Monroe County, 77 UL 610 ; 112 CONSTITUTIONAL REQUIREMENT, ETC. pose of the new legislation. When one legislative scheme or system is intended to supersede another, the subject of the act which makes the change naturally includes the removal of the existing legislative institution intended to be abolished or re- organized, in whole or in part, and the establishment of the new in its place.^ One act may divide the state into judicial circuits for judicial purposes, provide for election of judges, fix the time for holding courts ; also abolish an existing court, nd transfer its unfinished business to the new court .'^ So one act properly includes all provisions for effecting the change of a steam railroad running in a tunnel in the street of a city to a surface railway, including the subject of compensation to the owner of the raiboad and raising the means to pay it.^ It may happen, when 23artial substitutions occur, that a residuum of the previous state of things will remain, in a disrupted con- dition, requiring some fresh legislation not germane to the disrupting act. In such case the whole situation will not be . re-arranged by one act. The unity of the original condition being destroyed, the validity of the new legislation will de- pend on its own subject being single.'* § 98. Acts which relate to a plurality of similar suhjects.— Such subjects may be grouped and treated as a class for gen- eral legislation embracing all or a part. There is evident in the later constitutions a strong preference for such legisla- tion, and against special, where general acts are appropriate and practicable. Generalizations to answer all cognate wants require preparation and reflection. A particular need first attracts the attention of the legislator, and when he proceeds to frame a measure with reference to it, how comprehensive he will make it depends on his leisure, his courage, his capacity and his public spirit. There is a marked difference between an act treating of individual subjects as such, and embracing more than one, and an act which aims at a single purpose Martin v. Hewitt, 44 Ala. 418 ; Tol- Bush, 108 ; State v. McConnell, 3 ford V. Church, 66 Mich. 431 ; State v. Lea. 332 ; Mullen v. State, 34 Ind. 540 ; Aidman, 76 Iowa, 624; Muldoon v. Phillips v. Mayor, etc. 1 Hilt 483; Levi, 25 Neb. 457. See Ridge Avenue Supervisors v. Heenan, 2 Minn. (281), R'y Co. V. Philadelpliia, 124 Pa. St 333. 219. - State v. Tucker, 46 Ind. 355. 1 Luehrman v. Taxing Dist 2 Lea, 3 People v. Lawrence, 41 N. Y. 137. 425 ; Smith v. Commonwealth, 8 ^ Cuthp v. Sheriff, 3 W. Va. 58a CONSTITUnONAL KEQUIREMENT, ETC. 113 involving a plurality of subjects, and concerning all of them, or several of them. The former is generally multifarious;' the latter valid as dealing with a unity. One general law may provide how all municipal corporations may be organ- ized, how all private corporations may be formed; but one act to create two corporations is void for duplicity.^ One act may define all the crimes, or all belonging to one class ; ' but one act which creates two separate offenses deals with two subjects.'' The multiplicity of persons or things which will be affected by the legislation is immaterial if the subject be single. An act authorizing two counties to issue bonds to erect a court-house in each was held to embrace but one sub- ject — that of building court-houses.* Such an act might prop- erly embrace all counties. That it is not so general, and only applies to two, does not affect this question. It may have been as extensive as the occasion in the state required. But where the legislation concerns separate things without unity in any consideration or purpose it is within the constitutional in- hibition. Thus a law provided for the expenditure of certain highway taxes on two distinct state roads, and for the loca- tion and construction of a third state road, and for the expend- iture of certain other taxes upon that ; it was held to embrace more than one subject. The three roads were held to be " three distinct objects of legislation," which might with en- tire propriety have been provided for by separate acts ; and, indeed, ought to have been, in view of the care which is taken by the constitution to compel each distinct object of legisla- tion to be considered separately.^ ' In re Paul, 94 N. Y. 497 ; State v. from expressing by their votes their Harrison, 11 La. Ann. 722. opinion upon each sepiu-ately, but '^King V. Banks, 61 Ga, 20; Ex they are so united as to unite a eom- parte Connor, 51 id 571. bination of interest among the friends ' State V. Brassfield, 81 Mo. 163. of each in order to secure the success * In re Paul, siq^i'O, of all, when, perhaps, neither could s Allen V. Tison, 50 Ga. 374 ; Wey- be passed separately. The evils of and V. Stover, 35 Kan. 545. that species of omnibus legislation « People v. Denahy, 20 Mich. 349. which the constitution designed to Cooley, J., delivering the opinion of prohibit ai-e all invited by acts thus tlie court, said : " These objects have framed ; and although we have no certainly no 7iec€ssary connection^ and reason to suppose tliat those evils act- being grouped together in one bill, ually existed in the present case, or legislators are not only precluded that there was any purpose on the 8 114 CONSTITUTIONAL KEQUIKEMENT, ETC. In Daubman v. Smith ' the act was entitled " to transfer the charge and keeping of the jails and the custody of the prison- ers in the counties of Essex and Hudson from the sheriff to the board of chosen freeholders, and for the employment of pris- oners, and to regulate the term of service therein." Magie, J,, said, in delivering the opinion of the court : " I am compelled to the conclusion that the legislation in question is in obvious opposition to the constitutional provision in one or the other of its phases. For, if the object of this act may be taken to be the regulation of the jails and the custody of the prisoners in the two counties named in the first eight sections, then the ninth section, in providing for the extension of the scheme to other counties, introduces another and different object, and the act embraces more than one object.- " If, on the other hand, the object of this act may be taken to be the regulation of the jails and then of the prisoners in all the counties of the state, then that object is not expressed in the title. If such was the object of the act, the fact that with respect to some counties it was mandatory, and with respect to others optional, might not be objectionable. The matters part of the legislature to disregard special and peculiar legislation in re^ the constitutional requirement, yet spect to which the roads have no nec- we cannot be governed by these con- essary connection. A combination siderations, if the act is of a class of that description would at once be which is actually prohibited. pronounced vmconstitutional by gen- '■ The act, it will be seen, is not one era! consent, but would not differ at which establishes a general system aU, in principle, from the present act, for the expenditure of nou-i'esident in which the combination of objects highway taxes, or for the constmc- is equally apparent, and equally un- tion of state roads. It singles out necessary for the proper pui-pose of two state roads and provides for the legislation. The only difference there expenditure of certain non-resident could be in the two cases would be highway taxes upon each. It then that, in a case of a combination of in- proceeds to provide for the location terests among powerful corporations and construction of a third state road to secure favorable legislation on their and the expenditure of certain other behalf, a purpose to evade the con- taxes upon that. stitutional requirement would gen- " The three objects are as separate erally be very apparent, while in tliis and distinct as the three great lines case we do not imagine it to have of railroad crossing the state, and the existed at aU ; but the question of same arguments which might be ad- violation of the constitution is not a vanced in support of this act would question of intent" support also an act which would ' 47 N. J. L. 200. 4Bingle out those three railroads for 2 in re Sackett, etc. Sts. 74 N. Y. 95. CONSTITUTIONAL REQUIREMENT, ETC. 115 comprehended in the act would seem to be germane to such an object. But the title does not express such an object." The act had more scope than the title, and the excess was so much as applied to a county not named in the title. § 99. A curative act may apply to any number of instm- ments or proceedings. One act legalized the proceedings in three separate towns, though taken distinct from each other, to issue bonds in aid of a railroad. By miscarriage of some promoters of them they failed to comply with the law under which they were set on foot, so as not to be efficacious. It was held that the bill contained but one subject.' The court said it was a local bill, to have effect upon that separate portion of the state. The object of it was to legalize and validate certain doings in that territory, which, although carried on distinct from each other, had a common aim and purpose. So an act to confirm, reduce and levy certain assessments in the city of B. was held to embrace but one subject.'^ § 100. One act may relate to all or a portion of the courts of a state in defining their jurisdiction or regulating their prac- tice. In the Matter of Wakker,'' an act in relation to justices and police courts of New York was held not to be obnoxious to constitutional objection on account of two courts being the subject of legislation. The court say : " It was the object of this law to establish justices' courts of civil and criminal juris- diction within this city, and to abolish such minor jurisdictions as stood in the way of the courts to be created. The well- known jurisdiction of justices of the peace for the country is dii [dc<\ by this statute between the new justices created by it, upon one set of whom is conferred the civil and upon the other the criminal jurisdiction of the country magistrates. The office of justice, its tenure and jurisdiction, and the compensation of its incumbents are provided for, and clerks are ordered and compensated by this law." It provided also that its provisions should be applicable to the justices and clerk of the marine court. That court was substantially a justice's court, it being distinguishable only by having additional jurisdiction in certain marine cases not cognizable by justices. On this point the court s&j : " It would bo giving an undue importance to this > Rogers V. Stephens, 86 N, Y. 623. 3 3 Barb. 162. 2 In re Van Antwerp, 1 T. & C. 423. 116 CONSTITUTIONAL EEQUIEEMENT, ETC. one feature in respect to jurisdiction to hold that this alone deprived it of the character of a justice's court, while it pos- sessed all the main characteristics of that tribunal. It is still a coui't of inferior and limited jurisdiction, conducted, in all respects material to this argument, as a justice's court. If this be correct, then, in the strictest construction of the article of the constitution under consideration, a statute in relation to justices' courts, confined to the organization and regulation of these courts, may properly embrace in its provisions the ma- rine court." An act was held valid in Kentucky which regulated the jurisdiction of several courts, the inferior courts of the state. It was an act to regulate the civil jurisdiction of justices of the peace, police judges and quarterly courts, and the appellate jurisdiction of the circuit courts on appeals from their judg- ments, and to authorize the quarterly courts to appoint clerks. The act was treated as one to regulate the jurisdiction of sev- eral of the courts of the state. The subject was deemed single.^ § 101. The title. and subject of amendatory and supple- mentary acts. — The constitutional requirement under discus- sion as applied to acts of this character when they contain matter which might appropriately have been incorporated in the original act under its title is satisfied generally if the amendatory or supplemental act identifies the original act by its title, and declares the purpose to amend or supple- ment it.- Under such a title, alterations by excision, addition or substitution may be made.* 1 AUen V. HaU, 14 Bush, 85, 46 Wis. 214, 224 ; Hoffman v. Par- 2 State Line, etc. R R. Ca's Appeal, sons, 27 ]\Iinn. 236 ; Jones v, Colum- 77 Pa. St 429 ; Craig v. First Presb. bus, 25 Ga 610 ; City of St Louis v. Chiu-ch, 88 id. 42 ; IVIiUvale Borough Tief el, 42 Mo. 578 ; State v. Newark, V. Evergreen R'y Co. 131 id. 1 ; Sec- 34 N. J. L. 236 ; Robinson v. Lane, 19 end German Am. R Asso. v. New- Ga. 337 ; Perry v. Gross, 25 Neb. 826 ; man, 50 Md. 62 ; Swartwout v. Rail- Williamson v. Keokuk, 44 Iowa, 88 ; road Co. 24 Mich. 389; Gibson v. National Bank v. Com'rs, 14 Fed. State, 16 Fla. 291 ; Morford v. Unger, Rep. 239 ; Saunders v. ProTisional 8 Iowa, 82; People v. WiUsea, 60 Municipality, 24 Fla. 226; Alber- N. Y. 507 ; Brandon v. State, 16 Ind. son v. Mayor, 82 Ga. 80. See Hy- 197 ; Mills v. Charleton, 29 Wis. 400 ; man v. State, 87 Tenn. 109 ; Hyde YeUow River Imp't Co. v. Arnold, Park v. Cliicago, 124 IlL 156. But ' Robinson v. Lane, supra. CONSTITUTIONAL REQUIREMENT, ETC. 117 It is not enough to refer to the original act merely by the number of the chapter of published laws which includes it.^ see State v. Smith, 35 Minn. 257. In tliat case it appears that outeide of the general law for the assessment and collection of taxes an independ- ent or cumulative act in pari materia was in force requiring notice of the expiration of redemption after a tax eaJe. A subsequent statute, entitled generally as an act to amend the gen- eral law, contained a iirovision ex- pressly repealing this separate stat- ute, which was probably equivalent to providing that redemption should expire absolutely by lapse of the re- demption i^eriod without notice to the party who had the right of re- demption. This was matter germane to the origiual bill which was amended, and xuider tlie iiile stated in the text the title was sufficient The court, however, held otherwise, and Dickinson, J., deUverkig the opinion of the com-t, said : " An amendatory law is for the amend- ment not of what might have been enacted imder the title of the original statute, but of what wa^ enacted; not of what the original law might have been, but of what it was. Hence the sufficiency of the title of an act merely declared to be amendatory of a prior law, to justify the legislation which may be enacted, under it, de- pends not alone upon the fact that the title of the original statute was so comprehensive that the legislation might have been properly enacted in such jirior law, but it depends also upon the nature and extent of the prior enactment to amend which is the declared purpose or subject of the latter act This seems self-evident ; but to test the correctness of the nile invoked, let us apply it to supposable cases. We wiU assume that under the title of the law of 1878, " An act to provide for the assessment and collection of taxes," the only legisla- tion adopted had been a change of the prior law in respect to the time of meeting of the state board of equalization or of the manner of pub- lishing the delmquent list Kow, suppose a later act declared in its title to be amendatory of that act to consist of two sections; the fii-st amending the prior act by j^rescrib- ing a different time for tlie meeting of the state board or a different man- ner of publishing the deLinqueut list The second section, we will suppose, simply declares the repeal of section 2 of a law of 1873 (Sp. Laws, 1873, ch. Ill), authorizing raUi'oad corpo- rations to adopt the scheme of substi- tuted taxation in that act provided ; or let the supposed second section de- clare the repeal of the law of 1877 (chapter 105), which requii'ed an an- nual rettu-n by raih-oad corporations of land sold from then untaxable land grant, so that the same might be properly subjected to taxation ; or again, let the supposed second section be hke that now in question, — simply the repeal of the act of 1877, respect- ing the giving of notice of the expira- tion of the period for redemption; or let us suppose that the so-called amendatory act had consisted only of such repeal of the law of 1877. In such cases the mind is at once im- pressed with the tncongi-uity between the subject of the act as expi-essed in its title and the enactment imder it Yet the principle relied upon by the respondent would sustain such legis- lation, because it might have been adopted under the title of the orig- inal law. The fault in the assei'ted 1 People V. Hills, 35 N. Y. 449. 118 CONSTITTTTIOISrAL EEQUIEEMENT, ETC. The true and actual subject or object must be expressed in the title and not by way of reference to somethmg else to show it.^ An act entitled to amend the charter of a named municipal corporation may contain a provision changing the territorial boundary of the municipality.^ Under such a title provisions have sometunes been enacted curing defects in and validating municipal proceedings taken of course subsequent to the en- actment of the original charter. Such provisions are germane to the object of the incorporation, but not to the function or act of creating a corporation, prescribing and distributing its powers, and regulating th^ir exercise. Such curative provis- ions are retrospective, and are not of the nature of a charter,^ while the original act is constitutive and wholly prospective.* § 102. Provisions in an act not within tlie subject ex- pressed in tlie title. — The title of an act defines its scope ; it can contain no valid provision beyond the range of the subject there stated.^ A title importing a prospective statute wUl rule is that it does not regard the nature and extent of the original en- actment which it is the declared pur- pose of the later act to amend, but only the title of it ; it rests upon the assmnption that the enactment was as comprehensive as imder its title it nught have been. We think it can- not be rehed upon to aid in the de- termination of such cases, and, if recognized as a lode without qualifi- cation, that it would open a way to the accomplishment of the very evils which the constitutional provision was intended to prevent." Re-afi&i"med in State ex reL Nash v. Madsou, 45 N. W. Rep. 856. 1 Id. ; People v. Briggs, 50 N. Y. 553 ; Tingue v. Port Chester, 101 N. Y. 294, 303 ; People v. Flemmg, 7 Colo. 231 ; Pennington v. Woolf oik, 79 Ky. 13, It was decided in State v. Gar- rett, 29 La. Ann. 637, that parts of a statute could be repealed by refer- ence to the numbers of the sections repealed- But see Second German American Banking Association v. Newman, supra. 2 Wliiting V. Mt. Pleasant, 11 Iowa, 482 ; Morf ord v. Unger, 8 Iowa, 82 ; Swift V. Newport, 7 Bush, 37 ; Hum- bolt County V. County Com'rs, 6 Nev. 30. 3Seeposf, § 483. 4 Williamson v. Keokuk, 44 Iowa, 88 ; In re Kiernan, 6 T. & C. 320 ; State V, Newark, 34 N. J. L. 236, and Humbolt Co. v. County Com'rs, 6 Nev. 30, are hable to criticism for embracing provisions which are not strictly cognate with the pm-pose of the act as stated in the title. See Dolese v. Pierce, 124 lU. 140. 5 State V. Silver, 9 Nev. 227 ; People v. Common CouncH, 13 Abb. Pr. (N. S.) 121 ; Lowndes Comity v. Hmiter, 49 AJa. 507 ; State v. Wardens, 23 La. Ann. 720 ; Brieswick v. Mayor, etc. 51 Ga 639 ; Davis v. State, 7 Md. 115 ; In re Tappen, 36 How. Pr. 390 ; Ex parte Thomason, 16 Neb. 238; Mewherter V. Price, 11 Ind. 199; People v. Gad- CONSTITUTIONAL REQUIREMENT, ETC. 119 not cover a retrospective provision.' An act to prescribe the manner of creating corporations cannot constitutionally em- brace provisions amending existing charters.^ A title import- ing exclusively a public statute Avill not cover provisions of a private nature not mentioned in the title.^ An act purport- ing by its title to legalize and make valid certain county bonds may not authorize the issue of new bonds for like reasons to other persons.* Provisions directing the manner of executing a judgment may not be embraced in an act professing by its title to regulate fees on judicial sales.^ Under a title provid- ing for work in the improvement of certain named streets in a city, no provisions can be enacted for Avork on others not named.^ A title confined to leasehold estates will not cover provisions relating to freeholds,' So an act whose title refers only to revenue for state and county purposes cannot provide for municipal revenues.^ It has been made a question whether an act entitled to regulate the jurisdiction of a class of inferior courts and providing for an appeal could properly regulate the jurisdiction and practice of the appellate court in the cases so appealed. It appears to the writer to be an extraneous sub- ject.^ way, 61 Mich. 285 ; Church v. De- 5 Gaskin v. Anderson, 55 Barb. 259. troit, 64 id. 571 ; Nester v. Busch, id. <> In re Sackett, etc. Stieets, 74 657 ; Losch v. St Charles, 65 id. 555 ; N. Y. 95. Supervisoi-s v. Auditor-Gen'l, 68 id. ^ Doi-sey's Appeal, 72 Pa. St. 192. 659 ; Ellis v. Hutchinson, 70 id. 154 ; « Ross v. Davis, 97 Ind. 79 ; Bugher Eaton V. Walker, 76 id. 579 ; FideUty v. Prescott, 23 Fed. Eep. 20 ; Knox- lus. Co. V. Shenandoah V. R. R. Co. 9 ville v. Le^vis, 12 Lea, 180. S. E. R. 759 ; Thomas v. Wabash, » Jones v. Tiompson, 12 Bush, 394 ; etc. R R. Co. 40 Fed. Rep. 126; Faqua v. Mullen, 13 Bush, 467 ; Kulms Touzalin v. Omalia, 25 Neb. 817 ; v. Kraminis, 20 Ind. 490, overruled McCabe v. Kenny, 52 Hun, 514 ; Lane in Robinson v. Skipworth, 23 Ind. V. State, 49 N. J. L. 673 ; Hatfield v. 311. The title of the act m question Commonwealth, 120 Pa. St. 395 ; in this case was : " The election and Wulftange v. McCollom, 83 Ky. 361. qualification of justices of the peace 1 Tlionias v. Colhns, 58 Mich. 64. and defining their jm-ischction, pow- * Ayeridge v. Town Com'rs, 60 Ga. ers and duties in civil cases." The 405 ; Citj' Council v. Port Royal, etc. act contained a provision in re- 74 Ga. 658. gard to cases apj)ealed from justices' 3 People V. Supervisoi-s, 43 N. Y. courts to the circuit and common 10. But see Neuendorff v. Duryea, pleas couits, that "such cases shall 69 N. Y. 557. stand for trial in the comt of com- * Board of Commissioners v. Baker, mou pleas or cii-cuit courts whenever 80 Ind. 374. such ti'anscript has been filed ten 120 CONSTITUTIONAL EEQUIKEMENT, ETC. An act which by its title is directed against the adulteration of milk, and professing to regulate the sale of milk, does not extend to the provision against producing unwholesome milk hy any other process than adulteration.^ So, where the title of an act referred only to bills and promissory notes, no other contracts could be affected or made the subject of legislation in the body of the act.- A title of legislation relating to the days before the first day of the term thereof, and be there ti-ied under the same rules and regtdatious prescribed for ti'ials before justices ; and amend- ments of the pleadings may be made on such terms as to costs and contin- uances as the court may order." In Kahns v. Krammis the court said : " Appeals from justices of the peace enthely remove the causes appealed from the jvxstices. They are not tried upon error but de novo, and are never retiu-ned to the justices. The final judgment regulating the rights of the parties is rendered in tlie ap- pellate coui't. Such being the case, all legislation toucliing the manner of rendering judgment in such cases should be in acts regulating proceed- ings in the appellate com'ts ; and pro- visions in the justice's act assuming to prescribe the practice in the trial and judgment of such causes in the appellate com-ts is in no manner con- nected witli the act regulating the practice in justice's court." " But," the court inquires in the overruling opinion in Robinson v. Skipworth, " is there not a natural and proper connection between this matter and the subject of the act? It is plain that to constitute tliis connection the matter need not form any part of tlie subject For it is well said by Mr. Justice Perkins in delivering the opinion of this coui't in the case of The Bank of the State of Indiana v. The City of New Albany, 11 Ind. 139, that as to sec. 19, art 4 (of tlie con- stitution), referred to, that " every act shall embrace but one subjectand mat- ters properly connected therewith, which subject shaU be expressed in the title." The title incoi-porating the bank is " An act incorporating the bank without branches." We have akeady seen that the extent and manner of taxing the capital stock of the bank, when created, is a matter properly connected with the subject of chartering the institution, and it is only the subject, and not the matter properly connected thereunth, that must be expressed in the title. The chain connecting the matter of section 70 (supra) with the subject of the act is unbroken. We follow the case in all its stages, from the com- mencement of the action to the final judgment of tlie justice; then fol- lows the appeal; then the proceed- ings in tlie appellate coml, step by step, to final judgment, including costs in the action." Here the cases on which the jurisdiction is exex'cised are treated as " matter properly con- nected therewith," even after they have passed beyond that jurisdiction. It is not tlie purpose of the act to pro- vide for cases — they are connected with the subject of the act — the jus- tice's jm'isdiction — while they are sub- jects of that jm'isdiction — no longer. They ai'e incidents ; and when they have passed out of the sphere of the principal, they are no longer con- nected with it in theory or jiractica ' Shivers v. Newton, 45 N. J. L. 469. 2 I\Iewherter v. Price, 11 Ind, 199. CONSTITUTIONAL EEQUIKEMENT, ETC. 121 transportation of freight will not permit any provision rela- tive to passenger transportation.' Nor is a title providing for the acknowledgment of deeds and other conveyances of land broad enough to include provisions defining the consequences of a failure to record such instruments.- Under the phrase " to lay additional tracks," in the title of an act supplementary to the charter of a railway company, a new route cannot be substituted for that established under the original charter.' An act confined by the title to " the preservation of the Mus- kegon river improvement " may include authority to collect tolls and expend the money for that object, but a provision for raising means to pay and authorizing payment for the original construction of the work is beyond the object expressed in the title.* An act " to secure complete records in the courts " does not warrant a provision for obtaining recovery from a delin- quent officer who had been already paid for completing the record.' An act " to provide revenue by taxation of corpo- rations, associations and Ihnited partnerships " is too restricted to embrace individual taxation."^ Provisions for attaching un- organized territory to a judicial district cannot be enacted under a title to regulate the terms of court in it.^ § 103. Effect of acts coutaiiiiiig more thau oue subject. — If an act contain more than one subject, and more than one subject is expressed in the title, the whole act is void.^ In State v. Lancaster Co.,** Maxwell, J., said: "The rule is well settled that where the title to an act actually indicates, and the act itself actually includes, tAvo distinct objects, where the constitution declares it shall embrace but one, the whole act must be treated as void, from the manifest impossibility of choosing between the two and holding the act valid as to one 1 Evans v. Memphis, etc. R. R. Co. ^ state v. McCann, 4 Lea, 1 ; Skinner 56 Ala, 246. v. WiUielm, 63 IMich. 568 ; Johustou 2 Carr v. Thomas, 18 Fla 736. v. Spicer, 107 N. Y. 185 ; Re Commis- 3 West Phila R. R. Co. v. Union sioners, 49 N. J. L. 488; Ragio v. R R. Co. 9 Pliila, 495. State, 86 Tenn. 273 ; State v. Lan- * Ryerson v. Utley, 16 Mich. 269. caster Co. 17 Neb. 87 ; Moore v. Po- 5 Lowndes County v. Hunter, 49 lice Jmy, 32 La. .Ann. 1013 ; Davis v. Ala 507. State, 7 Md. 151 ; Pennington v. Wool- 6 Commonwealth v. Martin, 107 Pa folk, 79 Ky. 13. St 185. a 17 Neb. 87. J Ex parte Wood, 34 Kan. 645. 122 CONSTITUTIONAL KEQUIEEMENT, ETC. and void as to the other.' But this rule will apply 'only in those cases where it is impossible from an inspection of the act itself to determine which act, or rather which part of the act, is void and which is valid. Where this can be done the rule does not apply, unless it shall appear that the invalid portion was designed as inducement to pass the vahd, so that the whole taken together will warrant the belief that the legis- lature would have passed the valid part alone." So if the body of an act embrace more than one subject, and only one be mentioned in the title, the whole act will be void, unless the subject mentioned in the title is so independently treated in the act as to be capable of separation from the other sub- ject. This result must be the conclusion though the act be passed under a constitution like that of California, containing the condition added to the inhibitory clause in question. In People v. Parks,^ McKee, J., thus characterizes the act in question, entitled an act " to promote drainage : " " It will thus be seen that the body and scope of the act included a combination of subjects ; the construction of reservoirs for the storage of debris from mines ; the protection of mines, towns or cities from inundation, by the erection of embankments or dykes ; the drainage of certain districts of the state by the rectification of river channels, and the levy of special taxes to carry on a system of public works, are all inseparably con- joined in the body of the act. The extraordinary powers con- ferred upon the district board of directors are to be exercised for the benefit of all the subjects conjointly; and the money to be raised by the exercise of these powers is to be expended for all without distinction as to any particular ones, thus ren- dering it impossible to disjoin the subjects embraced in the act which are not expressed in its title so as to adjudge the one void and the other vahd as might be done under section 24 of article 4 of the constitution." * Where the provisions of a statute which are not connected with its subject are separable, they will be declared void and the residue sustained.* In states where this constitutional re- striction applies only to local and private acts, the joinder of 1 Cooley's Const Liin. 147. 253 ; State v. Crowley, 33 La. Ann. 2 58 CaL 624, 638. 782. 3 See State v. Exnicios, 33 La, Ann. * state v. Dalon, 35 La, Ann. 1141 ; CONSTITUTIONAL REQUIREMENT, ETC. 123 provisions of a public or general nature with those of a local or private nature will not invalidate the former though the latter may be void for duplicity of subjects in the act or for not being germane to the title.' Cooley's C. L. 181 ; People v. Briggs, No. 3 v. Michoud, 6 La. Ann. GOo ; Ex 50 N. Y. 566, 568 ; Succession of parte IMoore, 62 Ala. 471 ; MLssissippi Irwin, 33 La. Ann. 63 ; State v. Ex- nicios, 33 La, Ann. 253; Unity v. Burrage, 103 U. S. 447; State v. Yoimg, 47 Ind. 150; Shoemaker v. Smith, 37 Ind. 122 ; Eichards v, Rich- ards, 76 N. Y. 188 ; Ex parte Wood, 34 Kan. 645 ; Dorsey's Appeal, 72 Pa. St 192; Commonwealth v. Martin, 107 Pa. St. 185 ; Stuart v, KinseUa, 14 5linn. 524 ; State v. Lancaster Co. 17 Neb. 87; Smith v. Mayor, 34 How. Pr. 508 ; Allegheny Co. Home's Case, 77 Pa. St 77 ; Adams v. Webster, 26 La. Ann. 142 ; State v. Baum, 33 La, Ann. 981 ; Wilhanison v. Keokuk, 44 Iowa, 88 ; State v. Hurds, 19 Neb. 316 ; Wliited V. Lewis, 25 La. Ann. 568; People V. Hall, 8 Colo. 485 ; Fuqua v. & R River B. Co. v. Prince, 10 Am. & Eng. Corp. Cas. 391; Ex paite Thomason, 16 Neb. 238; Davis v. State, 7 Md. 151 ; State v. Wardens, 23 La. Ann. 720 ; State v. SUver, 9 Nev. 227 ; Gibson v. Belcher, 1 Bush, 145 ; Stockle V. Silsbee, 41 Mich. 616 ; Peo- ple v. Fleming, 7 Colo. 230 ; Bugher V. Prescott, 23 Fed. Rep. 20; Rader V. Townsliip of Union, 39 N. J. L. 509 ; Daubman v. Smith, 47 N. J. L. 200; Grubbs v. State, 24 Ind. 295; Rusliing V. Sebree, 12 Bush, 198; Central & G. R. R. Co. v. People, 5 Colo. 39. 1 People V. Supervisors, 43 N. Y. 10 ; Richards v. Richards, 76 N. Y. 186, 189 ; People v. McCann, 16 N. Y. 58 ; Mullen, 13 Bush, 467 ; Municipality Wilhams v. People, 24 N. Y. 405. CHAPTER V. TIME OF TAKING EFFECT. § 104 When silent as to commence- ment 105. Acts of parliament formerly took effect from fii-st day of session. 106. Actual date of passage adopted in this coim.tiy. 107. Legislatm-e may fix the time for act to take effect 108, 109. Constitutional r e g u 1 a- tions. 110. Precise time of taking imme- diate effect 111-115. Computation of time when to take effect in specific number of days. § 104. When silent as to commencement. — When no other time is fixed a statute takes effect from the date of its pas- sage — fi'om the date of the last act necessary to complete the process of legislation and to give a bill the force of law.* When approved by the executive the act of approval is the last act, and the date of it is the date of passage of the act.^ If passed after a veto, the date of the final vote is the date of passage. When a bill becomes a law by the non-action of the executive, under constitutional regulations, the non-action of the executive is a quasi approval, not complete until the lapse 1 Matthews v. Zane, 7 Wlieat 164, 211 ; Louisville v. Savings Bank, 104 U. S. 469 ; Johnson v. Merchandise, 2 Paine, 601 ; The Brig Ann, 1 GaU. 61 ; Heard v. Heard, 8 Ga. 380 ; Fau-- clnld V. Gwymie, 14 Abb. Pr. 121 ; Baker v. Compton, 52 Tex. 252 ; Tem- ple V. Hays, MoitIs (la,), 12; In re Richardson, 2 Story, 571 ; Roe v. Hersey, 3 Wils. 275 ; LescM v. Wash- ington T'y, 1 Wash. T. 13 ; Rathbone V. Bradford, 1 Ala (N. S.) 312 ; Adm'r of Weatlierford v. Weatherford, 8 Port 171 ; People v. Clark, 1 Cal. 406 ; State V. Chck, 2 Ala. 26 ; Taylor v. State, 26 Ala. 283 ; Mobile R. R. Co. v. State, 29 id. 573 ; Branch Bank v. Mur- phy, 8 id. 119 ; Dyer v. State, Meigs, 237 ; Logan v. State, 3 Heisk. 442 ; Day V. McGinnis, 1 id. 310 ; DowUng V. Smith, 9 Md. 242 ; Smets v. Weath- ersbee, R. M. Charlt 537 ; GoodseU v. Boynton, 2 ILL 555 ; Tarlton v. Peggs, 18 Ind. 24 ; West v. Creditors, 1 La. Ann. 365 ; Parkinson v. State, 14 Md. 184 ; State v. Bank, 12 Rich. L. 609 ; Bassett v. United States, 2 Ct of CI. 448. 2 Gardner v. The Collector, 6 Wall. 499 ; LouisvUle v. Savings Bank, 104 U. S. 469 ; Mead v. Bagnall, 15 Wis. 150; Smets v. Weathersbee, R. M. Charlt 537; Risewick v. Davis, 19 Md.82. TTlVrE OF TAKING EFFECT. 125 of the time prescribed for bis affirmative action under tbo given conditions: In tbe absence of evidence of the precise time when ap- proved, an act operates during the whole of the day of ap- proval.^ The constitution of Tennessee provides that no act shall become a law until, among other things which are legis- lative, it " be signed by the respective speakers." "^ This sign- ing, though thus made essential, is held not to fix the date of passage ; not being legislative but ministerial in its nature, when it has been performed, the act by relation takes effect from the conclusion of the proceeding which is legislative.' When no future date is fixed, the act takes effect imme- diately ; no time is allowed for publication. There would be hardship if all acts were left so to take effect. The reason of the rule was well stated by Mr. Doddridge, of counsel, in Matthews v. Zane : * "It being practically impossible actually to notify every person in the community of the passage of a law, whatever day might be appointed for its taking effect, no general rule could be adopted less exceptionable. The general rule may, in some instances, produce hardship ; but if ignorance of the law was admitted as an excuse, too wide a door would be left open for the breach of it." Where statutes are liable to produce injustice by taking immediate effect, the legislature will, except through inadvertence, appoint a future day from whence they are to be in force. Blackstone, after treating of the promulgation of laws, and the duty of legislatures to make them public, says, " all laws should therefore be made to commence in futuro^ and be notified before their com- mencement, which is implied in the term prescribed." * 1 Mallory v. Hiles, 4 Met, (Ky.) 53 ; lands by descent in Bucks coiinty, !^^atter of Carrier, 13 Bankr. Reg. 208 ; brought an ejectment against Robe- Wliitehead v. Wells, 29 Ark, 1)9. son for their recovery. The title of 2 Art. II, sec. 18. the land was clearly shown to have ' Lewis V. Woodfolk, 58 Term. 25. been at one time in the ancestor of * 7 Wheat. 179, the lessee of the plaintiff ; but at a 6 1 Black. Com. 45 ; 1 Kent's Com. subsequent period the lands were de- 458 ; Ship Cotton Planter, 1 Paine, 23 ; creed to the defendant by this court, Cross V. Harrison, 16 How. 19G. See in pursuance of certain chancery pow- Lessee of Albertson v. Robeson, 1 ere delegated to them by an old act Dall. 9. Yeates, J., in Morgan v. Stell, of assembly. The royal assent was 5 Bin. 318, gave this statement of the refused to tliis law in England, and it case : Albertson, claiming certain so happened that the repeal precedes 126 TIME OF TAKING EFFECT. § 105. Acts of parliament formerly took effect from tlie first day of the session. — By the common law the parliament roll being the exclusive record of statutes, and no other date appearing than that of the beginning of the session, laws took effect from that date, when no other was provided by the act. Until the statute of 33 Geo. III., ch. 13, there was no indorse- ment on the roll of the day on which the bills received the rojiil assent, and all acts passed in the same session were con- sidered as having received the royal assent on the same day, and were referred to the first day of the session.^ By the statute of 33 Geo. III. it was provided that a certain parlia- mentary officer should indorse on every act of parhament " the day, month and year when the same shall have passed and shall have received the royal assent ; and such indorse- ment shall be taken to be a part of such act, and to be the date of its commencement, where no other commencement shaU be therein provided." § 106. The actual date of passage adopted in this country. The injustice of permitting laws to have retroactive effect by relation is so manifest that it has not had much countenance in the United States. Without departing from the rule, ex- cept by constitutional direction, that the legislative record is conclusive, statutes have not generally had effect from any date prior to their actual passage. The fiction that all laws are enacted on the first day of the legislative session is not adopted. The actual date either appears in pursuance of leg- islative and executive practice u])on the statute itself, or it is otherwise shown by official records; and this date is popularly known and judicially recognized. In North Carolina the fiction appears to be recognized as part of the common law, and all laws take effect by relation from the first day of the session.- Courts are bound ex officio the decree of the court above two ' Rex v. Justices of Middlesex, 2 months, but the repeal was not Barn. & Ad. 818; Panter v. AttV knouTi here when the decree was General, 6 Brown, P. C. 486 ; Latless made. Tlie court determined, upon v. Holmes, 4 T. R. 660 ; Partridge v. full argument, that the imknown re- Strange, 1 Plow, 79 ; King v. Thiu-s- peal could not affect the right of the ton, 1 Lev. 91 ; Bac. Abr. title Stat- defendant under the decree, and the ute, C. ; 1 Kent's Com. 456. jury found accordingly, and the de- -' Hamlet v. Taylor, 5 Jones' L. cision gave general satisfaction to 36; Weeks v. Weeks, 5 Ired. Eq. the prof ession. Ill; S. C. 47 Am. Dec. 358. See TIME or TAKING EFFECT. 127 to take notice as well of the time Avhen public acts go into op- eration as of their provisions.' Statutes of tlie same session passed on different days are not to be regarded as Laving effect from the same day because they pertain to the same subject.^ § 107. The legislature may fix a future day for an act to take eifect. — The power to enact laws includes the power, subject to constitutional restrictions, to provide when in the future, and upon what conditions or event, tliey shall take effect.* "Where a particular time for the commencement of a statute is appointed, it only begins to have eifect and to speak from that time, unless a different intention is manifest,^ and will speak and operate from the beginning of that day.'^ Where the provisions of a revising statute are to take effect at a future period, and the statute contains a clause repealing the former statute upon the same subject, the repealing clause will not take effect until the other provisions come into operation.'' The period between the passage of a law and the time of its going into effect is allowed to enable the public to become acquainted with its provisions ; but until it becomes a law, they are not compelled to govern their actions by it. Thus, an act which was to go into effect at a future day, established new periods of time for the limitation of actions. It was held not applicable to a case having several years to run where the act would be Boston V. Cummins, 60 Am. Dec. 717, Gen. 6 Brown, P. C. 486 ; DeanT. Kmg, 723 ; S. C. 16 Ga. 103. 13 Ired. L. 30 ; WHieeler v. Chubbuck, 1 State V. Foote, 11 Wis. 14. 16 lU. 361 ; Boston v. Cummins, 16 Ga, 2 Taylor v. State, 31 Ala. 383 ; Met- 103 ; S. C. 60 Am. Dec. 717 ; Evans- ropolitan Board v. Schmades, 10 Abb. vUle, etc. E. R. Co. v. Barbee, 74 Ind. Pr. (N. S.) 30o. 169 ; Larrabee v. Talbott, 5 GUI, 426 ; 3 People V. Salomon, 51 IlL 37 ; New Charless v. Lamberson, 1 Iowa, 435 ; Orleans v. Holmes, 13 La, Ann. 503 ; Davenport v. Railroad Co. 37 id. 624 ; Carpenter v. Montgomery, 7 Blackf. Wolilscheid v. Bergrath, 46 Mich. 46. 415 ; Gorham v. Springfield, 81 Me. See Fosdick v. Perrysburg, 14 Ohid 58 ; Cooper v. Curtis, 30 id. 488 ; Par- St. 473 ; To^^^l of Fox v. Town of Ken- kinson v. State, 14 Md. 184. dall, 97 IlL 73, 75. Upon the enact- * Bac. Abr. tit. Statutes, C. ; Rice v. ment of a new penalty for an offense, Ruddiman, 10 Mich. 125 ; Price v. the former penalty is not supei-seded Hopkin, 13 Mich. 318 ; Gilkey v. Cook, until the statute prescribing the new 60 Wis. 133 ; Jackman v. Garland, 64 penalty takes effect Grinad v. State, Ma 133 ; Swann v. Buck, 40 IMiss. 305 ; supra. Grinad V. State, 84 Ga, 270 ; FaircMld SRice v. Ruddiman, 10 Mich. 125 V. Gwynne, 14 Abb. Pr. 121 ; Latless «Spaulding v. Alford, 1 Pick. 33. V. Holmes, 4 T. R. 660 ; Ranter v. Att'y 128 TIME OF TAKING EFFECT. a bar the moment it took effect. It could not operate to put the party on dihgence before it went into operation. As it gave him no future time after it became a law, it was inoper- ative as to that case.^ The exception of injuries " already sus- tained " in a statute is to be construed as spoken when it took effect.2 The terms " heretofore " and " hereafter " will be construed as spoken at the time the act takes effect.' The bankrupt .aw enacted on the 19th day of August, 1841, was provided to take effect only from and after February 1, 1842. This was equiv- alent to declaring that it should have no effect until that day, and hence it did not suspend the operation of the state insolv- ent laws until that day.* If a particu]> r day is named for an act to take effect, but it is not approved until after that day, its provisions, in terms prospective, will not have effect until after the date of ap- proval.^ And if the main and principal clause of an act is to come into operation from a day named, the other subsidiary clauses may also be held to commence from that day, though it be not so expressed, if it would be inconvenient that they should commence from the passing of the act." Where a general statute provides that acts shaU take effect at a specified day after the adjournment of the session, it wiU govern all future legislation unless there is some indication of a contrary purpose. Acquiescence in such a statute is pre- sumed unless dissent is shown.^ It will govern private as well as public acts.* An act may be brought into effect at an earlier day than that appointed in its provisions by an amendatory or supplemental act. Thus the Mississippi constitution provides that, if acts are silent on the time when they shall take effect, they shall go into effect sixty days after their passage. After an original act a supplemental act was passed which provided that it go into effect immediately. This provision was held to embrace and give immediate effect to the original act.' A 1 Price V. Hopkins, suprcu But see * Larrabee v. Talbott, 5 Gill, 426. Hedger v. Rennaker, 3 Met. (Ky.) 255 ; * Bum v. Carvaliio, 4 Nev. & M. Stine V. Bennett, 13 Minn. 153 ; Smith 893. V. Morrison, 22 Pick. 430. 6 Whitborn v. Evans, 2 East, 185. 2 Jackman v. Garland, 64 Me. 133. "^ Jackman v. Garland, 64 Me. 133. 3 EvansvUle, etc. R. R. Co. v. Bar- 6 Cooper v. Cui-tis, 30 Me. 488. bee, 59 Ind. 592 ; S. a 74 id. 171, 8 West F. R. R. Ca v. Johnson, 5 TIME OF TAKING EFFECT. 129 statute may be framed to take effect on the happening of a future event,' and this event may be the passage of a law in another state.^ § 108. Constitutional provisions regulating the time of acts taking effect. — In many state constitutions are regular tions of this sort ; that acts shall take effect a certain nmnber of days after their passage, or after the end of the session, un- less the acts themselves otherwise provide.* In several a larger majority is required to give immediate effect to an act than to pass it ; in others there must be some emergency to warrant it. These provisions are mandatory.* "Where it is requu^ed by the constitution that an act shall declare that an emergency exists for making it take immediate effect, such declaration cannot be omitted. If the emergency clause be absent, the provision that the act take immediate effect will, under such constitutional requirement, be held void, and the act will take effect as though silent on that subject.* The emergency clause in an act passed June 14, 1852, regulating the remission of fines and forfeitures, declared the act to be in force from and after its being filed with the clerks of the circuit courts in their respective counties. It was held that the legislature intended the act to be brought into force as soon as it coidd be distrib- uted in the several counties, and though there is no express direction to the secretary of state to distribute it, the emer- gency clause imphes such a direction ; it was held also that the secretary of state is to be presumed to have done his duty, and hence that the act was in force on the 20th day of December, 1852.^ What may be deemed an emergency for this purpose is purely a legislative question. The courts will not inqiiire into it, nor entertain any question of its sufficiency.'^ An act which contains an emergency clause and provides that it " shall take effect and be in force from and after its approval by the How. (IVIiss.) 273 ; Swann v. Buck, 40 *Ante, §§ 29, 41. Miss. 268. » Cain v. Goda, 84 Ind. 209. 1 Ante, § 71. 6 state v. Dumiing, 9 Ind. 20 ; Stine 2 1 Am. & Eng. Coi-p. Cas. 1. v. Bennett, 13 Minn. 153. SDay V. McGinnis, 1 Heisk. 310; ' GentUe v.State,29 Ind. 409; 11 id. Gorham v. Springfield, 21 Me. 58; 224; Carpenter v. Montgomery, 7 New Portland v. New Vineyard, 16 Blackf. 415. Me. 69. 9 130 TIME OF TAKING EFFECT. governor," and on his vetoing it is passed by both houses over the veto, takes effect immediately after its passage.' § 109. Taking effect on pnblication. — Where the taking effect of an act depends on publication, required by its own terms or by the constitution, it is a condition, and the time can be fixed only by the date of compliance.^ The provisions of the Louisiana constitution requiring the laws to be promul- gated in the English language, and in the English and French languages, does not prevent the legislature from passing acts to take immediate effect.^ A joint resolution of a general nature requires the same publication as any other law.* When it is provided that an act shall go into effect on pubhcation in two newspapers, publication in one will not suffice, though officially certified to be so published.^ When properly pub- lished it will take effect according to its own terms, although subsequently published officially in different terms. In one instance, by the later publication, the law erroneously appeared to repeal a prohibitory section of a previous law. The erro- neous publication was not allowed to avail a person who had committed the act prohibited by such prior law, which was still in force. The statute, having gone into effect on its cor- rect publication in two newspapers, was not affected by the subsequent erroneous publication." Under a constitutional provision that "no act shall take effect until the same has been published and circulated in the several counties of this state by authority," it was held that the words " published " and " circulated " were used synony- mously.^ And no publication or circulation is good unless done by authority.^ Under a general constitutional provision that "no general law shall be in force until published," publi- cation of a general law by mistake only, in the volume of pri- vate laws, is a sufiicient publication.^ Though going into effect only on publication, the act of 1 Biggs V. McBride, 17 Oregon, 640. 5 Welch v. Battern, 47 Iowa, 147. 2 Cain V. Goda, 84 IncL 209 ; Welch 6 Hunt v. Mui-ray, 17 Iowa, 313; V. Battern, 47 Iowa, 147. State v. Donehey, 8 Iowa, 396. 3 Tliomas v. Scott, 23 La. Ann. 689 ; " Jones v. Gavins, 4 Ind. 305. Re Merchants' Bank, 2 La. Ann. 68 ; 8 Hendrickson v. Hendrickson, 7 State V. Judge, 14 La. Ann. 486. Ind. 13 ; McCool v. State, id. 379 ; * State V. School Board Fund, 4 State v. Dunning, 9 id. 20. Kan. 261. 9 Re Boyle, 9 Wis. 264. TIME OF TAKING EFFECT. liJl record in the ofTico of the secretary of state is tlic law, Avlien different from the published copy.^ A law would probably not be deemed to be published, so as to give it effect, if the publication materially differed from the act of record, but a slight error would be disregarded.^ The date of the certificate of the secretary of state, appended to a published volume of laws, will, in the absence of any suggestion which may lead to more accurate inquiry, be taken to be the date of their publi- cation.' In the constitution of Wisconsin ^ it is provided that " no general law shall be in force until published." The words " general law," here used, have the same meaning as public acts in their ordinary acceptation, as distinguished from pri- vate acts. The object of the prohibition was the protection of the people, by preventing their rights and interests from being affected by laws which they had no means of knowing. But all are bound by and are to take notice of public statutes.' §110. The precise time of taking immediate effect. — At what precise time does a statute go into operation, and first have force as law, when it takes immediate effect? Passing over the fiction of relation to the first day of the session which has been mentioned, there is still to be answered the question whether it takes effect at the beginning of the day of its pas- sage, at the beginning of the next day, or at the precise mo- ment of the last essential act in its enactment. The maxim that the law takes no notice of the fractions of a day is not of universal application. The legal quahty of an act may depend on when it was done with reference to other acts or events occurring not merely on the same day but in the same hour. Instances, in great variety, will at once occur to the professional mind. The sequence of such related facts may always be inquired into, unless the in- quiry under consideration is an exception. What shall be accepted as the commencement of a period of a given num- i Clare v. State, 5 Iowa, 509. See Case, 9 Wis. 264 ; Berliner v, "Water- State V. Donehey. 8 id. 39G. loo, 14 Wis. 378. -Mead v. Bagiiall, 15 W^is. 156; •« See. 21, art. VII. Smith V. Hoyt, 14 id. 253. 5 Clark v. Janesville, 10 Wis. 136 ; 3 State V. Foote, 11 Wis. 14 ; Boyle's State ex reL Cotlu-en v. Lean, 9 Wis. 284, 285. 132 TIME OF TAKING EFFECT. ber of days is an inquiry presently to be considered. That is another and different inquiry ; such a period need not neces- sarily be computed upon fractions of a day. Any general rule as to commencement of a period of several days might operate justly. An act which is made to operate six hours before the time when it was actually enacted and passed is liable to the same objection, except in degree, as when it has a commencement six days or six years before its enactmerit. Hardship is sometimes the result of an act taking hnmediate effect, and every consideration of humanity and justice is op- posed to any retroaction. A statute commands only from the time it has the force of law ; it should not be accorded a be- ginning a moment earher than the actual time of its enact- ment — than the actual tune of the last act in the legislative process. J^o person is required to anticipate the enactment of a law, though he may be charged with a knowledge of it from the moment of its adoption if it at once goes into oper- ation. Lord Mansfield said in Combe v. Pitt : ^ " Though the law does not in general allow of the fractions of a day, yet it ad- mits it in cases where it is necessary to distinguish ; and I do not see why the very hour may not be so too, where it is nec- essary and can be done." In Minnesota the day of the passage is excluded where the act provides that it shall take effect " from and after its pas- sage." ^ There are cases which hold that acts taking imme- diate effect take effect from the first moment of the day on which they were passed.^ They proceeded, however, on un- satisfactory reasons. Prentiss, J., said, in the Matter of Wel- man, " It would be as unsafe as it would be unfit to aUow the commencement of a public law, whenever the question may arise, whether at a near or distant time, to depend upon the uncertainty of parol proof, or upon anything extrinsic to the law, and the authenticated recorded proceedings in passing it." It cannot be laid down as constitutional law that the commencement of public laws must be proved or provable in 1 3 Burr. 1423. « Tomlinson v. Bullock, L. R. 4 2 Parkinson v. Brandenburg, 35 Q. B. Div. 230 ; Matter of Howes, 21 lyiinn. 294. See State v. Messmore, Vt 619 ; Matter of Weknan, 20 id. 653. 14 Wia 163, 174 TIME OF TAKING EFFECT. 133" this manner. Tlie legislature may make a law take effect on the happening of an event which has to be ascertained other- wise than by the " recorded proceedings in passing it." The validity of a statute cannot be judically ^determined by the court's judgment of what is safe and/i5. The law takes notice of fractions of a day when necessary. The general principle declared by Lord Mansfield is believed to be sound and established by the weight of authority, that where it is necessary to justice and it can be done, the law takes notice of the parts of a day ; then the precise time when an act is done may be shown.^ This necessity exists when an act is done on the same day that a legislative act is passed, if that statute being passed afterwards should not affect such act, or, being passed before, should do so. It was said in Grosvenor v. Magill : ^ "It is true that for many purposes the law knows no divisions of a day ; but when- ever it becomes important to the ends of justice, or in order to decide upon conflicting interests, the law will look into fractions of a day as readily as into the fractions of any other unit of time.^ The rule is purely one of convenience, which must give way whenever the rights of parties require it. There is no indivisible unity about a day which forbids one, in legal proceedings, to consider its component hours, any more than about a month which restrains us from refrardins: its constituent days. The law is not made of such unreason- able and arbitrary rules." The weight of American authority is that a statute which is to go into effect immediately is oper- ative from the instant of its passage.* 1 Wells V. Bright, 4 Dgy & Batt. L. ^ Matter of Richardson, 2 Story, 571 ; 173 ; Louisville v. Savings Bank, 104 Gardner v. The Collector, 6 Wall U. S. 4G9; Savage v. State, 18 Fla. 499; Sti-auss v. Heiss, 48 Md. 292; 970 ; Bigelow v. WiUson, 1 Pick. 485 ; Berry v. R R Co. 41 id. 464 ; Legg v. Juddv. Fulton, 10 Barb. 117; Lang Mayor, etc. 42 id. 211; Louisville v. v. Phillips, 27 Ala. 311; Clawson v. Savings Bank, 104 U. S. 409; People Eichbauni, 2 Grant's Cas. 130 ; Gros- v. Clark, 1 Cal. 406 ; Clark v. Janes- venor v. Magill, 37 111. 239 ; Burgess ville, 10 Wis. 136 ; Parkinson v. Bran- V. Salmon, 97 U. S. 381 ; Kennedy v. denburg, 35 Mmu. 294 ; S. C. 59 Am. Palmer, 6 Gray, 316; Brainard v. R, 326; Grosvenor v. Magill, 37 IlL Basluiell, 11 ConiL 17. 239 ; Burgess v. Salmon, 97 U. S. 381 2 37 111. 239. Kennedy v. Pahner, 6 Gray, 316 3 2 Black. Com. 140 and notes. Fan-child v. Gwynne, 14 Abb. Pr. 121 13J: TIME OF TAKING EFFECT. § 111. Computation of time when an act is to take eflFect in a specified number of days. — Such a computation must be made when by constitutional or statutory provision a statute is to go into operation in a specified number of days after its passage, or after the adjournment of the legislature, or is to take effect in a given time after its passage by the two houses, in the absence of executive action upon it. Periods of time are prescribed in statutes, or fixed by the common law, for thi'ee purposes : First, to limit the time within which only some- Re "Wynne, Chase's Dec. 227 ; Osborne V. Hiiger, 1 Bay, 176. See King v. Moore, Jeff. (Va.) 8. In the Matter of Richardson, supra. Story, J., said : " It may not, indeed, be easy in all cases to ascertain the very punctum iemporis; but that ought not to deprive the citizens of any rights created by antecedent laws and vesting riglits iu them. In cases of doubt, the time should be construed favorably for citizens. The legislature have it in then* power to prescribe the veiy moment in futuro after the approval when a law shall have ef- fect ; and if it does not choose to do so, I can perceive no ground why a coiu-t of justice should be called on to sup- ply the defect. But when the time can be and is fidly ascertained when a bill was approved, I confess I am not bold enough to say that it be- came a law at any antecedent period of the same day." In Arnold v. United States, 9 Cranch, 104, it was held that an act takes effect from its passage ; on the day of its passage ; that it affected a transaction of that day, on the rule, that " when a computation is to be made from an act done, the day on which the act is done is to be in- cluded." In Louisville v. Savings Bank, 104 U. S. 478, the com-t, by Harlan, J., said : "In view of the authorities it cannot be doubted that the courts may, when substantial justice re- quu-es it, ascertain the precise hour when a statute took effect by the ap- proval of the executive. But it may be argued that the rule does not ap- ply where the inquiry is as to the time when constitutional provisions become operative by popular vote; that a popular vote, given at an elec- tion covering many homrs of the same day, should be deemed an indivisible act, effectual, by relation, from the moment the electors entered upon the performance of that act, to wit: from the opening of the -polls. But we are of opinion that no such dis- tinction can be maintained. In determining when a statute took ef- fect, no account is taken of the time it received the sanction of the two branches of the legislative depart- ment, -vv'Iiich sanction is as essential to the vaUdity of the statute as the approval of the executive. We look to the final act of approval by the executive to find when the statute took effect, and, when necessary, in- quii-e as to the horn- of the day when that approval was in fact given. So, we perceive no sound reason why the courts may not, in proper cases, in- quire as to the hour when such ap- proval became effectual, to wit: as to the time when, by the closing of the polls, the people had adopted such provision." See Welch v. Hannibal, etc. Ry. Co. 26 Mo. App. 358. , TIME OF TAKING EFFECT. 135 thing may be done ; second^ to limit tlie time after which only something may be done ; tldrd, to fix a precise tune at which only something may be done or commenced. The precise future time at which an act is appointed to be done or take effect, determinable by computation from a date or event, is in general the last point of the period ; if a period of days, the last day. No fractions of a day being recognized, a period of days may for all purposes be computed by one uniform rule, unless there is, in a particular case, a different intention indi- cated. The rule now supported by nearly all of the modern cases is that the tune should be computed by excluding the day or the day of the event from which the time is to be computed and including the last day of the number constituting the specified period.^ Thus, if an act is to take effect in thirty days from and after its passage, passing on the first day of March, it would go into operation on the 31st day of that month. It would commence to operate at the first moment of the last day of the thirty, ascertained by adding that num- ber to the number of the date of passage. It is the general rule for computing thne consisting of days, weeks, months or years. In such a computation days are en- tu'e days, fractions of a day being disregarded ; - and whether the computation is from an act done, or from a day or the day of a date, the day of such act, or the day or date men- tioned, is to be excluded.* 1 Simmons v. Jacobs, 53 Me. 147 ; Berry v. Clements, 9 Humpli. 312 ; Bemis v. Leonard, 118 Mass. 502; S.C.llHow. 398. See Cook v. Moore, Stebbins v. Anthony, 5 Colo. 356 ; 95 N. C. 1. Gai-ner v. Jolmson, 22 Ala. 494 ; Hall 3 Rand v. Eand, 4 N. H. 267 ; Bemis V. Cassidy, 25 jNlLss. 48 ; Mitchell v. v. Leonard, 118 Mass. 502 ; Wiggin v. Woodson, 37 id. 567 ; Ex parte Dil- Petei-s, 1 Met 127 ; Seekonk v. Reho- lard, 08 Ala. 594 ; HoUis v. Francois, 1 both, 8 Cush- 371 ; Goode v. Webb, 53 Tex, 118. Ala. 452 ; White v. Haworth, 21 Mo. -Brown v. Buzan, 24 Ind. 194; App. 439; Pyle v. Maulding, 7 J.J. Jacobs V. Gralmm, 1 Blackf . 392 ; Cor- Maish. 202 ; Brackett v. Brackett, 61 aoU V. :Movilton, 3 Denio, 12 ; Griffin Mo. 223 ; Hart v. Walker, 31 id. 26 ; V. Forrest, 49 :Mich. 309 ; Dousman v. Walsh v. Boyle, 30 Md. 262 ; Small v. 'O'Malley, 1 Doug. (Mich.) 450 ; Blake Edi-ick, 5 Wend. 137 ; Doyle v. Miz- V. Crowniugshield, 9 N. H. 304 ; Port- ner. 41 Mich. 549 ; Lester v. Garland, laud Bank v. Maine Bank, 11 Mass. 15 Ves. 248; Webb v. Fairuiauer, 3 .204 ; Mm-f ree v. Carmack, 4 Yerg. 270 ; M. & W. 473 ; Ex parte FaUon. 5 T. E. 13G TIME OF TAKING EFFECT. § 112. Some cases, both English and American, make a dis- tinction between computations from an act done and those from the date or day of the date, inchiding the day of the act done in the former and excluding the day of the date in the latter.' But that distinction is not now recognized in England,^ ^ nor in but few of the states in this country.^ The rule is not so absolute, however, but that the day of the act done may be included where it is necessary to give effect to the obvious in- tention; and some cases assert it will be included or excluded, as occasion may require, to prevent an estoppel or save a for- feiture.* 283 ; Young v. Higgon, 6 M. & W. 49 ; Pi-otection Life v. Palmer, 81 111. 88; Sheets v. Selden, 2 WalL 177; C!ock V. Biinn, 6 Jolin. 326 ; Hoffman V. Duel, 5 id. 232 ; GiUespie v. Wliite, 16 id. 117 ; Dayton v. Mclntyre, 5 How. Pr. 117 ; Black v. Johns, 68 Pa. St 83 ; Menges v. Frick, 73 Pa. St 137 ; Pres- brey v. Williams, 15 Mass. 193; Bow- man V. Wood, 41 III 203 ; HaU v. Cas- sidy, 25 Miss. 48 ; Columbia T. Co. v. Haywood, 10 Wend. 422 ; Page v. Weymouth, 47 Me. 238 ; Carothers v. Wheeler, 1 Oregon, 194; Irving v. Humphreys, Hopk. 364 ; Vanderburgh V. Van Rensselaer, 6 Paige, 147 ; Gor- ham V. Wing, 10 Mich. 486 ; Bigelow V. Wnison, 1 Pick. 487 ; Judd v. Fulton, 10 Barb. 117; Snyder t. Wan-en, 2 Cow. 518 ; Sims v. Hampton, 1 S. & R 411 ; State v. Sclmierle, 5 Rich. L. 299 ; Steamer Jlary Blane v. Beehler, 12 Mo. 477 ; Kimm v. Osgood's Adm. 19 id. 60 ; Windsor v. Chma, 4 Greenlf. 298 ; Peai-pont v. Graham, 4 Wash. C. C. 232 ; Cromelien v. Brink, 29 Pa. St 522 ; Homan v. Liswell, 6 Cow. 659 ; Weeks v. Hull, 19 Conn. 376 ; Carson V. Love, 8 Yerg. 215 ; Duffy v. Ogden, 64 Pa. St 240. See Smith v. Harris, 34 Ga. 182. iKing V. Adderley, 2 Doug. 463; NoiTis V. Hunch-ed of Gawtry, Hob. 139 ; Castle v. Burditt 3 T. R. 623 ; Glassington v. Rawlins, 3 East 4^07 ; Clayton's Case, 5 Coke, 1 ; Arnold v United States, 9 Cranch, 104 ; Jacobs V. Graham, 1 Blackf. 392 ; White v. Crutcher, 1 Bush, 472; CMles v. Smith's Heirs, 13 B. Mon.460; Wood V. Commonwealth, 11 Bush, 220. 2 Lester v. Garland, 15 Ves. 248; Webb V. Fau-maner, 2 M. & W. 474 ; Ex parte FaUon, 5 T. R. 283 ; Yoimg V. Higgon, 6 M. & W. 49 ; Mercer v. Ogilvy, 3 Baton, 434; Hardy v. Ryle, 9 Barn. & Cr. 603 ; Pellew v. Inhab. of Wonsford, id. 134; Rex v. Jus- tices, 4 Nev. & M. 378 ; Robinson v. Waddmgton, 13 Ad. & El. (N. S.) 753. 3 Calvert v. WiUiams, 34 Md. 672; Sheets v. Selden, 2 WalL 177 ; Owen V. Slatter, 26 Ala. 551 ; Elder, Adm'r, V. Bradley, 2 Sneed, 252; Bemis v. Leonard, 118 Mass. 502; Sims v. Hampton, 1 S. & R. 411 ; Ki m m v. Osgood, 19 Mo. 60; Pyle v. Mauld- mg, 7 J. J. Marsh. 202. In Ken- tucky the coui'ts include the ter- minus a g wo when the computation ia- from an act or event Chiles v. Smith's Heirs, 13 B. Mon. 460 ; Bat- man V. Megowan, 1 Met (Ky.) 548 ; Wliite V. Cratcher, 1 Bush, 473 ; Wood V. Commonwealth, 11 id. 220; Hand- ley V. Cunningham, 12 id. 402 ; Mooar V. Covington City Nat Bank, 80 Ky. 305. nVindsor v. China, 4 Greenlf. 398;. Presbrey v. WUliama, 15 Mass. 193 ; TIME OF TAKING EFFECT. 137 " From " is a term of exclusion,' and tlie words '• to," " till " or "until," inclusive.^ ISTot that tliey import this in all con- nections, but in their use to indicate the beginning and ending of spaces of time. If a given number of days is requu-ed to elapse between one act and another, the day of the first is ex- cluded, and the day of the other included. An intention to exclude both days may be inferred from language clearly ex- pressing that intent ; ' as where a statute or rule of court re- quires a certain number of clear days,* or as has been held when " at least " a given number of days is requu^ed.* The rule is so generally recognized to exclude the first, or termmus a quo, and to include the last, or terminus ad quern, that it requires no particular words for its application.' The terminus a quo, so far as it is descriptive of a period of time, is coincident with the day, or day of the act from which the computation is to be made ; that day is indivisible ; the period to be computed is another and subsequent period, which be- gins when the first period is completed. The last day of that period is an indivisible point of time — the terminus ad quern. When that point is reached the period is complete. Dies i'n- ceptus pro completo hahiturJ § 113. Where a summons or notice is required to be served or given a specified number of days for a sale, to require ap- Williamson v. Farrow, 1 Bailey, 611 ; 522 ; The Queen v. Tlie Justices, etc. Steamboat Mary Blane v. Beehler, 12 8 Ad. & El. 932 ; In re Prangley, 4 Ad. Mo. 477 ; Pugh v. Duke of Leeds, 2 & EL 781 ; O'Connor v. Towns, 1 Tex. Cowp. 714 ; Price v. Whitman, 8 CaL 107 ; Walsh, Trustee, v. Boyle, 30 Md. 412, 417 ; O'Connor v. Towns, 1 Tex. 266 ; SmaU v. Edrick, 5 Wend. 137. 107. See Columbia T. Co. v. Haywood, 10 1 Peables v. Hannaford, 18 Me. 106. Wend. 423 ; Stebbins v. Anthony, 5 2 Thomas v. Douglass, 2 John. Cas. Colo. 348, 360 ; Yoimg v. Higgon, 6 226 ; Bunce v. Reed, 16 Barb. 347 ; M. & W. 49. Dakms v. Wagner, 3 DowL P. C. 535 ; ^ A. rule made June 6th to plead Webster v. French, 12 111. 302. See in four duys gives the party all of People V. Walker, 17 N. Y. 502. the 10th for that purpose. Clark v. ^Douseman v. O'Malley, 1 Doug. Ewing, 87 111. 344; PeppereU v. (Mich.) 450 ; SaUee v. Ireland, 9 Mcli. Biurell, 2 Dowl. P. C. 674. " By the 154 ; Cook v. Gray, 6 Ind. 335 ; Rob- January 20 " includes that daj', Hig- inson, Adm'r, v. Foster, 12 Iowa, 186 ; ley v. Gilmer, 3 Mont 433, and until Isabelle v. Iron Cliffs Co. 57 Mich. 120 ; the office opens the next morning. Powers' Appeal, 29 Mich. 504. Oxley v. Bridge, 1 Doug. 67. * King V. Herefordshii-e, 3 Bam. & ' Mercer v. Ogilvy, 3 Baton, 434, Aid. 581. 442. * Zouch V. Empsey, 4 Bai-n. & Aid. 138 TIME OF TAKIXG EFFECT, pearance, or of a proceeding to take place at a precise time, the day of service is excluded ; the sale or proceeding may be on the last of the required number of days, and the appear- ance must be on or before that day.^ The same rule apphes where a period is defined to be computed from a given act or date where within such period a right, power or authority may be exercised, or beyond which such right, power or au- thority may immediately attach and have force. The right to appear and plead is a right so limited and defined in point of time ; if not claimed and exercised within the period given therefor there is a default ; this is complete on the expiration of that period, and the right of the other party to proceed thereon attaches at once on the expu'ation of that period. At the same point of thne one right exj^ires and another becomes operative. § 114. The right of appeal is one to be exercised within a determinate period. That period is computed from the date of the judgment. The day of the judgment is excluded in the computation.^ The right of redemption is another to be exer- cised within a certain time, and it is computed after a sale. The day of sale is excluded from the computation.* The re- demption period expires with the last day, and it is only after its expiration that the sale can be treated as absolute.* 1 Kerr v. Haverstick, 94 Ind. 180 ; Adm'r v. Walker, 31 Mo. 26 ; Rex v. Vandenbm-gh v. Van Rensselaer, 6 Justices, 4 Nev. & Man. 370. See City Paige, 147 ; Irving v. Humplu-eys, Coimcil v. Adams, 51 Ala 449. Hopk. 364 ; White v. German Ins. 2 Carotliers v. Wheeler, 1 Oregon, Co. 15 Neb. 660; Monroe v. Paddock, 194; Smith v. Cassity, 9 B. Mon. 193 75 Ind. 422 ; Walsh v. Boyle, 30 Md. (overruled in Chiles v. Smith's Heu-s, 262 ; Bowman v. Wood, 41 IIL 203 ; 13 id. 460) ; Ex parte Dean, 2 Cow. Vairin v. Edmonson, 5 Gilm. 270; 605. And see Commercial Bank v. Forsyth v. Warren, 62 IIL 68 ; Hall Ives, 2 Hill, 355. V. Cassidy, 25 Miss. 48 ; Columbia * Gorham v. Wing, 10 Mich. 486 ; T. Co. V. Haywood, 10 Wend. 423 ; White v. Haworth, 21 Mo. App. 439. Bacon v. Kennedy, 56 Mich. 329 ; * People v. The Sheriff of Broome, Dexter v. Cranston, 41 Mich. 448 ; 19 Wend. 87 ; Bigelow v. Willson, 1 Doyle V. IMi^ner, 41 Mich. 549 ; See- Pick. 485 ; Cromihen v. Brink, 29 Pa. konk V. Rehoboth, 8 Cush. 371 ; Bemis St. 522. In this case the com-t say : V. Leonard, 118 Mass. 502 ; Towell v. "A day is always an indivisible point Hollweg, 81 Ind. 154 ; Cock v. Bunn, of time except where it inust be cut 6 John. 320 ; Hoffman v. Duel, 5 id. up to prevent injustice. In the sense 232 ; Gillesi^ie v. White, 16 id. 117 ; of these statutes it has neither length Cressey v. Parks, 75 Me. 387 ; Hart's nor breadth, but simply position with- TIME OP' TAKING EFFECT. 130 Eights of action may be asserted during tlie pci'iod defined 'in the statutes of limitation. The rule would philosophically include in the period of limitation every day in which an action could be brought, as the rights of appeal and redemption in- clude every day in which those rights could be exercised. The right to sue commences at once after the maturity of the debt, or right of action. Tlie day on which it matures is excluded for the same reason that the day of sale is excluded in reckon- ing the time of redemption, or the day on which the judgment is rendered in computing the time for appeal. The sale or rendition of judgment are acts which do not occupy the whole day ; but fractions not being regarded, they are treated the same as though they took place in every part of the day, or the day as having no magnitude, as a mere point of time.^ out magnitude. If the time of re- demption were fixed at one day after the sale, that day could not be the day of the sale ; for it might be made at the last moment of the day, and the owner being thus prevented from tendering on that day, would lose liis right The time mentioned must therefore be the following day. So of one year, or of two years." Ed- mundson v. Wragg, 104 Pa. St. 500. 1 In Presbrey v. Wilhams, 15 Mass. 192, the court say : " By the statute of Umitations it was intended that the plaintiff should have f uU six years, and no more, witliin wliich to bring his action. In this case he might have brought his action on the 1st of No- vember, as upon a new promise then made (supposing that the action had l)een previously barred by the stat- ute), and if he may also commence it on the 1st day of November, 1817, it Avould make seven first days of No- vember in the six j^ears prescribed by the statute." The facts of this case and that of Meuges v. Frick, 73 Pa. St 137, are not such as to fairly iUusti-ate the rule, for in both cases the right of action matured on the day included in the former and ex- cluded in the latter in computuig the period of limitations. It is said that the new promise reviving a baiTed debt was made on November 1, 1810, and might have been sued on that day. The new promise hke the ren- dition of a judgment or sale, though an act occupying but a moment, may be the first or last moment of the twenty-four hom-s. As a fact from which time is reckoned they occupy the day, — the day is but a pouit of time. In reckoning a period from that act, it is considered in law that there is not a moment of the day of such act subsequent to it The act and the day are identical in time — space — a mere point We may sup- pose a new promise made which re- vives a debt and an action brought on it the same day ; so we may sup- pose a redemption from a sale on the day of the sale, or an appeal from a judgment on the day when it was rendered. Then to protect the right of suit, redemption or appeal, a coui-t would disregard the fiction that there are no fractions of a day and ascer- tain if the action wixs brought after the 1 ight accrued, and so in the other cases whether tlie right exercised ex- 140 TIME OF TAKIXG EFFECT. § 115. When Sundays are included or excluded. — For secular pm^poses Sundays are dies non utiles. In many con- istecL See ante, § 110. Paul v. Stone, 112 jMass. 27, confii-ms tliis view. The statute bai-red an action against an administrator unless commenced witliin two years " from the time of his giving bond." The court adopt the language of AVilde, J., in Bigelow V. WiUson, 1 Pick. 485, that "the words ' time of executing the deed,' used in tlie statute, mean, in legal ac- ceptation, the day of dehvery, which is the same as ' the date ' or ' the day of the date.'" The following cases are to the same effect: Steamboat Mary Plane v. Beeliler, 12 Mo. 477 ; Viti V. Dixon, id. 479 ; Blackman v. Nearing, 43 Conn. 56; Cornell v. Moulton, 3 Denio, 12. The case of McGraw v. Walker, 2 Hilt 404, is not like the others. There a note was payable on the 1st day of October and therefore became due on the 4th. At the expiration of that day an action accnied and suit could have been brought on the 5th. The statute commenced ranning on and including that day — and hence expired with the 4th of October in the sixth year thereafter — imless the language of the statute of limitations excludes the first day upon which an action could be brought. It requires an action to be brought ^vitliin the pre- scribed period " after the cause of ac- tion accrued." The inquiry narrowly is. Does a party have the prescribed fjeriod and an additional day to bring his action? It is the writer's opinion tliat the first day when he can bring suit is the first day after the accrual of the action and part of the pre- scribed period of Hmitation. If the computation must be made backwards f rcjm a day or proceechng, it is stiU a period to be ascertained by excluding one day and including an- other. Though the day from which the computation has to be made is the same sort dies a quo, in the reck- oning, it is yet the expu-ation of the period. The same rule of computa- tion apphes; such periods are not construed to be periods of clear days ; one terminus is included and the other excluded. Wliile it would seem more philosophical, and preserve a symmetiy in. the apphcation of the rule Avhich excludes the terminus a quo, as in Hagerman v. Ohio Buildings etc. Co. 25 Ohio St. 186, stiU the re- sult is the same, when the terms are ti-ansposed. Nortlu-op v. Cooper, 23^ Kan. 432. In a veiy learned and elaborate opinion in Stebbins v. Anthony, 5 Colo. 348, Beck, J., remarks that " The iTile of the common law, and the rule generally adopted by the coiu-ts of the several states, is to include one day and to exclude the other, some coui'ts including the fir-st day in the specified time in the computation, and ex- cluding the last day. Some coiu-ts exclude the first day, and include the last, wlule other courts vaiy then- practice according to the pliraseology of the statute under consideration, in some instances including the last day, and in others including both days." He concludes that the rule sustained by the general current of modern authority is that " where a statute requires an act to be per- formed a certain number of days prior to a day named, or witliin a definite period after a day or event specified; or where time is to be computed either prior to a day named or subsequent to a day named, the usual rule of computation is to ex- clude one day of the designated period and to include the other. "^ TIME OF TAKING EFFECT. 141 stitutions they are excepted from the time allowed the execu- tive for action upon a bill which is delivered to him alter its passage by the two branches of the legislature. "Where that is the case, Sundays are excluded from the computation. Thus, under such a provision in the federal constitution allowing ten days, excepting Sundays, an act so passed and submitted to the president on Saturday, the 19th of February, would, in case of his non-action, take effect on the 3d of March ensuing.' In the absence of positive written law excluding Sundays from a period of days prescribed for any purpose, they are counted, even though the period ends on Sunday.^ Where a period Bowman v. Wood, 41 IlL 203 ; Vairin V. Edmonson, 5 Gilm. 270; Forsyth V. AVairen, 62 IlL 68 ; Smith v. Rowles, 85 Ind. 2G4 ; Rhoades v. Delaney, 50 Ind. 253 ; Lougliridge v. Huntington, 56 Ind. 253; Meredith v. Chancey, 59 Ind. 466 ; Fox v. AllensviUe, 46 Ind 31; HiU V. Pressley, 96 Ind. 447; Swett V. Sprague, 55 Me. 190 ; Gantz V. Toles, 40 Mich. 725; Dexter v. Shepard, 117 Mass. 480; Frothing- ham V. March, 1 Mass. 247 ; Early v. Doe ex dem. Homans, 16 How. 615 ; Dexter v. Cranston, 41 Mich. 448; Scrafford v. Gladwin Supervisors, id. 647 ; Powers' Appeal, 29 Mich. 504 ; Bacon v. Kennedy, 56 IVIicli. 329 ; Isa- beUev. Iron Chffs Co. 57 Midi. 120. But m Ward v. Walters, 63 Wis. 44, Taylor, J., thus states the docti'ine : " In the absence of any statutory pro- vision governing the computation of time, the authorities are uniform that where an act is required to be done a certain number of days or weeks be- fore a certain other day upon which another act is to be done, the day upon which the lii-st act is to be done must be excluded from the computa- tion and the whole niunber of the days or weeks must intervene before the day for doing the second act" The same com-t, in Wright v. For- restal, 65 AVis. 348, speaking by the same learned judge, said : " The lan- guage [of the statute] is : ' Tlie reso- lution shaU he over at least four weeks after its introduction, and no action shall be taken by the common coun- cil, if within that time a remon- sti'ance,' etc. The question was i)re- sented to the councU when the four weeks expked so that they might act on the same. They evidently con- sti'ued it, as men ordinarily would, that a week was the period of time extending from Monday of one week to Monday of the next week follow- ing, and not vrntil Tuesday of such week, and that the resolution, if in- ti'oduced on Monday, had laid over four weeks when the fourth Monday thereafter had arrived, and that they were at hberty to act upon it then. AVe think this is the natural construc- tion of the act, and clearly within the intention of the legislatvu-e." 1 See Price v. Whitman, 8 CaL 412. ^Taj'lor V. Palmer, 31 CaL 244; Miles V. JIcDermott, id. 272 ; Cliicago V. Vulcan Iron Works, 93 IlL 222; Ex parte Dodge, 7 Cow. 147 ; King v. DowdaU, 2 Sandf. 131 ; Anonymous. 2 HiU, 375; Harrison v. Sager, 27 ]Micli. 476; Haley v. Yoimg, 134 Mass. 364 ; Broome v. Wellington, 1 Sandf. 660 ; Ready v. Chamber hn, 52 How. Pr. 123 ; National Bank v. Will- iams, 46 Mo. 17; CresweU v. Green, 11 Eaijt, 537 ; Ex parte Simpkin, 105 142 TIME OF TAKING EFFECT, less tlian a week is prescribed by statute, it has sometimes been held that an intervening Sunday should not be counted, nor if it be the last day of the period,^ This appears to be the settled rule in Massachusetts.^ It is not universally adhered to as to periods of more than one or two days.^ Subject to this qualification, where the last day is Sunday, any act re- quired by statute to be done within the period must be done before that day. For such acts the period j)ractically ends on the preceding day.^ In Pennsylvania a different rule prevails. There, in such case, the act may be done oTi Monday.^ In Hughes v. GritRths," Erie, C. J., said : " I am of opinion that when the last of the seven days [a statutory period] hap- pens to faU on a day which is declared to be a holiday, and on which the court cannot act, the party has until the next fol- lowinof dav on which the court can act to issue the writ. It seems to me that a distinction between a thing which is to be done by the court and a mere act of a party is maintainable." ^ If the period is fixed by contract, or is a rule of court regu- lating mere practice, and it ends on Sunday, that day is ex- cluded, and the period will be deemed to include Monday.* Eng. C. L. 392 ; Peacock v. Regina, 93 v. Green, 14 East, 537 ; Peacock v. id. 264 ; Eowberry v. Morgan, 9 Ex. Regina, 93 Eng. C. L. 262 ; Taylor v. 730. See Harker v. Acklis, 4 Pa. St. Corbiere, 8 How. Pr. 385. 515 ; Sims v. Hampton, 1 S. & R. ^ Ex parte Simpkin, 105 Eng. C. L. 411. 392 ; Queen v. The Justices, 7 Jm'ist, 1 Anonymous, 2 Hill, 375 ; Drake v. 396 ; Alderman v. Plielps, 15 Mass. Andrews, 2 Mich. 203 ; National Bank 225 ; Cressey v. Parks, 75 Me. 387. V. Williams, 46 Mo. 17 ; Wliipple v. * Edmundson v. Wragg, 104 Pa. St. WilUams, 4 How. Pr. 28 ; Wathen v. 500, 502. Beaumont, 11 East, 271 ; Rex v. El- 6 106 Eng. C. L. 332. kins, 4 Burr. 2130. 7 See Harrison v. Sager, , 27 Mich. 2 Alderman v. Phelps, 15 Mass. 225 ; 476. Thayer v. Felt, 4 Pick. 354 ; Penniman 8 Cock v. Bunn, 6 John. 326 ; Borst V. Cole, 8 Met. 496 ; Mclniff e v. v. Griffin, 5 Wend. 84 ; Bissell v. Bis- Wheelock, 1 Gray, 600; Hamium v. sell, 11 Barb. 96; Anonymous, 1 TourteUott, 10 Allen, 494 ; Cunning- Sti-ange, 86 ; BuUock v. Lincoln, 2 id. ham V. JMahan, 112 Mass. 58. 914 ; StucUey v. Sturt, id. 782 ; Lee v. 3 Harrison v. Sager, 27 Mich. 476 ; Carlton, 3 T. R. 642 ; Solomons v. Free- Simonson v. Durf ee, 50 ]\Iich. 80 ; man, 4 id. 557 ; Harbord v. Perigal, 5 Cressey v. Parks, 75 Me. 387 ; State v. id. 210 ; Asmole v. Goodwin, 2 Salk. Wheeler, 64 id. 532 ; CarviUe v. Addi- 024 ; ShadweU v. Angel, 1 Burr. 56 ton, 62 id. 459 ; Tuttle v. Gates, 24 id. Simonson v. Durfee, 50 ]\Iicli. 80 395 ; Hales v. Owen, 2 Salk. 625 ; Morris v. Barrett, 97 Eng. C. L. 139 Asmole v. Goodwin, id. 624 ; Creswell Mark's Ex'r v. RusseU, 40 Pa. St. 372 TIME OF TAKING EFFECT. 14[ When the time for the performance of a contract, according to its terms, expires on Sunday, a'performance on the follow- ing Monday is good.^ There is, however, an important excep- tion to this rule. "Where days of grace are allowed by the law merchant, and the last day of grace falls on Sunday, the act for which such days are allowed must be done on Satur- day.2 Lewis V. Calor, 1 Fost & Fin. 306 ; Muir V. Galloway, 61 Cal 498. See Hughes V. Griffiths, 106 Eng. C. L. 332. 1 Hammond v. American Ins. Co. 10 Gray, 306 ; Salter v. Burt, 20 Wend. 205; Avery v. Stewart, 2 Conn. 69; Post V. Garrow, 18 Neb. 682. But see Kilgour V. Miles, 6 Gill & J. 268. 2 Anonymous, 2 HiU, 375; Camp- bell V. International Life, 4 Bosw. 317 ; Howard v. Ives, 1 Hill, 263 ; Sal- ter V. Burt, 20 Wend, 205 ; S. C. 33 Am. Dec. 530. CHAPTER YI. REQUIREMENT OF GENERAL LAWS AND THAT THEY BE OP UNIFORM OPERATION. 116. Constitutional requirements. 117. They are mandatory. 120-123. General laws, or laws of general nature. 124-126. Requii'ed uniform opera- tion. 127-129. Special and local laws. 130. Amendatory and curative acts may not interrupt uniform operation- § 116. Constitutional requirements. — It is the aim of tlie government to provide just and equal laws, and to prevent, as far as possible, enactments which are not such. The accom- plishment of this purpose is in part intended to be secured by the framers of state constitutions by adopting therein certain provisions, mandatory to the legislature, prohibiting special or local laws on certain enumerated subjects, and as to all others, either where general laws exist, or where they can be made applicable. Another provision adopted in several states requires that all laws of a general nature shall have a uniform operation throughout the state. This requirement is not confined to the subjects enumerated in the prohibition of special or local laws ; nor is it a mere repetition in substance of the general injunction to pass general laws where they can be made appli- cable. Laws of a general nature are those which relate to subjects of that nature, and deal generally with them. The require- ment involves the question what is such a subject, and how comprehensively it must be treated in legislative acts. Laws to which the requirement is applicable must be so framed as to have a uniform operation throughout the state. § 117. These constitutional provisions mandatory. — They are mandatory to the legislature ; and a compliance with them is necessary to the validity of legislation. Whether a particu- lar act is conformable or not is a judicial question; that is, KEQUIKEMENT OF GENERAL LAWS. 145 the courts have power to determine it, and they will hold any act void which violates either of these regulations,' with one exception. This exception is the question Avhether on a non- enumerated subject, not of a general nature, a general law can be made applicable. That is a legislative question. When a special act has been passed, in such a case, it implies that in the legislative judgment a general act could not ho made ap- plicable. It is a conclusive implication, and that judgment is final ; the courts will not enter at all upon the inquiry ; they will accept the judgment of the legislature as exercised within its exclusive legislative domain, and give it effect.^ These re- quirements are prospective, and do not apply to or affect the validity of existing statutes.' § 118. If a general law exists which is applicable to a subject, the question whether such a law can be made applicable is re- solved. The legislature has by the enactment of a general laAV practically decided the question. Hence if, while such a general law is in force, a special or local law is passed affect- ing the same subject and modifying the general law, the ques- tion of its validity is judicial ; it wall be held invalid in the case supposed, for an applicable general law being in existence, it is no longer a question w^hether such a law^ can be made ap- plicable ; therefore the special or local law^ is prohibited.^ The injunction to pass general laws when they can be made appli- cable is imperative as to subjects of a general nature, where iFalk, Ex pai-te, 43 Ohio St. 683; » State v. Barbee, 3 Ind. 258 ; Brown State V. Powers, 38 id. 54 ; State ex v. State, 23 Md. 503. By the IMis- rel. V. Supervisors, 25 Wis. 339 ; State souii constitution of 1875 tliis ques- ex reL v. Riordau, 24 id. 484. tion is made judicial It is legisla- 2 Gentile v. State, 29 Ind. 409 ; tive by the terms of the New York Marks v. Trustees of Purdue Uni- constitution, section 1, article YIII. versity, 37 id. IGl ; Kelly, Treasiu-er, Hosier v. Hilton, 15 Barb. 657 ; V. State, 92 id. 236 ; State v. Tucker, United States Tr. Co. v. Brady, 20 46 id. 355 ; State v. County Court, 50 Barb. 119 ; People v. Bowen, 21 N. Y. Mo. 317 ; S. C. 11 Am. R. 415 ; State v. 517 ; 30 Barb. 24. The New Jersey ''County Com-t, 51 Mo. 82 ; HaU v. Bray, constitution in this respect is like that id. 288 ; St Louis v. Shields, 62 id. 247 ; of New York. Brown v. Denver, 7 Colo. 305 ; S. C. ■* State ex reL v. Supervisors, 25 5 Am. & Eug. Corp. C;is. 630 ; State Wis. 339 ; State ex rel. v. Riordan, V. Hitchcock, 1 Kan. 178. See Hess 24 id. 484 ; Walsh v. Dousman, 28 id. T. Pegg, 7 Nev. 23 ; Clarke v. Irwui, 541. 5 Nev. 124 ; State v. Squires, 26 Iowa, 340. 10 liG KEQUTREMEKT OF GENEKAL LAWS. laws of a general nature are required to have a uniform opera- tion. The questions affecting the validity of such laws are judicial ; the courts must determine what are laws of a general nature which must be so framed as to operate with uniformity.^ The enumerated subjects must be dealt with by general laws ; the constitutional provision determines conclusively that they can be so dealt with. All special legislation being pro- hibited, no other than general laws can be valid. Under the provision prohibiting special or local laws where a general law exists which is applicable, the vaUdity of a special or local law intended to operate in modification of an existing general law will be determined by the courts as obviously a judicial question, for it depends wholly upon judicial elements — the meaning of the constitutional provision, the scope and effect of the general law, and the sense and proposed effect of the spe- cial or local act. § 119. Independently of these provisions the legislature has power to pass local and special laws. A mere want of sjto- metry in the legislation of a state, or the mere circumstance that all parts of a state are not subjected to the same regula- tions, or that statutes are not made to embrace all the subjects to which they might extend if the law-maker so desired, is no objection.^ As said by a learned author : " Laws public in their objects may, unless express constitutional provision for- bids, be either general or local in their application ; they may embrace many subjects or one, and they may extend to all citizens or be confined to particular classes, as minors, married women, or traders, or the like. The authority that legislates for the state at large must determine whether particular rules shall extend to the whole state and all its citizens, or, on the other hand, to a subdivision of the state, or to a single class of its citizens only." ^ There are fundamental principles secured by all the consti- tutions, and elementary in the very definition of the " law of 1 See post, § 120. Corp'n. 34 Minn. 245 ; Coiinty of Hen- 2 Lin Sing v. Washbnm, 20 Cal. nepin v. Jones, 18 Minn. 199 ; Bruce 534 ; State v. Duffy, 7 Nev. 342 ; Cory v. County of Dodge, 20 id 388. r. Carter, 48 Ind. 327 ; Ward v. Flood, 3 Cooley's Const Lim. 488 ; State v. 48 CaL 36 ; State v, McCann, 21 Ohio Piper, 17 Neb. 614 ; Smith v. Dunn^ St 198 ; Merritt v. Knife Falls B. 64 CaL 164. KKtiUIkKMKNT OF GKN'EKAL LAWS. l-iT the land," which impose restrictions upon the power to enact partial, invidious and unequal laws ; ' but it would be foreign to my present purpose to enter upon that subject. § 120. General laws, or laws of a general nature. — The important questions, under these constitutional provisions, are : what are laws of a general nature which must have a uniform operation throughout the state? And what are general laws as distinguished from special and local laws? The descriptive term general laws has been in use for a long time. In the common-law classification of statutes it applies to and includes all public acts; those of which the courts take judicial notice; all except private acts. This classification will be more par- ticularly discussed in another place. It is obvious that this term is not used in these constitutional provisions in this sense. Some cases, however, seem to have proceeded on the contrary assumption,- but I thinli: erroneously. Public statutes may be local or special, and incapable of uniform operation through- out the state, and therefore within the purpose of these pro- visions. The frequency and inconvenience of such local and special legislation in public acts led to the adoption of these provisions. The enumeration of subjects as to which local or special legislation is forbidden is chiefly an enumeration of subjects upon which the prior legislation was of that charac- ter — public laws — of which courts would take judicial notice. Under these requirements it must not be by special or local but by general laws ; and where the requirement of uniform operation is in force these must so operate. An act to estab- lish a municipal court in a particular city or a particular mu- nicipal government would not be a general law, but it would 1 Lewis V. AVebb, 3 Me. 326 ; Dur- Memphis v. Fisher, 9 Baxt 239 ; State ham V. Lewiston, 4 id. 140 ; Hoi- v. Duffy, 7 Nev. 349 ; Griffin v. Cun- (len V. James, 11 Mass. 396 ; Bull v. ningham, 20 Gratt 31 ; Dorsey v. Dor- Conroe, 13 Wis. 238-244 ; Wally v. sey, 37 Md. 64 ; S. C. 11 Am. R. 528 ; Kennedy, 2 Yerg. 554 ; Vanzant v. Lawson v. Jeffries. 47 Miss. 686 ; S. C. Waddel, id. 258; State Bank V.Cooper, 12 Am. R. 342; Wilder v. Railway id 605 ; Ragio v. State, 86 Tenn. 272 ; Co. 70 Mich. 382 ; Tnistees v. Bailey, Budd V. State, 3 Humpk 483 ; Pope 10 Fla. 238 ; Arnold v. Kelley, 5 W. V. Phifer, 3 Heisk. 701 ; Mayor v. Dear- Va. 446 ; Cooley, Const L. 487. mon, 2 Sneed, 121 ; Daly v. State, 13 2 Hingle v. State, 24 Ind. 28 ; State Lea, 228 ; Burkholtz v. State, 16 id. ex rel. Stoutmeyer v. Duffy, 7 Nev. 71; Woodard v. Brien, 14 id. 520; 350. l-kS EEQUIEEMENT OF GENERAL LAWS. be a public law.^ That which concerns the administration of pubhc justice, Hke legislation relating to a court, though it be of limited jurisdiction and its sittings confined to a specified locaUty, is a public law, but local ; it is a law which affects the public generally.^ It is not necessary, in order to give a statute the attributes of a public law, that it shall be equally applica- ble to all parts of the state,'' nor that it extend in its operation to all of the inhabitants. In some constitutions it is provided that general laws shaU not be in force until published. Such a provision is contained in the constitution of Wisconsin. It was there held that an act establishing a municipal court in the city of Milwaukee was a general law, and could not have effect until after publi- cation.* The object of that provision was notice to those who must obey ; hence it referred comprehensively to public laws, not merely to such as were general in distinction from local or special laws.* § 121. General laws, therefore, in this constitutional antith- esis, are public laws, general in the common-law sense ; but a more limited class. They are not general because they are public acts, though they are such ; but general because their subject-matter is of common interest to the whole state, and not local ; because the provisions embrace the whole subject, or a whole class of it. JSTot being confined to a part they are not partial nor special. The state contains a great variety of subjects of legislation, each requiring provisions peculiar to itself. Generic subjects may be divided and subdivided into 1 State ex reL Webster v. Balti- Healey v. Dudley, 5 Lans. 115 ; Will- more County, 29 Md. 518; County iams v. People, 24 N. Y. 405; Con- Commissioners V. Commissioners, 51 ner v. Mayor, etc. 5 id. 285 ; Graves id. 465 ; People v. Hill, 8 N. Y. 449 ; v. McWiUiams, 1 Pin. 491 ; People v. City Council of Montgomery v. McCann, 16 N. Y. 58 ; Kerrigan v. Wright, 72 Ala. 411 ; S. C. 5 Am. & Force, 68 N. Y. 381 ; Falk, Ex parte, 42 Eng. Corp. Cas. 642 ; Cass v. Dillon, Oliio St. 638. 2 Oliio St. 607, 617; City of Coving- 3 state ex reL Webster v. Baltimore ton V. Voskotter, 80 Ky. 219 ; S. C. County, 29 Md. 516 ; State v. Wilcox, S Am. & Eng.Corp. Cas. 578 ; Luling v. 45 Mo. 458. Racine, 1 Biss. C. C. 316. i In re Boyle, 9 Wis. 264. See Lu- 2 People V. Davis, 61 Barb. 456; In ling v. Racine, 1 Biss. C. C. 316. re DeVaucene, 31 How. Pr. 337; 5 Clark v. JanesviUe, 10 Wis. 136; State V. Dalon, 35 La. Ann. 1141 ; LuMng v. Racine, 1 Biss. C. C. 316. Phillips V. Mayor, etc. 1 Hilt 483; REQUIREMENT OF GENERAL LAWS. 149 as many classes as require this peculiar legislation. Thus laws relating to the people, for certain purposes, extend to all alike, as for protection of person and property ; for other purposes they are divided into classes, as voters, sane and insane per- sons, minors, husbands and wives, parents and children, etc. Property is subject to division into classes. Kearly every matter of public concern is divisible, and division is necessary to methodical legislation. A statute relating to persons or things as a class is a general law ; one relating to particular persons or things of a class is special.^ iln Wlieeler v. Philadelphia, 77 Pa. St. 338, the court say that the power of classifying subjects for leg- islation " existed at the time of the adoption of the constitution ; it had been exercised by the legislature from the foimdation of the government; it was incident to legislation, and its exercise was necessary to the promo- tion of the public welfare. The true question is not whether classification is authorized by the terms of the con- stitution, but whether it is expressly proliibited. In no part of that instru- ment can such prohibition be found. For the pvu-pose of taxation real es- tate may be classified. Thus, timber lands, arable lands, mineral lands, m'ban and i-ural, may be divided into distinct classes, and subjected to dif- ferent rates. In like manner other subjects, trades, occupations and pro- fessions may be classified. And not only things bvit persons may be so divided The genus homo is a sub- ject \vitliin th(^ meaning of the con- stitution. WUl it be contended that as to this there can be no classifica- tion? No laws affecting the personal and property rights of minors as dis- tinguished from adults? Or of males as distinguished from females? Or, in the case of the latter, no distinc- tion between a feme covert and a single woman? "What becomes of all our legislation in regard to the rights of married women if there can be no classification? And where is the power to provide any future safe- guards for their separate estate? These illusti'ations might be multi- pHed indefinitely were it necessary. But it is contended that even if the right to classify exists, the exercise of it by the legislature, in tins in- stance, is in violation of the consti- tution, for the reason that tliere is but one city in the state with a population exceeding three himcb-ed thousand ; that to form a class con- taimng but one city is in point of fact legislating for that one city to the ex- clusion of aU others, and constitutes the local and special legislation pro- hibited by the constitiition. This ar- gument is plausible, but unsoimd. It is is ti'ue the only city in the state, at the present time, containing a popu- lation of three hundred thousand, is the city of Philadelphia, It is also ti'ue that the city of Pittsburg is rap- idly approacliing that number, if it has not already reached it, by recent enlargements of its territory. " Legislation is intended not only to meet the wants of the present, but to provide for the future. It deals not with the past, but, in theory at least, anticipates tiie needs of a state^ healthy with a vigorous develop- ment It is intended to be perma- nent At no distant day Pittsburg -150 KEQUIEEMENT OF GENERAL LAWS. l,a\rs of a general nature are required to be made in such iform that they will have a uniform operation. They must be so framed and so operate on account of being of that general nature. In Cass v. Dillon,^ Thurman, J., said : " The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county, or even township, what it was perfectly lawful to do elsewhere ; and had pro- vided that acts, even for the punishment of offenses, should be in force or not in certain localities, as the electors thereof re- spectively might decide. It was to remedy this evil and pre- vent its recurrence that this section was framed." In KeUey v. State ^ the court say : " Without undertaking to discriminate nicely or define with precision it may be said that the character of a law, as general or local, depends on the character of its subject-matter. If that be of a general nature, existing throughout the state, in every county, a subject-mat- ter in which all the citizens have a common interest — if it be a court organized under the constitution and laws within and for every county of the state, and possessing a legitimate ju- risdiction over every citizen, — then the laws which relate to and regulate it are laws of a general nature, and by virtue of the prohibition referred to must have a uniform operation throuo^hout the state." It is to be inferred from this that a law of a general nature requires a subject-matter of this ex- tensive and all-pervading sort ; and that all laws relating to and regulating it are of the same character — of a general nature. If limited in terms, so as not to extend to the whole state ; that is, if the court referred to be established in only a will probably become a city of the word was not used to designate num- first class ; and Scranton, or others of bers, but a rank or order of persons the rapidly growing interior towns, or tilings ; in society it is used to in- wiU take the place of the city of dicate equality, or persons distin- Pittsburg as a city of the second guished by common characteristics, class. In the meantime, is the classi- as the ti'ading classes, the laboring fication as to citit's of the first class classes ; in. science, it is a division or bad because PliUadelphia is the only arrangement containing the subordi- one of the class? We think not. nate divisions of order, genus and Classification does not depend upon species." See People v. Henshaw, 76 the numbers. The first man, Adam, CaL436; Pritchett v. Stanislaus Co. was as distinctly a class, when the 73 id. 310. breath of life was breathed uito him, i 2 Oliio St 607, 617. as at any subsequent period- The 2 6 Ohio St. 269. KEQUIEEMENT OF GENERAL LAWS. 151 portion of the state, not in every county, it does not have the uniform operation required. In the subsequent case of McGill V. State,' the subject received thorough reconsideration. The question was on the vahdity of a law relating to the selection of trial jurors in that court — whether the power to make such selection must be conferred on the same class of men or offi- cers in every county. To the contention that such uniformity was required, the court said: "Tliis position derives some support from what was said in Kelley v. State. But subse- quent decisions of this court, and in which the learned judge delivering the opinion in that case concurred, show that the proposition that a law relating to or concerning a general subject-matter is a law of a general nature is not to be taken in an unqualified sense to be true. That a law of a general nature must concern a subject-matter existing and capable of uniform operation throughout the state cannot be denied ; for if the law from the nature of its subject-matter is not suscejv tible of an operation throughout the state, it cannot, within the meaning of the constitution, be a law of a general nature. But it by no means follows that all laAvs pertaining to a gen- eral subject-matter, and susceptible of a uniform operation throughout the state, are laws of a general nature in the con- stitutional sense of that term." Such differences of details were held not to affect the constitutionahty of the law. The requu-ement was intended by such uniformity of operation to prevent the granting to any citizen or class of citizens of priv- ileges or immunities which upon the same terms shall not belong to all citizens. This language is associated with the provision in question in the Iowa constitution,^ and as quali- fied by it was adopted in other states.^ In California the provision was adopted from the constitu- tion of Iowa. In Smith v. Judge,* Baldwin, J., said: "The language must be carefully noted. It is not that laws shall be universal or general in their apphcation to the same sub- ject, nor is it even that aU laws of a general nature shaU be universal or general in their application to such subjects ; but the expression is that these laws shall be uniform in their opera- 1 34 Ohio St 239. ' McGill v. State, supra. 2Sec6, artL *17CaL554. 152 EEQUIKEMEXT OF GENERAL LAWS. tion ; that is, that such laws shall bear equally in their burdens and benefits upon persons standing in the same category,'^ The same court in a later case held that the provision means that every law shall have a uniform operation upon the citizens or persons or things of any class upon whom or which it pur- ports to take effect, and that it shall not grant to any citizen or class of citizens privileges w^hich, upon the same terms, shall not equally belong to all citizens.^ In a still later case ^ that court said : " The constitution has not undertaken to declare that aU laws shall have a uniform operation. Uniformity in that respect is made requisite only in case the law itself be one of a general nature. . . . The nature of a given statute, as being general or special, must depend in a measure upon the legislative purpose discernable in its enactment. We must not say that a statute, plainly special in its scope, must either have a uniform operation or not operate at all, for this were to add another to the limitations which the constitution has imposed upon the legislative power, and to hold in effect that no special act could be passed at all, at least if ' uniform ' operation means universal operation.^ . . . JSTor are w^e to say that a special statute — special in its aims and in the ob- ject it has in view — is by mere construction to be converted into a general statute, because the subject with w^hich it deals might have been made the subject of a general law. It is obvious that every law upon a general subject is not ^j»e^' se, nor by constitutional intendment, necessarily of a general nature. The subject may be general, but the law and the rule it prescribes may be special. Fees of officers, for instance, constitute a gen-^ral subject, one w^hich pervades the length and breadth of the state, and extends into every political sub- division of which it is composed ; yet a statute may prescribe what these fees of office shall be in a particular county.* And may declare that they shall differ from fees established for the same official duties performed in another county. Such a 1 French v. Teschemaker, 24 Cal. 1849 is that " all laws of a general 544 ; Brooks v. Hyde, 37 Cal. 375. nature shall have a uniform opera- 2 People V. C. P. R E. Co. 43 Cat tion." Art. 1, sec. 11. The words 432. " throughout the state " are omitted. 3 The provision requu-ing uniform- •» State ex rel. v. Judges, etc. 21 Ohio ity in the California constitution of St. 1. KEQIHREMENT OF GENERAL LAWS. 15a law would not be a law of a general nature involving the con- stitutional necessity of uniform operation ; but it would be a special law upon a general subject." ^ § 122. It is thus apparent that this provision alone does not prevent special legislation, except where, upon a subject of general concern, it would have the effect to make unjust dis- criminations between people or places in the same condition and circumstances ; in other words, have the effect to grant to certain persons or classes privileges or immunities which, upon the same terms, arc not made available to all.^ 1 Eyan v. Johnson, 5 Cal. 8G. 2 In McGill V. State, 34 Ohio St. 246, the court thus discussed this dis- tinction: "In State ex rel. v. Tlie Judges, etc. 21 Ohio St. 1, it was held that an act hmiting and regulat- ing the fees of the county officers of Hamilton county was not a law of a general but of a local nature. And in Cass v. Dillon, 2 Ohio St. 617, it was said that a law authorizing and requking the commissioners to sub- scribe in behalf of the county to the stock of a raih-oad company was no more of a general nature than would be an act to authorize the construc- tion of a bridge, or the erection of a poor-house; and yet it is perfectly clear that an act regulating the fees of county officers tlu'oughout the state pertains to a general subject-matter existing in every comity, and in which aU citizens have an intei'est, as do the general acts authorizing county commissioners to construct bridges, erect poor-houses and other necessary public buildings. And yet who would venture to question the power of the legislature to clothe the commissioners of a county, or the ti'ustees of a township, by local en- actment, with authority to provide aU public buildings or structures that the local wants of a community might require ; or who will contend that the power of the legislatiu-e is so circumscribed and restricted as to prohibit it from requii'ing a tax to be levied or a com-t-house to be erected in one county without requu-ing the same tiling to be done in every county in the state? The act author- izing the judges of the court of com- mon pleas to fix the times for holding the terms of com-t in their respective districts is a general law, the subject- matter of which concerns all the people throughout the state. Cannot the legislatm-e change by local enact- ment the term of a court so fixed? If it may do so, it is because the act authorizing the judges to fix the time for holding the courts, although gen- eral in its terms, and relating to a sul'ject-matter that pervades all parts of the state, is not, witliiu the mean- ing and intendment of the constitu- tion, a law of a general nature. Such laws are clearly distinguishable in their nature from those that confer privileges and immunities or impose burdens upon a citizen or class of citizens that are not upon the same terms and conditions conferred and ihiposed upon all. It is easy to com- prehend that a law defining burg- lary or bigamy, and its penalty, or regulating descent and disti'ibu- tion, or prescribing a rate of inter- est for the use of money, and others- of a similar effect and operation are laws of a general natm-e, re- 154: r-^QUIEEMENT OF GENERAL LAWS. In sucli cases legislation must be general ; it must liave a uniform operation. The case of Kelley v. State is an apt illustration.^ An act declaring what shall constitute a legal and sufficient fence and requiring all fields and inclosures to be inclosed therewith was held to be a law of a general nature. It did not extend to the whole state ; it was not framed to liave a uniform operation throughout the state, and was there- fore held unconstitutional.^ An act prohibiting sheep from running at large in all the counties of the state except one was held Hable to the same objection.^ So of an act relating to libel and confined to publishers of newspapers.* Tax laws must provide a uniform rule.^ § 123. Criminal laws must be general and have a uniform operation.^ In Ex parte Falk "^ it was held that a statute providing pun- ishment for an act which is malum, in se wherever committed, being a law of a general nature, cannot be made local on the ground that the inhibited act is a greater evil in a large city than in other parts of the state. The court, by Okey, J., say : ^' The act inhibited . . . [having burglars' tools in his pos- session] is not merely immoral but plainly vicious ; it is one of very serious and dangerous character ; it is not merely m^alnm quii-ing uniform operation through- * Allen v. Pioneer Press, 40 Minn, out the state. To discriniinate be- 117; S. C. 41 N. W. Rep. 936. See tween locaUties or citizens in the Cobb v. Bord, 40 Mnn. 479. enactment of laws of such nature ^ state v. Cumberland & Perm. R. would be to grant privileges or im- R. Co. 40 Md. 22 ; State v. Sterling, pose burdens of a character which it 20 Md. 502 ; Tyson v. State, 28 id. 587 ; was the clear purpose of the consti- State Board of Assessors v. Centi-al tution to provide agamst. But that R. R. Co. 48 N. J. L. 146 ; Hammer a law may be general and concern v. State, 44 N. J. L. 667 ; State matters pm-ely local or special in then- v. California Miru Co. 15 Nev. 234; natm-e, or may be local or special and Bright v. ]McCullough, Treasm-er, 27 relate to matter that may be made Ind. 223. See Central Iowa R. R the subject of a general law, not only Co. v. Board of Supervisors, 22 Am. rests upon some reason but is weU & Eng. R. R. Cas. 223 ; S. C. 67 Iowa, supported by authority." 199 ; People ex reL v. Wallace, 70 IlL 1 6 Ohio St. 269. 630. 2 Darhng v. Rodgers, 7 Kan. 592 ; « Ex parte Westerfield, 55 CaL 550 • Trost V. Cheny, 122 Pa. St. 417. Ex parte Koser, 60 id. 187, 191. 3 Robinson v. Peny, 17 Kan. 248; 7 43 Ohio St. 638. Utsey V. Hiott, 30 S. C. 360 ; 9 S. E. Hep. 338. KEtiLlUKME.NT (H-' GENKKAL LAWtJ. loO prohihitum but malum in sej and it is a wrong to society — not merely to Cincinnati ; not merely in cities, but in every county, in every township, in fact in every part of the state ; and no reason can be given why it might not properly be made punishable by statute throughout the whole state as a criminal offense. Perhaps it is true that such acts may be a greater evil in large cities ; possibly a greater evil in Cincinnati than in any other part of the state. But the same thing may be truthfully said with respect to many, perhaps a majority, of criminal offenses. Take the crime of arson. It is a grievous evil everywhere, and under some circumstances a most atro- cious crime. It is an evil alike in town and country, but a far greater evil in a large compact city like Cincinnati than in a small village or hamlet or in a sparse rural district. But does this reason, or any other with which it may be supplemented, afford any ground, in view of our constitution, for punishing under local law? So, a person having possession of instru- ments for counterfeiting, or custody of a large quantity of counterfeit money, may be in a better position to carry on a nefarious business successfully, and therefore more likely to occasion harm in a crowded city than in the rural portions of the state ; but a general law upon the subject, applicable to the whole state, has effected aU that can be done by legislation to remedy the evil." ' 1 Tliis opinion is instructive in the would not be subject to any constitu- remarks which follow : " To the end tional objection, however objection- that tliese statements may not mis- able it might be on the gi-ound of lead, it is proper to say that the gen- joropriety. And other and perhaps ■eral assembly is clothed in the most more apt illusti-ations of the principle general terms with legislative power, may be suggested. On the other and this, unrcsti'ained by other pro- hand, a statute, general in form, pro- viai.ons, would authorize the legisla- hibiting the sale of liquors in tlie im- ture to pass local penal statutes of mediate vicinity of any college would everj sort, and it will be seen that perhaps be regarded as a general and there is no iuliibition agamst the therefore valid enactment, in force passage of penal statutes wliich are tlu-oughout the state, although eveiy local and even special in character, county does not contain a coUege. Hence it may be that a statute pun- . . . Attention lias been called to ishing even with death any person the fact that in State v. Brewster, 39 who should break and enter the state Ohio St 653, 658, it was held tliat the ti"easiu-y in Columbus, Ohio, with in- power to classify municipal corjxjra- tent to steal, or having so broken and tious expressly authorized by the con- entered, rob the treasurer of state, stitution is addressed in a large degree 156 KEQUIKEMENT OF GENERAL LAWS. In State v. Powers ' the court held that laws regulating the organization and management of common schools, pursuant to the provisions of the constitution to " secure a thorough and efficient system of common schools throughout the state," ^ were laws of a general nature; that if the constitution de- clares a given subject for legislation to be one of a general nature, all laws in relation thereto must have a uniform oper- ation. The court expressed some diffidence in laying down any general rule for determining subjects for legislation of a general nature, but suggested as such marriage and divorce, and the descent and distribution of estates, and others of like common and general interest to all the citizens of the state. Two propositions, however, were said to be settled : 1. That the general form of a statute is not the criterion by which its general nature is to be determined. 2. That whether a law be of a general nature or not depends upon the character of its subject-matter.^ It was admitted that on subjects concern- ing w^iich uniformity was required, judicious classification and discrimination between classes were admissible. § 124:. The uuiform operation of laws of a general nat- ure. — "Where the subject-matter of an act is of a general nature, and a law deals with it by provisions which are de- signed for the whole state, and every part thereof, such act has a uniform operation throughout the state though the con- to the conscience and judgment of city; and there being no general the legislature, and ' that statutory statute punishing the act of having provisions with respect to any such possession of burglar's tools, it is true, class are, for governmental pui'poses, perhaps, that the substance of section general legislation,' and not in con- 1924, if adopted in due form as an fiict with the constitution. Tliis we ordinance of the city of Cuiciiinati, held to be a proper construction of under authority of sections 1692 and ai-ticle 13, section 6, wliicli is in no 2108, would be entu-ely valid. Nor sense in conflict with article 2, sec- does tliis mihtate against anything I tion 26. And in this connection it is have said ; for the constitutional pro- proper to say that in Morgan v. Nolte, vision we are considering would not, 37 Ohio St. 23, we sustained the va- under such circmnstances, have any liditj' of a conviction under an ordi- appUcation," See Williams v. People, nance of the city of Cincinnati, passed 24 N. Y. 405 ; Budd v. State, 8 Humph, by vu'tue of Revised Statutes, sec- 483. tions 1692, 2108, prescribing punish- i 38 Ohio St. 54. ment by fine and imprisonment ^ Art 6, sec. 2. against any person who, being a " Citing KeUey v. State, 6 Ohio St. known thief, should be found in that 272 ; McGiU v. State, 34 id. 228. REQUIREMENT OF GENERAL LAWS. 157 dition and circumstances of the state may be such as not to give the act any actual or practical operation in every part.' The purpose of this provision requiring a uniform operation of general laws is satisfied when a statute has the same oper- ation in all parts of the state under the same circumstances and conditions.^ The number of persons upon whom the law shall have any direct effect may be very few by reason of the subject to which it relates, but it must operate equally and uniformly upon aU brought within the relations and cir- cumstances for which it ])rovides.' In Indiana local laws in regard to fees and salaries are for- bidden, and general laws required on that and other enumer- ated subjects, as well as upon all subjects on which general laws could be made applicable ; and these were requu-ed to have a uniform operation throughout the state. An act gave certain officers different salaries and made such difference de- pend on the question of population. This legislation was held to be neither local nor special ; it operates uniformly and ahke in all parts of the state under like facts. It gives the same increase of compensation in all counties where there is the same excess of population.'' In Tennessee there are constitutional provisions in a differ- ent form, which, by judicial construction, forbid partial laws ; and, as part of the law of the land, require that general and public laws shall be equally binding upon every member of the community.^ This requirement is satisfied if an act ex- 1 LeaTenworth Co. v. Miller, 7 Kan. 12 Heisk. 1 ; McKinney v. INIempliis 479 ; In re De Vaucene, 31 How. Pr. Overton Hotel Co. 12 Heisk. 104 ; 337. Budd v. State, 3 Humpk 483 ; Shep- ^ Groesch v. State, 42 Ind. 547 ; pard v. Jolinson, 2 id. 296 ; Pope v. Heanley v. State, 74 Ind. 99 ; Elder v. Phifer, 8 Heisk. 701 ; Bro%vn v. Hay- State, 96 id. 162 ; State v. Wilcox, 45 wood, 4 id. 357 ; Bmkholtz v. State, Mo. 458. 16 Lea, 71 ; Caruthcrs v. Andi-ews, 2 3 People ex reL v. AVright, 70 111. Cold. 378; Woodard v. Brian, 14 Lea, 398 ; People ex reL v. Cooper, 83 id. 520 ; Daly v. State, 13 id. 228 ; McCal- 585. lie V. Chattanooga, 3 Head, 321 ; * Hanlon v. Board of Commission- Hazen v. Union Bank, 1 Sneed, 115 ; ers, 53 Ind. 123 ; State v. Reitz, 62 id. Burton v. School Commissionei-s, 159 ; Clem v. State, 33 Ind. 418. Meigs, 589 ; Taylor, McBean & Co. v. 5 State V. Bm-uett, 6 Heisk. 186; Chandler, 9 Heisk. 349 ; Ragio v. State, Vanzant v. Waddel, 2 Yerg. 260 ; 86 Tenn. 272. See art XI, sec. 8, of Memphis v. Fisher, 9 Baxt 239 ; Const Tenn- Paducah & j\I. R. R. Co. v. Stovall, 158 EEQUIKEMENT OF GENEKAL LAWS. tends to and embraces all persons who are or who maj come into the like situation and circumstances.^ § 125. The number of persons affected by a law does not control or determine the question of its validity ; it is enough that the law relates to a subject of a general nature, and is general and uniform in its operation ujDon every person who is brought within the relation and circumstances provided for by it.- An act provided that " Every railroad company shall be liable for all damages sustained by any person, including employees of the company, in consequence of any neglect of the agents, or by any mismanagement of the engineers or other employees of the corporation, to any person sustaining such damage." It was objected to this law that it was limited in its operation to railroad companies, and subjected them to a rule or liability from which other persons, both natural and artificial, were exempt. The objection was held untenable. The court said : " These laws are general and uniform, not be- cause they operate upon every person in the state, for they do not, but because every person w^ho is brought into the relation and circumstances provided for is affected by it. They are general and uniform in their operation upon all persons in the like situation ; and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation." ^ A Missouri statute gave an exceptional measure of damages against railroad companies for injury to animals. It w^as objected that the act was partial in regard to the rule of damages, because if any private person, or any other person than a railroad corporation, caused a like damage, the act did not apply, and the most that could be recovered would be the value of the animal. The objection was overruled. The court said : " This right of action is given to aU persons who may be thus injured. It is given as well to any association of peo- ple, and to railroad corporations whose stock may be injured 1 Mayor, etc. v. Dearmon, 2 Sneed, Ellyson, 28 Iowa, 370 ; Phillips v. 121 ; Davis v. State, 3 Lea, 376 ; State Missouri Pac. R. R. Co. 86 Mo. 540 ; V. Rauscher, 1 id. 96. S. C. 24 Am. & E. R. Cas. 368 ; State v. 2 McAnnich v. Miss. & M. R R. Co. Wilcox, 45 Mo. 458 ; State v, Spaude, 20Iowa,338; Thomasonv. Ashworth, 37 Minn. 322; Bannon v. State, 49 73 CaL 73. Ark. 167 ; Dow v. Beidelman, id. 325. 3 Id. ; United States Express Co. v. REQUIREMENT OF GENERAL LAWS. 151> by a railroad." ^ Another act put all owners and operators of railroads, whether natural persons, companies or corporations, on an equal footing, by malving the term railroad corporation to include them. Though directed against railroads alone, while no other common carriers are brought within its opera- tion, it was not partial for that reason. And the court thus remarks upon it : " Had the legislature deemed it essential to the protection of human life and private property they Avould doubtless have extended the statute to carriers by coach and w^ater; but as the class of property and human life protected by this provision of the statute is not exposed to like perils incident to coach and w^ater travel, the occasion and necessity for so extending the statute did not exist. Class legislation is not necessarily obnoxious to the constitution. It is a settled construction of similar constitutional provisions that a legisla- tive act which applies to and embraces all persons who are or who may come into like situation and circumstances is not partial." ^ And a like conclusion was arrived at in respect to an act which gave a justice an exceptional jurisdiction in the particular class of actions just mentioned.^ An act providing in substance that all cities and towns there- tofore incorporated under special acts and charters, and which did not then possess the powder to sell personal and real prop- erty for taxes, should thereafter have and possess such power, was held general and constitutional. Though it did not apply to all cities and towns in the state, it was not therefore un- constitutional ; other cities and towns possessed that power, and the act in question brought the class to which it applied into harmony with them. As the act applied to aU cities and towns in the state falling within the class specified, not to make an exceptional rule, but to remove an exception, it was not local or special, but of uniform operation.* 1 Humes v. Mo. Pac E'y Co. 83 Mo. 3 phiUips v. Mo. Pac. R'y Co. 86 Mo. 221. 540. 2Hxmies v. Missoviri, etc. R'y Co. *Haskel v. Burlington, 30 Iowa, 82 Mo. 221 ; Snyder v. Wai-ford, 11 232 ; Iowa Laud Co. v. Soper, 39 id. Mo. 513 ; Merritt v. Knife Falls B. 112 ; Bumsted v. Govern, 47 N. J. L. Corp. 34 Minn. 245 ; Centi-al Trust Co. 368 ; aflarmed, 48 id. 612. V. Sloan, 65 Iowa, 655 ; Peoria, etc E. R. Co. V. Duggau, 109 IlL 537. 160 EEQUIEEMENT OF GENERAL LAWS. § 1*26. Eailroad companies have for some purposes consti- tuted a class for general legislation; for other purposes such companies ma}^ be divided into sub-classes, and legislation in regard to one of such classes made to differ from that applied to another. An Iowa act divided the raikoads of the state into classes according to business in regulating rates of freight. It Tvas held not in conflict with the constitution, requu'ing laws of a general nature to have a uniform operation through- out the state.^ Waite, C. J., said : " It operates uniformly on each class, and this is all the constitution requires. ... It is very clear that a uniform rate of charges for aU railroad companies m the state might operate unjustly upon some. It was proper, therefore, to provide in some way for an adapta- tion of the rates to the circumstances of the different roads ; and the general assembly, in the exercise of its legislative dis- cretion, has seen fit to do this by a system of classification." The requirement of general laws, and that they have a uni- form operation, is an imj)lied prohibition of special or local laws ; so the express prohibition of local or special laws is an implied requirement that legislation shall be general. Indi- vidual cases of the enumerated class cannot be provided for. These are converse forms of similar constitutional regulation. The principal discussion, however, has occurred on the varied inhibitions of special or local enactment. § 127. Special aud local laws. — Special laws are those made for individual cases, or for less than a class requiring laws ap- propriate to its peculiar condition and circumstances; local laws are special as to place.- "When prohibited they are sev- erally objectionable for not extending to the whole subject to which their provisions would be equally applicable, and thus j^ermitting a diversity of laws relating to the same subject. The object of the prohibition of special or local laws is to pre- vent this diversity. Each subject as to which such laws are ^irohibited is by such inliibition designated as a subject of only general legislation which shall have a uniform operation. Gen- erahty in scope and uniformity of operation are both essential. A law which embraces a whole subject would stdl be special if not framed to have a uniform operation. 1 C, B, & Q. R R. Co. V. Iowa, 94 2 state v. Wilcox, 45 Mo. 45a U. S. 155. KEQUIREMENT OF GENERAL LAWS. IGl What is an integral subject of legislation? One in regard to which as a whole a law is general, and when of less scope, local or special? There has been much discussion of this subject bv the courts of New Jersey. It has there received a very definite and sat- isfactory solution. The principles there established for classi- fication of subjects for legislation have been generally recog- nized ; they will probably harmonize the w^ell-considered cases in all the states where similar constitutional regulations are in force. In Van Riper v. Parsons ^ the supreme court declared this principle : that a general law, as contradistinguished from one special or local, is a law which embraces a class of subjects or places, and does not omit any subject or place naturally belong- ing to such class. The second time that case passed under judicial examination in the same court the holding was thus expressed: "A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects which, having regard to the purpose of the legislature, are distinguished by characteristics sufficiently marked and impor- tant to make them a class by themselves, is not a special or local law but a general law, without regard to the considera- tion that within this state there happens to be but one indi- vidual of that class, or one place where it produces effects." The statute which the court in that case gave effect to spent its force entirely in its application to one city. This is a leading case in that state, and has been followed by many others in that state and elsewhere affirming and exem- phf ving it.2 In Rutgers v. New Brunswick' an act came in question which had the effect to abolish a court at a particular city, 1 40 N. J. L. 123. lU. 680 ; State v. Hoagland, 51 N. J. L. 2 Board of Assessors v. Central R R. 62 ; Bingham v. Camden, 40 N. J. Co. 48 N. J. L. 146 ; Sutterly v. Cam- L. 150 ; PeU v. Newark, id. 71, 550 : den Common Pleas, 41 id. 495 ; Field Rutgers v. New Bnmswick, 42 id. 51 ; V. Silo, 44 id. 355 ; Hines v. Freehold- State ex reL Richards v. Hammer, ers, etc. 45 id. 504 ; Bucklew v. R. R; id. 435 ; Tiger v. Morris Pleas, id. 631 ; Co. 64 Iowa, 603 ; Central Trust Co. Worthlej' v. Steen, 43 id. 543 ; Bum- V. Sloan, 65 id. 655 ; Darrow v. People, stead v. Govern, 47 id. 368 ; affirmed, 8 Colo. 417 ; Welker v. Potter, 18 48 id. 612. Ohio St 85 ; People v. Wallace, 70 » 42 N. J. Law, 51. 11 162 EEQUIREMENT OF GENERAL LAWS. established under a prior general law. This prior law pro- vided that one district court should be established in every city in the state of fifteen thousand inhabitants. Kew Bruns- wick had a population of sixteen thousand six hundred. By a supplement to this act, the original act was amended by substituting twenty thousand in the place of fifteen thousand. This amendment was held not to be a local or special law, and that it abolished the district court in that city. An act which for the purpose of fixing the compensation of president judges classifies them into separate classes by reference to population of the counties in which they serve was sustained as a general law. The duties of such judges are well known to vary. Those located in populous counties are Ukely to be called on to perform more onerous duties, and their time will probably be more fully occupied. And so such a distinction, looking at the matter of fixing compensa- tion alone, cannot be said to be in any respect illusive.^ A law may be general in its terms, and apply to a class con- stituted by having characteristics which make it a class, and yet be an illusory classification which will not warrant legisla- tion confined to it, where special or local legislation is pro- hibited. The grouping must be founded on peculiarities requiring legislation, and legislation which by reason of the absence of such peculiarities is not necessary or applicable out- side of that class. In other words, the true principle requires -something more than a mere designation by such character- istics as will serve to classif}^ ; for the characteristics which will thus serve as a basis of classification must be of such a nature as to mark the objects so designated as pecuHarly re- quiring exclusive legislation. There must be a substantial distinction, having a reference to the subject-matter of the proposed legislation between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will in some reasonable degree at least account for and justify the restriction of the legislation.^ J Skinner v. Collector, 42 N, J. L. sioners, 53 Ind. 123 ; State v, Reitz, 407 ; Hanlon v. Board of Commis- Auditor, 62 id. 159. i Hammer v. State, 44 N. J. L. 667. REQDTREMENT OF GENERAL LAWS. 163 § 128. Distinctions which do not arise from substantial dif- ferences, so marked as to call for separate legislation, consti- tute no ground for supporting such legislation as general.^ Where local or special legislation to regulate the internal af- fairs of municipalities is forbidden it must be general and applicable to all alike. No departure from this rule can be justified, except where, by reason of the existence of a sub- stantial difference between municipalities, a general law would be inappropriate to some while it would be appropriate to others. In such case the municipalities in which the peculiar- ity exists would constitute a class, and the legislation would in fact be general because it would appl}^ to all to which it would be appropriate.^ An act concerning inns and taverns gave the court of common pleas "the power to grant such license, but the act was restricted to cities, towns and counties by population so as to indicate an intention that it should operate in but three small towns in one county. It was objected that it was local and special, as there was no distinction of those towns from other municipalities which would in any reasonable degree account for such restriction. The court held the act unconstitutional.^ The court said the constitu- tional provisions against special or local laws regulating the internal affairs of municipal corporations and political divis- ions of the state w^as to secure uniformity. " The uniformity that is thus sought can only be broken by classifications of those bodies that are founded on substantial differences, such as are not illusory or fraudulent in their character." * An act purporting to confer on cities having a population of twenty-five thousand a power of issuing bonds to fund their floating debt was held special, and unconstitutional on account of its operation being restricted to cities of that magnitude. There was deemed to be no connection between the number of 1 Id. ; Hudson v. Buck, 51 N. J. L. Atlantic City Water-works Co, v. Con- 155 ; Beaver County Indexes, 6 Pa, suniers' Wat Co. 44 N. J. Eq. 427. County Ct. 525 ; Allen v. Pioneer Press, - Id. ; Van Giesen v. Bloomfield, 47 40 Minn. 117 ; Preston v. Louisville, 84 N. J. L. 443. Ky. 118 ; Cobb v. Bord, 40 ]\Iinn. 479 ; » Zeigler v. Gaddis, 44 N. J. L. 363. State V. Standley, 76 Iowa, 215 ; New- * Id. ; Coutieri v. New Brunswick, man v. Emporia, 41 Kan. 583 ; 44 N. J. L. 58 ; Reading v. Savage, Nichols V. Walter, 37 Minn. 264 ; 124 Pa St 328. Ruthorford v. Hamilton, 97 Mo. 543 ; 164: KEQUIKEMENT OF GENERAL LAWS. people in a citj and the right to fund its floating debt.^ Where an ac^ provided for a change in the management of the internal affairs of towns and boroughs which were sea-side resorts and then governed by commissioners ; - the court held it came within the constitutional interdict. The whole statute by its terms was confined to sea-side resorts governed by boards of com- missioners. The individuals thus grouped into a class by legis- lative enactment are distinguished from other municipalities by these two features only, and the court said, " consequently, no legislation touching this class alone is constitutional, un- less it properly relates to these peculiarities. We cannot see how the section under review is so related. That the power to expend the road tax of a municipality on its streets should be vested in its own governing body, rather than in the com- mittee of the township of which its territory forms a part, is a proposition which seems to have no natural connection with the facts that the municipality is a searside resort, and that its governing body is styled a board of commissioners." * § 129. In respect to the enumerated subjects as to which legislation is required to be general, and special acts prohibited, though such subjects may be divided into classes distinguished 1 Anderson v. Trenton, 42 N. J. L. 486. A classification may be sustained where the differences are not extreme, but exist. The test would not then be judicial, depending on whether the law was special, but legislative, whether wise or not. Wlieeler v. PhUadelphia, 77 Pa, St. 338 ; Kilgore V. Magee, 85 id. 401 ; Rutgers v. New Brunswick, 42 N, J. L. 51 ; Skinner V. Collector, id. 407 ; Fellows v. Walker, 39 Fed. Rep. 651. 2 Ross V. Winsor, 48 N. J. L. 95. 3 In Closson v. Trent»n, 48 N. J. L. 438, the act in question was to estab- lish a license and excise department in certain cities containing more than fifteen thousand inhabitants, and in which the granting of licenses is not ah-eady vested in a board of excise or in the court of common pleas. It was held local and special The court said : " There can be no rea- son suggested why cities with more than fifteen thousand inliabitants shoidd have a system of granting hcenses different from that of cities with a less popidation. In respect to the matter of the legislation all cities are a class, and an attempt t<> segregate cities into distinct classes for tliis piu-pose by a standard of pop- ulation is not classification but an arbitrary selection of one or more localities." Hightstown v. Glenn, 47 N. J. L. 105 ; Gibbs v. Morgan, 39 N. J. Eq. 126 ; Tiger v. Morris Common Pleas, 42 N. J. L. 631 ; Ernst v. Mor gan, 39 N. J. Eq. 391 ; Freeholders v. Stevenson, 46 N. J. L. 173 ; Alsbath V. Philbrick, 50 N. J. L. 581 ; Biny Hudson, 50 N. J. L. 82. See Dobbins V. Northampton, 50 N. J, L. 496. REQUIREMENT OF GENERAL LAWS. 165 by substantial differences for the purpose of legislation appro- priate to such conditions as spring from these differences, there must nevertheless be a limit to such division, even founded on substantial differences. Within certain limits subjects may be grouped on the basis of such differences for general legislation ; beyond those limits such differences "would not be the basis of classification, but the ground of segregation by which each in- dividual would be distinguished for special enactments.^ The i:)rohibition is in the way of legislation for individual cases.^ It is equally fatal to such legislation though it be general in form. If a statute is plainly intended for a particular case, and looks to no broader application in the future, it is special or local, and, if such laws are prohibited on the subject to which it relates, is unconstitutional.^ The lineaments by which such cases are to be distinguished are usually so special that a law confined thereto would be anticipated to have no effect from the antecedent improbability of such a case arising. When, therefore, it is found to fit such a special case, it is deemed to have been enacted solely for it.^ An act came in question which gave the right to file a me- 1 Devine v. Board of Commission- 68 N. Y. 381. See Desmond v. Dunn, ers, 84 111 590 ; I\Iontgomery v. Com- 55 Cal 242 ; Earle v. Board of Educa- monwealth, 91 Pa. St. 125; Davis v.- tion, id. 489. Clark, 106 Pa. St 3TT; Westertield, 2NevU v. Cliiford, 63 Wis. 435; Ex parte, 55 CaL 550 ; Koser, Ex parte, AVilliams v. Bidleman, 7 Nev. 68 ; 60 icL 177, 191 ; Commonwealth v. IMontgomery v. Commonwealth, 91 Patten, 88 Pa. St. 258 ; State v. Herr- Pa. St. 125 ; Frye v. Parti'idge, 82 IlL manu, 75 IMo. 340 ; Rutherford v. Hed- 267. dens, 82 id. 388 ; Mason v. Spencer, 35 3 state ex rel. v. Mtchell, 31 Ohio Kan. 512 : State v. Squires, 26 Iowa, St. 592 ; State v. Herrmann, 75 Mo. 340; Stange v. Dubuque, 62 Iowa, 340; McCarthy v. Commonwealth, 303; State ex rel. v. Mitchell, 31 110 Pa. St. 243; S. C. 14 Am. & Ohio St. 592 ; Fiye v. Partridge, 82 Eng. Corp. Cas. 271 ; Hammer v. 111. 267 ; Pritz, Ex parte, 9 Iowa, 30 ; State, 44 N. J. L. 667 ; Devme v. Board Davis V, Woolnough, id. 104 ; State of Commissioners, 84 IlL 590 ; Davis V. Graham, 16 Neb. 74 ; Philhps v. v. Clark, 106 Pa, St 377 ; Common- Schumacher, 10 Hun, 405 ; Healey v, wealth v. Patten, 88 Pa. St 258 ; Frye Dudley, 5 Laus. 115; Hodges v. Bal- v. Partridge, 82 111. 267; Hallock v. tmiore Pass. Ry. Co. 58 I\Id. 603 : Cen- Holliiig-shead, 49 N. J. L. 64 ; Hudson tral Iowa R. R. Co. v. Board of Super- Co. Froeholdei-s v. Buck, id. 228 ; State visors, 67 Iowa, 199 ; S. C. 22 Am. & v. Boyd, 19 Nev. 43. Eng. R. R Cas. 223 ; Kimball v. Rosen- * Id dale, 42 Wis. 407 ; Kerrigan v. Force, 166 KEQUIKEMENT OF GENERAL LAWS, chanic's lien in certain cases, but contained a proviso excluding from its operation counties having a population of over two hundi'ed thousand inhabitants. It was held void as a local and special law, and therefore within the constitutional inhi- bition of such laws " authorizing the creation, extension or impairing of liens." ^ The classification of counties by popu- lation and the passage of laws applicable to a certain class only have within reasonable limits and for some purposes been admitted upon the assumption that counties having a smaU population may ultimately have one much larger. In the case under consideration, however, two counties had, at the time the law in question was passed, a greater population than two hundred thousand. As it could not be assumed that their population would ever faU below that limit they were permanently excluded from the operation of the act. The court say : " It was not then a general act. It did apply to a great number of counties ; but there is no dividing line between a local and a general statute. It must be either one or the other. If it apply to the whole state, it is general. If to a part, it is local. As a legal principle it is as effectually local when it apphes to sixty-five counties out of sixty-seven as if it applied to one county only. The exclusion of a single county from the operation of the act makes it local." ^ "Where an act provided exceptionally for the holding of courts in all counties of more than sixty thousand inhabitants, adding re- strictively, " in which there shall be any city incorporated, at the time of the passage of this act, with a population exceed- ing three thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually traveled road," the court held the act local ; that it applied and was intended to apply to only one county.^ § 130. Amendatory and curative acts. — Existing general laws required to have a uniform operation cannot be amended so as to interrupt their uniform operation.^ Amendments 1 Davis V. Clark, 106 Pa St. 377. St. 258 ; State v, Herrmann, 75 Mo. 2 Montgomery v. Commonwealth, 340; Weinman v. Wilkinsbui'g, etc. 91 Pa. St. 125 ; Devine v. Board of R'y Co. 118 Pa, St. 192. Commissioners, 84 ILL 590 ; McCarthy ^ State ex rel. Peck v. Riordan, 24 V. Commonwealth, 110 Pa, St 243. Wis. 484; State ex rel. Keenan v. 3 Conimon wealth v. Patten, 88 Pa. Supervisors, 25 id. 339 ; State ex reL EEQUIREMENT OF GENERAL LAWS. 16| cannot be made to particular charters where special acts of in- corporation are prohibited.' Nor can special curative acts be passed to give effect to proceedings defective and void, because taken in the absence of necessary statutory authority ,2 or be- cause not taken in pursuance of statutes in force.^ Walsh V. Dousman, 28 id. 541 ; Zeigler 2 Independent School District t. V. Gaddis, 44 N. J. L. 363. 1 Pritz, Ex parte, 9 Iowa, 31 ; Davis V. Woolnough, i(L 104. See Brown v. Denver, 7 Colo. 305 ; Hodges v. Balti- xnore Union Pass. E. R Co. 58 Md. •603. Biuhngton, 60 Iowa, 500 ; Stange y. Dubuque, 62 Iowa, 303. See State v. Squires, 26 id. 340. 3 IMason v. Spencer, 35 Kans. 513 ; City of Emporia v. Norton, 13 id 569. CHAPTER VII. AMENDATORY ACTS. 131. Constitutional requirement and its purpose. its purpose. ics purpose. 133. Acts expressly amendatory. 133. Amendment "to read as fol- lows." 134 Repeal and re-enactment 135. Amendments by implication not within constitutional reg- ulation- § 131. The constitutional requirement and its purpose. — The requirement is substantially the same in the constitutions of many states — that no law shall be revived or revised or amended by reference to the title only ; but the law revived or revised, or the section amended, shall be re-enacted or in- serted at length in the new act. The provision is mandatory.* This requu-ement was intended mainly to prevent improvident legislation.- By a prevalent form of amendatory legislation the amendatory act itself was unintelligible ; words were stricken out or inserted, additions or substitutions made by mere ref- erence to the place in the old law where the change should be introduced. It required an examination of the former act and a comparison with it of the new act to understand the change. Much confusion and uncertainty ensued from this practice. After repeated amendments in this manner there was much difficulty in determining the state of the law. The require- ment was intended to remedy this evil by requiring the legis- lature changing the law to state it entire in its amended form : the whole act, when revived or revised, or a whole section amended.* 1 Tuskaloosa Bridge Co. v. 01m- etc. v. Trigg, 46 Mo. 288, 290 ; Peo- stead, 41 Ala. 9 ; Walker v. Caldwell, 4 La. Ann. 297. See Lehman v. McBride, 15 Ohio St 573. 2 Lehman v. McBride, 15 Ohio St g73, 603. 3Timm v. Harrison, 109 IlL 593; Sovereign v. State, 7 Neb. 409 ; Mayor, pie V. Mahaney, 13 Mich. 484, 497; Davis V. State, 7 Md. 151, 159 ; Col- weU V. Chamberhn, 43 N. J. L. 387; Draper v. Falley, 33 Ind. 465, 469; Blakemore v. Dolar^ 50 Ind. 194, 203. AMENDATORY ACTS. IGO § 132. Acts expressly amendatory. — In the amendment or revision of a statute two things are required: First, the title of the act amended or revised should be referred to; and secondly, the act as revised, or section as amended, should be set forth and published at full length.^ In the amendment of a section the title of the act in force containing it should be referred to.- It is unavailing to refer to the original title of the act containing the section after it has been amended and formulated in a later act. The title of the later law should be referred to, for the section as part of the original act, by the amendment, has ceased to exist except as to past transactions ; it is superseded by the section as amended. An amendment of a section after it has been thus displaced is void.* It is not necessary in an amendatory statute to set forth the old act or section, but only to re-enact complete the amended section. It is intended that the law in force after the amend- ment shall be formulated and stated as it reads entire, and not in shreds.* The supreme court of Louisiana say : * "It was in- 1 Feibleman v. State ex rel. 98 Ind. 521 ; Tuskaloosa Bridge Co. v. Olm- stead, 41 Ala, 9 ; Rogei-s v. State, 6 Ind. 31 ; Armsti'ong v. Berreman, 13 id. 423 ; Sovereign v. State, 7 Neb. 409, 413 ; Walker v. CaldweU, 4 La. Ann. 297 ; Kohn v. Carrollton, 10 La, Ann. 719 ; Jones v. Commissioner, 21 Mich. 236 ; State v. Algood, 87 Teun. 163. See Comstock v. Judge, etc. 39 Mich. 195 ; Earle v. Board of Educa- tion, 55 CaL 489, 492, 493. 2Bm-nett v. Turner, 87 Tenn. 124. 3 Id. ; Draper v. FaUey, 33 Ind. 465 ; Town of Martinsville v. Frieze, id. 507 ; Blakemore v. Dolan, 50 id. 194 ; Ford V. Booker, 53 id. 395 ; Cowley v. RushviUe, 60 id. 327 ; Niblack v. Good- man, 67 id. 174 ; Clare v. State, 68 id. 17 ; Brocaw v. Board, etc. 73 id. 543 ; liawson v. De Bolt, 78 id. 563 ; Mc- Intyre v. Marine, 93 id. 193 ; Robert- son V. State, 12 Tex. App. 541. See Jones v. Commissioner. 21 Miclx. 236 ; Pond V. Maddox, 38 Cal. 572 ; State v. Brewster, 39 Ohio St 653. In Bas- nett V. Jacksonville. 19 Fla. 664, an act pm-ported to amend a section which had been amended, and en- acted that it should "read as fol- lows ; " held to operate to repeal all of the section amended wliich is not embraced in the amendment A clerical mistake in the title of the amendatory act referring to the date when the amended act was approved wiU not vitiate the amendatory statute. Saunders v. Provisional Mu- nicipality, 24 Fla, 226. See Wall v. Garrison, 11 Colo. 515. ■* Greencastle, etc. Co. v. State ex rel. 28 IncL 382 ; Draper v. Falley, 33 id. 465 ; Blakemore v. Dolan, 50 id. 194 : Rogers v. State, 6 id. 31 ; People V. McCallum, 1 Neb. 182 ; Arnoult v. New Orleans, 11 La Ann. 54; Jones V. Commissioner, 21 Mich. 236 ; City of Portland v. Stock, 2 Oregon, 69 ; Col- well V. Chamberlin, 43 N. J. L. 387 ; Lehman v. :McBride, 15 Ohio St 573, 602; Mayor v. Trigg, 46 Mo. 288; State V. Powder Mfg. Co. 50 N. J. h. 75. 5 Amoult V. New Orleans, supra. 170 AMENDATORY ACTS. tended that each amendment, and each revisal, should speak for itself ; should stand independent and apart from the act revised or the section amended. It was therefore provided that, in such cases, if the object was to revise an act, it should be re-enacted throughout ; and if the object was to amend an act, then the section amended should be re-enacted and jpiib- lished.''^ If the section is subdivided into clauses or paragraphs, and an amendment is made affecting one only of the clauses or paragraphs, the entire section must nevertheless be included in the amendatory statute ; it must be reconstructed entire as it is intended in the future to operate.^ A recital of the sec- tion amended as it stood prior to the amendment will not vitiate the amendatory statute ; such recital will be treated as surplusag'e.^ If incorrectly recited it will not affect the valid- ity of the amendatory act.* It is not required that the amend- atory act state that certain words of a specific section are stricken out and others inserted, and then set out in full the section as amended ; it is sufficient if the section as amended be set out in f uU.^ The legislature may, by amendment, sub- stitute any provision they please for any other provision, whether cognate or not, if the new section is not foreign to the subject indicated by the title of the law in which it is in- serted,^ § 133. Amended so as to read as follows. — The constitu- tional provision requiring amendments to be made by setting out the whole section as amended was not intended to make any different rule as to the effect of such amendments. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dano-erous to hold that the mere nominal re-enactment should have the effect of dis- turbing the whole body of statutes in jpari materia which had been passed since the first enactment. There must be some- thing in the nature of the new legislation to show such an in- tent with reasonable clearness before an implied repeal can be 1 Town of Maiiinsville v. Frieze, 33 < Morrison v. St Loiiis, etc. R K, Ind. 507. Co. 96 Mo. 603. 2 Draper v. Falley, 33 Ind. 465. 5 Underwood v. McDuffee, 15 IVIich. « People V. McCallum, 1 Neb. 182 ; 361, 367 ; Gibson v. State, 16 Fla 291. School Directors v. School Directors, 73 HL 249. AMENDATORY ACTS. 171 recognized.' The amendment operates to repeal all of the sec- tion amended not embraced in the amended form.- The por- tions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along ; and the new parts, or the changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule.^ But all the provisions of the prior laAV amended which continue in force after the passage of the amendatory act derive their force thereafter not from the original but the amendatory act. A repeal of that act would not revive the provisions as origi- nally enacted.* On the contrar\', a repeal of the amendatory act would be a repeal of the provisions therein continued in force from the original act.* 1 Gordon v. People, 44 IMich. 485 ; Ely V. Holton, 15 N. Y. 595 ; Moore V. Mausert, 49 id. 332 ; People v. Su- pervisors, C7 N. y. 109 ; Burwell t. Tullis, 12 IMiniL 572; Alexander v. State, 9 Ind. 337 ; Longlois v. Long- lois, 48 id. 60-64; Benton v. Wick- wire, 54 N. Y. 226 ; The Borrowdale, 39 Fed. Rep. 376. See Powers v. Shep- ard. 48 N. Y. 540. 2 Baiinett v. Jacksonville, 19 Fla. 664 ; Nash v. Wliite's Bank, 37 Hun, 57; Medical CoUege v. Muldon, 46 Ala. 603. Amendatory acts should not receive a forced construction to make them repealing statutes. Lu- cas County V. Chicago, Burlington & Q. R'y Co. 67 Iowa, 541. 3 Ely V. Holton, 15 N. Y. 595; Moore v. Mausert, 49 id. 332 ; Nash v. White's Bank, 37 Hun, 57 ; Syracuse Savings Bank v. Town of Seneca Falls, 86 N. Y. 317; Goillotel v. Mayor, etc. 87 N. Y. 441 ; Calhoun v. Delhi, etc. R R Co. 28 Hun, 379; KerUnger v. Barnes, 14 Minn. 526; New York. etc. R R Co. v. Van Horn, 57 N. Y. 473, 477 ; Murray v. Gibson, 15 How. 421; Gamble v. Beattie, 4 How. Pr. 41 ; Benton v. Wickwire, 54 N. Y. 226; Matter of Peugnet, 67 N. Y. 444 ; McEwen v. Den, Lessee, 24 How. 242 ; Walker v. State, 7 Tex. App. 245; Goodno v. Oshkosh, 81 Wis. 127; State v. Ingei-soll, 17 id. 631 ; Mann v. McAtee, 37 CaL 11 ; Kelsey v. KendaU, 48 Vt 24 ; Bay v. Gage, 36 Barb. 447 ; Bratton v. Guy, 12 S. C. 42 ; McGeehan v. Burke, 37 La. Ann. 156; State v. Brewster, 3 Am. & Eng. Corp. Cas. 551 ; Kamer- ick V. Castlemau, 21 ]\lo. App. 587 ; State V. Andrews, 20 Tex. 230 ; Mc- MuUen v. Guest, 6 Tex. 275 ; State v. Baldwin, 45 Conn. 134 ; Alexander v. State, 9 Lid. 337 ; Cordell v. State. 22 id. 1 ; Martindale v. Martindale, 10 id. 566 ; FuUerton v. Spring, 3 Wis. 667 ; Stingle V. Nevel, 9 Oregon. 62 ; Laude V. Chicago, etc. R"y Co. 33 Wis. 640 ; Glentz v. State, 38 id. 549 ; Pow- ers V. Shepai-d, 48 N. Y. 540 ; United Hebrew B. Asso. v. Bensliimol, 130 Mass. 325 : Morrisse v. Royal British Bank, 1 C. B. (N. S.) 67 ; Middleton v. New Jei-sey, etc. Co. 26 N. J. Eq. 269. 4 Goodno V. Oshkosh. 31 Wis. 127; People V. Supervisoi-s, 67 N. Y. 109. s Moody V. Seaman, 46 Mich. 74» 172 AMENDATORY ACTS. The word " hereafter " used in the statute as amended must be construed distributively. As to cases within the statute as originally enacted, it means subsequent to the passage of the original act ; as to cases brought within the statute by the amendment, it means subsequent to the time of the amend- ment.^ It is a general rule, however, that an amended statute is construed, as regards any action had after the amendment was made, as if the statute had been originally enacted in the amended form.- § 134. Repeal and re-enactmeut. — Where there is an ex- press repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same tune.* The intention manifested is the same as in an amendment enacted in the form noticed in the preceding section. Offices are not lost ; * corporate existence is not ended ; ^ inchoate statutory rights are not defeated ; ^ a statutory power is not taken away " nor criminal charges affected ® by such repeal and re-enactment of the law on which they respectively depend. This rule was applied in Walker v. State,^ though after a conviction for murder and a sentence of death pronounced, and pending an appeal there- from, the revised penal code took effect and changed the pre- vious penalty for the offense fi'om " death " to " death or con-, finement in the penitentiary for life." 1 Matter of Peugnet, 67 N. Y. 444 * State v. Baldwin, 45 Conn. 134 2 Holbrook v. Nichol, 36 III 161 ; 5 United Hebrew B. Asso. v. Ben- Tumey v. Wilton, id. 385 ; Conrad v. sliimol, 130 Mass. 325 ; Wright v. NaU, 24 Mich. 275 ; Kamerick v. Cas- Oakley, 5 Met. 400, 406 ; Steamship tleman, 21 Mo. App. 587 ; Queen v. Co. v. Johffe, 2 Wall 450. St. Giles, 3 E. & E. 224 ; Ashley V. Har- ecaperon v. Sti-out, 11 Nev. 304; rington, 1 D. Chip. 348 ; HarreU v. Skj^rme v. Occidental, etc. Co. 8 id- Harrell, 8 Fla, 46. 219 ; Moore v. Kenockee, 75 Mich. 3 FuUerton v. Spring, 3 Wis. 667 Laude v. Chicago, etc. R. R. Co. 33 id, 640 ; Schef tels v. Tabert, 46 id. 439 Middleton v. N. J. & C. R'y Co. 26 N. J, Eq. 269 ; Glentz v. State, 38 Wis. 549 Moore v. Kenockee, 75 I\Iicli. 332 Junction City v. Webb, 23 Pac. Rep. 1073 (Kan,X 332. 7 Middleton v. New Jersey, etc. Co. 26 N. J. Eq. 269. s State V. Cumber, 37 Wis. 29S; State V. Wish, 15 Neb. 448. 9 7 Tex. App. 245. AMENDATORY ACTS. 173 If a greater penalty is imposed for an offense defined in the re-enacted law, the previous law is deemed repealed ; and after such repeal takes effect there can be no punishment inflicted for any offense committed contrary to its provisions while they were in force.^ A repeal is not rendered inoperative by a re-enactment where they are not simultaneous, where there is an interval of time after the repeal takes effect before the re-enactment goes into operation ;2 or where, instead of the old law ceasing to operate by repeal, it has served its purpose — is exhausted and spent before the re-enactment.* § 135. Amendments hy implication not Avitliin the consti- tutional requirement. — It has been held in Nebra^a that if a statute is intended f o be amendatory, and is clearly so, it is within this provision of the constitution, though fi-amed as an Independent act and complete in itself; that being amenda- tory, it should be expressly so ; that the law as amended should be given in fuU with such reference to the old law as will clearly show for what the new law is substituted.* When, however, an act properly constructed amends certain sections, and the change so made impliedly modifies certain other pro- visions to bring them into harmony, this effect does not require the sections thus modified to be included as changed in the amendatory act.* It is generally held that though a supple- mentary act,^ or an independent act, if complete in itself, though it consequentially modifies, like an amendatory act, certain existing statutes, it is not necessary to include them as thus modified. This constitutional provision is held not to apply to such cases ; they are held not to be within the mis- chief intended to be remedied.^ A statute which merely fur- 1 State V. Van Stralen, 45 Wis. 437 ; Colo. 403 ; Evernham v. Hiilit, 45 State T. CampbeU, 44 id. 529. N. J. L. 53 ; Lake v. State, 18 Fla. 2 Kane v. New York, etc R'y Co. 49 501 ; Timm t. Harrison, 109 IlL 593 ; Conn. 139. People v. Wright, 70 id. 388 ; Home 3 Emporia v. Norton, 16 Kan. 236. Insurance Co. v. Taxing Dist 4 Lea, < Smails v. Wliite, 4 Neb. 357 ; Sot- 644 ; Scales v. State, 47 Ai-k. 476 ; ereign v. State, 7 id. 409, 413. Bird t. County of Wasco, 3 Or. 5 Swartwout v. !^Iich. Cent R R, Co. 282 ; Harrington v. Wands. 23 Mich. 24 Mch. 389; Law-rence v. Gram- 385; State v. Cross, 38 Kan. 696; bling, 13 S. C. 125. Pollard, Ex parte. 40 Ala. 77 ; Ware *- Lockhart v. Troy, 48 Ala, 579. v. St Louis, etc. Co. 47 id. 667 ; Tus- ■ People V. Mahaney, 13 Mich. 484 ; kaloosa Bridge Co. v. Olmstead, 41 id, Denver Circle R R Co. v. Nestor, 10 9 ; Fleischner v. Chadwick, 5 Oregon, 174: AilENDATOEY ACTS. nishes a rule of construction for prior statutes, and is not in terms an amendment, is not within the meaning of this consti- tutional regulation ; it need not set forth the statutes affected.^ jSTor is a statute amendatory which repeals in general terms all acts and parts of acts which are inconsistent with its pro- visions.^ Such a provision in an unconstitutional act has no effect.^ There is another kind of legislation which does not require a restatement of existing statutes referred to because not a revisal, revival or amendment of such statutes. The legislature may subject procedure to attain the objects of new legislation to existing general statutes without re-enacting them.* 152 ; Branliam v. Lange, 16 Ind 497 ; may not be extended under the Lehman v. McBride, 15 Ohio St Arkansas constitution by a general 573 ; Sliields v. Bennett, 8 W. Va. 87 ; reference to the title of the statute. State V. Cain, id. 720 ; Anderson v. Watkins v. Eureka Springs, [49 Ark. Commonwealth, 18 Gratt 295; Fal- 131. coner v. Robinson, 46 Ala. 840. See * People ex rel. v. Banks, 67 N. Y. Central R. R. Co. v. Hamilton, 71 Ga. 575. This case was decided under 461 ; Muscogee R R. v. Neal, 26 id. section 17, article 3, of the constitu- 121. tioa of New York, declaring that no 1 State V. Geiger, 65 Mo. 306. act should be passed which shall pro- 2 Medical College v, Muldon, 46 Ala. vide that any existing law or any 603 ; State v. Gaines, 1 Lea, 734 part thereof shaU be made or deemed 3 Campau v. Detroit, 14 Mich. 276 ; a part of said act, or which shall Davis, Ex parte, 21 Fed. Rep. 396 ; enact that any existing law or any People ex reL v. Fleming, 7 Colo. 230. part thereof shall be apphcable ex- The provisions of an existing statute cept by inserting it in such act CHAPTER VIII. REPEALING ACTS. g 136. Duration of statutes and power of repeal. 137. Express and implied repeal 138. Repeals by implication not fa- vored. 139. Implication from negative or affirmative statutes. 140. Repealing eflfect of affirma- tive statutes conferring power. 141. Where there is grant of part of power already possess^d- 142. Repealing eflfect of acts chang- ing criminal laws. 145. Grant of greater or different power or right § 146, Repeal by radical change of leading part. Repeal of inconsistent legisla- tion. Reconcilement of affirmative statutes. 154. Repeal by revision. 157. General laws will not repeal those which are special The later law which causes re- peal Effect of repeal as to civil rights. 166. Eflfect of repealing penal laws. 167. Saving clauses. 168. Revival by repeal of repealing statute. 14 148. 160. 162. § 136. Duration of statutes aud power of repeal.— Stat- utes are perpetual when no time is stated.^ A temporary- statute operates until its time expires.^ The operation of stat- utes may be suspended ; then they will come into operation when the period of suspension expires.^ A temporary stat- ute made perpetual before its expiration is in effect perpetual from the beginning.* Statutes have this duration subject to the continuous power of repeal. A state legislature has a plenary law-making power over all subjects, whether pertain- 1 United States v. Gear, 3 How. 120. 2 Brown v. Barry, 3 DalL 365. ^ A state of war between the gov- ernments of the creditor and debtor suspends the right and opportunity of a citizen of one belligerent to sue in the courts of the other, and as a con- sequence the statute of hmitations is suspended dm-ing the existence of the war, and that time is not computed in hmitation of the action. Hanger V. Abbott, 6 WalL 532 ; a C. 18 U. S. Sup. Ct 93a, and note. The impUed suspension should not continue longer than the real disability barred tlie in- stitution of the action- Braun v Sauerwein. 10 WalL 218. * Dingley v. Moor, Cro. Eliz. 750 ; Rex V. Morgan, Str. 1066; Rex v. Swiney, Alcock & Napier, 131. 176 REPEALING ACTS. ing to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited ex- pressly or by implication by the federal constitution or hm- ited or restrained by its own.^ It cannot bind itself or its successors by enacting irrepealable laws except when so re- strained. Every legislative body may modify or abolish the acts passed by itself or its predecessors.- This power of repeal may be exercised at the same session at which the original act was passed ; * and even while a bill is in its progress and before it becomes a law.'' The legislature cannot bind a future legislature to a particular mode of repeal.^ It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.^ A repeahng clause in a statute may be valid, although every other clause is unconstitutional, if such is plainly the legislative intent.'^ But where the repeal is intended to clear the way for the operation of the act containing th$ repealing clause, thereby showing an intention to displace the old law with the new, if the latter is unconstitutional the repealing clause would be dependent and inoperative.^ § 137. Modes of repeal, express or implied. — A repeal will take effect from any subsequent statute in which the legisla- ture gives a clear expression of its will for that purpose.^ The 1 Musgrove v. Vicksburg, etc. R. R. 818 ; Boiu-gignon, etc. Assoc, v. Com- Co. 50 Miss. 677. monwealth, 98 Pa. St. 54 ; People v. 2Bloomerv.Stolley, 5 McLean, 158; Lyttle, 1 Idaho, 143; Houghton Co. Swift V. Newport, 7 Bush, 37 ; McNeil v. Commissioners of St. L. O. 23 ]\Iich. V. Commonwealth, 12 id. 727 ; Moore 270 ; Brown v. Bany, 8 DalL 365. See T. New Orleans, 32 La, Ann. 726 ; Manlove t. Wliite, 8 CaL 376. City CouncU v. Baptist Church, 4 * The Southw^ark Bank v. Common- Sti-ob. 306 ; Files, Auditor, v. Fuller, wealth, 26 Pa St 446. 44 Ark. 273 ; Wall t. State, 23 Ind. , 5 Kellogg v. Oshkosh, 14 Wis. 623. 153 ; De Groot v. United States, 5 6 Mongeon t. People, 55 N. Y. 613. Wall 419 ; Monet v. Jones, 10 3m. & 1 Ely v. Thompson, 3 A. K. Marsh. Mar. 237 ; Chambers v. State, 25 Tex. 70. 307 ; GiEeland v. Schuyler, 9 Kan. * Ante, § 135. 569. See Oleson v. R. R. Co. 36 Wis. » State t. Judge, 14 La. Ann. 486 ; 383. Casey v. Harned, 5 Iowa, 1 ; Leard 3 Spencer v. State, 5 Ind. 41, 50 ; v. Leard, 30 Ind, 171. A recital Ham V. State, 7 Blackf. 314 ; Attor- in a statute that a former statute ney -General v. Brown, 1 Wis. 513 ; was or was not repealed is not con- In re Oregon, etc. Co. 3 Sawy. 614; elusive, for it is but a legislative Hex V. Middlesex Justices, 2 B. & Ad. declaration on a judicial question. EEPEALIXa ACTS. 1T7 "word repeal may be used in a limited sense.^ The suspension of a statute for a limited time is not a repeal "^ — it properly signifies the abrogation of one statute by another.' It is express when declared in direct terms ; implied when the in- tention to repeal is inferred from subsequent repugnant legisla- tion. In neither form will the repeal be effected and operative until the repealing statute goes into effect.* Laws are presumed to be passed with dehberation, and with a knowledge of all existing laws on the same subject.* If they profess to make a change, by substitution, of new for old pro- visions, a repeal to some extent is thus suggested, and the ■extent readily ascertained. Thus, amendment is frequently made by enacting that a certain section shall be so amended as " to read as follows ; " then inserting the substituted provis- ion entire without specification of the change. The parts of the former law left out are repealed. This intention is mani- fest." There is a negative necessarily implied that such elim- inated portion shall no longer be in force. The re-enacted portions are continuations and have force from their original enactment.' Where a statute repeals all former laws within United States v. Claflin, 97 U. S. 546 ; IngersoU, 17 Wis. 631 ; Goodno v. Ogden V. Blackledge, 2 Cranch, 273. Oslikosh, 31 WLs. 127 ; Breitung v. Courts camiot regard a statute as re- Liadauer, 37 Mich. 217 ; Longiois pealed by non-user alone. Pearson v. v. Longiois, 48 Ind. 60 ; Mosby v. International Distillery, 72 Iowa, 348. Ins. Co. 31 Gratt. 629 ; State v. Wish, 1 Smith V. People, 47 N. Y. 330, 338 ; 15 Neb. 448. See Hirschbui-g v. Peo- Rex V. Rogers, 10 East, 573 ; Camden pie, 6 Colo. 145. V. Anderson, 6 T. R. 723; State v. ^Ely v. Holton, 15 N. Y. 595; Baldwin, 45 Conn. 134 ; Robertson v. Goodno v. Oshkosh, supra. The court Demoss, 23 Miss. 298, 301 ; State v. say in tliis case : " The original sec- Coimty Court, 53 Mo. 128. See tion, as an independent and distinct Hu-schburg v. People, 6 Colo. 145 ; statutoiy enactment, ceased to have Warren R. R Co. v. Belvidere, 35 any existence the veiy moment the N. J. L. 584, 587. amendatory act was passed and went 2 Brown v. Barry, 3 Dall. 365. into effect, and whatever provisions 3 Abb. L. Die. tit. Repeal. of it remained as law were such solely * Spaulding v. ALford, 1 Pick. 33. by vktue of being again enacted in ^ Boweu V. Lease, 5 Hill, 221, 226 ; the amendment The original sec- Landis v. Landis, 39 N. J. L. 274, 277. tion, as a separate statute, was as <• Moore v. Mausert, 49 N. Y. 332 ; effectually repealed and obUterated People V. Supervisors, 67 id. 109 ; from the statute book as if the repeal McRoberts v. Washburne, 10 Minn. 23 ; had been made lq du'ect and express State V. Andrews, 20 Tex. 230 ; Goss- words and none of its provisions had ler V. Goodrich, 3 Cliff. 71 ; State v. been re-enacted." 12 178 REPEALING ACTS. its purview, tlie intention is obvious and is readily recognized' to sweep away all existing laws upon the subjects with which the repealing act deals.' The purview is the enacting part of a statute, in contradis- tinction to the preamble ; and a repeal of all acts within the purview of the repealing statute should be understood as in- cluding all acts or parts of acts in relation to all cases which are provided for by the repealing act, and no more.- But a statute may have the effect to repeal a former statute or some provision of it though it be silent on the subject of repeal. In such cases repeal is inferred from necessity, if there be such conflict that the old and new statutes cannot stand together.* Repugnancy in principle merely, between two acts, forms no reason why both may not stand.^ Nor is one statute repealed by the repugnant spirit of another ; ^ nor for conflict with an unconstitutional provision.^ It has been held that one private act wiU not repeal another by implication.^ It has been held that a statute may become repealed by adverse custom or long non-user.^ As repeal can only proceed from the legislature, the obsoleteness of the non- used statute must be in some way recognized in subsequent legislation. Popular disregard of a statute, or custom opposed to it, AviU not repeal it.^ A statute does not cease on removal lOgden V. Witherspoon,. 2 Hay- Park. Cr. 241 ; Shepardson v. Eailroad wood, 404; Harrington v. Rochester, Co. 6 Wis. 605; State v. Bui-ton, 11 10 Wend. 547. id. 50 ; Miller v. Edwards, 8 Colo. 2 Payne v. Conner, 3 Bibb, 180 Commonwealth v. Watts, 84 Ky. 537 Patterson V. Caldwell, 1 Met. (Ky.)489 528; State v. HaUock, 14 Nev. 202; Devoy v. Mayor, 35 Barb. 264 • Tinistees v. Laii-d, 4 De G. M. & G. Grigsby v. Barr, 14 Bush, 330. See 732. See Sclmeider v. Staples, 66 Gorham v. Luckett, 6 B. Mon. 146. Wis. 167. " See next section. 8 Hill v. Smith, Morris, 70 ; O'Han- * Smith, Ex parte, 40 Cal. 419. Ion v. Myers, 10 Rich. L. 128 ; Watson 5 State V. Macon Co. Ct 41 Mo. 453, v. Blaylock, 2 MiUs (S. G), 351 ; Can- 454 See Cass v. DiUon, 2 Ohio St ady v. George, 6 Rich. Eq. 103. 612 ; State v. Cincinnati, 19 Ohio, 197. a Kitchen v. Smith, 101 Pa. St. 452 ; 6 Campau v. Detroit, 14 Mich. 285 ; Homer v. Commonwealth, 106 id. SulUvan v. Adams, 3 Gray, 476 ; Peo- 221 ; James v. Commonwealth, 12 S. pie V. Fleming, 7 Colo. 230 ; Childs v. & R. 220 ; White v. Boot, 2 T. R 274 ; Shower, 18 Iowa, 261 ; Stephens v. Leigh v. Kent, 3 id. 362 ; Tj'son v. BaUou, 27 Kan. 594; Tims v. State, Thomas, McC. & Y. 127; Rex v. 26 Ala- 165 ; Harbeck v. Mayor, 10 Wells, 4 DowL 562 ; The India, 33 L. J. Bosw. 366 ; People v. Tiphaine, 3 Rep. P. M. & A. 193 ; S. C. Br. & L. EEPEALING ACTS. 17 'J of some of the evils it was intended to provide against,' Long practice may clear away ambiguities, and have a potent influ- ence in the interpretation of a statute.' So a long disuse of a statute of a penal nature, implying that it has not been kept in popular remembrance, or an intention of the government not to enforce it, may incline a court to soften its rigors within the limits of judicial discretion. Parts of a statute may be- come useless and incapable of any operation on account of the repeal or radical change of other and fundamental parts. Tley should be deemed repealed, because lifeless fragments.' § 138. Repeals by iiuplicatioii uot favored. — Such repeals are recognized as intended by the legislature, and its intention to repeal is ascertained as the legislative intent is ascertained in other respects, when not expressly declared, by construc- tion.* An implied repeal results fi'om some enactment the terms and necessary operation of which cannot be harmonized with the terms and necessary effect of an earlier act. In such case the later law prevails as the last expression of the legis- lative will; therefore, the former law is constructively re- pealed, since it cannot be supposed that the law-making |)ower intends to enact or continue in force laws which are contra- dictions. The repugnancy being ascertained, the later act or provision in date or position has full force, and displaces by re- peal whatever in the precedent law is inconsistent with it.'^ 221 ; Hebbert v. Piu-chas, L. R. 3 P. C. Disti-ict, 4 Lea, 644 ; Coats v. Hill, 41 650. Ark. 149 ; Dobbs v. Grand Junctiou 1 Mayor, etc. v. Deai-mon, 2 Sneed, Water Works, L. R 9 Q. B. Div. 158 ; 104. Rex V, Middlesex, 1 Dow. P. C. 117 ; 2 Leigh V. Kent, 3 T. R. 362. See Kinney v. MaUory, 3 Ala 626 ; Iverson post, § 308. V. State, 52 id. 170 ; Smith v. Speed, 50 * Stephens v. Ballou, 27 Kan. 594 ; id. 276 ; Poulson v. Union Nat Bank, Steamboat Co. v. CoUector, 18 Wall 40 N. J. L. 563 ; Harrison v. Walker, 478, 490. 1 Ga. 32 ; Fowler v. Pirkins, 77 111. * Thorpe v. Schooling, 7 Nev. 15. 271 ; Woods v. Jackson Co. 1 Holmes, s Woo Sika v. Chicago, etc. R R Ca 21 cital of an intention merely, in a sub- Wis. 370 ; Schwenke v. Union Depot sequent statute, to repeal a former & R. R. Co. 7 Colo. 512; Regina v. specific statute, will not operate by Stock, 3 Nev. & Perrj-, 420. 200 EEPEALING ACTS. Statute providing for submitting the question of the removal of a county seat to a popular vote at the April election was held not affected by a statute which discontinued such elections or postponed them until October. These statutes are not laws on the same subject. The former should be construed as fix- ing the time for taking the vote, and would not be changed if the April elections for election of officers were abolished.' A statute providing a remedy for an illegal tax should not be deemed embraced in a general repeal of all laws relating to assessments in an act prescribing and regulating the method of assessing taxes.^ A general clause in an act otherwise uncon- stitutional, repealing all acts and parts of acts contravening its provisions, will have no effect ; for, being void, no acts or parts of acts could contravene its provisions.^ ]t^or will an unconsti- tutional amendment impliedly repeal the original act by rea- son of conflict.* § 148. Recoucilement of affirmative statutes. — The cases are very numerous in w^hich an important question is decided upon the general principle that a statute w^ithout negative words will not repeal existing statutes, unless there is an un- avoidable repugnancy. A reference .to a multitude of such cases has been given in a note to another section.' It is not an exhaustive list, but is full enough for practical purposes. It is now proposed to analyze a few well-considered cases to illustrate the practical operation of the principle requiring the reconcilement, if possible, of statutes, where there is a question of inconsistency between them. In McCool V. Smith ^ a plaintiff claiming title by descent from an illegitimate child brought ejectment, having, as the law then stood, no title. Pending the action a retrospective amendatory act was passed giving effect to an existing act from an earlier date and thereby covering the date of the descent in question, conferring the right to inherit on such children " the same as if such act had been in force at the time of such death." This amendatory statute was held not to repeal, as to such cases, the common-law rule, and a state 1 Cole V. Supervisors, 11 Iowa, 552. * Ex parte Davis, 21 Fed. Rep. 396. 2 Shear v. Commissioners, 14 Fla. ^ Ante, § 135. U6. 6 1 Black, 459. Mn^e, §137. EEPEALLNG ACTS. 201 statute declaratory of it, requiring a plaintiff to have title at the commencement of his action. The general rule being that repeals by ini])lication are not favored, there will be no such repeal if it be possible to reconcile the two acts. The court, by Svvayne, J., said: " It is jyossihle to reconcile the two acts. It may well be that the legislature intended to vest the title re- trospectively for the purpose of giving effect to mesne convey- ances and preventing frauds, without intending also to throw the burden of the costs of an action of ejectment, then pend- ing, upon a defendant who, as the law and facts were at the commencement of the action, must have been the successful party. A stronger case than this must be presented to induce us to sanction such a result by our judgment. If the plaintiff can recover, it must be in an action brought after the IGth of February, 1S57. He cannot recover upon a title acquu-ed since the commencement of the suit." In a curative act it was provided that when an instrument made in good faith and on a valuable consideration, and in- tended to operate as a conveyance, is placed on record in the county where the lands lie, and the paper has a defect in some statutor}^ requisites in the acknowledgment or certificate of acknowledgment, the record shall operate as legal notice of all the rights secured by the instrument. Six years afterwards the legislature enacted an amendment to the statutes relative to deeds by adding a section prohibiting the recording of such defective conveyances. This was held not a repeal of the curative act. " Repeals by implication," say the court, " are not favored, and there is certainly much room for both of these statutes to operate without conflict. Both are designed to guard and secure rights ; not to impair or destroy them. And the grounds of pohcy for the [curative statute], as one to op- erate in future, were as evident [when the other was subse- quently passed] ; and when the legislature required registers to abstain from recording defective papers, they were weU aware tliat such papers after all would sometimes get on rec- ord, and that important interests might be sacrificed unless some effect should be given to such records. Accepting this as a true and practical view of the matter, they allowed the [curative act] to remain and endeavored by [the other act] to 202 BEPEALING ACTS. lessen tlie occasions for its application." ^ A Mississippi act passed in 1852 appropriated a fund derived from a certain source, then in the state treasury, to the several counties to be expended for a specified purpose. A portion of this appropri- ated fund was still in the treasury in 185Y, and was largely increased by accretions subsequently to the appropriation. The legislature, by an amendment passed the last mentioned year, not referring to the other nor specially to the money ap- propriated by it, directed a different use of the moneys then in the treasury. It was held possible to reconcile these acts. The portion of the fund which was in the treasury in 1852 was held still appropriated and subject to the act of that year, and that act not repealed; that the subsequent act related only to the residue ; that thus the acts could stand together.- § 119. A statute which denied to a married female the right to dispose of land by will is not impliedly rej)ealed by a sub- sequent statute which made it lawful for her to receive b}^ gift, grant, devise or bequest, and to hold to her sole and separate use as if she were a single female, real and personal property, and the rents, issues and profits thereof, and assuring the same against her husband's disposal and his debts. The lan- guage of the statute gave her only the right to receive and hold — a jnere jus tenendi, not disjjonendi.^ Two acts were passed at one session of the legislature ; the first one taking effect imposed a Ucense tax for the state $300, and for the county $100, upon every vendor of spmtuous, vinous or malt liquors, doing business for one year or less, and provided that any person who should engage in the sale thereof without having paid this tax should, on conviction, be fined in double the amount of the license. The other act was to regulate for police purposes the same traffic ; it prescribed a penalty of not less than two hundred nor more than five hundred dollars for clandestine sales. It was held that there was no repeal. The last act was intended to punish for occasional sales of liquor by unauthorized persons having no bar-rooms or regular places of business, and whose sales would be no particular detriment 1 Brown v. McCormick, 28 Mich. 2 McAfee v. Southern R. R Co. 36 215. Miss. 669. 3 Naylor v. Field, 29 N. J. L. 287. REPEALING ACTS. 203 to the revenue ; the other act ap})ned to those who engaged in selling as a business.^ § 150. By statute as well as by the common law in Indiana prior to 1881 a husband and wife, upon a deed made to both, bacame neither joint tenants nor tenants in common, but were seized of the entirety, so that on the death of either the sur- vivor took the whole; and during their lives neither could convey without the consent of the other, nor could any part of the land be taken on execution for the separate debt of either. This doctrine was not abolished or repealed by impli- cation by the act passed in 1881, providing that "A married woman may take, acquu'e and hold property, real or personal, by conveyance, gift, devise or descent, or by purchase with her separate means or money ; and the same, together with the rents, issues, income and profits thereof, shall be and re- main her own separate property, and under her own control, the same as if she were unmarried." It was held that these laws could stand together. A married woman may well have aU the personal rights conferred by the act of 1881 as to her separate property, without any interference or coUision with the statutes as to entu'eties. When husband and wife take by entireties neither of them holds any of the property sepa- rately.'- A statute fixing the annual salary of a public office at a sum certain, without limitation as to time, is not abrogated or sus- pended by subsequent enactments which merely appropriate a less amount for the services of that office for particular fiscal years, and which contain no words that expressly or by clear implication modify or repeal the previous law.' Two acts were passed at the same session, and by their terms to take effect on the same day ; one provided for the organization of towns whenever a majority of the legal voters of any con- gressional township containing twenty-five legal voters should ^ Blackwcll V. State, 45 Ark. 90. act containing the same provision, - Carver v. Smith, 90 IncL 222 ; S. C. with some ummportant additions as 46 Am. Rep. 210. An act provided to matters of detaU, and a fm-ther fen- extending the regular term of provision autliorizing special terms the com-t so long as might be neces- also. Coi'dell v. State, 23 Ind 1. sary to finish the business pending -'United States v. Laugston, 118 tlierem ; held not repealed by a later U. S. 389. 204 REPEALING ACTS. petition ; tiie other was a provision that no town shall be vacated, nor any town with an area of thirty-six sections or less be divided or have any part stricken therefrom, without first submitting the question to the electors of the town. It was held that they could stand together ; the former conferred a power in general terms and the latter imposed a limitation.^ § 151. Three successive acts of limitation were passed ; each provided a bar to an action of assumpsit if not commenced within six years after the cause of action accrued. The sec- ond in terms repealed the first. The third was put in force without any repeahng clause. A right of action run three years under the fii'st, and three years under the second, and the action was brought after the third had been enacted ; it was held that the action Avas barred. There was no repeal, for the acts were not inconsistent.^ It is deemed that there is less probability that repugnant acts will be passed at the same session than at different sessions of the legislature.^ At the same session of the legislature two acts were passed rela- tive to the place where actions against corporations might be brought. The act first passed provided that such actions might be brought in any county where the cause of action or a part thereof accrued, or in any county where the corporation had an agency or representative or in which was its principal of- fice. The second act gave a right in terms to bring an action in any county in which the cause of action or a part thereof arose — it contained no repealing clause. It was held not to repeal the former.* Before the new constitution of Ohio took effect, the legis- lature of that state passed a law authorizing towns and coun- ties, the people assenting, to subscribe for stock in railroad corporations. A clause in the constitution declares that " the general assembly shall never authorize any county, town or township by vote of its citizens or otherwise to become a stockliolder in any joint-stock company or corporation." It was held that this clause did not repeal the previous law.^ A 1 Supervisors v. Board of Commis- * Houston, etc. R R Co. v. Ford, 53 sioners, 12 Wmxu 403. Tex. 364. 2 McLauglilin v. Hoover, 1 Oregon, * Cass v. Dillon, 2 Ohio St 607 ; 31. State ex rel. v. Dudley, 1 Ohio St 3 HoTiston, etc. R R Co. v. Ford, 53 437 ; Van Hagan, Ex parte, 25 id. Tex. 364 426 ; Elizabethtown, etc. R R Ca v EEPEALINO ACTS. 205 statute wliich does not take away any right, or impose any substantially new duty, but regulates with additional require- ments a duty imposed by a pre\'ious statute, is not to be deemed inconsistent with the previous act.' A subsequent statute which institutes new methods of proceeding does not, without negative words, repeal a former statute relative to procedure.* The statute authorizing a proceeding to contest the validity of a will " by petition to the court of common pleas " does not repeal the provisions of the former statute authorizing a proceeding by bill in chancery.^ A statute which authorizes a certain oath to be taken before a particu- lar officer is not repealed by a statute which extends the power to administer oaths to a class of officers.* If two stat- utes can be read together without contradiction, or repug- nancy, or absurdity or unreasonableness, they should be read together, and both will have effect.* § 152. It is not enough to justify the inference of repeal that the later law is different ; it must be contrary to the prior law.^ It is not sufficient that the subsequent statute covers some or even all the cases provided for by the former, for it may be merely affirmative, accumulative or auxiliary ; there must be positive repugnancy ; and even then the old law is repealed by implication only to the extent of the repugnancy.'^ If, by fair and reasonable interpretation, acts which are seem- ingly incompatible or contradictory may be enforced and made to operate in harmony and witliout absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment.^ As laws are pre- Elizabethtown, 13 Bush, 233 ; Coats Ala. 276 ; Enloe v. Reike, 56 id 500 ; V. Hill, 41 Ark. 149; Stephens v. Wagner v. Stoll, 2 Ricli. (N, S.)539; Ballou, 27 Kan. 594. Robb v. Gurney, id. 559. 1 Staats V. Hudson River R, R Co. 6 Nixon v. Piffet, 16 La, Ann. 379 ; 4 Abb. App. Dea 287. Kesler v. Smith, 66 N. C. 154 ; Landis ^Shai-p V. Warren, 6 Price, 131; v. Landis, 39 N. J. L. 274. Mitchell V. Duncan, 7 Fla. 13. ' Wood v. United States, 16 Pet. « Raudebaugh v. Shelley, 6 Ohio St 842, 363 ; Coats v. Hill, 41 Ark. 149 ; 807. Connors v. Carp River Iron Co. 54 ♦Ruckman v. Ransom, 35 N. J. L. Mich. 168; People v. Supervisors, 67 565. N. Y. 109. . sRegina v. Mews, 6 Q. B. Div. 47; 8 Elizabethtown, etc. R R Co. v. S. C. L. R 8 App. Cas. 339, revei-sing Elizabethtown, 13 Bush, 233; Hig- the ruling below ; Smith v. Speed, 50 gins v. State, 64 Md. 419, 433 ; McCool 206 REPEALING ACTS. sumed to be passed with deliberation and with a full knowl- edge of aU existing ones on the same subject, it is but reason- able to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law re- lating to the same matter, unless the repugnancy between the two is irreconcilable.' In the endeavor to harmonize statutes, seemingly incompatible, to avoid repeal by implication, a court will reject absurdity as not enacted, and accept with favorable consideration what is reasonable and convenient. In cases of doubt, repeal of a statute or of the common law may be deemed intended in favor of convenience.^ An argument based on in- convenience is forcible in law ; ^ no less so is one to avoid what is unjust or unreasonable.^ Like considerations of what is convenient, just or reasonable, when they can be invoked against the imphcation of repeal, will be still more potent. The act being silent as to repeal and afRrmative, it will not be held to abrogate any prior law which can reasonably and justly operate without antagonism.* § 153. The presumption is stronger against implied repeals where provisions supposed to conflict are in the same act or were passed at nearly the same time. In the first case it would manifestly be an inadvertence, for it is not supposable that the legislature would deliberately pass an act with con- flicting intentions ; in the other case the presumption rests on the improbability of a change of intention, or, if such change has occurred, that the legislature would express it in a differ- ent act without an express repeal of the first.^ Where a stat- V. Smith, 1 Black, 459 ; Cass v. Dillon, State v. Stinson, 17 Me. 154 ; Smith v. 2 Ohio St. 607 ; Howard Association's People, 47 N. Y. 330 ; Commercial Appeal, 70 Pa. St 344. Bank v. Chambers, 8 S. & M. 9, 46. i Bowen v. Lease, 5 Hill, 231, 226. ^ Houston, etc. R. R. Co. v. Ford, 58 2 Steward v. Greaves, 10 M. & W. Tex. 364; S. C. 2 Am. & Eng. R. R. 711 ; Davison v. Farmer, 6 Ex. 242, Cas. 514 ; Eckloff v. Dist. of Colimi- 256. bia, 4 Mackay, 572 ; Peyton v. Moseley, 3 Co. Litt. 97a. 3 T, B. Jilon. 77 ; Gibbons v. Brit- * Rex V. Whiteley, 3 H. & N. 143 ; tenum, 56 Miss. 232 ; State ex rel. Johnson v. Bush, 3 Barb. Ch. 207, 238. Kellogg v. Treasurer, 41 Mo. 16 ; See Harris v. Jenns, 9 C. B. (N. S.) 152. State v. Clark, 54 id. 216 ; Nazareth SAnfe, §139 ;McNeelyv. Woodruff, L. B. I. v. Commonwealth, 14 B. 18 N. J. L. 352, 356, 357 ; Evergreens, Mon. 266 ; State v. Rackley, 2 Blackf. Matter of, 47 N. Y. 216, 221 ; Chamber- 249 ; Smith v. People, 47 N. Y. 330 ; lain V. Chamberlain, 43 id. 424, 438 ; Dawson v. Horaaa, 51 Barb. 459 ; EEPEALING ACTS. 207 ute expresses first a general intent, and afterwards an incon- sistent particular intent, the latter will be taken as an exception from the former and both will stand. • § 15J-. Repeal by revision.— Revision of statutes implies a re-examination of them. The word is applied to a restatement of the law in a corrected or improved form. The restatement may be with or without material change. A revision is in- tended to take the place of the law as previously formulated. By adopting it the legislature say the same thing, in effect, as when a particular section is amended by the words " so as to read as follows." The revision is a substitute; it displaces and repeals the former law as it stood relating to the subjects within its purview. Whatever of the old law is restated in the revision is continued in operation as it may operate in the connection in which it is re-enacted. In Bartlet v. King,^ Dewey, J., said : " A subsequent statute revising the whole subject-matter of a former one, and evi- dently intended as a substitute for it, although it contains no express words to that effect, must on principles of law, as well as in reason and common sense, operate to repeal the former." ^ Though a subsequent statute be not repugnant in all its pro- visions to a former, yet if it was clearly intended to prescribe the only rule which should govern, it repeals the former stat- ute.* Without express words of repeal a previous statute will Sanders v. State, 77 Ind. 227 ; Beals Tex. 418 ; IHulligan v. Cavanagh, 46 V, Hale, 4 How. 37 ; Supervisoi-s v. N. J. L. 45, 49 ; Murdock v. Memphis, Board of Commissioners, 12 Minn, 20 Wall. 617 ; State v. StoU, 17 Wall. 403. 425 ; United States v. Tynen, 11 Wall 1 Stockett -9. Bird, 18 Md. 484 ; De 88 : Board of Commissionere v. Potts, Winton v. Mayor, 26 Beav. 533. 10 Ind. 28(5 ; State v. Wilson, 43 N. 11. 2 12 IMass. 545. 419 ; AVater Works Co. v. BurkharL. 3Ro-jrs V. Watrous, 8 Tex. 62; 41 Ind. 364; FaiT v. Brackett. 30 Vt. King V. Cornell, 106 U. S. 395 ; Excel- 344 ; Tracy v. Tuffly, 134 U. S. 206 ; sior Petroleimi Co. v. Embury, 67 Giddiugs v. Cox, 31 Vt 607; State Bai-b. 261 ; Ellis v. Paige, 1 Pick. 45 ; v. Kelley, 34 N. J. L. 75 ; Pingree v. Berkshire v. Miss. etc. E'y Co. 28 Mo. Suell, 42 Me. 53 ; Fayette County ^•. App. 225 ; Lyon v. Smith, 11 Barb. Faires, 44 Tex. 514 ; Sacramento v. 124 ; Smith v. Nobles Co. 37 Minn. Bird, 15 Cal. 294 ; State v. Conkling, 535. 19 Cal. 501 ; Dexter & Limerick P. R * Rogers v. Watrous, siipra; Indus- Co. v. Allen, 16 Barb. 15 ; Bracken v. trial School Disti-ict v. Whitehead, 13 Smith, 39 N. J. Eq. 169 ; Andrews v. N. J. Eq. 290 ; Bryan v. Sundberg, 5 People, 75 111. 605 ; Daviess v. Fair- 208 REPEALING ACTS. he held to be modiiied by a subsequent one, if the latter was plainly intended to cover the subject embraced by both, and to prescribe the only rules in respect to that subject that are to govern.' Where a provision is amended by the form, " to read as follows," the intention is manifest to make the provis- ion following a substitute for the old provision and to operate exclusively in its place.* Does a revision import that it shall displace the last previous form ; that it is evidently intended as a substitute for it ; that it is intended to prescribe the only rule to govern? In other words, will a revision repeal by im- plication previous statutes on the same subject, though there be no repugnance? The authorities seem to answer emphat- ically, Yes. The reasonable inference from a revision is that the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject- matter in force at the same time, and that the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law." bairn, 3 How. 636; Red Rock v, Henry, 106 U. S. 596 ; People v. Brook- lyn, 69 N. Y. 605 ; Cook County Nat Bank v. United States, 107 U. S. 445, J Tracy v. Tuffly, 134 U. S. 206. 2 United States v. Barr, 4 Sawy. 254 United States v. Tynen, 11 WaU. 95 Knox V. Baldwin, 80 N. Y. 610 Goodno V. Oshkosh, 31 V/is. 127 State V. IngcrGoll, 17 id. 631 ; State v. Beswick, 13 R I. 211. 3 Commonwealth v. Kelliher, 12 Al- len, 480 ; Pratt v. Street Commission- ers, 139 Mass. 559, 563; Knight v. Aroostook R R. 67 Me. 291 ; Towle v. Marrett, 3 Grcenlf. 22; Common- wealth V. Cooley, 10 Pick. 37; Og- boume v. Ogboume's Adm'r, 60 Ala, 616 ; Roche v. Jersey City, 40 N. J. L. 257; Scott v. Simons, 70 Ala. 352; Goodenow v. Buttrick, 7 Mass. 140; Stirman v. State, 21 Tex. 734 ; Ashley, Appellant, 4 Pick. 21, 23; Smith v. Hickman's Heirs, Cooke (Tenn.), 330 ; Mayor, etc v. Groshon, 30 Md. 436; Burlander v. Railway Co. 26 Wis. 76 ; Simmons v. Bradley, 27 id. 689 ; Moore V. R^iilroad Co, 34 id. 173 ; Gilbank v. Stephenson, 30 id. 157 ; Oleson v. Rail- way Co. 36 id. 383 ; State v. Campbell, 44 id. 529 ; Davis v. Carew, 1 Rick 275 ; Gibbons v. Brittenum, 56 Miss. 232; Pana v. Bowler, 107 U. S. 529 ; Cook County Nat. Bank v. United States, id. 445 ; Commonwealth v. Watts, 84 Ky. 537 ; Harold v. State, 16 Tex. App. 157 ; Tafoya v. Garcia, 1 New Mex. 486 ; Lawson v. De Bolt, 78 Ind. 563 ; State V. Studt, 31 Kan. 245 ; Werbom V. Austin, 77 Ala. 381 ; Sawyers v. Baker, 72 id. 49 ; Carmichael v. Hays, 66 id. 543 ; Hatchett v. Bilhngslea, 65 id, 16 ; I'\irraan v. Nichol, 3 Cold. 439 ; Mayor v. Dearmon, 2 Sneed, 120; United States v. Claflin, 97 U. S. 546 ; Commonwealth v. Cromley, 1 Ashm. 179 ; Heckmann v. Pinkney, 81 N. Y. 211 ; State v. Wliitworth, 8 Port 434 ; Wood V. State, 47 Ark. 488; Steb- bins V. State, 22 Tex. App. 32 ; Smith EEPEALING ACTS. 209 § 155. A revising statute embracing antecedent general laws on various subjects and reducing them to one system and one text repeals all prior statutes upon the same subjects not included in the body of the revision and not exempted by an express clause.^ Where one act is framed from another, some parts taken and others omitted ; or where there are two acts on the same subject, and a later embraces all the provisions of the first and also new provisions, the later act operates, without any repeahng clause, as a repeal of the first.^ But the object of the old and the new acts must be the same.* The fact of revision raises a presumption of a complete code, or a complete treatment of the subjects embraced in it.* Where the revising act, however, prescribes its operation or effect upon a previous statute, it will have no other.^ Thus, if it contains an express repeal of all inconsistent acts and parts of acts, there is an implication that if there are parts of former acts not embraced in the new act and not inconsistent they are not repealed.® § 156. The important question in these cases is whether a later act is intended by the legislature to be a revision of the law relating to the subjects within its purview. It cannot be so intended unless it is a complete substitute for the previous V. State, 1 Stew. 506 ; United States v. Cheeseman, 3 Sawy. 424 ; State v. Sea- bom, 4 Dev. 305; Montel & Co. v. Consolidated Coal Co. 39 Md. 164; Dugan V. Gittings, 3 GiU, 138 ; Gor- ham V. Luckett, 6 B. Mon. 154 ; Smith V. State, 14 Mo. 147 ; Ellis v. Paige, 1 Pick. 43 ; Bryan v. Sundberg, 5 Tex. 418; State v. Rogers, 10 Nev. 319 Leighton v. Walker, 9 N. H. 59 Schneider v. Staples, 66 Wis. 167 Shannon v. People, 5 IVIich. 71, 85 Broaddvis v. Broaddus, 10 Bush, 299 Commonwealth v. Mason, 82 Ky. 256 ]\Iyei-s V. Mai-shall Co. 55 Sliss. 344 Swann v. Buck, 40 Miss. 278 ; People V. Carr, 36 Hun, 488 ; Culver t. Third National Bank, 64 111. 528 ; Thorpe v. Schooling, 7 Nev. 15. 1 State V. Judge, 37 La, Aim. 578 ; 14 Clay Co. Sup'rs v. Chickasaw Co. Sup'rs, 64 IMiss. 534; Stebbrns v. State, 22 Tex. App. 32 ; State v. Court- ney, 73 Iowa, 619. 2 EUis V. Paige, 1 Pick. 43 ; United States V. Tynen, 11 Wall. 88; Mears V. Stewart, 31 Ark. 17. 3 United States v. Claflin, 97 U. S. 546; Matter of Commissioners of Central Park, 50 N. Y. 493, 497. * Broaddus v. Broaddus, 10 Bush, 299 ; Coramonwealth v. Mason, 82 Ky. 256. 5 Patterson v. Tatum, 3 Sawy. 164 ; PurseU V. N. Y. Life Ins. Co. 42 N. Y. Super. Ct 383. 6 Lewis V. Stout, 22 Wis. 234 ; State V. Pollard, 6 R L 290 ; Gaston v. Mer- riam, 33 Minn. 271. 210 EEPEALING ACTS. law and contains the only rule or all the legislation which is intended to have force with regard to those subjects. An act which professes to be a revision, and has such scope of subject- matter that its title and profession are not illusory, should ob- viously so operate.^ So where there are two statutes on the same subject, passed at different dates, and it is plain from the frame-work and substance of the last that it was intended to cover the whole subject, and to be a complete and perfect system or provision in itself, the last must be held to be a leg- islative declaration that whatever is embraced in it shall pre- vail and whatever is excluded is discarded and repealed.^ Though a revision operates to repeal the laws revised whether repugnant or not, those portions that are re-enacted are con- tinuations.^ The revision is, however, a re-enactment, and to be alone consulted to ascertain the law when its meaning is plain; but when there is irreconcilable conflict of one part with another, the part last enacted in the original form will govern.* And when it becomes necessary to construe language used in the revision which leaves a substantial doubt of its meaning, the original statutes may be resorted to for ascer- taining that meaning.' In such case the title of the orig- inal act may be considered, especially where such act is passed in a state whose constitution requires the subject to be there expressed.^ In Louisiana it seems to be settled that the re- enactment into a code of the general provisions of prior laws 1 United States v. Bowen, 100 U. S. Citizens' Mut B. Asso. 61 Ala. 232. 508; Arthm- v. Dodge, 101 id. 34; 3 Wright v. Oakley, 5 Met. 406; Myer v. Car Co. 102 id. 1 ; United Steamsliip Co. v. Joliffe, 2 WaU. 450, States V. Lacher, 134 U. S. 624 ; Vie- 458 ; MitcheU v. Halsey, 15 Wend, tor V. Arthur, 104 id. 498 ; Pratt v. 241 ; Douglas v. Douglas, 5 Hun, 140 ; Street Commissioners, 139 Mass. 559, Matter of Southworth, id. 55 ; Staf- 563 ; Broaddus v. Broaddus, 10 Bush, ford v. His Creditors, 11 La Ann. 299 ; Commonwealth v. Mason, 82 470 ; State ex reL v. WUtz, id. 439. Ky. 256 ; Cambria Iron Co. v. Ash- * Winn v. Jones, 6 Leigh, 74 ; Black- burn, 118 U. S. 54. ford v. Hurst, 26 Gratt. 206; Hmley 2 Bracken v. Smith, 39 N. J. Eq. v. Town of Texas, 20 Wis. 634 169 ; Murdock v. Memphis, 20 Wall. » United States v. Bowen, 100 U. S. 617 ; Heckmann v. Pinkney, 81 N. Y. 508 ; United States v. Hirsch, id. 33 ; 211 ; Johnston's Estate, 33 Pa. St 511 ; Vietor v. Arthur, 104 U. S. 498 ; Myer Herron v. Carson, 26 W. Va. 62 ; v. Car Co. 102 U. S. 1 ; United States Rhoads v. HoemerstOAvn Building, v. Lacher, 134 id. 624. etc Asso. 82 Pa. St 180 ; Cahall v. 6 Myer v. Car Co. 102 U, S. 1. REPEALING ACTS. 211 docs not repeal exceptions to which those general provisions were subject.^ § 157. General laws will not impliedly repeal those which are special or local. — A general law prescribing a rule uni- versal as to a subject properly includes that entire subject and operates over every part of the state. The common law adapts itself to varying conditions by its flexible principles ; but statutes are made to apply to given conditions by classifi- cations, provisos, exceptions and limitations. A general law may thus be prevented from operating upon every subject, and from taking effect in every place. The purpose of a general act relative to a given subject may harmonize with a different purpose on that subject in a particular locality, or under special conditions, or as it affects a particular interest or a particular person or class ; it may harmonize in the sense that both pur- poses may be effectuated. The purpose of the general law may be carried out except as to the particulars in which a dif- ferent intention is manifested. It is a principle that a general statute without negative words will not repeal by implicar tion from their repugnancy the provisions of a former one which is special or local, unless there is something in the gen- eral law or in the course of legislation upon its subject-matter that makes it manifest that the legislature contemplated and intended a repeal.^ » Miller v. Mercier, 3 Martin (N. S.), Mayor, 13 Ga. 404 ; Kankakee Co. v. 236; S. C. 15 Am. Dec. 150. ^tna Life Ins. Co. 106 U. S. 668; 2Dwarris on St 332; People v. State v. Mills, 34 N. J. L. 177; Vail Quigg, 59 N. Y. 83 ; Anderson v. Hill, v. Easton, etc. E. R. Co. 44 id. 237 ; 42 N. J. L. 351 ; Crane v. Eeeder, 22 Schwenke v. Union Depot & R R. Mich. 322, 334 ; Robbins v. State, 8 Co. 7 Colo. 512 ; Pacific R R. Co. v. Olxio St. 131, 191 ; Deters v. Renick, Cass County, 53 Mo. 17 ; Queen v. 37 Mo. 597 ; State v. Branin, 23 N. J. Champneys, L. R. 6 C. P. 384 ; Tiemey L. 484; Sheridan v. Stevenson, 44 id. v. Dodge, 9 ]\Iinn. 166; Dyer v. Cov- 371 ; State v. Fiala, 47 Mo. 320 ; State ington Township, 28 Pa St 186 ; State V. DeBar, 58 id. 395 ; Stiito v. Fitz- v. Severance, 55 Mo. 378, 386 ; Conley porter, 17 Mo. App. 271, 274 ; Com- v. Supervisors, 2 W. Va. 416 ; State monwealth v. Cotton, 14 Phila. 667 ; v. Stoll, 17 WalL 425 ; Providence v. :^Iahony v. Wright 10 Ir. C. L. (N. S.) Union R R Co. 12 R L 473 ; Daviess 420^, Savannah v. Kelly, 108 U. S. 184 ; v. Fau-bairn, 3 How. 636 ; Mason v. Smith, Ex parte, 40 Cal. 419 ; State v. Harpers Ferry Bridge Co. 17 W. Va. Belvidere, 25 N. J. L. 563 ; Jefferson 397 ; Sheltou v. Baldwin, 26 Miss. 439 ; Co. V. Reitz, 56 Pa. St 44 ; People v. Chesapeake & Ohio R. R Co. v. Hoard, Palmer, 52 N. Y. 83 ; Haywood v. 16 W. Va. 276 ; Movius v. Arthur, 95 212 EEPEALING ACTS. 'VTlien the legislator frames a statute in general terms or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation to the details of which he had previously given his attention, ap- phcable only to a part of the same subject, unless the general act shows a plain intention to do so.^ § 158. The special act must conflict, so far as it operates to the extent of its lesser scope, with the general act ; otherwise there would generally be no question of repeal ; it expresses a particular intent incompatible, jpi^o tanto, with the intent of the general law. The general law can have full effect beyond the scope of the special law, and, by allowing the latter to operate according to its special aim, the two acts can stand to- gether. Unless there is plain indication of an intent that the general act shall repeal the other, it will continue to have ef- fect, and the general words with which it conflicts will be restrained and modified accordingly.^ A special act granted to a cemetery association capacity to acquire lands in a viUage named for a public purpose ; by the terms of the act the land so acquired was not liable to be taken for road purposes. An act was subsequently passed conferring general power to lay out and vacate roads and streets in cities and villages w^ithin their corporate limits. It was held that the two acts might stand together. Under the U. S. 144; Mayor v. Minor, 70 Ga, 85 Ky. 265; Malloy v. Common- 191 ; Crow Dog, Ex parte, 109 U. S. wealth, 115 Pa. St. 25. See Red Rock 556 ; Conservators of River Thames v. Henry, 100 U. S. 596. V. Hall, L. R. 3 C. P. 415 ; Thorpe v. i Crow Dog, Ex parte, 109 U. S. Adams, L. R. 6 C. P. 125 ; Cass Coimty 556 ; Dwarris on St. 532 ; Sedgw. St V. GiUett, 100 U. S. 585 ; Omit v. Com- & Const. L. 98 ; State v. Judge of St. monwealth, 21 Pa St 426 ; Wood Louis P. Ct 38 Mo. 529 ; Brown v. V. Election Com'rs, 58 Cal 561 McKenna v. Edmundstone, 91 N. Y, 231 ; State v. Stvirgess, 10 Oregon, 58 Han-isburg v. Sheck, 104 Pa. St 53 Dick's Appeal, 100 Pa. St 589 Schmidt Ex parte, 24 S. C. 303 People v. Supervisors, 40 Hun, 353 Rounds V. Waymart 81 Pa. St 395 Covington v. East St Louis, 78 111, 548 ; McVey v. McVey, 51 Mo. 400 Commonwealth v. Cain, 14 Bush 625; Adams Exp. Co. v. Owensboro, County Commissioners, 21 Pa. St 37 ; State V. Treasm-er, 41 Mo. 10, 24 ; Fos- dick V. PeiTysburg, 14 Ohio St 472 ; Robbins v. State, 8 id. 131, 191 ; WiU- iams V. Pritchard, 4 T. R, 2 ; Fitzgerald V. Champneys, 30 L J. Ch. 782, S. C. 2 Johns. & H. 31. 2 Dwarris on St 765; Stockett v. Bird, 18 Md. 484 ; Crane v. Reeder, 22 Midi. 322, 334 ; Fosdick v. Perrys- burg, 14 Ohio St 472; Williams v. Pritchard, 4 T. R 2. EEPEALING ACTS. 213 general law all roads and streets in the village are under its control except the lands of the association, and as to these the association has the exclusive control.' Where there are in one act or several contemporaneously passed, specific provisions relating to a particular subject, they will govern in respect to that subject as against general provisions contained in the same acts.'- It seems to be immaterial which statute is first enacted. If the special statute is later the enactment operates necessarily to restrict the effect of the general act from which it differs.' § 159. These interpretations harmonize with the rule that when a general intention is expressed, and also a particular intention, which is incompatible with the general one, the par- ticular intention shall be considered an exception to the gen- eral one.* There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions 1 Village of Hyde Park v. Cemetery includes the several parts, and all Asso. 119 111. 141. local laws establishing one rule for 2 Felt V. Felt, 19 Wis. 193, 196 ; one portion of the commuxiity, and a State V. Goetze, 23 id 363 ; Crane t. different one for the remaining por- Reeder, 22 Mich. 333. In Nusser t. tion, are inconvenient and of doubt- Commonwealth, 25 Pa, St. 136, the ful propriety, except where they re- question was whether an act impos- late to matters which are local in ing a fine of $50 for selling Uquors their natm-e, and are enacted by the on Sunday within the county of Al- proper municipal authorities of the legheny, and authorizing a summary territories over which they are de- conviction before a single justice of signed to operate." the peace, was repealed by a later ^ McGavick v. State, 84 N. J. L. 509 ; statute imposing the same penalty Sniith> Ex parte, 40 Cal. 419 ; Galway for the same offense committed any- Presentments, Ex parte, 9 W. E. C. where in the state, and prescribing a L. 114 Q. B. ; The I\Iayor v. The Ma- mode of procedure by indictment and con, etc. R R. Co 7 Ga. 231 ; Town- jury ti-ial. It was held to have the send v. Little, 109 U. S. 504 ; Blain v. effect of repeal. The court say : Bailey, 25 Ind. 165. " Where the prior enactment is local "• Dwarris on St. 765 ; Stockett v. and the new one general in its opera- Bird, 18 McL 484, 489 ; ChurchUl v. tion, the maxim [that a repugnant Crease, 5 Bing. ISO; Pilkiugton v. statute is a repeal of all subsequent Cooke, 16 M. & W. 615 ; Taylor provisions in a prior] applies with un- v. Oldliam, 4 Ch. Div. 395. diminished force, because the whole 214: REPEALING ACTS. of bolli cannot stand together. A special and local law pro- vided that certain property should be subject to taxation ; a subsequent general one that all such property should be ex- empt, and repealed all local or special acts inconsistent with its provisions. It was held that the special act was repealed.^ Where all acts must be general by the constitution, and such an act is passed and it repeals all inconsistent legislation, it will have the effect to repeal all special acts which are in con- flict with it. A law applying to some townships and except- ing others is not a general law. The intention to except from such a law those which have special laws will not be imputed to the legislature when such exception would render the law unconstitutional, and it is framed broad enough to embrace the entire class to which it relates.^ Special or local laws will be repealed by general laws when the intention to do so is mani- fest, as where the latter are intended to establish uniform rules for the whole state.* A general act prescribing a mode of •punishment for a specific offense throughout the state will re- peal an act limited to a single county prescribing a different punishment.* A general statute for the suppression of pros- titution is inconsistent with a local statute authorizing a regu- lation of it.-' A local or special law which adopts, by refer- ence, provisions relating to procedure from an existing general statute, is not necessarily abrogated or affected by the subse- quent repeal of the act containing the adopted provisions.** § 160. The later law, which is potent to repeal. — If a conflict exists between two statutes or provisions, the earlier in enactment or position is repealed by the later. Leges jpos- terioris priores contrarias abrogant. Where there is an irrec- oncflable conflict between different sections or parts of the same statute the last words stand, and those which are in con- 1 New Brunswick v. Williamson, 44 2 Hoetzel v. East Orange, 50 N. J. L. N. J. L. 165 ; Pausch v. Guerrard, 67 354 ; Bowyer t. Camden, id. 87. Ga. 319 ; Mechanics' & Traders' Bank 3 state t. Pearcy, 44 Mo. 159 ; Peo- V. Bridges, 30 N. J. L. 112 ; State v. pie v. Mner, 47 111. 33. Miller, id. 368 ; Great Central Gas < Nusser v. Commonwealth, 25 Pa. Cons. Co. V. Clarke, 13 Com. B. (N. S.) St. 126 ; Keller v. Commonwealth, 71 838 ; Bramston v. Colchester, 6 E. & B. id. 413. 246 ; Evansville v. Bayard, 39 Ind. 5 state v. Lewis, 5 Mo. App. 465. 450 ; Willing v. Bozman, 52 Md. 44. ^ Schwenke v. The Union Depot «fe R R. Co. 7 Colo. 513. REPEALING ACTS. 215 flict Avitli tliem, so far as there is a conflict, are repealed ; ^ that is, the part of a statute later in position in the same act or section is deemed later in time, and prevails over repugnant parts occurring before, though enacted and to take effect at the same time." This rule is applicable where no reasonable con- struction will harmonize the parts. It is presumed that each part of a statute is intended to co-act with every other part ; that no part is intended to antagonize the general purpose of the enactment. To ascertain the legislative intent every part ot an act, and other acts in pari raateria, are to be considered. One part of an act may restrict another part — an early sec- tion a later, and vice ver^sa; but if one part is so out of line with other parts and the general purpose of the act that it can only operate by wholly neutralizing some other part, then the latter provision is supreme as expressing the latest will of the law-maker. Hence, it is a rule that where the proviso of an. act is directly repugnant to the purview the latter is repealed by it.^ Statutes speak from the time they take effect, and from that time they have posteriority.^ If passed to take effect at a future day, they are to be construed as if passed on that day and ordered to take immediate effect.^ Where two acts •come into operation on the same day, and are repugnant, the one last approved repeals the other,^ unless a different inten- tion is expressed,^ or it may be ascertained upon testnnony.' 1 Albertson v. State, 9 Neb. 429. « Rex v. Middlesex, 2 B. «fe Ad. 8ia 2 Bac. Abr. tit. Statutes, D. ; State ' The Southwark Bank v. Common- T. Davis, 70 IMd. 237 ; Harrington v. wealth, 26 Pa St 446. In this case Rochester, 10 Wend. 550 ; Branagan it appeared that the legislature re- V. Dulaney, 8 Colo. 408 ; Powers v. pealed a part of a bill pending before Barney, 5 Blatclif. 302 ; Southwark the governor, and he approved the Bank v. Commonwealth, 26 Pa St. repealing statute. Held, that he had 446, 449 ; Elliott v. Lochnane, 1 Kan. no power to reinstate the repealed 135 ; Gibbons v. Brittenum, 56 Miss, provision by subsequently signing the 232. See Thomas v. Collins, 58 Jlich. act in which it was contained. The ^ relative time of approval of acts bear- ' Att'y-General v. Chelsea Water ing the same date may be inferred Works Co., Fitzgib. 195 ; Farmers' from the numerical order of the acts Bank v. Hale, 59 N. Y. 53. as publisliecl Straus v. Heiss, 48 3Id- *Ante,%lQl. 292; ^letropolitan Board of Health 5 Rice V. Ruddiman, 10 ]\Iich. 125 ; v. Schmades, 10 Abb. Pr. (N. S.) 205. Harrington v. Harrington's Est 53 See Thomas v. Collins, 58 ]\Iich. 64 Vt 649; Metropolitan Bd. of Health ' Stiaus v. Heiss, supra: Gardner v. V. Schmades, 10 Abb. Pr. (N. S.) 205. Collector, 6 Wall 499. In Mead v. 216 REPEALING ACTS. § 161. Where two statutes in jyari materia^ originally en- acted at different periods of time, are subsequently incorpo- rated in a revision and re-enacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce, the times when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the leg- islature, if the}^ are not harmonious.^ An existing statute is not to be considered as original because it is embodied in a revision, and therefore is not to be construed on the theory that none of its provisions had been in effect prior thereto. The appearance of such a statute in the form and body of a revision has no other effect than to continue it in force."^ § 162. Effect of repeal. — The general rule is that when an act of the legislature is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it had never existed,^ This is not true in an absolute sense, nor without exception, unless it is provided that the repealed statute cannot be revived by the repeal of the repealing stat- ute. A repealed law is indefinitely suspended while the re- pealing statute is in force. When that statute is repealed its repealing force is spent, and the one which is repealed thereupon comes again into operation.* This revival would not ensue if Bagnall, 15 Wis. 156, it was held that v. Arthur, 104 U. S. 498 ; Mobile Sav- when the legislative intent is to be rags Bank v. Patty, 16 Fed. Eep. 751. inferred from the priority of one act - City of St. Louis v. Alexander, 23 to another, regard must be had to Mo. 509 ; City of Cape Ghardeau v. the dates of approval of the acts and RUey, 52 id. 428 ; State ex reL Att'y- not to their dates of pubhcation. The Gen'l v. Heidorn, 74 id. 410. See court say ; " It is time that general ante, § 134. laws must be published before they 3 Curran v. Owens, 15 W. Va. 208 ;, can take effect, but that does not Surtees v. Elhson, 9 B. & C. 750 ; But- make the printer a part of the law- ler v. Pahner, 1 HUl, 324 ; Alabama making power, nor enable liim, by Med. College v. Muldon, 46 Ala. 603 ;. delaying the pubhcation of one law Musgi'ove v. Vicksburg, etc. R. R Co. longer than that of another which 50 Miss. 677 ; McQuUkien v. Doe ex. was passed at the same time, to dem. Stoddard, 8 Blackf. 581 ; Hvmt cliange the relations of the two upon v. Jennings, 5 id. 195 ; Potter's Dwar- the point of priority." ris, 160. iWinnv. Jones, 6 Leigh, 74; Black- ^ Post, § 168; Bac. Abr. tit. Stat- ford V. Hurst, 26 Gratt. 206 ; Hmley ute, D. ; PhiUips v. Hopwood, 10 B. & V. Town of Texas, 20 Wis. 638 ; United C. 39 ; Brmkley v. Swicegood, 65 N. C. States V. Bowen, 100 U. S. 508 ; Vietor 626 ; Smith v. Hoyt, 14 Wis. 252. REPEALING ACTS. 217 the repeal had the effect of absolute extinguishment.' In the interpretation of statutes, clauses which have been repealed may still be considered in construing the provisions that re- main in force.- Where a doubt exists as to the meanino: of a statute, the pre-existing law, and the reason and purpose of the new enactment, are considerations of great weight.^ It is more accurate to say that after it is repealed it is, as regards its ojDerative effect, considered as if it had never existed, except as to matters and transactions past and closed.* The repeal of an exception extends the purview.^ § 163. Eights depending on a statute and stiU inchoate, not pe'-fe^ed by final judgment or reduced to possession, are lost by repeal or expiration of the statute.^ This rule applies to mechanics' liens given by statute where the requisite jDroceed- ings to fix the lien have not been completed at the date of the repeal.' An assessment of taxes on corporate stock was made under a statute which was sul)sequently repealed. The col- lection of the taxes was regulated by another law. The re- peal of the statute under which the assessment had been made was held not to affect it. The assessment was closed and ended, and therefore not subject to the rule apphcable to 1 Home Ins. Co. v. Taxing Dist 4 Co. 50 Miss. 677 ; People v. Livingston, Lea, 644. 6 Wend. 526 ; Tivey v. People, 8 ]\Iich- 2 Bank for Savings v. The Collector, 128 ; Knox v. Baldwin, 80 N. Y. 610 ; 3 Wall. 495 ; Crow Dog, Ex parte, 109 Hampton v. Commonwealth, 19 Pa. U. S. 556 ; Bates v. Clark, 95 U. S. 204 ; St 329 ; State v. Baldwm, 45 Conn, Attorney-General v. Lamplough, L. R. 134 ; Bay City, etc. R. R. Co. v, Austin, 3 Ex. D. 223 ; Commonwealth v. Bai- 21 IVIich. 390 ; Bennetv. Hargus, 1 Neb. ley, 13 Allen, 541 ; Flanders v. Merri- 419 ; Wilhams v. Mddlesex, 4 Met. 76 ; mack, 48 Wis. 567. Oriental Bank v. Freese, 18 Me. 109 ; »Smythev. Fiske, 23WalL374, 380; BaUey v. Mason, 4 Minn. 546; The Heydon's Case, 3 Rep. 76. Schooner Rachel v. United States, 6 * Attorney-General v. Lamplough, Cr. 329 ; Coffin v. Rich, 45 Me. 507 ; supra. Gregory v. German Bank, 3 Colo. s Smith V. Hoyt, 14 Wis. 253; 332; S. C. 25 Am. Rep. 760; Gaul v. Goodno V. Oshkosh, 31 id. 127 ; Bank Brown, 53 Me. 496 ; Cm-tis v. Leavitt, for Savmgs v. The Collector, 3 WalL 15 N. Y. 152. See Restall v. London, 495. etc. R'y Co. L. R. 3 Ex. 141, which is s Bechtol V. Cobaugh, 10 S. & R. dissented from in Butcher v. Hender- 121 ; Van Inwagen v. Chicago, 61 IlL son. L. R 3 Q. B. 335. See, also, Mor- 31 ; Town of Belvidere v. Warren gan v. Thorne, 7 M. & W, 400. R. R. Co. 34 N. J. L. 193 ; S. C. 35 id. ' Bailey v. Mason, 4 Minn, 546. 587 ; Musgrove v. Vicksburg, etc. R R 218 REPEALING ACTS. pendiEg proceedings when the law under which they were commenced has been repealed.' There was a sentence of con- demnation of a vessel for trading contrary to a temporary act of congress ; the vessel had been sold" and the proceeds paid over to the government whUe the law was in force. Pending an appeal from the sentence the act expired. It was held that the sentence could not, under such circumstances, be af- firmed after the expiration of the law, and restitution was ordered.- An informer who commences a qid tarn action under a penal statute does not thereby acquire a vested right to the forfeiture ; his claim to the penalty is inchoate, and can- not be fixed except by judgment. The repeal of the statute before judgment prevents the imperfect right from being consummated. It matters not whether the whole penalty when received is given to the ]3ublic or to the informer, or is divided between them.^ § 164. When a right has arisen on a contract, or a transac- tion in the nature of a contract authorized by a statute, and has been so far perfected that nothing remains to be done by the party asserting such right, the repeal of the statute will not affect it or an action for its enforcement. It has become a vested right which stands independently of the statute.* A contractor for grading streets was authorized by the existing law to sue delinquent abutters for unpaid assessments. This right of action was held a part of the contract and not taken away by repeal of the law creating it.^ Causes of action barred by the statute of limitations are not revived by a re- peal of the statute." The repeal of a statute giving a lien for advances of money for certain purposes wOl not affect the lien as to such advances as were made prior thereto.^ Eights that pass and become vested under the existing law are sup- posed to be beyond the control of the state through its legis- 1 Town of Belvidere v. Warren R. < Pacific Mail Steamship Co. v. Jol- R. Co. 34 N. J. L. 193. iffe, 2 WaU. 450. 2 The Schooner Rachel v. United ^Creighton v. Pragg, 21 Cal. 115. States, 6 Cr. 329 ; Yeaton v. United ^ Cassity v. Storms, 1 Bush, 453 States, 5 id. 281. Right v. Martin, 11 Ind. 123 ; Coole/s 3 Bank of St Marys v. State, 12 Ga. Const. L. *365. 475. ■• Commissioners v. Northern Bank, 1 Met (Ky.) 174. REPEALING ACTS. 219 lature.' A mere change of the law does not divest or im- pair rights of property acquired previously, even though the legislature intended the new law so to operate.- A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force do not thereby cease. It would be an act of absolute injustice to abolish with a law all the effects which it had produced. This is a princi- ple of general jurisprudence ; but a right to be within its pro- tection must be a vested right. It must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present oi* future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.^ If, before rights become vested in particular individuals, the convenience of the state induces amendment or repeal of the laws, these indi- viduals have no cause to complain.'* The legislature, unre- strained by any constitutional provision, may grant an exclu- sive franchise,^ but the grant will be strictly construed and must be clearly expressed.^ It is competent for the legislature, after granting to one person or a corporation a franchise which affects the rights of the public, to grant a similar franchise to another person or corporation, though the use of the latter should impair or even destroy the value of the first franchise ; and this grant does not depend on a reservation of the power in the original grant.^ Nothing but plain English words wUl 1 Rice V. R R Co. 1 Black, 358 ; bois, 16 N. J. L. 285 ; Graham v. Chi- Mitchell V. Doggett, 1 Fla. 356; cago, etc. R R Co. 53 Wis. 473; Naught V. Oneal, 1 111. 36 ; James v. Grey v. IMobile Ti-ade Co. 55 Ala, 387 ; Dubois, 16 N. J. L. 285 ; Den v. Rob- Streubel v. Milwaukee, etc. R. R Co. inson, 5 id. 689 ; McMechen v. Mayor, 12 AVis. 67 ; Asi)iiiwall v. Daviess Co. etc. 2 H. & J. 41 ; Davis v. IMinor, 1 22 How. 364 ; Bennet v. Hargus, 1 How. (Miss.) 183; Taylor v. Rushing, Neb. 419; Kent's Com. 455; 2 Story 2 Stew. (Ala.) 160 ; Graham, Ex parte, on Const § 1399. See Wolfe v. Hen- 13 Rich. 277. derson, 28 Ark. 304. ■^ Rock HiU College v. Jones, 47 Md * McrrUl v. Sherburne, 1 N. H. 2ia 1, 17. 5 Slaughter-House Cases, 16 WalL 3 Id. ; Cooley, Const. Lim. 359 ; Mer- 36. rill V. Sherburne, 1 N. H. 213 ; WUd- <• Id. erman v. Baltimore, 8 Md. 551 ; State 7 The Charles River Bridge v. The V. Warren, 28 id. 338 ; Wortheu v, W\irrcn Bridge, 11 Pet 420 ; ]\Iohawk RatcUffe, 42 Ark. 330 ; James v. Du- Bridge Co. v. Utica, etc. R R Ca 6 220 EEPEALING ACTS. grant an exclusive franchise, and thus create a monopoly.^ The repeal of a statute after judgment will not defeat an ap- peal previously taken.^ And if the statute be essential to that judgment, its repeal or expiration after the appeal will neces-- sitate a reversal of the judgment.^ A statutory right is to be distinguished from the remedy for its enforcement. But after the right has vested it can- not be taken away by new legislation directly against the right nor indirectly by taking away the remedy.* The remedy may be changed.'^ And of this nature are statutes changing the rules of evidence " or the competency of witnesses.^ ]^ew statutes may be valid which take away defenses based on irregularities and informahties,^ by vahdating contracts exe- cuted without compliance with a statute,^ or in violation of some statutory prohibition.^*^ AYhen a remedy upon a contract Paige, 554; Oswego Bridge Co. v. Fish, 1 Barb. Ch. 547; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. 1 Pennsylvania R. R. Co. v. Canal Commissioners, 21 Pa. St. 22 ; Rich- mond R. R. Co. V. Louisa R. R. Co. 13 How. 71 ; Chenango Bridge Co. v. Bmghamton Bridge Co. 27 N. Y. 87. 2 Backes v. Dant, 55 Ind. 181. ■^ The Schooner Rachel v. United States, 6 Cr. 329 ; Yeaton v. United States, 5 id. 281. ■* Cooley's Const Luu. *361 ; Less- ley V. Phipps, 49 Miss. 790. 5 The Hickory Tree Road, 43 Pa. St. 139; Farmer v. People, 77 IlL 322; Knoup V. Piqua Bank, 1 Ohio St 603 ; Danf orth v. Smith, 23 Vt 247 ; Cool- ey's Const Lun. *287, 361, 362 ; Colby V. Dennis, 36 Me. 9, 13 ; Musgrove v. Vicksburg, etc. R. R. Co. 50 Miss. 677 ; Dean v. MeUard, 15 C. B. (N. S.) 19 ; Linton v. Blakeney, etc. Society, 3 H. & C. 853 ; Templeton v. Home, 82 IlL 491 ; Harris v. Townishend, 56 Vt 716 ; Mechanics' and Farmers' B'k, 31 Conn. 63 ; Treasurer v. Wygall, 46 Tex. 447 ; Stocking v. Himt 3 Denio, 274; Supervisors v. Briggs, id. 173; Matter of Palmer, 40 N. Y. 561 ; Dis- mukes v. Stokes, 41 Miss. 431 ; Mas- tronada v. State, 60 JVIiss. 86. See New- som V. Greenwood, 4 Oregon, 119. 6 Herbert v. Fasten, 43 Ala, 547 Stephenson v. Osborne, 41 Miss. 119 Jom-neay v. Gibson, 56 Pa, St 57, 60 Fogg V. Holcomb, 64 Iowa, 621. ■^ Lauglilin v. Commonwealth, 13 Bush, 261. 8 Cooley's Const Lim. *371 et seq. SDulany's Lessee v. Tilgliman, 6 G. & J. 461 ; Andrews v. RusseU, 7 Blackf. 474; Parmelee v. Lawrence, 48 111 331 ; Webber v. Howe, 36 Mich. 150 ; Journeay v. Gibson, 56 Pa. St. 57 : Carpenter v. Pennsylvania, 17 How. 456; Estate of Sticknoth, 7 Nev. 223 ; Dentzel v. Waldie, 30 CaL 138. 10 Gibson v. Hibbard, 13 Mich. 215 ; Ewell V. Daggs, 108 U. S. 143 ; SjTa- cuse Bank v. Davis, 16 Barb. 188; Harris v. Rutledge, 19 Iowa, 388; State V. Norwood, 12 Md. 195 ; State V. Newark, 25 N. J. L. 399 ; Lewis v. McElvain, 16 Oliio, 347; Savmgs Bank v. Allen, 28 Conn. 97 : Cooley's Const Lim. *374 et seq. See New York, etc. R. R Co. v. Van Horn, 5": N. Y. 473. EEPEALING ACTS. 221 not unlawful is prohibited, a repeal of tlie statute will restore the remedy.^ An act which forbids a corporation to set up the defense of usury repeals as to such corporation the la^vs against usury, and a repeal of such laws will cut off the defense of usury upon contracts previously made.^ If there has been a change or alteration or repeal of the law applicable to the rights of the parties, after the rendition of the original judg- ment, and pending an appeal, the case must be heard and de- cided in the appellate court, according to the existing law.^ § 165. Powers derived wholly from a statute are extin- guished by its repeal. AU acts done under a statute w^hilst it was in force are good ; but if a proceeding is in progress, in fie?^, when the statute is repealed, and the powders it confers cease, it fails, for it cannot be pursued.'' "Where a jurisdiction 1 Johnson v. Meeker, 1 Wis. 436. 2 Ewell V. Daggs, 108 U. S. 143. 3 Musgrove v. Vicksburg, etc. R R. Co. 50 ]\Iiss. 677 ; Lewis v. Foster, 1 N. H. 61 ; Speckert v. Louisville, 78 Ky. 287; State v. Daley, 29 Conn. 272; AtweU v. Grant, 11 Md. 104; Keller v. State, 12 id. 335 ; Price v. Nesbitt, 29 id. 263 ; Mayor of Annap- olis V. State, 30 id. 112; Wade v. St Mary's School, 43 id. 178 ; Hartung v. People, 22 N. Y. 95 ; United States v. The Peggy, 1 Cr. 103 ; Sheppard v. State, 1 Tex. App. 522. * Bac. Abr. tit Statute, D. ; Road in Hatfield Township, 4 Yeates, 392; Veats V. Danbury, 37 Conn. 412; Stoever v. ImmeU, 1 Watts, 258 ; Com- monwealth V. Beatty, id, 382 ; Gille- hind V. Schuyler, 9 Kan. 569 ; Church V. Rhodes, 6 How. Pr. 281 ; Smith v. Arapahoe Dist Ct 4 Colo. 235 ; State v. Brookover, 22 W. Va. 214 ; New Lon- don Northern R. R. Co. v. Boston, etc. R R Co. 102 Mass. 389 ; Sprmgfield V. Commissionex's, 6 Pick. 501 ; McRee V. M'Lemore, 8 Heisk. 440. See Downs v. Town of Himtington, 35 Conn, 588 ; Macnawhoc Plantation v. Thompson, 86 Ma 365 ; Illmois, etc. Canal v. Clii- cago, 14 nL 334 ; Uwclilan Township Road, 30 Pa, St 156 ; Himt v. Jen- nings, 5 Blackf. 195; WiUiams v. Middlesex, 4 Met 76 ; Stephenson v. Doe, 8 Blackf. 508 ; James v. Dubois, 16 N. J. L. 285 ; Petition of Fenelon, 7 Pa. St 173 ; South CaroUna v. Gail- lard, 101 U. S. 433 ; Hampton v. Com- monwealth, 19 Pa, St 329 ; Common- wealth V. Standard Oil Co. 101 Pa. St 119 ; Hohnes t. French, 68 Me. 525 ; Wame v. Beresf ord, 2 M. & W. 848 ; Bucher v. Henderson, L. R 3 Q. B. 335 ; Todd v. Landry, 5 Martin, 459 ; S. C. 12 Am. Dec. 479. The city of Evansville passed an ordinance for the improvement of streets pursuant to a power given in the charter. It was held that the subse- quent repeal of the section conferring the power did not affect the ordi- nance. Chamberlain v. Evansville, 77 Ind. 542 ; Dashiell v. Baltimore, 45 Md. 615. In March, 1875, a trader committed an act of bankruptcy, upon which a commission might have issued under tlie statutes then in force. On May 1st these statutes were repealed. On May 2d tlie repealing act was repealed and the former acts thereby revived. In July a commis- sion of bankruptcy issued. Held, it 222 REPEALING ACTS. conferred by statute is prohibited by a subsequent statute, or the law conferring it is repealed, the jurisdiction ceases and causes pending at the time fail, and no costs are recoverable by either party unless saved by provisions of the repealing law.^ If pur- sued the proceedings will be void,'- but they may subsequently be validated in certain cases, as when intended to estabhsh a public rather than a private charge or liability.^ Jurisdiction may be taken away by repeal of the statutes conferring it by necessary implication as weU as by express words.* An ap- plication was made to the court of quarter sessions for the dis- charge of a prisoner under an insolvent debtor act, and every requisite was complied with by the debtor ; but the court vol- untarily, and without his application, adjourned the matter to a subsequent day, before which the act was repealed. On motion for a mandamus to the sessions to proceed to dis- charge him the court of king's bench refused to grant it, as no act of jurisdiction could be done by the sessions after the re- peal of the statute, though the proceeding had begun before.* was supported by the act of bank- ruptcy in March. Lord Tenterden : " We find certain statutes in force in March, 1825, when the act of bank- ruptcy was committed, and we find the same statutes in force in July when the commission issued. It ap- pears to me that the case is not af- fected by anything that passed in the interval The 5 Geo. IV., ch. 98, hav- ing been repealed, is to be considered, as far as this question is concerned, as if it had never existed." PhiUips V. Hopwood, 10 B. & C. 39. 1 HoUingsworth v. Virginia, 3 DalL 378 : Merchants' Ins. Co. v. Ritchie, 5 Wall. 541 ; United States v. Boisdore, 8 How. 113 ; Grant v. Grant, 13 S. C. 29 ; S. C. 32 Am. Rep. 506 ; McNulty V. Batty, 10 How. 72 ; Ex parte McCar- dle, 7 WaU. 506; Assessors v. Os- bomes, 9 id. 567 ; United States v. Ty- nen, 11 id. 88 ; Baltimore, etc. R. R. Co. V. Grant, 98 U. S. 398 ; Rice v. Wright, 46 Miss. 679 ; Lamb v. Schot- tler, 54 CaL 319 ; Smith v. Arapahoe Dist. Ct. 4 Colo. 235; Wade v. St Maiy's Industrial School. 43 Md. 178; Saco v. Gurney, 34 Me. 14; Miller's Case, 1 W. Black, 451 ; Yea- ton V. United States, 5 Cr. 281 ; Spring- field V. Commissioners of H. 6 Pick. 501 ; Commonwealth v. Marshall, 11 id. 350 ; Commonwealth v. Kjmball, 21 Pick. 373 ; Thayer v. Seavey, 11 Me. 284 ; Cummings v. Chandler, 26 Ma 453. 2 North Canal Street, 10 Watts, 351 Chm-ch V. Rhodes, 6 How. Pr. 281 Morgan v. Thorne, 7 M. & W. 400 Petition v. Fenelon, 7 Pa. St. 173 Bank of Hamilton v. Dudley, 2 Pet 492. * In re Pennsylvania HaU, 5 Pa. St 204. See Cooley's Const Lun. *371 ; Plantation No. 9 v. Bean, 36 Me. 359. 4 Cates V. Knight 3 T. R. 442 ; Crisp V. Bunbviry, 8 Bing. 394 ; New Lon- don N. R. R. Co. V. Boston, etc. R R Co. 102 Mass. 386. 5 Rex V. Justices of London, 3 Burr. 1456 ; Miller's Case, 1 W. Black. 451. EEPEALING ACTS. 223 §166. Effect of repeal of a penal statute. — The repeal or expiration of a statute imposing a penalty or forfeiture will prevent any prosecution, trial or judgment for any offense committed against it while it was in force, unless the contrary is provided in the same or some other existing statute.' "Where a penal statute is so modified as to exempt a class from its operation, violations by such exempted class before such modification took effect cannot be prosecuted afterwards.^ If a penal statute is repealed pending an appeal and before the final action of the ap])ellate court, it will prevent an affirm- ance of a conviction, and the prosecution must be dismissed or the judgment reversed.* A final judgment before repeal is not affected by it.* The repeal operates as a pardon of all 1 Yeaton v. United States, 5 Cr. 281 ; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Pattee, 13 Cush. 501 ; Heakl v. State, 3G Me. 62 ; Mayers v. State, 7 Ark. 68 ; Roberts v. State, 2 Overt. 423 ; Bennett v. State, 2 Yerg. 472 ; Brothers v. State, 2 Cold. 201 ; Higginbotham v. State, 19 Fla. 557 ; Leftwiche's Case, 5 Rand. 657 ; Scutt's Case, 2 Va. Cas. 54 ; Bank of St Mary's v. State, 12 Ga. 475 ; State V. Nutt, Phil. L. 20 ; Carlisle v. State, 42 Ala. 523 ; Governor v. Howard, 1 Mm-phy, 465 ; State v. Banks, 12 Rich. 609 ; Commonwealth v. Cain, 14 Bush, 525 ; State v. Addmgton, 2 Bailey, 516 ; United States v. Finlay, 1 Abb. (U. S.) 364 ; The Irresistible, 7 Wheat. 551 ; Duane's Case, 1 Bum. 601 ; Bay City, etc. R. R. Co. v. Austin, 21 Mich. 390 ; United States v. Six Fermenting Tubs, 1 Abb. (U. S.) 268; Mastronada v. State, 60 Miss. 86 ; Mayor, etc. v. State, 30 Md. 112 ; Commonwealth v. Welch, 2 Dana, 330 ; Harrison v. AUen, Wythe (Va.), 291 ; Stoever v. ImmeU, 1 Watts, 258. 2 Commonwealth v. Welch, 2 Dana, 330. 3 State V. King, 12 La, Ann. 593 ; Mouras v. The A. C. Brewer, 17 id. 82 ; KeUer v. State, 12 Md. 322 ; Lewis V, Foster, 1 N. H. 61; Speckert v. Louisville, 78 Ky. 287; Common- wealth v. Sherman, 85 id. 686. 4 People V. Hobson, 48 Mich. 27; State V. Addington, 2 Bailey, 516. See Aaron v. State, 40 Ala. 307 ; Rex V. Davis, 1 Leach, C. C. 271 ; Rex v. Heath, 2 East. P. C. 609 ; Rex v. Mc- Keuzie, R. & R. C. C. 429 ; Leschi v. Territory, 1 Wash. T'y, 13 ; Saco v. Gurney, 34 Me. 14 ; Gaul v. Brown, 53 Me. 496 ; Welch v. Wadsworth, 30 Conn. 149 ; Heald v. State, 36 Me. 62 ; Broughton v. Branch Bank, 17 Ala. 828; Taylor v. State, 7 Blackf. 93; State V. Loyd, 2 Ind. 659 ; Thompson V. Bassett, 5 id. 535 ; State v. O'Con- ner, 13 La. Ann. 486 ; State v. Cress, 4 Jones (N. C), 421; State v. Van Sti'alen, 45 Wis. 437 ; State v. Camp- beU, 44 id. 529 ; State v. Lagersoll, 17 Wis. 631 ; Fisher v. N. Y. etc. R R. Co. 46 N. Y. 644 ; Calkms v. State, 14 Ohio St. 222 ; Wood v. Kennedy, 19 Ind. 68 ; State v. Fletcher, 1 R. I. 193 ; Greer v. State, 22 Tex. 588 ; Town of Belvidere v. Warren R R Co., 34 N. J. L. 193 ; S. C. m error, 35 id. 584 ; Snell V. CampbeU, 24 Fed. Rep. 880 ; Mulkey v. State, 16 Tex. App. 53; State V. Long, 78 N. C. 571 ; Hubbard V. State. 2 Tex. App. 506; Montgom- ery V. State, id. 618 ; Rood v. Chicago, etc. R'y Co. 43 Wis. 146; State v. 224 EEPEALING ACTS. offenses against it ^ and a bar to any subsequent prosecution.' There can be no legal conviction for an offen'se unless the act be contrary to law at the time it is committed; nor can there be judgment unless the law is in force at the time of the indict- ment and judgment." Where a statute imposes a penalty for an injurious act done to the rights of others, such penalty to be recovered by the party aggrieved ; it is in the nature of a satisfaction to him, as well as a punishment of the offender. In such a case, the plaintiff is said to have acquired a vested right to the penalty as soon as the offense is committed, and a general repeal of the statute after action accrued does not affect that right.* An ordinance passed pursuant to a power in a city charter is not invalidated by repeal of the provision granting the power.* While a convict in the state prison was Hable to additional punishment under a statute in force at the time of sentence and commitment, in consequence of having been twice convicted and sentenced to confinement, a statute was passed so modi- fying the previous statute that a convict would be liable to additional punishment only in case he had been twice dis- charged from imprisonment. Before the prisoner was released fi'om confinement under his second sentence the modifying statute was repealed. It was held that such statute operated to suspend, so long as it remained in force, but not to discharge, the prisoner's liabihty to additional punishment.^ § 167. Saving clauses. — The effect of repeal upon inchoate rights, upon offenses and upon incomplete proceedings may Gumber, 37 Wis. 298 ; Union Iron * President, etc. of L. v. HaiTison, Co. V. Pierce, 4 Biss. 327 ; State v. 9 B. & C. 524 ; Company of Cutlers Brewer, 22 La. Ann. 273. v. Ruslin, Skinner, 363 ; Palmer v. 1 Wharton v. State, 5 Cold. 1. Conly, 4 Denio, 374 ; S. C. 2 N. Y. 2 Howard v. State, 5 Ind. 183 ; Grif- 182 ; Thompson v. Howe, 46 Barb, fin V. State, 39 Ala. 541 ; Genkinger 287 ; Harris v. Townshend, 56 Vt 716 ; V. Commonwealth, 32 Pa. St 99 ; Wall Graham v. Cliicago, etc. R. R. Co. 53 V. State, 18 Tex. 682. Wis. 473 ; Grey v. Mobile Trade Co. 3 Commonwealth v. Marshall, 11 55 Ala, 387. See Union Iron Co. v. Pick. 350 ; Commonwealth v. Mc- Pierce, 4 Biss. 327 ; Bay City, etc. R Donough, 13 AUen, 581 ; Common- R. Co. v. Austin, 21 jVIich. 390, wealth V. Kimball, 21 Pick. 373 ; Har- 5 Chamberlain v. Evansville, 77 Ind. tung V. People, 23 N. Y. 95 ; Pitman 542. V. Commonwealth, 2 Rob. (Va.) 813 ; ^ Commonwealth v. Getchell, 16 State V. Daley, 29 Conn. 272. Pick. 452. See Commonwealth v. Mott, 21 Pick. 492. KEPEALING ACTS. 225 be avoided by a saving clause providing that it shall not affect such rights, prosecutions for such offenses, or such pro- ceedingSji or by a general statute for that purpose. Such general statutes have been enacted in nearly all of the states as well as by congress.^ The provision in the Iowa statute may be regarded as a typical one of this sort : ^ " The repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under and by virtue of the statute repealed." A tax voted and levied was held to be saved by that provision, though the statute under which the tax was so levied was repealed before the collection of the tax.* Such a general provision has the same effect as a sa\dng clause in the repealing statute.^ A saving clause is intended to save something which would otherwise be lost." An act granting review after judgment was repealed " saving all actions pending ; " this saving was held to mean a saving of something out of that which was repealed, and therefore to save pending petitions for review.'^ It may em- iPeoplev. GUI, 7Cal. 356. 2 See United States v. Reisinger, 128 U. S. 398. 3 Iowa Code (1888), § 49, par. 1. 4 Tobin V. Hartshorn, 69 Iowa, 648. 5 Cedar Rapids, etc. R'y Co. v. Carroll Co. 41 Iowa, 153 ; Dillon v. Linder, 36 Wis. 344 ; Bui-liugtou v. Biu'lington, etc. R'y Co. 41 Iowa, 134; Bartiiiflf V. Remey, 15 id. 257 ; Cliicago, etc. R. R Co. V. Hartshorn, 30 Fed Rep. 541 ; United States v. Barr, 4 Sawy. 254 ; Garland v. Hickey, 75 Wis. 178 ; Har- ris V. Townshend, 56 Vt 716 ; Jones V. State, 1 Iowa, 395 ; Volmer v. State, 34 Ark. 487 ; Sanders v. State, 77 Ind. 227; Tempe v. State, 40 Ala. 350; State V. Ross, 49 Mo. 416; Treat v. Strickland, 23 Ma 234 ; Hine v. Pome- roy, 39 Vt 211 ; State v. Boyle, 10 Kan. 113; State v. Crawford, 11 id. S3; Ballin v. Ferst, 55 Ga, 546; McCuen v. State, 19 Ark. 634 ; Peo- ple v. Sloan, 2 Utah, 326 ; McCalmeut V. State, 77 Ind. 250 ; Fowle v. Kirk- 15 land, 18 Pick. 299 ; Barton v. Gads- den, 79 Ala. 495 ; Grace v. Donovan, 12 aiinn. 580 ; Pacific, etc. TeL Co. v. Commonwealth, 66 Pa. St 70 ; Mon- geon V. People, 55 N. Y. 613. 6 Colby V. Dennis, 36 'Me. 9, 12. ^ IcL When a real action was com- menced a statute was in force which provided that if either of the de- mandants should die dm-ing the pendency of a real action his death should be suggested on the record, and that the survivor might amend his declaration by describing liis in- terest in the premises and proceed in the cause to final judgment Dur- ing the pendency of the action the statutes were revised so as to repeal that provision, but the revision con- tained these saving clauses : That all real actions which shaU be pending " shall proceed and be conducted to final judgment or other final dis- posal, in like manner as if this chaj^- ter had never been enacted ; " in an- 226 BEFEALING ACTS. brace an inchoate right as well as the remedy for its enforce- ment when it matures.^ A saving, that actions pending at the time of the repeal or passage of an act shall not be af- fected thereby, does not include proceedings in insolvency,^ nor a petition pending before county commissioners for the location of a highway.* A municipal appropriation within the restrictions of the charter, -vvhen made, is not affected by a subsequent statute so changing the limit that such appropria- tion would exceed it, where the new statute contains a pro- vision that " nothing in this act shall in any measure affect or impair any proceeding had and done under the acts to which this is an amendment, or any rights or privileges acquu'ed under said acts." * A revenue act provided that lands sold for the non-paj^nent of taxes could be redeemed within a certain time upon the payment of a fixed penalty. The act was repealed by a sub- sequent one, changing the time of redemption and the amount of the penalty, but providing that the former act should re- main in force for the collection of taxes levied thereunder. It w^s held that an act in force for the purpose of collection was in force for the purpose of redemption.^ The lien of a judg- ment in respect to duration was held saved by the words " no rights vested or liabilities incurred at that time shall be lost or discharged." The judgment lien is incident to a judgment, a liability incurred, and therefore saved from the effect of the other section a saving to all persons, the intention of the legislature to pre- of " aU actions and causes of action serve not only actions which, tech- Avhich shall have accrued in virtue of nically and properly speaking, ac- or founded on any of said repealed crued or had been founded on the acts, in the same manner as if such statute, but those also which were acts had never been repealed." It was preserved and secured to a party by contended that that action did not ac- the repealed act" Treat v. Sti-ick- crue in virtue of the repealed act, nor land, 23 Me. 234. was founded on it. Shepley, J., said : i Cochran v. Taylor, 13 Ohio St. " When the language is considered in 382. connection with [the other saving 2 Belfast v. Fogler, 71 Me. 403. clause] and with the recollection that 3 "Webster v. County Commission- tlie general pui-pose of the revision ers, G3 Me. 27 ; Downs v. Town of was to embody in a more systematic Himtington, 35 Conn. 588. form the existing laws, with certain * Beatty, Auditor, v. People, 6 Colo. modifications and new provisions, 538. without destroying existing rights, = WoKe v. Henderson, 28 Ark. 304. there can be httle doubt that it was REPEALING ACT8. 227 repealing statute.^ A saving of pending prosecutions does not include a case where the prosecution has closed and sen- tence has been pronounced ; ^ nor cases commenced afterwards.^ Under a saving of pending prosecutions and offenses thereto- fore committed, an indictment filed after the repeal took effect was sustained.'* Such a provision in a repealing act relates solely to the acts repealed by it,' unless a different intention is deducible from the language of the saving clause. A pro- vision in the repealing law to the effect " that no remedy to which a creditor is entitled under the provisions of the laws heretofore in force shall be impaired by this act " does not apply to creditors suing for breaches of the bond occurring since the enactment of the repealing statute.^ The effect of the repeal of a statute and its re-enactment in the same words by a statute which takes effect at the same time with the re- pealing act is to continue such statute in uninterrupted opera- tion,^ The rule is the same as to criminal offenses.^ § 168. Revival l>y repeal of repealing statute. — The com- mon-law rule is well settled that the simple repeal, suspension or expiration of a repeahng statute revives the repealed statute, whether such repeal was express or only by implication.* 1 Dearborn v. Patton, 3 Oregon, Barb. 456 ; Wheeler v. Roberts, 7 Cow. 420. 536 ; Van Denbui'gh v. President, etc. 2 Aaron v. State, 40 Ala. 307. See 66 N. Y. 1 ; Van Valkenburgh v. Tor- Luke T. Calhoun Co. 56 Ala, 415. rey, 7 Cow. 252 ; People v. Tmstees, 3 Knox V. Baldwin, 80 N. Y. 610. 26 Hun, 488 ; Conunonwealth t. Chur- 4 Sanders v. State, 77 Ind. 227. chill, 2 Met 118; Hastings v. Aiken, 5 Mongeon v. People, 55 N. Y. 613. 1 Gray, 163 ; McMillan v. Bellows, 37 6 Collins V. WaiTen, 63 Tex. 311. Hun, 214 ; Doe v. Naylor, 2 Blackf. ■^ Laude v. Chicago, etc. R. R Co. 33 32 ; Harris v. Supervisors, 33 Hun,^ Wis, 640 ; Middleton v. N. J. etc. R R. 279 ; Zimmerman v, Perkiomen, Co. 26 N. J. Eq. 269 ; DashieU v. etc. Co. 81* Pa. St 96. It has been Mayor, etc. 45 Md. 615 ; Capron v. held that a statute repealed by two Sti'out, 11 Nev, 304 ; United Hebrew acts is not revived by repeal of one of B. Asso. V. Bensliimol, 130 Mass. 325 ; them. Dyer v. State, Meigs, 237 ; Knoup V. Bank, 1 Ohio St 603 ; Cof- Teter v. Clayton, 71 Ind. 237 ; Poor fin V, Rich, 45 Me, 507 ; Smith v. Directors v. R. R Co. 7 Watts & Estes, 46 Me. 158. S. 236; Zimmerman v. Perkiomen, 8 State V. Gumber, 37 Wis. 298; 81* Pa, St 96; Longlois v, Longlois, State V, Wish, 15 Neb. 448 ; ante, 48 Ind. 60 ; Waugh v. Riley, 68 id. § 134 ; McMullen v. Guest 6 Tex. 278 ; 482 ; Niblack, Athn'r, v. Goodman, G7 Ilirschburg v. People, 6 Colo. 145. id. 174 ; Brinkley v. Swicegood, 65 N. 9 Gale V. Mead, 4 HiE, 109 ; Brown v. C. 626 ; Ilan-ison v. Walker, 1 Ga. 32 ; Barry, 3 DalL 365 ; People v.Davis, 61 People v. Wintermute, 1 Dak. 63 ; 22S KEPEAIJNG ACTS. But it is otherwise, it seems, where the constitution provides that no law shall be revived unless the new act contains the law revived.^ To repeal a statute will revive the common law.^ When a statute restraining a man's natural rights, or his use of his property, is repealed, he is restored to those rights, as before the law was passed.^ This rule of revival was held to apply to the vote of a tax by taxable inhabitants. This vote was restored to effect by repealing a rescinding vote.^ Where a statute professes to repeal absolutely a prior law and substi- tutes other provisions on the same subject which are lunited to continue only till a certain time, the prior law does not revive after the repeahng statute is spent, unless the intention of the legislature to that effect is expressed.^ The legislature may make the revival of an act depend upon a future event to be made known by executive proclamation.^ Where an act is re- vived by a subsequent law the legislature must be understood to give it, from the time of its revival, precisely that force and effect which it had at the moment Avhen it expired.' In- complete proceedings which were arrested and rendered void by repeal of the statute under which they were instituted will not be restored to life by a revival thereof.^ A forfeit- ure for a prohibited act was given by statute to any one who should sue for it. Afterwards the exclusive right to sue for it was given to overseers of the poor. The repeal of this act was held to operate only prospectively and gave no right to any other than the overseers for forfeitures incm'red during the operation of the second act.^ Where the repeal of a repeahng statute is for the purpose Janes v. Buzzard, Hempst. 259; Wit- 3 James v. Dubois, 16 N. J. L. 285. kouski V. Witkouski, 16 La. Ann. 232 ; * Gale v. Mead, 4 HiU, 109. TaUamon v. Cardenas, 14 id. 509 ; 5 Warren v. Windle, 3 East, 205. Weakley v. Pearce, 5 Heisk. 401 ; ^ Cargo of Brig Am-ora v. United Hightower v. Wells, 6 Yerg. 249. See States, 7 Cr. 382. Soutliwark Bank v. Commonwealtli, '^ Id. See Sliipman v. Henbest, 4 T. 26 Pa. St. 446. R. 109 ; Winter v. Dickerson, 42 Ala. 1 Renter v. Bauer, 3 Kan. 505. 92. '^ Matliewson v. Phoenix Iron » Commonwealtli v. Leech, 24 Pa. Foundry, 20 Fed. Rep. 281 ; State v. St. 55. Rollins, 8 N, H. 550 ; Gray v. Obear, 9 Van Valkenburgh v. Torrey, 7 54 Ga. 231 ; Lowenberg v. People, 27 Cow. 252. N. Y. 336. See Boismare v. His Cred- itors, 8 La. 315. REPEALING ACTS. 229' of substituting other provisions in its place, the implication of an intention to revive the repealed statute cannot arise, and especially if the substituted provision is repugnant to the original provision, or is not properly cumulative to it.^ So the repeal of a statute which was a revision of and a substitute for a former act to the same effect which was therefore re- pealed cannot be deemed to revive the previous act ; for this would be plainly contrary to the intention of the legisluture.- And where a statutory provision has been repealed without change in the amendatory act and the latter is afterwards re- pealed, the original provision is repealed also.* Statutes have been very generally adopted in the states abolishing the rule of implied revival as a consequence of the repeal of the re- pealing statute.^ In State v. Slaughter ^ the court construed the effect of a general provision that " where any law repealing any former law, clause or provision shall itself be repealed, it shall not be considered to revive such former law, clause or provision, unless it be expressly otherwise provided." It was held that if the section of the marriage act under consideration re- pealed or superseded the common law on the subject of in- cestuous marriages, its repeal would not revive the common law. Where revival requires re-enactment, a legislative decla- ration that an act mentioned shall not repeal the provision wiU not suffice.^ Where a general act applicable to all the counties of the state is repealed as to a particular county, and a still later act amends a section so partially repealed, the amend- ment will not be deemed to affect the excluded county.^ 1 Common-wealth v. Churchill, 2 pie v. Supervisors, 67 N. Y. 109 ; Har- Met 118 ; Bouton v. Eoyce, 10 Phila, ris v. Supervisors, 83 Hun, 279. 559; Wai-ren v. WincUe, 3 East, ^See Milne v. Huber, 8 McLean, 205. 212. 2 Butler V. Russel, 3 CUff. 251. 5 70 Mo. 484 3 Moody v. Seaman, 46 Mch. 74 ; 6 state v. Conkling, 19 Cal 501. Goodno V. Oshkosh, 31 Wis. 127 ; Peo- ' People v. Tyler, 36 Cal. 522. CHAPTER IX. STATUTES VOID IN PAET. ^ 169. Statutes may be void in part and valid in part. 171. Requisite separableness of void part. 174 Main purpose being unconsti- tutional, whole act void. § 176. Where void part inducement to residue. 178. VaUd part must be complete and accord with legislative intent § 169. Statutes may Ibe Toid in part and good in part. — In this country legislative bodies have not an unlimited power of legislation. Constitutions exist which contain the supreme law. Statutes which contravene their provisions are void. Courts have power, and they are charged with the judicial duty, to support the constitutions under which they act against legislative encroachments. They will declare void acts which conflict with paramount laws.^ "Where a part only of a stat- ute is unconstitutional, and therefore void, the remainder may still have effect under certain conditions. The court is not warranted in declaring the whole statute void unless all the provisions are connected in subject-matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other. The constitutional and unconstitutional provisions may even be expressed in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point or test is not whether they are contained in the same section, for the distribution into sections is purely arti- ficial, but whether they are essentially and inseparably con- nected in substance.^ 1 Scudder v. Trenton Delaware Piscataqua Bridge v. N. H. Bridge, 7 Falls Co. 1 N. J. Eq. 694 ; State v. N. H. 35 ; Pierce v. Kimball, 9 Me. 59 ; Parkhurst, 9 N. J. L. 427 ; Bank of Goshen v. Stonington, 4 Conn- 225 ; Hamilton v. Dudley's Lessee, 2 Pet. Hill v. Sunderland, 3 Vt. 507 ; Holden 492 ; Ogden v. Saimders, 12 Wheat, v. James, 11 Mass. 396. 213 ; Emerick v. Harris, 1 Bin. 416 ; 2 Commonwealth v. Hatchings, 5 STATUTES VOID IN PART. 231 If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so insepa- rably connected that they cannot be divided without defeating the object of the statute.^ And the converse is true. The vicious part must be distinct and separable, and, when stricken out, enough must remain to be a complete act, capable of being carried into effect, and sufficient to accomplish the object of the law as passed, in accordance with the intention of the leg- islature. It should be confined to the same limits and still subject to the intended qualifications.- Gray, 482; Mobile, etc. E. R Co. v. State, 29 Ala. 573; South & North Ala. R. R. Co. V. Morris, 65 Ala. 193 ; State V. Brown, 19 Fla. 563 ; Morrison V. State, 40 Ark. 448 ; State v. WUson, 12 Lea, 246; TiUmau v. Cocke, 9 Baxt. 429 ; Johnson v. Winslow, 63 N. C. 552 ; Harlan v. Sigler, Morris, 39 ; State v. Marsh, 37 Ark. 356 ; State V. Kautler, 33 Minn. 69 ; S. C. 6 Am. & Eng. Corp. Cas. 169; American Print AVorks v. Lawi-ence, 23 N. J. L. 590 ; Lea v. Bumm, 83 Pa. St 237; Bittle v. Stuart, 34 Ark. 224; National Bank v. Barber, 24 Kan. 534 ; Darragh v. McKim, 2 Hun, 337 ; Berry V. R. R. Co. 41 Md. 446; Fleisclmer V. Chadwick, 5 Oregon, 152 ; Village of Deposit V. Vail, 5 Hun, 310 ; State V. Clarke, 54 Mo. 17 ; Tm-ner v. Board of Commissioners, 27 Kan. 314 ; State T. Wheeler, 25 Conn. 290 ; People ex rel. V. Kenney, 96 N. Y. 294 ; Dmyeo V. Mayor, etc. id. 477 ; IMatter of Met Gas Light Co. 85 id. 527 ; Matter of Sackett etc. Sti-eets, 74 id. 95 ; Mat- ter of Ryers, 72 id. 1 ; Tiernan v. Rin- ker, 102 U. S. 123 ; PoweU v. State, 69 Ala. 10 ; State ex reL v. Tuttle, 53 Wis. 45; State v. Newton, 59 Ind. 173 ; Ti-ipp V. Overocker, 7 Colo. 72 ; Gunnison Co. Com. v. Owen, id. 467 ; People V. Jobs, id. 475; People v. Hall, 8 id. 485 ; Cole v. Commission- ers, 78 Me. 532 ; Re Groff, 21 Neb. 647; Frazer, Ex parte, 54 CaL 94. Li Curtis v. Leavitt 15 N. Y. 96, Comstock, J., said: "A docti'ine which is expressed in the words ' void in part, void in toto,^ has often found its way into books and judi- cial opinions as descriptive of the effect which a statute may have upon deeds and other insti'uments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indicate. On the conti'ary, the general ride is that if the good be mixed with the bad it shall nevertheless stand, ijrovided a separation can be made. The excep- tions are, first, where a statute by its express terms declares tlie whole deed or contract void on account of some provision wliich is imlawfvd; and second, where there is some all- pervading vice, such as fraud, for ex- ample, wliich is condemned by the common law, and avoids all parts of tlie ti'ansaction because all ai-e alike infectecL" 1 Dmyee v. Mayor, etc. 96 N. Y. 477 ; Re Groff, 21 Neb. 647. 2Meshmeier v. State, 11 Lid. 485; Burkholtz v. State, 16 Lea, 71 : Bittle V. Stuart 34 Ai-k. 224; Allen v. Louisiana, 103 U. S. 80; People v. Porter, 90 N. Y. 68. 232 STATUTES VOID IN PAKT. § 170. It may be laid down generally as a sound proposition that one part of a statute cannot be declared void and leave any other part in force, unless the statute is so composite, con- sisting of such separable parts, that, when the void part is eliminated, another living, tangible part remains, capable by its own terms of being carried into effect, consistently with the intent of the legislature which enacted it in connection with the void part. If it is obvious that the legislature did not intend that any part should have effect unless the whole, including the part held void, should operate, then holding a part void invalidates the entire statute. If a statute attempts to accomplish two or more objects, or to deal with two or more independent subjects, and the provisions as to one are void, it may stiU be in every respect complete and vaUd as to any other.^ Illustrations of this proposition are furnished by nu- merous cases where acts are violative of the constitutional in- junction that an act shall relate to but one subject, which shaU. be stated in the title. If the act embraces more than one sub- ject, and one is stated in the title, it is valid as to that subject if complete in itself, but void as to any other. The ehmination of the latter leaves a constitutional act, where there is no inter- dependence between the subjects.^ If the matter of the act foreign to the subject stated in the title is divisible from that which is clearly within the title, and the latter can stand and have effect without the former, then only so much of the act as is not embraced in the title is void.' 1 People V. Cooper, 83 IlL 585; State v. Exnicios, 33 id. 253; State Towles, Ex pai-te, 48 Tex. 413 ; State v. Crowley, 33 La. Ann. 782 ; State T. Clinton, 28 La, Ann. 201 ; Wells, v. Dalon, 35 La. Ann. 1141 ; Dorsey's Ex parte, 21 Fla. 280 ; Hinze v. Peo- Appeal, 72 Pa. St. 192 ; Thomason, Ex pie, 92 lU. 406 ; Lombard v. Antioch parte, 16 Neb. 238 ; Davis v. State, 7 College, 60 Wis. 459 ; Sparrow v. Md. 151. Commissioner of Land Office, 56 3 Unity v. Burrage, 103 U. S. 447 ; Mich. 567 ; People v. Luby, id. 551. Moore, Ex parte, 62 Ala. 471 ; Walker 2 People V. Hall, 8 Colo. 485 ; State v. State, 49 id. 329 ; Lowndes County V. Hm-ds, 19 Neb. 317 ; Wliited v. v. Hunter, 49 id. 507 ; Shields v. Ben- Lewis, 25 La. Ann. 568 ; Gibson v. nett, 8 W. Va. 74 ; Matter of Sackett Belcher, 1 Bush, 145 ; Jones v. Thomp- St. 74 N. Y. 95 ; Mewherter v. Price, son, 12 id. 394; Fuqua v. Mullen, 13 11 Lid. 199; Bucky v. Willard, 16 Bush, 467 ; Harris v. Supervisors, 33 Fla. 330 ; State v. Wilson, 7 Ind. 516 ; Hun, 279 ; Mississippi, etc. Co. v. Packet Co. v. Keokuk, 95 U. S. 80 ; Prince, 34 ]\Iinn. 79 ; Mimicipality IMatter of De Vaucene, 31 How. Pr. No. 3 V. IMichoud, 6 La. Ann. 605 ; 341 ; Harris v. Supervisors, 33 Him, STATUTES VOID IN PABT. 233^ A corporate charter is not entirely vitiated because it pro- vides unconstitutionally for the exercise of the power of emi- nent domain for certain purposes,^ or unconstitutionally re- stricts the rio-ht to vote for officers.- Parts relatinfj to mere detail incident to the main purpose of an act may be stricken, out without prejudice to the remainder of it, Avhich contains valid provisions amply sufficient to enable the corporation to fully perform all its functions, unless vital to the main pur- pose as means or as compensation.' Where a new offense is created and procedure for punishment provided, if the latter is invalid, and there are general laws under which prosecutions- for such an offense could be conducted, the invalidity of the part relating to the procedure will not affect the part creating the offense.* An act redistricting a county for supervisors was held valid, though it unconstitutionally provided that incum- bents should hold over beyond their election terms until they could be immediately succeeded by supervisors elected under the act.^ The powers of a judicial officer are so separable and independent that a grant of them may be void as to one part or subject and good as to others.** An act providing for im- pounding cattle taken damage feasant^ and for detention of them until costs and damages are paid, may be sustained^ though it include a void provision for a summary sale of such 279 ; Rader v. Township of Union, 39 ^ State ex rel. v. Tuttle, 53 Wis. 45 \ N. J. L. 509 ; ColweU v. CliainberUn, People ex reL v. Kenney, 96 N. Y. 43 id. 387 ; Matter of Van Antwerp, 294. 56 N. Y. 261 ; People ex rel. v. Briggs, 3 id. ; piiiUips t. Mayor, etc. 1 Hilt. 50 id. 553 ; Fleischner v. Chadwick, 5 483 ; State v. Elizabeth, 40 IS!". J. L. Oreg. 153; Matter of Paul, 94 N. Y. 278; Wakeley v. Mohr, 15 Wis. 609; 497 ; Dewhm-st v. City of Allegheny, State v. Eosenstock, 11 Nev. 128 ; Rob- 95 Pa, St. 437 ; Allegheny Co. Home's inson v. Bidwell, 22 Cal. 379 ; Board of Case, 77 Pa. St 77 ; Lea v. Bunim, Com. v. Silvers, 22 Ind. 491 ; Turner v, 83 Pa St 237 ; To\%-n of FishkiU v. Board of Commissioners, 27 Kan. 314 ; Fislikill, etc. PIk. R Co. 22 Barb. 634 ; Matter, etc. of ViUage of HHdcUeton, State V. Clarke, 54 Mo. 17 ; Savannah, 82 N. Y. 196 ; Gordon v. Cornes, 47 etc. R'y Co. v. Geiger, 21 Fla. 669 ; id. 617. See i^ost, § 171. Callaghan v. Cliipman, 59 Mich. 610 ; ^ State v. Ne^svton, 59 Ind. 173. State V. Perstnger, 76 ]Mo. 346 ; Stiefel -^ Christy v. Board of Supervisors, V. Maiyland Institute, 61 Md. 144 ; 39 CaL 3. AVyukoop V. Cooch, 89 Pa, St 450. o Mayor, etc. v. Dechert 32 Md. 369 ; 1 Morgan v, Monmouth Plank R. Reid v. Morton, 119 HI lia Co. 26 N. J. L. 99 ; Matter of Village of mddleton, 82 N. Y. 196. 234 STATUTES VOID IN PART. cattle.^ A statute which prohibits traffic in intoxicating liq- uors, provides penalties therefor, and also forfeiture of hquors kept for sale, and the vessels in which the same are kept, is not an entirety. The forfeiture clause may be held unconstitu- tional, and the remainder nevertheless be sustained.^ § 171. The requisite separableuess of tlie void part. — To prevent the void part of a statute from vitiating other portions it must be possible to separate them. This separation would generally be easy where there is inserted in an act otherwise constitutional a distinct provision which can have no operation or effect, according to its terms, but such as is in violation of the constitution. Such a provision Would be absolutely void, and it is difficult to conceive how it could be so blended with other and constitutional provisions as not to be capable of Ht- eral separation and exclusion ; it may, however, be so related to other provisions as to infect them by dependence, but the actual separation of the vicious part would be practicable. Such separation is practically difficult when a provision is general, and a part of its applications or effects would be vio- lative of the constitution and a part not so, and both equally within the terms, scope and apparent intent of the law- makers.^ Such provisions may be held valid so far as they can operate in harmony with the constitution, and by con- struction limited to such an effect. They will be held void for any purpose beyond that limit. Statutes of a civil nature are severable when all then* terms may have effect to some extent ; and upon a defined principle may be so limited and all effect beyond constitutional barriers prevented. The legislature of Iowa gave a city power to establish and create wharves and fix the rates of landing and wharfage of all boats, etc., moored at or landing at the wharves. Under this power the city council passed an ordinance ordaining that all the grounds then lying, or which might thereafter be made, between Water street in the city and the middle channel of the Mississippi river, should be declared a wharf. The ordinance provid-ed for a wharfage fee for use of any part of said wharf or "Water 1 Rood V. McCargar, 49 CaL 117 ; 3 Western Union TeL Co. v. State, Wilcox V. Hemming, 58 Wis. 144, 159. 63 Tex. 630. 2 State V. Wheeler, 25 Conn. 290; Fisher v. M.Girr, 1 Gray, 1. STATLTiiJ VuiiJ i.-J J'AJ:r. 235 street. Part of it was actual wharf made at considerable ex- pense and a part was the unimproved bank. As to the latter the ordinance requiring wharfage was supposed to be void. Though that part was not distinguishable in the text of the ordinance, it was held severable ; that it was valid so far as to authorize its enforcement for collecting wharfage for use of the actual wharves, a right and power then alone in question.' In Railroad Companies v. Schutte ^ the court said the strik- ing out of the void part is not necessarily " by erasing words, but it may be by disregarding the unconstitutional provision, and reading the statute as though that provision was not there." It is a general rule of construction to give such effect, if possible, to a statute that it shall work no breach of public faith, nor violate the constitution.^ § 172. But the rule is more stringent in regard to criminal statutes. As said by Johnson, J., in Wynehamer v. People : * " Laws in relation to civil rights are sometimes held to be un- constitutional, in so far as they affect the rights of certain persons, and valid in respect to others. This is done mainly upon the ground that the courts will not construe them to re- late to such cases as the legislature had not power to act upon. To statutes creating criminal offenses, such a rule of construc- tion ought not to be applied, and I cannot find an}^ trace of its ever having been applied. It is of the highest importance to the administration of criminal justice that acts creating crimes' should be certain in their terms and plain in their ap- phcation ; and it would be in no small degree unseemly that 1 Packet Co. v. Keokuk, 95 U. S. 80 ; part of the act which related to ti"ans- Freight Tax Case.. 15 Wall. 233. A portation wholly within the state was statute of Pennsylvania requii'ed valid, but it is to be inferred that the every railroad, steamboat, canal, coiurt did not deem the act wholly slackwater navigation company, and void. Supervisors v. Stanley, 105 all other companies doing business U. S. 305, 313, 314; Austin v. The Al- within that state, and upon whose dermen, 7 Wall. 694 ; Bull v. Rowe, 13 ■works freight might be ti'ansported, S. C. 355 ; McCready v. Sexton, 29 whether by the company or by in- Iowa, 356 ; Hiss v. Baltimore, etc. dividuals, to pay certain taxes. This R. R Co. 53 Md. 243 ; FranklLa v. act appUed to domestic as well as in- Westfall, 27 Kan. 614. terstate transportation, and as to the -' 103 U. S. 118, 143. latter it was void, though that part ^ United States v. Central Pac. R. was not distinguishable in the terms. R. Co. 118 U. S. 235, It was not dh-ectly declared that the * 13 N. Y. 378, 42" 236 STATUTES VOID IN FART, courts should be called upon, in administering the criminal law, to adjudge an act creating offenses at one time valid, and at another time void. It must, I think, stand as it has been enacted, or not stand at all." A law void as to certain prop- erty (intoxicating Hquors) already possessed at the passage of the law, but which would be vaUd if confined to such property subsequently acquired, is wholly void, being general so as to include both in penal destruction of value.^ Where the con- stitution fixed the limit of punishment by fine imposed by a justice of the peace at $3, and the legislature provided for a fine not exceeding $20 in such cases, the statute was held vahd to the constitutional limit of $3, and void beyond that sum.^ The excess was easily ascertained, and divisible from the amount authorized. And though the void part could not be literally stricken out without changing the letter of the stat- ute, it could be excluded with no less certainty and precision. § 173. In United States v. Eeese,* it was held that the power of congress to legislate at all upon the subject of voting at state elections rests upon the fifteenth amendment to the fed- eral constitution, and can be exercised by providing a punish- ment only when the wrongful refusal to receive the vote of a qualified elector at such election is because of his race, color or previous condition of servitude. A congressional enactment not confined in its operation to unlawful discrimination on ac- count of race, color or previous condition of servitude tran- scends the constitutional fimit, and is unauthorized. "Waite, C. J., said : " We are therefore directly called upon to decide whether a penal statute enacted by congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which congress may rightfully prohibit and pun- ish. For this purpose we must take these sections of the stat- ute as they are. "We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are 1 13 N. Y. 378, 425. 3 92 U. S. 214 2 Clark V. EUis, 2 Blackf . 8. STATUTES VOID IN PART. 237 in the section, but by inserting tliose that are not now there. Each of the sections must stand as a whole or fall altogether. The language is plain. There is no room for construction, un- less it be as to the effect of the constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. It would certainl}^ be dan- gerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judi- cial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. ... To limit this stat- ute in the manner now asked would be to make a new law, not to enforce an old one. That is no part of our duty." This view has been repeatedly approved in subsequent cases.^ 1 United States v. Harris, 106 U. S. €29 ; Trade-mark Cases, 100 U. S. 82 ; Va. Coupon Cases, 114 id. 305. In Baldwin v. Franks, 120 U. S. 678, the plaintiff had been in custody on a charge of violating an act of congress wliich provided for punislunent of those who " in any state or territory conspu-e, . . . for the purpose of depriving, either directly or indi- rectly, any person or class of persons of the equal protection of the laws or of equal privileges or immunities un- der the laws." Sec. 5519, R. S. U. S. Waite, C. J., said : " In United States V. Harris, mqira, it was decided that tills section was unconstitutional as a provision for the pvmishment of con- sphacies of the character therein mentioned within a state. It is now said, however, that in that case the consphacy charged was by persons in a state against a citizen of the United States and of the state, to deprive him of the protection he was entitled to imder the laws of that state, no spe- cial rights or privileges arising imder the constitution, laws or treaties of the United States being involved; and it is argued that although the section be tnvahd so far as such an offense is concerned, it is good for the pvmislunent of those who conspire to deprive ahens of the right guarantied to theni in a state by the ti'eaties of the United States. In support of this argument rehance is had on the well- settled rule that a statute may be in part constitutional and in part im- constitutional, and that under some chcumstances the part which is con- stitutional will be enforced, and only that which is unconstitutional will be rejected. To give effect to tlus rule, however, the pai-ts — that which is constitutional and that wliich is un- constitutional — must be capable of separation, so that each may be read by itself. This statute, considered as a statute inmishing conspiracies in a sfcite, is not of that character, for in that connection it has no parts witliin the meaning of the rule. "VVhetlier it is separable so that it can be enforced 238 STATUTES VOID IN PABT. To be separable for the purpose of sustaining the remainder of the act, such remainder must be complete in itself and suffi- cient to accomplish the legislative intent without aid from tha void part.^ §174. The main purpose Ibeing imconstitutioiial the "whole act void. — Where all the provisions of an act are con- nected as parts of a single scheme, the incidental provisions must fall with the failure of the main purpose.^ That which is merely auxiliary to the main design must fall with the prin- cipal to which it is merely an incident.^ If only one object is aimed at, and that is unconstitutional, and all the provisions are contributory to that object, and were enacted solely for that reason, the whole act is void.* An act provided for a new police district, and police justice, with exclusive jurisdiction not only of new offenses created by the same act, but of mat- ters previously cognizable by other courts. As the creation of the new district and court were essential to accomphsh the purpose of the act, and that part of it being held unconstitu- tional, the whole act was void.^ "Where the entire scheme must fail because of a want of power to enact it, there can be no possible good in upholding an isolated provision which it in a territoiy, though not in a state, is ^ AJlen v. Louisiana, 103 U. S. 80 ; quite another question, and one we People v. Porter, 90 N. Y. 68 ; Hinze are not now called on to decide. It v. People, 92 111. 406 ; Towles, Ex provides in general terms for the pun- parte, 48 Tex. 413 ; Bittle v. Stuart, ishment of aU who conspne for the 34 Ai-k. 224 ; Black v. Trower, 79 Va. purpose of depriving any person, or 123 ; State v. Duke, 42 Tex. 455. any class of persons, of the equal pro- 2 Jones v. Jones, 104 N. Y. 234 ; tection of the laws or of equal privi- Black v. Ti-ower, 79 Va. 123. leges or immvmities under the laws. ^ Virginia Coupon Cases, 114 U. S. A single provision, which makes up 270, 304. the whole section, embraces those ^ Darby v. "Wilmington, 76 N. C. who conspire agaiost citizens as well 133 ; Eckhart v. State, 5 W. Va 515. as those who conspire against ahens ; 5 Pebple v. Porter, 90 N. Y. 68 j those who conspire to deprive one of Reed v. Omnibus R. R. Co. 33 CaL 212 ; his rights under the laws of a state Kelley v. State, 6 Ohio St 269 ; Sum- aud those who conspire to deprive ter Co. v. Gainesville Nat Bank, 62 hun of his rights under the constitu- Ala. 464 ; State v. Chsfmberlin, 37 N. J. tion, laws or treaties of the United L. 388 ; Lathrop v. ]\Iills, 19 CaL 513 ; States. The limitation wliich is sought Dells v. Kennedy, 49 Wis. 555; must be made, if at all, by consti-uc- Slinger v. Henneman, 38 id. 504. tion, not by separation. This, it has often been decided, is not enougk" STATUTES VOID IN PART. 23& was, perhaps, competent for the law-giver to enact, but which is unreasonable and unjust if left to stand alone. ^ § 175. A law is entire where each part has a general in- fluence over the rest, and all are intended to operate together for one purpose. In such case the invalidity of that purpose will affect the whole act.^ Nevertheless, if only one incidental provision is invalid, that may not render the whole act void. It is not entire in that sense.' Where a repeal of prior laws is inserted in an act in order to the unobstructed operation of such act, and it is held unconstitutional, the incidental pro- vision for the repeal of prior laws will fall with it.^ An act was passed to dissolve municipal corporations and provided the manner in which they might re-incorporate. The latter was the object of the enactment, and that being held uncon- stitutional the former was also invaUd.' In such cases the object of the legislature is frustrated ; when the void part is ehminated, there is not a complete act remaming expressive of the intent of the legislature and sufficient to carry it into effect.^ § 176. IVliere the void part is inducement to or consider- ation of residue of act. — A leading case on this subject is Warren v. Mayor, etc." In that case was involved the valid- ity of a statute for the annexation of the city of Charles- town to the city of Boston. There were provisions intended to secure to the inhabitants of Charlestown certain constitu- tional rights of representation in the legislature until the time when they could enjoy them within the city of Boston. Some years must elapse before that time. The provisions to secure such rights during the interval were held unconstitutional, and therefore that the whole act was void. Shaw, C. J., said : "If [the parts of the act] are so mutually connected with and dependent on each other, as conditions, considerations or com- pensations for each other, as to warrant a belief that the legis- lature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue 1 Fant V. Gibbs, 54 Miss. 396, 411. State v. Commissioners, 38 N. J. L. 2 Second jMunicipality v. Morgan, 320 ; Childs v. Shower, 18 Iowa, 201. 1 La. Ann, 111 ; Powell v. State, 09 See ante, §§135. 146. Ala 10 ; Towles, Ex parte, 48 Tex. 5 state v. Stark, 18 Fla. 255 ; 413 ; Neely v. State, 4 Baxt 174. Quinlon v. Rogers, 12 Jlich. 168. '^Ante, § 179. '' Towles, Ex parte, 48 Tex. 413. * Quinlon v. Rogers, 13 Mich. 168 ; ^ 2 Gray, M. 240 STATUTES VOID IN PAET. independently, and some parts are unconstitutional, all the provisions which, are thus dependent, conditional and con- nected must fall with them." " The object of the act is the annexation ; the merger of one municipality, and the enlarge- ment of the other. This must necessarily affect the munici- pal and political rights of the inhabitants of both, guarantied as they are by the constitution. The legislature manifestly felt it to be their duty, in accomplishing this object, to make provision for the preservation of these constitutional rights ; if this object is not effectually accomplished, we have no ground on which to infer that the legislatm-e would have sanc- tioned such annexation and its consequences. The various provisions of the act, therefore, all providing for the conse- quences of such annexation, more or less immediate or remote, are connected and dependent ; the different provisions of the act look to one object and its incidents, and are so connected with each other that, if its essential provisions are repugnant to the constitution, the entire act must be deemed unconstitu- tional and void." The doctrine of this case has been gener- ally approved and acted upon.^ § 177. An act created an office and defined the powers and duties as well as fixed the compensation of the incumbent. The part which defined the powers and duties violated a con- stitutional rule of uniformity and was held void ; this part be- ing inducement to the residue fixing the compensation, the latter was held void also.^ So where a statute annexed to a city certain lands lying outside of its limits, but contained a proviso that the lands so annexed should be taxed at a differ- ent and less rate than other lands in the city, and this proviso was unconstitutional, the principle under consideration was held applicable, and the act was inoperative.^ Where, how- ever, a statute gave authority to municipalities competitively to make proposals to procure the location therein of a normal 1 Commonwealth v. Hitcliings, 5 gar, 49 Cal. 117 ; State v. Stark, 18 Gray, 482 ; Jones v. Robbins, 8 Gray, Fla, 255 ; Sparliawk v. Sparliawk, 329, 339 ; State ex reL v. Commission- 116 Mass. 315, 320 ; People v. Cooper, ers, etc. 5 Ohio St. 497 ; State v. Sinks, 83 IlL 585 ; Hinze v. People, 92 HL 42 Ohio St. 345; Central Branch 406. Union P. R. Co. v. Atchison, etc. R. 2 state ex reL v. Dousman, 28 Wis. R. Co. 28 Kan. 453 ; S. C. 10 Am «& 541. Eng. R R, Cas. 528 ; Rood v. McCar- 3 Slauson v. Racine, 13 Wis. 398. STATUTES VOID IN PART. 241 school, and gave power of local taxation to carry accepted proposals into effect, the latter provision was not affected by the unconstitutionality of the appropriation made in the act, for support of such schools. The court held that by establishing the schools and inducing contributions from others, the legis- lature assumed the duty of supporting them ; the particular provision which it has attempted to make for that purpose being objectionable, it must be assumed that the legislature will regard it as their duty to provide a substitute.^ § 178. The valid part must be complete ami accord with legislative intent. — One part of a statute may be distinct in the text and literally separable from the rest, and yet be in- dissolubly connected with it in the legislative intent. The mere fact that the one part standing alone would be within the scope of the legislative power does not necessarily prove that it can be upheld when coupled with other matter. The court in Meshmeier v. State ^ uttered sound logic and sound law : " It would seem that the provisions of the statute held to be con- stitutional, should be substantially the same when considered by themselves as when taken in connection with the other parts of the statute held to be unconstitutional; or, in other words, where that part of a statute which is unconstitutional so Umits and qualifies the remaining portion that the latter, when stripped of such unconstitutional provisions, is essentially different, in its effect and operation, from what it would be were the whole law valid, it would seem that the whole law should fall. The remaining portion of the statute, when thus stripped of its limitations and qualifications, cannot have the force of law, because it is not an expression of the legislative wlQ. The legislature pass an entire statute, on the supposi- tion, of course, that it is all valid and to take effect. The courts find some of its essential elements in conflict with the constitution ; strip it of those elements, and leave the remain- ing portion mutilated and transformed into a different thing from what it was when it left the hands of the leiiislatm^e. The statute thus emasculated is not the creature of the legisla- ture; and it would be an act of legislation on the part of the court to put it in force." 1 Gordon v. Cornes, 47 N. Y. 608. 2 n ind. 482, 485. 16 242 STATUTES VOID IN PART. § 179. If, by striking out a void exception, proviso or otlicr restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its opera- tion is not in accord with the legislative intent, and the whole would be affected and made void by the invalidity of such part. An act of a general nature which the constitution required to have a uniform operation throughout the state excepted certain counties from its operation. This rendered the whole act void. After strilving out the exception, if the general words gave the act operation in the excepted counties, such effect would be directly contrary to the expressed intent of the law- maker.^ A like principle is declared in the case of Spraigue V. Thompson.^ The states were authorized by an act of con- gress to make regulations relative to pilots in bays, inlets, rivers, harbors and ports of the United States, but they were expressly prohibited fi'om making any discriminations in the rate of pilotage between vessels sailing between the ports of different states, and existing regulations making such discrim- inations were annulled and abrogated, A statute of Georgia excepted coasters in that state and coasters between the ports of that state and those of South Carolina and Florida. The exception was held a discrimination within the prohibition,, and the court said if the exception only is affected the legisla- ture of Georgia is made to enact what confessedly it never meant, by giving the statute an operation beyond the limits specified by the legislature. The exception, therefore, could not be rejected and the remainder held valid ; the whole was treated as annulled and abrogated. § 180. A provision which states a contingency on which the act is or is not to take effect, whether it be the result of a popular vote or some other, is not independent and separable ; for the intent of the law-maker is therein expressly declared, and the statute cannot on principle take effect contrary to that in- tent though it be expressed in a section wholly unconstitutional.* iKelley v. State, 6 Oliio St. 209; Tliorne v. Cramer, 15 Barb. 112; State ex reL v. Supervisors, 63 Wis. Parker v. Commonwealth, 6 Pa. St 376, 379. See State v. Hanger, 5 Ark. 507 ; Meshmeier v. State, 11 Ind. 482 ; 412. Lathrop v. MiUs, 19 CaL 513. See » 118 U. S. 90. Santo v. State, 2 Iowa, 165 ; State v. »Barto V. Himrod, 8 N. Y. 488; Copeland, 3 R L 33. STATUTES VOID IN PART. 2i3 If the parts of a statute are so connected as to warrant the conclusion that the legislature intended them as a whole, and would not have enacted the part hold valid alone, when a part is unconstitutional, they are not separable ; if one part is void the whole is void.^ This conclusion should be based upon a consideration of the act and a comparison of its effects with and without the void part, by considering the connection and relative operation of the vaUd and invalid provisions.^ Where two provisions of a statute are so dependent upon one another that one cannot stand alone without a manifest perversion of the legislative intent, and the other is void, the whole act is void.^ lEckhart v. State, 5 W. Va. 515; Childs v. Shower, 18 Iowa, 261; La- Warren V. Mayor, etc. 2 Gray, 84 ; throp v. IMills, 19 CaL 513 ; Centi-al Br. State V. Sinks, 42 Ohio St 345 ; People Union Pac. R. R. Co. v. Atchison, etc. ex reL v. Cooper, 83 lU. 595 ; Hinze v. R R Co. 28 Kan. 453 ; S. C. 10 Am. & People, 92 id 406, 424 ; State v. Pugh, Eng. R R Cas. 528 ; Moore v. New 43 Ohio St 98 ; Rader v. Townsliip Orleans, 32 La. Ann. 726 ; Robinson of Union, 39 N. J. L. 509 ; Flanagan v. Bidwell, 22 CaL 379. V. Plainfield, 44 id. 118, 124 ; State v. - Robinson v. Bidwell, supra; Sum- Commissioners, 38 id. 320 ; Western ter Co. v. GainsviUe Nat Bank, 62 Union TeL Co. v. State, 62 Tex. 630 ; Ala 464. S. C. 13 Am. & Eng. Corp. C. 396 ; 3 Burkholtz v. State, 16 Lea, 71. CHAPTER X. JUDICIAL NOTICE AND PROOF OF STATUTES, AND THEIR AU- THORITATIVE EXPOSITION. 181. Judicial notice of statutes. 185. State statutes in federal courts. 188. Foreign statutes, how proved. 192. Functions of court and jury in respect of foreign laws proved. 193. Private statutes. § 181. Judicial notice of statutes. — Courts of justice take oificial notice of public statutes and the general jurisprudence of the state under whose authority they act. They judicially know the origin and history of that jurisprudence, and all the facts which affect its derivation, validity, commencement and operation.^ A state court will take notice of the federal con- stitution and amendments to it ^ and the public acts of con- gress.^ The courts of a state carved out of the territory of another take judicial notice of the statutes of the old state in force up to the time of the separation.* The states formed from territory ceded by Spain wUl take notice of the Spanish law existing prior to the cession affecting rights and titles then in beino;.^ 1 People V. Mahaney, 13 Mich. 481 ; Town of South Ottawa v. Perkins, 94 U. S. 200 ; Post V. Supervisors, 105 id. 667; Opinion of Justices, 52 N. H. 622; Berry v. Baltimore, etc. R R. Co. 41 Sid. 446 ; People v. De Wolfe, 62 111. 253 ; Supervisors v. Heenan, 2 Minn. 336 ; Coburn v. Dodd, 14 Ind. 347 ; Moody v. State, 48 Ala. 115 ; De Bow V. People, 1 Denio, 9 ; Commer- cial Bank v. Sparrow, 2 id. 97 ; Purdy V. People, 4 Hill, 384 ; Ryan v. Lyncli, 68 IlL 100 ; Lanning v. Carpenter, 20 N. Y. 447 ; Lusher v. Scites, 4 W. Va. 11 ; Rumsey v. People, 19 N. Y. 48 Lorman v. Benson, 8 Mich. 18, 25 Stokes V. Macken, 63 Barb. 145 Neeves v. Bun-age, 14 Ad. & EL (N. S.) 504. 2 Graves v. Keaton, 3 Cold. 8. 3 Dickenson v. Breeden, 30 HL 279 ; Gooding v. Morgan, 70 id. 275 ; Papin V. Ryan, 33 Mo. 31 ; Kessel v. Albetis, 56 Barb. 363; Semple v. Hagar, 27 CaL 163; Rice's Succession, 21 La, Ann. 614 ; Morris v. Davidson, 49 Ga. 361 ; Flanigen v. Washington Ins. Co. 7 Pa. St. 306 ; Bayly v. Chubb, 16 Gratt. 384. * Delano v. Jopling, 1 Litt. 417 ; Berluchaux v. Berluchaux, 7 La. 539. 5 United States v. Tiu-ner, 11 How. 663, 668 ; United States v. King, 7 id. 883; United States v. Philadelphia, JUDICIAL NOTICE A.XD TKOOF OF STATUTES, ETC. 245 § 182. The courts will inform themselves of facts which may affect a statute ; for example, the precise time when it was aj)proved, to determine its existence, commencement or any other fact for like purpose.^ They will take notice of the terms in which an act was passed, though they dilfer from those of the officially published statutes.- Xo issue by plead- ing can be made by the parties involving such facts to be tried by evidence.^ The judges make the proper inquiry to inform themselves in the best way they can. An eminent jurist says : " An act of parliament, made within the time of memory, loses not its being so because not extant of record, especially if it be a general act of parliament. For of the general acts of parliament the courts of common law are to take notice with- out pleading them. And such acts shall never be put to be tried by the record upon an issue of nul tiel record, but shaU be tried by the court, who, if there be any difficulty or uncer- tainty touching it, or the right of pleading it, are to use for their information ancient copies, transcripts, books, pleadings and memorials to inform themselves, but not to admit the same to be put in issue by a plea of nul tiel record. Tor, as shall be shown hereafter, there are many old statutes which are admitted and obtain as such, though there be no record at this day extant thereof; nor yet any other written evi- dence of the same, but which is in a manner only traditional, as namely, ancient and modern books of pleading and the common received opinion and reputation and approbation of the judges learned in the law," * § 183. In this country the inquiry may have more range ; the existence or validity of statutes, under constitutions, will depend on a greater variety of facts open to investigation. While the constitution or a statute may provide what shall be 11 id. 609 ; Arguello v. United States, nedj' v. Palmer, 6 Gray, 316 ; Bm-gess 18 id. 550; Fremont v. United States, v. Salmon, 97 U. S. 381 ; ante, § 110. 17 id. 543 ; Chouteau v. Pierre, 9 Mo. - Gardner v. The Collector, supra ; 3 ; Ott V. Soulard, id. 581 ; Doe v. Es- Purdy v. People, 4 Hill, 384 ; De Bow lava, 11 Ala. 1028. v. People, 1 Denio, 14 ; State v, Piatt, 1 Garchier v. The CoUector, 6 Wall. 2 S. C. 150 ; Brady v. West, 50 JMiss. 499 ; Louisville v. Savings Bank, 104 68. U. S. 469 ; Cargo of Brig Aurora v. =* Town of South Ottawa v. Perkins, United States. T ( 'ranch, 383 ; Lapeyre 94 U. S. 260. V. United States, IT Wall. 191 ; Ken- < Hale's His. Com. L. 14, 16. 246 JUDICIAL ITOTICE AJSTD PKOOF OF STATUTES, ETC. conclusive evidence,^ tlie inquiry is not generally so restricted, and the general principle governs that record or constitutional evidence must be adduced to impeach a statute the record of which is fair on its face.^ Where the purpose is not to inval- idate the statute, but to give it effect, to ascertain the fact on which the taking effect depends, or to ascertain the time more precisely than appears by the record, any source of information which is capable of conveying to the judicial mind a clear and satisfactory answer is available.' Extraneous facts relating to the subject of a statute fair on its face, or the procedure to enact it, will not be considered for the purpose of overturning it for some infraction of the constitution, unless a statute or the constitution itself has provided for such proof.* In the absence of such provisions, a court cannot resort to the legis- lative rolls and journals for the puspose of examining as to whether the bill as passed is the same as the bill certified ; * nor for the purpose of determining whether the statute passed in conformity with the rules adopted by the legislature for its own government.^ It cannot resort to extrinsic evidence to show that the certified and published law actually passed.'' § 184. The written law of a state embraces as weU the stat- utes in force at the time of its organization, and not in con- flict with its constitution, as those subsequently enacted.^ The laws of England, written and unwritten, or, as it has been other- 1 Town of South Ottawa v. Perkins, 173 ; Louisville v. Savings Bank, 104 94 U. S. 260. U. S. 4G9 ; Gardner v. The CoUector, 2 English V. Oliver, 28 Ark. 317; 6 Wall. 499. Worthen v. Badgett, 32 id. 496 ; State ^Ante, § 28 ; Matter of Chui-ch, 28 V. Swift, 10 Nev. 176 ; State v. Hast- Hun, 476 ; Matter of New York Ele- ings, 24 Mum. 78 ; Larrison v. Peoria, vated R. R Co. 70 N. Y. 327, 351 ; etc. R. R. Co. 77 IlL 11 ; Pangborn v. South Ottawa v. Perkins, 94 U. S. 260. Young, 32 N. J. L. 29 ; Legg v. Mayor, 5 Pangborn v. Young, 32 N. J. L. 29 ; etc. 42 Md. 203, 224 ; State v. County Sherman v. Story, 30 CaL 253 ; Cole- of Dorsey, 28 Ark. 378 ; Wall, Ex man v. Dobbms, 8 Ind. 156 ; Grob v. parte, 48 CaL 279 ; Happel v. Bret- Cushman, 45 111. 119 ; Green v. Wel- hauer, 70 IlL 166 ; Rumsey v. People, ler, 32 Jliss. 650 ; 1 Whart on Ev. 19 N. Y. 48 ; De Camp v. Eveland, 19 § 290. Barb. 88 ; Lanning v. Carpenter, 20 « Id. N. Y. 447 ; Buncombe v. Prindle, 13 ^ Mayor, etc. v. Harwood, 32 Md. 471, Iowa, 1 ; Lusher v. Scites, 4 W. Va. 8 American Ins. Co. v. Canter, 1 11. See Bradley v. Commissioners, 2 Pet. 511 ; Brice v. State, 2 Overt. 254 : Humph. 428 ; Ford v. Farmer, 9 id. 152. Egnew v. Cochrane, 2 Head, 320 ; Lee 3 Wells V. Bright, 4 Dev. & Batt. L. v. Kmg, 21 Tex. 577. JUDICIAL NOTICE AND PROOF OF STATUTES, ETC. 2ir avise expressed, the common law and all the statutes of parlia- ment in aid of the common law, in force at the time of the emigration to this country, were brought hither by the emi- grants who first settled the original colonies, as a birthright, so far as those laws were suitable to the cu-cumstances and conditions which existed in the new country.^ To them they were unwritten laws. Subsequent acts of parliament did not affect the colonies unless named or the acts related to the pre- rogativ^es of the crown.^ In states formed from colonies settled by Englishmen, and in those which are shown to have adopted the common law by statute or constitution, it will be presumed to continue as a system of jurisprudence. And recognizing its existence in another state, the court will take notice of its principles,^ but not of any peculiarities, exceptional in the foreign state and di- vergent from the law of the court. On principle, the courts 1 2 P. Wms. 75 ; Blankard v. Galdy, 2 Salk, 411; Scott v. LunL's Adm'r, 7 Pet 603 ; Commonwealth v. Knowl- ton, 2 Mass. 534; O'Ferrall v. Sim- plot, 4 Iowa, 400; Dodge v. Will- iams, 46 Wis. 92; Gardner v. Cole, 21 Iowa, 205 ; Williams v. Williams, 8 N. Y. 541; CaUoway v. Willie's Lessee, 2 Yerg. 1 ; Clawson v. Prim- rose, 4 Del. Ch. 643, 652 ; Stmnp v. Napier, 2 Yerg. 35; Carter v. Bal- fom-, 19 Ala. 814; Horton v. Sledge, 29 id. 478 ; Nelson v. 3IcCrary, 60 id. 801 ; McCorry v. King, 3 Humph. 267 ; Webster v. Morris, 66 Wis. 366 ; Co- bm-n V. Harvey, 18 id. 147 ; Sackett v. Sackett, 8 Pick. 309 ; Briice v. Wood, 1 Met. 542 ; Commonwealth v. Church- ill, 2 id. 123 ; Stout v. Keyes, 2 Doug. (Mich.) 184; PoweU v. Brtmdon, 24 ]\liss. 363 ; Jacob t. State, 3 Humph. 493 ; Griffith v. Beasly, 10 Yerg. 434 ; Drew V. Wakefield, 54 Me. 291 ; Pem- ble V. ClifYord, 2 IMcCord, 31 ; Gough V. Pratt, 9 :Md. 526 ; Canal Com'rs v. People, 5 AVeud. 445 ; Fowler v. Stone- um, 11 Tex. 478; Boehm v. Engle, 1 Dall. 15 ; Ayres v. Methodist Ch. etc. 3 Sai df. :568 ; Attorney-Gen. v. Stew- art, 2 l\ieriv. 162 ; Van Ness v. Pacard, 2 Pet 137; Tappan v. Campbell, 9 Yerg. 436; Cathcart v. Kobinsou, 5 Pet 280. 2 Matthews v. Ansley, 31 Ala. 20; Cai-ter v. Balfour, 19 id. 829 ; McKin- eron v. Bhss, 31 Barb. ISO ; Sackett v. Sackett, 8 Pick. 309 : Commonwealth V. Kjiowlton, 2 Mass. 534; Porter's Lessee v. Cocke, Peck, 30 ; Preston v. Sm'goine, id. 80 ; Chapron v. Cassaday, 3 Humph. 661; RoKe v. McComb, 2 Head, 558 ; Smith v. Mitchell, Rice, 316 ; Stokes v. Macken, 62 Barb. 145. 3 Cressey v. Tatom, 9 Or. 542 ; Good- win V. Mon-is, id. 322; Norris v. Harris, 15 Cal. 226 ; Wallace v. Bm-den, 17 Tex. 467 ; Yardeman v. Lawson, id. 10; Holmes v. Broughton, 10 Wend. 75; 1 Whart on Ev. § 814; McDeed v. McDeed, 67 IlL 545; limgsley v, Kingsley, 20 id 203; Abel V. Douglass, 4 Demo, 305 ; An- di*ews V. Hoxie, 5 Tex. 171 ; Titxis v. Scauthng, 4 Blackf. 89; Smith v. Baitram, 11 Oliio St 691. 24S JUDICIAL XOTICE AND TROOF OF STATUTES, ETC. of one state cannot presume the existence of any other law in another state. The circumstance that a written law modifying or supplementing the common law has been enacted in the state where the court sits is no evidence that a like statute has been passed in another state.^ It has, however, often been decided that where a case or defense depends on the law of another state, and that law has not been proved, the court will presume it to be the same as that which is in force in its own jurisdic- tion.-^ If this were the common law the presumption would be natural, logical, legal,^ but the cases are not so confined ; the presumption is applied literally and comprehensively.* The result would be the same and its basis would be more satisfactory if the principle were formulated thus: the law 1 Kermott v. Ayer, 11 Mich. 181 ; Ellis T. Maxson, 19 id. 186. ^Territt v. Woodi-uff, 19 Vt. 182; Pauska v. Daus, 31 Tex. 67 ; McDon- ald V. Myles, 12 Sm. & M. 379 ; Har- ris V. Allnutt, 12 La. 465; Mason V. Mason's Widow, id. 589 ; Dwight T. Richardson, 12 Sm. & M. 325 Bemis v. McKenzie, 13 Fla. 558 Holley T. HoUey, Lit. SeL Cas. 505 Selking v. Hebel, 1 Mo. App. 340 Paget V. Curtis, 15 La. Ann. 451 Nalle V. Ventress, 19 id. 373; AUen T. Watson, 2 Hill (S. C), 319 ; Des- uoyer v. McDonald, 4 Minn. 515 ; Wliidden v. Seelye, 40 Me. 247; Thurston v. Percival, 1 Pick. 415; Fouke V. Fleming, 13 Md. 392, 407 ; Surlott V. Pratt, 3 A. K Marsh. 174 ; Thomas v. Beckman, 1 B. Mon. 29, 34 ; Prince v. Lamb, Breese, 378 ; Leavenworth v. Brockway, 2 Hill, 201; Crozier v. Hodges, 3 La. 357; HaU T. Woodson, 13 Mo. 462 ; Lou- gee V. Washbm-n, 16 N. H. 134; Stokes V, Macken, 62 Barb. 145 ; Lang- don V. Young, 33 Vt. 136 ; Chase v. Ins. Co. 9 AUen, 311 ; Cluff v. Ins. Co. 13 id. 308 ; ConoUy v. Riley, 25 Md. 402; Green v. Rugely, 23 Tex. 539 ; HaU v. PiUow, 31 Ark. 32 ; Hyd- rick V. Bm-ke, 30 id. 124 ; Warren t. Lusk, 16 Mo. 102; Houghtailing v. Ball, 19 Mo. 84 ; Lucas v. Ladew, 28 id. 342 ; Robinson t. Dauchy, 3 Barb. 20 ; Pomeroy v. Ainsworth, 22 id. 118; Huth V. Ins. Co. 8 Bosw. 538 ; AVright V. Delafield, 23 Barb, 498 ; Bradley v. Ins. Co. 3 Lans. 341 ; Savage v. O'NeU, 44 N. Y. 298 ; Smith v. Smith, 19 Gratt 545; Bean v. Briggs, 4 Iowa, 464 ; Crafts v. Clark, 38 Iowa, 237; Crake v. Crake, 18 Ind. 156; Davis V. Rogers, 14 Ind. 424 ; Crane V. Hardy, 1 Midi. 56 ; EUis v. Maxson, 19 id. 186 ; Cooper v. Reaney, 4 Minn. 528 ; Brimhall v. Van Campen, 8 id. 13; Rape v. Heaton, 9 Wis. 328; Walsh V. Dart, 12 Wis. 635 ; State v. Patterson, 2 Ired. L. 346 ; Atkinson V. Atkinson, 15 La. Ann. 491 ; Hick- man V. Alpaugh, 21 Cal. 225 ; HUl v. Grigsby, 82 Cal. 55 ; Mostyn v. Fab- rigas, 1 Co%vper, 174; Smith v. Gould, 4 Moore, P. C. 21; State v. Cross, 68 Iowa, 180; Van Wyck v. HUls, 4 Rob. 140; PhUa. Bank v. Lambeth, 4 Rob. 463. 3 See Diez, In re, 56 Barb. 591; Lockwood V. Crawford, 18 Conn. C61.- 4 Id. JUDICIAL NOTICE AND TEOOF OF STATUTE?, ETC. 24:9 of another state in certain cases is a})|)]icd by comity, when proved; if not proved, there is no coiuity invoked, and the lex fori governs.^ In Monroe v, Douglass,^ Foot, J., speaking for the court of appeals, said : " It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish, in all cases, prima facie, the rule of decision ; and if either party wishes the benefit of a different rule of law, as, for in- stance, the lex domicilii, lex loci contractus, or the lex rei sitoB, he must aver and prove it." ' § 185. State statutes in the federal courts. — It was enacted by congress in 1789 " that the laws of the several states, ex- cept where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." * The circuit courts of the United States are created by congress, not for the purpose of administering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively apply. The judi- cial power conferred on the general government, by the con- stitution, extends to many cases arising under the laws of the different states. And the supreme court is caUedupon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is then, in no just sense, a foreign juris- prudence, to be proved in the courts of the United States by the ordinary modes of proof by which the laws of a foreign iSee O'Roiu-ke v. O'Rourke, 43 O'Conner, 28 Vt 77G; ^\nudden v. !Mich. 58 ; Martin v. Martin, 1 Sm. & Seelye, 40 ]\Ie. 247 ; Stokes v. ]\racken, M. 176 ; Bock v. Lauman, 24 Pa. St 62 Barb. 145 ; Bristow v. Sequeville, 435 ; Peacock v. Banks, Minor (Ala.), 5 Ex. 275, 279 ; Lide v. Parker, 60 Ala. 387; Williams v. Wade, 1 Met 82; 165. Greenwade v. Greenwade, 3 Dana, -o'^.Y. 447, 452. 495 ; McDonald v. Myles, 13 S. & M. » Norris v. Harris, 15 CaL 254 ; 279 ; Story's Conf. L. (7th ed.) § 637a; Greenwade v. Greenwade, 3 Dana, Monroe v. Douglass, 5 N. Y. 447 ; 497 ; Tarlton v. Briscoe, 4 Bibb, 73 ; Bean v. Briggs, 4 Iowa, 464; Sayi-e v. Thurston v. Percival, 1 Pick. 415. Wlieeler, 32 Iowa, 559 ; AUen v. Wat- •* Sec. 34, Judiciary Act 1789, 1 Stat son, 2 Hill (S. C), 319 ; Woodrow v. at Large, 92 ; sec. 721, R. S. U. S. 250 JUDICIAL NOTICE A'ST) TKOOF OF STATUTES, ETC. country are to be establislied ; but it is to be judicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts.' The relation in which the circuit courts of the United States stand to the states in which they respectively sit and act is precisely that of their own coui'ts as to the rules of decision.^ A party forfeits noth- ing by going into a federal tribunal. Jurisdiction having at- tached, his case is tried there upon the same principles, and its determination is governed by the same considerations, as if it had been brought in the proper state tribunal of the same lo- cality.* The law of any state of the Union, whether depend- ing upon statutes or upon opinions, is a matter of which the courts of the United States are bound to take notice without plea or proof. ^ It thus appears that the comets of the United States have jurisdiction to administer a jurisprudence not wholly nor chiefly within the domain of congress. They ad- minister between the proper parties the jurisprudence of the states. They are governed hke the state courts by the vahd statutes of the state. Where no federal question is involved, they follow the decisions of the highest court of the state in its construction of its own constitution or other written laws.^ 1 Owings V. HuU, 9 Pet. 607, 624 ; 3 McNiel, Ex parte, 13 Wall 236, Bennett v. Bemiett, Deady, 309, 311 ; 243 ; Clark v. Smith, 13 Pet. 195 ; Pennington t. Gibson, 16 How. 65, McNiel v. Holbrook, 12 Pet. 84 ; Part- 81 ; Railroad Co. v. Bank of Ashland, ridge v. The Ins. Co. 15 Wall. 578, 12 WalL 229 ; Covington Drawbridge 580 ; Lorman v. Clarke, 2 McLean, 568. Co. V. Shepherd, 20 How. 227; El- ^Lainar v. Micou, 114 U. S. 218, wood V. Flannigan. 104 U. S. 568; 223; Hanley v. Donoghue, 116 id. 6. Course V. Stead, 4 Dall. 27, n. ; Cheever 5 Township of Elmwood t. Marcy, V. Wilson, 9 WaU. 108; Griffing v. 92 U. S. 289; Allen v. Massey, 17 Gibb, 2 Black, 519; Jones v. Hayes, WalL 354; Leffingwell v. Warren, 2 4 McLean, 521; Gordon v. Hobart, Black, 599; Townsend v. Todd, 91 2 Suinner, 401 ; Mewster v. Spaldmg, U. S. 452 ; Tioga R. R. Co. v. Bloss- 6 McLean, 24 ; Smith v. TaUapoosa, burg, etc. R. R. Co. 20 Wall. 137 ; Har- 2 Woods, 574 ; Merrill v. Dawson, pending v. Dutch Chm-ch, 16 Pet. 493 ; Hempst. 563 ; Woodworth v. Spaf- Supervisors v. United States, 18 WalL fords, 2 McLean, 168 ; Bird v. Com- 71, 81 ; Gut v. State, 9 id. 35 ; Gelpcke monwealth, 21 Gratt. 800 ; Gormley v. Dubuque, 1 id. 175 ; Chi-isty v. V. Clark, 134 U. S. 338 ; Case v. KeUy, Pridgeon, 4 id. 196 ; Adams v. Nash- 133 id. 21 ; Louisville, etc. R. R. Co. ville, 95 U. S. 19 ; Peik v. Chicago, V. Mississippi, id. 587 ; Peters v. Bain, etc. R. Co. 94 id. 164 ; Stone v. Wis- id. 670. cousin, id. 181 ; Shelby v. Guy, 11 2 Lessee of Livingston v. Moore, 7 Wheat. 361 ; Smith v. Kernochen, 7 Pet. 469, 542. How. 198 ; De Wolf v. Rabaud, 1 Pet JUDICIAL NOTICE AND PKOOF OF STATUTES, ETC. 251 § 18G. Marshall, C. J., lias thus defined coinprehensively the priinaiy authority to interpret laws : " This court has uni- formly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. This course is founded on principles supposed to be universally recognized, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which professed to be governed by principle, would, we presume, undertake to say that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the con- struction given by the courts of the nation as the true sense of the law, and feel ourselves no more at Uberty to depart from that construction than to depart from the w^ords of the statute. On this principle the construction given by this court to the constitution and laws of the United States is received by all as the true construction ; and on the same principle, the construction given by the courts of the several states to the legislative acts of those states is received as true, unless they come in conflict with the constitution or treaties of the United States." ' The federal courts will follow the latest settled adjudica- tions.2 They are called on to administer the laws of the states, and the states are not politically foreign to each other, though there is no connection between them in legislation; therefore those courts take notice of state laws when they are officially published, and only when they are found in the official statute books of the state.'^ 479 ; King v. Wilson, 1 Dill. 555 ; v. Viles, 3 id. 675 ; HilcCluny v. Silli- Union Horse Shoe Works v. Lewis, man, 3 id. 270 ; United States v. Mor- 1 Abb. (U. S.) 518; Coates v. Muse, 1 rison, 4 id. 124; City of Richmond v. Brock. 539 ; Newman v, Keffer, 1 Smith, 15 AVaU. 429 ; Shelby v. Guy, Brunner, Col. Cas. 502. 11 AMieat 367. lElmendorf V.Taylor, 10 AAHicat. 152, -'Leffingwell v. Warren, 2 Black, 159; Harpendiug v. Dutch Church, 599; Gelpcke v. Dubuque, 1 Wall. 16 Pet. 493 ; Bell v. Morrison, 1 Pet 175 ; Kountze v. Omaha, 5 DilL 443. •351 ; D'Wolf V. Rabaud, id. 479 ; Beach » Ennis v. Smith, 14 How, 400, 429 252 JUDICIAL NOTICE AND TKOOF OF STATUTES, ETC. § 187. They adopt the local lav/ of real property as ascer- tained by the decisions of the state courts, whether those decisions are grounded on the interpretation of statutes, or on unwritten law which has become a fixed rule of property in the state.^ The power of the state to regulate the tenure of real property within her Ihnits and the modes of its acquisi- tion and transfer, and the rules of its descent, and the extent to which testamentary disposition may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the gov- ernment within whose jurisdiction the property is situated. The power of the state in this respect follows from her sov- ereignty within her limits as to all matters over Avhich juris- diction has not been expressly or by necessary implication transferred to the federal government. The title and modes of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the con- trol of federal authority.^ § 188. Foreign statutes, how proved. — Though statutes have no extraterritorial operation, yet, by comity, foreign laws are recognized everywhere when shown for certain pur- poses ; they materially affect the status and rights of persons born, married, divorced or domiciled; of persons who have entered into contracts, or have suffered wrong in the country where they are in force, for various purpose not necessary here to enumerate.^ 1 Jackson V. Chew, 12 Wheat. 153, ney, 11 How. 297; Porterfield v. 167 ; M'Keen v. Delancy's Lessee, 5 Clark, 2 How. 76 ; Barker v. Jackson, Cr. 32 ; Polk's Lessee v. Wendall, 9 1 Paine, 559 ; Gormley v. Clark, 134 Cr. 98 ; Thatcher v. PoweU, 6 Wheat. U. S. 338. See Amy v. Watertowu 119, 127; Daly v. James, 8 id. 535; (No. 1), 130 id. 301. Eoss V. M'Lmig, 6 Pet. 283, 285 ; Green 2 United States v. Fox, 94 U. S. 315 ; V. Lessee of Neal, 6 id. 291 ; Hender- McCormick v. SulHvant, 10 Wheat son V. Griffin, 5 id. 151 ; IngUs v. 202. Tlie Trustees, etc. 8 Pet 99, 127; 3 story, Conf. L. g§ 17-88; Beard Davis V. Mason, 1 Pet 503 ; Waring v. Basye, 7 B. Mon. 144 ; Whart Conf. V. Jackson, id. 570 ; Nichols v. Levy, L. ch. V ; Heirn v. Bridault 37 5 Wall 433 ; United States v. Fox, 94 Miss. 209 ; Edgerly v. Bush, 81 N. Y. U. S. 315 ; Van Rensselaer ^•. Kear- 199 ; Trasher v. Everhart, 3 GiU & J- JUDICIAL NOTICE AND TKOOF OF STATUTES, ETC. § 189. Foreign laws are taken into consideration on the principles of international law. All laws are foreign to every country in which they do not operate of their own vigor ; they are foreign to every country or state lying outside of the ter- ritorial jurisdiction of the law-maker. The states of the Amer- ican Union are foreign to each other in their legislation.' The principles of international law, however, apply with greater force between the people of the several states than between the subjects of foreign nations.^ The dismemberment or conquest of the enacting state will not render the laws in force foreign after the transfer to. a new sovereign or jurisdiction.^ § 1 90. Foreign statutes have to be proved as matter of fact.* This follows necessarily fi'om the court not taking judicial notice of them, and from their having effect only by comity on the principles of the common law.^ Statutes are records, and by the common law have to be proved as such by an ex- amined and sworn copy, or by exemplification.^ The public seal of a state, affixed to the exemplification of a law, proves 234 ; Dennick v. Central R. R. Co. 103 U.S. 11; Kline v. Baker, 99 Mass. 253 ; MitcheU v. Wells, 37 Miss. 235. 1 Brackett v. Norton, 4 Conn. 517. 2 Shaw V. Brown, 35 Miss. 246. 3 Stokes V. Macken, 62 Barb. 145 ; State V. Patterson, 2 Irecl. L. 346; PreU V. McDonald, 7 Kan. 426 ; Calkin v. Cocke, 14 How. 227 ; Fremont v. United States, 17 How. 542, 557; Brice v. State, 2 Overt. 254 ; Egnew V, Cochrane, 2 Head, 329 ; Doe v. Es- lava, 11 Ala. 1028; Cucullu v. Louis- iana Ins. Co. 5 Mart. (N. S.) (La.) 613 ; United States v. Turner, 11 How. 663. * McKenzie v. AVardwell, 61 Me. 136 ; Khne v. Baker, 99 Mass. 253 ; Brack- ett V. Norton, 4 Conn. 517 ; Dyer v. Smith, 12 id. 384 ; Lockwood v. Craw- ford, 18 id. 361 ; Brvish v. Scribner, 11 id. 407 ; Tuten v. Gazan, 18 Fla. 751 ; Consequa v. Willings, 1 Pet C. C. 225, 229; Owen v. Boyle, 15 Me. 147; Charlotte v. Chouteau, 38 Mo. 194; Diez, In re, 50 Barb. 591 ; Bryant v. Kelton, 1 Tex. 434 ; Hazelton v. Val- entine, 113 Mass. 472 ; Ely v. James, 123 id. 36; Trasher v. Everhart, 3 Gill & J. 234 ; Bock v. Lauman, 24 Pa. St 435 ; Ingraham v. Hart H Oliio, 255; Cecil Bank v. Bany, 20 Md. 287 ; Hempliill v. Bank of Ala, 6 S. & M. 44 ; Han-is v. White, 81 X. Y. 532 ; Holmes v. Broughton, 10 Wend. 75. 5 Bock V. Lauman, 24 Pa. St 435, 445. 6 1 Whart Ev. §§ 94, 95, 309 ; Story's Conf. L. § 041 ; Bailey v. IMcDoweU, 2 Harr. 34; Church v. Hubbart, 2 Cranch, 237 ; Stewart v. Swanzy, 23 Miss. 502 ; Warner v. Common wealtli, 2 Va, Cas. 95 ; Owen v. Boyle, 15 Me. 147 ; Lincohi v. Battelle, 6 Wend. 475 ; Zimmerman t. Helser, 32 Md. 274; Ennis v. Smith, 14 How. 400, 426-429 ; Lacon v. Higgins, 3 Stark. 178 ; Jones T. Maffet 5 S. & R. 523 ; Baltimore, etc. R. R. Co. V. Glenn, 28 Md. 287. 254 JUDICIAL NOTICE AND PEOOF OF STATUTES, ETC. itself. It is a matter of notoriety, and will be taken notice of as part of the law of nations acknowledged by all.^ The proof should be made on the trial ; foreign statutes can- not be first produced in the appellate court.^ Foreign laws which have been promulgated as such by our government,^ or officially procured pursuant to statute for judicial reference or evidentiary purposes,* may be read in evidence without other verification. A printed volume of foreign laws proved by witnesses to contain the statutes of a foreign state or country, or to have received in the home country the sanction of the executive and judicial officers as containing its laws, is ad- missible.* The proof of foreign laws has been facilitated by statutes in the different states by making publications purport- ing to be by authority self-proving.^ Congress has provided a mode of proof,' and such proof is sufficient though the state statute may require more,^ but it is not exclusive of other methods.'* In Taylor v. Bank of Illinois ^^ the court reached the conclu- sion in which the authorities generally agree : " if certified ac- cording to the act of congress they 7nust be admitted, and if certified or authenticated according to state provisions they 1 Eobinson v. Gilman, 20 Me. 299 ; 447 ; Dalrymple v. Dalrymple, 2 Hagg. Lincoln v. Battelle, 6 Wend. 475 ; Consist. R. 81 ; Jones v. Maffet, 5 S. & Non-is Peake (ed. 1834 from 5th Lon- R. 528 ; Brush v. Wilkins, 4 Jolms. Ch. don ed. 109, 110, note) ; Henry v. 506 ; People v. Calder, 30 Mch. 87. Adey, 3 East, 222 ; U. S. v. Johns, 4 « Cummins v. State, 12 Tex. App. DalL 412, 416. 121 ; Ellis v. WUey, 17 Tex. 134 ; May 2Mimroe v. Guilleaume, 3 Keyes, v. Jameson, 11 Ark. 368; Dixon v. 30 ; Belleville S. Bank v. Richardi, 56 Thatcher, 14 id. 141 ; Foster v. Tay- Mich. 453. lor, 2 Overt 190 ; Allen v. Watson, 2 3 Talbot V. Seeman, 1 Cranch, 38 ; HiU (S. C), 319 ; Smoot v. Fitzhugh, Flanigen v. Washington Ins. Co. 7 9 Port 73 ; Clanton v. Barnes, 50 Ala. Pa. St 306. 260 ; Biddis v. James, 6 Binn. 321. 4 Cox V. Robinson, 2 Stew. & Port ' Sec. 905, R. S. U. S. 96; Biddis v. James, 6 Binn. 321; SAnsley v. Meikle, 81 Ind. 260; Mimroe v. Guilleaume, 3 Keyes, 30. UMer v. Semple, 20 N. J. Eq. 288. 5 Owen V. Boyle, 15 Me. 147; Bur- sPoindexter v. Barker, 2 Hayw. ton V. Anderson, 1 Tex. 93 ; Lacon v. 173 ; Tliompson v. Musser, 1 Ball. 403 ; Higgins, 3 Stark. 178 ; Herschfeld v. Hanrick v. Andi-ews, 9 Port. 9 ; Dexel, 12 Ga. 582 ; Emery v. Berry, 28 Smoot v. Fitzhugh, 9 Port 72 ; WU- N. H. 486 ; Foster v. Taylor, 2 Overt son v. Smith, 5 Yerg. 379. 190 ; Sussex Peerage Case, 11 CL & 107 T. B. Mon. 576. But see State v. Fin- 85 ; Barrows v. Downs, 9 R. I. Twitty, 2 Hawkes, 441. JUDICIAL NOTICE AND PROOF OF STATU1"ES, ETC. 255 may be admitted without contravening the laws of the Union." The foreign unwritten law, and the construction of statutes., znay be proved by parol — by expert witnesses.' § 191. A decision of the highest judicial tribunal of a for- eign state construing one of its statutes is to be received else- where as an authoritative exposition. I^or is its weight or authority affected by the fact that it was made after the oc- currence of the transaction in question, or after the departure from the state of the person affected by it.^ § 192. Tlie functions of the court and jury in regard to foreign laws. — Foreign statutes, though to be proved as facts. do not necessarily require a jury to determine the question or their existence.' If proved by a sworn copy, doubtless the 1 Walker v. Forbes, 31 Ala. 9 ; Dyer V. Smith, 12 Conn. 384; People v. Calder, 30 Mich. 85 ; People v. Lam- bert, 5 id. 349 ; Consolidated, etc. Co. V. Cashow, 41 Md. 59 ; 1 Whart on Ev. §§ 305-308 ; Roberts' Will, Mat- ter of, 8 Paige, 446 ; Vander Donckt V. TheUuson, 8 C. B. 812 ; Merrifield V. Robbins, 8 Gray, 150; Woodstock V. Hooker, G Conn. 35 ; Hale v. N. J. St Nav. Co. 15 id. 539; Emery v. Berry, 28 N. H. 453 ; Bristow v. Seque- viUe, 5 Exch. 275 ; Kenny v. Clarkson, 1 Jolm. 385; Tyler v. Ti-abue, 8 B. Mon. 306 ; Baltimore, etc. R R Co. v. Glenn, 28 Md. 287 ; Wilson v. Carson, 12 id. 54. 2 Bloodgood Y. Grasey, 31 Ala. 575 ; Elmendorf v. Taylor, 10 Wheat. 152 ; Shelby v. Guy, 11 id. 367; McRae v. jNIattoon, 13 Pick. 53 ; Sidney v. White, 12 Ala. 728 ; Raynham v. Canton, 3 Pick. 293; Mutual Ass. Society v. Watts, 1 Wheat 279 ; Polk v. Wen- dal, 9 Cr. 87; Penobscot R R. v. Bartlett, 12 Gray, 244; Cragin v. Lamkin, 7 Allen, 395; Blanchard v. Russell, 13 JIass. 1 ; Botanic ]Med. Col- lege V. Atchinson, 41 Miss. 188 ; Saul V. His Creditors, 5 Martin (N. S.), 569 ; McKeen v. De Laucy, 5 Cr. 22 ; Gard- ner V. Collins, 2 Pet 85 ; United States V. Morrison, 4 Pet 124; Cathcart v. Robinson, 5 Pet 264 ; Green v. Neal, 6 Pet 291 ; Walker v. Forbes, 31 Ala 9 ; Davidson v. Sliarpe, 6 Ired. 14 ; Inge V. Mmpliy, 10 Ala. 885 ; Peake v. Yel- deU, 17 Ala 636 ; Hanrick v. Andrewsj 9 Port 9 ; American P. W. v. Law- rence, 23 N. J. L. 590 ; Jolmston v. Bank, 3 Sti'ob. Eq. 263 ; PoweU v. De Plane, 23 Tex. 66. See Peck v. Pease, 5 McLean, 486; Dwight v. Richard- son, 12 S. & M. 325 ; Humphrey villa Cop. Co. V. Sterling, 1 Brun. Col. Cas. 3, 3 Bock V. Lauman, 24 Pa St 435. Lowrie, J., said : " Are we excluded from looking at the laws of another state where they have not been found as a matter of fact? We think not The rule of international law, shortly expressed in the maxim locus regit actum, is a part of our law, and it requires us to go abroad for tlie law by which the efficacy of tliis contract is to be tested. That rule acquii-ed an increase of sanction by the union of tlie states ; it is mvolved in the con- stitutional declaration that " fuU faith and credit shall be given in each state to the public acts, records and judicial proceedings of eveiy other state;" it receives at least a partial expression in the judiciaiy act of 1789, section 250 JUDICIAL XOTICE A:s'D PEOOF OF STATUTES, ETC. evidence would go to a jury.' But if proved by an exemplifi- cc^tion, or by reading from a book published by authority, the court would decide not only the admissibility but the effect of the proof.- The home construction of a foreign statute is provable by parol, and if so proved as a fact, is to be found by a jury." The pubhshed official reports of decisions showing such home construction are held to be admissible evidence.* When the evidence admitted consists entirely of a statute or judicial opinions, the question of construction and effect is for the court alone.'^ If a foreign statute be proved, but no evi- dence given of any peculiar home construction, the court will construe it by the settled rules of construction, or as similar statutes of the state where the court sits are construed.^ 34, declaring that the laws of the several states should be taken as rules of decision in the United States courts in cases where they apjil^ ; and many clauses of the constitution cannot have their full effect as laws unless we take judicial notice of the insti- tutions of sister states. " It is commonly said that foreign law is matter of fact, and so generally it is, but not necessarily to be found by the jury. If a state law comes to us certified under the seal of the state, it comes to us as a fact in the first instance ; but then we need no jury to establish its existence and its char- acter. There may very often be cases in which a jury is necessary for this purpose, but our knowledge is not necessarily dependent on their ver- dict." See Barkman v. Hopkins, 6 Eng. (Ark.) 157. lid. 2 Id; Willardv. Conduit, 10 Tex. 213. 3KUne V. Baker, 99 Mass. 253 ; Hol- man v. King, 7 Met 384; Dyer v. Smith, 12 Conn. 384 ; Moore v. Gwynn, 5 Ired- 187; Ingraham v. Hart, 11 Ohio, 255 ; Baltimore, etc. R. R. Co. v. Glenn, 28 Md. 323 ; ConsoUdated, etc. Co. V. Cashow, 41 id. 60 ; Wilson v. Carson, 12 id. 54 ; Bristow v. Seque- ville, 5 Ex. 275 and note ; Penobscot, etc. R. R. Co. V. Bartlett, 12 Gray, 244 Ames V. McCamber, 124 Mass. 85 Craigin v. Lamkin, 7 Allen, 395 De Sobry v. De Laistre, 2 Har. & J. 191, 229. See Gardner v. Levpis, 7 GiU, 377. * Charlotte v. Chouteau, 33 Mo. 194 ; Kingsley v. Kingsley, 20 HL 203; Kline T. Baker, 99 Mass. 253 ; Andi-ewa V. Hoxie, 5 Tex. 171; McDeed v. McDeed, 67 IlL 548. Contra, Gardner V. Lewis, 7 Gill, 377. 5Klme V. Baker, 99 Mass. 253 Ely V. James, 123 id. 36; Hale v New J. St. Nav. Co. 15 Conn. 539 Lockwood V. Crawford, 18 Conn. 361 Charlotte v. Chouteau, 33 Mo. 194 Cecil Bank v. Barry, 20 Md. 287 ; Peo- ple V. Lambert, 5 Midi. 349 ; Inge v. Mm-phy, 10 Ala, 885, 897 ; SidweU v. Evans, 1 Pen. & W. 383, 388 ; De Sobry V. De Laistre, 2 Har. & J. 191 ; Ennis V. Smith, 14 How. 400; Church v. Hubbart, 2 Cranch, 187; Di Sora v. Phillips, 10 H. L. Cas. 624; Bremer V. Freeman, 10 Moore, P. C. 300; Owen V. Boyle, 15 Me. 147 ; Warnick V. Grosholz, 3 Grant's Cases, 234. 6 Smith V. Bartram, 11 Ohio St. 690. JUDICIAL NOTICE AND PROOF OF STATUTES, ETC. 257 § 193. Private statutes. — A general or public statute is a universal rule that regards the whole community ; is of public concern ; the courts take judicial notice of it. On the other hand, private statutes operate only on particular persons and private concerns; the courts do not take notice of them with- out proof; when relied on they have to be pleaded and proved.' Acts may be local and special, immediately designed to affect only a part of the territory or people under the jurisdiction of the law-making power, and temporary in duration, and yet be public because being intended for a public object.- Thus, acts for the establishment of a local government, a village or city, being for public purposes ; * or fixing or amending the bound- aries of a city or county ; '' establishing or changing the county seat;^ to organize corporations for canals, railroads or turn- pikes, when they contain provisions affecting the general public;® or authorizing particular municipalities to contribute aid for such enterprises," — are, in this country, public acts. Here the tendency has been to enlarge the limits of pubhc statutes, and to bring within them all enactments of a general character, or which in any way affect the community at large.^ 11 Black. Cora. 86; People v. Wright, 70 IlL 388; State v. Cham- bers, 93 N. C. 600; Meshte v. Van Doren, 16 Wis. 319. ■i Unity V. Barrage, 103 U. S. 447 ; Allen V. Hii-sch, 8 Oregon, 413 ; Bui-n- ham V. Acton, 35 How, Pr. 48; 1 Kent's Com. 459 ; City of Covington V. Voskotter, 80 Ky. 219. 3 People V. Wright, 70 111. 388 Clark V. Janesville, 10 Wis. 136 Mason v. IMiilliohi, 6 Dana, 140 Pierce v. Kimball, 9 Me. 54, 56 ; Hal- bert V. Skyles, 1 A. K. Marsh. 369 ; Van Swartow v. Commonwealth, 24 Pa. St 131 ; Burnliam t. Webster, 5 Mass. 266 ; Ellis v. Commissioners, 2 Gray, 378; Burhop v. Milwaukee, 21 Wis. 257. See King v. Burridge, 3 P. AVms. 496; Gorham v, Springfield, 21 Me. 58 ; PreU v. McDonald, 7 Kan. 420. * Commonwealth v. Springfield, 7 Mass. 12 ; Stephenson v. Doe, 8 Blackf . 17 508 ; New Portland v. New Vineyard, 16 Me. 69 ; West v. Blake, 4 Blackf. 234; State v. Jackson, 39 Me. 291; Ross V. Reddick, 2 111. 73. 5 State ex rel. v. Lean, 9 Wis. 279. •> Jenkins v. Union Turnpike Co. 1 Cai Cases, 86 ; Proprietors of Frj-e- burg Canal v. Frye, 5 Me. 38 ; Att'y- General v, Erie, etc. R. R. Co. 55 ]Mich. 21. " Unity V. Burrage, 103 U. S. 447. See Clark v. JanesviUe, 10 Wis. 136. 8 Unity T. Burrage, 103 U. S. 447 ; Boyle, In re, 9 Wis. 264 ; Yellow R. Improv't Co. V. Ai-nold, 46 Wis. 214 ; State V. Chambers, 93 N, C. 600 ; Price V. White, 27 Mo. 275 ; Bretz v. Mayor, etc. 6 Rob. 325 ; McLain v. Mayor, etc. 3 Daly, 32; West v. Blake, 4 Blackf. 234; Bevens v. Baxter, 23 Ark. 387; State v. Judges, 21 Ohio St. 1 ; Kerrigan v. Force, 9 Hun, 185 ; Wright T. Hawkins, 28 Tex. 452, 258 JUDICIAL NOTICE A^^D PKOOF OF STATUTES) ETC. An act authorizing a named person to construct a dam of a particular description for the purpose of improving the nav- igation of a river is a public statute.^ Acts for the incorpora- tion of banks have been held public by reason of provisions affecting the general public,- and other corporations.^ A penal act is public ; * and the defining of an offense in an act other- wise private renders it a public act." An act authorizing a foreign private corporation to do business, and providing that it shall have an officef and place of business in the state where the law is passed, and that such corporation may then sue and be sued like a domestic corporation, is a public act.® The distinction betvreen public and private acts defined in the common law of England by Blackstone is not quite the dis- tinction recognized in this country. Here acts may be public though they are local and special, when they concern the public generally, though more particularly a local community or only a class of the general public — where they concern the class in distinction from the individual.^ Where a statute of a private nature is declared to be a public act, it wUl be treated as such and need not be pleaded nor proved.^ A stat- ute amendatory of a public law is public.^ § 194. A private statute is one confined to a special case.^** An act " to enable the Bishop of Canton to make a lease to A. B." for an exceptional period is a fair example of a private statute.^^ A statute enabhng the local authorities of a particu- 1 Calking v. Baldwin, 4 Wend. 667. 6 paU Brook Coal Co. v. Lynch, 47 2 Smith V. Strong, 2 Hill, 241 ; How. Pr. 520. Louisiana State Bank v. Flood, 3 "Commonwealth v. Worcester, 3 Mart. (N. S.) 341 ; Bank of Common- Pick. 473 ; Wales v. Belcher, id. 508 ; wealth V. Spilman, 3 Dana, 150 ; Bisk W. L. § 42c; Wheeler v. Phila- Yoimg V. Bank of Alexandria, 4 Cr. delphia, 77 Pa. St. 338. 384 ; Bank of Utica v. Smedes, 3 Cow. s Brookville Ins. Co. v. Eecords, 5 684 ; Bank of Newberry v. Railroad Blackf. 170 ; Beaty v. Knowler, 4 Pet Co. 9 Rich. 495. 152 ; Covington Drawbridge Co. v. 3 Portsmouth Livery Co. v. Watson, Shepherd, 20 How. 232 ; Bacon's Abr. 10 Mass. 91, Statute, F. See Edenbm-gh R. R. v. 4Burnhamv.Acton,35How. Pr.48. Wauchope, 8 CI. & F. 710; Rogers' 5 Bacon's Abr. tit Statutes, F. ; Case, 2 GreenK. 303. Heridia v. Ayers, 12 Pick. 344; 9 Unity v. Burrage, 103U. S. 447; Burnham v. Webster, 5 Mass. 266 ; State v, Welch, 21 Minn. 22. Young v. Bank of Alexandria, 4 Cr. '0 Whart Com. on Am. Law, §§ 13, 384; Rogers' Case, 2 Greenlf. 303; 598. Eex V. Buggs, Skin. 428. n i Black. Com. 86. JUDICIAL NOTICE AND I'KOOF OF STATUTES, ETC. 259 lar city or county to raise money by tax for the payment of certain claims against it,^ or relieving a particular married woman by name of the disabilities of coverture;^ acts au- thorizing the sale of property of minors and other persons under disability,^ are private. Acts for the mere creation of a private corporation are of this character. * The recital of facts in a private statute is strong evidence against those who obtained the act,' but is not evidence against strangers,^ nor are such statutes binding on strangers." They may be avoided for fraud.^ An act may be in part iBretz V. ]Mayor, etc. 3 Abb. Pr. (N. S.) 478. See Sherman Co. v. Si- mons, 109 U. S. 735. 2 Asliford V. Watkins, 70 Ala 156. 3 Rice V. Parkman, 16 Mass. 326; Moore v. Maxwell. 18 Ark. 469 ; Stan- ley V. Colt, 5 Wall 119 ; McComb v. Gilkey, 29 Miss. 146; Wilkinson v. Leland, 2 Pet. 657 ; Lessee of Dulany V. Tilghman, 6 Gill & J. 461 ; Croxall V. Shererd, 5 Wall. 268 ; Jackson v. Catlin, 2 Jolm. 248; Munford v. Pearce. 70 Ala. 452 ; CarroU v. Lessee of Olmsted, 16 Oliio, 251 ; Stewart V. Griffith, 33 Mo. 13 ; Estep v. Hutch- man, 14 S. & R. 435; Davison v. Johonnot, 7 Met. 388 ; Boon v. Bowers, 30 Miss. 246 ; WiUiamson v. Suydam, 6 Wall 723 ; Lobrano v. NeUigan, 9 id. 295 ; Brevoort v. Grace, 53 N. Y. 245 ; Leggett v. Himter, 19 id. 445 Tliarp V. Fleming, 1 Houston, 580 Periy v. Newsom, 1 Ired. Eq. 28 Todd V. Floumoy's Heirs, 56 Ala. 99 Pickett V. Pipkm, 64 id. 520 ; Tindal V. Drake, 60 id. 170. See Watson v. Gates, 58 Ala. 647 ; Heirs of Hohnan V. Bank of Norfolk, 12 Ala, 369. * Burhop V. Milwaukee, 21 Wis. 257 ; Perry v. New Orleans R. R. Co. 55 Ala. 413 ; Conley v. Columbus, etc. R. R Co. 44 Tex. 579 ; IMontgomery v. Plank R. Co. 31 Ala. 76 ; Drake v. FleweUen, 33 id. 106; Clarion Bank v. G ruber, 87 Pa. St 468 ; Timlow v. Raihoad Co. 99 id. 284 ; Perdicaxis v. Bridge Co. 29 N. J. L. 367 ; Butler v. Robinson, 75 Mo. 192 ; Mandere v. Bonsignore, 28 La. Ann. 415 ; Carrow v. Bridge Co. PhilL L. (N. C.) 118. 5 May's Heirs v. Frazee, 4 Litt 392 ; Elmendorff v. Carmachael, 3 id. 472 ; Powers V. Bergen, 6 N. Y. 358 ; Camp- beU's Case, 2 Bland's Ch- 209. 6 Id. ■? Earl of Shrewsbury v. Scott, 6 C. B. (N. S.) 1, 157, 184; Crittenden v. Wilson, 2 Cow. 165 ; 2 Kent's Com, 466; Jackson v. Catlin, 2 John. 248; S. C. 8 id. 520 ; McKInnon v. Bliss, 21 N. Y. 206; Lucy v. Levington, 1 Vent. 175 ; Jones v. Tatham, 20 Pa. St. 398. 8 CampbeU's Case, 2 Bland's Ch. 209 ; Penn v. Baltunore, 1 Ves. Sr. 454; Partridge v. Dorsey, 3 Har. & J. 307, note; Commonwealth v. Breed, 4 Pick. 460. Bland, Chan. , in Campbell's Case, said : " A private act of parlia- ment, although sti'ictly and literally followed, as regards the authority and jurisdiction conferred (Ex parte Kmg, 2 Bro. C. C. 158 ; Ex parte Bolton School, 2 Bro. C. C. 662 2; Madd- Chan. 719), is in many respects con- sidered and construed as a mere legal conveyance; in general bind- ing only on those who are parties to it ; that is, those who petition for it or are named in the act itself and those claiming under tliem. The Case of the Chancellor of Oxford, 10 260 JUDICIAL NOTICE AXD PROOF OF STATUTES, ETC. public and in part private.^ The courts do not take judicial notice of private statutes.^ They have to be proved in the usual manner.' But in England by virtue of a statute, and in some of the states of the Union, all acts are public, and the courts take notice of them.* And under the prevalent consti- tutional prohibition of special and local legislation, the distinc- tion between pubhc and private acts has lost much of its im- portance. Coke, 57 ; Hasketh v. Lee, 2 Saimd. 84; Boulton v. Bull, 2 H. Bl. 499; Perchard v. Hejwood, 8 T. R 472 ; WaUwyn v. Lee, 9 Ves. 25 ; Biillock v, Fladgate, 1 Ves. & Bea 471 ; Vaux- hall Bridge Co. v. Earl Spencer, 2 Mad 356; S. C. 4 Cond. Ch. 28; Edwards v. Grand Jimction E. E. Co. 10 id. 85; Moore v. Usher, id. 107; 2 Black. Com. 344 ; Cru. Dig. tit 33. It is never permitted to affect strangers or to defeat the rights of bona fide purchasers for a valuable considera- tion ; because, as to strangers, a pri- vate act is considered only in the Ught of a private conveyance. Pom- fret V. Windsor, 2 Ves. 480." 1 Dwarris on St 354 ; People v. Su- pervisors, 43 N. Y. 10. 2 1 Black. Com. 86. 3 Leland v. Wilkinson, 6 Pet 317. i 13 and 14 Vic. c. 21. PART SECOND. STATUTORY CONSTRUCTION. CHAPTER XI. CLASSIFICATION AND DESCRIPTION OF STATUTES. 195. The names applied to statutes. 196. Ancient statutes of England. 197. Federal, state, territorial and colonial statutes. 198. Public and private statutes. 200. Declaratoiy statutes. 202. Affirmative and negative stat- utes. § 205. Preceptive, prohibitive and permissive statutes. 20G. Prospective and retroactive statutes. 207. Remedial statutes. 208. Penal statutes. § 195. The names of statutes. — In the preceding pages we have discussed the general nature, enactment, duration and proof of statutes and cognate topics. 'We have now to discuss the principles by which is determined their meaning and effect. These principles are adapted to the ]3eculiar nature of the statute ; therefore, a chapter explaining the different kinds of statutes, with the names by which they are designated, will naturally precede the exposition of the principles which di- versify and make up the law of hermeneutics. Some of these statutes have already been defined, but it will be useful to present them with others in one comprehensive view. They bear names significant of their origin, form or intrinsic nature. Many by name and operation are in dual contrast or contra- distinction. English statutes, in part entering into our juris- prudence and in part foreign, are distinguished as ancient and modern. In our system we have federal, state, colonial and territorial statutes. A generical classification of all statutes is as public or private. The former are divided into species of general and local or sj)ecial statutes. General statutes are fur- ther divided bv other distinctions. In respect to duration they 262 CLASSIFICATION AND DESCRIPTION OF STATUTES. are temporary or jperjpetual; in respect toJ^heir force witli ref- erence to the date of taking effect, pro82:)€ctive or retroactive' as to the nature of their operation, declaratory^ permissive, pro- hihitive, preceptive, remedial, directory, mandatory, or repealing statutes; as to form, affirmative or negative. Another large and important class of public statutes is designated as penal. % 196. Ancient statutes of England. — The statutes termed ancient are those adopted in Latin and French prior to the reign of Edward III., which commenced in 1327.^ Since that time they are contradistinguished as nova statuta, and since the accession of Eichard III., 1483, the statutes have been first printed in English, and entirely so since the time of Henry YIL^ Until late in the reign of Edward III., oral proceedings in the courts were conducted in the French language, "a tongue much unknown in the realm," and the pleadings and record in Latin. In the thirty-sixth year of his reign the proceedings were required to be conducted in English, and by the same statute the pleadings and record continued in Latin. Formerly the judges formulated the statutes from the peti- tion of the commons and the king's answer.' AU those passed at one session of parliament were strung together, making so many capitula or chapters of one statute ; to which was usually prefixed a memorandum of the time and place of the meeting of parliament, and the occasion for calling it.^ On account of the generality or brevity of ancient statutes, a very liberal and latitudinary construction was practiced and held to be justifi- able,^ not admitted of new or modern statutes.^ Hence, there is a wide distinction between the construction of ancient and modern statutes. This consideration should detract from the force of rules of interpretation which originated in reasons peculiar to the administration of ancient statutes, and originat- 1 Dwarris, 2d ed. 460. < Dwarris, 460. 2 Id. 5 2 Inst. 401 ; Gwynne v. BumeU, 6 » ]\Iills V. Wilkins, 6 Mod. 62 ; Att'y- Bing. N. C. 561 ; Wilson v. Knubley, Gen'l V. Weymouth, 1 Amb. 22 , Rex 7 East, 128 ; McWiUiam v. Adams, 1 V. Williams, 1 W. BL 93 ; Morant v. Macq. H. L. Cas. 120 ; Montrose Peer- Taylor, 1 Ex. D. 194 ; Shrewsbury v. age, id. 401. Scott, 6 C. B. (N. S.) 1; Jeffreys v. 6 Miller v. Salomons, 7 Ex. 475; Boo3ey.4H.L.982; Chance v. Adams, Bradley t. Clark, 5 T. R 201 ; Brad- 1 Lord Raym. 77 ; Hadden v. Col- ford v. Treasurer, Peck, 425 ; Jones lector, 5 Wall. 110 ; Bac. Abr. Court v. Kearns, Mart & Y. 241 ; Waller v. of Parliament, E. Harris, 20 Wend. 555. 561. CLASSIFICATION AND DESCRIPTION OF STATUTES. tM'6 ing in the forms of legislation then in vogue and now obsolete, or displaced by others radically different. These ancient stat- utes are a part of our common law.' § 197. Federal, state, territorial and colonial statiites.- The valid acts of congress are those which it enacts in the exercise of the delegated powers enumerated in the federal constitution.^ They have force and are binding throughout the Union and the federal domain, or in such lesser part of it as the act professes to operate in. On such subjects the fed- eral laws are supreme — they are domestic ; all courts take notice of them.^ Treaties are also a part of the law.* The federal courts are organized for the enforcement of those laws ; they reach in theii* operation the entire nation, and they are binding on the states and all their departments. The states have supreme power within then* limits for local government, except as this power is restrained by the concession of the federal powers in the constitution of the United States. "With this hmitation, for the purpose of local government, the states are supreme and independent.^ The law-making powers of state legislatures are plenary, subject only to the restrictions of the federal and state constitutions. Colonial statutes are those in force in the colonies prior to their becoming states. Those laws which were suited to their new condition, poht- ically and otherwise, continued to form part of the jurispru- dence of the succeeding states until altered by later statutes.* Territorial statutes are those enacted by territorial legisla- tures, pursuant to the authority of an act of congress.^ § 198. Public and private statutes. — Blackstone defines a public act as a universal rule that regards the whole commu- J Ante, § 15. v. Schooner Peggy, 1 Cr. 103 ; Fos- 2McCulloch V. Maryland, 4 Wheat ter v. Neilson, 2 Pet. 253. 316; United States v. Fisher, 2 Cr. s Carpenter v. Pennsylvania, 17 358 ; Calder v. Bull, 3 Dall. 386 ; Bris- How. 456 ; Pi-igg v. Pennsylvania, 16 coev. Bank of Kentucky, 11 Pet 257; Pet 539; New York v. 3Iiln, 11 id. Oilman v. Philadelpliia, 3 Wall 713 ; 102 ; Strader v. Graham, 10 How. 82 ; Padelf ord v. Mayor, etc. 14 Ga 438. Sears v. CottreU, 5 Mich. 251 ; Tiu-ner 3 Ex parte Siebold, 100 U. S. 371 ; v. Board of Commissioners, 27 Kaa. •Cook V. Moffat 5 How. 295 ; United 639. States V. Rathbone, 2 Fame, 578; ^ Ante, % 19. Dodge V. Woolsey, 18 How. 341. ' National Bank v. Yankton Ca < Const art VI, 2; United States 101 U. S. 129; ante, § 23; 2 Story on Const § 1325. 2G4 CLASSIFICATION AND DESCRIPTIOX OF STATUTES. nit J, of which the courts are bound to take judicial notice ; private acts are those which concern only a particular species, thing or person, and of these the courts are not bound to take notice ; they must be pleaded.^ Dwarris thus defines these statutes in contradistinction : " Public acts relate to the public at large, and private acts concern the particular interest or benefit of certain individuals or particular classes of men." A public act need not be a universal rule, in the sense that it must purport to apply to the whole territory or the entire people subject to the legislative jurisdiction. It may be appli- cable to only the smallest political division, or to a small class of the people, and still be a public statute. If it concern the public, and not merely a private interest, it is a public statute, though local or special.^ A public statute affects the pubhc at larffe, either throuo^hout the entire state or within the limits of a particular locality where the act operates ; and a private statute relates to or affects a particular person, by name, or so that certain individuals or classes of persons are interested in a manner peculiar to themselves, and not in com- mon with the entire community.* The distinction by the English common law is not very plainly marked. The Ameri- can cases, however, show a manifest divergence, by enlarging the class of public statutes.^ In a pubhc act there may be a private clause.^ So, in a private act, there may be a provision of a pubhc nature ; ^ and thus a statute may be public in one part and private in another. A pubhc statute is local when it relates to a particular place or locality, or does not extend to aU places which would classify with that to which the act is confined.^ It is special not only when it is local, but also 1 1 Black. Com. 86 ; Prigge v. Ad- 103 U. S. 447 ; Stephens Co. v. R R. ams, Skin. 350. Co. 33 N. J. L. 229 ; State v. Bergen, 2 Ante, % 203 ; Clark v. Janesville, 34 N. J. L. 438 ; Winooski v. Gokey, 10 Wis. 138 ; State v. Baltimore, 29 49 Vt. 283. Md. 516 ; Wheeler v. Philadelphia, 77 5 Potter's Dwarris, 53. Pa. St 338 ; Brooks v. Hyde, 37 CaL 6 Rex v. Bugg, Skin. 428 ; Allen- 366 ; Cox v. State, 8 Tex. App. 254, town v. Hower, 93 Pa. St 332, 336 ; 287. Peoi^le v. Supervisors of Chautauqua 3 State V. Chambers, 93 N. C. 600 ; Co. 43 N. Y. 10 ; Bretz v. New York, People V. Wright, 70 III 388 ; Monta- 4 Abb. Pr. (N. S.) 258 ; IMcLain v. New gue V. State, 54 Md. 481 ; State v. York, 3 Daly, 32 ; Heridia v. Ayres, Helmes, 3 N. J. L. *1050. 12 Pick. 334. < Ante, § 203 ; Unity v. Burrage, ' People v. Harper, 91 HL 357 ; State CLASSIFICATION AXD DESCRIPTION OF STATUTES. 205 when it is confined in its subject to less than a class of persons or things.^ These distinctions have been treated more at large in another place, to which the reader is referred.- § 199. Public and private statutes are construed upon dif- ferent considerations. In a late case Lord Esher, M. K., said : " In the case of a public act, you construe it keeping in view the fact that it must be taken to have been passed for the pub- lic advantage, and you apply certain fixed canons to its con- struction. In the case of a private act which is obtained by persons for their own benefit, you construe more strictly pro- visions which they allege to be in their favor, because the per- sons who obtain a private act ought to take care that it is so worded that that which they desire to obtain is plainly stated in it; but when the construction is perfectly clear, there is no difference between the modes of construing a private act and a public act." ^ However difficult the construction of a private act may he, when once the court has arrived at the true con- struction, after having subjected it to the strictest criticism, the consequences are precisely the same as in the case of a public act.* § 200. Declaratory statutes. — A declaratory act was orig- inally one declaratory of the common law ; such statutes were made, says Mr. Dwarris, when an old custom of the kingdom is almost fallen into disuse, or become disputable, in which case the parliament thinks proper, in jperjpetuam rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been.^ Such statutes are to be V, Judges, 21 Ohio St 1 ; People v. 343 ; People v. Davis, 61 Barb. 456 HUls, 35 N. Y. 449, 451 ; Gaskia v. Bretz v. New York, 6 Robt 325 Jleek, 42 id. 188 ; People t. O'Brien, Meshke v. Van Doren, 16 Wis. 319 38 id. 193, 195 ; Kerrigan v. Force, 68 Price v. White, 27 Mo. 275. ill 381 ; Fire Department of Troy v. 1 Ante, % 193. See Wheeler v. Phila- Bacon, 2 Abb. App. 127 ; People v. delpliia, 77 Pa. St. 338. Allen, ILans. 248; Healey v. Dud- 2^4>i^e, § 193. ley, 5 Lans. 115; Burn ham v. Acton, ^Altrhicham Union v. Chesliire 4 Abb. Pr. (N. S.) 1 ; Levy v. Stat Fore v. WUhanis, 35 I\liss. 533. construing it moperative." The sec- See Dugan v. Bridge Co. 27 Pa. St end section was ti-eated as in the nat- 303 ; Mason v. Boom Co. 3 Wall. Jr. ure of a proviso, and controlling tlie 252 ; ]\Iattor of Second Ave. Church, previous provisions. 66 N. Y. 395. JBish. W. L.§§63-65. 294 PARTS OF A STATUTE AJSTD THEIR RELATIONS. it is of dubious import, but only wbere the contradiction is clear and explicit.^ The rule may be reversed and effect given to the clause or provision standing first in the act when it is more in accord with the general purpose of the act, construed in the light and with the aid of all other statutes in pari ma- teria? " The true principle undoubtedly is that the sound in- terpretation and meaning of the statute, on a view of the en- acting clause, saving clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repug- nancy.'" * § 222. Provisos, exceptions and saving clauses. — It has not been an unfrequent mode of legislation to frame an act with general language in the enacting clause, and to restrict its operation by a proviso. It is often found difficult to limit the language in the enacting clause so as to admit every excep- tion or limitation designed to be introduced into the section in its finished state.* Provisos and exceptions are similar ; in- tended to restrain the enacting clause ; to except something which would otherwise be within it, or in some manner to modify it.' A proviso is something engrafted upon a preced- ing enactment, and is legitimately used for the purpose of taking special cases out of a general class, or to guard against misinterpretation.^ The general intent will be controlled by the particular intent subsequently expressed.'^ "Where a stat- 1 State V. WilUams, 8 IncL 191 ; rey, L. R. 5 Q. B. Div. 170 ; McRae v. Mason v. Boom Co. 3 Wall Jr. 252. Holcomb, 46 Ark. 306 ; Stowell v. 2 Sams V. King, 18 Fla. 557 ; Kan. Zouch, 1 Plowd. 361. Pac. Ry. Co. v. Wyandotte, 16 Kan. 6 Savings Bank v. United States, 19 587 ; Folmer's Appeal, 87 Pa. St 133 ; Wall. 227 ; Minis v. United States, 15 Renner v. Bennett, 21 Ohio St. 431. Pet 445 ; Bank for Savings v. The See Savings Institution v. Makin, 23 Collector, 3 Wall. 495 ; Pott. Dwar. Me. 360. 118 ; Boon v. Juhet 2 IlL 258. 3 1 Kent's Com. 463, note 6. ' Ihmsen v. Monongahela Nav. Co. 4 Savings Institution v. Makin, 23 32 Pa. St 152; State v. Goetze, 22 Ma 360. Wis. 363 ; Gregory's Case, 6 Co. 195; sWayman v. Southard, 10 Wheat Foster's Case, 11 Co. 566; Rex v. 1 ; Pearce v. Bank of Mobile, 33 Ala. Taunton St James, 9 B. & C. 831, 693 ; Rawls v. Kennedy, 23 id. 240 ; 836 ; Minis v. United States, 15 Pet Vorhees v. Bank of United States, 10 445. Pet 449 ; Mullins v. Treasurer of Sui"- PARTS OF A STATUTE AND THEIR RELATIONS. 295 ute forbids the doing of an act except upon a condition pre- cedent, as obtaining a license, and it is impossible to perform the condition, as if the act provides that no license shall be granted, the condition is valid and the prohibition absolute.' A proviso is so identiiied with the text of a statute which it quahfies that if such enacting part is repealed by a subsequent statute repugnant to it, the proviso will fall also.- The effect of an exception which is a part of the enacting clause and is of general application is simply to restrict it as to the matter excepted. It operates for this purpose co-extensively with the matter which precedes. Hence in actions based on the statute the pleadings must negative the exception.' It is not universally so extensive as the provision w^hich it qualifies, as to subject- matter, for its purpose may be, and usually is, to reduce the subject-matter by withdrawing a part from the operation of the general words, or to give them a qualified operation merely as to the matter of the exception.* Where there is a prohibi- tion, grant or regulation in general words, and a saving of par- ticular things, there is a strong implication that what is excepted would have been within the purview if it had not been ex- cepted ; and thus the purview may be made more comprehen- sive than it would otherwise have been.^ Thus, if there be a grant of aU trees on a piece of land, which, if nothing more had been said, would only have embraced forest trees, but there is an exception of ap])le trees, other fruit trees, as peach and pear trees, will pass.'' But it is a matter of common ex- perience that savings and exceptions are often introduced from abundant and even excessive caution. And it would some- times pervert the intention of the author of the writing, if every other thing of the same general tenor as that excepted should be regarded as embraced in the general words. The rule, therefore, should be so defined as to avoid this perversion, and be limited to the cases where it is equivocal upon the general 1 State V. Douglass, 5 Sneod, 608. •« Bank of U. S. v. McKenzie, 2 2 Church V. Stadler. 16 Ind. 463. Brock. 393. s Vavasour v. Ornirod, 6 B. & C. » Gibbons v. Ogden, 9 Wlieat 191 ; 430; People v. Berbemch, 11 How. Brown v. Maiyland, 13 id. 438; Pr. 333 ; Spieres v. Parker, 1 T. R. 141 ; United States v. Gilmore, 8 Wall 330. Hoffman v. Petei-s, 51 N. J. L. 244 ; 6 vin. Abr. Grants, H. 13, p. 61. Blasdell v. State, 5 Tex. A pp. 263. 296 PAKTS OF A STATUTE AXD THEIK RELATIONS. lancruage whether a particular thing is embraced ; then the ex- ception of another thing of a similar kind will show that the first was intended to be included.^ § 223. The natural and appropriate office of the proviso be- ing to restrain or qualify some preceding matter, it should be confined to what precedes it unless it clearly appears to have been intended to apply to some other matter.- It is to be con- strued in connection with the section of which it forms a part, and it is substantially an exception.^* If it be a proviso to a particular section, it does not apply to others unless plainly in- tended.^ It should be construed with reference to the imme- diately preceding parts of the clause to which it is attached.* In other words, the proviso will be so restricted in the absence of anything in its terms, or the subject it deals with, evincing an intention to give it a broader effect." It is not an arbitrary rule to be enforced at all events, but is based on the presump- tion that the meaning of the law-maker is thereby reached.' If irrelevant to the enacting part and meaningless with refer- ence thereto, it has been rejected.^ And it was remarked in argument in Ihmsen v. Monongahela Navigation Co. :^ "If it was not intended to restrain the general clause it was a nullity." This is taking a proviso very strictly. The intention of the law-maker, if plainly expressed, must have the force of law, though it may be in the form of a proviso ; the intention expressed is ]3aramount to form.''' The form, however, is in- 1 Tinkham v. Tapscott, 17 N, Y. ^ United States v. Babbit, 1 Black, 152. 55. 2 Pearce v. Bank of Mobile, 33 Ala. ' Friedman v. Sullivan, 48 Ark. 213. 693 ; Bank for Savings v. The Col- See cases in last note. lector, 3 Wall 495 ; Savings Bank v. 8 Mullius v. Treasurer of Surrey, L. United States, 19 WalL 227. R. 5 Q. B. Div. 170. 3 Id. 9 32 Pa. St. 153. 4 Callaway v. Harding, 23 Gratt "> State v. Eskridgo, 1 Swan, 413; 547. Beaumont v. Irwin, 2 Sneed, 291, 302. 5 Partington, Ex parte, 6 Q. B. 649, See Foster v. Pritchard, 2 H. & N. 653 ; Spring v. Collector, 78 111. 101 ; 151 ; Gibbons v. Ogden, 9^^Tieat 191 ; Rex V. Newark-upon-Trent, 3 B. & C. Farmers' Bank v. Hale, 59 N. Y. 53 ; 71 ; Lehigh Co. v. Meyer, 102 Pa. St Chapin v. Cruseu, 31 Wis. 209 ; 479 ; Gushing v. Worrick, 9 Gray, McDermut v. LoriUard, 1 Edw. CIl 382. See United States v. Babbit, 1 273, 276 ; State v. Harkness, 1 Brev. Black, 55; Mechanics', etc. Bank's 276; Ayers v. Knox, 7 Mass. 306; Appeal, 31 Conn. 63 ; Rogers v. Vass, 6 State v. King, 44 Mo. 283 ; Smith v. Iowa, 403. People, 47 N. Y. 330 ; Castner v. Wal- PAKTS OF A STATUTE AJND THEIR RELATIONS. 297 lluential in the iiiquiry for the intent. The proper function of a proviso being to limit the language of the legislature, it will not be deemed intended from doubtful words to enlarge or extend the act or the provision on which it is engrafted.' Where it follows and restricts an enacting clause generally in its scope and language, it is to be strictly construed and limited to ob- jects fairly within its terms.- To a statute allowing receivers of public moneys one per cent, on the money received, as a compensation for cleric hire, receiving, safe keeping and trans- mitting such money, was added this proviso : " that the whole amount which any receiver of public moneys shall receive under the provisions of this act shall not exceed, for any one year, the sum of §3,000." Applying a strict construction, it was held that this proviso limited the amount which each individual receiver was annually entitled to, and not the amount payable annually to the incumbents of the office, whether one or more. Story, J., said he was led to the general rule of law which has always prevailed and become consecrated as ahnost a maxim in the interpretation of statutes, that when the enacting clause is general in its language and objects, and a proviso is after- wards introduced, that proviso is strictly construed, and takes no case out of the enacting clause which does not fall fully within its terms." It should be within its letter and purpose.^ The general law of Illinois making exemption of certain amounts of personal property from execution in favor of debtors was qualified by a provision that " no personal property shaU be exempted • • • when the debt or judgment is for the wages of any laborer or servant." The court said " it would seem that the same policy which dictates a liberal construc- tion of the statute in furtherance of its general beneficial purpose would necessitate a restricted construction of an ex- ception by which its operation is limited and abridged ; " but, independent of that consideration, the court held that pro^'isos rod, 83 lU. 171, 179 ; Carroll v. State, 50 Cal. 420 ; Butts v. RaUroad Co. C3 58 Ala, 396 ; Commissioners v. Keith Miss. 462 ; McRae v. Holcomb, 46 Ark. 3 Pa St. 218. 306 ; Loolver v. Davis, 47 Mo. 140 ; 1 Re Webb, 24 How. Pr. 247. Mayor, etc. v. ]\lagTuder, 34 Md. 381 ; 2 Bragg V. Clax-k, 50 Ala, 363 ; Epps Soutligate v. Goldthwaite, 1 Bailey, V. Epps, 17 lU. App. 196 ; Roberts v. 367. Yarboro, 41 Tex. 449 ; Willingham v. 3 United States v. Dickson, 15 Pet Smith, 48 Ga. 580 ; Blood v. Fairbanks, 141. 298 PARTS OF A STATUTE AND THEIR RELATIONS. sliould be strictly construed, and accordingly it should be con- fined to those popularly known as laborers and servants, and did not include book-keepers, managers and other like employees, eno-ao-ed for skill and knowledge.^ The erection of certain dams being authorized, the act provided for compensation for any damages, direct or consequential, which might be occasioned to private property by the dams. A more specific provision in the same section was that the company authorized to maintain the dams should be liable for all consequential damages result- ing to the owner or owners of real property situate upon either side of the improvement. The cornet remarked that " there was no necessity for a proviso unless to restrain terms so general as to embrace injuries to every species of property, wherever situated, that might sustain damages in consequence of the dams." ^ § 221. The adjudications are instructive upon the exceptions to general statutes, extensively adopted, abohshing objections to the competency of witnesses. Where the general aflBrma- tive provision admits a witness, he can only be excluded where he is plainly included in the terms of the exception.* The ob- jection of being a party or interested being removed, an ex- ception excluding a party in actions by or against the executor or administrator of the opposite party will not apply to a suit by a surviving partner.* 1 Epps V. Epps, 17 IlL App. 196. were parties to the issue, that is, par- 2 Ihmsen v. Monongahela Nav. Co. ties to the record ; and those inter- 33 Pa. St. 153. ested in the issue to be ti-ied, that is, 3 Roberts v. Yarboro, 41 Tex. 449 ; those wlio, although not parties to Bragg V. Clark, 50 Ala. 363 ; Blood v. the record, held such relations to the Fau-banks, 50 CaL 420 ; McRae v. Hoi- issue that they would lose or gain by comb, 46 Ark. 306 ; Looker v. Pavis, the dkect legal operation and effect 47 Mo. 140. of the judgment A witness may be 4 Bragg V. Clark, 50 Ala. 363 ; Rob- interested in the issue without being erts V. Yarboro, 41 Tex. 449 ; Bird v. a party thereto — a distinction which Jones, 37 Ark. 195 ; Nolen v. Harden, seems to have been recognized in all 43 id. 307 ; WasseU v. Armstrong, 35 the statutes to wliich reference has i.i 247. In Potter v. National Bank, been made. But whether a party to 103 U. S. 163, Harlan, J., referring to or only interested in the issue, the section 858 of the Revised Statutes of witness is not excluded in the com-ts the United States, said: "The first of the United States upon either clause of that section shows that ground, except that in actions in there was in the mind of congress wliich the judgment may be rendered two classes of witnesses, — those who for or against an executor, a d minis - PARTS OF A STATUTE AND THEIR KELATI0N8. 299 § 225. A saving clause is, like a proviso, an exemption of a special tiling out of the general things mentioned in the stat- tute.' Its name implies such exemption to preserve from loss or destruction, and such is its use. It is generally employed to restrict repealing acts; to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute.- An absolute repeal puts an end to such rights, powers and pro- ceedings, and discharges such penalties.^ To preserve them to any extent or for any purpose requires a special provision in the repcaUng act or existing statute having a saving effect. When such saving is included in the repealing statute it usu- ally follows the repealing clause. The same reasons which exist for a strict construction of a proviso apply to a saving clause where there is an express repeal, and the saving clause is intended to restrict it. The special intent in the saving clause prevails over the general intent in the repeal ; but the repugnance will be reduced to a minimum in civil cases by construction of the former. The saving clause, however, is to have a reasonable construction to carry out the just and obvious purpose of the law-maker.* In an act repeahng a temporary ti-ator or guardian, no party to tlie Governor v. Howard, 1 Murphy (N.C.), action can testify against the other as 465; Commonwealth v. Kim ball, 21 to any ti-ansaction with, or statement Pick. 373 ; Smith v. Banker, 3 How. by, the testator, intestate or ward, Pr. 142; United States v. Helen, 6 unless called to testify thereto by the Cranch, 203 ; People v. GiU, 7 C al. opposite party, or required to testify 356 ; Commonwealth v. Bennett, 108 by the com-t The proviso of section Mass. 30 ; Rex v. Justices, 3 BmT. 858 excludes only one of the classes 1456; Cochran v. Taylor, 13 Ohio St described in the first clause, — those 382 ; United States v. Kohnstamm, 5 who are technically parties to the Blatchf . 222 ; Commonwealth v. Ed- issue to be tried, — and we are not at wards, 4 Gray, 1 ; Files v. Fidler, 44 hberty to suppose that congress in- Ark. 273 ; Gilleland v. Schuyler, 9 tended the word 'party,' as used in Kan. 569; Beatty v. People, 6 Colo, that proviso, to include both those 538; Harris v. Townshend, 56 Vt. who, according to the established 716. rules of pleading and evidence, are ' Ante, §g 162-166 ; and see Bish. parties to the issue, and those who, W. L. §§ 163, 168, 176, 177, 180. not being parties, have an interest in •* Toutill v. Douglas, 33 L. J. Q. B. the result of that issue." 66 ; Linton v. Blakeney Joint Co-op. 1 Dwar. Stat. (2d ed.) 513. Society. 3 H. & C. 853 : State v. Doug- 2 Commonwealth v. Marshall, 11 lass, 33 N. J. L. 3G3 ; State v. Kelley, Pick. 350 ; Taylor v. State, 7 Blackf. 3 1 N. J. L. 75 ; McGavisk v. State, icL 93; The Ii-resistible, 7 Wheat 551 ; 509 ; State v. Ti-enton, 38 id. 64 ; Cum- 300 PAETS OF A STATUTE AND THEIK KELATIONS. statute, a saving will only restrict the repeal so that persons who had offended against the act repealed can be prosecuted, convicted and punished as though there were no repeal. The mere saving does not create any power to punish, but only to preserve that which before existed.^ A territorial act of 1839 in Iowa defined the crime of murder and prescribed the penalty. An act of 1843 repealed that of 1839, with a proviso that any person who had committed any crime punishable by it should be prosecuted and punished according to it, the same as if the repealing act had not been passed. The code of 1851 repealed all prior acts with the saving that crimes committed under any act repealed by it should not be affected by it. It was held that there was thereafter no law in force for punishing the offense of murder committed in 1840 ; that the code of 1851 only repealed the act of 1843, and did not repeal the act of 1839, for it had been repealed before; hence the saving in the code authorized no punishment for crimes committed against the act of 1839.2 In Downs v. The Town of Iluntington,^ the court said it would give a saving clause a very Uberal construction to save a meritorious verdict which depended on a statute, and had not been reported when the repeal of the statute took effect. " A suit or proceeding " in a saving clause has been held to in- monwealth v. Pointer, 5 Biish, 301 ; cause it was in violation of the law Titcomb v. Insurance Co. 8 Mass. 328 ; of 1839, which, as to past offenses, Isliam* V. Bennington Iron Co. 19 was expressly continued in force. Vt 230. For such offenses it was just as much 1 The Irresistible, 7 Wlieat, 551. the law of the land as was the law of 2 Jones V. State, 1 Iowa, 395, 1843 for ah subsequent offenses. Our Wright, C. J., thus expressed his dis- courts, in the administi'ation of it, sent : " I adnut that but for the sav- and in punishing offenses committed ing clause contained in section 48 of thereimder, must necessarily have so the act of 1843, there would have re- treated it. . . . The power to mained no power to punish for tliis prosecute, convict and punish offend- offense. The provision there made ers against the act repealed, remains as to past offenses, however, I tliink, as perfect as if the repeahng act had was substantially to that extent a never been passed. There was no re-enactment of the law of 1839. power to punish created by the re- Thus, up to the adoption of the code, pealmg act of 1843, but an express it is conceded that tliis offense covUd preservation of a power that before have been punished. I ask by what existed." authority, and why? Clearly, be' 3 jjs Conn. 588. PAETS OF A STATUTE AND THEIR RELATIONS. 3Ul elude an execution, because it is the final step in a suit.' An appropriation by a city council to meet the current expenses of the city was held to be " a proceeding " within the saving of a subsecpient amendment of the charter, taking effect before the appropriation was expended, Hxing a hmit transcended by that appropriation.^ But in Gordon v. The State,' the court in expounding the general provision that " the repeal of a stat- ute does not . . . affect any . . . proceeding com- menced under and by virtue of the statute repealed," held that the word proceeding is a technical word; that there- fore the holding of an election for permanently locating a county seat was not a proceeding within that provision. A statute authorized a release to the widow by the state of lands escheated from the deceased husband in consequence of his death without heirs capable of inheriting. A saving clause provided that nothing therein contained " shall affect any right which any other person may lawfully have to said prop- erty." One having no lawful right thereto could not invoke the aid of that provision to protect a possession wrongfully acquired.* The provision in a general repealing act that " no offense committed or penalty incurred previous to the time when any statutory provision shall be repealed shall be affected by such repeal," was held to have reference solely to the laws repealed by the act, and to have no reference to future legis- lation.* § 226. The legislature have the power to pass a general sav- ing statute which shall have the force and effect to save rights and remedies, except Avhere the repealing statute itself shows that it was not the intention of the legislature that such rights and remedies should be saved." Though one legislature cannot bind future legislatures, and each can make its laws prevail against any that exist, and its intention in that regard 1 Dobbins v. First Nat Bank, 112 10 id. 113; Grace v. Donovan, 12 IlL 553. Minn. 580 ; Wilson v. Herbert, 41 N. 2 Beatty v. People, 6 Colo. 538. J. L. 454 ; Brisbin v. Farmer, 16 3 4 Kan. 489. Minn. 215; Sanders v. State, 77 Ind. * White T. White. 2 Met (Ky.) 185. 227; State v. Shaffer, 21 Iowa, 486; ■^Mongeon v. People, 55 N. Y. 613. State v. Ross, 49 Mo. 416; Tipton v. 6 WiUetts T. Jeffries, o Kan. 473 ; Carrigan, 10 III. App. 318 ; Fanner v. Gilleland v. Schuyler, 9 id. 569 ; State People, 77 111. 322, V. Crawford, 11 id. 32 ; State V. Boyle, 303 PAETS OF A STATUTE AJH) THEIK KELATIOXS. will be law,^ yet, as all legislatures are presumed to proceed with a knowledge of existing laws, they may properly be deemed to legislate with general provisions of such a nature in view. When a repeal is enacted accompanied by no provision specially for existing rights which would be affected by it, it should be assumed that they are to have, and were intended to have, such protection as other statutes will give them. In such cases the repealing act is to be considered as hmited in its effect and operation in the same manner and to the same extent as if it contained the saving provided by the general law.- Thus, where a general provision existed that the repeal of an act shall not affect "a right accruing, accrued, acquired or established," the subsequent repeal of an act allowing dam- ages for injuries on the highway did not affect an existing cause of action.^ Such a saving has reference to rights, not to procedure. Forms and proceedings are not contemplated further than they may be necessary to the preservation of rights.'' § 227. In penal acts provisos or exemptions in favor of the accused are Hberally construed on the same considerations that penal laws are strictly construed. As stated by Mr. Bishop, the doctrine is : " That in favor of the accused person criminal statutes may be either, according to the form of the provision, contracted or expanded by interpretation in their meanings, so as to exempt from punishnient those who are not within their spirit and purpose, while at the same time . . . they can never be expanded against the accused so as to bring 1 Townsend v. Little, 109 U. S. 504 isted, and the courts are quite free to 2 Lakeman v. Moore, 32 N. H. 410, consider what the subsequent legisla- 413. In Files v. Fuller, 44 Ark. 273, tui'e did in fact intend, or had power the com't thus remark upon such a to do. StUl it has kept its place on general provision : " Tliis statute has the statute books, and it is persuasive very Uttle importance save in. herme- at least that subsequent legislatures neutics, and has been rarely invoked ; meant to keep in harmony with it, for no legislature has power to pre- and in their legislation supposed it scribe to the com-ts itdes of inter- would go without saying, that, when pretation, or to fix for future legisla- a repeal was made, aU rights in suits tures any hmits of power as to the pending under the old statute would effect of their action. Any subsequent be preserved," legislature might make its repeahng ^ Harris v. Townshend, 56 Vt 716. action operate in pending suits as * Brotherton v. Brotherton, 41 effectually as if no such statute ex- Iowa, 112. PARTS OF A STATUTE AND THEIR RELATIONS. 303 within their penalties any person who is not within tlieir letter." ^ A statute creating an offense was repealed Avith this saving clause : that nothing contained in the repealing act " shall affect any prosecution now pending or which may be here- after commenced for any public offense heretofore committed," etc. Prior to the repeal a prisoner had been convicted under the statute and sentenced to be executed, but the execution did not take place at the time appointed. In such cases, by the general law, the convict might be brought before the court at an}^ subsequent time to be resentenced, and then before resentencing the court is to make inquiry whether any legal reason exists against it. It was held that a repeal of the stat- ute defining the offense was a legal reason, and not within the saving.- Some additional cases bearing upon the subject of saving in penal statutes are collected in a note below.' § 228. The effect of a total conflict between different parts of the same act has been discussed." Apparently this rule ap- plies to a proviso ; ^ but it has been held not to apply to a saving clause.® Chancellor Kent says the reason of the distinction is not very apparent, and that it is difficult to see why the act should be destroyed by the one and not by the other." Text- writers must take the law as they find it ; so must the courts ; but where an unmeaning distinction has found its way into the law for reasons which may have existed and have ceased, then the distinction ought to cease. Cessante ratione legiSj cessat et ipsa lex. It is obviously to be the aim in the construc- tion of the purview and saving clause not to frustrate and de- stroy either but to give them severally effect.^ § 229. Interpretation clauses. — The legislature cannot au- thoritatively declare what the law is or has been ; that is a 1 Bish. W. L. § 230. road Co. 7 Heisk. 518 ; Attorney-Gen- 2 Aaron v. State, 40 Ala. 307. eral v. The Chelsea Water-works, 3 Sanders v. State, 77 Ind. 227 ; Peo- Fitzgib. 195. See Jackson v. Moye, 33 pie V. GUI, 7 Cal 356 ; Reg. v. Smith, Ga. 296. 1 L. & C. 131 ; Commonwealth v. *> Walsingham's Case, 2 Plowd. 565 ; Standard OU Co. 101 Pa. St 119 ; Hew- Wood's Case, 1 Co. 40a, 47a; 1 Kent, ard V. State, 13 Sm. & M. 261; Dull Com. 462; Mitfordv. Elliott, 8 Taxint V. People, 4 Denio, 91 ; Sneed v. Com- 13, 18. monwealth. 6 Dana, 338. " 1 Kent, Com. 463 ; Bish, W. L. * Ante, § 311. 8 65. 5 Townsend v. Brown, 24 N. J. L. ^ Scott v. State, 22 Ai'k. 369. 80 ; 5 Hill, 225, note a; White v. RaU- 30tlr PAETS OF A STATUTE AND THEIR RELATIONS. judicial function and appertains to the courts^ The legisla- ture has exclusively the power to make laAVS, and thus de- clare what the law shall be.- A legislative construction of a statute is entitled to consideration, and will often have much weight.^ In cases of doubt and uncertainty the solemn dec- laration of the legislative branch of the government, or practi- cal construction by the executive department, gives a certain sanction, and will be influential with the courts.* So the meaning of particular words in a recent statute will have weight ; and their meaning may be inferred from earlier stat- utes in which the same words or language has been used, where the intent was more obvious or had been judicially es- tablished. The words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signifi- cation ; but if a contemporaneous construction by the legis- lature of the same words can be discovered, it is high evidence of the sense intended.'^ Where the law-maker declares its own intention in the enactment of a particular law, or defines the sense of the words it employs in a statute, it not only exer- cises its legislative power, but exercises it with a plausible aim ; for it professes to furnish aid to a correct understanding of its intention, and thus to facilitate the primary judicial in- quiry in the exposition of the law after it is finished, promul- gated, and has gone into practical operation. lOgden V. Blackledge. 2 Cranch, Hart v. Reynolds, 1 Heisk. 208; 272 ; Duncan v. State, 7 Humph. 148 ; Dunlap v. Crawford, 2 McCord Eq. Gough V. Pratt, 9 Md. 526 ; Ashley's 171 ; Pike v. Megoun, 44 Mo. 491. Case, 4 Pick. 23 ; Watson v. Hoge, 7 See Aikin v. Western R. R. Co. 20 Yerg. 344; Wayman v. Southard, 10 N. Y. 370; Prentiss v. Danaher, 20 "Wlieat. 1; Governor v. Porter, 5 Wis. 311; State v. Oskins, 28 Ind. Humph. 165 ; BiDgham v. Supervis- 364 ; Morgan v. Smith, 4 Minn. 104. ors, 8 Minn. 441 ; Tilford v. Ramsey, * Mathews v. Shores, 24 111. 27 ; 43 i\Io. 410 ; People v. Supervisors, 16 Union Ins. Ca v. Hoge, 21 Hov?r. 35 ; N. Y. 481; Dash v. Van Kleeck, 7 Solomon v. Commissioners, 41 Ga. John. 477. See Young v. Beardsley, 157 ; Wright v. Forrestal, 65 Wis. 341, 11 Paige, 93; Jackson v. Phelps, 3 348; Gough v. Dorsey, 27 id. 119; Games, 62 ; Jones v. Wootten, 1 Harrington v. Smith, 28 id. 43 ; State Harr. (DeL) 77; Field v. People, 2 v. Timme, 54 id, 318, 340; Dean v. Scam. 79 ; Cotton v. Brien, 6 Rob. Borchsenius, 30 id. 236 ; post, §§ 320, (La.) 115. 631. 2 Id. 5 Philadelphia, etc. R R. Co. v. Cat- 3 Philadelphia, etc. R. R Co. v. awissa R. R. Co. 53 Pa. St. 20. See Catawissa R R, Co. 53 Pa, St 20 ; United States v. Gilraore, 8 Wall. 330. PARTS OF A STATUTE AXD THEIR RELATIONS. o05 § 230. Such provisions have been the subject of judicial comment and criticism. Lord Denman said : '' We cannot re- frain from expressing a serious doubt whether interpretation, clauses will not rather embarrass the courts in their decisioii than afford that assistance which they contemplate. For the principles on which they are themselves to be interpreted may become matter of controversy; and the application of them to particular cases ma}^ give rise to endless doubts." ^ In Williams v. Pritchard,- Lord Kenyon said : " It cannot be contended that a subsequent act of parliament will not con- trol the provisions of a prior statute, if it were intended to have that operation ; but there are several cases in the books to show that when the intention of the legislature was ap- parent that such subsequent statute should not have such an operation there, even though the words of such statute, taken strictly and grammatically, would repeal a former act, the courts of law, judging for the benefit of the subject, have held that they ought not to have such a construction." Blackburn, J., in Lindsay v. Cundy,^ said, parenthetically, that such clauses are a modern innovation, and frequently do a great deal of harm, because they give a non-natural sense to words which are afterwards used in a natural sense, without noticing the dis- tinction. In that case it was held not necessary to foUow the statutory definition in every instance where the word occurred ; that the statute could be satisfied by applying it to the word where there was nothing in the context to inter- pret it otherwise. This seems to be the effect of Queen v. Pearce,^ where the court said of such a clause that it " should control w^here the words occur without being accompanied by any others tending to show their meaning ; or to interpret words which are ambiguous or equivocal, and not so as to dis- turb the meaning of such as are plain." ^ 1 Regina v. Justices, 7 AcL & E. 480. being a turnpike road), and any road, 2 4 T. R. 2, 4. public bridge (not being a county 3 Ia R. 1 Q. B. Div. 358. bridge), lane, foot%vay, square, court, * L. R. 5 Q. B. Div. 386. alley, etc. It was considered by Cot- 5 In Nutter v. Accrington Local ton, L. J., as enlarging and not re- Board, L. R. 4 Q. B. Div. 375, an act was strictive ; that it did not provide that in question in which it was provided it shovdd not include a turnpike road, that the word " street " should apply Bramwell, L. J., concurring m the to and include any highway (not view taken by Lord Justice Ck)tton, 20 306 PAIiTS OF A STATUTE AND THEIK KELATIONS. § 231. Statutoiy provisions are made in various forms to have effect specially in the interpretation of the law. They are distinguishable, and all are not construed and applied in the same manner. There is a manifest difference between defini- tive or interpretation clauses which are special, and those which are general ; the former always having the most control- ling effect where it is obvious that the legislature, without mis- conception of the effect of other legislation, have precisely in view the particular words or provisions to which the clause in question ostensibly applies. A legislative enactment based on a misconception of the law does not jper se change the law so as to make it accord vrith the misconception.^ A provision which is special by pointing to a particular act and declaring for what definite purpose it was enacted, or defining certain words or phrases, has the fullest effect. It is a part of the law and must be construed and applied accordingly, and the act will have a construction, and the words and phrases a meaning, in harmony with the defining provisions, even though otherwise they would have a different effect.^ On the other hand, general statutory definitions and rules of interpretation will apply when the statute in question is not plain, or, in other words, does not define and interpret itself.' "Where positive provisions are at variance with the definitions which it contains, the latter, it seems, must be considered as modified by the clear intent of the former on the principle said: "There is one interpretation interpretation clause are equally good clause which says: 'Words import- for either party." ing the singular number shaU include ^ Byrd v. State, 57 Miss. 243 ; Davis the plural number, and that words v. Delpit, 25 id. 445 ; Farmers' Bank importing the plm-al number shall ^- Hale, 59 N. Y. 53. include the smgular number.' And, ' Herold v. State, 21 Neb. 50 ; Smith if that clause is to be taken in an ex- v. State, 28 Ind. 321 ; State v. Adams, elusive sense, the words m the singu- 51 N. H. 568 ; State v. Canterbuiy, 28 lai- number would never mean the id. 195 ; Philadelphia, etc. R. R. Co. singular, and the words in the plural v. Catawissa R. R. Co. 53 Pa. St 20 : number would never mean the plural. State v. S. & S. Orphan Home, 37 It is thus, clearly, an additional m- Ohio St. 275 ; Hankins v. People, 106 terpretation, I read the words here 111. 628 ; Byrd v. State, 57 Miss. 243 ; [repeating the mterpretation clause]. Nelson v. Kerr, 3 T. & C. 299. Then it is said that this is a sti-eet ^ Queen v. Pearce, L. R. 5 Q. B. 386 ; And so it is. But it is also a turn- Midland R'y Co. v. Ambergate, etc. pike road- The arguments upon the R'y Co. 10 Hare, 359. PAKTS OF A STATUTE A^•D TUEIK EELATIONS. 307 that tlie special controls tlie general.* Sucli clauses are not to be taken as substituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances.'- Such definitions can, in the nature of things, have no effect except in the construction of the stat- utes themselves. The meaning of language depends on pop- ular usage, and cannot, unless in a very slight degree, be affected by legislation,' It was enacted that in construing statutes the words " spirituous liquors " should bo taken to in- clude intoxicating liquors, and all mixed liquors any part of which is spirituous or intoxicating. Under an indictment charging the selling of spirituous liquors, it was held error to admit proof of selling any liquor which was not such in fact, independently of the statutory definition; that the statute furnished a guide for the construction of the statute, not the indictment.'' § 23:^. Punctuation. — When statutes were enacted without punctuation, it was a necessary conclusion that the punctua- tion subsequently inserted was no part of the law. That was often declared,'^ and has been declared since the practice has changed and punctuated bills are enacted.^ So, when bills are not printed and furnished in their perfected form to members of the legislative body, and they are heard read, so that the ear and not the eye takes cognizance of them,' the punctua- tion, whether inserted or not, does not receive the attention of individual legislators. It may be assumed that the principal points are observed in the reading. The questions in court relating to punctuation or affecting construction have gener- ally arisen on the presence, omission or misplacing of commas. In Ewing v. Burnet ^ tlie court say : " Punctuation is a most fallible standard by which to interpret a writing. It may be 1 Egerton v. Third ]\Iunicipality, 1 note ; Dwarris on St (2d ed.) GOl ; 3 La. Ann. 435 ; Farmers' Bank v. Hale, Dane's Abr. 558. 59 N. Y. 53. 6 Hammock v. Loan & Tnist Co. 2 Regina v. Justices, 7 Ad. & E. 480. 105 U. S. 77 ; Ciisliing v. Worrick, 9 sStatev. Canterbmy, 28N. H. 228; Gray, 382; Albright v. Fajne, 43 Neitzel v. Concordia, 14 Kans. 446. Ohio St 8. See Commonwealth v. * State V. Adams, 51 N. H. 568; Shopp, 1 Woodw. Dec. 123. Jones V. Surprise, 4 New Eng. Rep. ■ BisK W. L. § 78, 292; 64 N. H. 243. UlPet 41. * Harrington on St (5th ed.) 439, 308 PAKTS OF A STATUTE AND TEEIR RELATIONS. resorted to when all other means fail ; but the court will first take the instrument by the four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it." ^ Where effect may be given to all the words of a statute by transposing a comma, the alternative being the disregard of a material and significant word, or grossly straining and per- verting it, the former course is to be adopted.^ Courts, in the construction of statutes, for the purpose of arriving at or main- taining the real meaning and intention of the law-maker, will disregard the punctuation, or repunctuate.^ When the intent is uncertain, punctuation may afford some indication of it,^ and even decide it.* The punctuation of the original act as passed by the legislature governs instead of the punctuation of the printed copy." § 233. Headings aud marginal notes. — In England mar- ginal notes are not regarded as part of the law for the same reason that applies to the title and punctuation.'^ Added to a section in the copy printed by the queen's printer, they form no part of the statute itself, and are not binding as an explana- tion, or as a construction of the section.^ Headings which were arranged in the bill and adopted with it, it was held, might be referred to to determine the sense of any doubtful expression.^ 1 Albright v. Payne, 43 Ohio St. 8 ; 366 ; IMatter of Ohnstead, 17 Abb. Shi-iedley v. State, 23 Oliio St 130 ; New Cas. 320. Hamilton v. Steamer R. B. Hamilton, * United States v. Three R R Cos. 16 id. 428 ; Allen v. RvisseU, 39 id. 336 ; 1 Abb. (U. S.) 196. MoiTill V. State, 38 Wis. 434; Com- sSqunes' Case, 12 Abb. Pr. 38; monwealth v. Shopp, 1 Woodw. Dec. Cummings v. Akron Cement Co. 6 123 ; Caston v. Brock, 14 S. C. 104. Blatchf. 509. 2 Commonwealth v. Shopp, supra. 6 McPhail v. Gerry, 55 Vt. 174. 3 Hamilton v. Str. R. B. Hamilton, ' Claydon v. Green, L. R. 3 C. P. supra; Martui v. Gleason, 139 Mass. 521 ; Venour v. Sellon, Lk B. 2 Ch. 183 ; Hammock v. Loan & Trust Co. Div. 523 ; Sutton v. Sutton, L. R. 23 105 U. S. 77 ; United States v. Isham, Clx Div. 511. 17 Wall 496 ; Gyger's Estate, 65 Pa. * Claydon v. Green, supra. St 311 ; Randolph v. Bayne, 44 CaL ^ Hammersmith, etc. R'y Ca v. Brand, L. R. 4 H. L. Cas. 171. CHAPTER XIII. INTERPRETATION AND CONSTRUCTION. 234. The intent of a statute is the law. §256. 235. Its ascertainment the object of interpretation. 257. 236. Interpretation and construc- tion compared. 258. 237. Intent first to be sought in 260. language of statute itself. 262. 238. If intent plainly expressed it 207. is to be followed without 268. further inquuy. 239. The intention to be ascertained 282. from entu'e statute. 283. 240. General intent of statute key to meaning of the parts. 286. 245. The flexibihty of words and clauses to harmonize with 289. the general intent. 246. Literal sense of words not con- ti"oUing. 292. 247. Interpretation of words and 293. plu'ases. 307. 248. They should be constiiied as they are generally imder- 308. stood. 313. 249. How general words construed. 321. 250. Words having popular and teclinical meaning. 325. 253. Common-law words. 330. 255. Statutory use of words. 334. Change of phraseology of statute. Statutes adopted by general reference. Interpretation with reference to grammatical sense. Correction of mistakea Context and associated words. Relative and quaUfying words. General words following par- ticular. Reddendo singula singulis. Intei-pretation affected by other statutes. Constniction of statutes in pari materia. Interpretation with reference to common law. Extraneous aids to construc- tion. Judicial knowledge Contemporaneous construc- tion. General usaga Stare decisis. Effects and consequences. Exjyressio unius est exdusio alteimis. Presumptions. ImpUcations and incidents. § 234. The intent of a statute is the laAV. — If a statute is Yalid it is to liave eU'ect according to the purpose and intent of the law-maker. The intent is the vital part, the essence of the law.^ This is the intention embodied and expressed in 1 Pliillips V. Pope's Heirs, 10 B. ]Mon. sett, 27 Me. 266 ; Reynolds v. Holland, 172 : Wmslow v. Kimball, 25 Me. 493 ; 35 Ark. 56 ; Ogden v. Strong, 2 Paiue, Leoni v. Taylor, 20 Mich. 148 ; Mason 584 ; Milburn v. State, 1 Md. 17 ; V. Rogers, 4 Litt. 377 ; Stevens v. Fas- Green v. State, 59 id. 123 ; "Watson v. olO INTEKPRETATION A.>'D COXSTRUCTION. the statute. A legislative intention to be efficient as law must be set forth in a statute; it is therefore a written law.^ How the intention is to be ascertained is only answered by the prin- ciples and rules of exposition. If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices ; then in- terpretation is needless.^ And where the intention of a stat- ute has been ascertained by the application of the rules of interpretation, they have served their purpose, for all such rules are intended to reach that mtent.' The sole authority of the legislature to make laws is the foun- dation of the principle that courts of justice are bound to give eifect to its intention. "When that is plain and palpable they must follow it implicitly. The rules of construction with which the books abound apply only where the words used are of doubtful unport ; they are only so many lights to assist the courts in arriving with more accurac}^ at the true interpreta- tion of the intention. This is true whether the statute be pub- he or private, general or special, remedial or penal.* These rules are a part of the law of the land equally with the stat- utes themselves, and not much less important. The function of such interpretation unrestrained by settled rules would in- Hoge, 7 Yerg. 344 ; Canal Co. t. R. Barb. 44 ; Pillow v. BushneU, 5 Barb. R Co. 4 GiU & J. 1 ; Jackson v. Col- 156 ; Coffin v. Rich, 45 Me. 507 ; Sneed lins, 3 Cow. 89 ; Jackson v. Thurnian, v. Commonwealth, 6 Dana, 339 ; Jolm. 322 ; Crocker v. Crane, 21 Cearfoss v. State, 42 Md. 406 ; Beall v. Wend 211; Murray v. R. R. Co. 4 HaiTv^ood, 2 Har. & J. 167; Koch Keyes, 274 ; Mclnery v. Galveston, v. Bridges, 54 Miss. 247 ; Learned v. 58 Tex. 334 ; Atkins v. Disintegrating Corley, 43 Miss. 689 ; Ruggles v. Co. 18 WalL 272, 301 ; United States Illinois, 108 U. S. 526 ; Sussex Peerage, V. Rhodes, 1 Abb. (U. S.) at p. 36 ; 11 CL & Fm. 143 ; Water Commis- Eyston v. Studd, 2 Plowd. 465 ; Palms sioners v, Brewster, 42 N. J. L. 125 ; V. Shawano Co. 61 Wis. 211. Rudderow v. State, 81 id. 512; Vat- 1 Barker v. Esty, 19 Vt. 131, 138 ; tel, b. 2, sec. 363 ; Rex v. Hodnett, 1 Watson V. Hoge, 7 Yerg. 344 ; Swift T. R. 96. V. Luce, 27 Me. 285. 3 Parsons v. Circuit Judge, 37 Midi. -' United States v. Hartwell, 6 Wall. 287 ; New Orleans, etc. R. R. Co. v. 395 ; Ogden v. Strong, 2 Paine, 584 ; Hemi h U, 35 Miss. 17 ; Ezekiel v. United States y. Wdtberger, 5 Wlieat Dixon, 3 Ga. 151 ; Russell v. Farqu- 95 ; Denton v. Reading, 22 La. Ann. har, 55 Tex. 359 ; McCluskey v. Crom- 607; Fitzpatrick v. Gebhart, 7 Kan. well, 11 N. Y. 601. 35 ; McCluskey v. CromweU, 11 N. Y. •» State v. Stephenson, 2 BaUey, 334. 601 ; People v. Schoonmaker, 63 INTERPKETATIOX AND CONSTKUCTION. 311 troduce great uncertainty, and would involve a power vii'tually legislative.' AVlien a doubt arises upon the construction of the words it is the duty of the coui't to remove the doubt by de- ciding it ; and when the court has given its decision, the point can no longer be considered doubtful.- § 235. To fiud out the intent tlie object of all interpreta- tion. — It is the intent of the law that is to be ascertained, and the courts do not substitute their views of what is just or ex- pedient.' Courts are not at hberty to speculate upon the inten- tions of the legislature where the words are clear, and to construe an act upon their own notions of what ought to have been enacted.* The wisdom of a statute is not a judicial ques- tion ; * nor can courts correct what they may deem excesses or omissions in legislation, or reheve against the occasionally harsh operation of statutory provisions without danger of doing more mischief than good.^ §236. Interpretation and construction compared. — Dr. Lieber defines interpretation as " the art of finding out the true sense of any form of words ; that is, the sense which their au- thor intended to convey, and of enabhng others to derive from them the same idea which the author intended to convey." ^ He uses this word in a sense distinct from construction} These words, however, are very generally used interchangeably and as practically synonymous. The hteral interpretation of a stat- ute is finding out its true sense according to Dr. Lieber's defi- 1 Spencer v. State, 5 Ind. 45. See 7 Hermeneutics, p. 11. Wliart. Com. onAm. Law, §§330, 604. 8 He says: "Construction is the 2 Bell V. Holtby, L. R 15 Eq. 178. drawing of conclusions respecting 3 Hadden v. Collector, 5 Wall. 107 ; subjects that he beyond the direct ex- State V. Clarke, 54 Mo. 17, 36 ; Jewell pression of the text, from elements V. Weed, 18 Mnn. 272 ; Municipal known from and given in the text BuUding Society v. Kent, L. R. 9 Conclusions wliich ai-e in the sphit App. Cas. 273 ; Douglass v. Chosen though not in the letter of the text" Freeholders, 38 N.J. L. 212, 216; For- Hermeneutics, 44. And again he dyee v. Bridges, 1 H. L. Cas. 1. says : " In the most general adai)ta- •* York, etc. R'y Co. v. The Queen, 1 tion of the term, construction signi- E. & B. 858, 864. fies the representing of an entire 5Id. ; ReithmUler v. People, 44 whole from given elements by just !Mich. 280; Sheley v. Detroit, 45 id. conclusions. Thas, it is said, a few 431. actions may sometimes sulfice to con- ''Bronson, J., in Waller v. Harris, strue the whole character of a majo." 20 Wend. 562 ; State v. Heman, 70 Id. 49. Mo. 441. 812 INTEKPRETATIOI>' AXD COXSTEUCTION. nition — by making the statute its own expositor. If the true sense can thus be discovered, there is no resort to construction.^ The certainty of the law is next in importance to its justice. And' if the legislature has expressed its intention in the law itself, with certainty, it is not admissible to depart from that intention on any extraneous consideration or theory of con- struction.'^ Yery strong expressions have been used by the courts to emphasize the principle that they are to derive their knowlcdo-e of the legislative intention from the words oi Ian- guage of the statute itself which the legislature has used to ex- press it, if a knowledge of it can be so derived.' § 237. Intent first to be sought in language of statute itself. — " It is .beyond question the duty of courts in constru- ing statutes to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But . . . first of aU in the words and language employed ; and if the words are free from ambiguity and doubt, and express- plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation." * The statute itself furnishes the best 1 Cearf OSS v. State, 42 Md 403, 406. 2 IcL ; Jolinson v. Railroad Co. 49 N. Y. 455 : Alexander v. Wortliing- ton, 5 Md. 471 ; United States v. Rags- dale, Herapst 497. SDenn v. Reid, 10 Pet. 524; Wat- son V. Hoge, 7 Yerg. 344 ; McCluskey V. CromweU, 11 N. Y. 601 ; Coffin v. Rich, 45 Me. 507 ; Hoyt v. Commis- sioners of Taxes, 23 N. Y. 224; Ben- nett V. Worthington, 24 Ark. 487; Gai-dner v. Collins, 2 Pet. 93 ; Brad- ford T. Treasurer, Peck (Tenn.), 425 ; Warbitrton v. Loveland, 2 Dow & CI. 489 ; Stm-ges v. Crowninshield, 4 Wheat. 202; Denton v. Reading, 22 La. Ann. 607 ; State v. Wiltz, 11 La. Ann. 439 ; Kinderley v. Jervis, 25 L. J. Ch. 541 ; New Orleans, etc. R. R. Co. V. Hemplull, 35 Miss. 17 ; Ezekiel T. Dixon, 3 Ga. 152 ; State v. Buck- man, 18 Fla. 267; Hindmarsh v. Charlton, 8 H. L. Cas. 166 ; Jennings V. Love, 24 Miss. 249; Tynan v. Walker, 35 Cal. 634 ; Virginia City, etc. R. R. Co. V. Lyon Coxmty, 6 Nev. 68 ; Scaggs v. Baltimore, etc. R. R. Co. 10 Md. 268 ; TrapnaU, Ex parte, 6 Ark. 9 ; Coimtess of Rothes v. Kii'kcaldy Water Works, L. R. 7 App. Cas. 702 ; Abbott V. Mddleton, 7 H. L. 68 ; The Sussex Peerage, 11 CL & Fin. 85, 143 ; Myers v. Perigal, 2 D. Mac. & G. 619. 4 McCluskey v. CromweU, 11 N. Y. 601 ; Clark v. Mayor, etc. 29 Md. 283 ^ People V. Schoonmaker, 63 Barb. 44, 47 ; Benton v. Wickwii-e, 54 N. Y. 226,^ 228; Bonds v. Greer, 56 Miss. 710; Schlegel v. Am. Beer, etc. Co. 12 Abb. New Cas. 280 ; S. C. 64 How. Pr. 196 ^ People V. Supervisors, 13 Abb. New Cas. 421; Fitzpatrick v. Gebhart, 7 Kan. 35 ; Fordyce v. Bridges, 1 H. L. Cas. 1 ; Logan v. Corn-town, 13 Beav. 22; Schooner Pauline's Cargo v. United States, 7 Cranch, 152 ; Notley INTEKPEETATIOX AND CONSTKUCTION. 313 means of its own exposition; and if tlic sense in wliicli words were intended to be nsed can be clearly ascertained from its parts and provisions, the intention tlms indicated will prevail "without resorting to other means of aiding in the construc- tion.^ In Alexander v. Worthington,- the Maryland court of ap- peals have lucidly expressed this sound doctrine on the point under consideration : " The language of a statute is its most natural expositor ; and where its language is susceptible of a sensible interpretation, it is not to be controlled by any extra- neous considerations. The construction is to be on the entu-e statute ; and where one part is susceptible indifferently of two constructions, and the language of another part is clear and definite, and is consistent with one of the two constructions of which the former part of the statute is susceptible, and is op- posed to the other construction, then we are to adopt that construction which w^ill render all clauses of the statute har- monious, rather than that other construction which Avill make one part contradictory to another. "Where the letter of the statute is inconsistent with itself, we may eviscerate an intent by considering the mischief existing and the remedy proposed to be introduced. . . . We are not at hberty to imagine an intent and bind the letter of the act to that intent ; much less can we indulge in the license of striking out and inserting, and remodeling, with the view of maldng the letter express an intent which the statute in its native form does not evidence. Every construction, therefore, is vicious which requires great changes in the letter of the statute, and, of the several con- structions, that is to be preferred which introduces the most general and uniform remedy." The legislature must be understood to mean what it has plainly expressed, and this excludes construction.* The legis- lative intent being plainly expressed, so that the act read by V. Buck, 8 B. & C. 164 ; Eex v. Poor United States v. Fisher, 2 Cranch, Law Commissioner, 6 A. & E. 17 ; 358 ; The Sussex Peerage, 11 CL & Att'y-Gen'l v. SiUem, 2 H. & C. 508. Fin. 143 ; Koch t. Bridges, 45 Miss. 1 Green v. WeUer, 33 Miss. 650. 247 ; United States v. HartweU, 6 ^ 5 Md. 485. WaU. 395 ; State v. Buckman, 18 Fla. 3 Rex V. Banbury, 1 A. & E. 142; 267; Ogden v. Strong, 2 Pame, 584; Case V. Wildridge, 4 Ind. 51 ; John- Denn v. Reid, 10 Pet. 524. Bon V. Raihoad Co. 49 X. Y. 455, 462 ; 814 nsTE-^rRETATIOIf AND CONSTRUCTION. itself, or in connection with other statutes pertaining to the same subject, is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law ac- cording to its terms.^ Cases cannot be included or excluded merely because there is intrinsically no reason against it.^ Even when a court is convinced that the legislature really meant and intended something not expressed by the phrase- ology of the act, it will not deem itselE authorized to depart from the plain meaaing of language which is free from am- biguity.' If a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and pohcy of its passage.* Courts have, then, no power to set it aside, or evade its operation by forced and unreasonable construc- tion. If it has been passed improvidently, the responsibility is with the legislature and not with the courts.^ Whether the law be expressed in general or limited terms, the legislature should be held to mean what they have plainly expressed, and consequently no room is left for construction ; but if, from a view of the whole law, or from other laws in pai'i materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that, in fact, is the wiU of the legislature.^ » Rosenplaenter v. Roessle, 54 N. Y. Jewell v. Weed, 18 Minn. 272 ; Lower 2G2 ; Woodbm-y v. Berry, 18 Oliio St. Chatliam, In re, 35 N. J. L. 497. 456, 462 ; Miller v. Salomons, 7 Ex. 5 Leonard v. Wiseman, 81 Md. 201 ; 560 ; Green v. Cheek, 5 Ind. 105 ; State v. Vicksburg, etc. R. R. Co. 51 Douglass V. Chosen Freeholders, 38 Miss. 361; Rolu-bacher v. City of N. J. L. 214 ; Story on Const § 426. Jackson, id. 735 ; Winter v. Jones, '^ Denn v. Reid, 10 Pet. 524 ; Pike v. 10 Ga. 190 ; Douglass v. Chosen Free- Hoare, 2 Eden, 184 ; Ogden v. Strong, holders, 88 N. J. L. 214 ; Ornamental 2 Paine, 584. Woodwork Co. v. Brown, 2 H. & C. 3 Smith V. State, 66 INId. 215 ; Wood- 63 ; Mirehouse v. Rennell, 1 CL & l)ury V. Berry, 18 Oliio St. 456 ; Brad- Fm. 546 ; May v. Great W. R'y Co. bury V. Wagenhorst, 54 Pa. St. 182 ; L. R. 7 Q. B. 377 ; Rex v. Poor Law St. Louis, etc. R. R. Co. v. Clark, 53 Commissioners, 6 Ad. & E. 7. Mo. 214; Notley v. Buck, 8 B. & C. « United States v. Fisher, 2 Cr. 358: 164 Farrell Foundry v. Dart, 26 Conn. 4Flint,etc. Co.v.WoodhuIl,25Mich. 376, 382; Sneed v. Commonwealth, 99 ; People v. Briggs, 50 N. Y. 553 ; 6 Dana, 338 ; Abley v. Dale, 11 C. B. Collin V. Kjioblock, 25 La. Ann. 263 ; 378 ; Miller v. Salomons, 7 Ex. 475. INTEEPKETATIOX AND CONSTEUCTION. 315 § 238. If intent plainly expressed it is to be followed ivithout further inquiry. — "When the meaning of a statute is clear, and its provisions are susceptible of but one interpreta- tion, that sense must be accepted as the law; its consequences, if evil, can only be avoided by a change of the law itself, to be effected by the legislature and not by judicial construction.^ But an interpretation of a statute which must lead to conse- quences which are mischievous and absurd is inadmissible ^if the statute is susceptible of another interpretation by which such consequences can be avoided.- For this pm^pose all parts of a statute are to be read and compared. StiU, when the words of a provision are plainly expressive of an intent not rendered dubious by the context, no interpretation can be permitted to thwart that intent ; the interpretation must declare it, and it must be carried into effect as the sense of the law." In the case of Sturges v. Crowninshield •* the court say: *' Although the spirit of the instrument, especially of the con- stitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words of the instrument expressly provided shall be exempt from its operation. Where words conflict ^yiih. each other, where the different clauses of the in- strument bear UDon each other, and would be inconsistent un- less the natural and common import of the words be varied, ^ Bosley v. Mattingly, 14 B. Mon. 89 ; 3 Douglass v. Chosen Freeholders, United States v. Ragsdale, Hempst 38 N. J. L. 214 ; Bradbuiy v. Wagen- 497 ; Bartlett v. Mon-is, 9 Porter, 266 ; horst, 54 Pa. St. 182 ; Howard Asso- Att'y-Gren'l v. Sillem, 2 H. & C. 510 ; ciation's Appeal, 70 id. 344 ; Johnson Kinderley v. Jervis, 25 L. J. Ch. 541 ; v. R R Co. 49 N, Y. 455 ; People v. Arthm- v. Morrison, 96 U. S. 108. Schoonmaker, 63 Barb. 49 ; United 2 Caledonian R'y Co. v. North Brit- States v, Ragsdale, Hempst 497 ; ish R'y Co. L. R. 6 App. Cas. 122; United States v. Warner, 4 McLean. State V. Wiltz, 11 La, Ann. 439 ; Ellis, 463 ; FarreU Fovmdry v. Dart, 26 Conn. Ex parte, 11 Cal. 223; Ryegate v. 376 ; State v. Washoe Co. 6 Ne v. 104 ; Wardsboro, 30 Vt. 746 ; Walton, Ex Bartlett v. Mon-is, 9 Port 266 ; Fitz- parte, L. R. 17 Ch. Div. 746; Cover's patrick v. Gebhart, 7 Kan. 35; IMUler Case, L. R, 1 Ch, Div. 198 ; Wear v. Salomons, 7 Ex 475 ; Abley v. Dale, River Commissioners v. Adamson, 11 C. B. 378; Gwynne v. Buruell, 6 L. R 1 Q. B. Div. 549; Vicar, etc. of Biug. N. C. 559. St. Sepulchre's. Ex parte, 33 L. J. Cli. ^ 4 Wheat 202. 373 ; Alvwd v. Lent 23 Mich. 373. '31G INTEEPKETATIOX AND CONSTKUCTION. construction becomes necessary ; and to depart from the obvi- ous meaning of words is justifiable. Yet, in no case, the plain meaning of a provision, not contradicted by any other pro- vision in the same instrument, is to be disregarded because Ave beheve the framers of that instrument could not intend Avhat they sa}^. It must be one in which the absm-dity and injustice of applymg the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application." One who contends that a section of an act must not be read literally must be able to show one of two things : either that there is some other section which cuts down or expands its meaning, or else that the section itself is repugnant to the general purview.^ The question for the courts is, what did the legislature really intend to direct ; and this intention must be sought in the whole of the act, taken together, and other acts in pari materia. If the language be plain, unambigu- ous and uncontrollable by other parts of the act, or other acts or laws upon the same subject, the courts cannot give it a different meaning to subserve pubhc pohcy or to maintain its constitutionahty. The limited meaning of words will be dis- reffarded when it is obvious from the act itself that the use of the word was a clerical error, and that the legislatm-e intended it in a different sense from its common meaning.^ "Where that which is directed to be done is within the sphere of legis- lation, and the terms used clearly express the intent, aU rea- soning derived from the supposed inconvenience, or even ab- surdity, of the result is out of place. It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense.^ iNuth V. Tamplin, L. R. 8 Q. B. Rex v. Banbury, 1 Ad. & E. 142; Div. 253. British Farmers', etc. Co., Re, 48 L. J. 2 Reynolds v. Holland, 35 Ark. 56; Ch. 56; Ornamental P. Woodwork Haney v. State, 34 Ark. 263. Co. v. Brown, 2 H. & C. 63 ; JVIii-e- 3 Douglass V. Chosen Freeholders, house v. Rennell, 1 CL & Fin. 546; 38 N. J. L. 214 ; Hyatt v. Taylor, 42 Biffin v. Yorke, 5 Man. & Gr. 437 ; N. Y. 258, 262 ; Roscnplaenter v. Roes- Rex v. Poor Law Commissioner, 6 Ad. sle, 54 id. 262 ; Bosley v.* Mattiugly, & E. 7 ; May v. Great W. Ry Co. L. R. 14 B. Mou. 89 ; Abley v. Dale, 11 C. B. 7 Q. B. 377 ; Clark v. Railroad Co. 81 391 ; G Wynne v. Burnell, 6 Bing. N. Me. 477. C. 559 ; Miller v. Salomons, 7 Ex. 475 ; INTEKPKETATIOX AND CONSTRUCTION. ;i' § 230. The intention is to be ascertained by considering the entire statnte. — The practical inquiry is usually what a particular provision, clause or word means. To answer it one must proceed as he w^ould Avith any other composition — con- strue it with reference to the loading idea or purpose of the Avhole instrument. The whole and every part must be consid- ered. The general intent should be kept in view in deter- mining the scope and meaning of any part.^ This survey and comparison are necessary to ascertain the purpose of the act and to make all the parts harmonious. They are to be brought into accord if practicable, and thus, if possible, give a sensible and intelligible effect to each in furtherance of the general de- sign.2 A statute should be so construed as a whole, and its several parts, as most reasonably to accomplish the legislative purpose.^ If practicable, effect must be given to all the lan- guage employed, and inconsistent expressions are to be har- monized to reach the real intent of the legislature.* It is said to be the most natural exposition of a statute to construe one part by another, for that expresses the meaning of the makers ; 1 Georgia V. Atkins, 1 Abb. (U. S.) 23 ; State V. Atkins, 35 Ga, 319 ; Harrison, Ex parte, 4 Cow. 63 ; Strode v. Staf- ford Justices, 1 Brock. 163 ; Martin V. Hunter's Lessee, 1 Wlieat. 336; People V. Stevens, 13 Wend. 341 ; Peo- ple v. Morris, id. 325 ; Hopkins v. Hay- wood, id. 265 ; Little Rock, etc. R. R. Co. V. Howell, 31 Ark. 119; Swart- wout V. Railroad Co. 34 Mich. 389 ; City V. Schellinger, 15 Phila. 50 ; Re- gina V. Mallow Union, 13 Ir. C. L. (N. S.) 35 ; Nuth v. Tamplin, L. R. 8 Q. B. Div. 353 ; EUison v. ^Mobile, etc. R R Co. 36 Miss. 573 ; Bishop v. Bar- ton, 2 Hun, 436 ; Shoemaker v. Lan- sing, 17 Wend. 337 ; People v. Com- missioners, 3 Hill, 601 ; Parkinson v. State, 14 ]Md. 184 ; Chesapeake & O. Canal Co. v. Railroad Co. 4 Gill & J. 1 ; Magruder v. CarroU, 4 :\Id. 335 ; At- torney -Cxeneral V. Detroit, etc. Co. 2 Midi. 138 : Ryegate v. Wartlsboro, 30 Vt 746 ; State v. Weigel, 48 :\Io. 29 ; Nichols V. Wells, Sneed (Ky.), 255 ; Thompson v. Bulson, 78 IlL 277; State V. Mayor, 35 N. J. L. 196 ; San Francisco v. Hazeu, 5 CaL 169 ; Tay- lor V. Palmer, 31 id. 240; Gates v. Salmon, 35 id. 576 ; Ogden v. Sti'ong, 3 Paine, 584; Wilson v. Biscoe, 11 Ark. 44; Lion Lis. Asso. v. Tucker, L. R 13 Q. B. Div. 180 ; Cope v. Do- herty, 2 De G. & J. 614 ; Jefferys v. Boosey, 4 H. L. 815 ; Cearfoss v. State, 42 Md. 406 ; Commonwealth v. Duane, 1 Binn. 601 ; Commonwealth v. Al- ger, 7 Cusli. 53, 89. - Ogden V. Strong, 2 Paiuo, 584 ; Clemen tson v. ^Masou, L. R. 10 C P. 209. Li construing the provisions of the Louisiana code the French text is to be looked to in clearing up obscu- rities and ambiguities in the English text. Viterbo v. Friedlander, 130 U. S. 707. ■i Green v. State, 59 Md. 133. * Matter of N. Y. & Brooklyn Bridge, 72 N. Y. 537, 530. 318 INTEEPKETATION AUD CONSTKUCTION. this exposition is ex vercerihus actus} The words and meaning- of one part may lead to and furnish an explanation of the sense of another.^ " To discover," says Pollock, C. B., " the true construction of any particular clause of a statute, the first thing to be attended to, no doubt, is the actual language of the clause itself, as introduced by the preamble ; second, the words or expressions which obviously are by design omitted ; third, the connection of the clause with other clauses in the same statute, and the conclusions which, on comparison Avith other clauses, may reasonably and obviously be drawn. ... If the comparison of one clause with the rest of the statute makes a certain proposition clear and undoubted, the act must be construed accordingly, and ought to be so construed as to make it a consistent whole. If, after all, it turns out that that can- not be done, the construction that produces the greatest har- mony and the least inconsistency is that which ought to pre- vail." * § 24:0. GJeueral intent of statute key to meaning of tlie parts. — The presumption is that the law-maker has a definite purpose in every enactment, and has adapted and formulated the subsidiary provisions in harmony with that purpose ; that these are needful to accomplish it ; and that, if they have the intended effect, they will, at least, conduce to effectuate it. That pur- pose is an imphed limitation on the sense of general terms, and a touchstone for the expansion of narrower terms.* This in- tention affords a key to the sense and scope of minor provis- ions.^ From this assumption proceeds the general rule that the 1 Co. Litfc. C81a, Miller, 128 Mass. 269 ; Eslileman's Ap- 2 Mayor v. Howard, 6 Har. & J. 388 ; peal, 74 Pa, St. 42, 46 ; BaUey v. Corn- Martin V. O'Brien, 34 Miss. 21 ; City monwealtli, 11 Bush, 688 ; Converse of San Diego v. Granniss, 77 Cal. v. United States, 21 How. 463 ; Cus- 511. tin V. City of Viroqua, 67 Wis. 314. 3 Attorney-General v. Sillem, 2 H. 5 Bm-r v. Dana, 23 Cal. 11 ; Burke & C. 51o. V. Monroe Co. 77 IlL 610 ; Common- * Orange, etc. R. R. Co. v. Alexan- wealth v. CouncU of Montrose, 52 Pa. di-ia, 17 Gratt. 176 ; Jackson v. Bradt, St. 391 ; MaxweU v. CoUins, 8 Ind. 38 ; 2 CaL 303 ; Biyant, In re, Deady, Rex v. Inliabitants, 1 T. R. 96 ; McCool 118 ; McCool V. Smith, 1 Black, 459 ; v. Smith, 1 Black, 459 ; Lee v. Bark- Rex V. Comforth, 2 Sti*. 1162 ; Foster hampsted, 46 Conn. 213 ; Haentze v. V. Collner, 107 Pa. St. 305; State v. Howe, 28 Wis. 293; Berry v. Clary, Mann, 21 Wis. 684 ; Rice v. Railroad 77 Me. 482 ; Ingraham v. Speed, 30 Co. 1 Black, 358, 377 ; Chapman v. Mies. 410 ; Colbran v. Barnes, 11 C. B. INTERI'RETATIOX AXD CoXSTIiUCTION. 319 cardinal purpose or intent of the wliolo act shall control, and that all the parts be interpreted as subsidiary and harmonious. They are to be brought into harmony, if possible, and so con- strued that no clause, sentence or word shall be void, superflu- ous or insignificant.' But where a word in a statute would make the clause in which it occurs unintelligible, the word may be ehminated and the clause read without it.^ It would be mischievous to attempt to wrest such words from their proper and legal meaning merely because they are superfluous.'' § 241. The intention of the wliole act will control inter- pretation of the parts. — Words and clauses in different parts of a statute must be read in a sense which harmonizes with (N. S.) 344 ; Edwai-ds v. Dick, 4 B. & Aid. 212 ; Mclntyre v. Ingraham, 35 Miss. 25 ; State v. Judge, 12 La. Ann. 777 ; Brewer v. Blougher, 14 Pet. 198 ; State V. Mayor, 35 N. J. L. 196 ; Opin- ion of Justices, 7 Mass. 523 ; Catlin v. HuU, 21 Vt. 152 ; Ruggles v. Wash- ington Co. 3 Mo. 496 ; Monck v. Hil- ton, 2 Ex. Div. 268 ; Barber v. Waite, 1 Ad. & E. 514 ; Helm v. Chapman, 66 Cal 291 ; Somerset v. Dighton, 12 Mass. 382 ; Wliitney v. Whitney, 14 Mass. 88, 92 ; United States v. Samid- ers, 22 Wall. 492 ; Negro Bell v. Jones, 10 Md. 322 ; Brown v. G. W. R. Co. 9 Q. B. Div. 750 ; HiU, Ex pai'te, 6 Cli. Div. 63 ; Jones v. Water Com'rs, 34 'Mich. 273 ; Smith v. Pliiladelpliia, 81 Pa. St. 38 ; Girard, etc. Co. v. PhUa- delpliia, 88 id. 393 ; United States v. Jarvis, Da vies, 274 ; Ldon Ins. Asso. v. Tucker, 12 Q. B. Div. 186 ; Commer- cial Bank v. Foster, 5 La. Ann. 516 ; New Orleans v. Salamander Ins. Co. 25 La. Ann. 650; Bear Brothers v. Marx, 63 Tex. 298 ; Wassell v, Tunnah, 25 Ark. 101 ; Jefferys v. Boosey, 4 H. L. Cas. 815 ; Tonnele v. Hall, 4 N. Y. 140 ; Big Black Creek, etc. Co. V. Commonwealth, 94 Pa. St 450; Ruggles V. Illinois, 108 U. S. 520; Lake v. Caddo Parish, 37 La, Ann. 788; CrawfordsviUe, etc. Co. v. Fletcher, 104 Ind. 97 ; Keith v. Qum- ney, 1 Oregon, 364. 1 Mayor v. Howard, 6 H. & J. 883 ; Martin v. O'Brien, 34 Miss. 21; United States v. Hawkins, 4 Martin (N.S.),317; City Bank v.Huie, 1 Rob. (La.) 236 ; People v. Burns, 5 Mch. 114 ; Potter V. Safford, 50 id. 46; Reith- miller v. People, 44 id. 280, 284; Brooks V. Mobile School Commission- ers, 31 Ala, 227; KeUy's Heirs v. McGuire, 15 Ark. 555; Dunlap, Ex parte, 71 Ala. 93 ; Attorney-General V. Detroit, etc. R R. Co. 2 IMich. 138 ; Aldi-idge v. Mardoif, 32 Tex. 204; Green v. Cheek, 5 Ind. 105 ; Wilson V. Biscoe, 11 Ark. 44; Gates v. Salmon, 35 CaL 576 ; State v. Tm-n- pike Co. 16 Ohio St. 308, 320 ; Cear- foss V. State, 42 Md. 406 ; Brooks v. Hicks, 20 Tex. 666 ; Wilkinson v. Le- land, 2 Pet. 627, 602; Taylor t. Palmer, 31 CaL 240 ; Howard v. Mans- field, 30 Wis. 75; State ex rel. v. Commissioners, etc. 34 Id. 162 ; Com- monwealth V. Intoxicating Liquors, 108 Mass. 19 ; ^Miipple v. Judge, 26 Midi. 343. 2 Stone V. Yeovil, L. R 1 C. P. Div. 691. 3 Hough V. Windus, L. R 12 Q. B. Div. 229. 320 IXTEKPEETATION AXD CONSTKTJOTTON. the subject-matter and general purpose of the statute. Ko clearer statement has been or can be made of the law as to the dominating influence of the intention of a statute in the construction of all its parts than that which is found in Kent's Commentaries : " In the exposition of a statute the intention of the law-maker will prevail over the hteral sense of the terms ; and its reason and intention will prevail over the strict letter. When the words are not explicit the intention is to be collected from the context ; from the occasion and necessity of the law ; from the mischief felt, and the remedy in view ; and the intention is to be taken or presumed according to what is consonant with reason and good discretion." ^ If upon exam- ination the general meaning and object of the statute be found inconsistent with the hteral import of any particular clause or section, such clause or section must, if possible, be construed according to that purpose. But to warrant the change of the sense, according to the natural reading, to ac- commodate it to the broader or narrower import of the act, the intention of the legislature must be clear and manifest.^ The apphcation of particular provisions is not to be extended beyond the general scope of a statute, unless such extension is manifestly designed. Legislatures, like courts, must be con- sidered as using expressions concerning the thing they have in hand ; and it would not be a fair method of interpretation to apply their words to subjects not within their consideration, and which, if thought of, would have been more particularly and carefuUy disposed of .^ The mere literal construction ought not to prevail if it is opposed to the intention of the legis- lature apparent from the statute ; and if the words are suffi- 1 1 Kent's Com. 461 ; Jennings v. City v. Schellinger, 15 Pliila. 50 ; Com- Love, 24 Miss. 249 ; Harrison, Ex inercial Bank v. Foster, 5 La. Ann. parte, 4 Cow. 63 ; People v. Utica Ins. 516 ; Kelly's Heirs v. McGuire, 15 Co. 15 John. 358 ; Sti'ode v. Staflford Ark. 555 ; Cearfoss v. State, 42 Md. Justices, 1 Brock. 162 ; State v. Clarks- 408 ; Brooks v. Hicks, 20 Tex. 666 ; ville, etc. Co. 2 Sneed, 88 ; Swann v. Wilkinson v. Leland, 2 Pet. 627, 662 ; Buck, 40 Miss. 268 ; Learned v. Taylor v. Palmer, 31 Cal 240 ; Com- Corley, 43 id. 688 ; Little Rock, etc. R monwealth v. Conyngham, 66 Fa. Pt. Co. V. Howell, 31 Ark. 119; Mat- St. 99. thews V. Commonwealth, 18 Gratt. 2 Holbrook v. Holbrook, 1 Pick. 989; Swartwout v. Railroad Co. 24 248. Mich. 389 ; Russell v. Farquhar, 55 a Estate of Ticknor, 18 Mich, 44. Tex. 359; Ezekiel v. Dixon, 3 Ga. 152 ; IMTEKPEETATION AND CONSTRUCTION. 321 ciently flexible to admit of some other construction by which *hat intention can be better effected, the law requu^es that construction to be adopted.^ The intention of an act involves a consideration of its subject-matter, and the change in, or an addition to, the law which it proposes ; hence the supreme im- portance of the rule that a statute should be construed with reference to its general purpose and aim. " Where the words," says Lush, J., " employed by the legislature do not directly apply to the particular case, we must consider the object of the act." - § 242. Illustrations. — Words of absolute repeal have been held to be quahfied by the intention manifested in other parts of the same act.^ One section of a statute provided that if a plaintiff recovered a sum " not exceeding " five pounds he should recover no costs ; in another section, that if he recovered "less than" that sum, and the judge certified, he should re- cover costs. To make the statute fully answer the obvious in- tention to give a plaintiff costs, by certificate of the judge, for any recovery below the amount which would carry costs ^^^.th- out a certificate, or where he recovered exactly five pounds, the latter provision was construed by reading " less than " as equivalent to " not exceeding." * By the effect of comparison with the context bu^ds w^ere held not to be live ammals.^ In another case a minor, with living parents, was held to be an orphan for like reason.^ In a Wisconsin statute the word " jury " was construed to refer to " one or more credible and disinterested persons," sworn by an officer executing a writ of replevin, to testify as to the value of the property.' A statute which authorized a town to pay " all loans made in good faith " was held to authorize the payment of sums voluntarily advanced by individuals for the benefit of the town.^ By considering the mischief intended to be remedied by an act providing that " if any person shall take from any field not belonging to such per- 1 Caledonian R'y Co. v. North British 3 Smith v. People, 47 N. Y. 330. R'y Co. L. E. 6 App. Cas. 123 ; Freme 4 Qarhy v. Harris, 7 Ex. 591. V. Clement, 44 L. T. (N. S.) 399 ; L. R ^ Reiche v. Smythe, 13 Wall 162. 18 Ch.Div. 499; Walton, Ex parte, ** Ragland v. The Justices, etc. 10 Ga. L. R 17 Cli. Div. 746 ; United States 65, 71. V. Bassett, 2 Story, 399, ■ WilUams v. IMcDonal, 3 Pin. 331. 2 WilUams v, Ellis, L. R 5 Q. B. Div, » Weister v. Hade, 52 Pa. St. 474. at p. 176. 21 322 INTEEPKETATION AND CONSTRUCTION. son any cotton, corn, rice, or other grain, fraudulently, wltli the intent secretly to convert the same to the use of such person," he should be guilty of " larceny," it was held that the terms '' cotton, corn, rice," etc., embrace those articles in every pos- sible form and variety in vs^hich they can exist in a field ; that they include them in a growing and unripe state.^ An act was passed incorporating a company to construct a road from a designated point in the city of Baltimore, in a direct line, about due north, to another point named, but it was forbidden to lay out and extend the road through the buildings, yards, or orchards, of any farm without the consent of the owner. It was held that the act was passed for the pubhc convenience and benefit ; that the prohibitory restriction should be con- strued as requiring and authorizing a deviation or change in the location of the road at such points from the prescribed route, to prevent a cesser of the corporate franchise in case the consent of the owner could not be obtained.^ § 243. A bankruptcy act provided that all the property ac- quired by the bankrupt " during the continuance " of the bank- ruptcy should be divisible among his creditors. It provided, also, that he might obtain his discharge not only at the close but during the continuance of his bankruptcy. By considering the various provisions, it was construed that the former pro- vision should be read in substance as meaning that the futm^e property which was to be divisible was that acquired either during the continuance of the bankruptcy or before the earlier discharge of the bankrupt.^ James, L. J., said : " It is a car- dinal principle in the interpretation of a statute, that if there are two inconsistent enactments, it must be seen if one cannot be read as a quahfication of the other." * An act to prevent in- jury from " furiously driving any sort of carriage " was held to include a bicycle.' A statute required notice to a surveyor, or some municipal officer, for a period not less than twenty- four hours prior to an accident, to render a town hable for an injury fi'om a defect in a highway. This requirement was literally absolute by the terms of the statute ; but it was held 1 State V. Stephenson, 2 Bailey, 334 s 1 Hudson & Brooke, 648. 69. * Becke v. Smith, 2 M. & W. 191 ; 'Kelly v. McGuire, 15 Ark. 555. King V. Pease, 4 B. & Ad. 30, 40 ; Ey- Bton V. Studd, 3 Plow. 46a 3i0 INTERPKETATION AND CONSTKUCTION. ch. 109, sees. 24 and 25, enacts that " Any person acting in con- travention of this section shall forfeit all fish taken by him, and any net used hy him in taking the same.''^ In a case in which no fish had been caught the grammatical sense was insisted upon as the true sense, and that there was no forfeiture of the net ; but the court construed the words, " used by them in taking the same," to mean "used for the purpose of taking the same." ^ A relative word will not be read as representing the last antecedent exclusively, where the sense of the context and clear intention of the law-maker requires it to represent sev- eral or one more remote.'- The grammatical rule, which is also the legal rule, in construing statutes, was held to be that, where general words occur at the end of a sentence, they refer to and quahfy the whole ; while, if they are in the middle of a sentence, and sensibly apply to a particular branch of it, they are not to be extended to that which follows." The words "whilst on duty" fixed the scope and operation of aU the clauses of the following provision : " ^o person holding ofiice under this act shall be liable to mihtary or jury duty, nor to arrest upon civil process, or to service of subpoenas from civil courts whilst actually on duty ; " * and the same effect was given to it after amendment by substituting or for nor where itahcised.' An act expressed in words of the future tense may stUl show an intent to have a present eilect. Thus, an act declaring " that twenty-five thousand acres of land shall be allowed for and given to Major-General Nathaniel Greene " was held to be an absolute donation, to be consummated by the allotment provided for therein. "Given when?" says Chief Justice Marshall, interrogatively. " The answer is una- voidable : when they shall be allotted. Given how? Not by any future act ; for it is not the practice of legislation to enact that a law shall be passed by some future legislature; but given by force of this act." ^ 1 Ruther v. Harris, L. R. 1 Ex. Div. * Hart v. Kennedy, 14 Abb. Pr. 432 ; 97. on appeal, 15 id. 290. 2 Fisher v. Connard, supra; Gyger's ^ Coxson v. Doland, 2 Daly, 66. Estate, 65 Pa. St. 311 ; State V. Jemi- 6 Rutherford v. Green's Heirs, 2 gan, 3 Mui-ph. 18 ; Simpson v. Robert, Wlieat. 196, 198. See Ludington v. 35 Ga. 180. United States, 15 Ct of CL 453 ; Mays- s Rex V. Inhabitants of Shipton, 8 viUe, etc. R R Co. v. Herrick, 13 Bxish, B. & C. 94 ; Dwar. on St 703. 122, 125. INTERPRETATION AXD CONSTRUCTION. 341 § 2G0. Mistakes may be corrected hy aid of the context. — Legislative enactments are not any more than any other writ- ings to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature can be collected from the whole statute ; and the title and preamble may be referred to for this purpose.^ "Where a law possessing all the requisites of a valid statute is passed, containing clear requirements ca- pable of being carried into effect, in connection with other statutes on the same subject, a mistaken reference to them "will not defeat the will of the legislature and render it void. Thus, where an act purporting to be an amendment of another act describes it truly except that it incorrectly states the date, the erroneous statement will be treated as surplusage or cor- rectcsd by construction.^ So references to other sections or statutes incorrectly made will be corrected where the context or other particulars identifies the statute or provision intended and enables the court to follow the reference with certainty.* Where one word has been erroneously used for another, or a word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied.* This is but making the strict letter of the statute yield to the obvious 1 Nazi-o V. lilerchants' I^Iut Ins. Co. * Quin v. O'KeefTe, 10 Ir. C. L. (N. S.) 14 Wis. 295 ; State v. McCracken, 42 393 ; People v. Hotf man, 97 111. 234 ; Tex. 383. State v. Brandt, 41 Iowa, 593 ; Hedley, 2 Madison, etc. P. R. Co. v. Ray- Ex parte, 31 Cai 108; People v. Sweet- nolds, 3 Wis. 287 ; School Directors v. ser, 1 Dak. 295 ; Peck v. WeddeU, 17 School Du-ectors, 73 lU. 249 ; State v. Oliio St 271 ; Palms v. Shawano McCracken, 42 Tex. 383 ; Pue v. Het- Co. 61 AVis. 211 ; Donohue v. Ladd, 31 zell, 16 Md. 539 ; Poock v. Lafayette Minn. 244 ; State v. Pool, 74 N. C, Bdg. Asso. 71 Ind. 357. See Blake v. 402 ; Haney v. State, 34 Ark. 263 Brackett, 47 Me. 28 ; Watervliet T. Tm-ner v. State, 40 Ala. 21 ; Vance v, Co. V. McKean, 6 Hill, 616. See, also, Gray, 9 Bush, 656 ; Eolland v. Com Hicksv. Jamison, 10 Mo. App. 35. mon wealth, 82 Pa. St. 306, 326; » Commonwealth v. Marshall, 69 Blemer v. People, 76 IlL 265 ; Fowler Pa. St. 332 ; Shrewsbury v. Boylston, v. Padget, 7 T. R. 509 ; Rex v. :\Iort- 1 Pick. 105 ; Bradbmy v. Wagen- lake, 6 East, 397 ; Graham v. Char- horst, 54 Pa. St 180, 183 ; People v. lotte, etc. R. R Co. 64 N. G 631 ; Com- Eang, 28 Cal. 265, 273 ; People v. Hill, mon wealth v. HaiTis. 13 Allen, 534 : 3 Utah, 334 ; Custin v. City of Vi- Foster v. Commonwealth, 8 Watts ioqua,67Wis. 314; Murray v. Hobson, & S. 77; Waugh v. Middleton, 8 Ex. 10 Colo. 66 ; Winona v. Wliipple, 24 352 ; Waterford v. Hensley, Mart & Mum. 61 ; People v. Clute, 50 N. Y. Yerg. (Tenn.) 275. See Angele de 451. Sentamanat v. Soiile, 33 La. Ann. 609. 1,42 INTEEPRETATIOX AJSTD CO^^STKUCTION. intent. So words which are meaningless or inconsistent with the intention otherwise plainly expressed in an act have some- times been rejected as redundant or surplusage.^ If a condi- tion or qualifying clause has been misplaced, so that in the connection where it is inserted it is absurd or nonsensical, the court will apj)ly it to its proper subject and give it effect if the statute affords the proper clues, and it can be done in furtherance of its obvious intent.^ But where the language read in the order of clauses as passed presents no ambiguity, courts will not attempt to qualify it by any transposition of clauses and from what it can be ingeniously argued was a general in- tent.^ "Where the provisions of a law are inconsistent and con- tradictory to each other, or the hteral construction of a single section would conflict with every other following or preced- ing it, and with the entire scope and manifest intent of the act, it is certainly the duty of the courts, if it be possible, to harmonize the various provisions with each othei;; and to effect this, it may be necessary, and is admissible, to depart from the literal construction of one or more sections.* § 261. To enable the court to insert in a statute omitted words or read it in different words from those found in it, the intent thus to have it read must be plainly deducible from other parts of the statute.^ When the descriptive words con- 1 United States v. Rossvally, 3 Ben. gian, 4 B. & S. 249 ; Woodbury v. 157 ; State v. Acuff, 6 Mo. 54 ; United Berry, 18 Oliio St 456 ; Wills v. Rus- States V. Stern, 5 Blatch. 512 ; Chap- seU, 100 U. S. 621. man v. State, 16 Tex. App. 76 ; State In Richards v. McBride, L. R. 8 V. Beasley, 5 Mo. 91 ; State v. Heman, Q. B. 119, the question was the mean- 70 Mo. 441. ing of " the day next appointed." It 2 State V. Turnpike Co. 16 Oliio St. was contended that it meant " the 308, 320. next appomted day." Grove, J. : " No 3 Doe T. Considine, 6 WaU. 458. one in constniing a statute or any 4 State V. Heman, supra. other literary production could put 5 Fairchild v. Masonic HaU Asso. 71 such a construction on the words un- Mo. 520, 532 ; Hicks v. Jamison, 10 Mo. less by supposing there was a mis- App. 35 ; Douglass v. Eyre, Gilp. 147 ; take. But we cannot assume a mis- De Sentamanat v. Soiile, 33 La. Ann. take in an act of parUament If we 609 ; Reg. v. Phillips, L. R. 1 Q. B. did so we should render many acts 648; Reg. v. Shiles, 1 Q. B. 919; uncertain by putting different con- Blanchard v. Sprague, 3 Sumn. 279 ; structions on them according to our Wright V. Frant, 4 B. & S. 118 ; Lane individual conjectures. The drafts- T. Schorap, 20 N. J. Eq. 82 ; Ford v. man of this act may have made a Ford, 143 Mass. 577 ; Reg. v. Llan- mistaka If so the remedy is for the INTERPKETATION A.ND CONSTRUCTION. 34^ stitute the very essence of the act, unless the description is so clear and accurate as to refer to the particular subject in- tended, and be incapable of being applied to any other, the mistake is fatal.' A statute prohibited the sale of liquor " within three miles of Mt. Zion church, in Gaston county." There were two churches of that name in that county, several miles apart. This statute was held ambiguous and therefore inoperative.^ It was remarked by the court that it "may not allow conjectural interpretation to usurp the place of judicial exposition. There must be a competent and efficient expres- sion of the legislative will." " Whether a statute be a pubhc or private one," says Chief Justice Euffin, " if the terms in which it is couched be so vague as to convey no definite mean- ing to those whose duty it is to execute it ministerially or ju- dicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it be itself in- telligible." 3 § 262. Effect of context and associatiou of words and phrases. — K'ot only are words and provisions modified to harmonize with the leading and controlling purpose or inten- tion of an act, but also by comparison of one subordinate part with another; that is to say, the sense of particular words or phrases may be greatly influenced by the context, or their association with other words and clauses. When two or more legislature to amend it. But we must if there were no words in tlie act construe acts of parliament as they tending sti'ongly the other way, I are, without regard to consequences, could pass from the plain gi-ammat- except in those cases whei-e the words ical construction of the plu-ase in are so ambiguous that they may be question. The onus of showing that construed in two senses; and even the words do not mean what they then we must not regard what hap- say lies hearily on tlie party who al- penedin parhament, but look to what leges it He must, as Parke, B., said is withm the four comei-s of the act, in Becke v. Smith, 2 M. & W. 195, ad- and to the grievance intended to be vance sometliing wliich clearly shows remedied, or, in penal statutes, to the that the grammatical cousti-uction offense intended to be corrected. Avould be repugnant to the intention Taking the words the ' day next ap- of the act or lead to some manifest pointed' to mean what they say, absm-ditj'." viz. : the day which shall be next ap- i Blanchard v. Sprague, suprcu pointed, is there anything in the act 2 state v. Partlow, 91 N. C. 550 ; itself to show that the legislature S. C. 49 Am. Rep. 653. meant 'the next day appointed?' I 3 Drake v. Drake, 4 Dev. 110. find nothing. I even doubt whether. 344 INTEKPEETATION AND CONSTRUCTION. "words are grouped together, and have ordinarily a similar meaning, but are not equally comprehensive, they will qualify each other when associated ; they may import a conventional sense and have great scope when so used without restriction in the context, and they may be capable of widely different applications when specialized by accompanying provisions ex- pressive of a particular intention or limited application.^ The expression, for instance, of " places of public resort " assumes a very different meaning when coupled with " roads and streets " from that which it would have if the accompanying expression was " houses." ^ In an enactment respecting houses " for public refreshment, resort and entertainment," the last word was understood to refer to, not a theatrical or musical or other similar performance, but something contributing to the en- joyment of the " refreshment." ^ By an act for clearing, watch- ing and regulating the streets of a township, the commissioners were authorized to ascertain the sum to be raised by rates or assessments on the several inhabitants, and to raise such sums by rate or assessment upon the tenants and occupiers of all messuages, houses, warehouses, shops, cellars, vaults, stables, coach-houses, brew-houses and other buildings, gardens and grounds, and other tenements in the township. It was held that under this act the trunks and pipes, works and other ap- paratus of a water company, for the supply of the town with water, did not constitute a tenement within the meaning of the act, and therefore the company were not liable to be rated in re- spect of such property. The word tenement was used in other provisions of the act to denote buildings. " These are some of the instances," says Bayley, J., " in which the word tene- ment is used in this act ; and from these instances and the object of the act, it may be collected in what sense it uses that word. The omission to use the obvious and general word ' lands,' and yet introducing ' gardens and garden grounds,^ 1 Bear Brothers v. Marx, 63 Tex. M. C. 193 ; Sewell v. Taylor, 29 id. 50 ; 298; Moeller v. Harvey, 16 PhUa. 66. 7 C. B. (N. S.) 160; Case v. Storey, 2 Endlich on St. § 400, citing for L. R. 4 Ex. 319 ; Skinner v. Usher, examples, In re Jones, 7 Ex. 586 ; 21 L. R. 7 Q. B. 423 ; Reg. v. Charlesworth, L. J. M. C. 116 ; In re Brown, id. 113, 2 Lowndes, M. & P. 117 ; Wilson v. Reg. V. Brown, 17 Q. B. 833 ; Ex parte HaUfax, L. R. 3 Ex. 114. Freestone, 25 L. J. M. C. 121 ; Davys » Endlich on St. § 400 ; Muir v. T. Douglas, 4 H. & N. 180 ; 28 L. J. Keay, L. R. 10 Q. B. 594. INTEKPEETATION AXD CONSTRUCTION. 345- implies that ' lands ' in general are not intended to be rated. The object of the act was to give security and accommodation to the residents and to their property. The inhabited houses, therefore, and everything connected with residence or trade, as they have the advantage, were to be liable to the charge. The houses, warehouses, shops and all other buildings were to be rated, because they all had protection. But why were gar- dens and garden-grounds to be included if lands in general were not? Possibly, because the produce thereof was of value, and was a possible object of depredation, and the general light- ing and watching of the town would give so much additional protection to this species of property as might properly make it the subject of charge. Gardens, therefore, and garden- grounds may, on this account, be distinguished from other descriptions of land, and may be subjected to this charge, whilst land in general is exempt. Pasture ground, for in- stance, stone quarries, and other kinds of real property, though included in the 43d Elizabeth as affording income, and supply- ing, therefore, the means of contribution, are omitted in this act, because such property derives no equivalent or material protection from it." ^ A statute provided " that every person who shall be brought before any of the said magistrates charged with having in his possession or conveying in any manner any- thing which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such magistrate how he came by the same, shall be deemed guilty of a misdemeanor." This was held, on ac- count of the associated words and context, to apply only to possession in the streets, and not to possession in a house. " Taken by themselves alone," said Blackburn, J., " the words ' having in his possession,' of course include the case of a per- son having in his possession at any time, in any manner or in any place. But here we have them in connection with the words, or conveying in any manner anything wliich may h& reasonably suspected of being stolen or obtained. ... I think the words of the statute sufficiently show that the legis- lature intended to confer this summary power only in the case- where the person was ' having and conveying ' in the sense of 1 Reg. V. Mancliester, etc. Water-works Co. 1 B. & C. 630. 346 INTERPRETATION AND CONSTRUCTION. 'having' ejusdem generis with 'conveying,' being in the streets or roads with them, or carrying them about." ^ § 2(>3. The controlling effect in construction of associated words is well illustrated in Schenley's Appeal.- The question was the existence of a mechanic's lien on a dwelling-house under a statute providing for a hen on ''''improvements^ engines, pumps, machinery, screens and fixtures erected, rej^aired or put in by mechanics, persons or material-men entering liens thereon." Agnew, J., said : " Though the word Hmjyrovements'* is large enough under ordinary cu^cumstances to include a house or private dwelhng, it is manifest, by its connection in this act with the words engines, pumps, etc., and by the two counties to which it was originally made apphcable, that the word was not intended to authorize the creation of hens upon ordinary houses and dwellings of tenants independently of the works indicated by the other expressions used in connection with the word improvements." ^ In a revenue act it was pro- vided in one section that " every railroad company, steamboat company, canal company and slackwater navigation company, and all other na^dgation companies doing business in this state, and upon whose works freight may be transported, whether by such company or by individuals, and whether such company shall receive compensation for transportation, for transporta- tion and toU, or shall receive tolls only, except turnpike, plank- road and bridge companies, . . . shall pay a tax as upon tonnage." The next section provided that, in addition to the taxes provided for as aforesaid, every raiboad, canal and trans- portation company Hable to a tax on tonnage under the pre- ceding section shall pay a certain tax on gross receipts. The 1 Hadley v. Perks, L. R. 1 Q. B. 444. it be said that the word ' surveyor ' - 70 Pa. St. 98. limits and defines ' agent,' we answer, 3 Where it appeared that an insiir- not any more than ' agent ' hmits and ance company constituted a person defines ' surveyor ; ' in other words, named its agent, and there was no either includes the duties and powers definition of his powers, the word of both; the agent is sxu-veyor and " agent," it was held, should be taken the svu-veyor is agent ; one ofiicer is in its general signification, and as clothed with the powers necessary to embracing all powers wliich the com- fiU both offices." Lycoming F. Ins. pany might confer on one whom it Co. v. Woodworth, 83 Pa. St. 223. See selected to represent it. He was au- Central Trust Co, v. Sheffield & B. thorized to act as " agent or sur- Coal, etc. Co. 43 Fed. Eep. 106. veyor," and the court remarked : " If INTEHl'KETATK^N AND CoN^TKLCTION. 347 preceding section had not used the phrase "transportation company," but had simply designated some companies by name, and designated others as companies upon whose works freight might be transported as the means of bringing all under a liabihty for the tonnage carried over their work, whether carriers themselves or not. "When the phrase " transportation companies " was used in the subsequent section it was a nomen collectivum to embrace all the companies which had been de- scribed in the other section, and was intended to include all steamboat, slackwater navigation and other companies " upon whose works freight may be transported." ^ § 264. Where a statute was indefinite and obscure, the court, in view of all the indications afforded by the context, construed this proviso as apphcable only to the tenant : " That no appeal shall lie in the case of rent, but the remedy by replevin shall remain as heretofore." ^ The literal terms of a statute prohib- ited any hen as against purchasers and mortgagees by four species of judicial acts and proceedings, viz. : (1) Judgments ; (2) recognizances ; (3) executions levied on real estate, and (4) ^vrits of scire facias to revive or have execution of judgments, unless the same were indexed as prescribed. All of these acts and proceedings were within the function of, and indeed peculiar to, the court of common pleas, and all, save one, were exclu- sively cognizable and possible in that court. The recognizance was known in the orphans' court, as it was in the criminal court, but the others were not. But the recognizance is also a form of obligation known to the practice of the common pleas, and, there- fore, where it is coupled with other acts and proceedings of that court, the whole being subject to a regulation common to all, it is not necessary to infer that it is used in any other than its natural, associated sense. Therefore, it was held that re- cognizances taken in the orphans' court to operate as hens were not required to be indexed. ^ The word " records " may be re- strained by the context to mean only those in the office of reg- isters of deeds.^ In a marine policy the underwriters insured against the wrongful acts of individuals under the description of -' pirates, rogues, thieves," and it also insured against loss by 1 Commonwealth v. Monongahela ^ Holman's Appeal, 106 Pa, St 503. Nav. Co. 66 Pa. St. 81. < Carter v. Peak, 138 Mass. 439. 2 Hilke V. Eisenbeis, 104 Pa, St 514. 348 INTERPKETATION AXD CONSTKUCTION. arrests, etc., by " all kings, princes and jpeojple?'' The word people was construed to mean the power of the country.^ § 265. A statute of limitations as to a claim to any way or other easement, or to any water-course, or the use of any water, to be enjoyed or derived upon, over or from any " land or water," does not include the servitude of allowing " the streams and currents of air and wind to pass over land to a mill." - It points to a right belonging to an individual in re- spect of his land, not a class such as freemen or citizens claim- ing a right in gross wholly irrespective of land,* It was enacted that " any tenement or part of a tenement occupied as a house for the purpose of trade only, or as a warehouse for the sole purpose of lodging goods, wares or merchandise therein, or as a shop or counting-house, shall be exempt " from certain duties. It was held on the maxim noscitur a sociis, that the business of a telegraph company is a trade within the meaning of that statute.^ The word " dehvery," being asso- ciated in a bankrupt act with " gift or transfer," was held to- be confined to transactions of the same nature ; that to be a delivery it must purport to part with some property or in- terest in the goods delivered, to amount to an act of bank- ruptcy.^ A carriers' act, providing for mitigation of the responsibility of carriers, contained an enumeration of articles within its provisions, among which were " paintings, engrav- ings, pictures ; " and a question, arose whether colored imita- tions of rugs and carpets and working designs, each of them valuable and designed by skilled persons and hand-j^ainted, but having no value as works of art, were included within that provision. It was decided that they were not. The word "paintings," being associated with " engravings and pictures," was to be understood as meaning paintings valuable as works of art. This conclusion was deemed to be in accord with the general or popular meaning of the word.^ 1 Nesbitt V. Lushington, 4 T. R. < Chartered MercantUe Bank, etc. v. 783. WHson, L. R. 3 Ex. D. 108. 2 Webb V. Bird, 10 C. B. (N.S.) 268; 5 Cotton v. James, Mood. & Mai. S. C. 13 id. 841 ; Bryant v. Lefever, 4 278 ; Isitt v. Beeston, L. R. 4 Ex. 159. C. P. Div. 172. 6 Woodward v. London, etc. Ry 3 Mounsey v. Ismay, 3 H. & C. at Co. 3 Ex. D. 121. p. 497. INTERPRETATION AND CONSTRUCTION. 349 § 2G6. When two words or expressions are coupled together, one of which generically includes the other, it is obvious that the more general term is used in a meaning excluding the spe- cific one.^ A revenue act of congress exempted from duty " animals of all kinds ; birds, singing, and other, and land and water fowls." A later act levied a duty of twenty per cent. " on all horses, mules, cattle, sheep, hogs and other live ani- mals." It was held that birds were not included in the term ^' other live animals " as used in the later act.- " This act of 1S61," said Mr. Justice Davis, " was in force when the act of 1SG6 — the act in controversy — was passed, and it will be seen that birds and fowls are not embraced in the term ' animals,' and that they are free from dut}^, not because they belong to the class of ' living animals of all kinds,' but for the reason that they are especially designated. It is quite manifest that con- gress, adopting the popular signification of the word ' animals,' applied it to quadrupeds, and placed birds and fowls in a dif- ferent classification. Congress having, therefore, defined the word in one act, so as to limit its application, how can it be contended that the definition shaU be enlarged in the next act on the same subject, when there is no language used indicat- ing an intention to produce such a result? Both acts are 'i)i j)ari materia' and it will be presumed that if the same word be used in both, and a special meaning were given it in the first act, that it was intended it should receive the same inter- pretation in the later act, in the absence of anything to show a contrary intention." ^ § 267. Relative and qualifying words and plirases. — Eel- ative and quahfying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.* A proviso is construed to apply to the 1 EndL § 396 ; Rex v. Cowell, 2 East Asso. v. Commonwealth, 98 Pa, St P. C. 617 ; Rex v. Loom, 1 Moo. C. C. 54, 65 ; Dick's Appeal, 106 Pa. St. 589. 160 ; Dewluu-st v. FeUden, 7 M. & G. 2 Reidie v. Smythe, 13 Wall. 162. 182 ; Peto V. West Ham, 2 E. & E. s Id. 144 ; Reg. v. Midland R. Co. 4 E. & B. < Fowler v. Tuttle, 24 N. H. 9 ; State 958 ; Lead Smelting Co. v. Richard- v. Brown, 3 Heisk. 1 ; Ellis v. ]Murra.y, son, 3 Bm-r. 1341 ; Rex v. Sedgloy, 2 28 ]\Iiss. 129 ; Cushing v. Worrick, 9 B. & Ad. 65 ; Rex v. Cimningham, 5 Gray, 383 ; Gyger's Estate, 65 Pa. St. East, 478 ; Morgan V. Crawshay, L. R. 311; Fisher v. Connard, 100 id. 63; 5 H. L. 304 ; Bourguignon Building Staniland v. Hopkins, 9 M. & W. 178. 350 INTEKPKETATION AND CONSTRUCTION. proYision or clause immediately preceding.^ "Where the bj^-laws of a society provided first for an annual meeting for the election of officers, and then for a monthly meeting on a specified day « at half-past seven o'clock, P. M.," it was held that the clause specifying the hour of meeting had reference only to the monthly meeting.^ The intention is sufficiently obvious in the following provision for the establishment of Kbraries, without recourse to any rule. It is nevertheless within this principle. It was provided that any town or city might appropriate money for suitable buildings or rooms, and for the foundation of a library a sum not exceeding one dollar for each of the ratable poUs in the year next preceding, and, annually thereafter, a sum not exceeding fifty cents for each of its ratable polls. It was held that the power to make the subsequent appropria- tions, with its limitation, was for the same object as the first, and did not apply to the power to appropriate for buildings or rooms.^ An act provided for the adoption of a statute by cities and towns " at a legal meeting of the city council, or the inhabitants of the town called for that purpose." It was held that " called for that purpose " did not apply to a city council.'^ This principle is of no great force ; it is only operative when there is nothing in the statute indicating that the relative word or qualifying provision is intended to have a different effect. And very slight indication of legislative purpose or a parity of reason, or the natural and common-sense reading of the stat- ute, may overturn it and give it a more comprehensive appli- cation.^ Thus, as was said by the court in Great Western Kailway Company v. Swindon,^ referring to the phrase " horses, oxen, pigs and sheei^, from whatever country they come^^ the last clause Avould apply alike to all these animals and not alone to sheep. In furtherance of the intention it was held in that case that in the construction of the phi^ase " messuages, lands, ten- ements and hereditaments of any tenure^^ the last and qualify- ing words, " of any tenure," applied to all the preceding words 1 Partington, Ex parte, 6 Q. B. at 3 Dearborn v. Brookline, 97 Mass. p. 653 ; Spring v. CoUector, 78 IlL 101 ; 466. Lehigh Co. v. Meyer, 103 Pa. St. 479. 4 Quinn v. Lowell Electric L Co. See United States v. Babbit, 1 Black, 140 Mass. 106. 55; Re Cambrian Railway Scheme, sGyger's Estate, sitpra; Fisher v. L. R 3 Ch, 278 ; § 223. Connard, siipra. 'i State V. Conklin, 84 Wis. 21. 3 L. R 9 App. Gas. at p. 808. INTERPKETATION AND CONSTRUCTION. 351 and not merely to " hereditaments." ^ Qualifying words have- been applied to several preceding sections where the nature of the provisions and the obvious sense required it. Thus, where there was a restriction relating to the compensation of certain officers, upon the ground of reason and intention as to all, and the iraprobabihty of a contrary design, it was held not limited in its effect to the section where it was inserted, but was an independent proposition applying alike to all officers of the same class.^ Where the intention is manifest, a proviso, or qualifying words or clauses found in the middle of a sentence, may be placed at the end ; ^ or, when inserted in one section, they may be applied to the matter of another section.* § 268. Wbcu general words follow particular. — When there are general words following particular and specific words, the former must be confined to things of the same Idnd.^ It was held that a buU was not included under the words " or other cattle " as used in a statute which made it indictable for any person to wantonly or cruelly beat, abuse and ill-treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep or other cattle.^ Bayley, J., said : " Ilorse, mare, gelding, are one class ; ox, cow, heifer and steer are an- other, and in my opinion the bull is not included in this act.'^ Where an act imposed a penalty on any person hauhng " any timber or stone or other thing, otherwise than upon wheeled carriages," it was held not to extend to straw, but was con- fined to things as weighty and as liliely to cause injury to roads as timber or stone.'' It was provided by the winding-up acts that the court might wind up a company if a special reso- lution was passed, or the business of the company was not commenced within a year, or the number of members was 1 See Eby's Appeal, 70 Pa. St 311, » Reg. v. Edmundson, 28 L. J. K C. 314; Coxson v. Doland, 3 Daly, 66; 215; 2 E. & E. 77; Gunnestad v. Hart V. Kennedy, 15 Abb. Pr. 290. Price, L. R 10 Ex. 69 (but see The 2 United States v. Babbit, 1 Black, Alina, 5 Ex. Div. 227 ; S. C. 5 Prob, 55. Div. 138; The Rowa, 7 id. 247); 3 Waters v. Campbell, 4 Sawyer, Washer v. Elliott, L. R. 1 C. P. Div. 121. 174 ; Foster v. Blount, 18 Ala, 687. 4 State V. Turnpike Co. 16 Ohio St t. HiU, Ex parte, 3 C. & P. 225. 308. See Matthews v. Common- " Radnorsliire Co. Road Board v. wealth, 18 Gratt 989 ; State v. For- Evans, 3 B. & S. 400. ney, 21 Neb. 223, 226. 552 INTEKPKETATION AND CONSTKUCTION. reduced below seven, or tlie company was unable to pay its debts, or if the court thougbt it just and equitable that the company should be wound up. It was held that the grounds upon wliich the court might form its conclusion must be ejusdem generis with those already enumerated.^ § 269. Landlords were authorized by statute to distrain for rent " all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing on any part of the estates demised." This did not include trees, shi-ubs and plants growing in a nursery garden.- The memorandum of a company stated that the company was formed for the purpose? among others, " of carrying on the business of mechanical en- gineers and general contractors." A question was : "What was the scope of the concluding words, "general contractors." Lord Cairns said : " Upon all ordinary principles of construc- tion, these words must be referred to the part of the sentence which immediately precedes them; . . . therefore, . . . the term " general contractors " would be referred to that which goes immediately before, and would indicate the mak- ing generally of contracts connected with the business of me- chanical engineers. ... If these words were not to be interpreted as I have suggested, the consequence would be that they would stand absolutely without any limit of any kind." ^ An act made a railroad company liable for killing cer- tain enumerated domestic animals, " et cetera." It also ex- cluded from being witnesses employees of the company who might be responsible to it for negligence " by which any stoch may be injured or killed as contemplated by this act." It was held that the act did not apply to negro slaves.* § 270. The object of enumeration is to set forth in detail things which are in themselves so distinct that they cannot conveniently be comprehended under one or more general terms; there is believed to be no a priori presumption that the things enumerated are all of them of the same kind. When a specific enumeration concludes with a general term 1 Wilb. on St. 181 ; Spackman, Ex L. 653. See Great Western R'y Co. parte, 1 Macn. & G. 170 ; Re Anglo- v. Swindon, etc. R'y Co. L. R 9 Ap. ■Greek Steam Co. L. R. 2 Eq. 1. Cas. 787. 2 Clark V. Gaskarth, 8 Taunt. 431. < Scaggs v. Baltimore, etc R R. » Ashbuiy Co. v. Riche, L. R. 7 H. Co. 10 Md. 268. INTERPRETATION AND CONSTRrCTION. 353 it is held to be limited to things of the same kind.^ it is re- stricted to the same genus as the things enumerated.^ It was enacted that " no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any labor, busi- ness, or work, of their ordinary callings upon the Lord's day." This has been held not to include a farmer,^ or drivers of stage- coaches,* or attorneys.^ On the same principle " parochial re- lief or other alms " means other parochial alms.® " Cities, towns, corporate boroughs and places " do not include places which are not incorporated." An act empowering justices to determine differences between masters and persons in several employments, and " servants in husbandry, artificers, handi- crafters," and finally " all other laborers," does not by these words extend to a domestic servant,^ nor to a man employed to take care of goods seized under a writ.^ "County, riding or division" means a division analogous to a county or rid- ing.^" § 271. A Michigan statute gave "every wife, child, parent, guardian, husband or other person'''' a right of action against a liquor-seller for injury done to the plaintiff by reason of the intoxication of any person. On the ground and principle under consideration, it was held that the intoxicated person him- self was not within the statute.'^ Another statute of the same 1 Countess of Rothes v. Kirkcaldy or writing, or by any other false Water Works Coramissioners, L. R pretense,'' obtain signatm-es to a 7 App. Cas. 706. -written instrument. It was held that 2 Fenwick v. Schmalz, L. R 3 the statute does not enumerate the C. P. 315. false pretense in particular terms, so 3 Reg. V. Cleworth, 4 B. & S. 927. that the term " any other false pre- < Sandiman v. Breach, 7 B. & C. 96. tense " is not Hmited to a particular 5 Peate v. Dicken, 1 C. M. & R 422. kind of pretense, and the rule of con- 6 Reg. V. Lichfield, 3 Q. B. 693. struction that general terms must be • Rex V. Wallis, 5 T. R. 375. construed as of the same tenor as pre- 8 Kitchen v. Shaw, 6 Ad & E. 729. ceding particular terms previously ^ Bramwell v. Penneck, 7 B. & C. enumerated has no application. In 536. constiniing a common carrier's con- ic Evans v. Stevens, 4 T. R 459. tract, contiiining provisions to qualify 11 Brooks V. Cook, 44 Mich. 617. In tlie carrier's responsibihty, wliich ex- Higler v. People, 44 Mich. 299, the empted the railroad company from statute provided for the pimishment liability' for losses and damages " in of any person who, " with intent to loailing, unloading, conveyance and defraud or cheat another, shall de- otherwise," whether arising from signedly, by color of any false token neghgence, misconduct or otherwise. 354 mTEKPKETATION AND CONSTKUCTION. state provides that " every person who shall set fire to any building mentioned in the preceding section, or to any other material, with intent to cause such building to be burnt, or shall by any other means attempt to cause any building to be burnt, shall be punished," etc. This provision was held to contemplate the employment of some physical means to con- stitute a punishable attempt to cause such building to be burnt, and an attempt by mere solicitation is not within the statute ; for in construing statutes general terms are subordi- nated by preceding connected particulars ; the rule is espe- cially applicable in the interpretation of statutes defining crimes and regulating their punishment.' § 272. A statute exempted from taxation "every building erected for the use of a college, incorporated academy or other semiiiary of learning.''^ As all those enumerated were corpo- rations, it was held that the general words " or other semi- nary " required that such institution should also be incor- porated in order to have the benefit of the exemption.^ A railroad company was authorized by its charter " to pur- chase, hold and use all such real estate and other property as may be necessary for the construction of its railway and stations, and other accommodations as may be necessary to accomplish the objects of its incorporation." The term " other accommodations " was held not to include an elevator, cost- ing two or three hundred thousand dollars, for storing and handling grain. ^ The court say: "It has no direct connec- tion with the road or its operation ; yet when shipments of grain are made either to or from it over the company's road, it is very clear the company can handle the grain thus shipped with more ease and greater facility, and hence can by the court held that general words of v. Moore, 5 Midi. 368 ; Hawkins v. exemption, when used after a desig- Great W. R. R. Co. 17 Mich. 57 ; Mat- nation of specific exemptions and terof Ticknor'sEst. 13Mich.44; PhQ- risks, will be presumed to include lips v. Poland, L. R 1. C. P. 204 ; Hall only those of a simUar character, un- v. State, 20 Ohio, 7 ; Daggett v. State, less a different intention is manifest. 4 Conn. 60 ; Chegaray v. Mayor, etc. Hawkins v. Great W. R. R. Co. 17 13 N. Y. 220 ; 1 Bish. Cr. L. § 149 ; Mich. 57; American Transportation Dwarris, 621. Co. V. Moore, 5 Mich. 368. ^ Chegaray v. Mayor, etc. 13 N. Y. » McDade v. People, 29 Mich. 50 ; 320. citing American Transportation Co. 2 Matter of Swigert, 119 HL 83. INTERPRETATION AST) CONSTRUCTION. 355 means of it do a greater business." In another part of tlie opinion the court say that " what is included in the expression ' other accommodations ' must be of the same class or kind as ' railway and stations ; ' " that it is a well settled doctrine that in construing statutes, particularly those requiring a strict construction, a general description following a specific enumer- ation of objects or things will be held to include only such as are of the same kind as those specifically enumerated. "Any works, mines, manufactory or other business where clerks, miners or mechanics are employed " does not include a hotel, for the general words " or other business " refer to some busi- ness ejusdern generis^ as " works, mines, manufactory." ^ § 273. The words " other persons," following in a statute the words " warehousemen " and " wharfinger," must be un- derstood to refer to other persons ejusdem generis, viz., those who are engaged in a like business, or who conduct the busi- ness of warehousemen or wharfingers with some other pursuit, such as shipping, grinding or manufacturing.^ An act en- abling the owner of realty to sustain an action of replevin to recover timber, lumber, coal or other property severed from the realty, notwithstanding the fact that the title to the land may be in dispute, does not apply to growing crops. The words " other property " in that act were held to be intended to include only articles of the same generic character as those enumerated — such as slate, marble, iron ore, zinc ore, and all other forms of minerals and ores, building stone, and fixtures and machinery of every description, which have been perma- nently affixed to the realty.^ Provision by statute was made for compensation to owners abutting on streets for damage caused by a " change of the grade or lines " thereof, or in case the authorities " in any way alter or enlarge the same." The court, in a case for damages for widening an alley, say of the act : " It speaks of a change of the ' grade or Unes ' of any street ; and, while the succeeding words, ' or in any way alter or enlarge the same,' might seem to apply to widening a street, yet, looking at the manifest object of the act [which was to compensate the owner whose property is not taken, but is in- 1 Sullivan's Appeal, 77 Pa. St 107 ; 2 Bucher v. Commonwealth, 103 Pa. Allen's Appeal, 81* Pa. St 302. St 528. 3 Renick v. Boyd, 99 Pa. St 555. 356 INTERPEETATION AND CONSTKUCTION. jured by change of grade], we must read these general words in connection with such object. Tested by this familiar rule, it is manifest the general words referred to are c^ualiiied by the preceding special words, and that the act has no applica- tion where there is no change of grade." ' A statute provided that " any married woman whose husband, either from drunk- enness, profligacy or any other cause, shall neglect or refuse to provide for her support, . . . shall have the right in her own name to transact business." It Avas held that the words "any other cause" must be understood to be cause ejusdem generis^ and that they do not include mere mental or physical incapacity.- So the power given to a board of super- visors to remove an inspector of the house of correction for certain specified causes, " or other cause satisfactory to the board," was held to include, by the effect of the last or general clause, only other like causes — that is, causes affecting the officer's fitness for the ofiice.^ § 274. A power to correct " manifest clerical or other errors in any assessments or returns " was intended simply to permit a correction of manifest and clerical errors ; those apparent on the face of the assessments or returns ; those of form and not of substance.* The statutes of IS'ew York relating to offenses of the nature of burglary enact that the term " build- ing" includes "a railway car, vessel, booth, tent, shop, or other erection or inclosiore^ " and the general words were con- strued as limited to the same class of erections or inclosures already specified, and did not include a vault intended and used exclusively for the interment of the dead.^ An action was brought to recover certain real property under a legislative act Avhich authorized the people to bring an action to recover " money, funds, credits and property " held by public corporar tions, and Avrongf ully converted or disposed of ; and it was held that the word " property," although in its widest mean- ing inclusive of all things that might be owned, yet, when taken in connection wi'.-i other words used in the statute, and in view of the surrounding cii'cumstances under which the act 1 Re Brady Street, 99 Pa. St. 591. < Matter of Hermance, 71 N. Y. 481. 2 Edson T. Hayden, 20 Wis. 682 ; 5 People v. Richards, 108 N. Y. 137 ; King V. Thompson, 87 Pa, St. 365. S. C. 11 Cent Rep. 75. 3 State V. McGarry, 21 Wis. 496. INTERPRETATION AND CONSTRUCTION. 357 was passed, was not to be given its usual and enlarged mean- ing, but was limited to include only property of the same general character as that already mentioned in the statute, which was personal property.^ § 275. A late English case involved the construction of an insurance policy. A steamer was insured by a policy on the s'.iip and her machinery, including the donkey-engine. The policy covered perils of the sea, specially naming many, and then continued : " and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the aforesaid subject-matter of this insurance or any part thereof." For the j)urposes of navigation the donkey-engine was being used in pumping water into the main boilers, when, owing to a valve being closed which ought to have been kept open, water was forced into and split open the air chamber of the donkey-pump. The closing of the valve was either ac- cidental or due to the negligence of an engineer, and was not due to ordinary wear and tear. It was held that the injury was not covered by the policy, as it was not a peril of the sea ; and although it was undoubtedly " a loss or misfortune," yet the specific words of the pohcy which preceded its general language, it was said, restricted it to the same genus as the specific words.'- In the course of his judgment the chancellor, Halsbur}^, said : " If understood in their widest sense the words are wide enough to include it [the injury] ; but two rules of construction, now fairly established as a part of our law, may be considered as limiting these words. One is that words, how- evcK general, may be Hmited with respect to the subject-matter in relation to which they are used. The other is that gen- eral words may be restricted to the same genus as the specific words that precede them." Power was delegated to a city by its charter to license " auctioneers, grocers, merchants, retailers, hotels, . . . hackney carriages, omnibuses, carts, drays, and other vehicles, and all other business, trades, avocations and professions whatever." The profession of law Avas not specially enumerated in the section, and it was held not in- cluded in the grant of the power to tax, because it was not ejus- 1 People V. N. Y. etc. R R, Co. 84 2 Thames, etc. Ins. Co. v. Hamilton, N. Y 505. L. R 12 App. Cas. 484. 358 INTEKPKETATION AND CONSTKUCTIO::, dem generis} An employer was made subject to a penalty if he sliould deduct directly or indirectly from the wages of any artificer in his employ any part of such wages for frame rent and standing or other charges. Where the employer was a hosier manufacturer, and an employee a hand-frame worker, and according to the regulations of the factory the latter was liable to a fine of 8iZ. a day for staying away from work with- out permission, and had been fined for that cause, and the amount deducted from his wages, it was held not within the statute ; " other charges," following immediately after frame- rent and standing, were taken to mean other charges ejusdern generis? It was enacted that the business of a blood-boiler, bone-boiler, fell-monger, slaughterer of cattle, horses, or animals of any description, soap-boiler, tallow-melter, tripe-boiler, or other noxious or offensive husiness, trade, or manufacture, shall not be newly established in any building or place, etc. ; and on the question whether a brick-maker was within the regulation, Erie, C. J., thus stated and answered it : " Is brick-making of necessity a business of a noxious or offensive nature analogous to those specified at the beginning of the clause? I am of opinion that it is not." * A statute required a voting paper to contain the name of the street, lane, or other jplace, in which the property for which the voter appears to be rated on the burgess roll is situated. In Eegina v. Spratley,^ Lord Camp- bell, C. J., said : " Though I think that the ' other place ' must be ejusdem generis with ' street ' and ' lane,' I think that parish may, in some cases, be ejusdem generis with street or lane." §276. The words "estate" or "effects," and the like, if used in a clause containing an enumeration of personal estate, will generally be confined to estate or effects ejusdem generis with those specified, as being the most natural, when unex- plained by the context.^ A person employed by a building- owner to erect a building adjoining the house of another is 1 St Louis V. Laughlin, 49 Mo. 559 ; 3 Wanstead Board v. HiU, 13 C. B. Grumley v. Webb, 44 Mo. 444 ; (N. S.) 479. Stone V. Stone, 1 R. I. 425 ; White v. < 6 E. & B. at p. 367. Ivey, 34 Gal86; State v. Stoller, 38 sMcIntyre v. Ingraham, 35 Miss. Iowa, 321. 25 ; Rawlings v. Jennings, 13 Ves. 46 ; 2WiUis V. Thorp, L, R. 10 Q. B. Stuart t. Earl of Bute, 3 id. 212; S83. Hotham v. Sutton, 15 id. 320. INTERPKETATION AND CONSTRUCTION. 359 not an " other person" within the meaning of a statutory reg- ulation which requires a month's notice of action to be given before a writ or process is sued out against " any district sur- veyor or other jper son for anything done or intended under the provisions of the act." ^ An act for keejDing in repair a harbor imposed certain duties enumerated in a schedule annexed on goods exported and imported. In the schedule under the head of " metals," certain specified duties were imposed on " copper, brass, pewter and tin, and on cdl other metals not eniiraeratedP It was held that the latter words did not include gold and silver. The court in part put the decision in Casher v. Holmes,^ on the ground that the word " metals " in popular language does not include gold and silver, but they are spoken of as pi^ecious metals. Littledale, J., said : " I have no doubt that those words do not include gold and silver, but refer to metals ejusdem generis with others previously mentioned under the head metal ; and the metals ejusdem generis^ and not already enumerated, can only be compound metals, and what were formerly called semi-metals." It was agreed by charter- party to load a ship with coal in regular and customary turn, " except in cases of riots, strikes or any other accidents beyond his [the contractor's] control," which might prevent or delay her loading. It was held that a snow-storm was not an accident within the exception.* § 277. There is this further restriction of general words fol- lowing particular . words, that the general words will not in- clude any of a class superior to that to which the partic- ular words belong ; a statute treating of deans, prebands arid others having spiritual promotion was held not to extend to hishops^ notwithstanding the generality of the latter words ; for, if it had been otherwise intended, the superior persons would have been mentioned in the beginning of the sentence, and they cannot be implied.'' Where the general words, " all other metals," follow the particular words, '• copper, brass, pew- ter and tin," it was held in the case just referred to that neither gold nor silver was included, they being of a superior kind to 1 Williams v. Golding, L. R 1 C. P. 3 Fenwick t. Schnialz, L. R. 3 C. P. 69. 313. 2 2 B. «S: Ad. 592. * Coplaud v. Powell, 1 Bing. 369 ; Cliapmau v. Woodruff. 34 Ga. 98. 360 INTERPRETATION AND CONSTRUCTION. the particular metals enumerated.^ " Abbots, priors, Keepers of hospitals and other religious houses," do not include bishops, as they are superior to abbots.- The statute of 31 Henry YIII., chapter 3, discharged from payment of tithes all lands which came to the crown by dissolution, renouncing, relinquishing, forfeiture, giving up, or by any other means. It had the effect to discharge from tithes land which came to the crown by these or by any other inferior means, but did not discharge therefrom land which came to the crown by an act of ])arha- ment, which is the highest manner of conveyance that can be.* A statute relating to indictments before justices of the peace and " others having power to take indictments " was not under- stood to apply to the superior courts." The Enghsh statute which forbade salmon fishing in the waters of certain enumer- ated streams, " and all other waters wherein salmon are taken,'^ was considered as including only rivers inferior to those men- tioned, and therefore as not comprising the Thames — Thamasis noVile Uliid flumen? § 278. But where the result of thus restricting the general words would be that they would have no effect at all, they must be extended to things superior in quality to those enu- merated.*' This naturally proceeds from the rule of construc- tion to give effect to all the words of a statute if possible, so that none will be void, superfluous or redundant.' Thus the statute of Marlebridge, 52 Henry HI., chapter 19, refers to courts baron or other courts, and it was held that these words extend to the courts of record at Westminster, though the act begins with inferior courts ; " for otherwise these general words would be void; for it cannot, according to the general rule, extend to inferior courts, for none be inferior or lower than those that be particularly named." ^ For the same reason the restriction of general words to things ejusdem generis must not be carried to such an excess as to deprive them of aU mean- ing. The enumeration of particular things is sometimes so com- plete and exhaustive as to leave nothing which can be caUed 1 Casher v. Holmes, 2 B. & Ad. 592. ' 2 Inst 478. 2 2 Inst 457, 478 ; Archbishop Can- 6 1 wilb. on St 184 terbury's Case, 2 Rep. 46a. '^ See ante, § 340. 3icL 8 Id; 2 Inst 137. *Id. INTERPRETATION AXD CONSTRUCTION. 361 ejusdem generis} If the particular words exhaust a whole genus, the general words must refer to some larger genus.'^ When a statute of limitation enumerated certain periods for bi'inging actions for inferior estates, and following the enumera- tion were these words, " or other action for any lands, tene- ments or hereditaments, or lease for a term of years," and under the general words it was sought to bring an action for a higher estate, it was recognized that as a general rule a statute which treats of things or persons of an inferior degree cannot by any general words be extended to those of a superior de- gree ; yet when all those of an inferior degree are embraced by the express words used, and there are still general words, they must be applied to things of a higher degree than those enu- merated, for otherwise there would be nothing for the general words to operate on.^ Therefore these general words were held to include a real action.* § 279. In cases coming within the reach of the principle just illustrated, general words are read not according to theu' natural and usual sense, but are restricted to persons and things of the same kind or genus as those just enumerated ; they are construed according to the more explicit context. This rule can be used only as an aid in ascertaining the legis- lative intent, and not for the purpose of controlling the inten- tion or of confining the operation of a statute within narrower limits than was intended by the law-maker. It affords a mere suggestion to the judicial mind that where it clearly appears that the law-maker was thinking of a particular class of per- sons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense. Other rules of construction are equally potent, especially the primary rule which suggests that the intent of the legislature is to be found in the ordinary meaning of the Avords of the statute.* The sense in which general words, or any words, are intended to be used, furnishes the rule of interpretation, and this is to 1 Id. 185. •• Hall V. Byrne, 1 Scam. 1 40 ; Wood- 2 Feuwick v, Sclimalz, L. R 3 C. P. worth v. Paine's Adm'r, Breese (lU.), at p. 316, 374. 3 Ellis V. Mun-ay, 28 Miss. 129 ; ^ Woodworth t. State, 26 Ohio St Dwai-. on St 758. 196 ; Foster v. Blount, 18 Ala. 687. S62 mTEKPBETATION AND CONSTRUCTION. be collected from the context ; and a narrower or more ex- tended meaning will be given, according as the intention is thus indicated.! ^q jen}^ any word or phrase its known and natural meaning in any instance, the court ought to be quite sure that they are following the legislative intention.^ Hence, though a general term follows specific w^jrds, it will not be re- 1 Mclntyi-e v. Ingraham, 35 Miss, at p. 52 ; Michel v. IMichel, 5 Madd 72 ; Hotham v. Sutton, 15 Ves. 320 ; Stu- art V. Earl of Bute, 3 id. 212. In Rex V. Shrewsbury, 3 B. & Ad. 216, the question was whether a gas- light company was liable to be rated as occupiers of certain mains, pipes and other apparatus for conveying gas, under a statute which provided : "That the charges and expenses of lighting, paving, cleansing, watering, watching, widening, altering, im- proving and regulating the said sti'eets, squares, liighways, lanes and other pubUc passages of the town of Shrewsbuiy, . . . shaU at all times be borne and defrayed by the tenants or occupiers of all the houses, shops, malt-houses, granaries, ware- houses, coach-houses, yards, gardens, garden grounds, stables, cellars, vaults, wharves and other buildings and hereditaments," etc. Meadow and pastm-e ground was excepted. The company's mains, pipes, etc., were held ratable. Lord Tenterden, C. J., remarked that the word " her- editament " was large enough to in- clude the ground and soil in the sev- eral ways, lines and other places in which the pipes and apparatus be- longing to this company are fixed, and he said : " But it is contended that the term as here used was to be constnied vdth reference to the words among which it was found, and must be applied to hereditaments of the same kind as those particu- larly enumerated, such as coach- houses, gardens and so on ; and reh- ance was placed on a case decided not long ago, Rex v. The Proprietors of the Manchester and Salf ord Water- Works, 1 B. & C. 630, Avhere the word xised was 'tenement,' which is also a term of veiy large import In that case it was held by the coirrt that the word shoidd be restrained in consti-uction to tenements of the same kind as the particular ones be- fore enumerated ; but there is in this act a circumstance which was not found in the other — the exception, namely, that the act shall not extend to meadows and pastures. Now it is cei-tain that meadows and pastures would have fallen within the mean- ing of the word 'hereditament' if they had not been excepted ; it was argued, therefore, that tliis special exemption of meadows and pastures showed that the other word had been previously used in a larger sense. On the other hand it was contended that these words had been intro- duced merely ex majori cautela. Upon the best consideration we have been able to give tliis case, we are of opin- ion that we ought not to consider the exception of meadow and pasture groimd as made only for greater caution, but are boimd to look upon it as introduced by way of special exception, and so to construe the clause; and, consequently, every- thing not so specifically excepted must be understood to fall witliin the general liability." - Lord Denman, C. J., in Tisdell v. Combs, 7 Ad. & E. at p. 796. INTERPRETATION AND CONSTRUCTION. 363 strictcd by them when the object of the act and the intention is that the general word shall be understood in its ordinary sense. An instance is furnished by an act in South Carolina which subjected to punishment any person convicted of know- ingly and wilfully packing or putting into any bag, bale or bales of cotton, any stone, wood, trash cotton, cotton seed or any matter or thing whatsoever, ... to the purpose or intent of cheating or defrauding any person, etc. The court held that the expression " any matter or thing whatsoever " was not restricted by the things enumerated. In this case the weight was fraudulently increased by use of water. " Here," say the court, " there is no incongruity between the specifica- tions and the general expression, and it cannot be doubted that it was the intention of the legislature to punish frauds in packing cotton without regard to the character of the material used." ^ § 280. An act prescribed the fees of county judges and clerks of county courts, and made it an offense for either to receive any other or greater fees from any guardian, executor or administrator or other person. In a prosecution against the clerk for excessive fees in a suit, and in answer to the conten- tion that " other person " is only some one who has paid more or greater fees than are allowed by law in some matter relating to the administration of estates, the court, while recognizing the rule for limiting general words to persons and things ejus- dem generis, said : " This is but a rule of construction by which courts are to ascertain the intention of the legislature, and when that is apparent we are bound by it, and can no more disregard the intention in the exposition of a penal statute than any other." ^ The court held that the true meaning of the act was to punish, as an offense, the taker of greater than the prescribed fees from any person. A statute enacted that " no house, office, room or other place shall be opened, kept or used " for the purpose of prohibited betting. A question came before the common bencli whether betting under a clump of trees in Hyde Park was Avithin the statute.^ It was held to 1 State V. Holman, 3 McCord, 306 ; 2 Foster t. Blount, 18 Ala. 687. Riindolph V. State, 9 Tex. 521 ; State 3 Doggett v. Catteins, 17 C. B. (N. S.) V. Williams, 3 Sti'ob. 474; State v. 669. Solomon, 38 Ind. 450. 364 INTERPRETATION AND CONSTRUCTION. be SO. Erie, C. J., said : " The mischief is to my mind precisely the same whether the party stands under the shelter of an oak tree, or of a roof or a covering of canvass ; and I think the words are large enough to embrace it. . . . Beyond aU doubt the mischief which the statute intended to remedy was that which was known to exist, viz. : the injury resulting to improvident persons by the opening of betting-houses or offices ; but I think it was intended to go further and to prohibit the trade of betting wheresoever it might be carried on. If the prohibition had stopped at ' houses, offices and rooms,' certain persons, minded to carry on this traffic, would resort to tree^ in the park, and the legislature ma}" well have thought that a practice which should be placed under control, and for that pur- pose inserted the general words." The exchequer chamber re- versed this decision on the ground that the " place " should be one capable of having an owner. That court concurred in the view taken by the common pleas so far that the place being an open one, and not a " house," " office " or " room," would not alone prevent it being a " place " within the statute.^ It was held that a bicycle is not a " carriage " within the mean- ing of a turnpike act which scheduled animals and vehicles and defined tolls to be paid, and contained this paragraph : " For every carriage of whatever description and for whatever pur- pose which shall be drawn or impelled, or set or kept in mo- tion, by steam or any other power or agency than being drawn by any horse or horses or other beast or beasts of draught, any sum not exceeding 5^." ^ A city charter granted authority to impose a license tax upon persons engaged in certain enu- merated callings, and " upon any other person or employment which it may deem proper, whether such person or employ- ment be herein specially enumerated or not." And it was held not to empower the city to impose such tax upon a rail- road corporation, for it is neither a person nor an employ- ment within the ordinary acceptation of those words. This 1 19 C. B. (N. S.) 765 ; Haigh v. Cor- 275 ; Shaw v. Morley, L. E. 3 Ex. 137 ; poration of Slieffield, L. R. 10 Q. B. 102. Bows v. Fenwick, L. R. 9 C. P. 339 ; See Clark v. Hague, 2 E. & E. 281 ; Shillito v. Thompson, L. R 1 Q. B. Morley v. Greenhalgh, 3 B. & S. 374 ; Div. 12. Eastwood V. Miller, L. R. 9 Q. B. 440 ; 2 Williams v. Ellis, L. R 5 Q. R Gallaway v. Maries, L. R 8 Q. B. Div. Div. 17.1 INTEKPRETATION AND COXSTEUCTION. 365 conclusion was aided by the consideration that snch corpora- tions are not ejusdem generis "with the persons and employ- ments specially enumerated. The court say, whilst the obvious Import of the general words " is to extend the power of the city to tax other persons and employments than the enumer- ated classes, regardless of whether they are taxed by the state or not, it cannot be said to necessarily convey the idea that these new taxable subjects shall be different in character or higher in degree." ^ It was also held when a particular class of persons or things is spoken of in a statute, and general words follow, the class first mentioned must be taken to be the most comprehensive and the general words treated as referring to matters ejusdem, generis with that class ; the effect of gen- eral words when they follow particular words being then re- stricted.- § 281. Where an act made it penal to convey to a prisoner, in order to facilitate his escape, " any mask, dress or disguise, or any letter, or any other article or thing," the general words were construed withoiit restriction on account of the preced- ing enumeration, and included a bar.* A statute enacted that it should be lawful for any two justices upon complaint made upon oath that there was cause to suspect that purloined or embezzled materials, used in certain manufactures, were con- cealed " in any dwelhng-house, out-house, yard, garden, or other place or places,^'* to issue a search-warrant for the search there, with authority to deal ^vith the person in whose house, etc., they were found. It was held* that a warehouse, occu- pied for business purposes only, and not within the curtilage of, or connected with, any dwelling-house, was "a place" within the meaning of the statute. Erie, J., said the only point here is whether a warehouse is one of those " other 1 Lynchbiirg v. N. & W. R R Co. profession, trade or calling or busi- 80 Va. 237. Where, by statutory defi- ness of any nature whatever," will nition, the word " person " includes authorize the city to tax chartered corporation, when applicable accord- banks therein to the extent that pri- ing to nature of the subject, a general vate bankers are taxed. Macon v. power to levy tax upon " factors, brok- Macon Savings Bank, 60 Ga. 133. ers and vendors of lottery tickets, and - Lynchburg v. N. & W. R R Co. upon agents and managers of gift .vipra. enterprises, and upon all other per- ^ Reg. v. PaATio, L. R 1 C. C. 27. sons exercising, within the city, any * Reg. v Edmundson, 2 EL & EL 77, 306 INTEEPEETATION AND CONSTEUCTION. places." In deciding that, we must construe the statute with reference to the object of the legislature in passing it." The statute 15 and 16 Yict., ch. 81, § 2, empowered the justices of the county to appoint a committee of their body for the pur- pose of preparing a basis or standard for fair and equal county rates, to be founded on the full and fair annual value (inter- preted by section 6 to mean the net annual value) of the prop- erty ratable to the poor rate, in every parish in the county. Section 5 empowered the committee to order in writing cer- tain specified parish ofiicers and other persons, having the custody or management of any public or parochial rates or valuations of the parishes, to make written returns to the committee of the amount of the full and fair annual value of the property in any parish liable to be assessed toward the county rate ; the date of the last valuation for the assessment of such parish ; and the name of the surveyor or other person by whom such valuation was made. By section 7 the com- mittee may, by their order in writing, require the " overseers of the poor, constables, the assessors, collectors, and any other persons who7nsoever, to appear before them," " and to pro- duce aU parochial and other rates, assessments, valuations, apportionments, and other documents in their custody or power relating to the value of, or assessments on, all or any of the property within the several parishes, or which may be liable to be assessed toward the county rate ; and to be exam- ined under oath " " touching the said rates, assessments, valua- tions, or apportionments, or the value of property aforesaid." By another section neglect or refusal to comply subjected the delinquent to a penalty. It was held in Regina v. Doubleday,^ that section 7 authorized the committee to call before them all persons whomsoever able to give evidence of, and produce any documents relating to, the subjects mentioned, and did not restrict the committee to ascertaining by the examination of the persons, and the inspection of the documents specified in section 5, the amount at which the property is rated to the poor rate ; that, therefore, a person having in his possession private accounts and documents relating to the annual value of colUeries and coal mines assessable to the county rates and 1 3 EL & EL 50L mXERPEETATION AND CONSTKUOTION. 367 able to give evidence touching their net annual value incurred the penalty by refusing to obey the order of the committee. The general words were construed according to their ordi- nary meaning, unrestricted by the particular words which preceded them, because the purpose of the act obviously re- quired it. So an act relating to nuisances, under which an inspector had a visitorial power, provided a penalty for pre- venting him " from entering any slaughter-house, shop, build- ing, market or other place " where the things to be inspected were kept. It was held that a yard was " a place " within the meaning of the act. The court, in Young v. Grattridge,^ ex- pressed the opinion that it was not confined to places ejusdem generis with those mentioned, where animals, or carcasses, etc., to which the provisions of the act related, might be kept for sale or preparation for sale as food for man ; " and I think," said Lush, J., " that there is nothing quahfying the generality of the term ' place,' and that a yard is within the term." § 282. Reddendo singula singulis.— General words in a legislative act are often, where the sense requires it, and in furtherance of the intention, to be taken distributively, red- dendo singula singulis. They are thus applied to the subject- matter to which they appear by the context most properly to relate, and to which they are really most applicable. Thus, the words " according to the provisions of said act, and of this act," obviously import that the requisitions of the two acts (that act itself, and another thereinbefore mentioned), in their respective particulars, are to be duly complied with ; as if the one under its circumstances requires signature to an instru- ment only, and the other that it be under hand and seal.^ In the construction of the words, " for money or other good con- sideration paid or given," " paid " is referred to " money " and "given" to "consideration." 3 This method of limiting the effect of expressions which are obviously too wide to be con- strued literally is most frequently adopted when the opening words of a section are general, while the succeeding parts branch out into particular instances.'' Where several words 1 L. R. 4 Q. B. 166. ' Dwarris on St 613. 2 Dwarris on St 613 ; Rex v. Inhab- * Wilb. on St 189. itantB of Stoke Damerel, 7 B. & C. 570. 368 INTERPRETATION AND CONSTRUCTION. importing power, authority and obligation are found at the commencement of a clause containing several branches, it is not necessary that each of those words should be applied to each of the different branches of the clause ; it may be con- strued reddendo singula singidis; the words giving power and authority may be applicable to some branches, those of obli- gation to others.^ Where the words were, " the finding of a cow by and on the land," the court said by Patterson, J. : "I think we must say, ' reddendo singida singidis,'' that the find- ins: was to be ' on ' the land while there Avas food on it, and by the owner of the land with hay, at other thnes." ^ "Words in different parts of a statute must be referred to their proper connections, giving each in its place its proper force.' §283. Interpretation affected Iby other statntes. — All consistent statutes which can stand together, though enacted at different dates, relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively and construed together as though they constituted one act.* This is true whether the acts relating to the same subject were passed at different dates, separated by long or short intervals, 1 Rex V. Bristol Dock Co. 6 B. & C. Me. 412 ; Phelps v. Rightor, 9 Rob. at pp. 191, 192. (La.) 531 ; Earl of Ailsbury v. Patti- 2 Dwarris on St. 613 ; Reg. v. Cum- son, 1 Doug. 28 ; Gayle's Heirs v. berworth Half, 5 Q. B. 484, 491. WUliams' Adm'r, 7 La. 162 ; Perkins 3 Mclntyre v. Ingraham, 35 Miss. 25. v. Perkins, 62 Barb. 531 ; Mayor, etc. * United States v. Freeman, 3 How. v. Howard, 6 Har. & J. 383 ; State t. 556 ; State v. Clark, 54 Mo. 216 ; Con- Mooty, 3 HiU (S. C), 187 ; Black v. verse v. United States, 21 How. 463 ; Tricker, 59 Pa, St. 13 ; Green v. Com- Jacoby v. Shafer, 105 Pa. St 610; monwealth, 12 AUen, 155; Van Riper Neeld's Road, 1 Pa. St. 353; People v. Esses P. R Bd. 38 N. J. L. 23 ; Dugan V. Weston, 3 Neb. 312; Manuel v. v. Gittings, 3 Gill, 138; State v. Mis- Manuel, 13 Ohio St. 458, 465 ; Hendrix ter, 5 Md. 11 ; Mobile, etc. R. R Co. V. Rienian, 6 Neb. 516 ; State v. Bab- v. Malone, 46 Ala. 391 ; Crawford v. cock, 21 Neb. 599 ; Davidson v. Car- Tyson, id. 299 ; Griffith v. Carter, 8 son, 1 Wash. Ty. 307 ; United States v. Kan. 565 ; MitcheU v. Duncan, 7 HaiTis, 1 Sumn. 21 ; Leroy v. Cha- Fla. 13 ; Bryan v. Dennis, 4 id. 445 ; boUa, 2 Abb. (U. S.) 448 ; Scott v. Rex v. Pahner, 1 Leach, C. C. 352 ; Searles, 1 Sm. & Mar. 590 ; White v. McWilliam v. Adams, 1 Macq. H. L. Johnson, 23 Miss. 68 ; Hayes v. Han- Cas. 120 ; Eskridge v. McGnider, 45 son, 12 N. H. 284 ; State v. Baltimore, Miss. 294 ; 6 Bac. Abr. 382, 383 ; Mt etc R. R. Co. 12 Gill & J. 399, 431 ; Holly Paper Co."s Appeal, 99 Pa St McLaughlin v. Hoover, 1 Oregon, 31 ; 513 : Bowles v. Cochran, 93 N. C. 398 ; McFarland v. Bank of the State, 4 Wliipple v. Judge, etc. 26 Mich. 345 ; Ark. 410 ; Merrill v. Grossman, 68 Storm v. Cotzhausen, 38 Wis. 139. INTERPRETATION AND CONSTRUCTION. 3Ul^ at the same session or on the same day. They are all to be compared, harmonized if possible, and, if not susceptible of a construction which will make all their provisions harmonize, the}^ are made to operate together so far as possible consist- ently with the evident intent of the latest enactments. It is to be observed that in the comparison of different stat- utes passed at the same session or nearly at the same time this circumstance has weight ; for it is usually referred to as indi eating the prevalence of the same legislative purpose, as render- ing it unlikely that any marked contrariety was intended. But whether the prior statute is recent or of long standing it must ' yield if there is a conflict. But with a view to ascertain the intent of the legislation on a given subject at an}^ time it must all be considered, whether it has continued in force or been modified by successive changes.' § 284. A statute must be construed with reference to the whole system of which it forms a, part.^ And statutes upon cognate subjects may be referred to, though not strictly m pari materia? There being a general statute regulating the execution of wills, which did not require subscribing witnesses, a new statute was passed providing for the testamentary dis- position of the property of married women ; it required that such a will should be executed in the presence of two wit- nesses. The two acts were construed together. A married woman's will had to be executed according to the general law except in the particular regulated by the later act in respect to witnesses.-* The existing requirements of the law relative to auditing accounts for state printing were held not to be re- pealed or such audit dispensed with by a later act providing for partial payments during the progress of a particular work in terms which implied no such prior audit.' Though a new statute prescribing the steps for taking an appeal is general and makes no exceptions, it will be construed with any exist- ing law covering the same subject and containing an ex- ception, for obvious reasons, in favor of parties who are such 'I«i 'Smith V. People, 47 N. Y. 330; 2 McDougald v. Dougherty, 14 Ga. ^V^litcomb v. Rood, 20 Vt 49. 674; Noble v. State, 1 Greene (Iowa), •» Linton's Appeal, 104 Pa. St. 228. 325 ; Hays v. Richardson, 1 Gill & J, « People v. Weston, 3 Neb. 313. 366. 24 370 IKTEEPRETATION AND CONSTEUCTION. in a representative capacity.' The general terms of a later statute will often be restricted where, by prior laws, subjects naturally falling within such general terms have been classi- fied and made subject to distinct and dissimilar regulations. The later law, not showing any purpose to abolish this classi- fication, will be made to operate on that class alone to which by its terms it is applicable.- A statute authorizing the re- vival of actions by or against the representative or successor in interest of the party deceased is in jpari Tnateria with other statutes providing for the appointment of executors and ad- ministrators, and also those pointing out how foreign repre- sentatives may acquire the right to prosecute actions.' A statute relating to homestead and exemptions for a family of minor children was held in pari 7nateria with laws allowing dower to the widow and minor children.'' A statute in rela- tion to attachments against steamboats and other water craft is in pari materia with the general attachment law, and they should be construed together.' § 285. The expression " any person " in a later statute will be construed to harmonize with an earlier one which required for the purpose certain qualifications.^ "Where two acts had required certain sums to be paid into the state treasury by a city, and gave a court jurisdiction to enforce the payment, and afterwards another act required an additional payment, thereby increasing the aggregate, but was silent as to the mode of en- forcing it, it was held that as the later act was merely sup- plemental to the others, the remedy given by them should be deemed applicable to the latter.^ An offense defined in a stat- ute of Massachusetts was punishable by a fine not exceeding $1,000, or by imprisonment in jail not exceeding one year. A subsequent act conferred on the police court jurisdiction of the offense, which was to be concurrent with that of another court, and provided that when the police court exercised final jurisdiction the punishment should be confined to a fine not 1 Koontz V. Howsare, 100 Pa, St. * Wallace v. Seales, 36 Miss. 53. 506. ^ London Tobacco Pipe Makers v. 2 People V. Molyneux, 40 N. Y. 118 ; Woodroffe, 7 B. & C. 838. Bishop V. Barton, 2 Hun, 436. " City of Louisville v. Common- 3 Hendi-ix v. Rieman, 6 Neb. 516. wealth, 9 Dana, 70, 75. 4 Roff V. Johnson, 40 Ga. 555. INTERPRETATION AND CONSTRUCTION. 371 exceediDg $100, and imprisonment not exceeding one year. It was held that though the latter act, taken by itself, would seem to authorize both fine and imprisonment, the language being conjunctive, yet when both acts are construed together it is obvious that the latter authorizes a fine and also author- izes imprisonment, but not both in one sentence.^ § 286. While it is thus true that statutes relatine: to the same subject are to be construed together, this rule does not go tc the extent of controlling the language of subsequent statutes by any supposed policy of previous statutes, where such language requires such policy to be disregarded.^ Where the last statute is complete in itself, and intended to prescribe the only rule to be observed, it will not be modified by the displaced legislation, as laws in jpari materia? Nor is an act in pari materia though it may incidentally refer to the same subject, if its scope and aim are distinct and unconnected.* Thus a statute in relation to the confinement of stock to pre- vent its running on the premises of others was held not in pari materia with the provision of the code laying down the rule of diligence to be observed by railroad companies in run- ning their trains, and defining their liabilities in cases where stock is killed.^ § 287. The legislature are presumed to know existing stat- utes, and the state of the law, relating to the subjects with which they deal. Hence, that they would expressly abrogate any prior statutes which are intended to be repealed b}'- new legislation. Where there is no express repeal none is deemed to be intended, unless there is such an inconsistency as precludes this assumption ; then it yields only to the extent of the con- flict.^ Eegard must be had to all the parts of a statute, and to the other concurrent legislation in pari materia; and the whole should, if possible, be made to harmonize ; and if the 1 Commonwealth v. Griffin, 105 5 Central R. R Co. v. Hamilton, Mass. 185. supra. 2 Goodrich v. RusseU, 42 N. Y. 177, 6 Ante, § 138 ; White v. Johnson, 23 184 ; State v. Cram, 16 Wis. 343, 347. Miss. 68 ; State v. Commissioner of 3 Sutton V. Hays, 17 Ark. 462; R R Taxation, 37 N. J. L. 228 ; Wake- Williams V. Beai-d, 1 Eich. (N. S.) 309. field v. Phelps, 37 N. H. 295 ; Laughter * Central R R Co. v. Hamilton, 71 v. Seela, 59 Tex. 177 ; Austin v. Gulf, Ga. 465 ; Billingslea v. Baldwin, 23 etc. R R Co. 45 Tex. 234 ; Lewis v. Md. 85. Aylott, id 190. 372 INTEEPKETATION AND CONSTRUCTIOHr. sense be doubtful, sucb construction should be given, if it can be, as will not conflict with the general principles of law, which it may be assumed the legislature would not intend to disregard or change.^ The statute of wills in IsTew York pro- hibited a devise to a corporation. A subsequent act incorpo- rating an orphan asylum society gave it power to purchase real estate. This act was harmonized with the statute of wHls by restricting the right of purchase according to the popular sense of that word. Although technically a title by devise is by purchase, it was deemed more congenial to the spirit of both acts to give the word purchase a restricted meaning in harmony with the prohibition.^ Provisions not repealed ex- pressly or by such implication continue to operate, but they may be modified by later legislation, which will have the effect expressly or by like imphcation of extending or restrict- ing theu" terms or scope.^ § 288. Where enactments separately made are resid in pm-i materia, they are treated as having formed in the minds of the enacting body parts of a connected whole, though considered by such body at different dates, and under distinct and varied as- pects of the common subject. Such a principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws, and connect them in a symmetrical system." Such statutes are taken together and construed as one system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be con- sistent and harmonious in its several parts and provisions.' 1 Manuel v. Manuel, 13 Oliio St Tliayer v. Dudley, id. 296 ; Holbrook 458, 465. V. Holbrook, 1 Pick. 254 ; Mendon v. 2 McCartee V. Orphan Asylum So- Worcester, 10 id. 235; Common- ciety, 9 Cow. 437, 506. See Dodge v. wealth v. Martin, 17 Mass. 362 ; For- Gridley, 10 Ohio, 173. queran v. DonnaUy, 7 W. Va. 114 : » Noble V. State, 1 Greene (Iowa), Hayes v. Hanson, 12 N. H. 284; Earl 325. of Ailesbury v. Patterson, 1 Doug. 28 ; * State V. Williams, 13 S. C. 558. Harrison v. Walker, 1 Ga. 32 ; Coleman 5 1 Kent's Com. 463, 464 ; State v. v. Davidson Academy, Cooke (Tenn.), Baltimore, etc. R R Co. 12 GiU & J. 258 ; State v. BeU, 3 Ired. L. 506 ; Henry 399, 433 ; Napier v. Hodges, 31 Tex. v. Tilson, 17 Vt. 479 ; Fort v. Burch, 287 ; Wakefield v Phelps, 37 N. H. 6 Barb. 60 ; Smith v. Hickman's 295 ; Mayor, etc. v. Howard, 6 Har. & Heirs, Cooke (Tenn.), 330 ; Ranoul ^•. J.383;Churchv.Crocker,3Mass. 21; Grilfie, 3 Md. 54; McWiUiam v. INTERPKETATION AND COKSTKUCTION. 373 For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and so far as still in force brought into harmony, if possible, by interpretation, though they may not refer to each other, even after some of them have expii'ed or been repealed.^ An amendatory act and the act amended are to be construed as one statute, and no portion of either is to be held inoperative if it can be sus- tained without wresting words from their appropriate mean- ing.^ AVhere a statute is made in addition to another statute on the same subject, without repealing any part of it, the pro- visions of both must be construed together,* § 289. Interpretation with reference to the common law. — Statutes are but a small part of our jurisprudence. The prin- ciples of the common law pervade and permeate everything which is subject to legal regulation. Such law defines rights and wrongs of every description and the remedies for pubhc and private redress. By its principles statutes are read and construed. They supplement or change it, and it adjusts itself to the modification and operates in conjunction and harmony with them. If words from its vocabulary are employed in them it expounds them. If the statutes are in derogation of it, it yields and bides its time ; if they are cumulative, it still continues.'' Kules of interpretation and construction are de- rived from the common la\v,^ and since that law constitutes the foundation and primarily the body and soul of our juris- prudence, every statutory enactment is construed by its light and with reference to its cognate principles.® Adams, 1 IMacq. H. L. Cas. 130 ; Cope- as to persons who aid, abet or coun- land, Ex parte, 2 DeG. M. & G. 914. sel or procui-e the selling or giving lid. away such Uquor, the principles of 2Harrell v. Harrell, 8 Fla. 4G; the common law in respect to ao- McFate's Appeal, 105 Pa. St 323. See cessorics before the fact will sup- Mitchell V. Duncan, 7 Fla. 13, plement tlie statute. Walton v. State, 3 Pearce v. Atwood, 13 Mass. 824, 62 Ala. 197. A statutory felony has 344 ; Reg. v. Toubridge Overseers, L. common-law incidents. Rex v. Sadi> R. 13 Q. B. Div. 342 ; Van Riper v. 1 Leach, C. C. 468. Essex P. R. Board, 38 N. J. L. 23. = Rice v. Raihoad Co. 1 Black, 358, * Ryan v. Couch, 66 Ala. 244 ; Low- 374 ; Charles River Bridge Co. v, enberg v. People, 27 N. Y. 336 ; State v. Warren Bridge Co. 11 Pet 545. Pierson, 44 Ai-k. 265 ; Holt v. Agnew, <> Edwai'ds v, Gaulding, 38 JMiss, 118 ; 67 Ala. 360. Where a statute pro- Howe v. Peckham, 6 How. Pr. 229 ; viding a penalty for seUing or giving Rice v. Railroad Co. 1 Black, 358. away intoxicating Uquor was silent ST-i INTEBPEETATION AND CONSTKUCTION. § 290. It is not presumed that the legislature intended to make any innovation upon the common law further than the necessity of the case required.^ In other words, statutes in der- ogation of it, and especially of a common-law right, are strictly construed, and wiU not be extended by construction beyond their natural meaning.^ When by a statute a charge is cre- ated on property for the satisfaction of a debt, unless the inten- tion is clearly expressed, or is justly and fauiy to be imphed, it cannot be intended that such charge has a superiority which the common law does not attach to similar charges, nor es- pecially such superiority as the common law has carefully withheld.' It will be so construed, if possible, as not to in- terfere with fundamental rights.^ The best construction of a statute is to construe it as near to the rule and reason of the common law as may be, and by the course which that observes in other cases.^ Where a statute directs anything to be done generally and does not appoint any special manner, it is to be done according to the course of the common law.^ § 291. In all doubtful matters, and when the statute is in general terms, it is subject to the principles of the common 1 Id ; Scaif e v. Stovall, 67 Ala. 237 ; 3 Jones' (N. C.) L. 357 ; Edwards v. Keecli V. Baltimore, etc. R. R. Co. 17 Gaulding, 38 Miss. 118 ; HoUman v. Md. 32 ; Hooper v. Mayor, etc. 12 id. Bennett, 44 INIiss. 322 ; Warner v. 464; Davis v. Commonwealth, 17 Fowler, 8 Md. 25 ; Brown v. Barry, 3 Gratt 617 ; WUbur v. Crane, 13 Pick. DaU. 365 ; Shaw v. Railroad Co. 101 284; Glover v. Alcott, 11 Mich. 470; U. S. 557; Lord v. Parker, 3 AUen, HeiskeU v. Mayor, etc. 65 Md. 125 ; 127 ; State v. Norton, 23 N. J. L. 33 ; Dwar. on St 695 ; 1 Kent's Com. 464 Mvdlin v. McCreary, 54 Pa. St. 230 ; and note. Howey v. MUler, 67 N. C. 459 ; Heam 2 Gunter v. Leckey, 30 Ala, 591 ; v. Ewin, . 3 Cold. 399 ; Stewart v. State V. Whetstone, 13 La, Ann. 376 ; Sti'inger, 41 Mo. 400 ; Rue v. Alter, 5 Glover v. Alcott, supra; Sibley v. Denio, 119; Millered v. Railroad Co. Smith, 2 Mich. 486 ; Shai-p v. Spek, 9 How. Pr. 238 ; NeweU v. Wheeler, 4 Hill, 76; Sharp v. Jolmson, id. 92; 48 N. Y. 486; Smith v. Moffat, 1 Esterley's Appeal, 54 Pa. St. 192 ; Com- Barb. 65 ; Graham v. Van Wyck, 14 monwealth v. Knapp, 9 Pick. 496; id. 531 ; Perkins v. Perkins, 62 id. 531 ; Gibsonv.Jenney, 15 Mass. 205; Melody Bussing v. Bushnell, 6 Hill, 382; Ei- V, Reab, 4 id. 471 ; Wilbur v. Crane, 13 lers v. Wood, 64 Wis. 422. Pick. 284; SuUivan v. La Crosse, etc. sscaife v. StovaU, 67 Ala. 237. P. Co. 10 Minn. 386 ; Dwelly v. * Bush v. Brainard, 1 Cow. 78. DweUy, 46 Me. 377 ; Burnside v. 5 Bac. Abr. Statutes, I. ; Stowell v. Whitney, 21 N. Y. 148 ; Lock v. MU- Zouch, 1 Plowden, 365 ; Miles v. Wil- ier, 3 Stew. & Port. 13 ; Young v. hams, 1 P. Wms. 249, 252. McKenzie, 3 Ga, 31 ; BaUey v. Bryan, ^ I(L ; Rex v. Simpson, 1 Str. 45. INTEKPKETA'J'ION AND CONSTRUCTION. 375 law ; it is to receive such a construction as is agreeable to that law in cases of the same nature.' A statute in afflrm ance of a rule of the common law will be construed, as to its consequences, in accordance with such law.'- So provisions which are intended to remedy defects in the common law must be read and construed in the light of that law. When words of definite signification therein are used in such pro- visions, and there is no intention manifest that they are to be taken in a different sense, they are to be deemed employed in their known and defined common-law meaning.^ § 292. Extraneous facts in aid of construction.— Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of all legitimate aids to as- certain the true intention ; and among them are some extrane- ous facts. The object sought to be accomplished exercises a potent influence in determining the meaning of not only the principal but also the minor provisions of a statute. To as- certain it fully the court will be greatly assisted by knowing, and it is permitted to consider, the mischief intended to be removed or suppressed, or the necessity of any kind which in- duced the enactment.^ If the statute has been in force for a long period it may be useful to know what w^as the contem- porary construction ; its practical construction ; the sense of the legal profession in regard to it ; the course and usages of business which it will affect. It may be necessary to apply the meaning of terms of art which it may contain.^ It is appar- • Greenwood v. Greenwood, 28 Md. Wash. 209 ; Lewis v. State, 3 Head, oTO; Arthur v. Bokenham, 11 Mod. 127; HoUinan v. Benuet, 44 iliss. 323. 150; Miles v. Wdhams, 1 P. Wms. '•Gorham v. Bishop of Exeter, 252 ; Wallace v. Taliaferro, 2 Call, Moore's Case of, 462 ; Hawkins v. 462. Gathercole, 6 De G. M. & G. 1 ; Ton- 2 Baker V. Baker, 13 Cal. 87. nele v. HaU, 4 N. Y. 146; Clark v. 3 Holt V. Agnew, 67 Ala 360 ; IMcCool Jauesville, 10 Wis. 136 ; Dodge t. Gar- V. Smith, 1 Black, 459 ; Rico v. Riil- diner, 31 N. Y. 239 ; Big Black Creek, road Co. id. 35S ; Vincent, Ex parte, etc. Co. v. Commonwealth, 94 Pa. St. 26 Ala, 145 ; United States v. INiagill, 450 ; Keith v. Quinney, 1 Oregon, 364 ; 1 Wash. 463 ; 4 Dall. 426 ; Adams v. Ruggles v. lUinuis. 108 U. S. 526. Turrentiue, 8 Ired. L. 147 ; Brocket * It ^\ as held in Rex v. ^Masliita, 6 V. Raih'oad Co. 14 Pa. St 241 ; Allen's Ad. & E. 153, that tlie word "mhab- Appeal, 99 id. 196 ; Apple v. Apple, 1 itauts " in a charter has not in itself Head, 348 ; The Kate Heron, 6 Saw- any definite legal meaning, but must yer, 106 ; United States v. Jones, 3 be explained in each case, extrinsic- 376 INTEErRETATION AND CONSTKUOTION. ent, therefore, that the court must bring to its assistance a very considerable amount and variety of extrinsic information, which it is presumed to possess and can resort to at pleasure, as occasion requires, as matters of which it has, in a technical sense, judicial knowledge. Therefore, preliminary to the con- sideration of some of these collateral aids, it will be pertinent and useful to inquu-e briefly what facts other than the letter of the law itself are within judicial cognizance. § 293. Judicial knowledge. — Certain classes of facts are so fixed in theu" nature and so notorious that courts take notice of them and they are available without proof. They are, first, matters of public law which all are bound to know ; second, matters so notorious as to be regarded as universally known ; and thu'd, matters peculiarly within the cognizance of the par- ticular court. The courts take notice not only of the existence but the tenor of aU. public statutes which are laws of the land within their jurisdiction, whether state or national ; this knowl- edge includes their commencement, expu'ation or repeal,' and judicial decisions construing them ; ^ if declared by competent authority unconstitutional, their invaUdity is at once to be judicially noticed.'' When one state recognizes acts done in pursuance of the laws of another state, as, for example, in certi- fying the acknowledgment of the execution of a deed, its courts win take judicial cognizance of those laws so far as it may be necessary to determine the validity of the acts alleged to be in conformity with them.* The federal courts while exercising their original jurisdiction take notice of the statutes of each of the states ; and the supreme court, in the exercise of its ap- pellate jurisdiction, does the same.^ But the latter court, in aUy, by evidence of usage, or by ref- y. Chubb, 16 Gratt. 284 ; Miller v. erence to the context and objects of McQuerry, 5 McLean, 469 : United the charter. See Smith v. Lindo, 4 C. States v. Tiuner, 11 How. 663; Car- B. (N. S.) 395. penter v. Dexter, 8 Wall 518 ; Fourth 1 Kessel v. Albetis, 56 Barb. 363 ; Nat. Bank v. Francklyn, 120 U. S. 747. Morris v. Davidson, 49 Ga, 361; The '^Hmde v. Vattier, 5 Pet. 398; El- Scotia, 14 Wall 170 ; Merrill v. Daw- mendorf v. Taylor, 10 Wheat 152 ; son, Hempst. 563 ; Jasper v. Porter, 3 Pennington v. Gibson, 16 How. 65, 81. McLean, 579 ; Jones v. Hays, 4 id. » Cash v. State, 10 Humpli. 111. 521 ; Terry v. Merchants' & Plant- * Cai-penter v. Dexter, 8 WaU. at ers' Bank, 66 Ga. 177 ; Bird v. Cora- p. 531 ; Shotwell v. Harrison, 22 Mich, monwealth, 21 Gratt. 800; Mims v. 410. Swartz, 37 Tex. 13; Bayly's Adm'r aCoui'se v. Stead, 4 DalL 22, 27, INTERPKETATION AND CONSTRCTCTION. the exercise of such jurisdiction on error to the highest court of a state, administers the kiw in tlic same view as the state court and can take no broader judicial notice.' § 294. The requirement to take notice of puljhc laws neces- sarily includes taking notice of all facts and proceedings which concern their vahdity and interpretation.'- " If the words of a statute are really and faiiiy doubtful," said Lord Cole- ridge, C. J., " then, according to well-known legal principles and principles of common sense, historical investigations may be used for the purpose of clearing away the obscurity which the phraseology of the statute creates." * Whatever is de- cisive evidence relative to the due enactment of a statute, whether it be only the certificates of the presiding officers, the statute*, record, or also the journals of the legislative bodies, the courts which must take notice of the laws, and therefore have necessarily to determine which are valid and duly en- acted, may consult.^ A treaty is the supreme law of the land, note ; Hinde v. Vattier, 5 Pet 398 ; v. The CoUector, 6 Wall 499 ; DeBow Owiugs V. HuU, 9 id. 607, 625 ; United States V. Turner, 11 How. 663, 668 ; Pennington v. Gibson, 16 id, 65 ; Cov- ington Drawbridge Co. v. iShepherd, 20 id. 227, 230 ; Clieever v. AVilaou, 9 WaU. 108 ; Junction R. Co. v. Bank of Asliland, 12 WalL 226, 230 ; Lamar v. Micou, 114 U. S. 218; Foui-tli Nat. Bank v. Francklyn, 120 id. 747, 751 ; Hanley V. Donogiiue, 116 id. 1, 6. 1 Hanley v. Donoghue, 116 U. S. 1. In this case the coui't say that State of Ohio V. Hinchman, 27 Pa. St. 479, and Paine v. Insm'ance Co. 11 R. I. 411, were decided on a misapprehen- sion of the functions of tliat court. See Butcher v. Bank of Brownsville, 2 Kan. 70; Jarvis v. Robinson, 21 Wis. 523; Hohbs v. Mempliis, etc. R. R Co. 9 Heisk. 879 ; Baptiste v. De Volunbran, 5 H. & J. 86, 98 ; Bank of U. S. V. Merchants' Bank, 7 Gill, 415; Coates v. Mackey, 56 Md. 416, 419 ; Green v. Van Buskii-k, 7 WalL 139. 2 People V. Mahaney, 13 Mich. 481 ; Coburn v. Dodd, 14 Ind. 317 ; Gardner V. People, 1 Denio, 9 ; Berliner v. Waterloo, 14 Wis. 378; People v. Purdy, 2 HiU, 31 ; Board of Super- visors V. Heenan, 2 Miun. 330. 3 Regiua v. Most, L. R 7 Q. B. Div. at p. 251. ••People V. Malianey, 13 ilich. 481 ; Legg V. Mayor, 42 Md. 203 : Berry v. Baltimore, etc. Co. id. 446 ; People v. DeWolf, 62 111. 253; Board of Super- visors V. Heenan, 2 jMinu. 330 ; People V. River Raism, etc. R. R. Co. 12 Mich. 389 ; People v. Purdy, 2 Hill, 31 ; De Bow v. People, 1 Denio, 9 ; Commercial Bank v. Sparrow, 3 Denio, 97 ; Duncombe v. Prtndle, 12 Iowa, 1 ; Green v. WeUer, 32 Miss. 650 ; Pangborn v. Young, 33 N. J. L. 39 ; Kilbourn v. Thompson, 103 U. S. 168 ; Pacific R. R. Co. v. The Gov- ernor, 23 Mo. 353 ; Opinion of Justices, 45 N. H. 607; State v. McLellaud, 18 Neb. 236 ; Gai'dner v. The Collector, 6 Wall. 499 ; Moody v. State, 48 Ala. 115; Jones v. Hutchinson, 43 id. 721 ; Southwark Bank v. Common- wealth, 26 Pa. St 446. 378 INTERPRETATION AND CONSTRUCTION. and as such is within judicial knowledge of the courts ; ^ they have even knowledge of such foreign laws as the treaties dis- close.^ § 295. The courts have judicial knowledge of aU territorial divisions, corporations and institutions established or recog- nized by public statutes.^ The orphans' court of Washington county, in the District of Columbia, being created by a pub- lic statute of the United States, its seal was judicially recog- nized by the courts of Maryland,* Courts take notice of the constitution as the fundamental law, and of amendments thereto, and when they take effect.* They take notice of the common law and the conditions of the country which affected its introduction and adoption ; also the law of nations," and the law merchant." They do not take notice of the written laws of another state or of foreign countries ; but the courts of a state take notice of its antecedent laws, whatever their origin ; it is so though the state was carved out of an older state or acquired from a foreign power.^ § 298. Courts take judicial notice of customs which are gen- eral and universally known, as of the meaning of C O. D. affixed to packages sent by common carriers, and the practice and responsibilities relative thereto ; ^ the business of mercan- tile agencies ; ^" the commercial usage to observe Sundays and 1 Dole V. Wilson, 16 Minn. 525. & G. 239 ; Wiggins F. Co. v. Chicago 2 Montgomery V. Deeley, 3 Wis. 709. & A. R. Co. 5 Mo. App. 347 ; Branch 3 Oxford Poor Rate, 8 E. & B. 184, v. Burnley, 1 CaU, 147 ; Consequa v. 211; Harding v. Sti'ong, 42 lU. 148; Willings, 1 Pet C. C. 225; Munn v. Sullivan V. People, 122 IlL 885 ; State Burch, 25 IlL 35. V. Reader, 60 Iowa, 527 ; Luck v. s United States v. Tui-ner, 11 How. State, 96 Ind. 16. 663 ; Chouteau v. Pierre, 9 Mo. 3 ; Ott * Mangim v. Webster, 7 Gill, 78. v. Soulard, id. 581 ; Payne v. Tread- 5 Graves v. Keaton, 3 Cold. 8. well, 16 Cal. 220 ; Pecquet v. Pecquet, 6 The Scotia, 14 Wall. 170. In tlais 17 La. Ann. 204 ; Bouldm v. Phelps, 30 case the coui-t say : " Historically, we Fed. Rep. 547 ; Stevens v. Bomar, 9 know that before the close of the Humph. 546; Henthorn v. Doe, 1 year 1864 nearly all the commercial Blackf. 157; Green v. Goodall, 1 Cold, nations of the world had adopted the 404 ; WUson v. Smith, 5 Yerg. 379 ; same [navigation] regulations re- Delano v. Jophng, 1 Litt. 117. specting lights, and that they were 9 State v. Intoxicating Liquors, 73 recognized as having adopted them." Me. 278. See contra, ]\IcNichol v. ' Reed v. Wilson, 41 N. J. L. 29 ; Pacific Exp. Co. 12 Mo. App. 401. Goldsmith v. Sawyer, 46 Cal. 209; lOHohnes v. Harrington, 20 Mo. Bank of Columbia v. Fitzhugh, 1 H. App. 661. INTERPKETATION A.XD CONSTKUCTION. 579 holidays.^ The custom of the road, as to passing by on the righi or left ; - general and notorious customs of the sea to be ob- served by vessels.' Judicial notice is not taken of private statutes,^ local customs, by-laws or regulations of corpora- tions, boards and officers.'^ Municipal ordinances are not judi- cially noticed except by the courts of the municipahty, unless otherwise directed by statute." § 2D7. Facts relative to foreign states and nations. — Courts take notice of the existence of foreign nations, their forms of government as recognized by the executive and legis- lative departments, their emblems of sovereignty, as flags and seals ; " the status of the several states of the Union under the constitution ; that they have proper judicial tribunals, legisla- tive and executive departments ;. their great seals, and the gen- eral nature of their jurisprudence.^ 1 Sasscer v. Farmers' Bank, 4 Md. 409. •-iTurley v. Thomas, 8 C. & P. 103. 3 The Scotia, 14 WaU, 170. 4 Workiugmen's Bank v. Converse, 33 La. Ann. 963 ; Broad Street Hotel Co. V. Weaver's Administrator, 57 Ala. 26. 5 Youngs V. Ransom, 31 Barb. 49 ; Cam.eron v. Blackman, 39 IVIich. 108 ; Turner v. Fish, 28 Miss. 306: Gold- smith V. Sawyer, 46 Cal. 209 ; Longes V. Kennedy, 2 Bibb, 607 ; Lewis v. ]McClui-e, 8 Oregon, 273 ; Seymour v. Marvin, 11 Barb. 80; Sullivan v. Hense, 2 Colo. 424 ; Jolmson v. Rob- ertson, 31 Md. 476 ; Sarahass v. Arm- strong, 16 Kan. 192 ; Palmer v. Ald- ridge, 16 Barb. 131 ; Hensley v. Tar- pey, 7 Cal. 288 ; South & N. Ala. R. R. Co. V. Wood, 74 Ala. 449 ; Johnston v. Wilson, 29 Gratt. 379. «Garvki v. Wells, 8 Iowa, 286; Downing v. Miltonvale, 36 Kans. 740 ; Case v. Mayor, etc. 30 Ala. 538. 'The Santissima Trinidad, 7 Wheat. 283; United States v. Palmer, 3 id. 634; Lincoln v. Battelle, 6 Wend. 475; Griswold v. Pitcairn, 2 Conu. 85 ; City of Berne v. Bank of Eng- land, 9 Ves. 347 ; Bolder v. Huntmg- fleld, 11 id. 283; Church v. Hubbart, 2 Cranch, 187. 8Wlmrt. on Evi § 314; Drake v. Glover, 30 Ala. 382 ; Rape v. Heaton, 9 Wis. 328 ; Ripple v. Ripple, 1 Rawle, 386 ; Whitesides v. Poole, 9 Rich. 68 ; Anderson v. Anderson, 23 Tex. 639 ; Hoyt V. McNeil, 13 Mirm. 390; De Sobry v. De Laistre, 2 H. & J. 191 ; Irving V. McLean, 4 Blackf. 52 ; ]\Ion roe V. Douglass, 5 N. Y. 447 ; Whit- ford V. Panama R. R Co. 23 id. 405 . Carey v. Cincinnati, etc. R, R Co. 5 Iowa, 357 ; Commonwealth v. Snow- den, 1 Brewst 218 ; Simms v. South- em Exp. Co. 38 Ga. 129 ; Copley v. Sanf ord, 2 La, Ann. 335 ; Anderson V. Folger, 11 La. Ann. 269; Boggs v. Reed, 5 Mart. 673 ; Newton v. Cocke, 10 Ark. 169 ; Thm-ston v. Percival, 1 Pick. 415; Mason v. Wash, 1 IlL 16; Wilson V. CockriU, 8 Mo. 1 ; Hough- taUng V. Ball, 19 Mo. 84 ; Taylor v. Boardman, 25 Vt 581; Miller v. Avery, 2 Barb. Ch. 582 ; Billingsley V. Dean. 11 IncL 331; Champion v. Kille, 15 N. J. Eq. 476 ; Davis v. Bow- ling, 19 Mo. 651 ; De Cells v. United States, 13 Ct CL 117; WilUams v. 380 INTEEPRETATION AJSTD CONSTKUCTION. § 298. The court will not hear proof of extrinsic facts known to the legislature or members thereof which are supposed to indicate their intention in passing a law.^ But circumstances known to all the public, such as what was the law at the time, or what it was supposed to be, are proper to be considered in looking for the intention of the legislature when not exphcitly expressed.^ The courts take more particular notice of the history of the state in which they sit. " Every judge is bound to know," says Heydenfeldt, J., "the history and leading traits which enter into the history of the country in which he presides. This we have held before, and it is also an admitted doctrine of the common law. We must therefore know that this state has a large territory ; that upon its acquisition by the United States, from the sparseness of its population, but a small comparative proportion of its land had been granted to private individuals ; that the great bulk of it was land of the government ; that but little of it, as yet, has been acquired by individuals by purchase ; that our citizens have gone upon the public land continuously, from a period anterior to the organization of the state government to the present time;* upon these lands they have dug for gold; excavated mineral rock; constructed ditches, flumes and canals for conducting water ; built mills for sawing lumber and grinding corn ; es- tablished farms for cultivating the earth ; made settlements for the grazing of cattle ; laid off towns and villages ; felled trees ; diverted water-courses ; and, indeed, have done in the various enterprises of life aU that is usual and necessary in a high condition of civiUzed development. All of these are open and notorious facts, charging with notice of them not only the courts who have to apply the law in reference to them, but also the government of the United States, which claims to be the proprietor of these lands; and the government of the state within whose sovereign jurisdiction they exist." * The supreme court of the United States took jurisdiction on a writ of error of a suit depending for the amount in con- State, 67 Ga. 260. It has been held in i Delaplane v. Crenshaw, 15 Gratt Texas that the courts of that state do at p. 479. not take judicial notice that the com- 2 Keyport St. B. Co. v, Farmei-s' mon law is in force in other states. Transportation Co. 18 N. J. Eq. at Bradshaw v. Mayfleld, 18 Tex. 31. p. 24. 3 Conger v. Weaver, 6 Cal 54a INTERPEETATION^ AND COXSTRUCTION. 381 troversy on the value of a mining claim apart from fee-simple I'igbts in the suit by patent. In part the court sustains its jurisdiction on judicial knowledge that, " without interference by the national government, but under its implied sanction, vast mining interests have grown up, employing many mill- ions of capital, and contributing largely to the prosperity and improvement of the whole country." ■ The courts take notice of the population of a state accord- ino- to the results of the official census ; ■^ also of the derivation of land titles.^ It was judicially noticed in Arkansas that cer- tain portions of the state were in insurrection and under the CDutrol of the United States ; * in Tennessee, that the courts in a particular county were closed, civil law suspended, and mili- tary law in force during the civil war ; ^ in Texas, that the gov- ernment of the state was administered by military authority, under the reconstruction acts of congress, and that the military commander's orders had the force of law.^ Courts will notice that the Confederate currency was imposed by force, and was at great discount ; '^ the accession of persons to, and the tenure of office under, the constitution and laws ; ^ the geography and topography of the state, and its history to the extent that these facts and transactions are of public and general inter- est ; ^ of the boundaries of the state, the extent of territorial jurisdiction, its civil divisions created by law, and notorious surveys, streets, areas and Unes.'" So the times prescribed by 1 Sparrow v. Strong, 3 Wall. 97, 9 Turner v. Patton, 49 Ala, 406; 104 Williams v. State, 64 IncL 553 ; Paj-ne 2 Worcester Bank v. Cheney, 94 v. Treadwell, 16 CaL 220 ; McKinnou I11.430;Peoplev.Williams, 64Cal. 87. v. BUss, 21 N. Y. 206; Ferdinand v. 3 Henthorn v. Doc, 1 Blackf. 157 ; State, 39 Ala. 706 ; Lanfear v. Mestier, Smith V. Stevens, 82 111. 554. 18 La. Ann. 497 ; Ashley v. Martin, * Rice V. Shook, 27 Ark. 137. 50 Ala, 537 ; Taylor v. Graham, 18 La. 5 Killebrew v. Murphy, 3 Ilcisk. 546. Ann. 656 ; Andrews v. Knox Co. 70 6 Gates V. Jolmson Co. 36 Tex. 144. 111. 65 ; New Orleans Canal, etc, Co. 7 Keppel V. Petersburg Pu R, Ca v. Templeton, 20 La. Ann. 141 ; Bu- Chase's Dec. 167. ford v. Tucker, 44 Ala. 89 ; United estate V. Williams, 5 Wis. 308; States v. 4000 Am. Gold Coin, 1 Thompson V. Haskell, 21 lU. 215; In- Woolw. 217; Hart v. State, 55 Ind. gram v. State, 27 Ala, 17: Ragland 591; Monroe Co. Com'i-s v. May, 67 V. Wynn, 37 id. 32 ; Alexander v. Ind. 562 ; Hart v. Bodley, Hardm, 98. Burnham, 18 Wis. 199; Burnett v. lo Goodwin v. Appleton, 22 Me. 453 ; Henderson, 21 Tex. 588 ; Dewees v. Gilbert v. Moline AVater Power Co. Colorado Ca 32 Tex. 570. 19 Iowa, 319 ; King v. Kent, 29 Ala. 382 IlSrTEEPEETATION AND COXSTEUCTION. law for holding the terms of the various courts in the state will be judicially noticed.^ § 299. Courts take notice who are their own oflBcers, and of their signatures ; ^ and who are county officers within their jurisdictions,^ A court will take judicial notice of its own rec- ord of proceedings in a particular case before it. Thus, on error in an appellate court to recover a second judgment in a cause in which a former judgment had been reversfed, it being assigned for error that it did not appear by the rec- ord that at the time of the second trial the cause had been remitted, the court overruled the point by its judicial knowl- edge of the Temittitiir} But a court will not take notice, in deciding one case, of what may be contained in the record of another and distinct case, unless proved.^ The record in garnishment is so far a part of the record in the cause that it will be judicially noticed therein." § 300. Judicial notice of historical and other facts related to legislation. — In order to ascertain the purpose or inten- tion, if it is not clearly expressed in a statute, or that such pur- pose or intention may be carried into effect, the court will take 542; Brady v. Page, 59 Cal. 53; Martin, 51 Me. 366; Stoddard v. Carson v. Dalton, 59 Tex. 500 ; Peo- Sloan, 65 Iowa, 680 ; Vanderwerker pie V. Robinson, 17 CaL 363 ; Central v. People, 5 Wend. 530. R. R Co. V. Gamble, 77 Ga. 584 ; In- i Lindsay v. WiUiams, 17 Ala. 229 ; dianapolis, etc. R. R. Co. v. Case, 15 Morgan v. State, 12 Ind. 448 ; Pugh Ind. 42 ; Indianapolis, etc. R. R. Co. v. State, 2 Head, 227 ; State v. Ham- V. Stephens, 28 id. 429 ; Fogg v. Hoi- mett., 7 Ark. 492 ; GUliland v. Sellers, comb, 64 Iowa, 621 ; Board of Com- 2 Oliio St. 223. See McGinnis v. State, missioners v. Spitler, 13 Ind. 235 ; 24 Ind. 500. Brown v. Elms, 10 Humph, 135 ; Gard- 2 YeU v. Lane, 41 Ark. 53 ; Dyer v. ner v, Eberhart, 82 HL 316 ; Kile v. Last, 51 lU. 179 ; Hanmann v. Mink, YeUowhead, 80 id. 208 ; Ham v. Ham, 99 Ind, 279 ; BueU v. State, 72 Ind. 39 Me. 263 ; Buckinghouse v. Gregg, 523 ; People v, Lyman, 2 Utah, 30. 19 Ind. 401 ; Atwater v. Schenck, 9 » Wetherbee v, Dunn, 32 CaL 106 ; Wis, 160 ; Prieger v. Exchange, etc. Templeton v. Morgan, 16 La. Ann. Ins, Co, 6 id, 89; United States v. 438, Johnson, 2 Sawyer, 483 ; Hill v. < Bi-ucker v. State, 19 Wis, 539, cit- Bacon, 43 LL 477 ; State v, Ray, 97 ing The Santa Maria, 10 Wheat 443 ; N, C. 510 ; Wright v. Hawkins, 28 Cash v. State, 10 Humph. 115, See Tex. 453 ; Wright v, Phillips, 2 Greene also State v, Bowen, 16 Kan, 475 ; (la.), 191; Ross v. Austill, 2 Cal, 183; National Bank v. Biyant, 13 Bush, State V. Tootle, 2 Harr, 541 ; La Grange 419. V. Chapman, 11 Mich, 499 ; Solyer * National Bank v. Bryant, swgra. V. Romanet, 52 Tex. 562 ; Martin v. 6 Farrar v. Bates, 55 Tex. 193. INTERPRETATION AND CONSTRUCTION. 383 notice of the history of its terms Avhen it Avas enacted.^ It if> needful in the construction of all instruments to read tliem in view of all the surrounding facts. To understand their pur- port and intended application, one should, as far as possible, be placed in a situation to see the sul>ject from the makers standpoint and study his language with that outlook. Stat- utes are no exception.^ It accords with Lord Coke's rule,' and a rational sense of what is suitable, to ascertain what were the circumstances with reference to which the words of the stat- ute were used, and what was the object appearing from those circumstances which the legislature had in view.^ When oc- casion arises for resort to such extrinsic facts, a court may ob- tain information from any authentic source. As was said by Mr. Justice Miller in Gardner v. The Collector,^ " from any source of information which in its nature is capable of con- veying to the judicial mind a clear and satisfactory answer," " always seeking first for that which in its nature is most ap- propriate, unless the positive law has enacted a different rule." It has been held in the English courts that when a statute is supposed to have been founded on the report of commissioners appointed by the crown, the report ought not to be referred to in a court of justice as a guide in construing the statute.* 1 Aldridge v. Williams, 3 How. 9 ; cliild v. Gwynne, 16 Abb. Pr. 23 ; United States v. Union P. R. R. Co. 91 Gorham t. Bishop of Exeter, Moore's U. S. 72; State v. Nicholls, 30 La. Case of, 463; Attorney-General v. Ann. (Ft II) 980 ; Sheriff v. Caddo SiUem, 2 H. & C. 531 ; Reg. v. Zu- Parish, 37 id. 788 ; De Celis v. United lueta, 1 C. & K 215. States, 13 Ct CL 117; WiUiams v. 5 6 Wall at p. 511. State, 67 Ga. 260. 6 Steele v. Midland R. Co. L. R 1 Ch. 2Tonnele v. Hall, 4 N. Y. 140; 282; Martm v. Hemmmg, 18 Jur. Mclntyre v. Ingraham, 35 Miss. 25 ; 1002 ; 24 L. J. Ex. 5 ; Salkeld v. Joliu- Sheriff v. Parish of Caddo, 37 La Ann. son, 2 C. B. 756 ; Farley- v. Bonliam, 2 788 ; State v. Judge, 12 id. 777 ; Big J. & H. 177 ; Matter of Dean of York. 2 Black Creek, etc. Co. v. Common- Q. B. 34 ; Ewart v. WiUiams, 3 Dre^\•. wealth, 94 Pa. St. 450; Ruggles v. 21, 24; Bank of Pa v. Common- Illinois, 108 U. S. 526 ; Crawfords- wealth, 19 Pa St 144. 156 ; Arding v. ville, etc. Co. v. Fletcher, 104 Ind. 97. Bonner, 2 Jur. (N. S.) 763 ; Southwark 3 Heydon's Case, 3 Rep. Ha; Case of Bank v. Commonwealth, 26 Pa St. the Marshalsea, 10 id. 73a. 446, 450. See Fellowes v. Clay, 4 Q. * River Wear Com'rs v. Adamson, B. 356 ; Edger v. Count>' Commis- L. R 1 Q. B. D. 546 ; 2 App. Cas. 764 ; sioners, 70 Ind. 331 ; Blake v. National Delaplane v. Crenshaw, 15 Gratt. 457 ; Banks, 23 Wall. 307, 321. Smith V. Speed, 50 Ala 276 ; Fair- 384: INTERPRETATION AND CONSTRUCTION. But if tlie reasons and objects of the law are made known by any other document equally authentic and certain, as the re- port of one of the heads of departments, it may be referred to to aid in the interpretation of doubtful or ambiguous language in the law.^ It was held in State v. Cloksey,^ that, in the in- terpretation of words used in the constitution, the court may derive such aid as may be afforded by looking to the journals of the convention which framed that instrument, to ascertain in what sense such words were used by the convention ; ' or journals of the legislature in respect to the history of the enactment.* It is held in Indiana that the journals containing, the proceedings in reference to a bill enacted into a statute may be looked to by the courts to ascertain the intention of the legislature in enacting it if it be ambiguous.^ In Blake v. National Banks,^ the journals of congress were referred to, and the court said they were compelled to ascertain the legis- lative intention in that way.'^ In Illinois they may be put in evidence, and when offered they prove themselves, and ma}' be consulted to determine whether an act was duly passed." So in Alabama.^ In Kentucky, journals may be proved on ixi\ issue by pleading to show that a bill was not duly passed.^" There has been occasionally judicial reference to declarations of members of legislative bodies, but such aids are but slightly relied upon, and the general current of authority is opposed to any resort to such aids.'^ 1 United States v. Webster, Davies, of Howard Co. 15 Kan. 194. See Cole- 38 ; Perkins V. Sewell, 1 W. Black. 659 ; man v. Dobbins, 8 Ind. 156. Fosdick V. Penysburg, 14 Ohio St. 472 ; « 23 WaU. 307. Moody V. State, 48 Ala. 115; Clare V. 'See Fosdick v. Perrysbui'g, 14 State, 5 Iowa, 509 ; Division of How- Ohio St. 472; Hebbert v. Purchas, ard Co. 15 Kan. 194. L. R. 3 P. C. 648. 2 5 Sneed, 483. * Grob v. Cuslunan, 45 HL 119. 3 State V. Douglass, 5 Sneed, 608. ^ ISIoody v. State, 48 Ala, 115. See Wis. Cent R. R. Co. v. Taylor i" Auditor v. Haycraft, 14 Bush, 284. Co. 52 Wis. 37. '' Re Mew, 31 L. J. Bankniptcy, 89 ; * Hill's Adm'r v. Mitchell, 5 Ark. Reg. v. Hertford College, L. R, 3 Q. B. 608 ; People v. Lyman, 3 Utah, 30. Div. 707 ; Att'y-Gen'l v. Sillem, 2 H. & See Bank of Penn. v. Commonwealth, C. 521 ; Cumberland Co. v. Boyd, 113 19 Pa. St. 144; Southwark Bank v. Pa,St. 52, 57; District of Columbia v. Commonwealth, 26 id. 446. Wasliiugton Market, 108 U. S. 2-13 ; * Edger v. Board of Commissioners, United States v. Union Pac. R, R. Co. 70 Ind. 331 ; Wood Mowing, etc. Co. 91 id. 72 ; Akh-idge v. Williams, 3 How. V. Caldwell, 54 Ind. 270, 279 ; Division 9; Taylor v. Taylor, 10 Minn. 107; INTEKPEETATION AND CONSTEUCTION. 385 §301. Judicial liiioAvledgo of facts in general.— WLat is matter of general knowledge, universally accepted and acted upon, courts will ex officio recognize as true. They will avail themselves of it in the exposition of statutes, deliver such facts, when pertinent, to juries, and will not permit them to question their verity. Such facts cannot be precisely defined; their recognition depends on their certainty and notoriety, and the courts, proceeding with their usual care and conservatism, will resolve doubts by rejecting any supposed facts in a particular case.^ Under such restrictions they judicially recognize what- ever has the recpisitc certainty and notoriety in every field of knowledge, in every walk of practical life. " There are a vast variety of things," said Graves, C. J.,^ " which must be regarded as matters of common knowledge ; things which every adult person of ordinary experience and intelligence must be pre- sumed to know ; things which do not require to be pleaded or to be made the subject of specific proof; and it is not within the province of a court to leave it to a jury to find contrary to this knowledge." It was accordingly held that the question was for the court whether a railroad company was guilty of neghgence in leaving a box freight car standing still at a high- way crossing as tending to frighten horses of ordinary gentle- ness.^ Leese v. Clark, 20 CaL 387; Keyport, 2GUbeit v. Flint &c. R. R. Co. 51 etc. Co. V. Trans. Co. 18 N. J. Eq. 13. Mich. 488. Judges who have been members of 3 Id. In IVIr. Metcalfe's very instruct- the legislatm-e have sometimes men- ive article found in 28 Am. L. Reg. tioned theur knowledge or declara- 193, he says at p. 456 :" There remains tiouswliile acting in that capacity, a vast array of facts wliich can become Moyer v. Gross, 2 P. & W. 171 ; Re generally known only tlu-ough the Mew, mpra; Mounsey v. Ismay, 34 uniform results of experience in Ufa L. J. Ex. 56 ; 3 H. & C. 486 ; Hed- From the innnense multiphcity of worth V. Primate, Hard. 318 ; McMas- these matters, they may never receive, ter V. Lomax, 2 Myl. & K 32 ; Hud- m the usual form, eitiier historical or son V. Tooth, L. R 3 Q. B. Div. 46 ; scientific indorsement They he m Drummond v. Drummond, L. R 2 the region of traditional or actual Ch. 45 ; State v. Nicholls, 30 La. Ann. knowledge, common to civilization, Pt II, 980. Statements made in me- and may be known as ' a knowledge morials to the legislature concerning of men and tilings.' The rule of their the meaning of statutes will not coh- jutUcial reception is, that ' courts will trol the court in construing tliem. not pretend to be more ignorant than Ross V. Supervisors, 12 Wis. 26. the rest of mankind.' Such matters 1 Brown v. Piper, 91 U. S. 37. can never be given in evidence by 25 386 INTERPRETATION AND CONSTRUCTION. In Board of Health v. Hill,^ Erie, C. J., said : " Every one- knows what the trade of a brickmaker is." And the court acted upon general knowledge in determining the character of that trade as to its being a nuisance. In Holman's Appeal ^ the court took judicial notice of the long practical construction of a statute, and of the general understanding of the profession as to its scope and meaning.'' It was judicially known that the tide ebbs and flows to a great height in the Eiver Mersey in England.^ In Jarvis v. Eobinson,'^ Dixon, C. J., said: "We all know that the circuit courts of the several states are courts of general jurisdiction, as well as w^e know that courts of jus- tices of the peace are not ; and why should judges assume a degree of ignorance on the bench which would be unpardon- able in them when off of it." Superior courts know when it has been the immemorial practice of an inferior court of record consisting of several members to recognize one practically as a quorum. Thus an act provided that it should be lawful for the judges of the central criminal court, " or any two or more of them, to inquire of, hear, determine and adjudge the of- fenses specified." It was ruled that one could hold the court. "From the earliest period," said Cockburn, C. J., "commis- sions of oyer and terminer have been framed in the same terms as are employed in the statute in question. In these commis- sions a certain specified number of the persons, some of whom, are named, are always constituted a quorum. Yet for cen- turies the trials of offenses under such commissions upon the circuits of the judges have been held before a single judge, and the proceedings are nevertheless represented on the record as taking place not before one judge, but before the other judges sitting under the commission." ^ § 302. A court will take judicial notice of the seasons and of the general course of agriculture, so as to know whether at a particular date the crops of the country would be ma- means of any spoken or wi'itten Ian- Co. 18 N. J. Eq. 13 ; Scruggs t. guage, and hence tliey can leave no Brackin, 4 Yerg. 538 ; Egnew v. Coch- impression upon the record of a rane, 2 Head, 320. cause." ^wiiitney v. Gauche, 11 La, Ann. 1 13 C. B. (N. S.) at p. 483. 432. 2 106 Pa. St 502. 5 oj wis. at p. 526. 3Keyport St Co. v. Transportation ei^everson v. Eeg. L. R 4 Q. B. 394 INTEKPEETATION AND CONSTKUCTION. 387 tured so as to be severed.^ An agreement required a cropper to deliver to liis landlord the " small grain in the half bushel as soon as threshed ; " and it was argued that, as there was no time specified when it should be threslied, the law would hold that it should be threshed and delivered within a reasonable time ; that the court Avill judicially take notice of the time when such crops matured, on the priuci[)le that Avhatever ought to be generally known within the limits of its jurisdic- tion, of that the court will judicially take notice. The court answered : We do not think the doctrine of judicial notice has been carried quite to " this extent." The time when wheat, oats and barley matured was stated by the court to vary in different parts of the state, and even in the same locality. " Of facts of unvarying occurrence," say the court, " courts must take judicial notice, but not of the vicissitudes of climate or the seasons." ^ The court will take notice of the course of the seasons and of husbandry, and that the use of a farm for six months during the cropping season would be worth much more per acre than it would be during the six months includ- ing the winter season.^ A court will take notice from the time of a father's death whether at a particular date his chil- dren had arrived at majority.* It is on the same principle that mortuary tables are acted upon as embodjdng the results of general observation.'^ Courts will take judicial notice of the calendar and on what day of tlie week a given day of the month falls ;" the time when the sun rises at given times.'' § 303. The fact that " brandy is ranked as an intoxicating liquor by writers upon the general subject, and that it is a liquor of that character is generally and commonly known, is one of which the courts will take judicial knowledge."* Everybody knows Avhat gin is ; knows not only that it is a 1 Floyd V. Ricks, 14 Ark. 286 ; Tom- 6 Allman v. Owen, 31 Ala. 167 ; linsou V. Greenfield, 31 id 557 ; Case Sprowl v. Lawrence, 33 id. G7-4 ; Pliil- V. Serew, 46 Hun, 57. adelpliia, etc. R. R. Co. t. Lehman, 56 •-' Dixon T. Niccolls. 39 lU. 372. See Md. 209 ; Mcintosh v. Lee. 57 Iowa, Moulton V. Posten, 53 Wis. 169, 173. 356 ; Curtis v. Mai'ch, 4 Jm-. (N. S.) ■^ Ross V. Boswcll, 60 Ind. 235. 1112. ^ Floyd V. Johnson, 2 Litt 109. 7 People v. Chee Kee, 61 Cal. 404. ■^Goodon V. Tweedy, 74 Ala. 232. spenton v. State, 100 Ind. 598. 388 INTEEPKETATIOX AXD CONSTEUCTIOi^. liquor, but also that it is intoxicating.' The same is held in regard to whisky.'-' So a court will take judicial notice that " lager beer," commonly used as a beverage, is a malt and an intoxicating liquor.^ That coal oil is inflammable.* Courts judicially know of the navigability of such streams as the Mississippi river ; they know this because they form part of the geograph}^ of the country, and their navigability is known as forming part of the common public history ; * they know that a " gift enterprise " in common parlance is understood to be substantially a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in it.^ § 304. Courts will take notice of whatever is generally known within the limits of their jurisdiction. A patent was held void on its face for want of novelty.^ To require proof of every fact, as that Calais is beyond the jurisdiction of the courts of England, would be utterly and absolutely absurd.® In a libel case in which the libel was that the friends of the plaintiff had " realized the fable of the frozen snake," the court took judicial notice that the knowledge of that fable existed generally in society.^ Conventional expressions conveying a particular idea may become so current that a court would take judicial notice of their popular meaning. In an action by a clergyman for libel, the court took judicial notice of the mean- ing of the words : " Then there was that Iowa Beecher busi- ness which beat him out of a station at Grass Lake." ^" § 305. The courts will judicially notice the art of photog- raphy, the mechanical and chemical processes employed, the scientific principles on which they are based, and their results.'^ But it has been held that courts will not take judicial notice of philosophic or scientific facts and principles which are not 1 Commonwealth v. Peckham, 2 * State v Hayes, 78 Mo. 307. Gray, 514 s Neaderhouser v. State, 28 Ind. 257 ; 2 Carmon v. State, 18 IncL 450 ; Siegbert v. Stiles, 39 Wis. 533. Eagan v. State, 53 Ind 162 ; Sclxliclit « Lohman v. State, 81 Ind 15. V. State, 56 id 173. 7 Brown v. Piper, 91 U. S. 37. 3 Watson V. State, 55 Ala. 158; 8 Qres. Eq. Ev. 294. State V. Goyette, 11 R. I. 592 ; Briffitt 9 Hoare v, SUverlock, 12 Q. B. 624 V. State, 58 Wis. 39; Kerkow v. lo Bailey v. Kalamazoo Pub. Co. 40 Bauer, 15 Neb. 150 ; Killip v. McKay, Mich. 251. 13 N. Y. St P.ep. 5. n Luke v. CaUioun Co. 52 Ala. 115. INTERPRETATION AND CONSTRUCTION. 389 generally known.' Facts stated even in standard publications, such as encyclopedias and dictionaries, will not be judicially noticed unless they are of such universal notoriety as to be a part of the common knowledge of all persons.- Courts cannot take notice of minor geographical and other hke facts, unless historically or traditionally well and generally known.' § 30G. Courts will take judicial notice that the business of a barber on Sunday is not a work of necessity ; '* the peculiar nature of lotteries and how they are generally managed;' what a billiard table is." They will take notice of the charac- ter of the cu'culating medium, and the meaning of popular language relating to it;^ the different classes of notes and bills in circulation as money at a particular time ; * the gen- right of property connected with the continuance of Ufe, facts so far as they are known, in regard to the prob- ability, the expectation, and the aver- age duration of human hfe, have al- ways been in hke manner admitted as evidence, or as a gi-ound from which presumptive evidence of the existence of other facts may be fairly deduced. And there can be no doubt that the regular and known coirrse of nature in the formation of vegetables may be as safely rehed on as direct, or as presumptive evidence, as in that of animals. The only point of cUfticulty as to both being the establishment of the ti-uth of that wliich is alleged to be the uniform and regular coiu^e of nature." But it was held that, in the absence of evidence that the number of concenti'ic layers in the trimk of a tree correspond with the years of its age, the hypothesis that the formation of each one of such concentric layers is evidence of the lapse of a year can- not be judicially received. ■» State V. Frederick, 45 Ark. 347. ^ Salomon v. State, 28 Ala. 83. estate V. Price, 12 G. & J. 2C0. " Lampton v. Haggai-d, 3 T. R ]\Ion. 149. 8 Hart V. State, 55 Ind, 599. 1 Ausman v. Veal, 10 Ind. 355 ; St Louis G. L. Co. V. American F. Ins. Co. 33 Mo. App. 348. See Spensley v. Lancasliire Ins. Co. 54 "Wis. 433. 2 Kaolatype Engi'aving Co. v. Hoke, 30 Fed. Rep. 444. 3 Buifalo, etc. Co. v. N. Y. etc. R. R. Co. 10 Abb. N. C. 107. Chan. Bland in Patterson v. McCausland, 3 Bland's Ch. at p. 71, said : " The law respects the regular course of nature in eveiy way ; and, consequently, in all cases in so far as the coiu'se of nature is known, aU such facts, as well in re- gard to the revolution of the seasons, as to animals and vegetables ; as to the mating of bii'ds, and theu" co- operation in rearing their young, the blooming time of roses, and the hke, are received as being in themselves entirely ti-ustworthy, or as facts from which inferences as to the truth of other facts may be safely di-awn. Co. Litt. 40, 92, 197; 1 Stark. Ev. 472, note; Case of Swans, 7 Co. 82. lu questions of bastardy, the time of access being proved, the kno^\^l term of gestation, reckouuig from the time of birth, is always received as a most satisfactory kind of presumptive evi- dence, Co. Litt. 1236, note; Rex v. Luffe, ^ East, 193. So too, in all the varioiis questions in relation to the 390 INTEKPEETATIOX AND CONSTRUCTION. eral facts connected with the emission, use and circulation of the Confederate currency ; ^ the changes in the course of business in the country and of new processes to facilitate trade ^ and communication ; * that a railroad superintendent has authority to receive or refuse cord-wood ; * the customary price of ordinary labor ; ^ the meaning of common and generally known abbrevia- tions of proper names and of other things ; * that Free Masonry is a charitable institution ; ^ of the usual duration of a voyage across the Atlantic ; ^ the ordinary incidents of railway travel ; ® that the language of all countries is subject to fluctuation;^" the distance between well-known cities of the United States and the speed of railway travel between them.'^ There is considerable diversity of opinion in dealing with the multifari- ous facts for which judicial notice has been claimed, but these contrarieties have arisen in the application of conceded prin- ciples, and when compared will be found to merely illustrate different degrees of caution and conservatism.^^ 1 Simmons v. Trumbo, 9 W. Va, 358. 2 Wiggins Ferry Co. v. Chicago, etc. R. R. Co. 5 Mo. App. 347. 3 Wisconsin Telephone Co. v. Osh- kosh, 63 Wis. 32. * Sacalaris v. Eureka, etc. R. R. Co. 18 Nev. 155. 5 Bell V, Barnet, 3 J. J. Marsh. 516. «Moseley v. Mastin, 37 Ala. 216; Stephen v. State, 11 Ga. 225 ; Weaver V. McElhenon, 13 Mo. 89. 1 Bm-dine v. Grand Lodge, 37 Ala. 478. 8 Openheim v. Wolf, 3 Sandf. Cli. 571. 9 Downey v. Hendrie, 46 Mich. 498. 10 Vanada v. Hopkins, 1 J. J. Marsh. 285. iiPearce v. Langfit, 101 Pa. St. 507; Rice V. Montgomery, 4 Biss. 75. i'^ Goodwin v. Appleton, 22 Me. 453 ; Penn. Co. v. Frana, 13 IlL App. 91 ; •Johnson v. Common Council, 16 [nd. 227 ; Buckinghouse v. Gregg, 19 id. 401 ; Porter v. Waring, 69 N. Y. 250 ; AUen v. Scliai-inghausen, 8 Mo. Apjj. 229 ; Rice v. Montgomery, 4 Biss. 75 ; State v. Russell, 17 Mo. App. 16 ; Wilcox V. Jackson, 109 111. 261; Bishop V. Jones, 28 Tex. 294 ; Brad- ford V. Floyd, 80 Mo. 207 ; State v. Wise, 7 Ind. 645 ; Ward v. Henry, 19 Wis. 76 ; State v. Bruner, 17 Mo. App. 274; Stanberry v. Nelson, Wright (Ohio), 766 ; Mosley v. Vt. Mut. F. Ins. Co. 55 Vt. 142 ; EUis v. Park, 8 Tex. 205; RusseU v. Martin, 15 id. 238; Seymoiu' v. Marvin, 11 Barb. 80; Modawell v. Hohues, 40 Ala. 391 ; Cic- ero, etc. Co. V. Craighead, 28 Ind. 274 ; Riggin V. Collier, 6 Mo. 5G8 ; "WTiitlock V. Casti-o, 22 Tex. 108 ; Woodward v. Chicago, etc. R. R. Co. 21 Wis. 309 ; Longes v. Kennedy, 2 Bibb, 607 ; McDonald v. Kirby, 3 Heisk. 607; Cutter V. Caruthers, 48 Cal. 178 ; State V. Cleveland, 80 Mo. 108; Market Bank v. Pacific Bank, 27 Hun, 465 ; Johnson v. Robertson, 31 Md. 476; Grider v. TaUy, 77 Ala. 422 ; KeUey v. Story, 6 Heisk. 202 ; Temple v. State, 15 Tex. App. 304; Bennett v. North British Ins. Co. 8 Dah', 471 ; Feemster V. Ringo, 5 T. B. Mon. 336 ; South & N. A. R. R. Co. V. Wood, 74 Ala, 449; INTERPRETATION AND CONSTRUCTION. bdl § 307. Conteniporaneoiis construction. — The aid of contem- poraneous construction is invoked where the language of a statute is of doubtful import and cannot be made plain by the help of any other part of the same statute, nor by the assist- ance of any act in pari materia which may be read with it, nor of the course of the common law up to the time of its en- actment. Under such circumstances the court may consider what was the construction put upon the act when it first came into operation.^ Where this has been given by enactment it is 3onclusive.^ A contemporaneous construction is that which i ■. i eceives soon after its enactment. This after the lapse of time, without change of that construction by legislation or judicial decision, has been declared to be generally the best construction. It gives the sense of the community as to the terms made use of by the legislature. If there is ambiguity in the language, the understanding of the appHcation of it when the statute first goes into operation, sanctioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly ex- plained in practice. A construction under such circumstances becomes established law.* Where the statute is doubtful, a construction long acted upon by the inferior courts Avill gen- erally be adopted and followed by the superior tribunals,^ and Esterbrook IVIfg. Co. v. Ahem, 30 Vaiighan, 169 ; Mansell v. Reg. 8 E. & N. J. Eq. 341 ; Slii-opsliire v. State, 13 B. at p. Ill ; Gorham v. Bishop of Ex- Ark. 1 90. eter, 15 Q. B. 69 ; Booth v. Ibbotson, 1 Y. 1 WUb. on St. 142 ; 2 Inst. 11, 136 ; 1 & J. 360 ; Nelson v. AUen, 1 Yeig. 360, Kent, Com. 465 ; Fermoy Peerage 376, 377 ; Hari-ison v. AVillis, 7 Heisk. Claim, 5 H. L. Cas. at p. 747 ; Mor- 35 ; Simpson v, Willard, 14 S. C. 191 ; gan V. Crawshay, L. R. 5 H. L. at Martin v. Hvmter, 1 Wheat 351 ; p. 315 ; Attorney-General V, Primate, 1 Wanet v. Corbet, 13 Ga 441 ; Howell Jebb. & Synies, at p. 317. v. State, 71 id. 224 ; State v. Mayhew, 2 Philadelpliia & Erie R. R. Co. v. 2 Gill, 487; Garland v. Carlisle^ 2 Cr. Cata^\^ssa R. R. Co. 53 Pa, St 20, 61. & M. at p. 39 ; United States v. Ship » Packard v. Richardson, 17 Mass. Recorder, 1 Blatclif. 218, 223; Wind- 143 ; 2 Inst 181 ; People v. Loewenthal, ham v. Chetvvynd, 1 Burr, at p. 419 ; 93 111. 191; Opinion of Justices, 126 Wilton v. Chambei-s, 7 Ad. & EL at Mass. 551 ; Halm v. United States, p. 532 ; Bank of England v. Anderson, 107 U. S. 402; Commonwealth v. 3 Bing. N. C. 660; Hamilton v. McNeil, Parker, 2 Pick. 550, 556 ; Scruggs v. 13 Gratt 394 ; 4 Bac. Abr. 648 ; Dean Brackiu, 4 Yerg. 528 ; Egnew v. v. Borchseuius, 30 Wis. 236 ; People v. Cochrane, 2 Head, 320 ; Cohens v. Vir- ]\Iay. 3 :Mich. 598. ginia, 6 Wheat 264 ; Reg. v. Frost * Plummer v. Plummer, 37 Miea. 9 C. & P. 129 ; Sheppaid v. Gosnold, 185. 393 INTEKPEETATION AND CONSTRUCTION. especially as to rights which have accrued under it.^ If the de- cisions are conflicting it cannot be said there is a contemporary exposition, and the court must look to the words of the statute and interpret them by its own unfettered judgment.^ A con- struction of a constitution, if nearly contemporaneous with its adoption, and followed and acquiesced in for a long period of years afterwards, is never to be Hghtly disregarded, and is often conclusive.* § 308. General usage. — If the words of a statute be doubt- ful a general usage may explain it, but it must be universal.* A practice in a part of the state inconsistent with the letter and spirit of a statute cannot repeal it nor control its con- struction.5 A universal law cannot receive different interpre- tations in different localities ; ^ but when a statute is apphcable to one place only, doubtful words in it may be construed by the usage in that place.'' Long usage is of no avail against a plain statute ; ^ it can be binding only as the interpreter of a doubtful law, and as affording a contemporary exposition.* Where a statute, expressive as to some points, is silent as to others, usage may supply the defect, if not inconsistent with anything which it expresses.'" § 309. A practical construction, of long standing, by those for whom the law was enacted, will not be lightly questioned, especially in matters of form, though it will not be allowed to defeat the manifest purpose of the statute.^' This was held to 1 Plummer v. Pliimmer, 37 Miss. Bank of Ireland v. Evans's Charities, 185. 5 H. L. Cas. 405 ; Bailey v. Rolfe, 16 2 Rex. V. Leek Wootton, 16 East, at N. H. 247 ; Chesnut v. Shane, 16 Ohio, p. 122. 599. 3 Opinion of Justices, 126 Mass. 551 ; ^ State v. Mayhew, 2 Gill, 487. 1 Kent's Com. 465 and note ; Story « St. Panll v. Lewis, 4 Watts, 402 ; on Const. § 408 ; Cooley, Const. Lim. Ham v. Sawyer, 38 Me. 37 ; Evans v. 69 ; Surgett v. Lapice, 8 How. 48, 68 ; Myers, 25 Pa. St. 114. Commonwealth v. Lockwood, 109 ' Frazier v. Warfield, 13 Md. 279. Mass. 322, 339; Commonwealth v. « Goldsborough v. United States,- Costley, 118 Mass. 1, 36; Stuart v. Taney's Dec. 80. Laird, 1 Cranch, 299 ; McCulloch v. » Att'y-Gen'l v. Bank, 5 Ired. Eq. Maryland, 4 Wheat. 316, 401; Portland 71; Gwyn v. Hardwicke, 1 H. & N. Bank v. Apthoi-p, 12 Mass. 252, 257 ; 53 ; Pochin v. Buncombe, 1 H. & N. Holmes v. Hunt, 122 Mass. 505, 516, 856. * Rex V. Hogg, 1 T. R. 721 ; Dyer v. '» Dunbar v. Roxburghe, 3 CI. & Fiiu Best, L. R. 1 Ex. 152 ; Earl of Water- 335. ford's Peerage, 6 CL & Fin. at p. 173 ; " Westbrook v. Miller, 56 Mich. 14a. INTERPRETATIOX AND CONSTRUCTION. 393 aid the presumption tliat the principal was under disability when a dejjuty officer acts, having authority to act only when the principal is unable to act.^ The practical construction given by the interior department of the general government, in reliance upon the uniform opinions of the attorney-general's office, of a statute granting lands, should be followed by the state authorities until reversed by the federal courts.^ Where a statute concerning the administration of tax-collectors' oaths has been uniformly construed in a certain way by the state and county authorities, and the construction has become a rule of property, many titles depending upon it, the maxim communis error facit jus may be invoked if the statute is doubtful.^ The practical construction given to a doubtful statute by the public officers of the state, and acted upon by the people thereof, is to be considered ; it is, perhaps, decisive in case of doubt.* This is similar in effect to a course of judi- cial decisions. The legislature is presumed to be cognizant of such construction, and after long continuance, without any legislation evincing its dissent, courts will consider themselves warranted in adopting that construction.^ Contemporary con- struction, and official usage for a long period, by the persons charged with the administration of the law, are among the legitimate aids in the interpretation of statutes,^ § 310. When a judicial interpretation has once been put upon a clause, expressed in a vague manner by the legislature, and difficult to be understood, that ought of itself to be a suffi- 1 Continental Imp. Co. v. Phelps, 47 Lytle, 5 McLean, 9 ; Hahn v. United Midi. 299 ; Clark v. IMowyer, 5 id. 463 ; States, 14 Ct CL 305 ; Swift Court- Cameron V. IMerchants', etc. Bank, 37 ney, etc. Co. v. United States, 14 Ct id. 240 ; Employers' L. Co. v. Com- CI. 481 ; Edwards v. Darby, 13 Wheat missioner of Ins. 64 id. 614. 206 ; Stuart v. Laird, 1 Cranch, 299 2 Johnson v. BaUou, 28 IMich. 379. United States v. Bank, 6 Pet 29 3 Malonny v. Mahar, 1 IMicli. 26. United States v. Moore, 95 U. S. 760 4 Solomon v. Com'rs, 41 Ga, 157; Brown v. United States, 113 U. S. People V. May, 3 IVIich. 598 ; Kiersted 568 ; The Laura, 114 U. S. 411 ; Wright V. State, 1 G. & J. 231 ; United States v. Forrestal, 65 Wis. 341, 348. V. Gilmore, 8 Wall. 330 ; Union Ins. & The Anna, L. R 1 P. Div. 259. Co. V. Hoge, 21 How. 35; Mathews eWetmore v. State, 55 Ala. 198; V. Shores, 24 IlL 27 ; Chesnut v. Nelson v. Allen, 1 Yerg. 376 ; Tipton Sh:me, 16 Ohio, 599, 607 ; Scaulan v. v. Davis, 5 Hay w. 278 ; People v. Childs, 33 Wis. 663 ; Goddard v. Glon- Dayton, 55 N. Y. 377. inger, 5 Watts, 209 ; United States v. 39i IXTERPEETATION AST) CONSTKUCTIOJ^". cient autliority for adopting the same construction.^ Boi- ler, J., said: "We find one solemn determination of these doubtful expressions in the statute, and as that construction has since prevailed, there is no reason why we should now put another construction on the act on account of any supposed change of convenience." ^ This rule of construction wiU hold good even if the court be of opinion that the practical construc- tion is erroneous ; so that if the matter were res integra the court would adopt a different construction.* Lord Cairns said : " I think that with regard to statutes . . , it is desirable not so much that the principle of the decision should be capa- ble at all times of justification, as that the law should be set- tled, and should, when once settled, be maintained without any danger of vacillation or uncertainty." * Judicial usage and practice will have weight,^ and when continued for a long time will be sustained though carried beyond the fair purport of the statute." § 311. The uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight.' The contemporary and subsequent action of the legislature in ref- erence to the subject-matter has been accepted as control- 1 "Williams v. Newton, 14 M. & W. Morrison v. Barksdale, Harper, 101 ; at p. 757. Att'y-Gen'l v. Bank of Cape Fear, o 2 Rex V. Younger, 5 T. R at p. 452. Ired. Eq. 71 ; Rogers v. Goodwin, 3 See Ellis v. Owens, 10 M. & W. at Mass. 475 ; Wetmore v. State, 55 Ala. p. 531 ; Rex v. Great Driffield In- 198 ; Plummer v. Pkmimer, 37 Miss, habitants, 8 B. & C. at p. 690. 185 ; Kernion v. Hills, 1 La. Ann. 3 State V. Chase, 5 H. & J. 303. 419 ; Leigh v. Kent, 3 T. R. at p. 364. 4 Commissioners v. Harrison, L. R. ^ Pease v. Peck, 18 How. 595 ; Reg. 7 H. L. 9 ; McKeen v. Delancy, 5 v. Scaife, 17 Q. B. 238 ; Smith v. TiU^-, €ranch, 22 ; Migneault v. Malo, L. R. 1 Keble, 712 ; Leverson v. Reg. L. R. 4 4 P. C. 130 ; Kernion v. HiUs, 1 La. Q. B. 394 ; Clow v. Harper, L. R. 3 Ex. Ann. 419: Janvrin v. De la Mare, 14 Div. 198; The Anna, L. R. 1 P. Div. Moore's P. C. 334 ; Kitchen v. Bartsch, 259 ; Reg. v. Cutbush, L. R. 2 Q. B. 379 ; 7 East, 53 ; Lord Avocate v. Sinclair, Migneault v. Malo, L. R. 4 P. C. 123. L. R. 1 Scotch App. 178 ; Jewison v. 136. Dyson, 9 M. & W. 540 ; Nicol v. Paul, ^ Hardy, Ex parte, 68 Ala. 303 ; L. R 1 Scotch App. 131 ; Evanturel v. Attorney-General v. Preston, 56 ]VIich. Evanturel, L. R 2 P. C. 463. 181; Commonwealth v. Miller, 5 5 McKeen v. Delancy, 5 Cranch, 22 ; Dana, 330 ; Moog v. Randolph, 77 Bailey v. Rolfe, 16 N. H. 247 ; Pack- Ala. 597 ; Selma, etc. R R Co., Ex ard V. Richardson, 17 Mass. 133, 144; parte, 45 id. 696. INTEKPRKTATION AND CONSTKTJCTION. * 395 ling evidence of the intention of a particular act.' Legisla- tive construction of old laws has no judicial force ; whether right or wrong the courts must determine the proper inter- pretation from the statutes themselves.' A practical construc- tion of a statute of doubtful meaning, long continued and acquiesced in, and Avhich has operated as a rule of prop- erty, and under which many important rights have accrued, will seldom be disturbed.^ " We cannot," say the court in an early case, " shake a principle which has so long and so ex- tensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision [practice] is now supported is that long-continued usage furnishes a contempo- raneous construction, which must prevail over the mere tech- nical import of the words." " In construing statutes applicable to public corporations, courts will attach no sUght weight to the uniform practice under them, if the practice has con- tinued for a consideralile length of time.^ Municipal practice under indefinite provisions of a charter that official terms should expire on the last day of March was applied in the con- struction of a statute giving one appointed a two-years' term.^ 1 Doggett V. AValter, 15 Fla. 355 ; be necessary to distinguisli between Bigelow V. Forrest, 9 Wall. 339. redemption by permission and a right 2 Drain Com'r v. Baxter, 57 Mich, to redeem, for the one may be good 137. independent of the other." He 3 Rogers v. Goodwin, 2 Mass. 477 ; reached the conclusion that the Stuart V. Laird, 1 Cranch, 299 ; Mat- owner may not redeem by right, but ter of the Will of Warfield, 22 Cal. may by permission, if not done by 71; People V. Loewen thai, 93 111. 191 ; collusioru " The evidence to show the Brown v. State, 5 Colo. 496 ; Plum- rmiversality of redemptions by per- mer v. Plummei-, 37 Miss. 185; Nel- mission was properly received ; not, son V. Allen, 1 Yerg. 360 ; Morgan v. as was alleged, to prove a custom su- Crawshay, L. R 5 H. L. 304, 320 ; perior to the statutes, but to found State V. Chase, 5 H. & J. 303 ; State an interpretation of them on the V. Severance, 49 Mo. 401. In Steiner basis of the argument ab inconven- V. Coxe, 4 Pa. St. 13, Gibson, C. J., ienti. It was evidence to the court, had to deal with the effect of a re- not to the juiy." demption from a tax sale permitted * Rogei-s v. Goodwin, 2 Mass. 476. by an officer after the statutory 5 Sherwin v. Bugbee, 16 Vt 444 ; period had elapsed. It had been per- State v. Severance, 49 Mo. 401 ; State uiitted in pursuance of a practice v. Cook, 20 Oliio St 252. which prevailed " to an almost im- •> French v. Cowan, 4 New Eng. limited extent." He said : " It will Rep. 682 ; 79 Me. 426. 300 IXTEEPKETATION AND COXSTKUCTION. § 312. All important consideration aJQfecting tlie weight of contemporary judicial construction is the length of time it has continued. It is adopted, and derives great force from being adopted, soon after the enactment of the law. It may be, and is presumed, that the legislative sense of its policy, and of its true scope and meaning, permeates the judiciary and controls its exposition. Having received at that time a con- struction which is for the time settled, accepted, and thereafter foUowed or acted upon, it has the sanction of the authority appointed to expound the law, and under circumstances pecul- iarly favorable for reaching just and correct conclusions ; when reached, they are, moreover, within the strongest reasons on which is founded the maxim of stare decisis. Such a construc- tion is publicly given, and the subsequent silence of the legis- lature is strong evidence of acquiescence, though not conclu- sive.^ But in respect to a practical - construction and usage not having judicial sanction, long duration is of their very essence. They are but interpreters of an obscure law,^ and to have weight should prevail for a long period, and their observance be uniform and notorious. Long periods have been mentioned as requisite or desirable in the English cases,. varying from forty to five hundred years ; ^ shorter periods in this country suffice.* This difference may come from the legislation in America being comparatively modern. A local' or special act, however, may be acted upon and practicaUT construed by parties for whose purposes it was enacted, so as to induce an adoption of their construction without ref- erence to the time occupied in such practical construction. Thus, where a city pursuant to due authority passed an ordi- nance for the subscription of stock and the issue of bonds in aid of a railroad, and this had been acted upon, the court said there had been a contemporary construction " placed upon an ordinance by the parties themselves, and on which they have acted, and upon which large and important interests have 1 State V. Bosworth, 13 Vt. 403; Fin. at p. 354 ; Gorham v. Exeter, 15 Clinton V. Englebrecht, 13 Wall. 434 ; Q. B. 52, 69 ; Fermoy Peerage Claim, Mayor of Baltimore v. State, 15 Md. 5 H. L. Cas. 729, 785. 376 ; Ferris v. Higley, 20 Wall. 375. * Pease v. Peck, 18 How. 595 ; Clark 2 BaUey v. Rolfe, 16 N. H. 247. v. Dotter, 54 Pa. St 215, 216 ; United 3 Mansell v. Reg. 8 E. & B. 54, 72, States v. Ship Recorder, 1 Blatchf.. Ill ; Dunbar v. Roxburghe, 3 CL & 218, 223. INTEEPEETATION AND CONSTRUCTION. 397 vested. Altliougli this would not be controlling, if the lan- guage was clearly the other way, yet in doubtful cases it is entitled to, and should receive, weight." ^ Lord Eldon, in At- torney-General V. Forster,- said : " According to Lord Ilard- wicke, usage would interpret the deed against the effect of any exposition upon the mere terms of the deed itscK, if there was nothing else to resort to." §313. Stare decisis. — The certainty and stability of the law are among its chief excellencies. By following this legal injunction the common law has become a symmetrical system ; the same authoritative rule applied to statutory construction gives a wholesome precision to dubious generahties, and other- wise removes doubts which arise upon obscure provisions, and has a salutary tendency to give confidence to those w4io must act upon statutes, but cannot settle their meaning. The rule of stare decisis is the authority of judicial decisions as precedents in subsequent litigations. When a point has been once settled by decision, it forms a precedent which is not afterwards to be departed from.' Such precedents must from the nature of our legal system be the same to the science of the law as a convincing series of experiments is to any other branch of in- ductive philosophy. They are, on being promulgated, imme- diately relied upon, according to their character, either as con- firming an old or forming a new principle of action, which, perhaps, is at once apphed to thousands of cases. These are continually multiplying. Numerous and valuable rights, of- fensive and defensive, may be claimed under them. The court almost always, in deciding any question, creates a moral power above itself; and when the decision construes a statute, it is -legally bound for certain purposes to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case.^ " The doctrine is not founded upon a mere rule of practice, changeable at the pleasure of the courts, but upon the solid basis of justice, and vitally and essentially affects the rights and interests of de- fendants." ' It is a rule applicable to all questions of law, whether declaring a principle of the common law or the con- 1 State V. Severance, 49 Mo. 401. ^ Bates v. Relyea, 23 Wend 340, 2 10 Ves. at p. 338. 341. 3 Abb. L. Die. 497. '= Shiekls v. Perkins, 2 Bibb, 230. 398 INTERPKETATION AND CONSTKUCTION. struction of a statute. A. deliberate decision on a point of law given in a case becomes authority in other like cases ; it is then the highest evidence of what the law is applicable to the subject ; it should be followed unless reversed by a superior court or changed by the legislature,' unless the law was mani- festly misunderstood or misapplied in the case decided ; and even then, after long adherence to that error, it may become fixed and incapable of judicial correction. If it were other- wise, the public would suffer great inconvenience. It is only by the notoriety and stability of legal principles and rules as they are defined, declared and illustrated in judicial precedents that aU human affairs may be regulated by one standard ; that professional men can give safe advice to those who consult them ; that people in general can venture with confidence to buy and trust, and to deal with each other.^ § 314. There is a distinction in the application of this rule between questions which concern practice, or those rules of conduct which have a mere present importance, and those which affect the validity and control the construction of con- tracts, or are rules of property. As to the former, legal prece- dents are followed unless they are manifestly wrong.* As to c he latter, they are followed with more persistency.* The hnpor- tance, in a general sense, of stable laws induces a conservati re opposition to vacillation in even the methods of administering justice, and has made the rule of stare decisis universally ap- plicable ; in some cases imperative, in others at least a precept. 1 Lemp V, Hastings, 4 Greene (la.), 283 ; New Orleans v. Poutz, 14 La, 448; Emerson V. Atwater, 7 Mich. 23. Ann. 853; Romaine v. Kinshiner, 2 ^ 1 Kent's Com. 476. Hilt. 519. 3 Duff V. Fisher, 15 CaL 375, 381 ; * i Kent, 475, 476 ; 27 Am. Dec. 632 ; Commonwealth v. Miller, 5 Dana, In re Warfield, 22 CaL 51 ; Panaud v. 320 ; State v. Thompson, 10 La. Ann. Jones, 1 id. 488 ; Rogers t. Goodwm, 2 122 ; Reg. v. Chantrell, L R. 10 Q. B, Mass. 477 ; Aicard v. Daly, 7 La. iinn. 587 ; Waldo v. Bell, 13 La. Ann. 329 ; 612 ; Farmer's Hens v. Fletcher, \x id. Davidson v. AUen, 36 Miss. 419 ; State 142 ; Van Loon v. Lyon, 4 Daly, a49 ; V. WapeUo Co. 13 Iowa, 388 ; Green v. Day v. Munson, 14 Oliio St 488 ; Aeed Neal, 6 Pet. 291 ; Sydnor v. Gascoigne, v. Ownby, 44 Mo. 204 ; Hilm v. Courtis, 11 Tex. 455 ; Borden v. State, 11 Ark. 31 Cal. 402 ; Meriam v. Harsen, 2 Barb. 519; Greencastle Southern T. Co. v. Ch. 270; Pioche v. Paul, 22 CaL 110; State, 28 Ind. 382 ; Succession of Fisher v. Horicon I. Co. 10 Wis. 355 ; Lauve, 6 La. Ann. 529 ; Seale v. Mitch- Van Winkle v. Constantine, 10 N. Y. ell, 5 CaL 403 ; Wolf v, Lowry, 10 La. 425. Ann. 272 ; People v. Cicott, 16 Midi. INTERPRET AllOX AND CONSTRUCTION. 'uJ\) " Wliere a question lias been well considered," says Harris, J., " and deliberately determined, whatever might have been the views of the court before which the (juestion is agtiin brought, had it been res nova, it is not at hberty to disturb or unsettle such decision unless impelled by the most cogent reasons. ' I cannot legislate,' said Lord Kenyon, ' but by my industry I can discover what my predecessors have done, and I will tread in their footsteps,' " ' § 315. Where a rule of property has been estabhshed it is deemed better to let it stand, although subsequent experience may show it to be erroneous. It can only be changed by a new act without unsettling titles.- The supreme court of Irn^ ana said : " There are some questions in law, the final settlement of which is vastly more important than how they are settled ; and among these are rules of property long recognized and acted upon, and under which rights have vested. A decis- ion cannot be changed without producing confusion in titles, as the ruling would necessarily relate back to the time when the law came in force. If a canon of descent, for instance, as settled by the determination of the court of last resort, is unjust, or even distasteful, the legislature can change it by a new statute, without interfering with vested rights." ^ It was objected in a case that a judicial sale had been ordered on a petition which did not show the jurisdictional facts.* But upon the same principles involved in the objection two former cases had decided in effect that such omission was a mere irregularity ; it was deemed a rule of property, and ought not to be disturbed. The legislature had passed a special act au- thorizing a guardian named to sell the lands of his ward, and the question of the validity of that sale was afterwards solemnly adjudicated and sustained. After a period of eleven years the court said of that decision, " every consideration of policy admonishes us, even if we believed that there was room to doubt as to the correctness of the decision in that case, not 1 Baker v. Lorillard, 4 N. Y. 261. St. 13 ; Boon v. Bowers, 30 Jliss. 246 ; 2 York's Appeal, 17 W. N. C. 33 ; S. C. Seale v. Mitchell, 5 Cal. 401. 110 Pa. St. 69; Hering v. Chambei-s, 3 Rockhill \. Nelson, 24 IndL 422; 103 Pa. St 172, 176 ; Tuttle v. Griffin, Ewiug v. Ewing, id. 470. C4 Iowa, 455 ; Bane v. Wick, 6 Ohio •« Field's Heirs v. Goldsby, 28 Ala. 218. 400 INTEKPEETATION AJSTD CONSTEUCTIOIf. to enter upon a review of it nor to disturb it at this late day. All questions which have an important bearing upon. titles to property, and which have, as in this instance, been once carefuUj" considered and solemnly settled by the court, ought not to be treated as open for future investigation, unless it shall appear that the evil resulting from the principle estab- lished must be productive of greater mischief to the community than can possibly ensue from disregarding the previous adjudi- cations upon the subject.^ § 316. ISTo absolute rule can be given as to when stare de- cisis is imperative, so much depends on the particular case in which it may be invoked. For it must be confessed that hasty and ill-considered decisions are sometimes made, and even of such a nature as to become rules of property ; decisions so ob- viously against law that they ought, in vindication of the law, to be overruled, and in a multitude of instances have been.^ When this has occurred, however, there has been a thoughtful comparison of the consequences ; and when such adjudications have been departed from, it has been because the benefits of adherence to the law are anticipated to be more than sufficient to counterbalance the hardship to those who will be disap- pointed by annulling the aberrant case or cases.^ Courts are not required, in the exercise of their wide judicial discretion, to overturn principles which have been considered and acted upon as correct, and thereby disturb contracts and property, and involve everything in inexplicable confusion, simply because some abstract principle of law has been incorrectly established in the outset.* The maxim of stare decisis is one of great importance in the administration of justice, and ought not to be departed from for slight or trivial causes ; yet this rule has never been carried so far as to preclude courts from investi- gating former decisions Avhen the question has not undergone repeated examination and become Avell settled.^ § 317. " The two grounds of justification," says ]\Ir. WeUs, " in departing from even a single decision which has become a 1 Boon V. Bowers, 30 Miss. 246 ; Neal, 6 Pet. 291 ; Hall v. Newcomb, S. C. 64 Am. Dec. 159. 3 Hill, 233 ; S. C. 7 id. 416. sChesnut v. Shane, 16 Ohio, 599; ^id. ; Grubbs v. State, 24 Ind. 295. S. C. 47 Am. Dec. 387 ; Hickman v. ^ Welch v. SuUivan, 8 CaL 188. Gaither, 2 Yerg. 200. See Green v. 5 Bowers v. Green, 1 Scam, 42. INTEEPRETATIOX AND CONSTRUCTION. 401 general rule of property within a certain line of dealing, are (1) the necessity of preventing further injustice; (2) the neces- sity of vindicating clear and obvious principles of law. AVhen these do not exist, a proposition for change cannot be enter- tained." ' If infinite mischief would ensue sliould the court, in the construction of a statute, adopt a different rule from that which has been long established in the state, it will yield the construction which it would otherwise put on tiie words of the statute to that interpretation which has been univers- ally received and long acted upon.- This maxim has been applied to decisions construing constitutions as well as other written laws. The following excerpt from a dissenting opin- ion of Paine, J., in a Wisconsin case, explains very clearly, in accordance with the general course of authority, the considera- tions which weigh to induce a greater or less persistent adher- ence to previous adjudications : " The following positions are fairly to be derived from the authorities, and are clearly supported by reason: That the maxim stare decisis has greater or less force according to the nature of the question decided ; that there are many ques- tions upon which there is no objection to a change of decision other than grows out of those general considerations which favor certainty and stability in the law. There are questions where the decisions did not constitute a business rule, and "where a cliange would invalidate no business transactions con- ducted upon the faith of the first adjudication. As an illustra- tion take a case involving personal liberty : A party restrained of his liberty claims to be discharged under some constitu- tional provision ; the court erroneously decides against him ; the same question arises again. To change such a decision would destroy no rights acquired in the past ; it would only give better protection in the future. The maxim in such a case would be entitled to but very little Aveight, and mere regard for stability ought not to be allowed to prevent a more per- fect administration of justice. But where a decision relates to certain modes of doing business, which business enters largely into the daily transactions of the people of a state, and a 1 Wells on stare Decisis, § 598. Cranch, 32 ; Giblin v. Jordan, 6 CaL 2 Van Loon v. Lyon, 4 Daly, 149; 416. JiIcKeen v. Delancy's Lessee, 5 26 402 INTEKPRETATION AND CONSTKUCTION. chano-e of decision must necessarily invalidate everything done in the mode prescribed by the first, then, when a decision has been once made and acted on for any considerable length of tune, the maxim becomes imperative, and no court is at hberty to change. Take a case involving the validity of certain modes of executing deeds or wills. A decision is made, and the peo- ple act upon it for years, executing all such instruments in the manner prescribed. After that some one raises the question ao-ain and contends that the first decision is erroneous. Admit it to have been so ; would the court be justified in overruling it ? Every man, whether lawyer or layman, would answer no. It is true that as to such questions it was more a matter of in- difference how they were first decided, than as to one like the present involving a constitutional principle designed to se- cure so just an end as equality of taxation. And I admit that this fact makes some distinction between the cases, and might justify a struggle to regain the lost ground of constitutional justice, even at the expense of some inconvenience and hardship. But it is equally as true in this case as in those supposed that the decision constituted a business rule, involving the validity of the entire revenue transactions of the state, and of all the thousands of private contracts growing out of them, and hav- ing been acquiesced in and acted on for such length of time, the error had passed beyond the reach of judicial remedy. No case can be found where any court ever changed a decis- ion once made, conceding that the change must have such an effect. On the contrary, there are many cases which would almost sustain the proposition that the practical construction of mere administrative officers, which has been acquiesced in for a long time, without any judicial decision whatever, should, in such cases, be followed, though in conflict with the consti- tution. I think that doctrine has been carried too far ; but where there has been a judicial decision, the reason upon which it is based then becomes unanswerable. It is said that in looking at the consequences of a change to see whether we are at liberty to make it, we are setting aside the constitution, upon grounds of policy. . . . The maxim stare decisis, it is true, rests upon grounds of policy. But it is equally as true that the constitution itself intended that that maxim should exist in the judicial system which it established, and INTERPRETATION AND CONSTRUCTION. 403 should be applied to decisions relating to its own construction, as well as to those relating to any other legal questions." ' § 318. What decisions involve a rule upon which continuing rights will accrue, and needing adherence to them, for the protection of such rights, is determined from the nature of the principle decided. An adjudication of a nature to be a rule of property will be presumed after the lapse of time to have been acted upon, so that rights have actually vested under it and are dependent upon it. To presume otherwise is to assume that the law is idle and vain, not practical.^ The decisions to be upheld as precedents embrace not only the point necessarily involved in them and decided by them, but also the principles which subsequent cases declare to be decided by them.* " Courts seldom undertake in any case to pass upon the validity of legislation where the question is not made by the parties; their habit is to meet questions of that kind when they are raised, but not to anticipate them. Until then, they will construe the acts presented for consideration, define their meaning, and enforce their provisions. The fact that acts may in this way have been often before the court is never deemed a reason for not subsequently considering their valid- ity when that question is presented. Previous adjudications upon other points do not operate as an estoppel against the parties in new cases, nor conclude the court upon the consti- tutionahty of the acts, because that point might have been raised and determmed in the first instance." * § 319. A judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be ad- hered to for the protection of those rights. To divest them by a change of the construction is to legislate retroactively.^ The constitutional barrier to legislation impairing the obliga- tion of contracts applies also to decisions altering the law as previously expounded so as to affect the obligations of exist- 1 Kjieeland v. IMilwaukee, 15 Wis. ^ Boyd v. Alabama, 94 U. S. 645, 454. See Willis v. Owen, 43 Tex. 48 ; 648. Louisville, etc. R. R Co. v. County ^ Rowan v. Runnels, 5 How. 134 ; Court, 1 Sneed, 668. Douglass v. Pike Co. 101 U. S. 677, 2 Davidson v. Allen, 36 Miss. 419. 686 ; Oliio Life Ins. & Tr. Co. v. De- 3AVell3 on Stare Decisis, § 601; bolt, 16 How. 416; Supervisors v. Matheson v. Hearin, 29 Ala, 310. United States, 18 Wall. 71 ; Fairfield V. County of GaUatin, 100 U. S. 47. 4:04: INTEKPRETATION AND CONSTKtJCTION'. ing contracts made on the faith of the earlier adjudications. " The sound and true rule is," says Taney, C. J., " that if the contract when made was valid by the laws of the state, as then expounded by all the departments of its government and administered in its courts of justice, its vahdity and obligation cannot be impaired by any subsequent act of the legislature of the state or decision of its courts altering the construction of the law." ^ "After a statute has been settled by judicial con- struction, the construction becomes, so far as contract rights under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and pur- poses the same, in its effect on contracts, as an amendment of the law by means of a legislative enactment." - § 320. The maxim of stare decisis applies only to decisions on points arising and decided in causes ; it has been held not to extend to reasoning, illustrations and references in opinions. The precedent includes the conclusions only upon questions which the case contained, and which were decided.' " The members of a court," says Downey, C. J., " often agree in a decision, but differ decidedly as to the reasons or principles by which theu^ minds have been led to a common conclusion. It is therefore the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the force of precedent in other cases. The reasoning adopted, the analogies and illustrations presented in real or supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not. So of the principle concurred in, and laid down as govern- ing the point in judgment, so far as it goes or seems to go beyond the case under consideration." * The precedent must include necessarily the logic and reasoning of a syllogistic legal proposi- tion of which the judgment is the conclusion." If the major premise, which is the law of the case, may be stated in several forms, and is stated differently by different members of the 1 Ohio L. Ins. & Tr, Co. v. Debolt, •* Lucas v. Commissioners, 44 Ind. 16 How. 416, 432. 524; Louisville, etc. R. R Co. v. 2 Douglass V. Pike Co. 101 U. S. County Court, 1 Sneed, 637 ; Carroll 677, 687 ; Tayloe v. Thomson, 5 Pet. v. CarroU, 16 How. 275. 358; Geddes v. Brown, 5 Phila. 180. 5 3 Black. Com. 396; Lamphear t. 3 Lucas V. Commissioners, 44 Ind. Buckingham, 33 Conn. 237. 641. INTEKPKETATION AND CONSTRUCTION. 40o' court wlio join in tlie conclusion, this diversity Avill impair the force of the precedent. A judicial decision is to be re- garded as conclusive, not only of the point presented in argu- ment and expressly decided, but of every other proposition necessarily involved in reaching the conclusion expressed.^ An opinion of the supreme court is the law of the case in which it is pronounced on a new trial, and in that court on a second review.- §321. Effects aud consequences. — In the construction of statutes, where the language is obscure or ambiguous, or for any reason its precise intent is not plain and cannot be made so by the context or other statutes in jxiri materia^ the eflects aud consequences enter with more or less force into consider- ation; nor are they entirely ignored in the reading of any statute. But when the terms of a statute are plain, unambig- uous and explicit, the courts are not at liberty to go outside of the language to search for a meaning which it does not rea- sonably bear.^ When there is no express repeal none is pre- sumed to be intended; and the effect of a new statute in conjunction with other statutes, with reference to established institutions, systems and policies, is always in view.* It is pre- 1 Bloodgood V. Grasey, 31 Ala. 575, sarily involved in it ; at least, when 587. In this case Walker, J,, said : the contrary does not appear." " It was contended in the discussion - Dewey v. Gray, 2 CaL 374 ; Bane of tliis case that the only point de- v. Wick, 6 Oliio St. 13 ; Gray v. Gray, cided, or m the mind of the court, 34 Ga. 499 ; Thoniason v, DUl, 34 was that made in argument. The re- Ala. 175 ; Stein v. Ashby, 30 ifL 3G3 ; suit of that position would be to take Huffman v. State, id. 532 ; Pearson from judicial decisions, where there v. Darrington, 32 id. 227 ; Stacy v. was no opinion, the authority of an Vermont, etc. R. R. Co. 32 Vt 551 ; adjudication upon all propositions Parker v. Pomeroy, 2 Wis. 112. wliich were too plain or too well rec- ^ United States v. The Sadie, 41 ognized by the bench and bar to be Fed. Rep. 396. questioned ; and thus the imiversal ^ Greenhow v. James, 80 Va. 636 ; and iDidisiJuted sanction of a legal Baxter v. Tripp, 12 R. I. 310 ; Greuatla principle ^sould become a barrier to Co. Supervisors v. Brogden, 113 proof by judicial decisions of its ex- U. S. 261 ; Att'y-Gen'l v. Smitli, 31 istence. It better accords with reason Midi- 359 ; Blackwood v. Van Vleit, to regard a judicial tribunal as as- 30 id. 118; Rowley v. Stray, 32 id. sorting, and intending to assert, every 70 ; Burnliam v. Onderdonk, 41 N. Y. proposition wliich is indispensable to 425 ; Fort v. Burcli, 6 Barb. 60 ; ^liuet the conclusion expressed, and neces- v. Leman, 20 Beav. 269 ; Lindsey v. Rottaken, 32 Ark. 619. •i '6 INTEIIPEETATION AND CONSTRUCTION. sumed that there is no intention to affect them any further than the phiin terms of the new statute require. Although the word " citizen," used in its most common and comprehensive sense, includes women, yet an act providing for the admission of a citizen of proper residence, age and character to practice as an attorney has been held not to in- clude women, because such construction would be a departure from the antecedent policy of the legislature, and introduce a fundamental change in long-established principles.^ Courts will be very reluctant to overturn them, or essentially modify them by extending the operation of a dubious statute. § 322. " In the consideration of the provisions of any statute, they ought to receive such a reasonable construction, if the •words and subject-matter wiU admit of it, as that the exist- Y^g rights of the public, or of individuals, be not infringed." - Considerations of what is reasonable,^ convenient,* or causes 1 Robinson's Case, 131 Mass. 376; l;:-adweirs Case, 55 111. 535 ; GoodeU's < ■:ise, 39 Wis. 232 ; BradweU v. State, 1 > WaU. 130. See Opinion of Jus- tices, 136 Mass. 578. 2 Wales V. Stetson, 2 Mass. 146. 3 Haney v. State, 34 Ark. 263 ; State \. De Gress, 53 Tex. 387; Quin v. C'Keeffe, 10 Ir. C. L. (N. S.) 411; Church V. Crocker, 3 Mass. 17, 21 ; Commonwealth v. Cambridge, 20 Pick. 267, 272 ; Goddard v. Boston, id. 407; Commonwealth v. Baily, 13 Allen, 541, 545 ; Paddock v. Cameron, 8 Cow. 212 ; Van Rensselaer v. Sheriff, 1 id. 443, 456 ; Kephart v. Farmers', etc. Bank, 4 Midi. 602; Green v. Graves, 1 Doug. (Mich.) 351 ; Dixon v. Caledonian R'y Co. L. R. 5 App. Cas. 827 ; Glenn v. Lopez, 1 Harper, 105 ; Neenan v. Smith, 50 Mo. 525. A statute wUl not be consti-ued to re- quire a vain thing. Butler v. Roch- ester, 4 Hun, 321. When it requu-es notice, it will requu-e a reasonable notice. Burden v. Stein, 25 Ala. 455. On general words reasonable limitations wUl be imposed. Martin V. Robinson, 67 Tex. 368, 379 ; McFar- land V. Stone, 17 Vt. 173 ; Ricard v. WiUiams, 7 Wheat. 59, 115. A rea- sonable time has no determinate num- ber of days or montlis, as apphed to every case, but must be determined in each case upon all the elements of it which affect that question. Thomp- son V. Sti'ickland, 52 Miss. 574. * Putnam v. Longley, 11 Pick. 489 ; In re Alma SpLmiing Co., L. R. 16 Ch. Div. 686 ; Shute v. Wade, 5 Yerg. 8 ; Home V. Raihroad Co. 1 Cold. 72, 78 ; Van Rensselaer v. Sheriff, 1 Cow. 443, 457. C, a German, came to this country vdth a woman whom he held out as his wife, with whom he Uved many years as such, and by whom he had several children. He afterwards abandoned her and went away. After he had been gone eight or nine years, she, not having heard of him, and supposing him to be dead, married another man by whom she had chil- dren. After the death of tliis man C. returned. On the settlement of his estate a question of the legitimacy of the childi-en of the second mar- riage was raised in Brower v. Bowers 1 Abb. App. Dec. 214 Harris, J., INTERPRETATION AND CONSTK LOTION. 407 hardsliip and injustice,' have a potent influence in many cases. It is always assumed that the legislature aims to promote con- venience, to enact only what is reasonable and just. There- fore, when, any suggested construction necessarily involves a flagrant departure from this aim, it will not be adopted if any other is possible by which sucli pernicious consequences can be avoided.- A statute declaring in full force all ordinances of a city or other corporation in operation at its date does not embrace one which has been pronounced judicially to be inoperative.'' An act validating certain sales made by persons in a fiduciary capacity, in the event of any irregularity or defect existing in the judicial appointment or cjualification of such trustee, cures said : " I am iucliued to tliink that the fact that they came from Germany, professing to be husband and wife, that they hved together in tliat re- lation for several years, and had chU- ■dren who were acknowledged as the issue of such a marriage, is sufficient eN'idence of a maiTiage in fact, even though it may have the effect to in- validate a subseciuent maiTiage. A very considerable portion of the pop- ulation of our countrj' is made up of Eiu'opean emigrants. Of these a large proportion are married when they arrive here; and even when marriages are celebrated here, so mi- gratory are the habits of the Ameri- can i^eople that in many cases it would be no easy thing to prove a marriage by those who witnessed the ceremony. It is well remarked by Tilghman, C. J., in Chambers v. Dick- son, 3 Serg. & R. 475; that, in estab- lisliing riUes of evidence, arguments from inconvenience have just weight And we must pay great attention to the situation of our o%vn coimtry, which is not in all instances adapted to regulations that are very proper in other countries." 1 Plumstead Board of "Works v. Spackman, L. R. 13 Q. B. Div. 878 ; Lombard v. Trustees, etc. 73 Ga. 322 ; Collins V. Carman, 5 Md. 503. - Metropohtan Asj'lum Dist. v. Hill, L. R. 6 Ap. Cas. 208; Richards v. Dagget, 4 ]\Iass. 537 ; State v. WOtz, 11 La, Ann. 439 ; Bell v. Jones, 10 Md. 322 ; Robmson v. Varnell, 16 Tex. 382 ; Ham V. McClaws, 1 Bay, 92 ; United States V. Hunter, Pet. C. C. 10 ; Flint R. St. Co. V. Foster. 5 Ga. 201 ; Mc- Lelland v. Shaw, 15 Tex. 319 ; Reg. v. Mallow Union, 12 Ir. C. L. (N. S.) 35 : River Wear Com'i-s v. Adamson, L. R. 2 Ap. Cas. 743 ; Mersey Steel & Ir. Co. V. Naylor, L. R. 9 Q. B. Div. 648; Shu'ges V. Crowuinshield, 4 Wheat 202 ; Plumstead Board of Works v. Spackman, L. R. 13 Q. B. Div. 878 ; Mayor, etc. v. Moore, 6 H. & J. 381 ; Buckuer v. Real Estate Bank, 5 Ark. 536 ; Thayer v. Dudley, 3 Mass. 296 ; Holbrook v. Holbroo'k, 1 Pick. 248, 254; Mendon v. County of Worces- ter, 10 Pick. 235 ; Eaton v. Green, 22 id. 526, 532; Holbrook v. Bhss, 9 Allen, 69, 75; Connnonwealth v. Mimson, 127 Mass. 459 ; Kerlin v. Bull. 1 Dall. (Pa.) 175, 178; Jei-sey Co. v. Davison, 29 N. J. L. 415. 3 Allen v. Savannah, 9 Ga. 286; Bridge v. Branch, L. R. 1 C. P. Div. 633. 408 INTERrRETATION AND CONSTRUCTION. only sucli defects as occur in proceedings of courts which have jurisdiction of tlie subject-matter. It does not validate a sale made by a trustee who was irregularly and defectively ap- pointed or qualified by a court which had no jurisdiction to make such appointment.^ A statute authorizing an officer to convey to the state certain lands held by a county by vu-tue of tax deeds issued upon sales for delinquent taxes theretofore made, was held not to apply to lands of which the tax deeds were void upon their face.'^ This conclusion was adhered to, though it was shown that there were no lands to which the statute could apply.'* § 323. A construction which must necessarily occasion great public and private mischief must never be preferred to a con- struction which will occasion neither, or not in so great a de- gree, unless the terms of the instrument absolutely require such preference. Of two constructions, either of which is war- ranted by the words of the amendment of a public act, that is to be preferred which best harmonizes the amendment with the general tenor and spirit of the act amended.* A statute may be construed contrary to its literal meaning, when a fit- eral construction would result in an absurdity or inconsist- ency, and the words are susceptible of another construction which will carry out the manifest intention.^ § 324. Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hard- ship or injustice; to favor pubhc convenience, and to oppose all prejudice to public interests.^ The considerations of evil 1 Halderman v. Young, 107 Pa, St. McConnell, 9 Watts, 17 ; Welch v. 324. Kline, 57 Pa. St. 428; Sinnott v. ^Easley v. Whipple, 57 Wis. 485; Whitechapel, 3 C. B. (N. S.) 674; Pat- Haseltine v. Hewitt, 61 id. 121. ten v. Rhymer, 3 E. & E. 1 ; Wliistler 3 Id. V. Forster, 14 C. B. (N. S.) 248 ; Stone 4 Griffin's Case, Chase's Dec. 364. v. Yeovil, L. R. 1 C. P. Div. 691 ; Aus- a Walton, Ex parte, L, R. 17 Ch tin v. Bunyard, 6 B. & S. 687; Gatty Div. 746. V. Fry, L. R. 2 Ex. Div. 265 ; Gibson v. « Van Fleet v. Van Fleet, 49 IMich. Jenney, 15 Mass. 205 ; Smith v. People, 610; Neenan v. Smith, 50 Mo. 525; 47 N. Y. 330 ; Bulkley v. Eckert, 3 Pa. People V. Bums, 5 Mich. 114 ; Jersey St. 368 ; Gore v. Brazier, 3 JNIass. 523 ; Co. V. Davison, 29 N. J. L. 415 ; Opin- Wassell v. Tminah, 25 Ark. 101 ; Du- ion of Justices, 7 Mass. 523 ; Kerlin quesne Savings Bank's Appeal, 96 Pa. V. BuU, 1 DaU. (Pa.) 175 ; Stewart v. St. 298 ; Kelly T. v. Union T. 5 Watts Keemle, 4 S. & R. 72 ; McCloskey v. & S. 535 ; Nicholas v. Phelps, 15 Pa. INTEKPKETATION AND CONSTEUCTION. 409* and liardsliip may properly exert an influence in giving a con- struction to a statute when its language is ambiguous or un- certain and doubtful, but not when it is phun and explicit.^ The same may be said of the consideration of convenience, and in fact of any consequences. If the intention is expressed so plainly as to exclude all controversy, and is one not controlled or affected by any provision of the constitution, it is the law,, and courts have no concern with the effects and consequences ; their simple duty is to execute it.^ The argument of incon- venience is very strong when the statute is ambiguous and fairly open to two constructions. Then the argument of in- convenience, lili;e the argument of absurdity, may be used with great force ; but when the construction is clear beyond controversy, it is no answer to say that there are some conse- quences which will cause inconvenience which were probably not contemplated by the framers.* The master of the rolls said : " With regard to inconvenience I think that is a most dangerous doctrine. I agree if the inconvenience is not only great but what I may call absurd inconvenience, by reading an act in its ordinary sense, whereas if you read it in a man- ner in which it is capable of being read, though not its ordi- nary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning." * The same has been said of listening to hardship.^ Su»h arguments are applicable only to considerations of convenience and hardship which generally spri]]g from a particular construction, not such as may occur St. 36 ; Mayor, etc. v. Eoot, 8 Md. 95 ; Learned v. Corley, 43 Miss. 687. See Pittsburg, etc. R. R. Co. v. S. W. Pa. Dudley v. Reynolds, 1 Kan. 285. R'y Co. 77 Pa, St. 173 ; Samuels v. « In re Alma Spinning Co., L. R. 16 Commonwealth, 10 Bush, 4i)l ; Coy v. Ch. Div. 686. Coy, 15 Minn. 119; Swift's Appeal, 4 Reg. v. Tonbridge Overseers, L. R. Ill Pa. St. 516 ; S. C. 2 Cent. Rep. 311 ; 13 Q. B. Div. 312 ; Rex v. Poor Law Rex V. Dorsetshire, 15 East, 200 ; Rex Com'rs, 6 Ad. & E. 1, 7. See Rex v. V. Yorkshu-e, 1 Doug. 192 ; In re Ramsgate, 6 B. & C. 712, 715 ; Rex Wain'^^^Tight, 1 Pliil. 258; Quin v O'Keeflfe, 10 Ir. C. L. (N. S.) 411 412. 1 Collins V. Carman, 5 Md. 503 Jolmsou V. R. R. Co. 49 N. Y. 456. 2 Blake v. Heyward, BaUey Eq. 208 V. Barham, 8 B. & C. 99; Lamond V. Eitfe, 3 Q. B. 910 ; Everett v. Wells„ 2 Scott, N. E. 531 ; Newell v. People,. 7 N. Y. 97 ; Bidwell v. Wliitaker, 1 Mich. 469, 479. 5 Munro v. Butt, 8 E. & B. 754. 410 INTEEPEETATION AND CONSTRUCTION. in an individual or exceptional case.^ An act should be so construed as to bring it, if possible, within the legislative au- thority ; ^ to limit its general words to the subject-matter or object of the act ; as including, justifying or requiring lawful acts and regular proceedings. § 325. Expressio imiiis est exclusio alteriiis. — This maxim, like all rules of construction, is applicable under certain condi- tions to determine the intention of the law-maker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions ; but otherwise the expres- sion of one or more things is not a negation or exclusion of other things. What is expressed is exclusive only when it is creative, or in derogation of some existing law, or of some provisions in the particular act. The maxim is applicable to a statutory provision which grants originally a power or right. In such cases the power or right originates with the statute, and exists only to the extent plainly granted ; the right while in- choate, and the power so far as not exercised, cease, if the statute be repealed, and if the statute provides the mode in which they shall be exercised, that mode must be pursued and no other. This conclusion is almost self-evident ; for since the statute creates and regulates, there is no ground for claim- ing or proceeding except according to it.* In other words, where a statute gives a new right and prescribes a particu- lar remedy, such remedy must be strictly pursued, and the party is confined to that remedy." " The rule is certain," said Lard Mansfield, " that where a statute creates a new offense, hy prohibiting and making unlawful anything which was lawful 1 EndL on St. § 263. bury, 3 Mass. 307 ; Smith v. Drew, 2Farnum v. Blackstone Canal 5 id 514; Dudley v. Mayliew, 3 Corp. 1 Sumn. 46 ; Sage v, Brooklyn, N. Y. 9 ; Wiley v, Yale, 1 Met. 553 ; 89 N. Y. 189 ; People v. McClave, 99 Crosby v. Bennett, 7 id. 17 ; Smith v, N. Y. 83. Lockwood, 13 Barb. 209 ; Thm-ston 3 Guerard v. PolhiU, E. M Charlt. t. Prentiss, 1 Mich. 193 ; Conwell v. 237 ; post, §§ 240, 327. Hagerstown Canal Co. 2 lud. 588 ; < 1 Com. Dig. 44-48; Foster's Case, McCormack y. Terre Haute, etc. R.R. 11 Rep. 566, 64; 9 Bac. Abr. 259, 260; Co. 9 Ind. 283; Countess of Rothes Rex V. Robinson, 2 Burr. 803 ; Bailey v. Ku-kcaldy Water-works Coni'rs, ■V. Biyan, 3 Jones (N. C), 357 ; Lang L. R. 7 Ap. Cas. 706 ; New Haven v. -v. Scott, 1 Blackf. 405; Camden v. Whitney, 36 Conn. 373; Smith v. Allen, 26 N. J. L. 398 ; Almy v. Har- Stevens, 10 Wall. 321 ; Dist. T'p of ris. 5 John. 175 ; Gedney v. Tewks- Dubuque v. Dubuque, 7 Iowa, 262. INTERPRETATION AND CONSTRUCTION. 411 before, and appoints a specific remedy against such new offense {not antecedently unlawful), by a particular sanction and 2)articular method of proceeding, that particular method must be pursued and no other." " Where a statute authorizes a public work, and points out a mode in which parties injured thereby may obtain compensation, that remedy is exclusive ; '' and the scope of the remedy or points of compensation are confined to the statutory limits.' In Arkansas the whole sub- ject of interest, so far as regards contracts for the payment of money, express or implied, was regulated by statute, and it was held these provisions excluded its allowance in other cases than those enumerated.* A statute prohibited the sale Avith- out license of certain specified liquors, and this specification excluded all others from the prohibition, so that they were un- affected by the requirement to obtain license.-^ When a stat- ute, defining an offense, designates one class of persons as subject to its penalties, all other persons are deemed to be ex- empted." As a general rule the exclusion of one subject or thing in a statute is the inclusion of all other thino-s. Therefore the exclusion of the power of the court to impose a fine of less than $100, by implication gives the power to impose a fine of more than that sum.' A grant contained several restric- tions; a subsequent statute repeated the grant in general terins and repealed all inconsistent acts, with a saving clause including one of the restrictions; it was held that all the other restrictions were repealed.^ A general statute provided a gen- iRex T. Robinson, 2 Burr, at p. "Water- works Com'rs, L. R. 7 Ap. 803 ; Castle's Case, Cro. Jac. 644 ; Cas. 70G. Stephens v. Watson, 1 Salk. 45 ; 4 Watkins v. Wassell, 20 Ark. 410, Stui-geon V. State, 1 Blackf. 39; 1 420. W. Saiind. 135, note 4 ; id. 250, note ^ Feldman v. IMorrison, 1 IlL App. 3 ; State v. Loftin, 2 Dev. & Bat. 31 ; 460. State V. Corwin, 4 Mo. 609 ; Camden 6 Howell v. Stewart, 54 Mo. 400 ; v. Allen, 26 N. J. L. 398 ; Smith v. Jaques v. Gohghtly, 2 W. BL 1073 ; Lockwood, 13 Barb. 209 ; New Al- State v. Jaeger, 63 :\Io. 403, 409. bany, etc. R. R. Co. v. Connelly, 7 ' Hankms v. People, 106 IlL 628 ; Ind. 32 ; Victory v. Fitzpatrick, 8 id. Drake v. State, 5 Tex. App. 649 ; 281 ; United States v. Dickey, Morris Cliiles t. State, 2 id. 37. See Stuui> (Iowa), 412. son r. Pond, 2 Curtis. 502. 2 Calking v. Baldwin, 4 Wend. 667. S" McRoberts v. Washbmne, 10 Minn. 3 Countess of Rothes v. Kirkcaldy 23. 412 IXTERPKETATION AND CONSTKUCTION. eral saving of rights, penalties and duties. An independent statute provided penalties for selling intoxicating liquors. This act was subsequently repealed with a special saving of pend- ing actions. This saving was held to be governed by the maxim under consideration. Doubtless an absolute repeal without any express saving would have let in the general sav- ing, but the repeal being qualified by a provision in the re- pealing act, which was narrower than the general saving, and which could have no effect unless it was an exclusive effect, it showed the intention of the legislature to exclude any other saving.' It is moreover Avithin this cognate principle, that specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law which might otherwise be broad enough to include it.^ Accordingly where a legislative act contained two sets of provisions, one giving specific and precise dh-ec- tions to do a particular thing, and the other in general terms prohibiting certain acts, which would, in the general sense of the words used, include the particular act before authorized, then the general clause does not control or affect the specific enactment.^ Every part of a statute must be viewed in con- nection with the whole, so as to make all its parts harmonize^ if practicable, and give a sensible and inteUigeiit effect to each. It is not presumed that the legislature intended any part of a statute to be without meaning.'' An act which extended one of the previous penal regulations for the government of mon- eyed corporations to the free banlvs, making it a misdemeanor for them to issue bills or notes on time or interest, was in truth a legislative assertion, binding on the judiciary, that such regulation did not previously apply, and that none, ex- cept the particular one so expressly selected, should there- after apply, to the free banks.-^ § 326. Where authority is given to do a particular thing, and the mode of doing it is prescribed, it is limited to be done in that mode ; aU. other modes are excluded. Such affirmative legislation, and any other which introduces a new rule, imply 1 State V. Showers, 34 Kan. 269. < Id. ; McCartee v. Orphan Asylum, 2 Felt V. Felt, 19 Wis. 19G. 9 Cow. 437 ; ante, § 249. s State V. Trenton, 38 N. J. L. 64. s Curtis v. Leavitt, 17 Barb. 309. INTEKPHKTATION AND CONSTKUCTION. 413 a negative.^ It was required ])Y a statute that " all sales by any sheriff or other officer, by virtue of any execution or other process, shall be made at the court-house of the county, except when personal property too cunilK'rsome to be removed shall be levied on, . . . and, also, except where cattle, hogs, sheep or stock, other than horses and mules, are levied on." These exceptions were held to exclude others, and therefore to render the statute imperative and mandatory .^ A provision in a statute that a failure to give a specified notice shall not in- validate an election does not, however, imply that all the other requirements must be complied with as mandatory conditions.' § 327. Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others ; there is then a natural inference that its application is not intended to be general.* Thus, where a statute enumer- ates the cases in which a married woman may sue, she is limited to those cases.^ An act jn-oviding for levying the poor rate specified coal mines only, and it was therefore held that no other mines were ratable." An act allowed a house and land to be joined together for the purpose of conferring a . qualification ; it was held that two different buildings could not be joined for the same purpose." The enumeration of powers granted, to national banks in the eighth section of the national bank act is exclusive ; being granted the power to loan money on personal security, such banks are precluded from loaning on real estate mortgages ; and mortgages to such banks to secure prior loans being expressly permitted, it was held that none given to secure future loans are valid.^ AYhen a statute specifies the effects of a certain provision, courts will presume that all the effects intended by the law-maker are stated.^ Where an act 1 Smith V. Stevens, 10 Wall. 821; 6 Reg. v. Seale, 5 E. & B. 1. New Haven V. Whitney, 86 Conn. 373 ; 'Dewhurst v. Feilden, 7 M. & G. District T'p of Dubuque v. Dubucjue, 182. 7 Iowa, 263 ; Chil (is V. Smith, 55 Barb. & Fowler v. Scully, 73 Pa. St. 456. 45 ; Rogers v. Kennard, 54 Tex. 30 ; 461. This construction is not disap- Rich V. Rayle, 2 Humph. 404. See proved, but only the government can Intoxicating Liquor Cases, 25 Kan. raise the objection to the practice of 751. the bank. Nat Bank v. Matthews, OS 2 Koch V. Bridges, 45 Miss. 247. U. S. 621 ; Nat Bank v. Wliitney, 103 3 Taylor v. Taylor, 10 ]\Iiun. 107. id. 90. nVilb. on St 190. 9 Perkins v. Thornburgh, 10 CuL SMUler v. Miller, 44 Pa. St 170, 173. 189, 191. 414: INTERPKETATION AND COXSTEUCTION. expressly repeals a specified portion of another act, it follows- that, in the judgment of the legislature, no farther repeal was necessary.^ The repeal of one clause of a section raises a clear implication that nothing else was intended.^ This application of the rule is not very important, for an implied repeal may result from an irreconcilable contradiction, or from other evi- dence of an intent to extend the repeal or a saving from a general repeal* When a revisory act prescribes its operation upon a previous act, it will have no other effect/ A court of a justice of the peace, or other magistrate having only such jurisdiction as is granted by statute, and whose procedure is regulated thereby, has only such jurisdiction as is granted expressly or by necessary implication.'^ And those particulars of procedure which the statutes regulate are to be substan- tially followed, and no others are essential.^ The appellate jurisdiction of the federal supreme court is conferred by the constitution " with such exceptions and under such regulations as congress may make ; " therefore, acts of congress affirming such jurisdiction have always been construed as excepting from it all cases not expressly described and provided for. Hence, when congress enacts that that court shall have ap- pellate jurisdiction over final decisions of the circuit courts in certain cases, the act is held to operate as a negative or excep- tion of such jurisdiction in other cases ; and the repeal of the act necessarily negatives jurisdiction under it of those cases also.^ § 328. An express exception, exemption or saving excludes others.^ Where a general rule has been established by stat- ute with exceptions the court will not curtail the former nor add to the latter by implication.^ Exceptions strengthen the 1 Pursell V. New York Life Ins. etc. 6 Ham v. Steamboat Hamburg, 2 Co. 42 N. Y. Super. Ct. 383, 397. Iowa, 460 ; Scovern v. State, 6 Oliio St 2 State V. Morrow, 26 Mo. 131, 141 ; 288. Crosby v. Patch, 18 Cal. 438. ^McCardle, Ex parte, 7 WaU. 506. " Burnliam v. Onderdonk, 41 N. Y. See Yerger, Ex parte, 8 id. 85. 425. 8 See Reg. v. Mallow Union, 12 Ir. 4 Patterson v. Tatum, 3 Sawyer, 164. C. L. (N. S.) 40. 6Wight V.Warner, 1 Doug. (Mich.) 9Robei-ts v. Yarboro, 41 Tex. 452; 38-i : Beach v. Botsf ord, id. 199 ; Clark Wallace v. Stevens, 74 id. 559. V. Holmes, id. 390 ; Reynolds v. Orvis, 7 Cow. 269. INTEKPKETATION AND CONSTRUCTION. 4:1 S force of a general law, and enumeration weakens it as to things not expressed.^ Power of eminent domain was granted to a> railroad company to enter on land and a|)propriate as much of it, " except timber," as might be necessary for its purposes. " Why an exception," asked Gibson, C. J., " if the word land was not supposed to embrace everything else? The expres- sion of one thing is the exclusion of another ; and consequently no further exception was intended." ^ A statute declared that "all offices, posts of profit, professions, trades and occupa- tions, except the occupation of farmers," " shall be valued and assessed and subject to taxation ; " it was held that the excep- tion of farmers excluded any other, and that the calling of a minister of the gospel was a " profession " and taxable.^ Cer- tain exemptions from distress for taxes being expressed in a statute, by fair imphcation all other property is liable.* When by a declaratory provision the legislature enact that a thing may be done which before that time was lawful, and adds a proviso that nothing therein shall be so construed as to per- mit some matter embraced in the general provision to be done, this is an implied prohibition of such act, though before that time it was lawful.'^ § 329. The maxim does not apply to a statute the language of which may fairl}^ comprehend many different cases, in which some only are expressly mentioned by way of example merely, and not as excluding others of a similar nature. So where the words used by the legislature are general and the statute is only declaratory of the common law, it will extend to other persons and things besides those actually named.^ If there is some special reason for mentioning one, and none for men- tionins: a second which is otherwise within the statute, the absence of any mention of the latter will not exclude it.' The specification in the statute that either of certain acts shall be taken as an appearance does nob exclude other methods of appearing which have that effect on general principles of th& 1 Page V. AUen, 58 Pa. St. 338 ; < Sherwin v. Bugbee, 16 Vt 439^ Countess of Rothes v. Kirkcaldy 445. Water-works Com'rs, L. R 7 Ap. 706. 5 state v. Eskridge, 1 Swan, 413. 2 Brocket v. Ohio, etc. R R Co. 14 <* Broom's Max. 664 ; Scaggs v. Bal- Pa. St 241, 243. timore, etc. R R Co. 10 Md. 268. 3 ]\Iiller V, Kii-kpatrick, 29 Pa. St. ' Brown v. Buzan, 24 Ind. 194. 226, 229, 416 INTERPRETATION AND CONSTRUCTION. common law.^ The mention of one tiling is not exclusive when the context shows a different intention.^ The enactment of a law does not raise a presumption that it did not exist before.* If it be an explicit pro^dsion on a given subject it does not of itself prove that the law was different before ; it may have been made in affirmance of the existing law and to remove doubts.^ § 330. Presiiniptious. — A legal presumption is sometimes conclusive ; then no argument or consideration can be adduced to overturn it. Other presumptions are rebuttable, and good onl}^ until overthrown. A presumption therefore rests upon a matter treated as absolutely true by expedient assumption, or as probably true. The former is taken to be true because there is the highest and best evidence of it, and it is for the pubhc convenience and security that its verity should be abso- lutely assumed. Other matters are presumptively true, but open to question ; so that whoever claims contraiy to it has the burden of argument, as against a presumption of fact he would have the burden of proof. A statute properly authen- ticated in the proper office is conclusively presumed to be duly enacted,^ except where b}^ the fundamental law a question may be raised on extraneous evidence ; ^ that it is enacted from good motives, and no issue to the contrary is permitted.'^ ISTo issue of fact will be tried as to the motives of legislators voting for a law, nor to impeach it on the grounds of fraud or corrup- tion, either at the suit of a private person or the state.^ !N"or 1 Curtis V. McCuUough, 3 Nev. 203. 1 Wright v. Defrees, 8 Ind. 298 ; 2 Mayor v. Davis, 6 Watts & S. People v. Sliepard, 36 N. Y. 285 ; New- 269, 278-9. man. Ex parte, 9 Cal. 502. 3 Nunnally v. Wliite, 3 Met. (Ky.) » McCuUoch v. State, 11 Ind 424, 584. 430-1; Fletcher v. Peck, 6 Cr. 87; ^Montville v. Haughton, 7 Conn. Ex parte McCardle, 7 Wall 506; 543. Flint, etc. Co. v. Woodhull, 25 ]VIich. 5 Kilgore v. INIagee, 85 Pa. St. 401 ; 99 ; Kountze v. Omaha, 5 Dill 443 ; GildeweU v. Martin, US. W. Rep. State v. Hays, 49 Mo. 604; People v. 882 ; 51 Ark. 559 ; State v. Algood, 10 Bigler, 5 Cal. 23 ; Ex parte Newman, 9 S. W. Rep. 310; 87 Tenn. 163; Terri- id. 502; Harpending v. Haight, 39 tory V. O'Connor, 41 N. W. Rep. 746 ; id. 189 ; Slack v. Jacob, 8 W. Va, State V. Robertson, 41 Kan. 200 ; S. C. 612 ; Mayor, etc. v. State, 15 Md. 876 ; 21 Pac. Rep. 382 ; People v. Dunn, 80 Johnson v. Higgms, 3 Mete. (Ky.) Cal. 211. 566 ; People v. Draper, 15 N. Y. 532 ; 6 Ante, §§ 28-41 ; People v. McEl- State v. Fagan, 22 La. Ann. 545 ; roy, 40 N. W. Rep. 750. State v. Cordoza, 5 S. C. 297 ; Hum- INTERPRETATION AND CONSTRUCTION. 417 is the policy, moral justice or expediency of a statute to be considered by the judiciary in determining its validity.' § 331. It is not to be presumed that the legislature have assumed the existence of a fact upon which an act of legisla- tion is based, without evidence. On the contrary, courts are bound to presume that they acted upon good and sufficient evidence, and that presumption is conclusive on the question of the validity of the act. It was so held on an objection to the validity of an act organizing a ncAV county, that it did not contain the population required by the constitution.^ It is presumed, as well on the ground of good faith as on the ground that the legislature would not do a vain thing, that it intends its acts and every part of them to be valid and capable of beinff carried into effect. If a statute, however, is uncon- stitutional it is void, and the courts have power to treat it as a nullity, and will do so, or such parts as are in contravention of the fundamental law.^ But until it is show^n to be plainly and manifestly in conflict with the constitution the presumjv tion of its validity wiU hold good ; aU doubts will be resolved in its favor. Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law.* "Where there is boldt Co. V. Churchill Co. 6 Nev. 30 ; & North Ala, R R Co. v. Morris, 65 Doyle V. Continental Ins. Co. 94 U. S. Ala. 193 ; People v. Bull, 46 N. Y. 68 ; 535; Wright v. Defrees, 8 Ind 298; Sadler t. Langham, 34 Ala, 311 ; State Sunbury, etc R Co. v. Cooper, 33 v. Dombaugh, 20 Ohio St 173 ; Zeig- Pa, St 278. ler v. South, etc. R R Co. 58 Ala. 1 Brewer v. Blougher, 14 Pet 198. 594 ; Commonwealth v. Hitcliings, 5 See Richardson v. CrandaU, 48 N. Y. Gray, 485 ; Newsom v. Cocke. 44 Miss. 356. 353; People v. Comstock, 78 N. Y. 2DeCamp V. Eveland, 19Barb. 81; 356; Louisville, etc. R R Co. v. Farmers', etc. Co. v. Chicago, etc. R County Ct 1 Sneed, 637 ; S. C. 62 Am. R Co. 39 Fed, Eep. 143. Dec. 424 ; Cline v. Greenwood, 10 Ore- 3 Winter v. Jones, 10 Ga. 190. gon, 230 ; Opinion of Justices, 22 Pick. * People V. Briggs, 50 N. Y. 553; at p. 573; Bailey v. Commonwealth, 11 Winter v. Montgomery, 65 Ala. 403 ; Bush, at p. 691 ; Cutts v. Hardee, 38 Slack V. Jacob, 8 W. Va. 626 ; Gal- Ga, 350 ; People t. San Francisco, etc. veston, etc. R R Co. v. Gross, 47 Tex. R R Co. 35 Cal. 606 ; Commissioners v. 428 ; State v. Sorrells. 15 Ark. 664 Griffin, In re, 25 Tex. (Supl't) 623 Commissioners v. Ballard, 69 N. C. 18 Edwai-ds v. Williamson, 70 Ala. 145 Silvers, 22 Ind. 491 ; Morrison v. Springer. 15 Iowa, 304; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 210 ; Inkster v. Carver, 16 Mich. 484 ; <5uartebaum v. State, 79 id. 1 ; South State v. Cooper, 5 Blackf . 258 ; Santo v. 27 418 INTERPRETATION AND CONSTRUCTION. not in tlie law an express limitation to the power to do a cer- tain thing, an inference cannot be made or sustained which wiU defeat the object of the law.^ " Before determining," said Lumpkin, J., " that the constitution has been plainly and palpably infi-acted, incautiously or otherwise, by a co-ordinate branch of the government, the best energies of our minds should be employed in putting such construction upon it as to uphold it, if possible, and carry it into effect, ut res magis valeat quam pereat^ ^ § 332. It is a cardinal rule that all statutes are to be so con- strued as to sustain rather than ignore or defeat them ; to give them operation, if the language will permit, instead of treating them as meaningless : ut res wagis valeat, quam pereat? When- ever an act can be so construed and applied as to avoid con- flict with the constitution, and give it the force of law, this will be done.* Where one construction will make a statute void for conflict with the constitution, and another would render it valid, the latter will be adopted though the former at first view is otherwise the more natural interpretation of the language.^ Every intendment should be made to favor the constitutionality of a statute. A provision as to officers' fees State, 2 Iowa, 165 ; State v. Robinson, 1 13 S. C. 355 ; Tabor v. Cook, 15 Mich. Kan. 17 ; Brown v. Buzan, 24 Ind. 194 ; 322 ; Grand River B. Co. v. Jarvis, 30 Tyler v. People, 8 Mch. 320 ; Mayor, Mich. 308 ; Robinson v. State, 15 Tex. etc. V. State, 15 Md. 376 ; Rich v. Flan- 311 ; Roosevelt v. Godard, 52 Barb. ders, 39 N. H. 304 ; Speer v. School 533 ; Ogden v. Saunders, 12 Wheat Durectors, 50 Pa. St. 150 ; Neal v. 270 ; Speer v. School Directors, 50 Pa. Roberts, 1 Dev. & Batt. L. 81 ; Deering St. 150 ; Brown v. Bixzan, 24 Ind. 194 ; V. York, etc. R. R. Co. 31 Me. 172. State v. Intoxicating Liquors, 19 Atl. 1 Cook V. Com'rs, 6 McLean, 112. Rep. 913 ; New Orleans v. Salamander 2 Winter v, Jones, 10 Ga. 190. Ins. Co. 25 La. Ann. 650 ; State v. 3 Howard Association's Appeal, 70 Fields, 2 Bailey, 554 ; Winter v. Jones, Pa. St. 344. 10 Ga. 190 ; Read v. Levy, 30 Tex. 738. * Newland v. Marsh, 19 HL 376 ; A law passed when it conflicted with Roosevelt v. Godard, 52 Barb. 533 ; the constitution in force, but in an- ColweU v. May, etc. Co. 19 N. J. Eq. ticipation of the adoption of a new 245. constitution wliich had been prepared 5Slackv, Jacobs, 8 W.Va, 612; New- and was awaiting the vote for its land V, Marsh, 19 IlL 384 ; Bridges v. adoption- It, being in accord with Shallcross, 6 W. Va. 574 ; Marshall v. the new constitution which was sub- Grimes, 41 Miss. 27 ; Eyre v. Jacob, sequently adopted, was held vahd. 14 Gratt 422 ; Commonwealth v. Galveston, etc. R R. Co. v. Gross, 47 Gaines, 2 Va. Cas. 172 ; Bull v. Rowe, Tex. 428. INTERPRETATION AND CONSTRUCTION. 419 should be construed as appljing onl}- to future officers rather than that the act should be set aside as infringing a prohibition of any law increasing fees of officers during their term of office.' When the language of a statute is clear and unambiguous a meaning different from that which the words plainly imply cannot be judicially sanctioned. Even when a court is con- vinced, from considerations outside of the language of the statute, that the legislature really meant and intended some- thing not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free fi'om ambiguity.^ The correct rule of construction undoubtedly is, that wher6 a law is clearly ex- pressed the court should adhere to the literal expression with- out regard to consequences ; then every construction derived from a consideration of its reason and spirit should be dis- carded.'' It is nevertheless presumed that the legislature do not intend absurdity, inconvenience or injustice. While courts are not at liberty to set aside a statutory provision on this presumption, where the intention is plain and unmis- takable, they will presume, when the words are not precise and clear, that some exception or qualification was intended to avoid such consequences; and such construction will be adopted as appears most reasonable and best suited to accom- plish the objects of the statute.* § 333. It is presumed that the legislature is acquainted with the law ; that it has a knowledge of the state of it upon the subjects upon which it legislates ; ^ that it is informed of previ- ous legislation ^ and the construction it has received.'' It nec- essarily results from the rules of construction with reference 1 Kerrigan v. Force, 68 N. Y. 381. Cook, 60 Wis. 133 ; Philadelphia v. 2 Smith V. State, 66 Md. 315 ; Wood- Ridge Ave. R'y Co. 102 Pa. St 190, 196. bury V. Berry. 18 Ohio St. 456 ; Brad- » Reg. v. Watford„9 Q. B. at p. 635 ; bury V. Wagenhorst, 54 Pa. St 180. Jones v. Brown, 2 Ex. 332 ; Phelan v. 3 Bennett v. Worthington, 24 Ark. Johnson, 7 Ir. L. at p. 535. 487 ; Sneed v. Commonwealth, 6 Dana, ^ Bradbury v. Wagenhorst 54 Pa. 338. St 180, 182 ; Tuxbury's Appeal, 67 Me. ♦Commonwealth v. Kimball, 24 267; Howard Association's Appeal, Pick. 366, 370 ; Perry County v. Jef- 70 Pa. St 344. ferson Co. 94 IlL 214, 220; United "O'Bymes v. State, 51 Ala. 25, 27; States V. Kirby. 7 Wall 486 ; Gates v. Banks, Ex parte, 28 id. 28 ; Bloodgood National Bank, 100 U. S. 239 ; Foley v. Grasey, 31 id- 575. V. Bom-g, 10 La. Ann. 129 ; Gilkey v. 420 INTERPRETATION AND CONSTRUCTION. to the common law that the legislature is presumed to be fa- miliar with it.^ It has been held that the legislature is pre- sumed to know the existence of the difference between the practice in bankruptcy and the practice in chancery ; that the onus is clearly thrown on those who assert the contrary.- It has been suggested that this is more an expedient conclusion than a presumption of fact.^ A judicial construction of a statute of long standing has force as a precedent from the presumption that the legislature is aware of it, and its silence a tacit admission that such construction is correct/ The re- enactment of a statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the stat- ute as thus construed.^ So, where the terms of a statute which has received a judicial construction are used in a later statute, whether passed by the legislature of the same state or country, or by that of another, that construction is to be given to the later statute ; ^ for if it were intended to exclude any known construction of a previous statute, the legal presump- tion is that its terms would be so changed as to effectuate that intention.^ It is presumed that the legislature does not intend to make any change in the existing law beyond what is expressly de- clared,^ Hence repeals by implication are recognized only when there is an unavoidable contradiction.** And for a like reason statu,tes in derogation of the common law are strictly 1 See Jones v. Dexter, 8 Fla 276, O'Byrnes v. State, 51 Ala. 25 ; Tom- 286. son V. Ward, 1 N. H. 9 ; Mooers v. 2Kellock's Case, L. E. 3 Ch. at pp. Bunker, 29 N. H. 420 ; Frink v. Pond, 781, 782. 46 id. 125 ; Hakes v. Peck, 30 How. Pr. 3 Wilb. on St. 13. 104; Bank of Mobile v. Meagher, 33 * Phelan v, Johnson, supra. Ala. 622 ; Ee Murphy, 23 N. J. L. 180 ; 6Cota V. Eoss, 66 Me. 161; Tux- Matthews, Ex parte, 52 Ala. 51; bury's Appeal, 67 Me. 267. Knight v. Freeholders of Ocean Co. 6 Commonwealth v. Hartnett, 3 10 Cent. Eep. 653 ; 49 N. J. L. 485 ; Gray, 450. State v. Swope, 7 Ind. 91 ; La Sella ' Id. ; 6 Dane Abr. 613 ; Kirkpatrick v. \Vhitfield, 12 La. Ann. 81 ; Gould V. Gibson's Ex'r, 2 Brock. 388 ; Pen- v. Wise, 18 Nev. 253 ; McKenzie v. nock V. Dialogue, 2 Pet. 18; Adams State, 11 Ark. 594. V. Field, 21 Vt. 266 ; Whitcomb v. 8 Graham v. Van Wyck, 14 Barb. Rood, 20 id. 52 ; Eutland v. Mendon, 531. 1 Pick. 154 ; Myrick v. Hasey, 27 Me. » Ante, § 138. 17; The Abbotsford, 98 U. S. 440; INTERPRETATION AND CONSTRUCTION. 421 construed unless controlled by some other rule of construc- tion.' It is presumed, in the construction of general words or dubious provisions, that there is no intention to depart from any established policy of the law ; ^ to innovate upon funda- mental principles ; ^ nor to oust the jurisdiction of the superior courts/ or establish new jurisdictions, especially exclusive ju- risdictions.* There is also a presumption against any inten- tion to surrender public rights,^ or to affect the government^ The legislature is presumed to intend, except as the statute otherwise provides, that enactments be construed by the com- mon law, and enforced according to its procedure.^ When courts are empowered to render judgments or give rehef in a particular class of cases as they shall deem just, or according to their discretion, this power is expounded and limited by the principles of the common law ; it is legal justice they are to administer, a legal discretion they are to exercise ; ® so when any special duties are imposed or new jurisdiction granted. " Wherever such discretionary authority," said Woodward, P. J., " is conferred upon them in reference to subjects outside of their peculiar duties, it is always presumed by the legisla- 1 Post, § 400. 2Minet v. Leman, 20 Beav. at p. 278. See Overseei-s v. Smith, 2 S. & R 363 ; Small v. Small, 18 AtL Rep. 497. 3 Ante, % 395. * Post, g 400. * Hersom's Case, 39 Me. 476 ; Custer Co. V. Yellowstone Co. 6 Mont 39; Pitman v. Flint, 10 Pick. 504. •> State V. Kinne, 41 N. H. 238; Jersey City v. Hudson, 13 N. J. Eq. 430 ; Harrison v. Yoimg, 9 Ga. 359 ; Bennett v. The Auditor, 2 W. Va. 441. T Willion V. Berkley, 1 Plowd. 236 ; Attorney-General v. Donaldson, 10 ]VL & W. 117 ; Huggins v. Bambridge, Willes, 241 ; Alexander v. State, 56 Ga, 478 ; Rex v. Wright, 1 Ad. & EL 437 ; United States v. Greene, 4 Mason, 427 ; United States v. Hewes. Crabbe, 307 ; United States v. Hoar, 2 Mason. 311 ; Jones v. Tatham, 20 Pa, St 398 ; Cole V. Wliite Co. 32 Ark. 45 ; Stough- ton V. Baker, 4 Mass. 522 ; State v. Mil- bm-n, 9 Gill, 105 ; Martin v. State, 24 Tex. 61 ; State v. Garland, 7 Ired. L. 48: State v. Kinne, 41 N. H. 238; Green v. United States, 9 WalL 655. 8 Booth V. Kitchen, 7 Him, 260, 264 ; Colbum V. Swett, 1 Met 232 ; Elder V. Bemis, 2 id. 599 ; State v. Fletcher, 5 N. H. 257 ; Gearhart v. Dixon, 1 Pa, St 224 ; State v. Parker, 91 N. C. 650 : Graffins v. Commonwealth, 3 Pen. & W. 502; Edge v. Common- wealth, 7 Pa. St 275; Philhps v. Commonwealth, 44 id. 197; Com- monwealth T. Reiter, 78 id. 161 ; Oak- land T'p V. Martin, 104 id. 303 ; "Wood Mowing M. Co. v. Caldwell, 54 Ind. 270, 276. a Ex parte Bamett L. R. 4 Ck 351 ; Stevens v. Ross, 1 Cal. 94; Lash v. Von Neida, 109 Pa, St 207 ; Doherty V. AUman, L. R 3 App. Cas. 709, 728. 422 INTEKPEETATION AND CONS""^UCTION. tnre that it will be exercised in accordance with judicial usages, and upon uniform and established rules. The safety of the community, as well as the usefulness and independence of the judiciary, absolutely demands that all the duties of the court shall be defined either by statute or by practice." * And when a discretionary power is granted to an officer or special tribunal, it is intended and presumed to be a reasonable dis- cretion. As Lord Denman said, " not a wild but a sound dis- cretion, and to be confined within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself." * § 334. Implications and incidents. — Statutes are not, and cannot be, framed to express in words their entire meaning. They are framed like other compositions to be interpreted by the common learning of those to whom they are addressed ; especially by the common law, in which it becomes at once en- veloped, and which interprets its implications and defines its incidental consequences. That which is implied in a statute is as much a part of it as what is expressed;^ In case of a newly created felony it must necessarily possess all the inci- dents which appertain to felony by the rules and principles of the common law ; therefore, by necessary implication, all the procurers and abettors of it are principals or accessories, upon the same circumstances which will make such in a felony by the common law.^ The same peremptory challenges are allowed.^ Where a common-law offense has been adopted by statute it is adopted with all its common-law elements, and in an indictment for such an offense all the common-law require- ments must be observed,® A statute of New York legalized all marriages where one or both of the parties were slaves and declared their issue legitimate. By a proviso it was not to 1 Re Report of Coirnty Auditors, 1 Haight v. Holley, 3 Wend. 258 ; "Woodw. (Pa.) 270, 272. See Seely v. Rogers v. Kneeland, 10 Wend. 218 ; State, 11 Ohio, 501 ; 12 id. 496. Fox v. Phelps, 20 Wend. 447 ; United 2 Wilson V. Rastall, 4 T. R 757 ; States v. Babbit, 1 Black, 55, 61. Andrews v. King, 77 Me. 224 ; Ham * Coalheavers' Case, 1 Leach, C. C. V. Board of Police, 142 Mass. 90 ; Reg. 64, 66. V. Sykes, L. R. 1 Q. B. Div. 52; Smith, ^Gray v. Reg. 11 CI. & Fin. 427, Ex parte, 3 id. 874. 460. s Hanchett v. Weber, 1 7 lU. App. 1 14, « State v. Absence, 4 Porter, C97. 117 ; Koning v. Bayard, 2 Paine, 251 ; ' INTERPRETATION AND CONSTRUCTION. 423 operate as an emancipation. The rule was recognized that when both the parents were slaves the children would follow the condition of the mother, and it was held that a fortiori it ought to be so where the mother is free and the father a slave. It was held that the general laAv of laron and feme did not apply ; by such a marriage Sifree wife was not subject to the custody and control of a slave husband ; the husband was not emancipated nor the wife enslaved by such a marriage ; that the condition of the children of such a marriage followed the condition of the mother.' A statute gave a right of ac- tion on the sheriff's official bond to any person aggrieved by his misconduct or that of his deputy. The requisite proof being made, the law which furnished this remedy supphes the necessary privity by giving the right of action.^ § 335. The law annexes by implication the incident to all public laws that they be noticed ex officio by the courts.' But private statutes will not be so taken notice of;* statutes ap- plying to private rights do not affect the crown or govern- ment.^ "Where a statute, with a view of affording protection to the public, imposes a penalty for doing an act, it thereby prohibits it and renders it illegal.^ Thus, a statute which im- poses a penalty on a person who exercises or occupies himself as a surgeon without being licensed, is a prohibition of such practice, as it disables the person not admitted to recover for services as a surgeon.^ § 336. Every contract made for or about any matter or thing which is prohibited or made unlawful by statute is void, though the statute does not mention that it shall be so, but 1 Overseers, etc. v. Overseers, etc. 20 pressly named. Bac. Abr. Stat I. C. ; John. 1, 3. Gladney v. Deavors, 11 Ga. 79. 2 Governor v. Roby, 34 Ga, 176. * D'Allex v. Jones, 2 Jiir. (N. S.) 979 ; ^Ante, §§ 191, 293 ; 2 Kent's Com. Bartlet v. Yiner, Skin. 322 : O'Brien v. 460. Dillon, 9 Ir. C. L. (N. S.) 318 ; Stephens 4 Id. ; Dwarris, 471. v. Robinson, 2 Cromp. & J. 209 ; Cope » United States v, Hewes, Crabbe, v. Rowlands. 2 M. & W. 149. 307 ; Jones v. Tatham, 20 Pa. St 398 : ^ D'Allex v. Jones. 2 Jur. (N. S.) 979 Divine v. Harvie, 7 T. B. Mon. 443. Niemeyer v. ^Vright, 75 Va. 239 The state is boimd by public laws for Bensley v. Bignold. 5 B. & Aid. 335 *he promotion of learning, the ad- The Pioneer. Deady, 72; Holt v. vancement of religion, and the sup- Green. 73 Pa. St 198 ; Taylor v. Crow- port of the poor, although not ex- land Gas. Co. 10 Ex. 293. 424 INTERPKETATION AND CONSTRUCTION. only inflicts a penalty upon the offender.^ Obedience to the laws is enforced by declaring illegal contracts void ; by refus- ino- to aid either party in the enforcement of them.^ When a statute is for revenue purposes, or is a regulation of a traffic or business, and not to prohibit it altogether, whether a con- tract which violates the statute shall be treated as wholly void will depend on the intention expressed in the particular statute. Unless the contrary intention is manifest the con- tract will be valid.-^ All cases to which a statute cannot con- stitutionally apply will be excepted by necessary impHcation, however absolute and express the provision may be.* A necessary implication means not natural necessity, but so strong a probability of an intention that one contrary to that 1 O'Brien v. DiUon, supra; Grif- fith V. Wells, 3 Denio, 226 ; Bach v. Smith, 2 Wash. Ty. 145 ; Bancroft v. Dmnas, 21 Vt. 450 ; BoutweU v. Fos- ter, 24 Vt. 485; Hook v. Gray, 6 Barb. 398 ; Gray v. Hook, 4 N. Y. 449; Tylee v. Yates, 3 Barb. 222; Barton v. Port J. etc. Plk. R Co. 17 Barb. 397 ; Pennington v. Townsend, 7 Wend. 276 ; Nellis v. Clark, 4 HiU, 424; De Begnis v. Armistead, 10 Biag. 107 ; Cope v. Rowlands, 2 M. & W. 149; Springfield Bank v. Mer- rick, 14 Mass. 322 ; HaUett v. Novion, 14 John. 273 ; Seidenbender v. Charles, 4 S. & R. 159. 2 ArmsU-ong v. Toler, 11 Wheat 258 ; Bloom V. Richards, 2 Oliio St. 387 ; Steers v. Lasliley, 6 T. R. 61 ; Cannan V. Bryce, 3 B. & Aid. 179 ; Aubert v. Maze, 2 B. & P. 371 ; ^tna Ins. Co. V. Harvey, 11 Wis. 394 ; WiUiams v. Cheney, 3 Gray, 215 ; Jones v. Smith, id. 500 ; Towle v. Larrabee, 26 Me. 464; Pattee v. Greely, 13 Met. 284; Lovejoy v. Wliipple, 18 Vt. 379; O'Donnell v. Sweeney, 5 Ala. 467 ; Fennell v. Ridler, 5 B. & C. 406. But see Columbus Ins. Co. v. Walsh, 18 Mo. 229; Clark v. Middleton, 19 id. 53. 3 Harris v. Runnells, 12 How. 79 ; Tyson v. Thomas, McCleL & Y. 119 ; Law V. Hodson, 11 East, 300 ; Brook- lyn L. Ins. Co. V. Bledsoe, 52 Ala. 538 ; CundeU v, Dawson, 4 C. B. 376 ; Little V. Poole, 9 B. & C. 192 ; Niemeyer v. Wright, 75 Va. 239 ; Conley v. Sims, 71 Ga. 161 ; Johnson v. Hudson, 11 East, 180 ; Brown v. Duncan. 10 B. & C. 93 ; King v. Birmingham, 8 B. & C. 29; Milford v. Worcester, 7 Mass. 48 ; Parton v. Hervey, 1 Gray, 119; Bly v. National Bank, 79 Pa, St. 453 ; Swan v. Blair, 3 CL & F. at p. 632; Vioing v. Bricker, 14 Ohio St. 331 ; Pangbom v. Westlake, 36 Iowa, 546 ; Bemis v. Becker, 1 Kan. 226; Lindsey v. Rutherford, 17 B. Mon. 245 ; Sti'ong v. Darling, 9 Ohio, 201 ; Pratt v. Short. 79 N. Y. 437 ; Bailey v. Harris. 12 Q. B. 905 ; Wat- rous V. Blah-, 32 Iowa, 58 ; Fergusson V. Norman, 5 Bing. N. C. 76 ; Fowler V. Scully, 72 Pa St. 456; Foster v. Oxford, etc. R. R. Co. 13 C. B. 200; Chouteau v. Allen, 70 Mo. 290 ; How- ell V. Stewart, 54 id. 400 ; Babcock V. Goodrich, 47 CaL 488; United States V. Martin, 94 U. S. 400 ; O'Hai-e V. National Bank, 77 Pa, St 96. * Opinion of Justices, 41 N. H. 553. INTERPRKTATION AND CONSTEUCTION. 4^& which is imputed to the party using the language cannot bo .supposed.^ § ,i'.M. Wliereverthe provision of a statute is general every- thing which is necessary to make such provision effectual is sup[)lied by the common law - and by implication. A grant of lands from the sovereign authority of a state to individuals to be possessed and enjoyed by them in a corporate capacity confers a right to hold in that character.* A legislative grant made to an alien by necessary implication confers the right to receive and enjoy without prejudice on account of alienage.* Trustees, under an act of parliament for dividing and inclos- ing a common, being intended to continue and hold perma- nently, were thereby constituted a corporation by implication.^ A right to recover expenses incurred for the public good, under certain conditions, was granted by statute to the " local authority" authorized to act in the execution of the statute^ it was held the action for that purpose might be prosecuted by that collective statutory designation, though not made a corporation.^ § 338. A statute of Michigan " relative to the rights of mar- ried women," in brief and comprehensive words, gave *o the wife the full and absolute control of her real and personal es- tate, with power to contract, sell, transfer, mortgage, convey^ devise and bequeath the same, in the same manner, and with the like effect, as if she were unmarried. This statute had the effect to abolish or abrogate the prospective estate by the curtesy.' A statute declaring that property which accrues to a married woman shall be " owned and enjoyed " as her sep- arate property will authorize her, if the property be merchan- dise, to trade. It is the nature of merchandise to be sold and exchanged. When, therefore, the statute authorizes married women to own, use and enjoy such property, it legalizes trade by them — makes them merchants.^ So she is liable for repairs 1 Wilkinson v. Adam, 1 Ves. & B. < Goodell v. Jackson, supra; Jack- 4GG ; State v. Union Bank, 9 Yerg. 164. son v. Lervey, 5 Cow. 397. 2 6 Bac. Abr. 369 ; Booth v. Kitchen, '^Newpoii; M. Trustees, Ex parte, 7 Hun. 260, 264 ; Livingston v. Har- 16 Sini. 346. ris, 11 Wend 329, 340. ''Mills v. Scott, L. R. 8 Q. B. 496. » North Hempstead v. Hempstead, ' Tong v. Marvin, 15 Mich. 60, 2 Wend. 109; Goodell v, Jackson, sWieman v. Anderson, 42 Pa. St» 20 Jolm, 706. 311, 317. 426 INTERPKETATION AND CONSTEUCTION. to her separate estate, made at her request and necessary for its preservation and enjoyment.^ The statute provides that an}'^ married woman might convey real estate " in the same manner, and with the like effect, as if she were unmarried." This implied a repeal as to married women and their separate estates of the general statute requiinug ii private examination apart from their husbands upon their acknowledgment of the execution of conveyances.- A power given to a married woman to carry on a trade or business on her separate account in- cludes the power to borrow money, and to purchase on credit property, real or personal, necessary or convenient, for the purpose of commencing, as well as the power to create debts in the prosecution of the trade or business after it has been estabhshed.^ Where a married woman who has a separate estate and carries on business in relation thereto, keeping a bank account in her own name, draws a check upon such ac- count payable at a future day, on which she borrows money, the law presumes, in the absence of evidence to the contrary, that such money was borrowed for the benefit of her separate estate, and holds her liable therefor.* § 339. A statute of ISTew York gave an appeal to " every person who shall think himself aggrieved by any judgment or order of any justice or justices," etc. Where a defendant, served with a summons which was to show cause, failed to appear and judgment went against him by default, it was treated as equivalent to a judgment by confession, and there- fore he was not entitled to consider himself aggrieved and to appeal.^ An association was granted the privilege of con- structing the Albany basin, and it was made a condition that they should erect the necessary bridges for the pubhc accom- modation. The grant was construed to imply an obligation to keep the bridges in repair.^ A statute providing for par- iLippincott v. Hopkins, 57 Pa. St Zum v. Noedel, 113 Pa. St 336; 328 ; Lippencott v. Leeds, 77 id. 420. Bovard v. Kettering, 101 id. 181 ; '^ Blood V. Hvimphrey, 17 Barb. 660 ; Morrison v. Thistle. 67 Mo. 596. Andi-ews v. Shaffer, 12 How. Pr. 441 ; * Nash v. Mitchell, 8 Hun, 471. Yale v. Dederer, 18 N. Y. 271 ; WUes s Adams v. Oaks, 20 John. 282 ; V. Peck, 26 id. 47 ; Richardson v. Adams v. Foster, id. 452. See Schuster Pulver, 63 Barb. 67. v. Supervisors, 27 Minn. 253 ; Vander- 3 Frecking v. RoUand, 53 N. Y. 422 ; stolph v. Boylan, 50 Mich. 330. <::ha,pman v. Foster, 6 Allen, 136. See «* People t. Cooper, 6 HUl, 516. INTEKPKETATION AND CONSTRUCTION. 427 tition and requiring the plaintiff in bis complaint to give a statement of all the rights and titles of the parties, directed service on all the parties concerned, and the guardians of such as were minors. As it was deemed that minors were not competent to make a statement of the rights and titles of the parties, it was held that the statute did not apply Avhere all the owners were minors.^ § 34:0. It is a principle or truism that for every wrong there is afforded by the law an appropriate remed3^ Upon every statute made for the redress of any injury, mischief or griev- ance, an action lies by the party aggrieved, either by the express words of the statute or by implication.- In other words, if a statute which creates a right does not indicate ex- pressly the remedy, one is implied, and resort may be had to the common law, or the general method of obtaining rehef which has displaced or supplemented the common law.* A statute provided a penalty for the commission of a fraud, which was " to be sued for in any court of competent jurisdiction for the benefit of the person or persons, etc., upon whom such fraud shall be committed." It was implied the suit should be brought in the name of the defrauded party.'' § 341. Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied.^ It is a weU established principle that statutes containing grants of power are to be construed so as to in- clude the authority to do aU things necessary to accomplish the object of the grant.** The grant of an express power car- ries with it by necessary implication every other power nec- essary and proper to the execution of the power expressly 1 Gallatian v. Cunningham, 8 Cow. 3 Winn v. Ficklen, 54 Ga. 529. See 361. post, § 399. 2 Van Hook v. Wliitlock, 2 Edw. 304, * Thompson v. Howe 46 Barb. 287. 311 ; BiiUard v. BeU, 1 Mason, 290. To 5 i Kent's Com. 464 ; Stief v. Hart, give a reasonable effect to the word 1 N. Y. 20, per Jewett, C. J. ; Mitchell " from " in reference to the subject- v. ^Maxwell, 2 Fla. 594 ; Re Neagle, 39 matter, it was held proper to consider Fed. Rep. 833; S. C. 135 U. S. 1 ; the extrinsic situation, and if the ob- Commonwealth v. Conj-ngham, 66 ject of the act could not otherwise be Pa. St. 99 ; AVithei-spoon v. Dvmlap, 1 accomplished it should be construed McCord, 546. as inclusive. Smith v. Heimer, 7 "^ People v. Eddy, 57 Barb. 593; Barb. 416. Mayor, etc. v. Sands, 105 N. Y. 210, 218. 428 INTERPRETATION AND CONSTRUCTION. o-ranted.^ Where the law commands anything to be done it authorizes the performance of whatever may be Jiecessary for executing its commands.^ When a justice of the peace is re- quu-ed to issue a warrant for the collection of costs made on a hearing before him, it is implied that he has power to decide on the amount.' When an existing jurisdiction is enlarged so as to include new cases, it is not necessary to declare that the old provisions shall apply to the new cases. If, for example, the jurisdiction of justices of the peace should be extended to actions of slander, the existing provisions for a review by eer- tiorari and appeal would apply to cases coming under the en- purposes. The latter may be regarded as a means or instrumentality of ac- complisliing the former. To secure tliis object it is assumed to be neces- saiy for the city authorities to go be- yond the Umits of the city to procure the necessary supply, and, in doing so, they must come in contact and deal with private or other interests in no way connected with the city. They must take private property, pass over and use pubhc highways, streets, and, perhaps, railroads. The authority to secure the right, al- though it may involve details in no other way connected with the city, and may affect other persons or cor- porations and their property, does not constitute it an independent sub- ject. The power to supply villages ^vith water by conti-act is incidental to the main purpose, and may serve as a means of attaining it. The au- thority conferred upon the tinistees to levy the tax was indispensable to render the conti-act effectual. The power to sell involves the power to buy and pay for, and taxation was the only mode wliich could be adopted for that purpose." People v. Briggs, 50 N. Y. 553. See OdeU v. De Witt, 53 N. Y. 643. -' Foliamb's Case, 5 Coke, 116. 3 Voorhees v. Martin, 12 Barb. 508. 1 1 Kent's Com. 404. The constitu- tiou of New York declares " no pri- vate or local bill which may be passed shall embrace more than one subject, and that shall be expressed in the title." The validity of an act '• to amend the several acts in relation to the city of Rochester" was ques- tioned on the grovmd of embracing a multipUcity of subjects. The prin- cipal point rehed upon was that the authority conferred upon the water commissionei-s, by one section of the act. to contract with the trustees of villages tlu-ough wliich the water to the city might be conducted to sup- ply such villages with water, and authorizing the trustees to levy the annual expense with their annual tax, was, one or both of them, an inde- pendent subject not embraced in the title. " It is not denied," said Church, C. J., " that pro%Tsions for furnishing the city with a supply of water relate to the legitimate functions of a city government, and are properly in- cluded in such a bill as tliis. That object, it seems, was secm-ed by an independent bill to which these pro- visions are amendments. The pur- pose of both is to furnish the city with water for the extmguishing of fires and other pubUc uses, and also to furnish the inhabitants of the city with pme water for domestic INTERPRETATION AND CONSTRUCTION. 429 larged as well as arising under the former jurisdiction of the court.' It is an established rule that where an action founded upon one statute is given by a subsequent statute in a new case, everything annexed to the action by the first statute is likewise given.^ The power to grant temporary alimony is incidental to the divorce jurisdiction.'' If an act merely directs a particular measure to be taken, it must be understood as re- ferring its execution to the proper existing agents, and to annex, by implication, all the ordinary means for carrying the measure into effect." Where an inferior court is empowered to grant an injunction, it has power to enforce its observance by punishing disobedience ; such power being essential to afford relict by injunction.* A statute authorizing a magistrate to examine such witnesses as might be brought before him au- thorizes him to issue subpoenas for them, and to compel their attendance by the usual process of the court.^ § 342. Where the statutory judicial jurisdiction in a case of contested election is specially confined to certain specified courts and is not a method of redress in every case in which an alleged illegal election has occurred, it can only be exer- cised with reference to the grounds of contest enumerated in the act ; otherwise jurisdiction would have been given in gen- eral terms.'' Where the jurisdiction given is general it in- cludes authority to decide all matters and questions involved in the contest. " It may determine which contestant is elected, or if, from fraud or any other circumstances, it be of opinion that there has been no legal election, it may so adjudge, and declai'e that the office in question is vacant." ^ Courts having inherently the power of revising the proceedings of all infe- rior jurisdictions, may in the exercise of that power correct er- 1 People V. Commissioners, 3 Hill, Matter of Oath Before Justices, 12 599. Coke, 130. 2 Baltimore, etc. R R Co. v. Wilson, ' ^ EUingham v. Mount, 43 N. J. L. 2 W. Va. 528, 556. 4Tft. See Anderson v. Levely, 58 Md. 3 Goss V. Goss, 29 Ga. 109 ; McGee 192. T. McGee, 10 id. 477. ^ Anderson t. Levely, supra; Handy * United States v. WyngaU, 5 Hill, v. Hopkins, 59 Md. 157. See People 10. \. Chapin. 105 N. Y. 309, as to a gen- s Martin, Ex parte, L. R 4 Q. B. Div. eral power given to the comptroller 512. to cancel tax sales and refund the •People V. Hicks, 15 Barb. 160; money to the purchaser. 430 INTERPRETATION AND CONSTRUCTION. rors on the face of their proceedings, but not rejudge their judgments on the merits. This correctional power extends no further than to keep such inferior tribunals within the limits of then* jurisdiction and to compel them to exercise it with regularity''. ^ A statute conferred jurisdiction upon the supreme court to review the report of commissioners of estimate and assessment for opening a street. It was held that the power was conferred to be exercised by it as a court, and not as a tribunal of inferior jurisdiction created by statute, or by its justices or commissioners appointed by the legislature. Gardner, J. : " The powers incident to its general jurisdiction, so far as apphcable, at once attached to the new subject. In administering this law, as every other, the court could require the services of its officers, punish for contempt, issue attach- ments, use the buildings appropriated to the ordinary business of the court, and set aside the proceedings on sufficient cause." ^ Where the judgment of an appellate court on certim^ari is made final by statute, this finality extends to the award of costs on the certiorari, and execution for the same in the case removed.^ If the law give a discretion to do or not to do a particular thiug in the trial of a cause in court, without specifying by whom it is to be exercised, the judge, who is the expounder of the law and the controller of power, is, by general intendment, the depositary of that discretion.* Courts of record have in- herent power to make orders or general rules not contraven- ing the law to regulate their proceedings in the exercise of their jurisdiction; and this power maybe granted them by statutes which vest in them a new jurisdiction.^ It is not competent for the superior courts to make a rule restricting 1 Carpenter's Case, 14 Pa St. 486. dolph, 3 Binn. 377 ; Walker v. Ducros, 2 Matter of Canal and Walker Sts. 12 18 La, Ann, 703 ; Vanatta v. Ander- N. Y. 406. son, 8 Bin. 417 ; People v. McClellao, ■1 Palmer v. Lacock, 107 Pa. St 346 ; 31 Cal 101 ; Kennedy v. Cunningham, SUvergood v. Storrick, 1 Watts, 533. 2 Met (Ky.) 538 ; David v. ^tna Ins. * Caldwell v. State. 34 Ga. 18, 19. Co. 9 Iowa, 45 ; People v. Chew, 6 5 Anderson v. Leveley, 58 Md. 193 ; CaL 636 ; Lynch v. State, 9 Ind. 541 ; FuUerton v. Bank of U. S. 1 Pet 604 ; Sellars v. Carpenter, 27 Me. 497 ; Vail Brooks V. Boswell, 34 Mo. 474 ; Boas v. McKernan, 31 Ind. 431 ; Gist v. V. Nagle, 3 S. & R. 353; Snyder v. Drakely, 2 Gill, 330; Seymour v. Bauchman, 8 id. 336 ; Deming v. Phillips, etc. Co. 7 Biss. 460 ; Texas Foster, 43 N. H. 165 ; Suckley v. Rotch- Land Co. v. Williams, 48 Tex. 602. ford, 12 Gratt 60; BaiTy v. Ran- INTERPRETATION AND CONSTRUCTION. 431 the discretion of the trial court on matters as to which that dis- cretion at common law is unlimited, as in the recall of a wit- ness.^ The authority to punish for contempt is granted as a necessary incident to every tribunal exercising jurisdiction as a court.2 If a statute assumes jurisdiction to exist and regu- lates its exercise it will confer it.* • § 343. When a statute gives a right or imposes a duty, it also confers by implication the power necessary to make the right available or to discharge the duty ; hence the acts which directed that the board of police should take deeds of trust on real estate from the borrowers from the common school fund entitled them to make the right available by purchasing the land when sold for the payment of the debt due the school fund and to resell the same for the collection of the debt.* Where a power is granted and the mode of its exercise not prescribed, it will be implied that it is nevertheless to be ex- ercised.' By a declaratory provision the legislature enacted that a thing might be done which before that time was un- lawful, and added a proviso that nothing therein contained should be so construed as to permit some matter embraced in the general provision to be done ; this was held as an implied prohibition of the excepted act, though before that time it was lawful.® The power given to a sheriif to sell on execution the interest of a pledgor in goods pledged incidentally or by im- plication authorized him to take the goods out of the hands of the pledgee.'^ The legislature increased the salaries of cer- tain judicial officers of a municipal corporation, which salaries were a charge on such corporation. Though there was no present fund to pay the same, the liability existing, there was held to be an implied power to create one, and that the city is subject in the ordinary modes of having legal liabilities enforced.* Power given to a municipal corporation to receive 1 De Lorme v. Pease, 19 Ga, 220. Lapp, 26 Pa St 99 ; Perry v. Mitchell, 2 United States v. New Bedford 5 Denio, 537. Bridge, 1 Woodb. & M. 401 ; State v. 3 state v. mUer, 23 Wis. 634. Morrill, 16 Ark. 384 ; Mariner v. Dyer, * Gaines v. Paris, 39 IHisa 403, 2 Me. 165 ; Yates v. Lansing, 9 Jolin. 5 People v. Eddy, 57 Barb. 593. 395 ; Randall v. Pryor, 4 Oliio, 424 ; 6 State v. Eskridge, 1 Swan, 413. Gates V. McDaniel, 3 Port 356 ; Ltn- " Stieflf v. Hart 1 N. Y. 20, ing V. Bentham, 2 Bay, 1 ; Albright v, 8 Green v. Mayor, etc. 2 Hilt, 203, 310. 432 INTEEPRETATION AND CONSTRUCTION. a grant of lands for the purpose of lajdng or widening streets includes in it the power to remove buildings.^ § 344. When the legislature gives power to a public body to do anything of a public character, the legislature means also to give to such body all rights without which the power would become wholly unavailable, although such meaning can- not be implied in relation to circumstances arising accidentally only. In the power to lay sewers is implied the right as against the land-owner of subjacent support.^ "When a munici- pality is created to further certain objects of general concern, and there is given to it general powers to be used to that end, the legislature must be held to have intended to confer all power at any time needful thereto. From the general power to take lands to further the public health results the power, whenever it is necessary so to do, to take lands held and used for other prior public purposes.^ The creation of a munici- pal corporation includes a grant of a new power to make by- laws or ordinances for the government of the inhabitants, and to enforce them.^ The power to make an addition to a public building is included in the grant of power to erect and repair such building. A construction cannot be given to the laws conferring power to levy a tax for the " erection of public buildings," which would limit the exercise of the power to the erection of new houses, when the object of the law could even be attained at less expense by an addition to a pubhc house already built.^ A railroad company was granted by statute aright to cross another railway by a bridge to be erected for that purpose ; under this grant it was held that the grantee had the right for that purpose to place temporary scaffolding on the property of the other party, and to do all- other acts necessary for the enjoyment of the princij)al right of crossing.^ Power to sue for debts due to the estate is implied in the au- thority given to administrators ad colligendum, " to secure and collect the said property [i. e., of the estate], whether it be goods, chattels, debts or credits, etc. ; it was held amply suffi- 1 Patchin v. Brooklyn, 2 Wend. 377. " State v. Young, 3 Kan. 445. 2 In re Corporation of Dudley, L. R. s Brown v. Graham, 58 Tex. 254 8 Q. B. Div. 93. « Clarence R'y Co. v. Great North 3 Matter of the City of Buffalo, 68 of Eng. etc. R'y Co. 13 M. & W. 706, K Y. 167, 172. 721. LNTERPEETATION AND CONSTRUCTION. 433 cient to authorize the bringing of suits if necessary for the pur- pose of executing the power.' Overseers of the poor of a town, being pul)lic agents and trustees of it in respect to the power, have necessarily, without express authority from the legislature, a capacity to sue commensurate with the public trusts and duties.- § 345. If a corporation is organized for a business which implies the necessity to raise money, the capacity to make notes and securities usual in such cases will be implied. Every cor- poration is by implication possessed of the power to employ the appropriate means to accomplish its chartered purpose.^ A municipal corporation may exercise, as incident to the pur- pose of its creation, such powers as will enable it fully to dis- charge the duties devolving on. it.' It has the jiower, and it results from its corporate existence as a town, to erect a build- ing suitable for the accommodation of oflficers and records, and for the preservation of its necessary property.* The right to erect such a structure is incidental to the powers expressly granted, or essential to carry out the objects of the corpora- tion.^ Where the charter of a corporation authorizes it to pur- chase land for a specified purpose, in the absence of evidence it wiU be presumed that any land purchased by it was acquired for the purpose authorized by the charter.^ If the taking effect of a statute depends on subsequent acts of executive officers, directed by the enactment to be done, it will be presumed that such acts when due have been performed.^ There is a like implication wherever any fact must precede an enactment.' Where legislation depends on facts to be ascertained by the legislature, the declaration of such facts in the act is taken as conclusive. Thus, where the legislature determines that a public improvement will be a benefit to the adjacent prop- erty, and that the expenses of making the same shall be paid « Ventress v. Smith, 10 Pet 161. * Van Sicklen v. Burlington, 27 Vt - Overseers of Pittstown v. Over- 70, 76. seers of Pittsburgh, 18 Jolin. 407, 4ia * Clarke v. Brookfield, 81 3Io. 503, n Moraw. on Corp. § 350; WiU- 511. iamsport v. Commonwealth, 84 Pa. * State v. Haynes, 73 Ma 377. St 487 ; Slark v. Ilighgiifce Archway " Mallett v. Sinijison, 94 N. C. 37. Co. 5 Taunt 792 ; Brougliton v. :\Ian- -s stiue v. Bennett, 13 Minn. 153 ; Chester Water Works Co, 3 B. & AIJ. State v. Dunning, 9 InA 20. 1, 12. 9 State V. Noyes, 47 Me. 185). 28 434: INTEKPKETATION AND CONSTKUCTION". by the owners of such property, the courts have nothing to do with the correctness or incorrectness of the determina- tion, but must assume the fact to be as the legislature as- sumes 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 pro- vide 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 circum- stance 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 notwith- standing 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. ^ Johuson v. Joliet, etc. R R. Co. 23 2 Gentile v. State, 29 Ind 409. IlL 202. CHAPTER XIV. STRICT CONSTRUCTION. t5 346. Literal and strict construction compared. 8 370. 349. Strict construction of penal statutes. 371. 356. Not construed so strictly as to 373. defeat intention. 378. 358. What statutes are penal. 387. 361. Revenue laws. 362. Statutes which impose burden 390. of taxation. 395. 365. Statutes delegating the taxing 398. power. 400. 866. Statutes against common right. 403 368. Statutes of limitations. 407. 369. Limitations as to new trials and appeals. Statutes interfering with legit- imate industries, etc. Statutes creating liability for death by negligence. Civil damage acts. Grants of titles and franchises. Statutes for exercise of emi- nent domain. Statutes granting power. Jurisdiction of courts. Statutory rights. Statutes in derogation of the common law. Interpretation clauses. Statu te.s affecting statutory policy. § 346. Literal interpretation and strict construction com- pared. — Statutes are seldom written in such precise and cate- gorical terms as to point out inclusively and exclusively all their intended applications. General and more or less flexible lan- guage is used. It is construed with reference to the subject of the act, its purpose ; and popular words are read and under- stood according to their common acceptation.^ And if tech- nical 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 lib- erally construed. The statutes which are thus classified for strict or liberal construction include a large part of the legis- > De Veaux v. De Veaux, 1 Strob. ner v. Real Estate Bank, 5 Ark. 536 ; Eq. 283 ; ante, ^g 250-25G. ]\Ierchants' Bank v. Cook, 4 Pick. 405 ; 2 Weill v. Kenfield, 54 Cal. Ill; 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- 436 STRICT CONSTKTJCTION. lation of every state. The same language may have a broader scope and effect for remedial purposes than under the restrain- ino- influence of considerations which induce strict construe- tion. In the case of Bones v. Booth ^ construction was given to the phrase " a single sitting " of a loser at play. The stat- ute gave him a right for a hmited time to recover his losses above 101. at " a single sitting;" and gave an informer, after- wards, 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 ex- pression; 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 con- sequences flowing from the operation of the statute or its in- fraction ; 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 recipro- cal influence of all relevant principles of interpretation.^ A remedial statute, not clear as to any proposed application, ad- mits 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 interpre- tation.' 12W. 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, 88 Ark. 519; Watervhet T. Paper AVorks, 30 Conn. 461. Co. v. McKean, 6 Hill, 616 ; Melody * Post, %% 419-444. V- Reab, 4 Mass. 473 ; Schooner Entcr- 5 Austin V. State, 71 Ga, 595 ; Bettis prise, 1 Paine, 33. STKIOT CONSTRUCTION. 437 § 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 rem- edy, 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 in- cluded 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. 13., 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 legislar ture." ^ In another case ^ 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 Uberally, 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, hke 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 wliich are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equita- ble interpretation, to exonerate parties plainly within their scope." * Strict construction is not the exact converse of lib eral 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 re- garded as including anything which is not within their letter as weU as their spirit, which is not clearly and intelligibly de- scribed 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. 2 2 H. & C. 431, 514. Ex. lOG ; 3 H. & N. 769. 8 Nicholson v. Fields, 31 L. J. Ex. » United States v. Winn, 3 Sumn. 235 ; 7 H. & N. 810, 817. 209. 4 Attorney-General v. Sillem, 2 H. 6 Wilberf orce, St L. 246; Britt v. 438 STRICT CONSTEUOTION. § 349. Strict construction of penal statutes. — Tlie penal law is intended to regulate the conduct of people of aU grades of intelligence within the scope of responsibility. It is there- fore essential to its justice and humanity that it be expressed in language which they can easily comprehend ; that it be held obhgatory only in the sense in which all can and will under- stand 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 interpreta- tion j^ and every provision intended for the benefit of the accused, for the same humane reason, receives the most favor- able construction.' " The rule that penal laws are to be con- strued strictly is perhaps not much less old than construction Robinson, L. R. 5 C. P. 513, 514 ; East India Interest, 3 Bing. 196 ; Parting- ton V. Attorney-General, L. R. 4 H. L. 122. In Nicholson v. Fields, 7 H. & N. 817, PoUock, C. B., said: "I ad- mit that the common distinction be- tween penal and remedial acts, viz., that the one is to be cousti'ued strictly, the other hberaUy, ought not to be ei-ased from the mind of a judge; yet whatever be the act, be it penal, and certainly if remedial, we ought always to look for its ti'ue construc- tion. In that respect there ought to be no distinction between a penal and a remedial statute. If the remedial statute does not extend to the par- ticular matter imder consideration, we have no power to legislate so as to extend it. Undoubtedly we are thus far bound to a strict construction in a penal statute, that if tliere be a fair and reasonable doubt, we must act as in revenue cases, where the rule is, that the subject is not to be taxed without clear words for that purpose." iBish. Writ L. §§ 193, 109; Com- monwealth V. Fisher, 17 Mass. 49; C!onm[ionwealth v. SneUing, 4 Binn. 379; United States v. Moulton, 5 Mason, 537 ; State v. WDcox, 3 Yerg. 278; Schooner Enterprise, 1 Paine, 32 ; Randolph v. State, 9 Tex. 521 ; Chicago, etc. R. R Co. v. People, 67 HL 11. 2 Id. 3 Commonwealth v. Keniston, 5 Pick. 420 ; United States v. Ragsdale, Hempst 497 ; Heward v. State, 13 Snx. & M. 261 ; Sneed v. Commonwealth, 6 Dana, 338 ; DuU v. People, 4 Denio, 91. Spencer, J., said ia Sickles v. Sharp, 13 John. 497: "The rule that penal statutes are to be construed strictly when they act on the offender and inflict a penalty admits of some qaahfication. In the construction of statutes of this description it has been often held that the plana and mani- fest iatention of the legislature ought to be regarded. A statute wliich is penal as to some persons, provided it is beneficial generally, may be equi- tably construed." State v. Canton, 43 Mo. 48, 52. Forfeitures are not favored, and courts iuchne against them. Where a statute may be con- strued so as to give a penalty, and also so as to withhold the penalty, it will be given the latter consta-uctioiL Renf roe v. Colquitt, 74 Ga. 619. 8TKI0T CONSTRUCTION. 439 itself. It is founded on the tenderness of the law for the rights of individuals ; and on the plain principle that the power of punishment is vested in the legislature, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment. It is said that, not- withstanding this rule, the intention of the law-maker must govern, in the construction of penal as well as other statutes. Thi.s is i rue. But this is not a new independent rule which subverts ihe old. It is a modification of the ancient maxim, and amounts to this : that though penal laws are to be con- strued strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.' The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation, or in that sense in which the legislature has obvi- ously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is no room for construction. The case must be a very strong one indeed which would justify a court in departing from the plain mean- ing of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason and mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because of equal atrocity, or of a kindred character, with those which are enu- merated." 2 § 350. A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within iWaltonv. State, 62 Ala. 197; Huff- 2 United States v. WUtberger, 5 man v. State, 29 id. 40; Crosby v. Wheat. 76, 95. See Jenkinson v. Hawthorn, 25 id. 221 ; Holland v. Tliomas, 4 T. R 665 ; Rex v. Handy, State, 554 Ga. 455 ; Keller v. State, 11 6 id. 286 ; Wame v. Varley, id. 443 ; Md. 525 ; United States v. Athens Martin v. Ford, 5 id. 101 ; Fletcher v. Armory, 35 Ga, 344 ; American Fur Lord Sondes, 3 Bing. 580 ; Hinter- Co. V. United States, 2 Pet. 367 ; Tlie mister v. First Nat Bank, 64 N. Y. Schooner Harriet, 1 Story, 251; The 212; United SUites v. Huggett, 40 Schooner Industry, 1 GalL 114 Fed. Rep. 636. 4^0 STRICT CONSTRUCTION. the letter, thougli within the reason and policy, of the law,' Although a case mav be within the mischief intended to be remedied by a penal act, that fact affords no sufficient reason for construing it so as to extend it to cases not within the cor- rect and ordinary meaning of its language.^ And as a general rule where a penalty is affixed by a statute to an act or omis- sion, such penalty is the only punishment or loss incurred by the guilty party.* To constitute the offense the act must be both Avithin the letter and spirit of the statute defining it.* Penal statutes can never be extended by mere impli- cation to either persons or things not expressly brought within their terms.^ Where an act prohibited the sale of in- toxicating liquors in the vicinity of certain manufacturing establishments in three named counties, it was held to have application only to such establishments as were then in being.*^ It is a principle in the construction of statutes that the legis- lature does not intend the infliction of punishment, or to inter- fere with the liberty or rights of the citizen, or to grant exceptional powers, privileges or exemptions by doubtful lan- guage; but will in such cases express itself clearly, and in- tends no more than it so expresses.' Abbott, J., said : " It would be extremely wrong that a man should, by a long train of conclusions, be reasoned into a penalty when the express words of the act of parliament do not authorize it." ^ This strict- ness does not exclude accessories before the fact, though not 1 Id. ; State v. Lovell, 23 Iowa, 304 ; Robinson, L. R. 5 C. P. at pp. 513, People V. Peacock, 98 III 172 ; Lair 514 ; Dewey v. Goodcuough, 5G Barb. V. KiUmer, 25 N. J. L. 522 ; Merrill 54 ; East India Interest, 3 Bing. at V. Melcliior, 30 Miss. 516 ; Foote v. Van- p. 196. zandt, 34 id. 40 ; Andrews v. United & People v. Peacock, supra; Hall v. States. 2 Story, 202 ; Shaw v. Clark, State, 20 Oliio, 8 ; Grooms v. Harmon, 49 Mich. 384 ; Hall v. State, 20 Oliio, 59 Ala. 510 ; Southwestern E. R Co. 7, 16 ; Van Buren v. Wyhe, 56 Mich. v. Cohen, 49 Ga. 627 ; United States 501 ; Graff v. Evans, L. R. 8 Q. B. v. Wkin, 3 Sunm. 209 ; The Schooner Div. 377 ; Haynie v. State, 32 Miss. Harriet, 1 Story, 351 ; State v, Gra- 400. ham, 38 Ark. 519 ; Foster v. Rhoads, 3 United States v. Sheldon, 3 Wheat 19 John. 191. 119. 6 Hall V. State, 30 Ohio, 8 ; United 3 In re International Patent P. etc. States v. Pavd, 6 Pet 141. Co. 37 L. T. (N. S.) 351 ; L. R. 6 Ch. " 4 Inst 332. Div. 556. ^ Rex v. Bond, 1 B. & Aid. at p. 393. * Laii' V. Killmer, supra; Britt v. 8TKICT CONSTRUCTION. 441 named in the statute,^ Kor does it preclude the application of common sense to the terms made use of in the statute to avoid an absurdity which the legislature ought not to be pre- sumed to have intended.'- Thougli a statute may be of a class which must be construed strictly, it is nevertheless to be so construed as to effect the intention of the legislature. Effect is to be given to the plain meaning of the language, and strict construction is to be applied only where the effect is : easonably open to question.* The rule that penal statutes are to be construed strictly is not violated by allowing their words to have their full meaning, or even the more extended of two meanings, where such construction better harmonizes with the context.'* § 351. A few cases will be given illustrative of the principle of strict construction : Driving cattle was held not within the true moaning of an act prohibiting their transportation.^ A statute which provides a penalty for resisting an officer "in serving or attempting to execute any legal writ, rule, order or process whatever," does not embrace the case of resisting an officer who was attempting to arrest, without any warrant, writ or process of any kind, a person who was breaking the public peace.^ A penalty provided against a mortgagee for failing to discharge a paid mortgage cannot be extended to the assignee of a mortgage.^ When either of two construc- tions can be given to a statute and one of them involves a for- feiture the other is to be preferred.^ In a penal act the word " and " cannot be read as " or." ^ The expression " this act " cannot be taken to include another act in pari mate7'ia}^ The words " domestic distilled spirits " in an inspection law con- taining a penalty or forfeiture were construed to mean spirits distilled within the state, and this as matter of law, not to be 1 Walton V, State, 63 Ala. 197. 6 state v. Lovell, 23 Iowa, 304. 2 Coramonwealth v. Loring, 8 Pick. ' Grooms v. Harmon, 59 Ala. 510. 373 ; House t. House, 5 Har. & J. 125 ; « Vatel's 20th Rule of Constrution ; Smith V. State, 17 Tex. 191. Farmers', etc. Nat Bank v. Bearing, 3 Wilson V. Wentworth, 25 N. H. 91 U.S. 29,35; Renfroe v. Colquitt, 247. 74 Ga. G19. * United States v. Hartwell, 6 Walk '■» Cuitod States v. Ten Cases of 385. Shawls, 2 Paine, 162. » United States V.Sheldon, 3 Wheat i«Rex v. Trustees, etc. 5 Ad. & E. 119. 563. 442 STKICT CONSTKUCTION. modified by any proof of usage giving it a broader scope. It was held also not to include spirits rectified there but manu- factured in another state.^ A statute prescribing a penalty for " any officer taking greater or other fees " than are ex- pressed in the fee-bill was held not applicable to any person out of office for services while in office.- The word " sale " in a penal statute does not include an exchange? A statute mak- ing punishable " the offense of insurrection or an attempt at insurrection " does not by these words apply to an attempt to incite insurrection.* In the construction of an act imposing penalties upon gambling, it was held that half-pennies tossed up at a game called toss did not come within the words " in- struments of gaming ; " ^ that deposit of half a sovereign as a bet on a dog race w^as not " betting with a coin as an instru- ment of gaming at a game of chance." ^ A statute forbade an alderman to be clerk to the justices in any borough, and for- bade the clerk to the justices in any borough to be directly or indirectly interested in any prosecution. A penalty by the same section was imposed on any person, being an alderman, w^ho should act as clerk to the justices of a borough or should otherwise offend in the premises. The defendant was clerk to the justices, and had done the prohibited act ; he had been in- terested in a prosecution ; but it was held that the penalty clause only applied to those who are in the offices there speci- fied, among which the clerk to the justices was not included. The court adhered to the grammatical construction. Cole- ridge, J., said : " There are two distinct prohibitory provisos, and it is quite obvious that the intention was to annex the penalty to the violation of each. But this cannot be done if a grammatical construction be given to the words used. The only way in which it can be done is by inserting . . . the \s ords ' any person who ' before ' shall otherwise offend,' But I never heard that it was allowable to insert words for the purpose of extending a penal clause." ' 1 Commonwealth v. Giltinan, 64 5 "VVatson v, Martin, 34 L. J. M. C. Pa. St. 100, 50, -' Gallagher v. Neal, 3 P. & W. 183. enkst v. Molesbury, L. R 6 Q. B, 3 Gunter v, Leckey, 30 A]a. 591. 130. < Gibson v. State, 38 Ga. 571. • " Coe v. Lawrance, 1 E. & B. 516. 8TKI0T CON8TEU0TI0N. 4A'6 § 352. A statute provided that " all notes or conveyances whatever, in which the consideration shall be for any money or goods won by playing at cards, dice, or any other game whatever, or by betting on the sides or hands of such as are gaming, or by any betting or gaming whatever, shall be void and of no effect." ^ ... In Shaw v. Clark ^ the question was whether a deal in " options " was within the statute. The court by Cooley, J., said : " In common speech gaming is ap- pUed to play with stakes at cards, dice or other contrivance, to see which shall be the winner and which the loser, A con- tract for the purchase of options is not gaming within this meaning of the term. In form it is the purchase and sale of a commodity to be delivered at a future day, and it only resem- bles gaming in that the parties take a chance of gain or loss with- out intending that the sale which they nominally make shall ever become a legitimate business transaction. Betting in common speech means the putting of a certain sum of money or other val- uable thing at stake on the happening or not happening of some uncertain event. A purchase of options is not betting in this sense, though it resembles it in the fact that risks are taken on uncertain events, and that the tendency to those engaged in it is demoralizing. The statute in terms forbids betting and gaming, and it contains penal provisions for the punishment of those who engage in them ; but penal statutes are not en- larged by intendment, and acts not expressly forbidden by them cannot be reached merely because of their resemblance, or because they may be equally and in the same way demoraliz- ing and injurious." * Those who contend that a penalty may be inflicted must show that the words of the act distinctly ex- press that under the circumstances it has been incurred. They must fail if the words are merely equally capable of a construc- tion that would, and one that would not, inflict the penalty.^ § 353. There is a like close interpretation whether, as in the l)receding instances, the provision relates to the elements of the offense, or concerns the penalty or the procedure.^ Where 1 Sec. 1996, Comp. Laws of Midi. L. R. 9 C. P. 7 ; The Gauiit!et> L. R 4 2 49 Mich. 384. P. C. 191. 3 See Smith v. State, 17 Tex. 191 ; » Rex v. Hymen. 7 T. R 536 ; Wal- State V. Rorie, 23 Ark. 726. wm v. Smith, 1 Salk. 177 ; Partridge < Brett, J., in Dickenson V. Fletcher, v. ]N ay lor, Cro. Ehz. 480; Common- wealth V. Keniston, 5 Pick. 420. 444 STKICT CONSTBtJOTION. the penalty for a certain offense was that the convict should lose his right hand, he could not be adjudged to lose his left hand, the right hand having before been cut off.^ An act was silent on the place of imprisonment, and as between different places at which, under proper conditions, imprisonment could be adjudged, it was held that it must be at the place which will be the lesser punishment rather than the severer — with those convicted of misdemeanors, rather than with those con- victed of higher crimes.^ Nor can a statute be extended be- yond its grammatical sense or natural meaning on any plea of the failure of justice.^' If the statute is ambiguous, the con- struction adopted should be that most favorable to the ac- cused.* Courts are authorized to inquire into and carry out the manifest intention of the legislature ; but if there is such an ambiguity in a penal statute as to leave reasonable doubts of its meaning, it is the duty of a court not to inflict the penalty.* intention by mere conjectiu-e, but it is to collect it from the object which "the legislatm-e had in view, and the expressions used which should be competent and proper to apprise the commimity at large of the rule which it is intended to prescribe for their government. For although igno- rance of the existence of a law be no excuse for its violation, yet, if this ignorance be the consequence of an ambiguous or obscure phraseology^, some indulgence is due to it. It should be a principle of every crim- inal code, and certainly belongs to ours, that no person be adjudged gmlty of an offense, imless it be created and promulgated in terms wliich leave no reasonable doubt of their meaning. If it be the duty of a jury to acquit where such doubts ex- ist concerning a fact, it is equally in- cumbent on a judge not to apply the law to a case when he labors under the same uncertainty as to the mean- ing of the legislature." Wright v. BoUes Woodenware Co. 50 Wis. 167 ; United States v. One Himdred Bar- 1 Dwarris, 634. 2 Horner v. State, 1 Oregon, 267. 3 Remmiugton v. State, 1 Oregon, 281. * The Schooner Enterprise, 1 I*aine, 32; Commonwealth v. Martin, 17 Mass. 359. * In Schooner Enterprise, 1 Paine, 32, Livingston, J., said: "The act, and particularly that part of it under wliich a forfeiture is claimed, is highly penal, and must therefore be construed as such laws always have been and ever should be. But while it is said that penal statutes are to re- ceive a strict consti'uction, nothing more (S meant than that they shall not, by what may be thought their spirit or equity, be extended to of- fenses other than those wliich are specially and clearly described and provided for. A court is not, therefore. . . . precluded from inquiring into the intention of the legislature. How- ever clearly a law may be expressed, this must ever, more or less, be a matter of inquiiy. A court is not, however, permitted to arrive at tliis STEICT C0N8TKUCTI0N. 445 § 354. A penal statute should be construed to cany out the obvious intention of the legislature, and be confined to that. Every case must come not only within its letter but Avithin its spirit and purpose; but it should be given a ra- tional construction. There must generally be such an act or omission as implies an actual and conscious infraction of duty. A law which condemns to capital punishment one who strikes his father would not be held applicable to one who has shaken and struck his father to arouse him from a lethargic stupor.' Where the master of a steamboat was subjected to a penalty for failing to dehver any letter which should be left " in his care or within his power," it was held that there must be knowledge of this fact, and mere possession by the clerk of the boat was not enough.^ If notice is required to impose a duty, the neglect of which is punishable, it must be actual notice, and personally served.^ Although to an absolute and sweeping prohibition of the sale of intoxicating liquors, the courts may not imply an exception when sold as a prescription for medi- cine ; * it was said by the court in one case : * " AVe are not to be supposed as intimating that physicians and druggists would be prohibited under such a statute . . . from the hojia fide use of spirituous liquors in the necessary compounding of medicines manufactured, mixed or sold by them. This would not be within the evils intended to be remedied by such pro- hibitory enactments, nor even within the strict letter of the statute." § 355. In the very recent case of Kegina v. Tolson " is, from the standpoint of English decisions, a very exhaustive and in- structive discussion of the principle or maxim, actus non facii reum^ nisi mens sit rea. The statute of 2-i and 25 Vict. ch. 100, sec. r.T, provides in these words : " Whoever, being married, shall marry any other person during the hfe of the former hus- band or wife, shall be guilty of felony, punishable with penal rels of Spirits, 2 Abb. (U. S.) 305 ; * Commonwealth v. Kimball, 24 United States v. Fitty-sLx Barrels of Pick. 366 ; State v. Broun, 31 Me. Whiskj', 1 id. 93 ; United States v. Gar- 522 ; Woods v. State, 36 Ark. 36 ; 38 relson, 42 Fed. Rep. 22. Am. R. 22 ; Cai-son v. State, 69 Ala, 1 Smith's Cora. § 448. 235. 2 United States v. Beaty, Hempst. 5 Carson v. State, supra. 487. " 6 L. R. 23 Q. B. Div. 168 (1889) ; S. C. 8 St Louis V. Goebel, 32 Mo. 205. 40 Alb. L. J. 250. 44.6 STRICT CONSTRUCTION servitude for not more than seven years, or imprisonment with or -svithout hard labor for not more than two years," with a proviso that " nothing in this act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be livino- within that time." The husband of the defendant de- serted her the year following their marriage. She and her father subsequently made inquiries about him, and learned from his brother and from general report that he had been lost at sea. She married again five years after his desertion, and the question was considered whether a belief in good faith and on reasonable grounds that her husband was dead would be a good defense against the charge of bigamy in contracting the second marriage. It was decided in the afiirmative. Wills, J., said : " There is no doubt that under the circumstances the prisoner falls within the very words of the statute. She, being married, married another person during the life of her former husband, and, when she did so, he had not been continually absent from her for the space of seven years last past. It is, however, undoubtedly a principle of English crimmal law, that, ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent. 'It is a principle of natural justice and of our law,' says Lord Kenyon, C. J., ' that actus nonfacit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime.' ^ The guilty intent is not necessarily that of intending the very act or thing done, and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of two classes. It may be \.o do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may co-exist with respect to the same deed." - 1 Fowler v. Padget, 7 T. R 509, 514. subject-matter and may be so framed 2 Wills, J., said, in continuing his as to make an act criminal whether opinion : " Although prima facie and there has been any intention to breat as a general rule there must be a the law or otherwise to do wrong or mind at fault before there can be a not. There is a large body of mu- crime, it is not an inflexible rule, nicipal law in the present day which and a statute may relate to such a is so conceived By-laws are con- STRICT CONSTKUOTION. 447 Cave, J., said in the same case : " At common la^v an hon- est and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. This doctrine is embodied in the somewhat uncouth maxim, 'achis nonfacit reum, nisi mens sit rea^ Honest and reasonable mistake stands in fact on the same footing as ab- sence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. ... So far as I am aware it has never been suggested that these exceptions do not equally apply to the case of statutory offenses unless they are excluded expressl}^ or by necessary implication." ^ Btantly made regulating the width of thorotigMares, the height of build- ings, the thickness of walls, and a variety of other matters necessary for the general weKare, health or convenience, and such by-laws are enforced by the sanction of penalties, and the breach of them constitutes an offense and is a criminal matter. In such cases it would, generally speaking, be no answer to proceed- ings for infringement of the by-laws that the person committing it had hona fide made an accidental miscal- culation or an eiToneous measure- ment The acts are properly con- strued as imposing the penalty when the act is done, no matter how inno- cently, and in such a case the sub- stance of the enactment is that a man shall take care that the statutory di- rection is obeyed, that if he fails to do so he does it as his peril "Whether an enactment is to be construed in this sense, or with the quaUfication ordinarily imported into the construction of criminal statutes, that there must be a guilty mind, must, I think, depend upon the sub- ject-matter of the enactment, and the various cncumstances that may make the one consti'uction or the other reasonable or vmreasonable." Citing and comparing Reg. v. Sleep, L. & C. 44 ; 30 L. J, (M. C.) 170 ; Hearne V. Garton, 2 E. & E. 66; Taylor v. Newman, 4 B. & S. 89 ; Watkins v. Major, L. R 10 C. P. 662; Reg. v. Bishop, 5 Q. B. Div. 259; Bowman V. Blyth, 7 E. & B. 26, 43; Foster's Crown Law (3d ed.) App. 439, 440; Rex V. Banks, 1 Esp. 144 ; Fowler v. Padget, 7 T. R 509 ; Reg. v. Willmett, 3 Cox C. C. 281 ; Reg. v. Cohen, 8 id. 41 ; Reg. v. O'Brien, 15 L. T. (N. S.) 419 ; Reg. v. Turner, 9 Cox C. C. 145 ; Reg. V. Horton, 11 id. 6 TO; Reg. v. Gibbons, 12 id. 237 ; Reg. v. Prince, L. R. 2 C. C. R 154 ; Reg. v. Bennett, 14 Cox C. C. 45 ; Reg. v. Moore, 13 id. 544. 1 In Reg. v. Tolson, supra, Stephen, J., said: "The principle involved appears to me, when fully considered, to amount to no more than this. The full definition of every crime con- tains expressly or by impUcation a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not comniitted ; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Crimes are in the present day much more accurately defined by statute or othei-wise tiian tliey formerly were. The mental ele- ment of most crimes is marked by one us STRICT CONSTRUCTION. A statute which gave treble damages for conversion of logs or kimber in certain cases, though broad enough to cover any conversion, was restrictively interpreted in pursuance of of tlie words ' maliciously,' ' fraudu- lently,' negligently,' or ' knowingly ;' but it is the general, I might, I think, say the invariable, practice of the legislature to leave unexpressed some of the mental elements of crime. In aJI cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion, are as- snmed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. . . . "With regard to knowledge of fact, the law, perhaps, is not quite so clear, but it may, I think, be main- tamed, that in every case knowledge of fact is to some extent an element of criminality as much as competent age and sanity. To take an extreme ilkisti-ation, can any one doubt that a man who, though he might be per- fectly sane, committed what would otherwise be a crime, in a state of somnambuUsm, be entitled to be ac- quitted? And why is this? Simply because he would not know what he was doing. A mrdtitude of iUusti-a- tions might be given. I will mention one or two glaring ones. Levet's Case, 1 Hale, 474, decides that a man who, making a thrust with a sword at a place where, upon reasonable grounds, he suijposed a burglar to be, killed a person who was not a burglar, was held not to be a felon, though he might be (it was not decided that he was) guilty of killing per infortu- nium, or possibly se defendendo, wliich then involved certain forfeit- ures. In other words, he was in the same situation, as far as regarded the homicide, as if he had killed a burg- lar. In the decision of the judges in Macnaghten's Case, 10 C. & F. 200, it is stated that if, imder an insane de- lusion, one man killed another, and if the delusion was such that it would, if ti'ue, justify or excuse the kiUing, the homicide would be justi- fied or excused. This coxild hardly be if the same were not law as to a sane mistake. A bona fide claim of right excuses larceny, and many of the ofl:enses against the malicious mis- chief act. Apart, indeed, from the present case, I tliink it may be laid down as a general rule that an alleged ofl:ender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offensa I am imable to suggest any real exception to this rule, nor has one ever been suggestetl to ma A very learned person sug- gested to me the following case : A constable, reasonably beheving a man to have committed a murder, is justi- fied in killing liim to prevent Ms es- cape ; but if he had not been a con- stable he would not have been so justified, but would have been guilty of manslaughter. Tliis is quite true, but the mistake in the second case would be not only a mistake of fact, but a mistake of law on the part of the homicide in supposing that he, a private person, was justified in using as much violence as a pubUc officer, whose duty is to arrest, if possible, a person reasonably suspected of mur- der. The supposed homicide would be in the same position as if his mis- take of fact had been ti-ue; that is, he would be guilty, not of murder, but of manslaughter." See State v. Bartiett, 30 jMa 133 ; The Brig Will- iam Gray, 1 Paine, 16 ; United SUites V, Pearce, 2 McLean, 14 ; 1 Bish. C. L. g§ 226, 227. STKICT CONSTEUCTION. 449 the assumed intention of the legislature to punish only wilful wrong-doing. It was held that " the evidence must satisfy the jury that the conversion was not only against the consent of the plaintiff, but was attended by circumstances of bad faith and intentional wrong in order to bring it within the penal provision." ^ A statute ^ imposed a penalty on any person who should take, kill or have in his possession any partridges between the 1st of February and the 1st of September. It was held that a person having partridges in his possession between those two dates was not Uable to the penalty if the partridges had been killed before the earhest day named, as otherwise a man might be hable to a penalty if he lawfully killed a partridge on the last moment of February 1, but had it in his possession on the first moment of February 2.^ So where penalties were imposed upon bakers who used certain ingredients in bread,* upon persons sending dangerous goods by railway,^ or being in possession of stores which bore the admiralty mark,^ it was held that knowledge was essential to constitute any of these offenses.^ A statute imposed a pen- alty on any voter receiving a reward " to give his vote " at an election. It was held that this penalty was not incurred by one who received a reward after he had voted.^ A statute pro- viding that a seaman should forfeit his wages by deserting his ship was held not to apply to one who was treated with such cruelty as justified him in refusing to remain on board.* § 356. Courts will uot by strict construction defeat tlie in- tention of the law-maker. — Where the intent is plain it will be carried into effect. It wiU not be evaded or defeated on the principle of strict construction. The principle will be adhered to that the case must be brought within the letter and spirit of the enactment, but the intent of a criminal statute may be i Cohn V. Neeves, 40 Wis. 393 ; « Rex v. Sleep, L. & C. 44 Corn- Wallace V. Fincli, 24 Mich. 255 ; State pare Lee v. Simpson, 3 C. B. 871 ; Hex V. Baker, 47 IVIiss. 95 ; Malioon v. v. Woodrow, 15 M. & W. 404 ; Reg. v. Greenfield, 52 id 434, Hai-vey, L. R 1 C. C. 284; Reg. v. 2 2 Geo. IIL, cli. 19, as amended by Dean, 12 M. & W. 39. 39 Geo. ni., cli. 34 ' Wilb. on St. 254 8 Simpson v. Unwin, 3 B. & Ad « Huntingtower v. Gardiner, 1 B, & 134; WUb. on St 253. C. 297. Edward v. Ti-evellick, 4 E. & B. SHearne v. Gai'ton, 2 E. & E. 66. 59. 29 450 STRICT CONSTRUCTION. ascertained from a consideration of all its provisions, and tLat- intent will be carried into effect. Such statutes will not bo construed so strictly as to defeat the obvious intention.' The principle of strict construction does not allow a court to make that an offense which is not such by legislative enactment ; but this does not exclude the application of common sense to the terms made use of in an act in order to avoid an absurdity which the legislature ought not to be presumed to have in- tended.2 This was said of a statute providing for the punish- ment of any person who should knowingly and wilfully receive, conceal or dispose of any human body or the remains thereof, which shall have been dug up, removed or carried away, etc., "not being authorized by the selectmen of any town in this commonwealth." The court said : " Taken strictly without ref- erence to the subject-matter and the manifest intention and ob- ject of the legislature, it would appear that in order to sustain an indictment on the statute it must be averred and proved that the board of health or selectmen of no town in the common- wealth had given license to do the act complained of. The consequence would be, as oral testimony alone can be admitted on criminal trials of facts provable by witnesses, that the offi- cers of every town to the number of three or four hundred must be summoned to give their personal attendance in the court where such prosecution is pending. We hazard nothing in saying that the legislature never intended such an absurd- ity." It was held that " any town " had reference to the town within which the offense was committed. In the confiscation act of congress of 1861 property used in aiding or promoting the rebellion was declared lawful subject of prize and capture Avherever f ound.^ In United States v. Athens Armory * the court say : " Limit the term ' prize ' or ' capture ' as here em- ployed to a strict technical import and the statute fails of its object and becomes an absurdity." Therefore, having in view that the purpose of the act was to make it "• one of the means to suppress the rebellion," these words were held not to limit the operation of the act to property taken at sea.^ A camp- 1 Ante, § 349. * 2 Abb. (U. S.) 129, 135. 2 Commonwealth v. Loring, 8 Pick. * United States v. Athens Armory, . 373. 35 Ga. 344 812U. S. Stats. atL.p. 319. STKICT CONSTEUOTION. 451 meeting or a temporary encampment by a denomination of Christians for the purpose of religious exercises is " a place set apart for the worship of Almighty God " within the intent of an act prohibiting the retailing of spirituous liquors within a certain distance of such a place.^ " Trade " has been held to in- clude " cod-fishery." 2 To persuade a slave to leave was held " to aid him to depart." » A vessel was held " at sea " when she was without the limits of any port or harbor on the sea coast.* But under a statute which provides a penalty " if any person shall wilfully or maliciously kill, maim, beat or wound any horses, cattle, goats, sheep or swine, or shall wilfully injure or destroy any other property of another," a dog was held not included in the denomination of " other property." ^ It was inferred from the use of the words " injure or destroy " with ref- erence to the property designated by the phrase " any other property," that this latter expression was intended to include only inanimate property to which the terms " kill," " maim," " wound," etc., could not properly be appHed. It was also said : " Nor do they [dogs] come within either class or descrip- tion of the animals which are mentioned. They are not re- garded by law as being of the same intrinsic value as property as the animals enumerated, and cannot, we think, be brought within the prohibition under the general expression ' any other property ' by intendment." § 357. Under a statute prohibiting any man marrying " his brother's wife," marrying his brother's widow is an offense.* An act changing the venue of prosecutions for offenses com- mitted on board any vessel " navigating " any river within the state was held applicable to a vessel so engaged, though at anchor at the time the offense was committed.'' " Where words are general," said Story, J., " and include various classes of persons, I know of no authority which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, when the mischief to be redressed by the statute is equally applicable to all of them. And where 1 State V. Hall, 2 Bailey, 151. '■> State v. Marshall, 13 Tex. 53. 2 The Schooner Nymph, 1 Sumn. « Commonwealth t, Perryman, 2 516. Leigh, 717, » Crosby v. Hawthorn, 25 Ala. 221. "People v. Hulse, 3 Hill, 309. * The Schooner Harriet, 1 Story, 251. 452 STKICT CONSTEUCTION. a word is used in the statute which has various known sig- nifications, I know of no rule that requires the court to adopt one in preference to another simply because it is more re- strained, if the objects of the statute equal the largest and broadest sense of the word. In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context and pro- motes in the fullest manner the apparent pohcy and objects of the legislature." ^ A statute made robbery a capital offense, when the robber is, " at the time of committing such assault, armed with a dangerous weapon, with intent to kill or maim the person so assaulted and robbed." To the contention that, to constitute the crime of robbery a capital offense within this statute, it must be proved that there was an absolute intent to kill or maim the party robbed, whether the robbery could be accomplished without killing or maiming or not, the court said : " If a statute, creating or increasing a penalty, be capable of two constructions, undoubtedly that construction which operates in favor of life or liberty is to be adopted ; but it is not justifiable in this, any more than in any other case, to ini- agine ambiguities, merely that a lenient construction may be adopted. If such were the privilege of the court, it would be easy to obstruct the public will in almost every statute en- acted ; for it rarely happens that one is so precise and exact in its terms as to preclude the exercise of ingenuity in raising doubts about its construction." It was held to be sufficient that the party be armed with a dangerous weapon with intent to kill or maim the party assaulted by him, in case such killing or maiming be necessary to his purpose of robbing, and that he have the power of executing such intent.- Where for a specified offense the statute provides that the person convicted shall be fined not less than $100, the construction is not to be so strict as to hold that a fine is not authorized above that sum. The court in such a case held that the exclusion of one subject or thing is the inclusion of aU other things. " "When the legislature," say the court, "in this case, excluded the power of the court to impose a fine of less than $100, it, by 1 United States v. Winn, 3 Sumn. 2 Commonwealth v. Martin, 17 209. Mass. 359. 6TKICT CONSTKUCTION. 463 implication, authorized the exercise of power to impose a fine for more than that sum. It fixed the minimum, but fixed no maximum." ^ § 358. What statutes are penal. — Among penal laws which must be strictly construed, those most obviously included are all such acts as in terms impose a fine or corporal punishment under sentence in state prosecutions, or forfeitures to the state as a punitory consequence of violating laws made for preser- vation of the peace and good order of society. But these are not the only penal laws which have to be so construed. There are to be included under that denomination also aU acts which impose by way of punishment any pecuniary mulct or dam- ages beyond compensation for the benefit of the injured party, or recoverable by an informer, or which, for like purpose, mi- pose any special burden, or take away or impair any privilege or right.'^ An act which made a tender of bills emitted by the con- tinental congress a bar to any future demand of a debt was held highly penal, and not to be extended beyond the strict import of its language.' A law prohibited the circulation or passing of " tickets " under penalty. The court held that did not apply to a man giving a due-bill or other written evidence of a debt. " A penal statute," say the court, " taking away or abridging the right of individuals to give or receive a written acknowledgment of a debt due, or a promise to pay a debt, in money or goods, ought to be very plain and explicit in its terms ; and a party seeking to recover the penalty ought to show a case clearly and distinctly within the provisions of the statute." ^ A statute which subjects a mortgagee to a penalty for refusal to discharge a mortgage will be construed strictly ; 1 Hankins v. People, 106 111. 628. Austin, 21 IMich. 390 ; Henderson v. 2 AUen V. Stevens, 29 N. J. L. 509 ; Sherborne, 2 M. & W. 236 ; Mer- Cole V. Groves, 134 Mass. 471 ; Cam- chants' Bank v. BlLss, 13 Abb. Pr. 225 ; den, etc. R. R. Co. v. Briggs, 22 N. J. Titiisville's Appeal, 108 Pa. St 600 ; L. 623 ; Read v, Stewart, 129 Mass. JMarston v. Tiyon, id 270. 407 ; Bi-eitung v. Lindauer, 37 IMich. 3 Shot^vell's Ex'r v. Dennman, 1 N. 217 ; Cumberland, etc. Canal v. Hitch- J. L. 174 ; Suffolk Bank v. Worcester ings, 57 Me. 14G ; Reed v. Northfield, Bank, 5 Pick. 106. 13 Pick. 96; Palmer v. York Bank. * Allaire v. Howell Works Co. 14 N. 18 Me. 166 ; Bayard v. Smith, 17 J. L. 21, 23. Wend. 88 ; Bay City, etc. R R Co. v. 454: STRICT CONSTKUCTION. 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 dam- ages for waste committed on land pending a suit for its recov- ery. 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 takiug 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.* § 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 lib- eral 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 aU 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 faUs 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 sa}^ : "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 Stx)iie V. Lannon, 6 Wis. 497. ^ Aechternaclit v. Watmough, 8 2 Grooms v. Hannon, 59 Ala. 510. Watts & S. 162. 3 Marston v. Tryon, 108 Pa. St. 270. ** Renf roe v. Colquitt, 74 Ga. 618 ; * Reed v. Davis, 8 Pick. 514. See Farmers' & Mechanics' Nat Bank v. Bay City, etc. R. R. Co. v. Austin, 21 Bearing, 91 U. S. 29. Mich. 390. ' Ante, § 348. 8 13 Jolm. 497. STKICT C0N8TEUCTI0N. 45o intention of the legislature ought to be regarded. A stat- ute which is penal to some persons, provided it is henejlcial generally, may he equitably construed^ The italicised sentence is too general ; if applied in its full scope it Avould leave noth- ing for strict construction. The penalty was recovered in that case for an act held to be within the strict letter. § 360. In Farmers' & Mechanics' JS^ational Bank v. Bear- ing/ 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 busi- ness in New York, and a forfeiture of the whole debt had been adjudged in accordance Avith the local law. This was held erroneous ; section 30 prescribes the exclusive and uni- form penalty — that is, the entire interest which the note, bill or other evidence of debt carries vsdth it, or which has been agreed to be paid thereon, when the rate knowingly re- ceived, 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 mUder 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 nat- ure, 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, there- fore, 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 hberaUty of construction relates to the 1 91 U. S. 29, 35. s Citing Faxmei-s', etc. Nat Bank v. - 47 M(L 217. Deuring-, mpva. 456 STKICT CONSTRUCTION. 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 funda- mental 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 set- tino; 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, exceed- ing double the amount of such creditors' just debt or de- mand." 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 recov- ery, 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 re- covery towards twice the value of the property fi-audulently 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. Whit- 2 1 Bing. 287, 300. lock, 10 Mo. 781 ; Hyde v. Cogan, 2 5 See Hahn v. Salmon, 20 Fed. Rep. Doug. 699, 706 ; Abbott v. Wood, 22 801 ; Gumming v. Fryer, Dudley, 182 ; Me. 541. Smith V. Moflfat, 1 Barb. 65 ; Sharp ■! 38 Ma 103. V. Mayor, etc. 31 id. 577 ; White v. 8TKICT CONSTRUCTION. • 457 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 common- law action for the injury survives and is therefore assignable, the penal damages given by statute are also assignable.^ § 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 fi-aud, 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 fi^auds, 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 consid- erations which are applicable with more or less force in aU cases where a statute provides for punishment. These consid- erations are as pertinent to acts which are supposed to be in- fractions 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 not- able departures from the strict rule. And they have generally been quahfied by the enunciation of the sound principle appli- cable to aU 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 Mete 522; 356; United States v. Barrels of High Brandon v. Pate, 2 U. Black. 308 ; Wines, 7 Blatcli. 459 ; United States Brandon v. Sands, 2 Ves. Jr. 514. v. Ohiey, 1 Abb. (U. S.) 275 ; United ♦ AVood 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 ; CUquot's Champagne, 3 WalL 395 ; United States v. Breed, 1 Siimn. 114; Twenty -eight Cases, In re, 2 159; United States v. One Hiindi-ed Ben. 63 ; United States v. WiUetts, and Twenty-nine Pr.ckages, 2 Am. L. 5 Ben. 220 ; United States v. Tliree Reg. (N. S.) 419. 458 STRICT CONSTKUCTION. 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,^ that stat- utes 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 ex- tended by impHcation 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 : " Stat- utes against frauds are to be Uberally and beneficially ex- pounded. 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 Spir- its, 10 Blatchf. 428, 433. 2 2 Story, 369. 3 The characterLzing of such laws as remedial ha.s not escaped criticism. ]VIr. 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, siipra\ in a sense differing from that in which it is commonly used in the law. A re- medial law, as the term is generally employed, is sometliing quite differ- ent from the revenue laws. An au- thor of accepted authority expresses the ordinary understanding, when he defines a remedial statute to be ' one which supphes such defects and abridges such superfluities of the common law as may have been dis- covered (1 Black. Com. 86) ; such as may arise either from the imperfec- tion of all human laws, from change of time and circumstances, from mis- takes and rmadvised determinations of unlearned (or even learned) judges, or from any other cause whatever; and tills being done either by enlarg- ing the common law where it was too naiTOW and circumscribed, or by resti-aining it where it was too lax and luxuriant, has occasioned another subordinate division of remedial acts into enlarging and restraining stat- utes. So it seems that a remedial statute may also have its apphcation vo and effect upon other existing statutes, and give a party injured a remedy ; and for a more general def- inition, it is a statute giving a party a mode of remedy for a wrong where he had none or a different one be- fore.' " Potter's Dwarris on St 78. He concludes that in applying the word " remedial " to tax laws it was used in some pohtical 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 "VViggleworth's case. Cooley on Tax. 204, 205. STRICT CONSTRUCnON. 459 most statutes against frauds being- penal. But this difference is to be taken : Where the statute acts upon the offender and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly ; but when the statute acts upon the offense, by set- ting aside the fraudulent transaction, here it is to be construed liberally." ' Revenue laws are intended to raise money for the support of the government. If they contain provisions for pen- alties and forfeitures these are ancillary to that object ; but they are not for that reason to be necessarily construed in point of strictness by the same rule. As penal laAvs, no reason is per- ceived why the same rule of strict construction should not be applied to them as to other such laws. Mr. Dwarris remarks that, " By the use of ambiguous clauses in laws of that sort the legislature would be laying a snare for the subject, and a construction which conveys such an imputation ought never to be adopted. Judges, therefore, where clauses are obscure, will lean against forfeitures, leaving it to the legislature to correct the evil, if there be any. "With this view, the ship registry acts, so far as they apply to defeat titles and to create forfeitures, are to be construed strictly, as penal, and not lib- erally, as remedial, laws. In like manner, in the revenue laws, where clauses inflicting pains and penalties are ambiguously or obscurely worded, the interpretation is ever in favor of the subject ; ' for the plain reason,' said Heath, J., in Hubbard v. Johnstone, ' that the legislature is ever at hand to explain its own meaning, and to express more clearly what has been ob- scurely expressed.' " ^ § 362. Statutes which impose burdens — Taxes. — Acts for taxation of persons or property are prominent in this category. 1 1 BL Com. 38. f orf eitiire of propei-tj- for the mere m.- ' 3 Taunt. 177 ; Dwarris on St 641. dul<;"ence of a fraudulent intent never Mr. Cooley thus comments on tliis carried into effect ; a f orfeitiu-e, too, point : " In the state revenue laws the which may be visited upon a pur- penal provisions are few, and by no cliaser who has bought in good faith, means severe. In the federal revenue antl ^\•ithout any suspicion of tlie in- laws some of them are of a severity tended fraud. Henderson's Distilled very seldom to be met with in penal Spirits, 14 WalL 44. If such provis- statutes, and only to be j ustified by the ions are to be construed hberally, there supposed impossibility of collecting is no reason why an\' other penal the revenue without them. In illus- provisions whatever should not be." tration of what is here said, reference Caoley on Taxation, 208. need only to be made to the case of 4:60 STRICT CONSTETJCTION. The poTver to tax is sovereign, and its exercise needful to sup- ply the government with money necessary for its support. "When limited to the accomplishment of this object it is benef- icent, but since it is so unlimited in force and so searching in extent that courts recognize no restrictions except such as rest in the discretion of the authority which exercises it ; since it reaches to every trade and occupation, to every object of in- dustry, use or enjoyment, to every species of possession, and imposes a burden which in case of failure to discharge it may be followed by summary seizure and sale or confiscation of property ; since no attribute of sovereignty is more pervading or affects more constantly and intimately all the relations of life,^ and involves the power to destroy, and may neutralize the power to foster and create,^ statutes enacted in the exer- cise of the taxing power are construed with some degree of strictness. It is a special authority, and in its exercise the citizen is deprived of his property. However meritorious the purpose for which such a power is granted, the courts will be sedulous in confining it within the boundaries the legislature have thought fit to prescribe.* The supreme court of Is'ew Jersey say : " In laying the burden of taxation upon the citi- zens of the state, while it must be the object of every just system to equalize this charge by a fair apportionment and levy upon the property of all, it is equally the duty of the courts to see that no one, by mere technicaUties which do not affect his substantial rights, shall escape his fair proportion of the public expense and thus unpose it upon others. A lib- eral construction must therefore be given to aU tax laws for public purposes, not only that the ofiicers of the govern- ment may not be hindered, but also that the rights of all tax- payers may be equally preserved." * " If it be a matter of 1 Cooley on Const Lim. 479 ; Litch- author is apposite, and expresses the Held V. Vernon, 41 N. Y. 123, 140, 143 ; law with felicity and accui-acy : "In Henry v. Chester, 15 Vt 460. the construction of the revenue laws 2 McCuUoch V. Maryland, 4 Wheat, special consideration is of course to 431. be had of the purpose for which they 3 Powell V. Tuttle, 3 N. Y. 396, 401 ; are enacted. That purpose is to sup- Sherwood V. Reade, 7 Hill, 431 ; Striker ply the government with a revenue. V. Kelly, 2 Denio, 328. But in the proceedings to obtain this * State V. Taylor, 35 N. J. L. 184, it is also intended that no unnece^ - 190. The language of a distinguished saiy injury shaU be inflicted upcu STlilCT CONSTKUCTION. 461 real doubt," said Mr. Justice Story, "wliether the intention of the act of 1841 was to levy a permanent duty on indigo, that doubt will absolve the importer from paying the duty." * In Gurr v. Scudds,^ Pollock, C. B., says: "If there is any doubt as to the meaning of the stamp act, it ought to be con- strued in favor of the subject, because a tax cannot be imposed without clear and express words for that purpose." This seems to be the tenor of all the English decisions, that every charge on the subject must be imposed by clear and unambiguous words.' In a late case before the house of lords* it was said : the individual taxed- Wliile this is secondary to the main object — the impelling occasion of the law — it is none the less a sacred duty. Care is taken in constitutions to tosert pro- visions to secm-e the citizen against injustice in taxation, and all legisla- tive action is entitled to the presmnp- tion that this lias been intended. We are therefore at hberty to. suppose that the two main objects had in view in framing the provisions of any tax law were, first, the providing a pubhc revenue, and second, the secur- ing of individuals against extortion and plunder imder the cover of the proceedings to collect the revenues. The provisions for these purposes are the important provisions of the law. . . . The question regarding tlie revenue laws has generally been whether or not they shall be con- strued strictly. The general rules of interpretation require this in the case of statutes which may divest one of his freehold by proceedings not in the ordinary sense judicial, and to which he is only an enforced partj'. It is thought to be only reasonable to in- tend that the legislature, in making provision for such proceedings, would take unusual care to make use of terms wliich would plainly express its meaning, in order that ministerial officers might not be left in doubt in the exercise of luiusual i)owei's, and that the citizen might know exactly what were his duties and iiabUities. A stiict consti'uction in such cases is reasonable, because presumptively the legislature has given in plain terms all the power it has intended should be exercised. It has been very generally supposed that the like strict construction was reasonable in the case of tax laws." Cooley on Taxation, 199, 200 ; Dwarris on Stat- utes, 742, 749. 1 United States v. Wigglesworth, 2 Stoiy, a69, 374. 2 11 Ex. 190, 192. 3 Wroughton v. Turtle, 11 M. & W. 561, 567 ; WiUiams v. Sangar, 10 East, 66, 69 ; WaiTington v. Fm-bor, 8 id. 242, 245 ; Denn v. Diamond, 4 B. & C. 243 ; Doe v. Snaith, 8 Bing. 146, 152 ; Tomkins v. Ashby, 6 B. & C. 541, 543 ; Marquis of Chandos v. Commission- ers, 6 Ex. 464, 479 : Oriental Bank v. Wright, L. R. 5 App. Cas. 842 ; Pryce V. Monmoutlislui-e Canal & Ry. Co. L. R. 4 App. Cas. 197 ; Reg. v. Barclay, L. R, 8 Q. B. Div. 306 ; Daines v. Heath, 3 C. B. at p. 941 ; Goslmg v. Veley, 12 Q. B. at p. 407 ; CasweU v. Cook, 11 C. B. (N. S.) 637 ; Burder v. Veley, 12 AcL & E. at p. 246 ; Att'y-Gen. v. Middleton, 3 H. & N. at p. 138 ; Hes V. West Hum Union, L. R. 8 Q. B. Div. 09 ; In re Micklethwait, 11 Ex. 452. •'Partington v. Att'y-GeiL L. R. 4 il. L. Cas. 122. 462 STRICT CONSTKUCTION. " The principle of all fiscal legislation is this : If the person- soujrht to be taxed comes within the letter of the law, he must be taxed, however great the hardship may appear to the judi- cial mind to be. On the other hand, if the crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case may otherwise appear to be. In other words, if there is admissible in any statute what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute." § 363. The American cases generally announce the same rule of construction. Duties, says Mr. Justice Nelson, " are never imposed upon the citizen upon vague or doubtful interpreta- tions." * Statutes which impose restrictions upon trade or com- mon occupations, or which levy an excise or tax upon them, must be strictly construed.^ A statute conferring authority to impose taxes must be construed strictly.'' A tax law can- not be extended by construction to things not named or de- scribed as the subjects of taxation.* A statute required taxes for school purposes to be levied on all the ratable estate of persons who are residents of the district ; it authorized an executor to put the property of the estate in the list in the name of the estate. It was held that the ratable estate of the deceased pending administration might be assessed in the dis- trict where the deceased lived and died. The court say : " The greatest and perhaps the only objection that can be urged against this rule is, that we cannot say in strictness that the deceased or his estate is a resident of the district. This objec- tion assumes that the statute is to be strictly construed. But we do not think that the doctrine of strict construction should apply to it. Statutes relating to taxes are not penal statutes, 1 Powers V. Barney, 5 BlatcM. 202, Carter, 2 Kan. 115 ; Bensley v. Moun- 203 ; United States v. Wiggleswortli, tain Lake Water Co. 13 CaL 306, 316. 2 Story, 369, 373 ; United States v. 2 SewaU v. Jones, 9 Pick. 412, 414. Watts, 1 Bond, 580, 583 ; Vicksbvirg, 3 Moseley v. Tift, 4 Fla, 402 ; WiU- etc. R. R. Co. V. State, 62 Miss. 105 ; ianis v. State, 6 Blackf. 36 : Barnes v. Mayor v. Hartridge, 8 Ga 23 ; Crosby Doe, 4 Ind. 132, 133 ; Smith r. Watere^ V. Brown, 60 Barb. 548; Dean v. 25 Ind. 397; Fox's Appeal, 112 Pa. St. Charlton, 27 Wis. 522 ; Shawnee Co. v. 337. 4 Boyd V. Hood, 57 Pa, St 98, 101. STRICT CONSTRUCTION. 463 nor are they in. derogation of natural rights/' ' Tliat case seems to have been properly determined, and did not require a denial that tax laws are to be strictly construed. The law expressly allowed the listing of the decedent estate in tlie name of the deceased person's estate, and therefore the levy of a tax on such a resident as such an " intano-ible bein"-" could be. o o The court was in accord with the general current of authority in concluding that in construing statutes relating to taxes they " ought, where the language will permit, so to construe thera as to give effect to the obvious intention and meaning of the legislature, rather than defeat that intention by too strict an adherence to the letter." ^ A statute to rc-assess a void tax will be construed strictly. Such a statute is in derogation of the rights of the citizen who may be affected by it ; it com})els him to bear a burden which he would not have to bear but for it. A due regard for individual rights and the plainest prin- ciples of justice requires that taxing statutes shall have only the effect which the legislature clearly intended ; in construing them aU reasonable doubts as to such intent should be resolved in favor of the citizen.^ Every statute in derogation of the rights of property or that takes away the estate of the citizen ought to be construed strictly. It should never have an equi- table construction.* Statutes providing for redemption of lands sold for taxes should be construed liberally.^ § 364. Exemption from taxation or other general bur- den. — Kot only is all legislation for taxation, but also for exemption from taxation, or any other common burden or liability, to be strictly construed. The principle is well set- tled that the power of exemption, as well as the power of taxation, is an essential element of sovereignty, and can only be surrendered or diminished in plain and explicit terms.* 1 Cornwall, Ex'r, v. Todd, 38 Conn. Bloomington, 106 lU. 209 ; S. C. 5 Am. 443. & Eng. Corp. Cas. 535; Lima v. 2 See 3 Parsons on Cont 287. Cemeteiy Asso. 42 Ohio St 128 ; 8. C. 3 Dean v. Charlton, 27 Wis. 522. 5 Am. & Eng. Corp. Cas. 547 ; Mayor, * Sharp V. Speir, 4 Hill, 76, 83 ; Van- etc. v. Centi-al R R etc. Co. 50 Ga- home's Lessee v Don-ance, 2 DalL 620; Gale v. Lam-ie, 5 B. & C. 156; 304 ; Sibley v. Smith, 2 Mich. 486, 490. BufTalo City Cemetery Co. t. Buflfalo, 5 Alter V. Shepherd, 27 La. Ann. 207. 46 N. Y. 506 ; SUite v. Bank of Smyrna, sProbasco Co. t. Moundsville, 11 2 Iloust 99; WilUs v. R R Co. 33 W. Va. 501 ; McLean County v. Barb. 398 ; Orr v. Baker, 4 Ind. 86 ; 4C, STKICT CONSTEUCTION. Every such immunity must receive a strict construction. Leg- islation which is claimed to relieve any species of property from its due proportion of the general burdens of government should be so clear that there can be neither reasonable doubt nor controversy about its terms. The language must be such as leaves no room for discussion. Doubts must be resolved against the exemption.^ If a statute gives authority for a special purpose, and thereby impliedly remits a general duty, this implied remission cannot be prolonged beyond the neces- sary requirements of the purpose.^ A statute exempting a railroad company from liability for accidents to passengers riding on the platform of cars/ limiting individual Hability of partners in limited partnerships,* and according to some cases, and probably contrary to the weight of authority, laws ex- empting certain property of debtors fi'om execution,' laws providing for stay of proceedings in favor of persons enlisted in the army,'' are construed strictly. So are provisions relat- ing to disabilities, saving rights of action, and extending the time for their assertion ; ^ and provisions exonerating ship- St Louis, etc. Ry. Co. v. Beriy, 41 Ark. 509 ; Rue v. Alter, 5 Denio, 119 ; Railway Co. v. Lof tin, 98 U. S. 559 ; Cinciimati College v. State, 19 Ohio, 110 ; State v. IMills, 34 N. J. L. 177 ; Gordon's Ex'r v. Mayor, etc. 5 GUI, 231 ; Weston v. Supervisors, 44 Wis. 242 ; State v. McFetridge, 64 id. 130. Exemption from taxation does not include exemption from local assess- ments. 5 Am. & Eng. Corp. Cas. 552, note. '• An exception as to the exemp- tion is made in favor of sales for non- payment of taxes or assessments, and for a debt or hability incurred for the purchase or improvement of the premises, thus, according to a familiar rule of construction, excludmg, by necessary unphcation, any other ex- emption ; and the language expressly excludes every other kno\vn mode of incumbering and conveying the prop- erty." Eldridge v. Pierce, 90 111. 474. Statutes exempting railroad property from taxation are to be hberaUy con- strued if a hcense fee or other equiva- lent is paid in heu of taxes levied in the usual way. IMilwaukee, etc. R'y Co. V. MHwaukee, 34 Wis. 271. 1 BaHey v. Magwu-e, 22 Wall 226 ; Vicksburg, etc. Ry. Co. v. Dennis, 116 U. S. 665 ; Yazoo R. R. Co. v. Thomas, 132 id. 174. See Gray v. La Fayette Co. 65 Wis. 567. 2 WiUiams v. Tripp, 11 R. L 447. 3WiUis V. Raih-oad Co. 32 Barb. 398. 1 Andrews v. Schott, 10 Pa. St 47 ; Vandike v. Rosskam, 67 id. 380; Maloney v. Bruce, 94 id. 249; Eliot V. Himrod, 108 id. 500. 5 Re Lammer, 7 Biss. 269 ; Rue v. Alter, 5 Denio, 119 ; post, § 422. See Carpenter v. Herrington, 25 Wend. 370; Kinard v. Moore, 3 Strob. 193. ^Breitenbach v. Bush, 44 Pa St 313. ' Carlisle v. Stitler, 1 Pen. & W. 6 ; Thomijson v. Smith, 7 Serg. & R, 209 ; STlilCT CONSTKUCTION. 405 owners for damages caused their ships through the faults of pilots whom they are compelled to employ.' §365. Acts delegating the power of taxation. — Acts of this class are construed with great strictness. Two concur- ring principles leading to strict construction apply. Such acts affect arbitrarily private property, and are grants of power. ^' The power to lay taxes," says the supreme court of Ohio, " is one of the highest attributes of sovereignty. It involves the right to take the private property of the citizen without his consent and without other consideration than the promotion of the public good. Such interference with the natural right of acquisition and enjoyment guarantied by the constitution can only be justified when public necessity clearly demands it. Being a sovereign power, it can only be exercised by the gen- eral assembly when delegated by the people in the funda- mental law; much less can it be exercised by a municipal corporation without a further unequivocal delegation by the legislative body." - The power can be delegated by the legis- lature,* but only in plain and unambiguous words.* Statutes for that purpose will be construed strictly, and they must be closely pursued ; a departure in any material part will be fatal.^ Rankin v. Tenbrook, 6 Watts, 388; Cal 255; Holland v. Mayor, etc. 11 Marple v. lilyers, 13 Pa. St 122 ; Rider Md. 186 ; Clai-k t. Washington, 12 V. Maul, 46 id. 376. Wheat. 40 ; Fowle v. Alexandria, 3 1 The Protector, 1 W. Rob. 45 ; The Pet 398 ; Reed v. Toledo, 18 Ohio, 161 ; Diana, 4 Moore, P. C. 11 ; The lona, Jonas v. Cincinnati, id. 318 ; Mays v. L. R. 1 P. C. 426. Cincinnati, 1 Ohio St 268 ; Xichol v. - Mays V. Cmcinnati, 1 Ohio St 269, Nashville, 9 Humpli, 252 ; Kniper v. 273 ; Bennett v. Birmingham, 31 Pa, LouisviUe, 7 Bush, 599 ; Broadway St 15 ; Wisconsin Telephone Co. v. Bap. Church v. McAtee, 8 Bush, 508 ; Oshkosh, 62 Wis. 32. Clark, Dodge & Co. v. Davenport, 14 3 St. Louis V. Lauglilin, 49 Mo. 559 ; Iowa, 494 ; United States v. Mayor, Davis V. Gaines, 48 Ark. 370 ; Will- etc. 2 Am. L. Reg. (N. S.) 394 and iamson v. New Jersey, 130 U. S. 189. note ; St Charles v. Nolle. 51 Mo. 122, ■* St Louis V. Laughhn, 49 Mo. 559 ; 124 ; Bennett v. Birmingham, 31 Pa. Douglass V. Mayor, etc 18 CaL 643 ; St 15 ; Henry v. Chester, 15 Vt. 460 : Harding v. Bader, 75 Mich. 316 ; Mat- Rex v. Liverpool, 4 Biu-r. 2244 ; Ryer- ter of 2d Ave. M. K Chm-ch, 66 N. Y. son v. Laketon. 52 Midi. 509 ; Folk- 395. erts v. Power, 42 ^Micli. 283 ; Hough- 5 Judge of Campbell County Court ton Coimty v. Auditor-Gen. 41 Mich. V. Taylor, 8 Bush, 206 ; Sharp v. 28 ; Cniger v. Dougherty, 43 N. Y. Johnson, 4 HUl, 92 ; Lake v. Williams- 107. 121 ; Sharp v. Speir, 4 Hill. 76, 83 ; bm-gh, 4 Denio, 520 ; Hewes v. Reis, 40 Bcaty v. Kuowler, 4 Pet 152. 80 466 STRICT CONSTRUCTION. Any doubt or ambiguity arising out of the terms used by the legislature must be resolved in favor of the public.^ Accord- ingly it is held that under authority to levj^ a tax and to sell property for non-payment land cannot be sold for a delinquent assessment.^ A power to tax or entirely suppress all petty groceries will not authorize a grant of licenses for retailing.* A power to tax for repaving streets will not include an original paving.* A charter power to a municipal corporation to tax hacks, drays, etc., within the city does not authorize a tax on outside residents engaged m hauling into and out of the city, and even an express grant of such power to tax would be void as an unconstitutional taking of private property for pubhc use.' Authority to tax " auctioneers, grocers, merchants, re- tailers, hotels, . . . hackney carriages, omnibuses, carts, drays and other vehicles, and all other business, trades, avoca- tions or professions whatever," held not to include attorneys at law.^ Where a special tax is authorized for a specified purpose, and the law is silent as to cost of collection, nothing can be added for compensation of the collector.'' It is not in the power of the common council of a city, by ordinance, to include persons as hucksters who do not fall within the ordinary meaning of that term ; nor can the power of taxation upon employments, when not conferred by the charter, be resorted to as a means of preventing huckstering.^ Where the taxing power was au- thorized to be exercised after a majority of the legal voters of a county named had voted in favor of a specified proposition, it was held that this was a condition precedent, and that it was not fulfilled by a submission to the voters of such county excepting those in a city therein.^ § 366. Statutes against commou right. — Statutes against common right are those which operate exceptionally to the 1 Id ; Mmtiu-n v. Larue, 23 How. As to application of the doctrine 435. of ejusdem generis, see Littlefield 2 Sharp V. Speir, 4 Hill, 76 ; City of v. Winslow, 19 Me. 394 ; Foster v. Fau-tield v. RatcUff, 20 Iowa, 396. Blount, 18 Ala. 689 ; Gruniley v. Webb, 3 Leonard v. Canton, 35 Miss. 189. 44 Mo. 458 ; Sedgw. 423 ; ante, § 268. ^ Holland v. Mayor, etc. 11 Md. 186. See State v. Robinson, 42 Minn. 107. 5 St. Charles v. Nolle, 51 Mo. 122, ' Jonas v. Cincinnati, 18 Ohio, 318. 124 ; Bennett v. Birmingham, 31 Pa. 8 Mays v. Cincinnati, 1 Ohio St. 268. St 15. 9 Judge of Campbell County Court 6 St Louis V. Laughlin, 49 Mo. 559 ; v. Taylor, 8 Bush, 206. Trustees, etc. v. Osborne, 9 Ind. 458. STRICT CONSTRUCTION, 467 prejudice of particular persons; not laws of general applica- tion which happen to harshly affect a few individuals on ac- count of their exceptional condition, but laws which do not have such an application; those which operate, when they apply at all, to a few, while the rest of the community are ex- empt. Such statutes are construed strictly.^ Of this nature is a statute obliging an attorney, on request or nomination of a court, to take charge of a lawsuit gratuitously.- The act incorporating the Cajiiga Bridge Company contained a pro- vision that it should not be lawful for any person or persons to erect any bridge or establish any ferry within three miles of the company's bridge, nor be lawful for any person to cross the lake except in his own boat within that distance without paying toll to the company. The provision was construed strictly and held not to apply to a person who crossed the lake within that distance on the ice.' The court say statutes cannot take away a common* right unless the intention is manifest ; and, when not remedial, are not to be extended even by equitable principles.* Towns being under no obligation, except that created by law, to support paupers, a case must be brought strictly witJhin the provisions of the law before the duty arises ; and an approximation, however near, will not be sufficient.^ Questions of legal settlement depend, therefore, upon a strict and precise apphcation of positive law.^ Where the settlement depended by the language of the statute on hav- ing an estate the principal of which shall be set at 601. or the income at 31., in the valuation of estates by assessors, and be as- sessed for the same for the space of five years successively in the town where a person dwelt, it was not enough that he had an estate of that value not assessed at all.'^ The right to im- press property to be used for the taking care of persons in- fected with sickness dangerous to public health can only be exercised when expressly granted.^ 1 Flint River Steamboat Co. v. * Coolidge v. Williams, 4 Mass. 140 ; Foster, 5 Ga. 194 ; Mayor, etc. v. Hart- Melody v. Reab, id. 473. ridge, 8 id. 23 ; Young v. McKenzie, 3 8 Danvers v. Boston, 10 Pick. 513. id. 40 ; Marsh v. Nelson, 101 Pa, St ^I±; BiUerica v. Chelmsford, 10 51 ; Rothgerber v. Dupuy, 64 EL 453 ; Mass. 394. Walker v. Chicago. 56 id. 277. ' Monson v. Chester, 22 Pick. 385. 2 Webb V. Baird, 6 Ind. 13. ■* Puikham v. Dorothy, 55 Me 135 ; » Sprague v. Budsall, 2 Cow. 419. Mitchell v. Rockland, 45 id. 496. 468 STEICT COJS^STEUCTION. § 367. Statutes are not unfrequently enacted for police pur- poses which by their terms must operate to the special preju- dice of persons in particular situations, for the common good. In a certain sense these are statutes against common right ; and though the power to pass them is unquestionable, they should only operate within their strict letter, interpreted ac- cording to their plain intent. For the protection of a harbor the legislature may forbid the removal of stones, gravel or sand from the beach by the owuer.^ Restrictions on the building or repairing of wood structures in the populous part of a city, com- monly designated as fire hmits, are invasions of private right, and to be strictly confined to their literal import.^ Laws in re- straint of trade, or the alienation of property,^ or those which abridge the privilege or right of giving evidence,* will be con- strued strictly. So of a statute requiring of suitors a test oath.* An act placing Indians under certain disabilities in respect to seUing or devising their land was held not to be strictly con- strued, especially if, by such construction, the object of the leg- islature would be defeated ; protective and remedial statutes imposing disabilities upon persons for their benefit ought to re- ceive a liberal construction.** § 368. Statutes of limitation. — Statutes limiting the right to bring actions to particular periods are restrictive and wiU not be extended to any other than the cases expressly pro- vided for ; " and the exceptions are allowed a liberal effect,^ thouo-h not so liberal as to embrace cases within the reason when not within the letter of them.^ The exception of actions which concern the trade of merchandise between merchants is confined to actions on open and current accounts ; it does 1 Commonwealth v. Tewksbury, 11 ^ Harrison v. Leach, 4 W. Va. 383. Met 55. ^ Doe v. Avaline, 8 Ind. 6, and note. 2 Stewart v. Commonwealth, 10 See Smith v. Spooner, supra. Watts, 307 ; Brady v. Northwestern ^ Bedell v. Janney, 9 IlL 193 ; Dela- Ins. Co. 11 ]\Iich. 425, 451 ; Booth v. ware, etc. R R. Co. v. Burson, 61 Pa, State, 4 Conn. 65 ; Tuttle v. State, id. St 369 ; Pearl v. Conley, 7 Sm. & M. 68. 358 ; Wood on St Lim. § 4. 5 Richards v. Emswiler, 14 La. sRoddam v. Morley, 1 De G. «& Ann. 658 ; Sewall v. Jones, 9 Pick. J. 1. 412 ; Gimter v. Leckey, 30 Ala, 591. 9 Sacia v. De Graaf, 1 Cow. 3"")6. * Smith V. Spooner, 3 Pick. 229 ; See post, g§ 424, 425. Pelham v. Messenger, 16 La. Ann. 99. STRICT CONSTRUCTION. 4G9 not extend to accounts stated. It must be a direct concern of trade ; liquidated demands, or bills and notes, which are only- traced to the trade of merchandise are too remote to come within this description. • When the statute contains no excep- tion, as a general rule, the courts will not make any.'' There has been held to be an implied suspension of such statutes durino: the late civil war as to citizens of different states between which intercourse was interru])ted, on the ground of paramount necessity, and limited by such necessity.' Being statutes of repose, they are not regarded in modern times with disfavor ; and are therefore not to be defeated by undue strict- ness of construction.* Heath, J., said these statutes ought to receive a strict construction.* But this has not been the uniform expression of English judges. Dallas, C. J., said : " I cannot agree in the position that statutes of this description ought to receive a strict construction ; on the contrary, I think they ought to receive a beneficial construction with a view to the mis- chief intended to be remedied." ^ Like views have been ex- pressed in this country. " The statute of limitations is entitled to the same res])ect with other statutes and ouglit not to be ex- plained away." '^ Such statittes were not enacted to protect per- sons from claims "fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been dis- charged, but the evidence of discharge may be lost.* Story, J., in Bell v. Morrison," said: " It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been 1 Rainchander v. Hammond, 2 Charter Oak Ins. Co. 64 Mo. 330 ; John. 200. Stiles v. Easley, 51 111. 275 ; Mixer v. - Kilpatrick v. Byi-ne, 25 Miss. 571 ; Sibley, 53 id. 61 ; Coleman v. Holmes, Semmes v. Hartford Ins. Co. 13 44 Ala. 124. WaU. 158; Warfield v. Fox. 53 Pa. *Toll v. Wright, 37 Mich. 93; Pal- St. 382 ; The Sam Slick, 2 CurtLs. C. mer v. Palmer, 36 id 487. C. 480 ; Wells v. Child. 12 Allen, 333 ; 5 Roe v. Ferrars, 2 B. &. P. at p. 547. Dozier V. EULs, 28 Miss. 730 : Favorite «Tol9on t. Kaye, 3 Brod. & B. at V. Booher, i7 Ohio St. 548; Pry or v. p. 222. Rybiu-n, 16 Ark. 671; Howell v. " Clementson r. Williams, 8 Cranch, Hah-, 15 Ala. 194; Baines v. Will- 72. lams, 3 Ired. L. 481. -< Id. 3 Levy V. Stewart. 11 AVall. 244; » 1 Pet. 351. Ross V. Jones, 22 Wall. 576 ; Smith v. 470 STRICT CONSTKUCTION. forgotten, or be incapable of explanation by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts and to suppress those prejudices which may rise up at a distance of time and baffle every honest effort to counteract or overcome them," ^ Such statutes rest upon sound policy and tend to the peace and wel- fare of s.ociety. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade their effect.^ This class of statutes has a harsh effect on the creditor, which consideration leads to a strict construction; and a debtor who takes advantage of long forbearance to be utterly discharged on his own account has little right to favor ; but all persons are not provident enough to have indestructible evidence of all theu' transactions, and it is for the general good that a period be fixed after which there is an arbitrary exemp- tion from liability. In this sense these statutes are remedial, to afford protection against stale claims, after a period suffi- cient to the diligent, and when in the majority of instances a defending party would be placed at a disadvantage by reason of the delay. § 369. Limitations as to new trials and appeals. — Provis- ions which limit in point of time the right to move for a new trial, or to take an appeal, are construed with strictness in favor of the party desiring a review, when the time is to be computed from notice of the judgment to be given by the op- posite party. The right of appeal is general and positive, and as statutes of limitation are in restraint of that right they are, as already said, to be construed strictly.^ Although it be admitted that notice means knowledge, it by no means follows that knowledge or information of any kind will suffice — notice to limit the right in question must be given. This implies a positive act of the party in whose favor the judgment has been rendered. " It is highly proper," says Savage, C. J., " that such should be the practice. Notice in such a case ought not to depend upon casual information or an advertisement in the newspapers. Such notice certainly cannot be considered no- tice given by one party to the other. It is clear to my mind 1 See WiUison v. Watkins, 3 Pet. ^ McChmy v. Silliman, 3 Pet 270 ; 43, 54. United States v. WUder, 13 Wall 254. 3 Pease v. Howard, 14 Jolin. 479. STRICT CONSTRUCTION. 471 that the legislature intended a regular, formal, written notice." ' AV^liere an appeal was required to be taken within "thirty days after written notice of the judgment or order shall have been given to the party appealing," it was held that unless, after the judgment or order and its entry, the part}' has some written notification thereof by the act of the prevailing party or his attorney, the time to appeal continues without limita- tion. The party may acquire a knowledge of the order, he may examine it on the files of the court or on its records, or procure a copy of it from the clerk ; but as a limitation of the time to appeal, knowledge so acquired will be wiiolly inopera- tive.- Such a notice must be given, though the order or judg- ment appealed from was entered by the appellant himself ; ^ or though he was in court and heard the judgment pronounced and even asked for a stay of proceedings.* Service of a report containing a recital of the judgment or order will not be suffi- cient.^ § 370. Statutes iuterferiug with legitimate industries, etc. — All statutes for interference with legitimate industries or the ordinary uses of property, or for its removal or destruc- tion for being a nuisance or contributory to public evil, are treated with a conservative regard for the liberty of the citi- zen in his laudable business, and in the innocent enjoyment of his possessions, and generally the rights of property. Such interferences are cautiously justified on principles of the com- mon law, and only in cases of imperative necessity,'' or under valid statutes plainly expressing the intent.' 1 Jenkins V. Wild, 14 Wend. 539, 545. Gray, 359; Austin v. MuiTay, 16 2 Fry V. Bennett, 16 How. Pr. 402 : Pick. 121 ; Welch v. Stowell, 2 Doug. Valton V. National Loan, etc. Co. 19 (]Mich.) 332 ; AValker v. Board of id. 515. Public Works. 16 Ohio. 540 ; Wyne- 3 Rankin v. Pme, 4 Abb. Pr. 309. hamer v. People, 13 N. Y. 378-. Port 4Biagi V. Howes, 66 Cal. 469. Wardens of N. Y. v. Cartwright 4 5 Matter of N. Y. Cent. etc. R. R. Sandf . 236 ; Stevens v. State, 2 Ark. Co. 60 N. Y. 112. 291 ; Thorpe v. R & B. R R Co. 27 6 Mayor, etc. of New York v. Lord, Vt. 140 ; Miller v. Craig, 11 N. J. Eq. 18 Wend. 128; Respublica v. Spar- 175; Baitemeyer v. Iowa, 18 WalL hawk, 1 Dall. 357 ; Russell v. Mayor, 129. 137 : 3Iugier v. Kansas, 123 U. S. etc. 2 Denio, 461, 474. 623, 661 : AVatertowu v. Mayo, 109 ' Re Jacobs, 98 N. Y. 98 ; People T. Mass. 315, 319: Slaughter House Marx, 99 id. 377 ; Munn v. Illinois, 94 Cases, 16 Wall. 36 ; St;\te v. Gihuan. 33 U. S. 113; Brigham v. Edmunds, 7 W. Val46; 41 Alb. L. J. 24; Hughes 472 STKICT CONSTKUCTIOX. § 371. Statutes creating liability. — If a statute creates a liability where otherwise none would exist, or increases a com- mon-law liability, it will be strictly const rued.^ A statute^ even when it is remedial, must be followed Avith strictness, where it gives a remedy against a party who would not other- wise be liable.- The courts will not extend or enlarge the liability by construction ; they will not go beyond the clearly expressed provisions of the act.^ Statutes which create a Ua- bility in favor of " the widow and next of kin " of a person whose death has been caused by negligence are of this class. Actions founded on those statutes must strictly conform to them.^ Such an action cannot be given by implication.'^ The relief or remedy provided is not extended to any other per- sons than those mentioned in the statute.^ AYhen given to a^ '* child," an illegitimate has been held in England not within the statute, though the case was for negligently causing the mother's death ; ' but it has been held otherwise in this coun- try.® These statutes are confined to pecuniary damages, though it has been said that the word " damages " is not taken in a very strict sense.' Every element is excluded which is not in- V. Chester, etc. Ry. Co. 8 Jur. (N. S.) 5 Barrett v. Dolan, 130 Mass. 366 ; 221; S. C. 3 De Gex, F. & J. 352; S. C. 39 Am. Rep. 456. Mayor, etc. v. Davis, 6 W. & S. 269 ; ^ Green v. Hvidson R. R. R. Co. 32 Commonwealthv. Sylvester, 13 Allen, Barb. 25; Warren v. Englehart, 13 247 ; Shiel v. Mayor, etc. 6 H. & N. Neb. 283 ; Dickins v. N. Y. Cent R. 796 ; Wiener v. Davis, 18 Pa. St. 331 ; R. Co. 23 N. Y. 159 ; Woodward v. McGlade's Appeal, 99 Pa. St. 338; R'y Co. 23 Wis. 400. See Houston, Cooley's Const. Liui. eh. XVI. etc. R'y Co. v. Bradley, 45 Tex. 171. 1 Colin V. Neeves, 40 Wis. 393 ; " Dickinson v. Northeastern R'y Co. Steamboat Ohio v. Stimt, 10 Oliio St. 2 H. & C. 735 ; Blake v. Midland R'y 582 ; Moyer v. Penn. Slate Co. 71 Pa. Co. 10 L. & Eq. 437 ; Gibson v. Mid- St. 293 ; Lane's Appeal, 105 id. 49 ; land R'y Co. 15 Am. & Eng. R. R O'Reniy V. Bard, id. 569; HoUister Cas. 507; 2 Out. 658. See Gardner v. HollLster Bank, 2 Key es, 245; Mat- v. Heyer, 2 Paige, 11. ter of HolUster Bank, 27 N. Y. 383. « Muhl's Adm'r v. Midi. Southern 2 Chicago, etc. R. R. Co. v. Sturgis, R. R. Co. 10 Ohio St. 272. 44 Midi. 538 ; Steamboat Ohio v. » Tilley v. Hudson R. R. R. Co. 24 Stunt. 10 Ohio St. 582. N. Y. 474 ; Penn. R. R. Co. v. KeUer, 3 Detroit v. Putnam, 45 Mich. 263 ; 67 Pa. St. 300 : Union Pac. R. R. Co. Detroit v. Chaffee, 70 id. 80. v. Dundeu, 31 Am. & Eng. R. R. Cas. i Telfer v. Northern R. R. Co. 30 N. 88 ; S. C. 37 Kan. 1 ; Carroll v. Mo. J. L. 188, 209 ; Hayes v. Phdan, 4 Pac. R. R Co. 26 Am. & Eng. R R. Hun, 733; Galveston, etc. R R Co. v. Cas. 268; S. C. 88 Mo. 239 ; St. Law- Le Gierse, 51 Tex. 189. rence, etc. R R. Co. v. Lett, 26 Am. & STRICT CONSTKUCTION. 47.-J eluded in the meaning expressed I y " pecuniary damages." ' The South Carolina statute does not contain the restrictive word " pecuniary " to limit damages in such cases, and gives a broadur scope of recovery.- Though the action is given for the benefit of the widow and next of kin, the statute is not construed so strictly as to be limited to cases where there are both widow and next of kin.^ Xor are the next of kin required to be so nearly related as to create any duty of sustenance, support or education.'' Statutes allowing costs, it was ruled at an early day, should be taken strictly, as being a kind of penalty.'* This reason is not strictly correct. Costs are com- pensatory to the prevailing party ; they are allowed him to make his remedy more adequate. The liability to pay them is created by statute, because the party so made liable has fur- nished the occasion for incurring these costs. The obligation extends no further than it is plainly declared by the author- ity which creates it. The cases are numerous, but they con- tain very little discussion as to the rule of construction. The allowance of costs turns on the interpretation- of the terms of the statutes and the intention deduced therefrom, — they are strictly construed ; and neither costs nor salaries can be given Eng. R. R. Cas. 454 ; Telfer v. Northern 24 Md. 271 ; Baltimore, etc. R R Co. R R Co. 30 N. J. L. 188 ; Little Rock, v. Trainor, 33 id. 542 ; Jolmson v. Chi- etc. R. R. Co. V. Barker, 39 Ark. 491. cago, etc. R R. Co. G4 Wis. 425 ; S. C. 1 Id. ; Searles v. Kauawha, etc. R R. 25 Am. & Eug. R. R. Cas. 338. Co. 37 Am. & Eng. R R Cas. 179; ^Petrie v. Columbia, etc. R Co. 35 S. C. 33 W. Va. 370 ; Cleveland, etc. Am. & Eng. R. R Cas. 430 ; S. C. 29 R R Co. V. Rowan, 66 Pa. St. 393, 399 ; S. C. 303. See Beeson v. Green Moimt- Penn. R R v. Butler, 57 id. 335, 338 ; ain G. M. Co. 57 Cal. 20 ; Little Rock, Mo. Pac. R. R. Co. v. Lee, 35 Am. & etc. R'y Co. v. Barker, 39 Ark. 491. Eug. R. R. Cas. 364 ; S. C. 70 Tex. 496 ; 3 McMahou v. Mayor, etc. 33 N. Y. Gulf. etc. R'y Co. v. Le\y. 12 Am. & 642, 647. Eug. R. R. Cas. 90, 93 ; Baltimore, etc. * TiUey v. Hudson R R. R Co. R R Co. V. Hauer, id. 149 ; S. C. 60 24 N. Y. 474 ; Galveston, etc. R R Co. Md. 449 ; North Cliicago Rolling Mills v. Kutac, 37 Am. & Eng. R R Cas. Co. V. Morrissey, Adm'r, 18 Am. & 470 ; S. C. 72 Tex. 643 ; Petrie v. Co- Eng. R. R Cas. 47 ; S. C. Ill lU. 646 ; lumbia. etc. R R Co. supra; Railroad Bradburn v. Great W. R'y Co. L. R Co. v. Barron, 5 Wall. 90 ; Baltimore, 10 Ex. 1 ; Catawissa R. R. Co. v. Arm- etc. Co. v. Hauer, 12 Am. & Eug. R. R strong, 52 Pa. St. 282 : Kansas Pac. R. C;is. 149, 155 ; S. C. 60 Md. 449. See R. Co. V. Lundin, 3 Colo. 94 ; Macon, Pittsbm-gh, etc. R, R Co. v. Vining'a etc. R R Co. V. Johuson. 38 Ga. 409 ; Adm'r, 27 Ind. 513. David V. Southwestern R. R. Co. 41 id. 5 Cone v. Bowles, 1 Salk. 205. 223 ; Baltimore, etc. R. R. Co. v. Kelly, 474 STRICT CONSTRUCTION. or increased b}^ construction or in any indirect manner beyond the amount specified by Inw.^ § 37*?. A statute which declared that "in all actions to re- cover damages for torts the plaintiff shall recover no more costs than damages, where such damages do not exceed five dollars," was held not to authorize the court in such a case to render judgment against him for the residue of the costs.^ Statutes for the discharge of insolvent debtors are in deroga- tion of the rights of the creditor, and should on principle be construed strictly. Lord Holt said : " Let a statute be ever so charitable, if it gives away the property of the subject it ought not to be countenanced." ^ So it has been held of ex- emptions from execution.* There is in the purpose and pohcy of exemption and homestead statutes considerations which make them remedial, and which neutralize the principle of strict construction.' In a Michigan case it was said that such stat- utes, being remedial, and resting on a wise policy, should, as far as practicable, be construed beneficially to the debtor.^ A statute which subjects one man's property to be affected by, charged or forfeited for the acts of another, on grounds of pub- lic policy, should be strictly construed ; it cannot be done by implication.'^ So of a statute which deprives passengers riding on the platform of cars of compensation for injuries.^ § 373. Another notable example of statutory liability is that imposed on vendors of intoxicating liquors for injuries result- ing from intoxication,** and on lessors of property occupied for 1 Walker v. Sheftall, 73 Ga. 806; sCaUaday v. PiBdngton, 12 Mod. Adams v. Abram, 38 Mich. 302 ; Van 513. Home V. Peti-ie, 2 Cai. 213 ; Briggs v. ^ Buckingham v. BiUings, 13 Mass. Allen, 4 HiU, 538 ; Farrington v. Ren- 82 ; Danforth t. Woodward, 10 Pick, nie, 2 Cai. 220 ; Van Hovenburgh v. 423. Case, 4 Hill, 541 ; Vielie v. Towers, 5 Howard v, WiUiams, 2 Pick. 80, Colman & CaL 90 ; Dockstader v. Sam- 83. mons, 4 HiU, 546 ; Clark v. Dewey, 6 Alvord v. Lent, 23 Midi. 369. See 5 Johns. 251. Where the words of a posf, § 422. statute prescribing the compensation ' Steamboat Oliio v. Stimt, 10 Ohio of a pubUc ofl&cer are loose and ob- St. 582. Bcure, and admit of two interpreta- *> Willis v. Long Island R. R. Co. 32 tions, they should be consti'ued in Barb. 398. favor of the officer. United States v. 9 Bodge v. Hughes, 53 N. H. 614 ; Morse, 3 Story, 87. Brooks v. Cook, 44 Mich. 617 ; Friend - Ivey V. McQueen, 17 Ala. 408. v. Dunks, 37 id. 25 ; English v. Beaid, STRICT CONSTKUCTION. 475 that traffic' The iiabUit}' is expressed iu very general and absohite terms, and the liberality or conservatism of construc- tion is illustrated in tlie recognition or rejection of items or classes of damages claimed, within the broad range of the declared liability ; in the lax or stringent appHcation of com- mon-law rules to the allowance and estimate of compensation and to the procedure for its recovery. These acts give certain enumerated persons standing in some relation to the person from whose intoxication or habit- ual inebriety proceeds injury to means of support or otherwise, a right of action for compensatory damages, and often exem- plary damages. The remedial element in this legislation is a potent factor in the interpretation of its general language; consequently the conservative principle of strict construction of a statutory liability has to a great extent received second- ary consideration. The courts have aimed to give effect to and carry out the humane and ameliorating policy of these laws ; and while they do not transcend their letter, they do not greatly restrict their broad terms. In a case of this nat- ure - the court said : " It cannot be doubted that the stat- ute which we are considering comes w^ithin the class of reme- dial statutes, nor that under the above authorities ^ we have ample warrant, were it necessary-, for giving it the most lib- eral construction in the interest of justice and humanity." The Michigan statute enumerates as entitled to sue " every wife, child, parent, guardian, husband or other person." The inebriate himself was held not included, and not entitled to recover for money stolen from him while drunk. He is presumably injured in all cases, and the remedy should not be extended to him unless the intent to do so is unequivocally expressed."* It was held that the general words '' or other person," following the enumeration, must be understood to extend according to the general principle to persons of the 51 Ind. 489 ; Jackson v. Noble, 54 Berry, 75 N. Y. 229 ; :Meyers v. Kirt, Iowa, 641 ; Medbury v. Watson, 6 Met 57 Iowa, 421. 246 ; Thorpe v. R. & B. R. Co. 27 Vt - Buckniaster v. :McElroy, 20 Neb. 140 ; In re Jacobs, 98 N. Y. 98. 557. 1 Bertliolf V. O'Reilly, 74 N. Y. 509 ; ^ Sedgwick, 274 ; Dean and Chapter McGee v. McCann, 69 Me. 79 ; Hill y. of York v. Middlebiirgh. 2 Y. & J. 196. * Brooks T. Cook, 44 Mich. 617. •iTG STRICT CONSTKUCTION. same general character, sort or kind as those named.' From this it might be supposed that the injured person must stand in some relation to the intoxicated person. It had been inti- mated in a previous case- that strangers are embraced in the same clause with guardians, relatives, husbands and wives. In a very late case ^ it was held that these general words were intended to cover all persons injured in person or property by the intoxicated person. As "parent" a mother may sue for damages to her, at least in the absence of evidence that there is a father.^ Where the right of recovery is confined to in- jury to person, propert}^ or means of support, as in I^ew York, a father, though one of the persons enumerated to sue, cannot maintain the action if there is no injury to person or property, unless the case shows that he was dependent on the son.'^ But in Massachusetts, an adult son, not dependent on the father, when he has given notice forbidding sales to the latter, may maintain a suit, for the statute implies that other damages than to person, property or means of support may be recovered. The statute contemplates that the habitual drunkenness of a husband or wife, parent or child, is a sub- stantial injury to those bound together in domestic relations, and gives a right to recover damages in the nature of a pen- alty not only for iujur}^ to the person or property, but for shame and disgrace brought upon them." An Iowa statute declares a hability for compensation " to any person who may take chai'ge of and pro\dde for such intoxicated person." This provision was held not to include a physician who treated pro- fessionally one who was injured while intoxicated.^ § 374. As to injuries for which damages ma}^ be recovered there is considerable differences in the statutes, and, as might be expected, noticeable contrariety of decision. It is essen- tial where recoveries are allowed for injuries that there be actual damage. The right of action does not spring from the ' Citing Hawkins v. Great W. R'y * McNeil v. Collinson, 130 Mass. 167. Co. 17 Mich. 57 ; McDade v. People, 5 Stevens v. Cheney, 36 Hun, 1. 29 id. 50. ** Taylor v. Carroll, 145 Mass. 95. 2 Ganssly v. Perkins, 30 Mich. 492, See Friend v. Dunks, 37 Mch. 25. 495, 'Sanson! v. Greenough, 55 lowa^ 3 Flower v. Witkovsky. 69 Mich. 127. 371 ; English v. Beard, 51 Ind. 489. STRICT CONSTRUCTION. 477 stated relationships alone; and though the statute may in terms authorize, in addition to compensation, exemplary dam- ages, the latter will not be allowed unless there is actual in- jury,' Where the damage alleged is to the person, pliysical injury must be shown ; it is not enough that opprobrious lan- guage was used.- And to justify the award of exemplar}^ dam- ages, such circumstances of aggravation must be proven as are on general principles of the common law sufficient to au- thorize their allowance. They will not be permitted unless the act of giving or selling the intoxicating drinks was wilful, wanton, reckless, or otherwise deserving of punishment beyond what the requirements of compensation would impose.^ In Ohio, however, a different rule has been announced. In that state it has been held that in all actions in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation.^ Such damages only as are the natural and proximate consequence of the cause mentioned in the statute are allowed. General prin- ciples of the common law govern in their ascertainment.* They are not, however, confined to the direct and immediate consequences of intoxication, or the habit of drunkenness. The statutes give damages for injuries resulting therefrom to per- son, property, means of support, and in some cases there is added, " or otherwise." A natural interpretation necessarily extends the right of recovery to consequential injuries as they affect the subjects mentioned. It is not deemed to be the in- tention of the statute to narrow damages to injuries from the liquor alone, exclusive of other agency. That would fall short 1 Ganssly v, Perkins, 30 Mich. 493 ; v. Wells, 51 Hun, 171 ; Ketcham v. Calloway v. Laydon, 47 Iowa, 456. Fox, 52 id. 284. ^ Calloway v. Laydon, supra. * Schneider v. Hosier, 21 Ohio St 98. 3 Kadgin v. Miller, 13 111. App. 474 ; » Barks v. Woodruff, 12 IlL App. 96 ; Kreiter v. Nichols, 28 Mich. 496 ; Mei- Tetzner v. Naughton, id. 148 ; Shu- del V. Anthis, 71 111. 241 ; Hackett v. gart v. Egan, 83 IlL 56 ; Emory t. Smelsley, 77 id. 109; RawUns v. Vid- Addis, 71 id. 273; Hackett v. Smels- vard, 34 Hun, 205 ; Davis v. Standish, ley, 77 id. 109 ; Schmidt v. MitcheU. 26 id. 608, 616 ; Neu v. ]\IcKeclmie, 84 id. 195 ; Schi-oder t. Crawford. 94 95 N. Y. 632 ; Roose v. Perkins, 9 id. 357 ; Midford v. Clewell, 21 Ohio Neb. 304, 315; Bates v. Davis, 76 111. St. 191 ; Neu v. McKechnie. 95 N. Y. 222 ; Koerner v. Oberly, 56 Ind. 284 ; 632 ; Friend v. Dunks, 37 Mich. 25 ; ■Schaf er v. Smitli, 63 Ind. 226 ; McCarty Ganssly v. Perkins, 30 id. 492, 495. 478 STRICT COXSTRUCTION, of the remedy intended to be given. These statutes are de- signed for a practical end, to give a substantial remedy, and should be allowed to have effect according to their natural and obvious meaning.^ The act of selling or giving away liq- uor to a drunkard, thereby making him drunk, is made by the legislature identical with creatine;' the state of drunkenness which, in fact, ensues from the drinking. The party who thus furnishes the means of intoxication, and others who, like rent- ers of premises for that use, abet it, are treated as represented causally in that intoxication ; that they do by the intoxicated person the injury to person, property and means of support which naturally and proximately results from the intoxication.^ § 375. But the consequences must spring from the cause mentioned in the statute, not from some other fortuitous cir- cumstance, or the act of another person. A wife cannot main- tain an action for damages for an injury received by her fi'om falling on a slippery sidewalk while following her intoxicated husband to see where he obtained liquor.^ Injuries to the oerson or property of another committed by the intoxicated person, acting on the perverted impulses or frenzies of intoxi- cation, are recoverable.* And so far as the cause mentioned in the statute, intoxication or the habit, impairs the means of support by diminishing the capacity of the intoxicated person to earn money or prudently husband it, or by inducing him to squander it, an action will lie for the loss.'' Means of support relate to the future as well as to the present. In maintaining an action for loss of it, it must appear that in consequence of the intoxication or the acts of the intoxicated person the plaintiff's accustomed means of maintenance have been cut off or curtailed, or that he has been reduced to a state of depend- ence by being deprived of the support which he had before enjoyed.^ Where the death of the intoxicated person ensues from the intoxication as proximate cause, it is held in some 1 Schroder v. Crawford, 94 111. 357, Booth, 57 Midi. 349 ; English v. Beard, 361, 51 Ind. 489 ; Diinlap v. Wagner, 85 ^ See Schaf er v. State, 49 Ind. 460. id. 529. 3 Johnson v. Dnunniond, 16 IlL 5 Id. App. 641. 6 Volans v. Owen, 74 N. Y. 526 ; * King V. Haley, 86 IlL 106 ; Reed Mulford v. CleweU, 21 Ohio St 191 ; V. Thompson, 88 id. 245; Englekenv. Warrick v. Rounds, 17 Neb. 411. Hilger, 43 Iowa, 563; Wilson v. STRICT CONSTRUCTION. 479 states, and, logically, as it appears to the writer, to produce within the meaning of the statute a total loss of the means of support which would otherwise — that is, in the absence of the wi'ono-ful cause — be derivable from him.' In Mead v. Stratton - the court say : " It is evident that the legislature intended to go in such a case far beyond anything known to the common law, and to provide a remedy for in- juries occasioned by one who was instrumental in producing, or who caused, the intoxication. AVhile a statute of this char- acter should not be enlarged, it should be interpreted, where the language is clear and explicit, according to its true intent and meaning, having in view the evil to be remedied and the object to be attained." In Schroder v. Crawford ^ the supreme court of Illinois ad- vance the same view by saying : " It was not the intention that the intoxicating liquor alone, of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning. Any fair reading of the enact- ment must be that in the instances above,* as well as the present, the death would have been in consequence of the intoxication within the undoubted intendment of the statute." In accord- ance with this construction, wherever death or permanent disability occurs as the natural and proximate result of intoxi- cation, as where the intoxicated person lies down and is frozen to death, or drowned by a freshet, or is run over by a rail- road train,*^ or is permanently injured or kiUed by other mis- 1 Mead v. Stratton, 87 N. Y. 493 ; McCarty v. Wells, 51 Hun, 171 ; Roose Schroder v. Crawford, 94 IlL 357 ; v. Perkins, 9 Neb. 304 ; S. C. 31 Am. Hackett v. Smelsley, 77 id. 109 ; Roose Rep. 409. V. Perkins, 9 Neb. 304: ; Buckmaster ^ Rosecrants v. Shoemaker, 60 Midi. V. McElroy, 20 id. 557 ; Rafferty v. 4 ; S. C. 26 N. W. Rep. 794 ; Emory v. Buckman, 46 Iowa, 195. Addis, 71 IlL 273. In Indiana the 2 87 N. Y. 496. death under such circumstances is ' 94 IlL 361. held too remote an effect to be charged * Emory v. Addis, 71 IlL 373 ; Hack- to the i)erson who unlawfully sold the ett V. Smelsley, 77 id. 109. liquor which caused the intoxication. 5 Hackett v. Smelsley, 77 IlL 109; CoUier v. Early, 54 Ind. 559. The Buckmaster v. McElroy, 20 Neb. 557 ; court say : " The death of Early, 4-SO STRICT CONSTRUCTION. chtance or his own act, owing to his helplessness, frenz}^ ot abnormal condition, in a state of intoxication,^ this conse- quence is deemed within the statute when the complaint is for an injury to means of support. So where the intoxicated per- son shot and killed another and was convicted of criminal homicide and imprisoned for life.- But if he provokes a quar- rel and is killed therein, his death is but the remote conse- quence of the intoxication, and there can be no recovery there- for against the vendor of the liquor.^ § 376. A more conservative view has prevailed in some of the states. In Davis v. Justice ^ the supreme court of Ohio say: " Injuries by any intoxicated person or in consequence of the intoxication, are the terms of the statute ; and it is con- tended that if intoxication causes death, and death causes in- jur}^, the latter is within the meaning of the act. On the other hand, it is contended that as the legislature must be pre- sumed to have knovrn the state of the common lavr, and the extent of the innovation by the act of 1851 [an act requiring compensation for causing death by wrongful act, neglect or default], if a further innovation had been intended, such in- tention would have been expressed in unmistakable terms. We incline to the latter view. Indeed, when the injury to be compensated consists in the loss of labor, it is at least paradoxical to say that laljor which could not be performed during the life of the laborer is included. And again, in con- struing the words of the statute applicable to the case before us, it might be said that the action can be maintained only for an injury to means of support of the iDlaintiff as wife of the person intoxicated, and not for an injury sustained by her as his widow. She had an interest in his labor and in his capac- ity to labor, as a means of support, during his life; but after his death this means of support no longer existed, and was not the subject of injury or diminution. caused by a train of cars, is an effect Blatz v. Rohrbach, 42 Hun, 402 ; Davis which is not naturally, necessarily, v. Standish, 26 Hun, 608 ; Campbell nor even probably, connected with v. Sclilesinger, 48 id. 428. the fact of unlawfully selling intoxi- ^ Beers v. Walhizer, 43 Hun, 254. eating liquors to him by the appel- " Shugart v. Egau, 83 111 56. See lant whereby he became drunk." Lueken v. People, 3 111. App. 375; Krach v. HeUman, 53 Ind. 517. Swinfin v. Lowry, 37 IVIinn. 345. 1 Volans V. Owen, 74 N. Y. 526 ; * 31 Ohio St. 359. STRICT CONSTRUCTION'. 481 " But to avoid any charge of hypercriticism, we place our decision upon the ground that in view of the previous state of the law, and the mischief souglit to be remedied, we can find no expression in the statute that indicates an intention on the part of the legislature to bring the loss of labor caused by the death of the person intoxicated within the meaning of the term ' means of support,' for an injury to which the right of action is given by the statute." ^ The same view prevails in J^Iassachusetts."^ In Indiana the loss of " means of support," where death has oc- curred to a person in a drunken, insensible state in consequence of a train of cars striking him,^ or being crushed or f ataUy injured by a barrel of salt in the wagon in which he was laid to be •carried by a drunken associate,* has been denied, not on the ground of legislative intention excluding the right to recover in case of death, but on the common-law principle that the loss of support is too remote a consequence of the Avrongful cause mentioned in the statute. Worden, C. J., said : " ^Ye have seen that, if the plaintiff is entitled to recover, it is because she was injured ' in consequence of the intoxication' of the deceased. The immediate cause of the injury to the plaintiff was the death of the deceased. The remote cause may have been his intoxication, which led to his injuries, wliich injuries, in their turn, led to his death. The plaintiff, therefore, was not immediately injured by the intoxication of the deceased." • In CoUier v. Early ,« Biddle, J., said: "The death had not taken place immediately and directly upon the cause ; but it must be effected by a chain of natural effects and causes, un- changed by human action, or the party who committed the first act will not be responsible." ^ The authority of these utterances has been very much shaken by a later case.* In Michigan, though the statute provides absolutely for an action in favor of any person injured in person, property, means of support or otherwise, it is still an open question, and expressly recognized as such, whether an action will lie against one who lawfully sells to an adult person. AU the cases in that state 1 Kirchner v. Myei-s, 35 Ohio St. 85 ; < Krach v. Heilman, 53 Ind- 517. S. C. 35 Am. Rep. 598. * Ejrach v. Heilman, supra. 2 Barrett v. Dolan, 130 Mass. 366; ^ Supra, S. C. 39 Am. Rep. 456. TBackes v. Dant, 55 Ind. 181. 3 Collier v. Early, 54 Ind. 559. 8 Dunlap v. Wagner, 85 Ind 529. 31 482 STKICT CONSTRUCTION. have been jnclicially referred to as cases where the sale was- unlawful because in violation of the statute.^ § 377. In separate actions against one of the many per- sons whose sales to a drunkard have contributed to a particu- lar intoxication or to a besotted condition, the measure of the defendant's individual responsibility has sometimes been a sub- ject of consideration. The question has been whether one of a number who has so contributed, by separate and distinct sales, made without concert or agreement with the others, can be held liable for all the damage which has resulted, or for that part only which his own acts have caused. The common-law principle is that one is not liable for the whole damage done by several unless the wrong was done Avith such concert that all are jointly liable, and they are not jointly liable unless they did the wrongful act jointly, or unless it was done by their precon- cert or was subsequently jointly ratified and adopted.^ This rule seems to have been relaxed and departed from in Boyd v. "Watt, to facilitate the remedy.* The supreme court of Ohio say in that case : " If, as seems to be claimed, a defendant can only be liable, except in cases of conspiracy or agreement, when he is the sole cause of the habitual intoxication, and no recovery can be had unless the damages can be separated (an impossibil- ity in most cases of this class), then this part of the statute is virtually a dead-letter. Why should the defendant be exoner- ated from the injury he has caused by his habitual wrongs for a series of years by showing that others, without his knowledge, have also contributed by like means to this result ? He was using adequate means to produce the result, and may there- fore fairly be presumed to have intended it. True, he may not have enjoyed a monopoly in the profits accruing, by reason of the competition of others in a common business ; but that cer- tainly is no reason why he should not be liable for the injuries he was intentionally engaged in causing. If such is the law, 1 Bell V. Zelmer, 75 Mich. 66. See provement Co. 19 "Wis. 100 ; La France Jewett V. Wanshura, 43 Iowa, 574 ; v. KJrayer, 43 Iowa, 143 ; Little Schuyl- Myers V.Conway, 55 Iowa, 166; Wing kill Nav. Co. v. Eichards, 57 Pa. T. Benham, 76 id. 17 ; Myei-s v. Kii-t, St. 142 ; Bard v. Yohn, 26 Pa St 482 r 68 Iowa, 124 ; S. C. 64 id. 27. Stone v. Dickinson, 5 Allen, 59. 2 1 Suth. on Dam. 211-216, and 3 37 Ohio St 259. cases cited; Lull v. Fox, etc. Im- 8TKICT CONSTKUCTION. 483 then he could take advantage of his own wrong by showing that during these four years another or others had contributed.'^ In such a case it is held in Iowa that the wrong is not joint ; that several contributing separately cannot be sued together, nor when sued separately the Avhole damage recovered. Each is liable only for his own act ; a recovery against or a release of another is no defense.^ In La France v. Krayer ^ the court say : "A joint liability arises when an immediate act is done by the co-operation or joint act of two or more persons. Mere successive wrongs, being the independent acts of the persons doing them, will not create a joint habiUty, although the wrongs may be committed against the same person. There must be concurrent action, co-opera- tion or a consent or approval in the accomplishment by the wrong-doers of the particular wrong, in order to make them jointly liable." But the court was careful to say : " But we are not to be understood as denying a joint liability in cases where the successive sales by several have produced a i)articu- lar intoxication from which the injury sued for has resulted." Accordingly, in a case which came before it the following year,3 the same court used this language : " If a dozen saloon- keepers should each sell a drink of whisky to a party, from the combined effect of which he should become intoxicated, and should beat another or destroy his property, the law has na means of determining the exact amount of the injury which is chargeable to each. Under such circumstances we have no doubt they are joint wrong-doers, and that each is liable for the injury done by all. They could all be sued together, or one, or any number of them, separately. But there could be but one satisfaction for the injury." ■* But where the statute pro- 1 La France v. Krayer, 42 Iowa, 2 42 lowa, 143, 145. 143 ; Flint v. Gauer, 66 id. 696 ; Rich- s Kearney v. Fitzgerald, 43 Iowa,, mond T, Shickler, 57 id. 486 ; Ennis 580, 583. V. SliUey, 47 id. 553 ; Hitcliner v. * Under the Nebra.ska statute it has Ehlers, 44 id. 40 ; Ward v. Thompson, been held in that state that an action 48 id. 588 ; Engleken v. Webber, 47 can be maintained by the widow and id. 558 ; Jewett v. Wanshura, 43 id. infant cliUdren, jointly or severally, 574; Woolheather v. Eisley, 38 id. whose husband and father has lost 486 ; Jackson v. Noble, 54 id. 641 ; his life in consequence of intoxica- Keamey v. Fitzgerald, 43 id. 580; tion, against any and all persons, Huggins V. Kavanagh, 52 id. 368. jointly or severally, who sold, gave 484 STKICT CONSTKUCTION. vides for an action and authorizes a recovery against any per- son who by selling or furnishing the intoxicating drink causes or f ui-nished any intoxicating liquors wliich were di-ank by liim on the day or about the time of such intoxica- tion. Kerkow v. Bauer, 15 Neb. 150. The following are the important sec- tions of the Nebraska act, in chap- ter 50, Revised Statutes: "Sec. 11. All persons who shall seU or give away, upon any pretext, malt, spii'it- uous or vinous hquors, or any intoxi- cating di'inks, without having iirst comphed with the provisions of this act, and obtauied a Ucense as herein set forth, . . . shall be liable in aU respects to the public and to in- dividuals tlie same as he would have been had he given bonds and obtained license as herein provided. " Sec. 15. The person so licensed shall pay all damages that the com- munity or individual!: may sustain in consequence of such traffic ; he shall support all paupers, widows and or- phans, and the expenses of all civil and criminal prosecutions growing out of or justly atti-ibutable to the traffic in intoxicating drinks, etc. " Sec. 16. It shall be lawful for any maiTied woman or any other person at her request to institute and maintain in her own name a suit on any such bond for all damages sustained by herself and childi-en on account of such traffic, etc. "Sec. 18. On the ti'ial of any suit under the provisions hereof, the cause or foundation of which shall be the acts done or injuries inflicted by a person under the influence of Hquor, it shall only be necessary, to sustain the action, to prove that the defend- ant or defendants sold or gave Hquor to the person so intoxicated or under the influence of hquor, whose acts or injuries are complained of, on that day or about that time when said acts were committed or said injuries received," etc. As to the scope or facihty of redress under this legisla- tion, the court in the case last cited say : " We cannot apply the common- law niles of pleading to this casa Wliile the law provides for Ucensing the sale of intoxicating Uquors, it re- gards the making of a person intoxi- cated, or the selhng or fmnishing a person intoxicating hquors with which he makes himself intoxicated, as a tort or wi-ong, and holds such person so selling or furnishing re- sponsible for certain of the conse- quences of such intoxication. And to provide against the difficulty, or rather impossibihty, of proving whether it was the first, middle or last di'ink that caused the intoxica- tion, the statute provides that in such cases ' it shall only be necessary, to sustain the action, to prove that the defendant or defendants sold or gave hquor to the person so intoxi- cated or under the influence of hq- uor, whose acts or injm-ies are com- plained of, on that day or about that time when said acts were committed or said injmies received.' While this statute does not in terms state what it will be necessary to plead or aUege in such case, yet when we con- sider the object and office of plead- ing, we must regard the provision of the section as applying as weU to the pleading as to the proof. If I am correct in tliis view, then it made no difference that each of the defendants was doing business for and by himseK, and sold each his separate glass of hquor to the deceased as his individ- ual act in which the other two de- fendants had no interest Wliile the act of each defendant in selhng the liquor was his own individual act, STRICT CONSTKUCTION. 485 " in wliolc or in jiart " tlie intoxication, habitual or other- wise, there is no apportionment of damages; full recovery- is allowed against any one who contributed to the statutory wrong.^ § 378. PuMic grants of titles andfranchises.— The words of a private grant are taken most strongly against the grantor,' though if the meaning cannot be discovered the instrument is void.* But this rule is reversed in cases of public grants. They are construed strictly in favor of the government on grounds of public policy." If the meaning of the words be yet the law makes them in certain contingencies jointly interested in and responsible for the intoxication caused thereby. And it was only nec- essary to allege and prove the fact of selling or furnishing intoxicating liq- uors by the defendants to the deceased on or about the day of his intoxica- tion." 1 Neuerberg v. Gaulter, 4 111. App. 348 ; Bryant v. Tidgewill, 133 Mass. 86; Werner v. Edmiston, 24 Kan. 147 ; O'Leary v. Frisbey, 17 lU. App. 553 ; Rantz v. Barnes, 40 Ohio St 43 ; AJdrich v. ParneU, 147 Mass. 409. In the Michigan statute this Uabdity is not declared in terms to attach to any person who causes the intoxica- tion " in whole or in part," but the same rule is applied. Graves, J., speaking for the court in Steele v. Thompson, 43 Mich. 596, said : " The question is one of constniction ; and whatever opinion may have been formed in otlier states of provisions having some resemblance to om-s, we must attend to the sense and spirit of our own enactments and judge ac- cordingly. Now the statute we are considering proceeds upon the idea that there has been an injury which the defendant by some of the nunms indicated has contributed to produce, and that he shall be liable lor the whole injury and not merely for such portion as a jury, if able to agree upon any scale of apportionment, may assign as his actual share or quota. . . . And besides being a natural intei-pretation, and one which accords -with the apparent policy of the legislation, it has the merit of reUeving the remedy of much com- pUcation and embarrassment" See Kearney v. Fitzgerald, 43 Iowa, 580. 2 Co. Lit 63a; Shep. ToucK 87. 3 Taylor v, St Helens, L. R 6 Ch. Div. 264. * Martin v. Waddell, 16 Pet 411 Mills V. St Clair Co. 8 How. 581 Binghamton Bridge, 3 WalL 51 Green's Estate, 4 Md. Ch. 349 ; United States V. Arredondo, 6 Pet 738-9; State V. Bentley, 23 N. J. L. 532, 538 ; Bridge Co. v. Hoboken, etc. Co. 13 N. J. Eq. 94 ; Commonwealth v. Roxbmy, 9 Gray, 451, 492 ; Slidell v. Grandjean, 111 U. S. 412 ; Hanmbal, etc. R R Co. V. Packet Co. 125 id. 260, 271 ; Cmrier v. Marietta, etc. R R Co. 11 Ohio St 22S ; Mayor, etc. v. Ohio, etc. R R. Co, 26 Pa. St 355 ; Mmers' Bank v. United States, 1 Greene (Iowa), 553 ; Mayoi', etc. v. Macon, etc. R R Co. 7 Ga. 221 ; Talmadge v. Coal, etc Co. 3 Head, 337 ; Brennan v. Brad- shaw, 53 Tex. 330 ; Maddox v. Graham, 2 Jlet (Ky.) ')Q; Justices A'. Griffin, etc. Plk. R, Co. 9 Ga. 475 ; Bank of Louisiana v. "Williams. 4S Miss. 618 ; Gaines v. Coates, 51 id. 335. 486 STEICT CONSTEUCTIOIT. doubtful in a grant designed to be of general benefit to the public, they wUl be taken most strongly against the grantee and for the government, and therefore should not be extended by impHcation in favor of the former beyond the natural and obvious meaning of the words employed.^ Any ambiguity in the terms must operate in favor of the government.- Whatever is not unequivocally granted is taken to be withheld.' Whether the grant be of property, franchises or privileges, it is construed strictly in favor of the public ; nothing passes but what is granted in clear and explicit terms ; * but it will be construed reasonably for the purpose the act con- templates.^ The object and end of all government is to pro- mote the happiness and prosperity of the people by which it is established ; and it cannot be assumed that the govern- ment intended to diminish its power of accomplishing the end for which it was created." It is therefore never implied that it has surrendered, in whole or in part, any of its sovereign power of legislation for the general welfare — of police, of taxation, or of eminent domain.^ In its grants of land there is implied no covenant to do or not to do any further act in re- lation thereto.^ So if it grants a public franchise to a corpo- 1 Mills V. St. Clair Co. supra. Co. 87 Pa. St 34 ; Brocket v. Ohio & 2 Richmond R.R Co. V. Louisa R.R. P. R. Co. 14 id. 241. A chaiter Co. 13 How. 81 ; Grant v. Leacli, 20 granted by two states to a railroad La. Ann. 329 ; McLeod v. Burroughs, company is a contract with it and 9 Ga. 213. also a compact bet-ween the states, * Holyoke Co. v. Lyman, 15 WaU. and is to be hberaUy construed- 500, 512. Cleveland & P. R. Co. v. Speer, 56 Pa, < Rice V. Railroad Co. 1 Black, 358, St. 325. 380 ; Ohio Life & Trust Co. v. Debolt, « Charles River Bridge v. Warren 16 How. 435 ; Commonwealth v. Erie, Bridge, 11 Pet. 420, 447. etc. R. R. Co. 27 Pa. St. 339 ; Stour- i Id. ; Providence Bank v. Billings, bridge Canal v. Wheeley, 2 Barn. & 4 Pet. 514 ; West River Bridge Co. v. Ad. 792 ; Parker v. Great W. R'y Co. 7 Dix, 6 Hoav. 528 ; Bridge Co. v. Ho- M. &Gr. 253; Gaines v.Coates, 51 Miss, boken, etc. Co. 13 N. J. Eq. 81, 94; 335 ; Green's Estate, 4 Md. Ch. 349 ; Rice v. R. R. Co. 1 Black, 358, 380 ; La Plaisance Bay Harbor Co. v. Mon- Holyoke Co. v. Lyman, 15 WaU. 500, roe, Walk. Ch. (Mich.) 155 ; Townsend 512 ; Piscataqua Bridge Co. v. New V. Brown, 24 N. J. L. 80 ; Mon-is Canal, Hampshire Bridge Co. 7 N. H. 35 ; etc. Co. V. Central R. R. Co. 16 N. J. Turnpike Co. v. State, 3 WaU. 210 ; Eq. 419, 436 ; Harrison v. Young, 9 Lehigh Water Co. v. Easton, 121 U.S. Ga. 359. 388, 391. » Newark Plank R. Co. v. Elmer, 9 «* Jackson v. Lamphire, 3 Pet 289. N. J. Eq. 754; Whittaker v. Canal 8TRICT CONSTRUCTION. 487 aration, as to build and maintain a road or bridge, or to estab- lish a ferry, no contract is implied that it will make no new competing grant.' In Stourbridge Canal v. "Wheeley ^ the court say : " The canal having been made under an act of parliament, the rights of the plaintiffs are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the pubhc, the terms of which are expressed in the stat- ute ; and the rule of construction in all such cases is now fully established to be this : that any ambiguity in the terms ol the contract must operate against the adventurers and in favor of the pubhc ; and the plaintiffs can claim nothing that is not clearly given to them by the act." " And the doctrine thus laid down," says Taney, C. J., speaking for the court in Charles Eiver Bridge v. Warren Bridge,^ " is abundantly sustained by the authorities referred to in this decision. The case itself was as strong a one as could well be imagined for Sfivinir to the canal company, by implication, a right to the tolls they de- manded. Their canal had been used by the defendants to a very considerable extent in transporting large quantities of coal. The rights of all persons to navigate the canal were ex- pressly secured by the act of parHament, so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, as they only used one of the levels of the canal, and did not pass through the locks ; and the statute in giving the right to exact the toll had given it for articles which passed ' through any one or more of the locks,' and had said nothing as to toll for navigating one of the levels, the court held that the right to demand toll, in the latter case, could not be implied, and that the company were * Charles Rivei- Bridge v. "Warren U. S. 791 ; Mintui-n v. Larue, 23 How. Bridge, supra; Leliigh Water Co. v. 435 ; Birmingham, etc. St R'y Co. v. Easton, supra; Tuckahoe C. Co. v. T. Bkmingham St R'y Co. 79 Ala 465 ; R. R Co. 1 1 Leigh, 42 ; Saginaw Gas Brenham v. Brenham Water Co. 67 Light Co. V. Saginaw, 28 Fed. Rep. Tex. 542 ; Grand Rapids Electric ^o29; State v. Cincinnati Gas Light Light, etc. Co. v. Grand Rapids, eta -Co. 18 Oliio St 262 ; Davenport v. Co. 33 Fed. Rep. 659. Kleinschmidt 6 Mont 502 ; Noi-wich 2 o garn. & Ad. 793. Gas Light Co. v. Noi-vvich City Gas sil Pet 545. VJo. 25 Conn. 18 ; Wright v. Nagle, 101 4:88 STEICT CONSTKTJCTION. not entitled to recover it. This was a fair case for an equi- table construction of the act of incorporation, and for an im- plied grant, if such a rule of construction could ever be per- mitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labors and used the canal freely and extensively for their own profit. Still the right to exact toll could not be implied, because such a privi- lege was not found in the charter." Under a grant to a plani- road company to lay its road on an established highway it is not authorized to take exclusive possession and deprive the public of its use.^ Authority to incorporate does not include the right to take lands by devise.^ § 379. These principles have been steadily recognized in the construction of land grants made by the federal government in aid of railroads and other like enterprises.'* These grants are laws as well as contracts, and are to be construed to effectuate the legislative intent, and this must sometimes be deduced from complex provisions. To ascertain such intent the court may look to the condition of the country when the acts were passed as well as to the purpose declared on their face, and read aU parts of them together.* Grants of lands on water-courses from the state, with the appurtenances, do not convey the right of public ferry, though the right of private ferry passes with the fee.* A public franchise can be created only by an act of the legislature.^ Acts for the incorporation of municipal 1 Justices V. Griffin, etc. Plank R 113 U. S. 618; Jackson, etc. E. R Co. Co. 9 Ga. 475. v. Davison, 65 Mich. 416 ; Nash v. 2 Jackson v. Hammond, 2 CaL Cas. Sullivan, 29 Minn. 206 ; Schulenberg 337 ; Corporation v. Scott, 1 Cai. 544 ; v. Harrinian, 21 Wall. 44 ; Missouri, Jackson v. Cory, 8 John. 385. etc. R R. Co. v. K. R R R Co. 97 3 Leavenworth, etc. R. R Co. v. U. S. 491 ; St. Paul, etc. R R Co. v. United States, 92 U. S. 733 ; Rice v. Greenhalgh, 26 Fed. Rep. 563 ; Wol- RaDroad, 1 Black, 358; Slidell v. cott v. Des Moines Co. 5 WalL 681; Grand jean. 111 U. S. 413; Jackson, Wolsey v. Chapman, 101 U. S. 755; etc. R R Co. V. Davisoii, 65 Mich. Dubuque R R Co. v. Des Moines 416 ; St. Paul, etc. R'y Co. v. Phelps, R R. Co. 109 U. S. 329 ; Kansas Pa- 26 Fed. Rep. 569; Swann v. Jenkins, cific R'y Co. v. Dunmeyer, 113 id. 82 Ala. 478 ; Dubuque, etc. R R. Co. 629. V. Litchfield, 23 How. 66 ; Nash v. & Harrison v. Young, 9 Ga. 359. Sulhvan, 29 Minn. 206. « Clark v. Wilkie, 4 Sti'ob. 259. See ♦ Winona, etc. R R Co. v. Barne3% Wiswall v. Hall, 3 Paige, 313. STRICT CONSTKUCTION. 489 corporations and grants of power therein arc to be strictly construed.^ § 380. As municipal corporations are vested with a portion of the authority which pro})erly appertains to the sovereign power of the state, they must be confined to those powers which are clearly granted, as it is only by such grants that the govern- ment proper can delegate its just authority. JSTor, as a gen- eral rule, can any evil arise from such construction, since the inhabitants of the corporation are not deprived of that protec- tion which the state extends to her citizens in general. The power of the corporation is merely something added, as to the particular locality, to the general powers of government; or, in other words, it is a special jurisdiction, created for specified purposes, and, like all such jui-isdictions, it must be confined to the subjects specially enumerated.- The settled rule of construction of grants by the legislature to corporations, whether public or private, is that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the pubhc.^ 1 Commissioners v. Andrews, 18 15 Jolin. 358 ; Leonard v. Canton, 35 Ohio St. 64 ; Treadwell v. Commis- Miss. 189 ; Hodges v. Buffalo, 2 Denio, sioners, 11 id. 190. 110 ; Clark v. Davenport, 14 Iowa, 495 ; 2 Leonard v. Canton, 35 IMiss. 189 ; Merriam v. Moody's Ex'rs, 25 id. 163 ; Mills V. Williams, 11 Ired. L. 558. Lafayette v. Cox, 5 Ind. 38 ; Smith v. 3 Mintum v. Larue, 23 How. 435 ; Madison, 7 id. 86 ; Kyle v. Malin, 8 id- DilL on Mim. Corp. §§ 22, 55 and notes ; 34, 37 ; Douglass v. Placer\ illo, 18 Cal. Lima v. Cemetery Asso. 5 Am. & 643 ; Wallace v. San Jose, 29 id 180 ; Eng. Corp. Cas. 547 ; S. C. 42 Oliio Argenti v. San Francisco, 16 id. 282 ; St 128 ; Bridgeport v. R. R Co. Nichol v. Nashville, 9 Humph. 252 ; 15 Conn. 475, 501 ; Dugan v. Bridge People v. River Raisin, etc. R. R. Co. 13 Co. 27 Pa. St 303 ; Petersburg v. Midi. 389 ; Willard v. Newburj-port Metzker, 21 IlL 205 ; Cleveland, etc. 12 Pick. 227 ; Keyes v. Westford, 17 id. R R Co. v. Erie, 27 Pa. St 380 ; New 273 ; Commonwealth v. Turner, 1 London v. Brainard, 22 Conn. 552 ; Cush. 493 ; Cooley v. Granville, 10 id. Hartford Bridge Co. v. Union Ferry 56 ; Vincent v. Nantucket, 12 id. Co. 29 id. 210 ; Thomson v. Lee Co. 3 103 ; Paine v. Spratley, 5 Kan. 525 ; Wall. 327 ; Thomas v. Richmond, 12 Trustees, etc. v. [McConnel, 12 IlL 140 ; id. 349; Bridge Co. v. Hoboken, etc. Caldwell v. Alton, 33111.416; DeRus- Co. 13 N. J. Eq. 81 ; Stetson v. Kempton, sey v. Davis, 13 La. Ann. 468 ; Mays 13 Mass. 272 ; People v. Utica Ins. Co. v. Cinciimati, 1 Ohio St. 268 ; Com- 490 STRICT CONSTKUCTION'. § 381. This principle is derived from the nature of corpora- tions, the mode in which they are organized and in which their affairs must be conducted. In aggregate corporations, as a general rule, the act and will of a majority is deemed in law the act and will of the whole — as the act of the corporate body. The consequence is that a minority must be bound, not only without but against their consent. Such an obhga- tion may extend to every onerous duty : to pay money to an unlimited amount, to perform services, to surrender lands, and the like. It is obvious, therefore, that if this liabihty were to extend to unlimited and indefinite objects, the citizen, by be- ing a member of a corporation, might be deprived of his most valuable personal rights and liberties. The security against this danger is in a steady adherence to the principle stated, namely, that corporations can only exercise their powers over their respective members for the accomplishment of limited and defined objects. And if this principle is important as a general rule of social right and municipal law, it is of the high- est importance in those states where corporations have been extended and multiplied so as to embrace almost every object of human concern.^ The natural construction of a charter creating a corporation is that all the privileges conferred, all the duties declared, and all the burdens imposed, relate to it as a whole, and not to the individuals composing it. And although it may be enacted, it ought to be clearly done, before the corporators, as natural persons, can be affected." § 382. It results from these principles that a corporation cannot be brought into existence except by a statute immedi- ately creating it, or authorizing proceedings for its organiza- tion.'' The charter serves a twofold purpose : It operates as a law conferring upon the corporation the right or franchise missioners v. Mighels, 7 id. 109 ; restrictions upon the rights of a com- GaUia Co. v. Holcomb, 7 Ohio, 232 ; munity, but to promote science and State V. Mayor, 5 Port 279; City the useful ai-ts, and are to be liberally Council V. Plank R. Co. 31 Ala. 76 ; construed. Blanchard v. Sprague, 2 Burnet, Ex parte, 30 id. 461 ; Bangs v. Story, 164. Snow, 1 Mass. 181 ; Le Couteulx v. i Spaulding v. Lowell, 23 Pick. 71. Buffalo, 33 N. Y. 333 ; Waxahachie v. 2 state v. Bank of Newbern, 1 Dev. Bro^vn, 67 Tex. 519 ; Pittsburgh's Ap- & Bat. Eq. 219. peal, 115 Pa. St. 4. Patents for inven- » 1 Morawetz on Corp. § 317. tionfl are not granted as monopolies or STKICT CONSTKtlCnON. 491 to act in a corporate capacity, and furthermore it contains the terms of the fundamental agreement between the corpo- rators themselves.^ The powers of a corporation organized under statutes are such, and such only, as the statutes con- fer. Consistently with the rule applicable to all acts, that what is fairly implied is as much granted as what is expressed, it is true that the charter of a corporation is the measure of its powers, and that the enumeration of those powers implies the exclusion of all others.^ § 383. Ko particular form of words is necessary to create ;i corporation, but the intention to do so must be plainly in- ! licated by the statute. If the purpose be left doubtful, the act will be construed against the claim of the parties setting it up.' The incorporation may result from necessary imphcation in the construction of a statute, as well as its purpose and powers. But, while express words of incorporation are not essential to create a corporation, and one may arise without such words out of the general language of a statute, if a corporation is necessary to accomplish the purpose of the act, still where no such necessity exists or such intention is otherwise implied a corporation will not be created by implication.* A general law providing the mode in which private corporations may be organized for business purposes will warrant the organization of a corporation for any purpose which is within the language 1 1 Morawetz on Corp. § 316. Dock Co. 40 Cal. 83 ; PuUan v. Cincin- 2 Thomas v. Raili-oad Co. 101 U. S. nati, etc. R.R. Co. 4 Biss. 35 ;]\Iatthews 82 ; Richmond, etc. R. R. Co. v. Lou- v. Skinker, 62 Mo. 329 ; State v. Krebs, isa R. R Co. 13 How. 91; Dart- 64 N. C. 604 ; New London v. Brainard, mouth College v. Woodwai-d, 4 22 Conn. 552 ; Brooklyn Gravel R, Co. Wheat. 581, 636 ; Fertilizing Co. v. v. Slaughter, 33 lud. 185 ; Belkneyer v. Hyde Park, 97 U. S. 659 ; Perrine v. Independent Dist. etc. 44 Iowa, 564 ; Chesapeake, etc. Canal Co. 9 How. Babcock v. New J. Stockyard Co. 20 172 ; Bank of United States v. Dan- N. J. Eq. 296 ; Aug. & A. on Corp. dridge, 12 Wheat 68; Steam Nav. gill. Cq v. Dandridge, 8 Gill & J. 318; ^Fenn. R. R. Co. v. Canal Com'rs, Ruggles V. Illinois, 108 U. S. 526 ; Head 21 Pa. St. 9. See 1 Waterm. on Corp. V. Providence Ins. Co. 2 Cr. 127; §29. Wecklerv. First Nat Bank, 42 Md. < Walsh v. Trustees, etc. 96 N. Y. 581 ; Brady v. Mayor, etc. 20 N. Y. 427 ; S. C. 6 Am. & Eng. Corp. Cas. 312 ; Tyng v. Commercial Warehouse 45 ; Kreiger v. Slielby R. R. Co. 84 Ky. Ca58id.308;Strausv. EagleIus.Co. 5 66; Newport Marsh Trustees, Ex Ohio St 59 ; Overmyer v. WiUiams, parte, 16 Sim. 346. 15 Ohio, 31 ; Vandall v. South T. F. 492 STKICT CONSTKUCTIOJS. and import of the statute, though such particular purpose be one that the legislature could not have foreseen — as where it is to utilize a subsequent invention. Thus, under a general act authorizing the formation of corporations for the purpose " of building and operating telegraph lines or conducting the busi- ness of telegraphing in any way," telephone corporations may be organized and operate, because it is a mode of telegraph- ing.^ In this case Cassoday, J., speaking for the court, said : "As for the difference in the mode of communication by means of a telegraphic and a telephonic apparatus, see Attorney- General V. Edison Telephone Co. of London.^ In that case Mr. Stephen, one of the judges of the exchequer division of the high court of justice, who, unhke most American judges, seems to have sufficient time, not only to satisfy his own curi- osity, but the curiosity of all the curious, has given a very lengthy and definitive discussion of that subject. In that case the court conclude that Edison's telephone was a telegraph, within the meaning of the telegraph acts, although the tele- phone was not invented nor contemplated when those acts were passed. It is there said, in effect, that the mere 'fact,' if it is a fact, that sound itself is transmitted by the telephone,, establishes 'no material distinction between telephonic and telegraphic communication, as the transmission, if it takes place, is performed by a wu^e acted on by electricity.' It is there further said that, ' of course, no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actuaUy did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence.' It is upon this theory of progressive construction that the powers conferred upon congress to regulate commerce and to establish post-otfices and post-roads have been held not confined to the instrumentahties of commerce or of the postal service kno »vn when the constitution was adopted, but keep pace with the progress and development of the country, and adapt them- selves to the new discoveries and inventions which have been 1 Wisconsin Telephone Co. v. Osh- ^JL. R. C Q. B. Div. 244 kosh, 63 Wis. 32 ; S. C. 8 Am. & Eug. Corp. Cas. 538. 6TKICT CONSTEUCTION. 493 brought into requisition since the constitution was adopted, and hence include carriage by steamboats and railways, and the transmission of intelligence by telegraph." ^ § 384. A city having the power to make contracts and to provide itself with water or other necessary thing is not thereby authorized to grant to a company the exclusive right to sujv ply it for a given period.- A statute conferring upon the common council of a city jurisdiction to judge of the election of its own members does not exclude the jurisdiction of the courts in that behalf, unless the grant of power to the council is expressly or by necessary implication exclusive.' A power conferred by the charter on the common council to provide for lighting the city, and to alter lamp districts, cannot be del- egated to a committee for final decision.* § 385. When a corporation has been organized for a specific purpose it must pursue the mode prescribed for effecting that object and observe prohibitions ; but otherwise it may proceed in the customary way, and in its business adopt the same methods to attain its legitimate objects, and deal in precisely the same way, as natural persons may who seek the accom- plishment of the like ends.* iPensacola Telegraph Co. v. W. U. 66 Tex. 428; Whyte v. Mayor, etc. 2 TeL Co. 96 U. S. 1. See State v. Cin- Swan, 364 cinnati, etc. Co. 18 Ohio St. 262. •'' Barry v. Merchanta' Exchange 2 Brenham v. Brenham Water Co. Co. 1 Sandf . Ch. 289 ; WiUmarth v. 67 Tex. 542 ; Leliigh Water Co. .v. Crawford, 10 Wend 342 ; Beera v. Easton, 121 U. S. 388 ; Davenport v. Plioenix Glass Co. 14 Barb. 358 ; Part- Kleinschmidt, 6 Mont 502 ; Saginaw ridge v. Badger, 25 id. 146 ; Richai'd- Gas Light Co. v. Saginaw, 28 Fed. son v. Mass. Charitable Asso. 131 Eep. 529 ; State v. Cincmnati Gas L. Mass. 174 ; State v. Bank of Md. 6 GiU & C. Co. 18 Ohio, 262 ; Grand Rapids & J. 205; Clark v. Farriugton, 11 E. L. Co. V. Grand Rapids E. etc. Co. Wis. 306, 333 ; Wendel v. State, 62 id. 33 Fed. Rep. 659 ; Gas Co. v. Parkers- 300, 304 ; AVhite W. Valley Canal Co. burg, 30 W. Va. 435 ; Citizens' Gas, v. Vallctte, 21 How. 414, 424 ; Union etc. Co. V. Elwood, 114 Ind. 332. Bank v. Jacobs, 6 Huuiph. 515, 525; 3 State ex reL v. Kempf, 69 Wis. Ohio Life Ins. etc. Co. v. Merchants' 470, and authorities cited. But see Ins. etc. Co. 11 id. 1, 22 ; INIayor, etc. v. People V. Metzker, 47 CaL 524 ; Pea- Second Ave. R. R. Co. 32 N. Y. 261 ; body V. School Com. 115 Mass. 383; State v. Washington Social L. Co. 11 Commonwealth v. Leech, 44 Pa, St OMo, 96 ; Webster v. People, 98 111. 332; Lamb v. Lynd, id. 336; Com- 343; Bank of Augusta v. Eaiie, 13 monwealth v. Meeser, id. 341. Pet 519 ; Hay ward v. Pilgrim So- * Mnneapolis Gas L. Co. v. Minne- ciety, 21 Pick. 270, 276 ; Baird v. Bank apolis, 36 Minn. 159; Russell v. Cage, of Washington, 11 Serg. & R 418; 494: STRICT CONSTKUCTION. § 386. Public rights will not be treated as relinquished or conveyed away by inference or legal construction.^ Statutes permitting the state to be sued are in derogation of its sov- ereio*nty and wiU be strictly construed.^ Where a municipal corporation was granted the privilege " to use the ground or soil under any roads, railroad, highway, street line, alley or court within this state," for conduits to convey water, on con- dition of restoring the surface to the original condition, it was held that the placing of the pipes pursuant to this grant under a street did not preclude the city authorities from changing the grade of the street, and thereupon compelling the grantee to lower the pipes.^ A public grant of land bordering on tide water will not, without express words, convey the seashore between high and low-water mark.* And where an act ex- tends a municipality over such waters, it will acquire no prop- erty in the soil within those limits.' For many purposes connected with civil and criminal proceedings and judicial juris- diction, the body of a county extends not only over the sea- shore, but to some distance below the ebb of the tide ; and for the like purposes, towns may be considered as having a co- extensive jurisdiction; but this has no bearing upon the ques- tion of property. An act of incorporation, therefore, without words of grant of the soil, would vest no part of the property of the government in such town. Nor was the purpose of the organization of such a nature as would require of the govern- ment any portion of the public right vested in it for the public use and benefit, and therefore no portion of the jus publicum will be presumed to have been granted without express words.^ A grant of a right to build a bridge does not confer a right to obstruct navigation.' Nor, under a general power to a munic- Chester Glass Co. v. Dewey, 16 Mass. 3 Jersey City v. Hudson, supra. 102; Story on Bills, 879; 2 Kent's 4 Commonwealth v. Roxbury, 9 Com. 239 ; 1 Moraw. on Coi-p- § 320 ; Gray, 451 ; East Haven v. Heming- Ang. & A. on Corp. §§ 111, 145 ; 1 way, 7 Conn. 186 ; Middletown v. Waterm. on Corp. § 147. Sage, 8 id. 221 ; Austin v. Carter, 1 1 Jersey City v. Hudson, 13 N. J. Mass. 230. Eq. 420; Harrison v. Yotmg, 9 Ga ^palmer v. Hicks, 6 Jolm. 133. 359 ; Bennett v. McWhoi-ter, 2 W. Va. « Per Shaw, C. J., in Commonwealth 441 ; People v. Lambier, 5 Denio, 9 ; v. Roxbury, 9 Gray, 494. Mayor, etc. v. Baltimore, etc. R R. ' Selman v. Wolfe, 27 Tex, 68. See Co. 6 Gill, 288. Inhabitants of Charlestown v. County 2 Raymond v. State, 54 Miss. 562. Com'rs, 3 Met. 203. STRICT CONSTRUCTION. 495 ipal corporation to lay out highways, can it lay out a liighway over a navigable river so that it may be obstructed by a bridge.' A statute conferring privileges upon individuals should not be so construed as to work a public mischief. Accordingly where an act of the legislature authorized a proprietor of lands lying on the East river — which is an arm of the sea — to construct wharves and bulkheads in the river in front of his land, and there was at that time a public highway through the land, terminating at the river, he had no right, by filling up the land between the shore and the bulkhead, to obstruct the pubhc right of passage from the land to the water ; but the street, by operation of law, extended from the former termi- nus over the newly-made land to the water.^ § 387. Statutes for exercise of power of eminent domain. — The right to take private property in any form, without the consent of the owner, is a high prerogative of sovereignty, which no individual or corporation can exercise without an express grant. The power may be delegated but the delega- tion must plainly appear.' It is accordingly held that statutes providing for such a taking under the exercise of the power of eminent domain must be strictly construed.^ It is a taking 1 Commonwealtli v. Coombs, 2 their execution and in wliom it must Mass. 489 ; Arundel v. McCulloch, 10 of necessity vest large discretiouary i(j. 70. powers, tlie interpretation should be 2 People V. Lambier, 5 Denio, 9. hberal Care should be taken on the See Galveston v. Menard, 23 Tex, 349. one hand to secure to the individual 3 Sharp V. Speir, 4 Hill, 76 ; Adams whose property- is appropriated to the V. Saratoga, etc. R R. Co. 10 N. Y. pubhc a just and reasonable compen- 328; Gilmer v. Lime Pomt, 19 CaL sation, and, on tlie other, that the 47, 60 ; Cm-ran v. Shattuck, 24 id. 427, objects contemplated by the grant of 432 ; Cavanagh v. Boston, 139 Mass. powers shall not be defeated or em- 426. In Maryland it is settled that barrassed. Tide "Water Canal Co. v. the power to take private property Archer, 9 Gill & J. 479. for pubhc use upon making just com- * Matter of "Water Com'rs of Am- pensation may be exercised for the sterdam, 96 N. Y. 351 ; Bensley v. benefit of the pubhc, by individuals Mountam Lake "Water Co. 13 CaL 306, or by corporations upon whom the 315 ; Gilmer v. Lime Point, supra; legislature has within proper limita- Curran v. Shattuck, supra; Lance's tions conferred the power so to exer- Appeal, 55 Pa. St. 16; Beaty v. cise it In construing statutes giving Knowler, 4 Pet. 152 ; Chicago, etc. R. powers that are to be applied to great R. Co. v. "Wiltse, 116 111. 449 ; Chicago, public objects, depending for its exer- etc. R R Co. v. Chicago, 121 IH 176 ; cise upon the officers inti-usted with lUinois Cent. R. R Co. v. Chicago, etc 496 STEICT CONSTKUCTION". in derogation of private rights. It is in hostility to the ordi- nary control of the citizen over his estate, and statutes au- thorizing condemnation are not to be^ extended by inference or imphcation.' But it is "a right existing at common law, although the manner in which it shall be exercised is prescribed by statute. Therefore it has been held that the same rigid rules ought not to be applied to statutory regulations for the exercise of a pre-existing common-law right as are sometimes applied to similar regulations for the exercise of a right cre- ated by statute, and in derogation of the common law."* Upon the application of a raih'oad company to appropriate lands by the exercise of the right of eminent domain, delegated to it, it is for the court to decide as to the necessity and ex- tent of such appropriation, and the determination of the board of directors of the company is not conclusive upon that ques- tion.^ The acquisition of lands for speculation or sale, or to prevent interference by competing lines or methods, or in aid of collateral enterprises remotely connected with the running or operating of the road, although they may increase its rev- enues and business, are not such purposes as authorize the con- demnation of private property.^ Where the pubUc use for which condemnation is authorized contemplates an exclusive and perpetual possession, the condemnation and estimate of compensation must be equal thereto ; they cannot be restricted to a less use or estate.^ In construing acts delegating the power to corporations two rules are universally recognized : first, that the company shall take that which the legislature empowers it to take, and in the state and condition prescribed by the legislature ; and second, that all powers of this nature will be strictly construed — what is not expressly given is withheld. The company cannot carve out such an interest in, or incident of, property authorized to be taken as will suit its convenience and condemn that. It must take what the legis- lature authorizes it to take.^ Though it may not carve out a R. R. Co. 122 id. 473 ; Fork Ridge Bap- Minn. 227 ; Tracy v. Elizabethtown, tist Cemetery Asso. v. Redd, 10 S. E. etc. R. R. Co. 80 Ky. 259, Rep. 405. 4 Id. See Spring Valley "Wat Works > Rensselaer, etc. R. R. Co. v. Davis, v. San Mateo W, Works, 64 CaL 123, 43 N. Y, 137, 146. 5 Matter of Water Com'rs of Am- 2 Avery v. Groton, 36 Conn. 304. sterdam, 96 N. Y. 351. 'Id. ; Re St. Paul etc. R'y Co, 34 «De Camp v. Hibernia R. R Co, 47 STKICT C(,)NSrKL'CT10X. 497 less estate than that authorized to be condemned, and condemn it, it may condemn a less estate which actually exists and is outstanding.^ § 388. There must be very clear expression of the legisla- tive intent to authorize the taking, by the exercise of the power of eminent domain, of property which has already been devoted to a public use by an earlier exertion of the same power. Mr. Mills says : " To take property abeady appropriated to another public use, the act of the legislature must show the intent so to do by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting the in- tent," ^ There is a broad distinction between acts Avhich sub- vert or essentially impair a prior franchise or appropriation to a public use and acts which permit a taking for a new public use, not involving an entire deprivation or diversion from the first use, but a joint use, so that after the second taking the same property serves still the original purpose as w^ell as the new, — and the tw^o uses are consistent. Under a general power to lay out and establish a raiboad or highway, other railroads or highways may be crossed. In a case w^here a railroad company sought to condemn land previously appro- priated by another railroad, used merely for a crossing, and it was contended that an express statute was requu'cd, the court say : " The right which is claimed is merely the privilege to cross the land and track of the plaintiffs. It is not proposed to make any use of their raih-oad, as such. Their franchises, therefore, are not interfered wdth." " Under these circumstances," says Beasley, C. J., speaking for the court, " I am wholly at a loss to perceive the force of the present objection. If the legisla- tive grant of the powder in question is sufficient to enable the defendants to run their new lines over the lands of individ- uals, why has it not an equal efficacy with regard to the land of the plaintiffs? Does an incorporated company stand, in this respect, on a higher level than the ordinary land-owner? I am not aware that such a prerogative has ever been claimed. N. J. L. 43, 50 ; Hibemia R R. Co. v. i Hiberuia R. R. Co. v. De Camp, De Camp, id. 518, 547 ; Jerome v. 68 N. Y. 167. Ross, 7 Jolin. Ch. 315 ; Lyon v. Je- 2 Mills on Eminent Domain, § 46. rome, 26 Wend. 485. See Re Hart- ford, etc. R. R. Co. 65 How. Pr. 133. 32 49 S STRICT CONSTKUCTION. If claimed, it ouglit not to be conceded. It may weU be that^ where the attempt is to sequester a portion of the franchises of a railroad company to the use of a company subsequently incorporated, such sequestration could not be justified, in the absence of a grant of such authority in clear and express terms. Such a right could scarcely be raised by imphcation. It cer- tainly could not be inferred from a mere authority to acquire, by condemnation, the land requisite for the enterprise." ^ This distinction is clearly recognized. One public use will not be permitted to be subverted or materially imj^aired by a subse- quent grant, unless by express words or necessary implication,* § 389. An instance of a plain implication of an intent to in- vade a prior public use is where there is a grant to build a railroad between terminal points mentioned, and it cannot reasonably be built without appropriating land already de- voted to public use.^ In determining whether a power gen- erally given is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use 1 Morris & Essex R, E. Co. v. Cen- Portland, 9 Ore. 231 ; Housatonic R, R. tral R R Co. 31 N. J. L. 205, 213 ; Co. v. Lee & H. R R Co. 118 Mass. 391 : Boston "Water Power Co. v. Boston, Arundel v. McCulloch, 10 Mass. 70 ; etc. R R Co. 23 Pick. 360; Connect- Worcester, etc. R R Co. v. R R Com'rs. lug R'y Co. V. Union R'y Co. 108 111. 118 id. 561, 567 ; Commonwealth v. 265 ; Cliicago, etc. R'y Co. v. Chicago, Stevens, 10 Pick. 247 ; Commonwealth etc. R R. Co. 112 id. 589 ; Bradley v. v. Coombs, 2 Mass. 489 ; West Bos- New York, etc. R. R. Co. 21 Conn, ton Bridge v. County Com'rs, 10 Pick. 305 ; Starr v. Camden, etc. R. R Co. 270 ; Milwaukee, etc. R. R. Co. v. Fari- 24 N. J. L. 592. bault, 23 Minn. 167 ; Hickok v. Hine, 2 State, National R'y Co. pros., v. 23 Ohio St. 523 ; Central City Horse Easton, etc. R. R Co. 36 N. J. L. 181 ; R'y Co. v. Fort Clark Horse R'y Co. State, Mayor, etc. Jersey City, pros. 81 HI. 523; Charlestown v. County V. Montclair R'y Co. 35 id. 328 ; Spring- Com'rs, 3 Met. 202 ; WeUs v. County field V. Conn. R R Co. 4 Cush. 63 ; Com'rs, 79 Me. 522, 525 ; Kean v. Stet- Morris, etc. R R Co. v. Newark, 10 son, 5 Pick. 492 ; Marblehead v. N. J. Eq. 352 ; New Jersey Southern Covmty Com'rs, 5 Gray, 451 ; Illinois R R. Co. V. Long Branch Com'rs, 39 Cent. R. R. Co. v. Chicago, etc. R R. N. J. L. 28, 33 ; Matter of Boston, etc. Co. 122 IlL 473 ; Matter of City of R. R. Co. 53 N. Y. 574 ; Proprietors of Buffalo, 68 N. Y. 167. Locks, etc. V. Lowell, 7 Gray, 223 ; 3 Providence, etc. R R v. Norwich, Baltimore, etc. Turnpike Co. v. Union etc. R. R 138 Mass. 277 ; Matter of R R Co. 35 Md. 224, 231 ; Austin v. the City of Buffalo, 68 N. Y. 167. Carter, 1 Mass. 231 ; Oregon R'y Co. v. STltlCT CONSTRUCTION. 499 would he impaired or diminished by the taking of such part of the land as may be demanded for the subsequent use. If both uses may not stand together, with some tolerable inter- ference which may be compensated by damages jDaid ; if the latter use, when exercised, must supersede the former, it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the legislature meant to subject lands devoted to a public use, al- ready in exercise, to one which might thereafter arise. A legislative intent that there should be such an effect Avill not be inferred from a gift of power made in general terms. To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear. If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject-matter, so that by reasonable intendment some especial object sought to be at- tained by the exercise of the power granted could not be reached in any other place or manner.' § 390. Statutes granting power.— Statutes which impose burdens, or liabilities unknown at common law, are construed strictly in favor of those on whom such burdens are im- posed, or in favor of those who are subjected to such liabilities. The principles governing construction of such legislation have been considered in the preceding pages. Power is generally given to some officer to do acts for the enforcement of such duties ; then two principles concur to require strict construc- tion ; the second is that which applies to all statutory po^vers. They are construed strictly.^ Where a statute provides that a certain person shaU execute process, it can be executed by no other person.* " When a rule is laid down for the govern- ment of inferior jurisdictions, we are not at liberty to inquire whether it can safely be departed from ; Avhether the mode 1 Matter of the City of Buffalo, United Telephone Co. L. R. 13 Q. B. 68 N. Y. 167. Div. 904 ; Rutherford t. Maynes, 97 2 BlackweU on Tax Titles, 33-49 ; Pa. St 78 ; HoUenback v. Fleming, 6 County of Hardin v. McFarlan, 82 111. Hill, 303 ; East Union Township v. 138 ; Paine v. Spratley, 5 Kan. 525 ; Ryan, 86 Pa. St 459 ; Indiana, etc. R"y People V. Supervisors, 6 Hvm, 304 ; Co. v. Attica, 56 Ind. 476. AVandsworth Board of Works v. 3 Reynolds v. Orvis, 7 Cow. 269. 500 STRICT CONSTEUCTION. pursued is equally beneficial to the party as that pointed out by the statute. The answer to arguments of this kind is, that the law has prescribed the manner in which the person . . . may be apprehended." ^ Where any number of persons are appointed to act judicially in a public matter, they must all confer ; but a majority may decide.^ Power of sale under a mortgage was vested in two commissioners ; it was held that it could not be exercised by one — discretion had to be used, and it could not be delegated.^ In levying taxes or seUing property for the non-pajauent thereof, the assessor and col- lector act under a special and limited authority, conferred by statute, and it must be strictly construed and closely fol- lowed.^ The principle of strict construction as applied to such statutes is well illustrated by the case of Sibley v. Smith,^ The court held that the principle that every grant of power car- ries with it the usual and necessary means for its exercise, and that the power to convey is imphed in the authority to sell, cannot be admitted in the construction of statutes which are in derogation of the common law, and the effect of which is to divest the citizen of his real estate. Such statutes, al- though enacted for the public good, must be strictly construed. Their provisions can be enforced no further than they are clearly expressed." An act which authorizes a municipal body to open and widen streets according to the procedure therein prescribed, 1 Reynolds v. Orvis, 7 Cow. 369. Ann. 19 ; Jackson v. Shepard, 7 Cow. 2 Rogers, Ex parte, 7 Cow. 526 and 88 ; Jackson, etc. R. R. Co. v. Davison, note ; Downer v. Rugar, 21 Wend. 65 Mch. 416 ; Brown v. Fowzer, 114 178. Pa. St 446; Russel v. Transylvania 3 Powell V Tuttle, 3 N. Y. 396. University, 1 Wheat. 432 ; Pensacola 4 Davis V. Fames, 26 Tex. 296; Fisk v. Louisville, etc. R. R. Co. 21 Fla. V. Vamell, 39 id. 73 ; Hays v. Hunt, 492 ; Des Moines v. Gilchrist, 67 Iowa, 85 N. C. 303 ; Sharp v. Speir, 4 Hill, 210 ; S. C. 56 Am. Rep. 341. 76 ; Williams v. Peyton, 4 Wheat. 77 ; ^2 Mick 486. Sharp V. Jolinson, 4 HUl, 92 ; Croxall ^ Paine v. Spratley, 5 Kan. 525 ; V. Shererd, 5 WaU. 268 ; Jackson v. Vanliorne's Lessee v. Dorrance, 2 Cathn, 2 Jolin. 248 ; S. C. 3 Am. Dec. DalL 304 ; Doe v. Chuun, 1 Blackf . 415 ; Commonwealth v. Roxbury, 9 336 ; Doughty v. Hope, 1 N. Y. 79 ; Gray, 451, 492-494; Atkins v. Kin- PoweU v. Tuttle, 3 N. Y. 396 ; Sti-iker nan, 20 Wend. 241 ; Young v. Martin, v. Kelly, 7 Hill, 9 ; S. C. 2 Denio, 323. 2 Yeates, 312 ; Wills v. Auch, 8 La. STKICT CON8TKUCTI0N. 501 and omits to prescribe a procedure for cases of widening streets, is to that extent inoperative.' A power to the free- holders to make prudential rules and regulations for improv- ing their common lands and to impose penalties on offenders, does not authorize them to prescribe a penalty against a stran- ger for trespass on such lands.'^ Where a statute provides for a summary foreclosure by advertisement of mortgages con- taining a power of sale, the proceeding is special and statutory. The statute must be strictly pursued ; and there are no pre- sumptions or intendments in favor of the regularity of the proceedings.* It must at least be substantially coni])lied with.* Every statutory requirement must be conformed to ; but these sales are by contract, where the proceeding is authorized by the mortgagor himself to save expense and trouble of pro- ceedings in equity. Therefore aU provisions regulating such sales must be reasonably construed.' When the legislature grants power to a township to make donations to railroads and to issue bonds for the same, the grant is not invalid be- cause it fails to provide means for determining the amount and terms of the donation, or the amount of the bonds to be issued, their terms and manner of execution. Such con- struction should be put on a statute granting a power as may best answer the intention which the makers had in view ; and, if possible, it should be so construed that no clause, sentence or word shall be superfluous, void or insignificant." As a gen- eral rule, where power is granted, it implies that any reason- able and proper means may be employed to execute it, unless specific du'ections are given.^ An act conferring powers re- cited in a former act is to be construed as though the latter were a part of it.^ A statute granting powers and referring to anotlier statute for their definition only gives the general, and not tlie ]xirticular, powers conferred by the statute re- ferred to.'' Where specific regulations in a general law are 1 Chaffee's Appeal, 5G IMicli. 244. 6 Niantic Savings Bank v. Douglas, 2 Foster v. Rhoads, 19 Jolin. 191. 5 111. App. 579. 8 NUes V. Rausforcl, 1 Mch. 338, i Du Page County v. Jenks, Go IlL 341. 275. * Grover v. Fox, 36 Mich. 453, 466 ; » Tiiraey v. Wilton, 36 111. 385. Sherwoodv.ReadcTHill, 431; Doyle ^Ex parte Greene, 29 Ala. 52; V. Howard, 16 Mich. 261. Matthews v. Sands, id. 186. 8 Lee V. Clary, 38 ilich. 223. '502 STRICT CONSTKUCTION. adopted in a local act by words of general reference, subse- quent changes therein are not necessarily adopted also, unless the intent to do so is clear.^ § 391. Where special powers are conferred on a court either of otherwise general or limited jurisdiction it is rigorously re- stricted to those granted, and the grant itself is strictly con- strued :.'^ the jurisdictional facts must appear on the face of the proceedings.^ The court can take no additional power from its general jurisdiction. In the exercise of such special pow- ers it is precisely limited to those plainly delegated. ]S^othing is to be presumed which is not expressly given.'' § 392. A statutory remedy or proceeding is confined to the very case provided for and extends to no other. It cannot be enlarged by construction,^ nor be made available or valid ex- cept on the statutory conditions, that is, by strictly follow- ing the du'ections of the act.*^ § 393. A party seeking the benefit of such a statute must bring himself strictly not only within the spirit but its letter ; he can take nothing by intendment.'^ An affidavit for an at- 1 Darmstaetter v. Moloney, 45 Mich. 621. 2 Matter of Beekman Street, 20 John. 269 ; Wight v. Warner, 1 Doug. (Mich.) 384; Risewick v. Davis, 19 Md. 82; Given v. Simpson, 5 Me. 303 ; Morse v. Presby, 25 N. H. 302 ; Christie v. Unwin, 3 Perry & Davi- son, 208 ; Buck v. Dowley, 16 Gray, 555 ; State v. Woodson, 41 Mo. 227. 3 Thatcher v. Powell, 6 Wheat. 119 ; Kansas City, etc. R. R. Co. v, Camp- bell, 62 Mo. 585 ; Shivers v. Wilson, 5 Har. & John. 130 ; Beach v. Bots- ford, 1 Doug. (Mich.) 199; Clark v. Holmes, id. 390. *Geter v. Commissioners, 1 Bay, 354 ; Russell v. Wheeler, Hempst. 3 ; Thatcher v. Powell, 6 Wheat. 119; People V. Whitney's Point, 102 N. Y. 81 ; Earthman v. Jones, 2 Yerg. 484 ; Shivers v. Wilson, 5 Har. & J. 130; Yerby v. Lackland, 6 id. 446; GaUatian v. Cunningham, 8 Cow. 370; Foot v. Stevens, 17 Wend. 488; Denning v. Cor win, 11 Wend. 647; Piatt V. Stewart, 10 Mich. 260, 265 ; Stafford v. Mayor, etc. 7 John. 541. 5 Willard v. Frahck, 31 Mich. 431 ; Lombard v. Wliiting, Walker (Miss.), 229 ; Keller v. Corpus Clu-isti, 50 Tex. 614 ; Dent v. Ross, 52 Miss. 188. 6 Boyd V. Dowry, 53 Miss. 352: Scogius V. Perry, 46 Tex. Ill ; Rob- inson V. Schmidt, 48 id. 13 ; Bailey v. Bryan, 3 Jones' L. 357; Walker v. Bmt, 57 Ga. 20 ; Banks v. Darden, 18 id. 318 ; Monk v. Jenkins, 2 HiU's Ch. 12; Bloom v. Burdick, 1 Hill, 130; Staples V. Fox, 45 Miss. 667; Rise- wick V. Davis, 19 Md. 82; Sliivers V, Wilson, 5 Har. & J. 130 ; Yerby V. Lackland, 6 id. 446 ; BaU v. Last- inger, 71 Ga. 678 ; Weller v. Weyand, 2 Grant's Cas. 103 ; Spence v. McGowan, 53 Tex. 30 ; Anness v. Providence, 13 R. L 17; DibreU v. Daudridge, 51 Miss. 55 ; Lombard v. Wliiting, Walk. (Miss.) 229 ; Connell v. Lewis, id. 251 ; Banks v. Cage, 1 How. (Miss.) 293. 7 Ball V. Lastinger, 71 Ga. 678. See St. Paul, etc. R'y Co. v. Phelps, 26 STRICT CONSTRUCTION. 503 tachment which failed to state, as the statute required, that the attachment was not sued out for the purpose of injuring the defendant, was held fatally defective.' Ho where the amount claimed is required to be stated to be " due upon contract," the omission to state that the debt is due is fatal.- Hence if the affidavit is sworn to on a previous day, stating the sum due or existence of cause, like absence or concealment of defendant, the statute is not complied with.* The remedy by attachment is special and extraordinary, and the statutory provisions for it must be strictly construed and cannot have force in cases not plainly Avithin their terms.* An affidavit that the defend- ant intends to abscond is not a compliance with the require- ments of the provisions of a statute, commonly called the stay law, that there should be an affidavit that the defendant was about to abscond.' A statute permitting a second suit in tres- pass to try title will be strictly construed.*^ Enactments giv- ing a remedy for judgment by motion against public officers or others, this being a summary proceeding in derogation of the common law, must be taken strictly.^ Such acts have no latitude of construction.^ § 394. Where the mode of taking a case to an appellate court is prescribed by statute the same rule is applied.^ Stat- utes authorizing new methods of proof must be followed with strictness.'" All exceptional methods of obtaining jurisdiction Fed. Rep. 569; Swann v. Jenkins, 83 5 Guilleaume v. Miller, 14 Eich. 118. Ala. 478. See Myers v. Farrell, 47 Miss. 281. 1 Burch V. Watts, 37 Tex. 135. eSpence v. McGowau, 53 Tex. 30, 2 Cross V. McMackeu, 17 Mich. 511 ; ' Hearn v. Ewin. 3 Cold. 399 ; Wil- Wliitney v. Brunette, 15 Wis. 61 ; lard v. Fralick, 31 Mich. 431 ; Robm- Hawes v. Clement, 04 id. 153 ; Sti'eiss- sou v. Schmidt, 48 Tex. 13 ; Bailey v. gutli %■. Reigelniau, 71 id. 213. Biyan, 3 Jones' L. 357 ; Banks v. Dar- 3 Drew V. Dequindi-e, 2 Dougl. den, 18 Ga. 318 ; Scogins v. Perry, 46 (Mich.) 93 ; Wilson v. xVrnold, 5 Mich. Tex. 111. 98; Fessenden V. Hill, 6 itL 242. Com- » Rice v. Ku-kman, 3 Humph. 4ir). pare Graham v. Bradbury, 7 Mo. 281 ; 9 Kramer v. Holster, 55 I^Iiss. 243 : Adams v. Lockwood. 30 Kan. 773; Ricard v. Smith, 37 id. 644. See Foster v. Illinski, 3 111. App. 345. Bank of Monroe v. Widner, 11 Paige, * Van Norman v. Circuit Judge, 45 529 ; Humphrey v. Chamberlain, 1 1 Mich. 204 ; Mathews v. Densmore, 43 N. Y, 274, id. 461 ; Morrison v. Fake, 1 Pin. lo Dyson v. West, 1 Har. & J. 567 ; OVis.) 133 ; Whitney v. Brunette, 15 McWhorter v. Donald, 39 Miss. 779 ; Wis. 61. But see Cole v. Aune, 40 Buford v. Bostick, 58 Tex. 63 ; De- Mhan. 80. quasei v, Harris, 16 W, Va, 345. 504 STKICT CONSTRUCTION. bv courts over persons, natural or artificial, not found within the state, must be confined to the cases and be exercised in the precise way indicated by statute.^ The jurisdiction and au- thority in such cases, like all jurisdiction and authority derived from and dependent upon statute, must be taken and accepted with all the limitations and restrictions the act creatiug it may impose. These restrictions and limitations the courts are bound to observe ; they cannot be dispensed with, however much they may appear to embarrass or however unnecessary they may seem to be in the administration of justice in partic- ular cases. The statute is in derogation of the common law, is an essential departure from the form and modes a court or- dinarily pursues, and must be strictly construed.^ § 395. Jurisdiction of courts. — Jurisdiction cannot be cre- ated nor taken away by implication, except where the impli- cation is necessary from the language and purpose of the statute.^ As in the usual distribution of the fundamental pow- ers of the government to separate departments — legislative, executive and judicial — the grant to each is exclusive,^ so in the distribution of the judicial power of the state to certain named courts the grant is exclusive as to the courts men- tioned ^ and as to the powers apportioned to each.^ Where 1 Hartford Fire Ins. Co. v. Owen, 30 vens, 28 Cal. 118 ; Mecham v. McKay, :Micli. 441 ; Jordan v. Giblin, 12 Cal. 87 Cal. 154. 100; Ricketson v. Richardson, 26 id. ^Cooley, Const. Lim. 106, 107; SiU 149 ; McMinn v. ^\Tielan, 27 id. 300 ; v. Village of Corning, 15 N. Y. 297 ; Gray v. Larrimore, 2 Abb. (U. S.) 542 ; Kilbourn v. Thompson, 103 U. S. Sayre v. Elyton Land Co. 73 Ala. 85, 168 ; People v. Draper, 15 N. Y. 532, 98, 99 ; Brown v. Tucker, 7 Colo. 30 ; 543, 544. S. C. 1 West Coast Rep. 489; Pollard -'^Greenough v. Greenough, 11 Pa. V. Wegener, 13 Wis. 569 ; Stewart v. St. 489 ; State v. Maynard, 14 IlL 419 ; Sti-inger, 41 Mo. 400 ; Scorpion S. M. Smith v. Odell, 1 Pin. (Wis.) 449 ; Co. V. Marsano, 10 Nev. 370 ; Fontaine Chandler v. Nash, 5 Mich. 409 ; Gough Y. Houston, 58 Ind. 316 ; Bradley v. v. Dorsey, 27 Wis. 119 ; Alexander v. Jamison, 46 Iowa, 68. Bennett, 60 N. Y. 204 ; Hughes v. - Sayre v, Elyton Land Co., supra. Felton, 11 Colo. 489. See Home Ins. 3 Keitler v. State, 4 Greene (Iowa), Co. v. Northwestern Packet Co. 32 291 ; School Inspectors v. People, 20 Iowa, 223. IlL 525; Prjngle v. Carter, 1 Hill 6 Van Slyke v. Trempealeau, etc. (S. C), 53 ; Thompson v. Cox, 8 Jones, Ins. Co. 39 Wis. 390 ; Byrd v. Brown, 5 (N. C.) L. 311 ; Ryan v. Common- Ark. 709 ; Gough v. Dorsey, supra; wealth, 80 Va. 385 ; Beebe v. Scheldt, Given v. Simpson, 5 Me. 303. See 13 Ohio St 406. See Caulfield \. Ste- People v. DanieU, 50 N. Y. 274, STRICT CONSTRUCTION. 505- common-law and chancery jurisdiction is conferred on certain courts, and provision is made in the same act for a probate court, the latter will not receive that jurisdiction, but only such as is implied in its name according to the antecedent and contemporary judicial history of the subjects cognizable by courts under that and similar designations.' § 396. When jurisdiction is once granted it will not be deemed taken away by a similar jurisdiction being given to another tribunal. In Commonwealth v. Hudson - the cpiestion was whether a grant of a certain jurisdiction to justices of the peace affected that previously existing in the court of common pleas over the same subject. Shaw, C. J., said : " Before this statute the court of common pleas had jurisdiction over this subject-matter. Is that jurisdiction taken away? It is no an- swer to say that another tribunal has jurisdiction; for that is very common. It is in such case concurrent jurisdiction, whether so caUed in the statute or not. . . . There must be words of limitation, to take it away, either by using the word ' exclusive,' or by repealing the former act giving jurisdiction, by which it may appear that the legislature meant, not only to confer jurisdiction on justices of the peace, but to take away the other jurisdiction." * Only express words, or what is equivalent, can take away the jurisdiction of the superior comets.* This principle ap})lies not only to a court's original, but to its appellate, jurisdiction, and its customary modes of exercising them. In Hartley v. Hooker ^ Lord Mansfield said : " If a new offense is created by statute, and a special juris- 1 Ferris v. Higley, 20 WaU. 375; 351; In re Creighton, 12 Neb. 280; Robinson v. Fair, 128 U. S. 53 ; Zan- Catlin v. \Mieeler, 49 Wis. 507. der V. Coe, 5 Cal. 230 ; Appeal of "* Rex v. Abbot, 2 Doug. 553, note ; Houghton, 42 itl 35 ; flatter of WiU Gates v. Knight, 3 T. R 442 ; Ship- of Bowen, 34 id. 683, 689; Rosenberg man v. Henbest, 4 id. 109; Albon v. V. Frank, 58 id. 387, 402. Pyke, 4 M. & Gr. 424 ; Balfour v. :\IaI- 2 11 Gray, 64. colm, 8 CL & Fin. 500 ; Jacobs v. 3 Tackett v. Volger, 85 Mo. 480 ; Brett, L. R. 20 Eq. 6 ; Rex v. Mayor Dick's Appeal, 106 Pa. St. 589 ; Fidel- of London, 9 B. «& C. at p. 27 ; In re ity Trust Co. v. Gill Car Co. 25 Fed. Twenty-eighth St 102 Pa. St 140 ; Rep. 737 ; Barnawell t. ThreadgiU, 5 Crisp v. Bunbury, 8 Bing. 394 ; Reeves Ired. Eq. 86 ; Berkowitz v. Lester, v. AVhite, 17 Q. B. 995 ; Richards v. 121 lU. 999; Taylor v. WiUiams, 78 Dyke, 3 Q. B. 256; Timnis v. Will- Va. 422 ; Hurth v. Bower, 30 Hun, ianis, id. 413. 151; Jenkins v. Crevier, 50 N. J. L. 5 2 Cowp. 523. 50G STKICT CONSTRUCTION. diction out of the course of the common law is prescribed, it must be followed. If not strictly pursued, all is a nullity, 4ind coram non judlcej and objections may be taken in any stage of the cause. In such case there is no occasion to oust the common-law courts, because not being an offense at com- mon law, and punishable only suh Qnodo, in the particular manner prescribed, they never could have jurisdiction. But where a new offense is created, and directed to be tried by an inferior court, established according to the course of the com- mon law, such inferior court tries the offense as a common- law court, subject to be removed by writs of error, habeas corpus, Gertiora?^, and to all the consequences of common-law proceedings. In that case this court cannot be ousted of its jurisdiction without express negative words." It may change the venue.^ It may summon or complete a jury when the statutory process fails.- § 397. The jurisdiction granted by the constitution cannot be abridged or infringed by the legislature, territorially * nor as to subject-matter.* If it is defined in that instrument the legislature can neither add to nor diminish it ; neither can it invest a court whose original jurisdiction is therein defined with additional jurisdiction of that nature, nor deprive it of any part of its apj^ellate jurisdiction so conferred.'^ The essential qualities of a constitutional court are indestructible and un- alterable by the legislature,^ though it may regulate the man- 1 Wilberf. on St. 44 ; Southampton 14 Midi. 334 ; CaUanan v. Judd, 23 Bridge Co. v. Local Board of South- Wis. 343 ; Heath v. Kent Circuit :anipton, 8 E. & B. at p. 804. Judge, 37 IMich. 372 ; Averill v. PeiTott, 2Clawson v. United States, 114 74 Mich. 296; S. C. 41 N. W. Rep. 929. U. S. 477. See State v. Jones, 22 Ark. 331. Wliere 3 DUIard v. Noel, 2 Ark. 449 ; Com- an act gave exclusive jurisdiction of monwealth v. Commissioners, etc. 37 aU misdemeanors to the county com't Pa. St. 237 ; Meyer v. Kalkmann, 6 of Knox county, it was held not to Cal. 582 ; Landei's v. Staten Island R. repeal an existing statutory provision R. Co. 14 Abb. Pr. (N. S.) 346 ; Con- authorizing the circuit court to pun- nors V. Gorey, 32 Wis. 518. ish when the defendant was acqmtted * Hicks V. Bell, 3 Cal. 219 ; Parsons of a felonious charge and convicted V. Tuolumne Co. W. Co. 5 id. 43 ; of a misdemeanor. Carter v. State, State V. Mace, 5 Md. 337 ; Chandler v. 6 Cold. 537. Nash, 5 Jlich. 409 ; Waldby v. Callen- 5 Vail v. Dinnmg, 44 Mo. 210. ■dar, 8 id. 430 ; State v. Northern, etc. ^ Harris v. Vanderveer, 21 N. J. Eq. R'y Co. 18 Md. 193 ; Jones v. Smith, 424. STKICT C.)>;6TULCTION. 507 ner in which it shall be put in action ; • as by prescribing when appellate jurisdiction shall be exercised on appeal and when on writ of error.- When exclusive, revising or appellate juris- diction is given by the constitution to the supreme court of a state, a statute cannot authorize a trial court to revise its own judgments at a term subsc(|uent to that at which they were rendered,^ In other words, the legislature cannot give appel- late jurisdiction to any other court/ § 398. Statutory rights. — Such rights depend on the stat- utes creating them, and these are construed strictly.' This principle is illustrated by the cases brought to enforce the statutory right in favor of the Vidow or next of kin to re- €Over damages resulting from the death of a person caused by negligence." Statutes made for the accommodation of par- ticular citizens or corporations ought not to be construed to affect the rights or privileges of others unless such construc- tion results from express words or from necessary imphca- tion. But every part of a statute must have a reasonable effect.'^ Statutes authorizing persons to prosecute in forma jpauperis should be construed strictly as against the appUcant.^ A statute gave a right to detain trespassing animals until seventy-five cents per day should be paid for their keeping, when the}^ had trespassed upon the inclosure of a party by breaking through a lawful fence ; this right being statutory was held stricti juris; the injured party could avail himself of it only on the precise statutory condition that the ani- mals had broken through such a fence.* An act authorizing gratuitous credits to be made on a debt owing to the state must be restricted to its obvious and plain intent and be con- strued most favorably, in case of doubt, for the government.'" iHornbuckle V. Toombs, 18 Wall, Dyson v. Sheley, 11 id. 527; Walker 648. See Ex parte Candee, 48 Ala. v. Chicago, 56 111. 277 ; Itawamba v. 386, Candler, 63 Miss. 193. 2 Haight V. Gay, 8 CaL 297. « Ante, § 371. 3 BjTd V. Brown, 5 Ark. 709. ' Coolidge v. Williams, 4 Mass. 140, 4 Caulfield v. Hudson, 3 Cal. 389 ; 145 ; Rothgerber v. Dupuy, 64 III 452 ; People V. Peralta, id. 379 ; Deck v. Scaggs v. Baltimore, etc. R. R. Co. 10 Gherk'e, 6 id. 666. Md. 268. 5 PeU V. Ulmar, 18 N. Y. 139 ; Van « IMoore t. Cooley, 2 Hill, 412. Valkenburgh v. Torrey, 7 Cow. 252 ; « Dent v. Ross, 52 Mis?. 18S. Hollister v. HoUister Bank, 2 Keyes, '« Green's Estate, 4 Md. Cbu 349. 245 ; Beecher v. Baldy, 7 ]\Iich. 488 ; 50S STRICT CONSTKUCTION. The mechanics' lien law confers special privileges and rights upon one class of people not enjoyed by others; therefore courts in construing such statutes confine them to their ex- press letter, and require that the case shall be brought clearly within them before relief will be granted. Such laws are not extended by liberal construction to embrace cases not within their language.^ A statute which gives a judgment creditor a right to have a sheriff who is delinquent in re- turning an execution amerced for his use, on motion, in the amount of the debt, damage and costs, must be strictly con- strued, lie who would avail himself of such a summary remedy must bring himself within both the letter and spirit of the laAv.- And where such a statute provides that if he is thus required to pay a judgment it shall vest in him and exe- cution may issue for his use, he must bring himself strictly within the terms of the act by payment of the judgment.* A statute authorizing the destruction of property to prevent the spread of fire provided a remedy for compensation to the owner. It was held that the remedy could only be asserted in the manner defined therein.* So where a remedy is given in the charter of a company to the land-owner for getting compensation for land taken for the use of the corporation under its charter, he must pursue this remedy, as that given thereby is exclusive of all others.^ 1 Roberts v. Fowler, 3 E, D. Smith, v. Herr, 98 Pa. St. 6 ; MarJy v. Down- 633 ; Eotligerber v. Dupuy, 64 111. 452 ; ing, 15 Neb. 637 ; Johnson v. Stout, Chapin v. Persse & Brooks Paper 42 ]\Iinn. 514. Works, 30 Conn. 461, 474 ; Womels- 2 Moore v. McChef, 16 Oliio St 51, dorf V. Heifner, 104 Pa. St. 1 ; Scaife 54 ; Duncan v. Drakeley. 10 Oliio, 47 ; V. Stovall, 67 Ala. 237; Wagar v. Bank of GallipoUs v. Domigan, 12 Briscoe, 38 Mich. 587. Statutes which Oliio, 220 ; Webb v. Anspach, 3 Ohio give a lien for services upon logs and St 522 ; Conkling v. Parker, 10 id. 28 ; timber are constnied Uberally ha the Langdon v. Smnmers, id 79 ; Dibrell interest of labor. Jacubeck v. Hew- v. Dandridge, 51 Miss. 55. itt, 61 Wis. 96 ; KoUock. v. Parcher, 3 staple v. Fox, 45 Miss. 667. 25 id. 372 ; Hogan v. Cusliing, 49 id. * KeUer v. Corpus Christi, 50 Tex. 169. See, as to the rule of consti-uc- 614. tion appUed to statutes giving a rem- 5 Railroad v. McKaskill, 94 N. C. edy for enforcmg mechanics' hens, 746 ; Mclntu-e v. Western N. C. R. R. Rude V. MitcheU, 97 Mo. 365, criti- Co. 67 N. C. 278 ; Jolmston v. Rankm, cised in 24 Am. L. Rev. 857 ; Thomas 70 N. C. 550. V. Huesman, 10 Ohio St 152 ; Keemer STRICT CONSTRUCTION. 509 § 399. When a right is given by statute and a specific rem- edy provided, or a new power and also the means of execut- ing it are therein granted, the power can be executed and the right vindicated in no other way than that prescribed by the act.^ This rule does not conflict with the general rule that the jurisdiction of a court is not impaired by statutes con- ferring upon other tribunals jurisdiction of the same kind and to reach the same redress, unless the statutes expressly take away the former jurisdiction ; ^ nor with the other well-settled rule, that if a statute gives a remedy in the affirmative without a negative, express or implied, for a matter which was action- able at common law, the party may sue at the common law as well as upon the statute ; for this does not take away the com- mon-law remedy.* In the cases to which these rales are ap- plied the right existed, and its enforcement lay within the appropriate existing jurisdiction. Statutes affirmative of the right, and prescribing other than the usual remedies for its enforcement, or conferring cognizance of it upon other tribu- nals, not negativing the pre-existing remedies or jurisdiction, in their very nature are merely cumulative, and not exclusive. But when a right is solely and exclusively of legislative crea- tion, when it does not derive existence from the common law or from the principles of equity, jurisdiction may be limited to particular tribunals, and new specific remedies provided for its enforcement. Then the jurisdiction can be exercised and the remedy pursued only as the statute provides.^ Where a statute gives a new remedy for a right existing and enforcible either at common law or in equity, and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two.* If a new right is created by statute and it is silent 1 Sedgw. on Stat. & Const Law, * Chandler v. Hauna. siqn^a; Dud- ^43 ; Janney v. Buell, 55 Ala. 408 ; ley v. May hew, 3 N. Y. 9 ; Dickinson Phillips V. Ash, 63 id. 414 ; Chandler v. Van Wormer, 39 Mich. 141 ; Matter V. Hanna, 73 id. 390 ; Dutlley v. May- of Opening House Ave. G7 Barb. 350. hew, 3 N. Y. 9 ; HoUister v. Hollister 5 Branch Bank v, Tillman, 12 Ala. Bank, 2 Keyes, 245. 214 ; Greenville, etc. R. R. Co. v. Catli- '^ Id. ; Gittings v. Crawford, Taney's cart, 4 Ricli. 89 ; Stafford v. Ingersol, Dec. 1. 3 Hill, 38 ; Clark v. Brown, 18 Wend. »Almy V. Harris, 5 John. 175; 213; Colden v. Eldred, 15 Jolui. 220; Sedgw. on Stat. & Const. L. 342. Scidiuore v. Smith, 13 id. 322 ; Thou- 510 STRICT CONSTKTJCTION. as to the mode of its enforcement, or as to the form of re- dress in case of invasion, then the proprietor of that right may resort to the common laAV or the existing general statutory procedure for remedial process.^ In the absence of statutory regulations of procedure courts will exercise their powers ac- cording to the general practice.^ When a statute refers gen- erally to powers to enforce obedience, and does not prescribe any procedure, the powers generally referred to would be those of the court in which the proceedings are pending.^ § 400. Statutes in derogation of the common law.— Such statutes as take away a common-law right, remove or add to common-law disabilities, or provide for proceedings unknown or contrary to that law, are construed strictly. The courts cannot properly give force to them beyond what is expressed bv their words, or is necessarily implied from what is ex- pressed." There should doubtless be the same strictness of venin v. Eodrigues, 24 Tex. 468 ; Troy, etc. R. R Co. V, Tibbits, 18 Barb. 297 ; Remvick v. Morris, 3 HiU, 621 ; S. C. 7 id. 575 ; Smith v. Drew, 5 Mass. 514 ; Waldo V. Bell, 13 La. Ann. 329 ; Mitch- ell V. Duncan, 7 Fla. 13; Booker v. SIcRoberts, 1 CaU, 243. 1 Ewer V. Jones, 2 Salk. 415 ; Beck- ford V. Hood, 7 T. R. 620 ; Donaldson V. Beckett, 2 Bro. P. C. 129 ; Dudley v. Mayhew, 3 N. Y. 9 ; Jacob v. United States, 1 Brock. 520 ; Branch Bank v. Tilhnan, 12 Ala. 214 ; Lynes v. State, 5 Port. 236 ; United States v. WyngaU, 5 HiU, 16 ; Constantine v. Van Win- kle, 6 id. 177 ; Leland v. Tousey, id 328 ; Burnham v. Onderdonk, 41 N. Y. 425; Alma v. Harris, 5 John. 175; Cliisholm V. Northern Transportation Co. 61 Barb. 363 ; RusseU v. Irby, 13 Ala. 131. 2 Lynes t. State, 5 Port. 236. 3 Green v. Lord Penzance, L. R. 6 App. Cas. 675. 4 Smith V. Argall, 6 Hill, 479 ; Burn- ham V. Sumner, 50 Miss. 517 ; Hop- kins V. Sandidge, 31 id. 668 ; Doughty V. Hope, 3 Denio, 594 ; McMechen v. McMechen, 17 W. Va. 683; Monson V. Chester, 22 Pick. 385; Scott v. Simons, 70 Ala. 852; Fisher v. Bid- weU, 27 Conn. 363; Matter of Fitz- gerald, 2 Cai. 318; Dewey v. Good- enough, 56 Barb. 54 ; Baum v. MuUen,. 47 N. Y. 577 ; McManus v. Gavin, 77 id. 36; People v. Hadden, 3 Denio, 220 ; Thompson v. Weller, 85 111. 197 : Corwm V. Merritt, 3 Barb. 341 ; Ed- wards V. Gaulding, 38 Miss. 118 ; Peo- ple V. Hulse, 3 HiE, 309; Tuttle t. Walton, 1 Ga. 51. A statute of Ala- bama provides : "A seal is not neces- sary to convey the legal title to land to enable the grantee to sue at law. And any instrument in wi-iting signed by the grantor, or his agent having written authority, is effectual to transfer the legal title to the gi-antee. if such was the intention of the grantor to be collected from the en- tire instnmient." In Webb v. Mid- hns, 78 Ala. Ill, it was decided that this statute is remedial and to be hb- eraUy consti-ued, " so far as may be necessary to suppress the mischief, and effectuate the purpose and intent of the law-maker ; but being in mod- ification of the common law it will not STKICT CONSTKLXTIOX. 511 construction of a statute in derogation of an enforceable equity.' Statutes are not to be construed as taking away a. common-law right unless the intention is manifest. Accord- ingly where a particular defense is denied in case of rescous, but to render it available to a plaintiff the precise action men- tioned in the statute must have been brought, the deprivation of that defense will not be enforced by an equitable construc- tion in another form of action.^ Statutes which make an offi- cial deed or certificate evidence in derogation of the common law will be confined in their operation to the cases and the conditions expressly stated in them.^ "At common law a party could not be a witness for him- self, to prove any part of the issue, and the statute authorizing it is not to be extended in his behalf beyond what it clearly imports." ■* Statutes which innovate upon the common law, rules of evidence or competency of witnesses must be strictly construed.^ Such innovating statutes may be remedial, and then they must, except as antagonized by other rules of con- struction, be hberally construed.® Statutes which are claimed to aboUsh any of the incidents of marriage Avill be strictly con- strued.'' Statutes increasing the power of married women over be presumed to modify it farther than Hill, 466; Sharp v. Speir, 4 id. 76; is expressly declared ; and construe- McWliorter v. Donald, 39 IVIiss. 779. tion or intendment will not be re- ■* Dewey v. Goodenough, 56 Barb. 54. sorted to for the purpose of extending o Smith v. Eandall, 3 Hill, 495 ; its operation." It was accordingly Dequaisie v. Hams, 16 W. Va. 345 ; held tliat an insti'ument of writing in Dyson v. West, 1 Har. & J. 567 ; the form of a deed under seal, signed, Warner v. Fowler, 8 Md, 25. See attested and acknowledged, but con- Cummins v. Garretson, 15 Ark. 185. taining no words of gTant or transfer, 6 Post, §§ 416, 434. could not operate as a conveyance, TNeelly v. Lancaster, 47 Ark. 175; though a regular habendum clause S. C. 1 South. Rej). 66 ; Harker v, Har- was inserted — "to have and to hold ker, 3 Harr. 51 ; Glover v. Alcott, 11 to the said J. K B,, liis heirs and as- Mich. 470 ; Thomson v. WeUer, 85 111. signs forever." A statute legitimat- 197 ; Hays v. Hays, 5 Rich. 31. In con- ing bastards should be hberally con- sti'uing the married woman's act, says strued. Beall v. Beall, 8 Ga, 210. the liigh court of errors and appeals of 1 Baker v. Terrell, 8 Minn. 195. Mississippi, we must look to the true 2 Gray v. Nations, 1 Ark. 557; Mel- spirit and object of the statute and con- ody v. Reab, 4 Mass. 471 ; Jacob v. strue its language with reference to United States, 1 Brock. 520. the pohcy indicated by it. Before the 8 Doughty v. Hope, 3 Denio, 594 ; passage of the act, a niaiTied woman S. C. 1 N. Y. 79 ; Graves v. Otis, 2 was incapable of holding to her sepa- 512 STRICT CONSTKUCTION, their separate property, being in derogation of tlie rights of the husband and of the common law, are to be construed strictly.^ They have not been interpreted to enlarge the capac- ity of the wife to contract, to hold or administer property, fur- ther than the words, fairly and reasonably construed accord- ing to their natural import, expressly declare.^ They are re- garded as remedial in Michigan, and to be liberally construed to etf ectuate their general purpose. The disabiUties are removed only so far as they operate unjustly and oppressively ; beyond that they are suffered to remain. Having been removed with the beneficent design to protect the wife in the enjoyment and disposal of her property for the benefit of herself and family, the statutes cannot be extended by construction to cases not embraced by their language nor within this design.^ A statute provided that when a testator devised lands to his wife without declaring such devise to be in lieu of dower, it shall nevertheless so operate, and required her to make her election rate use property conveyed directly to her in her own name. Tlie primary object of the statute was doubtless to remove that incapacity and to secru-e to her separate use all property which she might acquire except the same should come from her husband ; and hence provision, in the first place, is made enabling her to take by direct conveyance to her. But tliis is only a mode of accomplishing the end in- tended, the policy being to secure to the wife a complete title to all such jjroperty as might be acquired by her to her sole, separate use for the bene- fit of herself and her children. This was a new policy in our laws, f oimded upon enlarged views of protection and justice to tlie rights of a class of society entitled to the most hberal protection. It was a substantial right which the legislature intended to secure, rather than to prescribe the foi-m necessary to be complied with in order to the enjoyuient of the right ; and, therefore, the spirit of the statute is to secure to the benefit of the wife and her cliildren all property which may thereafter be conveyed to her separate use and benefit without regard to the form of the conveyance. Ohve V. Walton, 33 IMiss. 103. 1 Compton V. Pierson, 28 N. J. Eq. 229. 2 Cook V. Meyer, 78 Ala. 580, 583; Gibson v. Marquis, 29 Ala. 668 ; Canty V. Sanderford, 37 id. 91 ; Alexander v. Saulsbury, id. 875 ; Warfield v. Eava- sies, 38 id. 518 ; Reel v. OveraU, 39 id. 188; Hatton v. Wier, 19 id. 127; Ferryman v. Greer, 39 id. 133 ; Cun- ningham V. Hanney, 12 111. App. 437 ; Ti-iplett V. Graham, 58 Iowa, 185; Pettit V. Fretz, 33 Pa. St. 118 ; Morgan V. BoUes, 86 Conn. 175; Quick v. Miller, 108 Pa. St. 67; Weber v. Weber, 47 Midi. 569 ; Longey v. Leach, 57 Vt. 877 ; Dorris v. Erwin, 101 Pa. St. 289 ; Reynolds v, Robinson, 64 N. Y. 589. See contra, BiUings v. Baker, 28 Barb. 348 ; Goss v. CaliiU, 42 id. 310. s De Vries v. Conklin, 22 Mich. 255. STKICT CUNSTULCTION. 513 between them. That statute was designed as a rule of con- struction of wills, and to determine the intention of the testar tor where he has not expressed it. Being in derogation of the common-law rights of the widow it should Ije construed liberally as regards her. Had the testator declared this devise to be in lieu of dower, she would still have been entitled to her election. Should she elect to take the devise, and it wholly fails on account of a defect of title, of which she was ignorant, she could stiU claun doAver.^ A statute requiring certain liens to be registered cannot be extended to other liens than those specified.- The common-law rights of the subject m respect to the enjoyment of his property are not to be trenched upon by a statute, unless such intention is shown by clear words or necessary implication.' A statute to compel a party to give evidence against himself will be construed strictly.^ So an act which takes away a remedy given by the common law ought never to have an equitable construction.^ § 401. Statutes not remedial, which are in derogation of the common law of England, brought over by the colonists, so far as apphcable to the new circumstances and conditions of the people and the country, and so far as not changed by legis- lation, are the law of the states generally; and courts will construe strictly aU acts in modification or derogation thereof, assuming that the legislature has, in the terms used, expressed all the change it intended to make in the old law, and will not by construction or intendment enlarge their operation.^ A statute preventing a concurrent action for the recovery of the mortgage debt, pending a foreclosure suit, is in dero- gation of the common law, and therefore to be strictly con- strued.^ In construing statutes which are not penal nor liable to be used oppressively, the court will not stop at the lit- eral terms nor stand upon form and cu'cumstance, but wi]] 1 Tliompson v. Egbert, 17 N. J. L. son t. Arnold, 5 Mich. 98 ; Fessendi'n 459, 466. V. Hill, 6 id. 242 ; GaJpin v. Abbott. 2TuttIe V. Walton, 1 Ga. 51. id. 17; Lee v. Forman, 3 Met (Ky.) 3 Reg. V. MaUow Union, 12 Ir. C. L. 114; Brovna v. Fifield, 4 Mich. 3;;2: (N. S.) 35. Jackson v. Cairns, 20 Jolm. 301 ; ^ Bioadbent v. State. 7 Md. 416. Pendleton v. Bank of Kentucky, 2 ^ Hammond v. Webb. 10 Mod. 281. J. J. :\Iarsh. 148. 6 HoUman v. Bennett. 44 :\Iiss. 322 ; ' Hays v. Miller, 1 Wash. T"y, 143. Thompson v. WeUer, 85 ILL 197 ; Wil- 33 514 STRICT CONSTKUCTIOW. go to the effect and substance of the matter. Thus, where a law which provided a mode of submitting a cause to arbi- tration required that each party should choose one arbitrator, and if the arbitrators thus chosen failed to agree an umpire should be chosen by them, and it was objected that the award was not a good statutory award, on the ground that by the terms of the agreement each party appointed an arbitrator, who then appointed a thu-d man, and the cause was tried by all three in the first instance, it was held that the objection went to the form merel}'", and it was not sustained.^ § 402. Interpretation clause. — Any provision in a statute which declares its meaning or purpose is authoritative. Whether it relates to the object of a whole act, or of a single section or of a word, it is a declaration having the force of law.^ It is binding on the courts, though otherwise they would have understood the language to mean something different.^ De- claratory statutes having reference to other existing acts have the same effect prospectively. Any contemporaneous con- struction of the same words by the legislature is high evi- dence of the sense intended.* So far as an act in terms professes to declare the past or present meaning of an existing statute, it is not legislative and not binding on the courts.'^ It has been said that an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivo- cal, not so as to disturb the meaning of such as are plain.^ It is often inserted for this purpose, or for abundant caution, that there may be no misapprehension, though the interpreta- tion so directed is not different from that which the language iForshey v. Railroad Co. 16 Tex. spirit of that prohibition the account- 516. ing officers refused to apply the dis- 2 Jones V. Surprise, 64 N. H. 243 ; approved construction to a stUI later 4 New Eng. Rep. 292; State v. Ad- statute of the same class. The su- anis, 51 N. BL 568 ; State v. Canter- preme court refused to change this bury, 28 id. 195 ; Herold v. State, 21 rulmg. United States v. Gilnxore, 8 Neb. 50. Wall 330. 3 Smith V. State, 28 Ind. 321. After * Philadelpliia, etc. R R. Co. v. the accounting officers of the federal Catawissa R R Co. 53 Pa. St 20, 60, treasury had put a consti'uction upon 61. certain statutes, another act of the s Ante, §§ 320, 321. same class was passed and appiica- 6 Reg. v, Pearce, L. R 5 Q. B. Div. at tion thereto of that construction was p. 389. therein prohibited, and following the STPJCT CONSTKUCTION. 515 used would otlierwise receive.^ In such cases this provision leads to no difficulties of construction. When, however, the clause is employed, as it often is, to make particular words mean something different or more than they naturally and ordinarily signify, it should be construed strictly.^ An enact- ment based upon an evident misconception of what the law is will not have the effect, ])er se, of changing the law so as to make it accord with such misconception.'' When a concise term is used which is to include many other subjects besides the actual thing designated by the words, it must always be used with due regard to the true, proper and legitimate con- struction of the act.* § 4:03. In England provisions of this nature have been dis- cussed with marked disfavor;* they embarrass rather than assist the courts in their decisions ; ^ they frequently do a great deal of harm by giving a non-natural sense to words, which are afterwards used in a natural sense without the dis- tinction being noticed.' " It has been very much doubted," says Lord St. Leonards, L. C, " and I concur in that doubt, whether these interpretation clauses, which are of modern origin, have not introduced more mischief than they have avoided ; for they have attempted to put a general construc- 1 Hardc. on St. 104 ; Wilb. on St that the statutory definitions woidd 296. * govern in the consti'uction of the stat- 2 Allsop V. Day, 7 H. & N. at p. 463 ; ute itself, but the same words in an McGowan v. State, 9 Yerg. 184 ; indictment foimded on tliat statute Jackman v. Dubois, 4 John. 216 ; would be construed entirely by the Sclunidt V. Hoyt. 1 Edw. Ch. 652. In ordinary use of language. See State State V. Canterbury, 28 N. H. at v. Adams, 51 N. H. 568 ; People v, p. 238, Bell, J., says : " A small num- Pico, 62 CaL 50 ; Foltz v. Hoge, 54 ber of definitions were inti'oduced in CaL 28. the Revised Statutes for the sake of 3 Davis v. Delpit, 25 Lliss. 445 ; brevity and to prevent the recurrence Byrd v. State, 57 id. 243; Van Nor- of several terms which, by a forced man v. Jackson Circuit Judge, 45 construction, might be included in a IMich. 204. single word; but such definitions ^Midland R'y Co. v. Ambergate ran, in the natxire of tilings, have no R'y Co. 10 Hare, at pp. 369, 370. effect, except in the construction of ^ "Wilb. on St 296, 297. the statutes themselves. The mean- ^ Reg. v. Cambridgesliire Justices, 7 ing of language depends on pop- Ad. & E. at p. 491. ular usage, which is not and cannot " Lindsay v. Cundy, L. R 1 Q. R unless in a very shght degree, be af- Div. 358. fected by legislation." It was held 516 STEICT CONSTEUCTION. tion on words which do not admit of such a construction in the different senses in which they are introduced in the vari- ous parts of an act of parh?anent." ^ An interpretation clause is not to receive a rigid construction, is not to be taken as sub- stituting one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. It merely declares what persons and things may be compre- hended within that term when the circumstances require that they should.^ § 401. Where the interpretation clause is that a particular word shall include a variety of things not within its general meaning, it is a provision b}^ way of extension, and not a defi- nition by which other things are excluded." "When the mean- ing is thus extended the natural and ordinar}^ sense is not taken away.^ Blackburn, J., said : "It does not foUow because in the interpretation clause they say that the expression 'new street ' shaU include certain other things we are to say it does not include its own natural sense." ^ An act provided that the 1 Dean of Ely v. Bliss, 2 De G. M. & G. at p. 471. 2 Reg. T. Cambridgeshire Justices, 7 Ad. & E. 491. A statute provided " that the word felony, when used in this or any other statute, shall be construed to mean an offense for which the of- fender, on conviction, shall be Liable by law to be punished with death, or by imprisonment in the state prison." " This provision," says Cluistiancy, J., " is but a legislative definition of the term felony as used in certain pro- visions of the statute ; and its effect can only be known by reference to those provisions where the term is used. Of itself, without such refer- ence, it has no effect upon any of- fense whatever. Nor can it be rea- sonably supposed that it was intended to extend to those provisions of the statute (of wliich there are two cases at least in the same revision), which in defining the offense have expressly designated it as a felony, and made it punishable m the state prison ; for in such case no such general defi- nition was required. Nor is there any more reason to iof er that, where a particular provision of the same act (for the whole revision was passed as one act) has expressly designated a particular statute offense as a mis- demeanor, this definition was in- tended to convert it into a felony, though the provision defining the of- fense has made it pimishable by im- prisonment in the state prison. We must therefore understand this pro- vision as intended to apply only to those provisions where neither the particular offense nor its gi-ade is otherwise indicated than by the use of the term felony, and where, there- fore, the definition became necessary, as it was not intended to be used merely in the common-law sense." Drennan v. People, 10 Mch. 169, 173. 3 Reg. V. Kershaw, 6 R & B. at p. 1007. 4 Pound V. Plumstead, L. R 7 Q. B. 183. 5 Id. STRICT CONSTRUCTION. 517 word "slii})" shall include "every description of vessel used ill navigation not propelled by oars." On the question whether a fishing boat twenty-four feet long, partially decked over, and fitted with two masts and a rudder, and also with four oars, which were sometimes used, was a ship within the mean- ing of the act, the same learned judge said: "The argument against the proposition that this is a ship is one which I have heard very frequently, viz. : that when an act says that certain words shall mclude certain things the words must apply ex- dusively to that which they must include. That is not so. The definition given of a ship is in order that the word 'ship' may have a more extensive meaning, and the words ' not pro- pelled by oars ' are not intended to exclude all vessels that are ever propelled b}" oars." ^ § 405. These considerations have induced the legislature, in framing interpretation laws, to quality them so that they are not to be observed and followed if such construction would be inconsistent with its manifest intent. With such modifica- tion, the rules of interpretation generall}'- adopted aid not only legislators in drafting statutes, but also the courts in their ex- position. Among these rules are the following : Words import- ing; the sino-ular number onlv mav extend to and embrace the plural number, and vice versa; - words importing the mascidine gender only may extend to and be applied to females as weU as males ; the word " person " may extend and be appHed to bodies politic and corporate as well as to natural persons ; ^ the word "issue " shall be construed to include all the lawful lineal descendants ; land or real estate shall be construed to include land, tenements and real estate and all rights thereto and interests therein; the word "oath" shall include an affirma- tion; the word "month" or "year" shall be construed to mean a calendar month or year. Such a definition of land and real estate is statutory in Michigan, but the statute in regard to executions required chattels, real or personal, of the debtor to be taken and sold by one ceremony, and his real estate by another. These provisions were deemed to countervail the statutory definition of land and real estate ; therefore a sale 1 Ferguson, Ex parte, L. R. 6 Q. B. -' Hogan v. State, 36 Wis. 226, 247. 291. See The Gauntlet, L. R. 3 Adm. ^ See Tewksbury v. Schulenberg, 38t 41 Wis. 584. 618 STKIOT CONSTEUCTION. of a leasehold estate as land by the proceedings appropriate to the latter kind of property was held to pass no title.^ In the General Statutes of Michigan it is provided that " the words 'annual meeting,' when apphed to townships, shall be con- strued to mean the annual meeting required by law to be held in the month of April," and that "the words 'general elec- tion' shall be construed to mean the election required by law to be held in the month of November." ^ In a special statute creating the city of Pontiac it was provided that " nothing in this act shall operate to prevent the holding of the annual meetings of the township of Pontiac ... in said city, as though this act had not passed." It was held that the general election in ^November for the township could not be held in the city under the saving clause. The latter was strictly con- strued in harmony with the legislative definition.' A statute of the same state requires that deeds shall be executed in the presence of two witnesses, " who shaU subscribe their names to the same as such," * A question arose whether a deed was executed where a marksman, whose name was written as a sub- scribing witness by another, had thus witnessed, as one of the subscribing witnesses, he having made his mark in connection with his name. It was held a compliance with the statute, it being prescribed by the defining provisions that " in all cases where the written signature of any person is required by law it shall be in the proper handAvriting of such person, or, in case he is unable to write, his proper mark." * § 406. Retrospective laws. — Such statutes, when not for- bidden by the constitution, may be valid, but there is always a strong leaning against giving them a retrospective opera- tion, and this proceeds from the presumption that the legisla- ture does not intend what is unjust. "Those whose duty it is," says Erie, C. J., "to administer the law very properly guard against giving to an act of parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous 1 Buhl V. Kenyon, 11 Mich. 249. See "Westinghausen v. People, 44 id. See Westervelt v. People, 20 Wend. 265. 416. * 2 How. St § 5658. « 1 How. St § 2, subd. 4 and 19. 5 1 id. § 2, subd. 17 ; Brown t. Mo- » People V. Knight, 13 Mich- 424 Cormick, 28 Mich. 215. STRICT CONSTRUCTION. 519 langu.age." ' Such laws are looked upon with general disfavor. In Dash v. Van Kleeck,- 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 un- certain 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 constru- ing an act of the legislature. The intention should be ascer- tained from its language, if possible, considered in connection with the every-day wants and objects of the people for w^hose 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 un- certain. "Then the hardship, the injustice, and, in every point of view, the effects and consequences of particular construc- tions of a statute, will be considered ; and the best effect of » Midland R'y Co. v. Pye, 10 C. B. s ReithmiUer v. People, 44 Mich. Fox v. Sloo, 10 La, Ann. 11 ; Fox 2 Rex V. Williams, 1 W. Black. 93 ; v. New Orleans, 12 id. 154 ; Davenport Blakeney v. Blakeney, 6 Port 109; v. Barnes, 2 N. J. L. 211; AVilber v. Mayor, etc. v. Root, 8 Md. 95 ; Wood- Paine, 1 Ohio, 117 ; Pancoast v. Ruf- ruff V. State, 3 Ark, 284 fin, 1 Ohio, 177 ; Lessee of Burgett v. 3 Ante, % 349. Burgett, 1 Ohio, 219 ; McCormick t. * Sprowl V. Lawrence, 33 Ala. 674 ; Alexander, 2 Ohio, 74 ; Fr anklin v. Gilkey v. Cook, 60 Wis. 133. Franklin, 1 Md. Ch. 342. 5 Atcheson v. Everett, 1 Cowp. 391 ; 8 Denn v. Reid. 10 Pet 524 ; Guth- Johnes v. Jolines, 3 Dow, 15 ; Turtle rie v. Fisk, 3 B. & C. at p. 182 ; Brand- V. Hart%veU, 6 T. R 426. ling v. Barrmgton, 6 B. & C. 475. 6 Moody V. Threlkeld, 13 Ga. 55. » Id. 524 LIBERAL CONSTRUCTION. as well as to include cases in furtherance of tlie law-makers' intention. That which is not in the purpose or meaning, nor within the mischief to be remedied, is not included in the stat- ute, even though it be within the letter.^ The couits follow the reason and spirit of such statutes till they overtake and destroy the mischief Avhich the legislature intended to sup- press.'- In doing so they often go quite beyond the letter of the statute.^ What is within the intention is within the stat- ute though not within the letter; and what is within the letter but not within the intention is not within the statute* § 413. The intention is not something evinced deJiors the statute ; it is to be learned from it, with those extrinsic aids to a correct interpretation to which resort may be had; and that intention, when satisfactorily ascertained, is the design to which the letter is subordinated. And it is ever to be borne in mind that the intention is to be collected from the words, the context, the subject-matter, the effects and consequences, the spirit and reason of the law, and other acts in pari ma- terial' What is liberal construction can be better understood with these general principles in mind, by study of a multitude of well-considered cases, and by carefully considering the re- ciprocal influence of the principles which underhe the two modes of construction — strict and liberal. A liberal con- struction is given to remedial statutes, and statutes generally enacted for the public convenience and for its material wel- fare, except as modified or neutralized by the conservatism upon which strict construction is founded. § 413. Equitable construction. — Early acts of parliament were brief and general in their terms. They were made to operate upon a very latitudinary construction in both civil and criminal cases. The courts proceeded upon what was called the equity of the statute. " Equity," said Lord Coke, •' is a construction made by the judges that cases out of the i Taylor v. McGill, 6 Lea, 294 4 Mayor, etc. v. Root, 8 Md. 95 ; - Shumate v. Williams, 34 Ga. 251. Cliealy v. Brewer, 7 Mass. 259 ; State 3Id. ; Henderson v. Alexander, 2 v. Boyd, 2 Gill & J. 374; Woodruil Ga. 81; Booth v. Williams, id. 252; v. State. 3 Ark. 285 ; Brown v. Gates, Howard v. Ceuti-al Bank, 3 id. 380 ; 15 W. Va. 131 ; Eyston v. Studd, Ragland v. Justices, 10 id. 71 ; Canal 2 Plowd. at p. 464. Co. V. Railroad Co. 4 Gill & J. 152 ; 5 Woodruff v. State, 3 Ark. 285. Milburn v. State, 1 Md. 17. LIBERAI, CONSTKUCTION. 525 letter of the statute, yet being within the same mischief, or cause of the making of the same, shall be "within the same remedy that the statute provideth; and the reason thereof is, for that the law-mnkers could not possibly set down all cases in express terms." ^ While this mode of construing statutes was in vogue, principles and instances illustrative of them were announced which have become embedded in the literature of the law ; they still are quoted when courts give a very lib- eral construction to statutes. These are but relics of ancient hermeneutics which do not survive entire.- 1 1 Inst 245. 2 There is in 2 Plowden, 465, an in- teresting and instructive review and resume of construction of statutes by equity as practiced in the time of Queen EUzabeth. The concluding words of the judg- ment in Eyston v. Studd will indi- cate the nature of that case : "Wherefore a man ought not to rest upon the letter of an act, nor think that when he has the letter on liis side he has the law on his side in all cases. For if a woman is seized of land in fee-simple, and she intends to marry, and before the marriage she enfeoffs the father of him whom she intends to marry, to the intent that after the marriage he shall give the land back again to her and to him whom she intends to marry, with remainder over in tail, and afterwards they intermarry, and then the father gives the land to liis said son and to liis wife according to the intent, and they have issue, and the husband dies, and she levies a fine to other uses, now the wife is within the words of the statute of 11 Hen. 7, for the land was given to her and to her husband in tail by tlie ancestor of tlie husband, and after the death of the husband she has leWed a fine to bar the issue: but uotwitlistanding that she is witliin the words of the act, yet she is out of the intent of the act and there- fore the issue shall not enter ; for the estate-taU was made by tlie wife by circumstance, and is derived from her, and the father of the husband had the land to no other intent but to make the estate, and to that in- tent and purpose he was made use of as an instrument, so that the effect of the whole matter was to make a jointure to the husband out of the land of the wife, which, although witliin the letter of the act of 11 H. 7, yet it is out of the intent of it, and consequently out of the purview." To tins the reporter adds an exliaust- ive note. He says : " From this judgment and the cause of it the reader may observe that it is not the words of the law but the internal sense of it that makes the law, and our law (hke all others) con- sists of two parts, viz., of body and soul ; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis est anivia legis. And the law may be resembled to a nut which has a shell and a kernel witliin ; the letter of the law represents the shell, and the sense of it the kernel. And as jou will be no better for tlie nut if you make use only of the shell, so you will receive no benefit by the law if you rely only upon the letter ; and as the fruit and profit of the nut 526 LIBERAL CONSTKUCTION. It is said in Plowden,^ for wliich there were many instances, that " where an act is made to remedy any mischief, there in lies in the kernel, and not ia the shell, so the fruit and profit of the law consists in the sense more than ia the letter. And it often happens that when you know the letter you know not the sense, for sometimes the sense is more confined and con- ti'acted than the letter, and some- times it is more large and extensive. And equity, which ui Latin is called equitas, enlarges or diminishes the letter according to liis discretion, wliich equity is in two ways; the one Aristotle defines thus: Equitas est coiTectio legis generatitn latce qud parte deficit, or as the pas- sage is explained by Perionius: Equitas est con^ectio quoedam legi adhibita, quia ab ea abest aliquid propter generalem sine exceptione comprehensionem, both of which defi- nitions come to one and the same thing. And this correction of the gen- eral words is much used in the law of England. As when an act of par- Hament ordains that whosoever does such an act shall be a felon and shaU suffer death, yet if a man of imsoimd mind, or an infant of tender age who has no discretion, does the act, they shall not be felons, nor shaU they be put to death. And if a statute be made that all persons who shall re- ceive or give meat or drink or other aid to him that shall do such an act (knowing the same to be done), shall be accessories to the offense, and shall be put to death, yet if a man commits the act, and comes to his own wife, who knowing the same receives him, and gives him meat and drink, she shall not be accessory to his offense, nor a felon ; for one that is of unsound nimd, an infant, or a wife, were not intended to be included in the gen- eral words of the law. So that ia these cases the general words of the law are corrected and abridged by equity. . . . And the statute of Westminster 1, cap. 4, touching wreck of the sea, ordains ' that when a man, dog, or cat, escape aUve out of the ship, such ship or anything within it shall not be adjudged wreck, but the goods shall be saved and kept by view of the sheriff, coroner or king's bafiiff, and dehvered into the hands of such as are of the town where the goods were found, so that if any sues for the goods, and can prove that they were his, within a year and a day, they shall be re- stored to him without delay, and if not, they shall remain to the king, and shall be seized by the sheriff, cor- oner, etc., and be dehvered to them of the town, who shall answer before the justices for the wTeck wliich belongs to the king; and where wreck be- longs to another than to the king, he shall have it in hke manner ; and he that does otherwise, and thereof is at- tainted, shall be awarded to prison, and make fijie at the king's will, and shall yield damages also.' Now put the case that the goods in such ship are fresh victuals, as flesh, fresh fish, or apples, or oranges, or such peri'sh- able goods as cannot be kept for a year, and the sheriff sells them, and deUvers the money arising from the sale of them to the town to answer for it, in tliis case he has broken the words of the act, and therefore, if we adjudge according to the words, the sheriff should be sent to prison, and be fined at the wiU of the king, and should pay damages; but, on the other hand, if we foUow the sense and meaning of the act, he has d6ne 1 Hill V. Grange, 1 Plowd. at p. 178. LIBERAL CONSTRUCTION. 527 order to aid things in like degree, one action has been used for another, one thing for another, one place for another, and well, and shall not be punished, for the meaning of the act is, that such things as could be kept for a year, without spoil or damage, should be kept so long, but if the things are so perishable that they cannot be pre- served a whole year, nor perhaps two days, then it was not the intent of the makers of the act that the sheriff should let them fall to decay, but rather that he should immediately make the most of them he could ; so that although the sheriff has done conti'aiy to the words of the law by selling the goods within a year, yet he has not broken the law, but has punctually observed it, inasmuch as he has observed the intent and mean- ing of the makers of the law. . . . (The reporter states many other in- stances of imphed exceptions from the general words in harmony with the intent, or to exclude cases not within the mischief, and proceeds to give the instances of enlarging the letter.) The other kind of equity differs much from the former, and is in a manner of quite a contrary effect, and may well be thus defined : Equitas est vei'bonim legis diredio efflcacius, cum una res fuluvimodo legis caveatur verbis, ut omnis alia in eguali genere eisdem caveatur verbis. And this definition seems agreeable to that of Bracton, wliich is thus : Equi- tas est reintm convenientia gtice in jmribu^ cavMs paria desiderat jura, et omnia bene coaiquiparet, et decitur equitas quasi cequalitas. So that when the words of a statute enact one tiling, they enact aU other tilings which are in the hke degi-ee. As the statute which ordains that in an action of debt against executors he who comes first by distress shall answer, is extended by eqmty to administra- tors, and such of them as come first by distress shall answer by the equity of the said statute, quia sunt in cequali genere. And the act of 4 H. 4, cap. 8, gives a special assize to him who is disseized and ousted of his land by force, against the disseizor, and enacts that he shall recover against him double damages ; and in the book of entries (Rasti), fo. 406, it appears that the plaintiff recovered by judgment double damages in an assize of nuisance for turning a water-course with force, to the nui- sance of his mills, wherein it was found for the plaintiff ; and yet there he was not ousted of his land, nor did he suffer any disseizin, but only a nuisance to the damage of his free- hold, viz., his mUls, whereof he con- tinued seized ; so that by the equity of the said statute the plaintiff re- covered his double damages for the nuisance, because it is in hke degree with a disseizin of land. " And the statute of Gloucester gives an action of waste and the punish- ment therein against him that holds for life or for years, and by the equity thereof a man shall have an action of waste against him who holds but for a year, or for twenty weeks, and yet this is out of the words of the act^ for he that holds but for one year does not hold for years; but it is within the intent of the act, and the words which enact the one do by equity enact the other. And so tliere are an infinite number of cases ia our law wliich are in equal degiee with othei-s provided for by statutes, and are taken by equity within the meaning of those statutes. And from hence, it appears that there is a great diversity between tiiese two equities, for the one abridges the letter, the b'2S LIBERAL CONSTRUCTION. one person for another, notwithstanding that in some cases the thing is penal" ^ The word "ancestor," in Westminster the other enlarges it ; the one diminishes it, the other amphfies it ; the one takes from the letter, the other adds to it. So that a man ought not to rest upon the letter only, narn qui hceret in litera, licBret in cortice, but he ought to rely upon the sense, which is tem- jjered and giiided by equity, and therein he reaps the f laiit of the law ; for as a nut consists of a shell and a kernel, so every statute consists of the letter and the sense, and as the kernel is the fruit of the nut, so the sense is the fruit of the statute. Aiid in order to form a right judgment when the letter of a statute is restiained, and when enlarged by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touch- ing the equity ; then you must give youi'self such an answer as you im- agine he would have done, if he had been present. As, for example, in the case before mentioned where the sti-angers scale the walls, and defend the city, suppose the law-maker to be present with you, and in your own mind put this question to him : Shall the strangers be put to death? Then give yom-self the same answer which you imagine he, being an upright and reasonable man, would have given, and you will find that he would have said, ' they shall not be put to death.' . . . And there- fore when such cases happen wliich are within the letter, or ovit of the letter of a statute, and yet don't directly fall within the plain and natiual purport of the letter, but are in some measure to be conceived in a different idea from that which the text seems to express, it is a good way to put questions and give answers to your- self thereupon, in the same manner as if you were actually conversing with the maker of such laws, and by this means you will easily find out what is the equity in those cases. . . . And where the statute of 37 H. 8, cap. 8, took away clergy from liim that stole any horse, and the statute of 1 Edw. 6, cap. 12, enacted that those who were attainted of steaUng horses should not have their clergy, but that in aU other cases of felony persons attainted should have their clergy, I by no means commend the scrupulosity of the judges in these times who took the law to be thereupon, that he who stole one horse only should have his clergy, and therefore procured the act of 3 Edw. 6, cap. 33, to be made, which ousted liim of his clergy who stole one horse only ; for where the stat- ute speaks of stealing horses, although it speaks in the plural number, yet, by eciuity (which considers the intent of the legislature), it ought also to comprehend one singular horse only, and that as fully as if it had said horses or horse : and the clause in the act wliich says that in all other cases of felony persons attainted thereof shall have their clergy is to be inter- preted and intended of others than those w ho steal horses or a horse ; for, as the statute of Gloucester, which gives an action of waste against him that holds for years, in the plural number, may be taken to compre- hend him who holds but for one year, so may the said statute which speaks of horses in the plural nimiber be in- terpreted to comprehend one horse in the singular nvmiber. And if it be said that the law is penal in 1 See Wheatley v. Lane, 1 Williams' Saund. (& Wilhams' Notes) 216. LIBEKAL CONSTRUCTION. 529 First,' is extended so as to include predecessor.' The remedy given by the 9th Edward III., chapter 3, against executors, was extended by equitable construction to administrators.' The statute of 1 Richard II., chapter 12, which forbade the warden of the Fleet to suffer his prisoners for judgment debts to go at large until they had satisfied their debts, was held to include all jailors.'* The statute of Westminster 2, chapter 31, which gave the bill of exceptions to the ruling of the judges of the common pleas, was held applicable to the other judges of the superior courts, and also to the county courts, the hundred and the courts baron ; to the inferior courts, because their judges were still more liable to err.* The statute of Gloucester, chaj> ter 11,* in six^aking of London, was considered as intending to include all cities and boroughs equally, the capital having been named alone for excellency.' The statute, or writ of circum- specti agutis^ 13 Edward I., which directs the judges not to in- terfere with the Bishop of Norwich or his clergy in spiritual suits, was construed as pix)tecting all other prelates and eccle- siastics, the Bishop of Norwich being put but for an example.* § 414. Whatever the reasons for this latitudinary construc- tion of statutes, whether it came from their being brief and general, fi'amed by the judges themselves, and the uncertainty of the line dividing legislative from judicial functions, it is part of the history of the law. The underlying principle is obsolete,* though to a limited extent it still exercises some influence in the domain of liberal construction. Some examples of it are yet made to do duty, as fit illustrations of the expansive and elastic quality of remedial laws.^' The principle on which this case, to tliis it may be answered ' Eyston v. Studd, supra. See that so it is also in the other case ; but Hoguet v. Wallace, 28 N. J. L. at equity knows no difference between p. 526. penal laws and others, for the intent * Piatt v. Lock, 1 Plowd. 3o. (which is the only thing regarded by * 2 Inst 426 ; Sti-other v. Hutchin- equity, as may appear to every one son, 4 Bing. N. C. 83. who pursues the method of inquiry ^ 6 Edw. L by way of question and answer in '2 Inst 321 ; Endlich, Int St § 322. the manner before intimated) ought 8 Id. ; 2 Inst 487. to be foUowed and taken for law, as ^ Hardcastle on St 39 ; Ex parte weU in penal laws as in others." See Walton, L. R 17 Ch. Div. 750. Wimbish V. Tailbois, 1 Plowd 38. '"Simonton v. BaritiU, 21 Wend I 3 Edw. I. ch. 40. 362 ; United States v. Freeman, 3 « 2 Inst 242. How, at p. 565. 34 530 LIBEnAL OONSTETJCTION. the courts proceeded in giving effect to the equity of a statute seems to have been that of supplementing the statute by ex- tending it to like cases, and arresting its operation in cases not deemed to be within its purpose. It has an ingredient of leg- islative discretion,' and is not strictly or solely a principle of construction. The court did what it was supposed from the act passed the legislature would have done had its attention been called to the similar case in hand. They apphed the common-law maxim, quod in nno similhiin valet, valebit in al- ter o, or, as Coke puts it, '- If they be in hke reason, they are in hke law." - Lord Westbury spoke of equitable construction of statutes as " a mode of interpretation very common with regard to our earlier statutes, and very consistent with the principle and manner according to which acts of parhament were at that time framed." * In Guthrie v. Fisk,* Bayley, J., denounced it as " a dangerous rule of construction to intro- duce words not expressed because they may be supposed to be within the mischief contemplated." And another learned judge on the English bench said : " I think there is always danger in giving effect to what is called the equity of a stat- ute, and that it is much better to rely on and abide by the plain words, although the legislature might possil^ly have pro- vided for other cases had their attention been directed to them." ' Lord Camden « said: "Where it is clear the person or thing expressed is put by way of example, the judges must fill up the catalogue ; yet we ought to be sure, from the words and meaning of the act itself, that the thing or person is really inserted as an example. . . . Whenever this rule is to take place, the act must be general, and the thing expressed must be particular. ... In all cases that fall within this rule, there must be a perfect resemblance between the persons or things expressed and those implied." §415. What is liberal construction. — A statute extends no further than it expresses the legislative wiU. When it is held to embrace a case which is within its spu-it, though not 1 Annan v. Houck, 4 Gill, at p. 332. 5 Lord Tenterden in Brandling v. 2 Coke Lit 191a. Barrington, 6 B. & C. at p. 475. 3 Hay V. Lord Provost of Perth, 4 « Entick v. Carrington, 19 How. St Macq. Sc. App. at p. 544 Tr. 1029, 1060. *3 B. & C. at p. 183. LIBEILA.L CONSTRUCTION. 531 within its letter, it is not meant that the courts have authority to extend a statute to cases for which it does not by its words provide, or beyond the sense of its language. A statute is a written law, and it cannot be construed to have a sense and spirit not deducible from its provisions. It is a general rule that courts must find the intent of the legislature in the statute itself. Unless some ground can be found in the statute for restraining or enlarging the meaning of its general Avords, the}' must receive a general construction ; the courts cannot arl^i- trarily subtract from or add thereto.^ The modern doctrine is that to construe a statute hberally or according to its equity is nothing more than to give effect to it according to the inten- tion of the law-maker, as indicated by its terms and purposes. This construction may be carried beyond the natural import of the words when essential to answer the evident purpose of the act ; so it may restrain the general words to exclude a case not within that purpose. § 416. There is no arbitrary form of words to express any particular intention ; the intent is not identical with any phra- seology employed to express it. Any language is but a sign, and many signs may be used to signify the same thing. In statutes the sense signified is the law ; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of pre- cision, and aU words and collocations of words admit of more than one interpretation,^ In the construction of remedial statutes, while the meaning of words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every nature of which the courts take judicial notice. Lil>- eral construction of any statute consists in giving the words a meaning which renders it most effectual to accomplish the pur- pose or fulfill the intent which it plainh' discloses. For this purpose the words may be taken in their fullest and most com- prehensive sense. Where the intent of the act is manifest, particular words may have an effect quite beyond their natu- ral signification in aid of that intent.^ The following cases 1 Tynan v. Walker, 35 CaL 634. 3 WDberf. on St 235 ; Aveiy v. 2 See Regina v. Skeen, Bell, C. C. Groton, 36 Conn. 304 ; Smith v. Ste- 184, per Pollock, C. B. vans, 82 IlL 554 ; Dean aud Chapter 532 LIBERAL CONSTEUCTION. appear to the writer to fitly illustrate the degree of elasticity of statutes which are to be liberally construed : An Alabama statute provided that " All actions of trespass quare clausum /regit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his or her or their representatives in the same man- ner as actions upon contract." This was held not to authorize the representatives to bring an action originally for such torts, but only to revive actions brought by plaintiffs who have died. Eeasons may have influenced the legislature in giving a rem- edy in the one case which it was unwilling to extend in the other. In the former the deceased had himself elected to seek redress, and should his suit abate by his death his estate would be subjected to costs. In the latter he had brought no action, and may have intended to waive the wrong. " These consid- erations," say the court, " it is possible, may have influenced the legislature in thus limiting the remedy. Be this as it may, the construction [that an original action might be brought on the equity of the statute] cannot be given to it unless we go, not only ultra the strict letter, but contra the letter also, which is inhibited by every just principle of construction." ^ A provision that all actions against sheriffs and coroners upon any Habflity incurred by them by the doing of any act in their official capacity, or by the omission of any official duty, shall be brought within three years after the cause of action shall have accrued, though construed very liberally, is held not to apply to actions for acts done merely colore but not mrtute officii.- An act modified the common law with regard to the effect of the voluntary discharge of a defendant from arrest on a judg- ment by giving the plaintiff a remedy by further execution or oih.Q,v process. This word in strictness was held to mean only scire facias; but as the statute was remedial, it should be con- strued to include an action of debt also.^ § 417. When the scope and intention of an act are ascertained by all the aids available, words whose ordinary acceptation is of York V. Middleburgh, 2 Y. & J. Cogan, 2 Doug. 699, 706 ; Houk v. 196 ; Vigo's Case, 21 WalL 648 ; Turtle Barthold, 73 Ind. 21. V. Hartwell, 6 T. R at p. 429 ; Atclie- ' Blakeney v. Blakeney, 6 Port 115. son V. Everitt, 1 Cowp. at p. 391 ; State 2 Morris v. Van Voast, 19 "Wend. 283. V. Powers, 36 Conn. 77; Hyde v. s Simonton v. BarreU, 21 Wend. 363. LIBERAL CONSTBUCTION. 533 limited may be expanded to harmonize with the purpose of the act. This interpretation is admissible of statutes gener- ally, but has a more liberal application to remedial and some other statutes which are liberally construed. It is applied to every case within the object of the act if it can reasonably be brought within its language. Thus in Silver v. Ladd ' the court held that in construing a benevolent statute enacted to confer a public benefit, by encouraging citizens to settle on dis- tant portions of the public domain, the words " single man " may, in the light of the context showing the scope and- purpose of the act, bo taken in a general sense as including an unmar- ried woman.2 i7Waa319. 2 " Tliis case may be taken as an il- lustration of the elasticity of words in an act to be liberally construed. It explained the provisions of the act of congress of the 27th of September, 1850, commonly called the Donation Act. Millei-, J., speaking for the whole com-t, said : " We admit the philological criticism that the words ' single man ' and ' married man,' referring to the conjugal relation of the sexes, do not ordinarily include females ; and no doubt it is on tliis critical use of the words that the de- cision of the Oregon com-t is mainly f oimded. But conceding to it aU the force it may justly claim, we are of opinion that it does not give the true meaning of the act, according to the intent of its f ramers, for the follow- ing reasons : " 1. The language is that tliere is hereby granted to ' every wliite set- tler or occupant of the public lands, above the age of eighteen years,' etc. This is intended to be the description of the class of persons who may take, and, if not otherwise restricted, will clearly include all women of tliat age as well as men. '■ 3. It is only in prescribing the quantity of land to be taken that the restrictive words ai'e used, and even then the words are capable of being construed generically, so as to include both sexes. In the case of a married man it is clear that it does include his wife. " 3. The evident intention to give to women as weU as men is sho\vn by the provision that, of the six him- di-ed and forty acres gi-anted to mar- ried men, one-half shall go to their wives, and be set apart to them by the surveyor general, and shall be held in their own right Can there be any reason why a married woman, who has the care and protection of a husband, and who is incapable of making a separate settlement and cul- tivation, shaU have land given to her own use, wliUe the improtected fe- male, above tlie age of eighteen years, who makes her own settlement and cvdtivation. shall be excluded? " 4. But a comparison of the mani- fest pui-pose of congress and the lan- guage used by it, in section 4 of this statute, with those of section 5, wUl afford gTOimds for rejecting the interpretation ckiimed by defendants wliich are almost conclusive. " The fii-st of these sections applies, as we have already said, to tliat meri- torious class who were then residing in the territory, or should become residents by the 1st of December 5U LIBERAL CONSTRUCTION. § lis. An act which authorized justices to make orders in bastardy proceedings against the putative father of the bastard child of " any single woman " was held to include a widow, for the description did not mean never married ; ^ it included a married woman living apart from her husband, when his non- access is proved. Lord Denman, referring to 7 and 8 Yict., chapter 101, said in Regina v. CoUingwood : ^ " The language of the statute applies in terms only to single women ; so did the language of 6 Geo. II., chapter 31 ; yet Lord EUenborough, and the whole court in Hex v. Luffe,* held that an order might be made on the putative father of the bastard child of a mar- ried woman, who was to be considered single under the exist- ing circumstances and for that purpose." Sergeant Godson, arguing for that construction, remarked that " the adultery thereafter. It extends to persons not citizens of the United States, to per- sons only eighteen years old, and it gives to each a half section of land. The fifth section makes a donation of half tliis amount, and is restricted to citizens of the United States, or those who have declared their intention to become citizens, and to persons over t^venty-one years of age. But what is most expressive in regard to the matter under discussion is, that the very first line of that section, in which the class of donees is described, uses the words ' white male citizens of the United States.' Now when we reflect on the class of persons in- tended to be rewarded in the fourth section, and see that words were used which included haK-breeds, foreign- ei-s, infants over eighteen, and wliich provided expressly for both sexes when married, and used words capa- ble of that construction in cases of unmarried i^ersons, and observe that in the next section, where they in- tend to be more restrictive, in refer- ence to quantity of land, to age of donee, citizenship, etc., they use apt words to express tliis restriction and then use the words ' white males ' In reference to sex we are forced to the conclusion that they did not intend, in section 4, the same limitation in regard to sex wliich they so clearly expressed in section 5. The con- trast in the language used in regard to the sex of the donees in the two sections is sustained throughout by the other conti'asts in the age and character of the donees, and the quantity of land gi-anted." The con- text in tliis case shows that the donor did not intend to limit the donation to males; hence the words "single man" and "married man" were brought into harmony with that iu- tention by construing them in a ge- neric sense. In Reg. V. Wymondham, 2 Q. B. 541, in consti'uing a statute relative to the settlement of a pauper, which is a statute to be strictly construed, the judges were not willing to construe "single and unmarried" persons as meaning also " not having childi-en " or " never married." 1 Reg. V. Wymondliam, 2 Q. B. 541 ; Antony v. Cardenham, Fortes. 309. 2 12 Q. B. 681. 3 8 East, 193. LIBERAL CONSTRUCTION. 535 of the wife places her in the position of a single woman." Lord Campbell, C. J., said, in Kegina v. Pilkingtoii : ^ "It would be strange if one class of bastards, though small, were left en- tiiely destitute, and there were no liability in the putative father." A statute of Alabama provided that, " For any breach of any official bond or undertaking of any officer of this state, executor, administrator or guardian, or of any bond or under- taking given in an official capacity to the state of Alabama, or any officer thereof, the person aggrieved may sue in his own name, assigning the appropriate breach." - This statute was declared remedial. It was intended that suits on official and the other bonds mentioned should be prosecuted by the party really aggrieved, in his own name, dispensing with the mere form, which obedience to the rule of the common law required, of introducing on the record, as nominal plaintiff, the obligee of the bond, who had no right or interest involved, and who could not control the suit — who was not answerable for costs, and could not release or discharge the recovery. The bond of a county treasurer, though a county and not a state officer, was not within the words of the section, if taken in a narrow or strict sense. But because such a bond, when the subject of a suit by an individual aggrieved by the county treas- urer's official delinquency, is as much within the mischief the section was intended to correct as other bonds coming within its letter, it is not a strained construction to read the statute as embracing it and the bond of any public officer.' A statute of the same state provided that, " Whenever any officer, re- quired by law to give an official bond, acts under a bond which is not in the penalty, payable and conditioned as prescribed by law, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to aU the remedies which the person aggrieved might have maintained upon the official bond of such officer, executed, approved and filed according to law." This section was held to apply to bonds which were in the penalty, payable and conditioned as prescribed by law, but which were not executed, approved and filed within the time limited thereby.* 12 E. & B. 546. ^Sprowl v. Lawrence, 33 Ala 685. 2 Rev. Code of 1867, § 2553. lu tliis case tlie com-t say : "An ex- 3 Morrow v. Wood, 56 Ala. 1, 5, 6 ; amination of the various provisions Sprowl V. Lawrence, 33 id, 674. of the code in reference to the bonds 536 LIBERAL CONSTEUCTION. § 419. Where the words of a statute prescribing compensa- tion to a pubUc officer are loose and obscure and admit of two of public officers will satisfy any one of the studious solicitude with which the legislatm-e has sought to afford the most ample protection to all per- sons interested in the performance by such officers of tlieii- official duties. The section we are considering is a part of the legislation designed to effect this general object, and it is our duty to put upon it such a consti"uction as will harmonize with the substance and spirit of tlie text to wliich it be- longs. It is a remedial statute, and we must construe it largely and ben- eficially so as to suppress the miscliief and advance the remedy ; or, in tlie language of Lord Coke, so as ' to add force and hfe to the cm-e and rem- edy, according to the true intent of the makers of the act, 2^^o bono pub- lico: Hayden's Case, 3 Rep. 7 ; Sedg- wick on St, 359-60. It must be ad- mitted that the words of tliis section are not as clear and precise as they might be ; and it is a well-settled iiile that, when the words are not precise and clear, such consti'uction will be adopted as shall appear ihe most rea- sonable and best suited to accompUsh the object of the statute ; and a con- struction wliich would lead to an ab- surdity ought to be rejected. " Viewing section 132 (quoted m the text) in the hght of these rules, we cannot assent to the construction of it urged by the counsel for tlie appel- lee. The result to which that con- stiTXCtion leads demonstrates, in our opinion, its fallacy. By section 120 it is declared that the bond of any officer which is not in the penalty, and payable and conditioned as pre- scribed by law, 'should not be ap- proved,' and that the officer approv- ing the same 'neglects his duty,' Section 132 is evidently based on the supposition that bouds wliich were not in the penalty, and payable and conditioned as prescribed, would, or to say the least might, not be ap- proved and filed; and tliis for the simple reason that the officers in- trusted with the authority to approve and ffie are advised by an emphatic admonition from the legislature that such bonds ' should not be approved ' and that no bond shall be filed unless first approved. Code, g§ 120, 126, Hence the language is that such a bond, if the officer executing it ' acts under it,^ shaU be subject to all the remedies which could be maintained ' on tlie official bond of such officer, executed, approved and filed accord- ing to law: These last words seem to imply that a bond wliich did not con- form to the statutory requirements as to penalty, payee and condition would not be executed, approved or filed according to law. And yet, if the sheriff acts under such a bond,- it stands in the place of and is subject to aU the remedies wluch could be maintained upon the official bond of such officer, executed in all respects in strict conformitj^ to the statute. Hence we conclude that, so far as the operation of section 132 is concerned, it makes no difference whether the bonds there spoken of have or have not been approved and filed. The bonds referred to in that section could not be properly approved or ffied ; for the law expressly declares that bonds thus defective should not be approved, and that the officer who does approve them violates 7ns duty. If a bond is approved and filed when it should not have been, and if the officer who approves and files it vio- lates his duty in doing so, the act of approval and filing, it would seem. UBEKAL CONSTRUCTION. 537 interpretations, they should be construed in favor of the officer. This was held by Story, J., in the construction of a statute au- thorizing the secretary of the treasury to limit and lix the number and compensation, among others, of deputy collectors, "vvith a proviso that no such deputy, in certain named districts, should receive more than $1,000, " nor any such other deputy more than $1,000 for any services he may perform for the United States in any office or capacity," That eminent judge and jurist said the last clause was obscurely drawn, and, " after weighing the subject with a good deal of care, I have come to the conclusion that the true intent and meaning of the clause is to Umit the emoluments of the deputy collector in that office to the sum specilied, and to make no allowance to him on ac- count of any incidental services he may perform or emoluments he may receive beyond that sum ; and that it was not intended to say that if he actually performed the duties or services of any other independent office, such as inspector, in any of the non-enumerated ports, he was not entitled to receive the emol- uments thereof. In short, I read the language as if it were ' in any such office or capacity.' " ' A Missouri statute was : " The county in which the indictment is found shall pay the costs in all cases where the defendant is sentenced to imprison- ment in the county jail, and to pay a fine, or either of these modes of punishment, and is unable to pay them." '^ A prose- cution for an offense so punishable was dismissed by an agree- ment between the circuit attorney and the defendant, with the consent of the court, at the defendant's cost. The costs were taxed and an execution issued for them. It was held that the county was liable not only for the costs taxed, but also for the cannot be otherwise than nugatory and which does conform to aU the as such, though it would doubtless be requirements of the law except the convenient and plenary proof of the last two, approval and tiling. To hold dehvery of the bond by the obUgors. otherwise would be to maintain the This section, therefore, in our judg- paradox that the validity of the bond ment, applies to a bond which does is eulianced by its increased iiuper- not conform to any of the statutoiy fections — that a total is less hurtful requirements, either as to its penalty, than a partial departure from the payee, conthtions, approval or filing, statute, and that an insti'ument in provided the officer executing it has fact gets better as it grows worse." acted under it Much more clearly • United States v. Morse, 3 Story, 87. does it apply to a bond a\ liich the 2 Gen. St ch. 219, g 3. officer executing it has acted vmder. 538 LIBERAL CONSTKUCTION. costs on the execution.^ The statute of 38 Geo. III., chapter ST, section 1, says that " at the expiration of twelve calendar months from the death of a testator, if the executor to whom probate of the will has been granted is then residing out of the jurisdiction of his majesty's courts of law and equity, it shall be lawful to make a grant of administration to the persons in- terested." An executor was residing in the jurisdiction at the expiration of the twelve calendar months, and continued so to reside for fom* years. He then removed out of the jurisdiction, and at the date of the apphcation was still residing abroad. The question was whether the statute apphed to him. It was held that it did. The statute was held remedial to enable persons interested in the estate to enforce their claims. Lord Penzance said : " My difficulty arose on reading the words ' then residing ; ' but it was pointed out to me that if I restricted the operation of the statute to the case of the executor residing out of the jurisdiction at the expiration of twelve months, the intention of the statute could hardly be worked out." ^ In Evans v. Jones* the court of great session was abol- ished, and a statute provided that "the court of common pleas shall have the like power and authority to amend the 1 State V. Buchanan Co. Ct. 41 Mo. statute of 1 Rich. II., ch. 13, which is 254. altogether sUent about sheriffs and 2 In the Goods of Ruddy, L. R. 2 P. gaolers, and mentions only the warden & D. 330. of the Fleet. So the statute of circum- 39 Bing. 311. In this case a lib- specie agra^iis (13 Edw. I.), which men- eial construction was allowed on the tions only the Bishop of Norwich, authority of cases decided upon has been always extended to include the equity of statutes. "Many in- aU other bishops. 2 Inst. 487. The stances," says the Lord Chief Jus- statute of Westminster I gives a tice, " occur in the books of simUar remedy where ' outi-ageous toU is constiTiction of statutes. The 9 Ricli. taken ;' by consti'uction of law that II., ch. 3, gives a writ of error to remedy apphes either where a rea- liim in reversion, if a tenant for life sonable toU is due and excessive toU lose in a pi-ecipe; but it was resolved, is taken, and when no toU at all is that though the statute speaks only due, and yet toU is unjustly usurped, of reversions, yet remainders are 2 Inst. 220. In these and many other also taken to be withua the purview instances, the particular exijression thereof. Winchester's Case, 3 Rep. 4. used in the statute is looked upon The action of debt for an escape, only as an example of other cases which is against every sheriff and lying witliin the same mischief, and, gaoler where the piisoner escapes out therefore, caUing for the same rem- of execution, is grounded upon the edy." LIBERAL CONSTRUCTION. 539 records of fines and recoveries passed heretofore in any of the courts abohshed by this act, as if the same had been levied, suffered or had in the court of common pleas." On this statute the question arose whether, under tlie power to amende an en tire record could be made. Tindal, C. J., said : "We think this provision of the statute is remedial, and, consequently, tliat it should receive, not a strict, but so far a liberal, construction as will meet and remove the difficulty w^hich the act itself has created." An insolvent act invalidated voluntary conveyances made by insolvents " within three months before the commencement of the imprisonment." That language would exclude the time of imprisonment ; so that, taken literally, conveyances during such time would not be invalidated. But, being construed lib- erally to carry out the obvious intention of the act, it was interpreted as if the words had been " wdthin the period com- mencing three months before the imprisonment." ' § 420. It was provided by a statute of Georgia that, " when any guardian, executor or administrator chargeable with the estate of any orjyJian or deceased person to him, her or them committed, shall die so chargeable, his, her or their executors or administrators shall be compellable to pay out of his, her or their estate so much as shall appear to be due to the estate of such orphan or deceased person, before any other debt of such testator or intestate." - The subject-matter of this stat- ute is the estate or property of minors, and the purpose or motive of the legislature w^as its security and protection in the hands of a guardian at his death. Hence the word orphan included a child having separate property, though his parents w^ere living. The usual popular meaning of w^ords is ordinarily to be adopted, yet not necessarily nor universally. They are to be considered as having regard to the subject-matter ; that is presumed to be always in the eye of the legislator. Hence when a word or w^ords are of doubtful meaning, in the api)li- cation of a statute, the subject-matter may dissolve doubts and fix their meaning so as to make it harmonious with the object of the legislature. " Looking to the subject-matter of this law," say the court in Eagiand v. The Justices, etc.,' " the estates 1 Becke v. Smith, 2 K & W. 198. 3 lo Ga, 65, 71. 2 Cobb's New Dig. 288. 540 LIBERAL CONSTETJCTION. of minors, and looking to the reason and object of the law, the protection of these estates, it will be impossible to conclude that when the legislature speaks of an orphan it meant to des- ignate alone a minor whose parents are dead." The follow- ing case shows a special application and use of the word loan: A township being unable to procure volunteers under a bounty law for $300, the citizens voluntarily advanced money to pay bounties beyond that amount, with the understanding that it was to be repaid when a law should be passed authorizing taxation to repay them. An act was subsequently passed to repay " all loans made in good faith," and it was held that this law authorized the repayment of the sums so advanced. The loans contemplated were not loans in a legal sense ; they had reference only to claims upon the conscience and moral sense of the community relieved thereby.' A right given by statute to " the owner or owners of land " to redeem land sold for taxes is to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, es- pecially where the time allowed is short, and ample indemnity is given to the purchaser. It was so held in Dubois v. Hep- burn.2 u ^]^g purchaser," say the court, " suffers no loss ; he buys with full knowledge that his title cannot be absolute for two years ; if it is defeated by redemption, it reverts to the law- ful proprietors. It would, therefore, seem not to be necessary for the purposes of justice, or to effectuate the objects of the law, that the right to redeem should not be narrowed down by a strict construction." It was held that " any right which in law or equity amounts to an ownership in the land ; any right of entry upon it, to its possession or enjoyment, or any part of it, which can be deemed an estate in it, makes the person the owner, so far as it is necessary to give him the right to re- deem." ^ In construing the redemption laws the courts hold that the word owner is a generic term, which embraces the different species of interest which may be carved out of a fee-simple estate.^ Statutes providing certain exemptions from 1 Weistcr v. Hade, 52 Pa. St. 474. terson v. Beasly, 3 Ohio, 301 ; Patter- See Miller v. Grandy, 13 Mich. 540 ; son v. Brindle, 9 Watts, 98 ; Jones v. People V. Supervisor, 14 id, 336. Collins, 16 Wis. 594, 605 ; Wmchester 2 10 Pet. 1, -23. V. Cam, 1 Rob. (La.) 421; Karr v. 3 Corbett v. Nutt, 10 WaU. 464, 474 ; Washburn, 56 Wis. 303. Chapin v. Curtenius, 15 IlL 427 ; Mas- < BlackweU on Tax Titles, margi- LIBERAL CONSTETTCTION. 541 tolls on turnpikes are held to be liberally construed in favor of agriculture. It was enacted that no toll should be de- manded for any horse, beast or other cattle or carriage em- }5loyed in carrying, among other things, " fodder for cattle." "No doubt," said Cockburn, C. J., " there is some difficulty at first sight in saying that barley in the course of transit to a mill for the purpose of being ground into meal, to be after- wards eaten by cattle, is already fodder for cattle ; but, giving a fair and Hberal construction to the words of the statute, I think that everything which is ultimately destined to be used as food for cattle is fodder for them, although it may not have gone through the final process which will make it such." • So a provision exempting carts loaded with manure was held to exempt them from toll if they were going empty to fetch manure.'^ A " yoke " of oxen was held not necessarily to mean cattle broke to work. If they are intended by the owner for use as work cattle, and are old enough, they are a yoke within the exemption laws.' Under a statute which authorizes an order for inspection of documents on application of either party upon an affidavit by such party, the affidavit must be made by the party himself.* But if a corporation is a party the order may be granted upon the affidavit of their attorney, it being impossible for them literally to comply with the terms of the statute, and it being the intention of the legislature that its benefit should be extended to all suitors.* § 421. An English statute relative to parish rates, which in- cluded corporations as rate payers, gave a right of appeal to any person or persons aggrieved by any rate, and the appel- lant was required to enter into a recognizance with two sure- ties. The court would not exclude corporations from being liable for rates, nor deny their right of appeal because they could not enter into a recognizance. They had the right of nal p. 423 ; Alter v. Shepherd, 27 La. 541. But a colt four months old and Ann. 207. its dam do not make a span of horses. 1 Clements v. Smith, 3 K & R 23a Ames v. ]\Iartin, G Wis. 3G1. 2 HaiTison V, James, 2 Cliitty, 547. < Herschfeld v. Clarke, 11 Exch. 3 Mallory v. Beny, 16 Kan. 293. A 712 ; Christophei-son v. Lotinga, 15 pair of t\vo-year-old steers, suitable C. B. (N. S.) 809. for doing light work, are exempt un- 8 Kingsford v. Great W. R'y Ca 16 der a statute exempting a pair of C B. (N. S.) 761, oxen. Berg v. Baldwin, 31 Miuu. 542 LIBEKAL CONSTRUCTION. appeal if they were persons capable of being aggrieved, and the provision requiring a recognizance applied only to those who were capable of entering into it. A doubt, however, was suggested that a corporation could enter into a recognizance by appointing an attorney for that purpose.^ Littledale, J., said: "Where an act of parliament directs a thing to be done which it is impossible for a corporation to do, but which other persons may do, and another act which a corporation as well as others can do, then the corporation will be excused fi^om doing the thing which it cannot do, and will be compelled to do the act which it is capable of doing. Assuming, therefore, that a corporation cannot of itself enter into a recognizance, still its sureties may ; and I think, therefore, that a corpora- tion might satisfy this clause by procuring sureties to enter into such recognizance." '^ § 422. Statutes exempting property from execution are in many states, if not generally, construed liberally.^ Sales of land on execution are statutory, and hence exemption of home- steads is not in derogation of any common-law right. They are humane, salutary as a factor in public economy, and gen- erally construed liberally.* It has been held that to consti- tute a family within their meaning the relation of parent and child or that of husband and wife must exist ; there must be a condition of dependence on the one or the other of these relations; but it is not necessary that all the dependents should live under the same roof or that the family should live too-ether ; it is the relation and the dependence on that rela- tion, not the aggregation of the individuals, that constitutes the family .5 Under a provision exempting " all tools and im- 1 Cortis V. Kent Water Works Co. 5 SaUee v. Waters, 17 Ala. 483, 488 ; 7 B. & C. 314 Allen v. Manasse, 4 id 554 ; Canti-ell 2 Id. ; State v. Morris Canal, etc. Co. v. Conner, 51 How. Pr. 45 ; Garaty v. 13 N. J. L. 192. Du Bose, 5 S. C. 493 ; Calhoun v. ]\Ic- 3 Thompson on Homesteads and Lendon, 42Ga.405; Nealv.Sawyer,60 Exemptions, § 4 ; Davis v. Humplirey, Ga, 352 ; Dendy v. Gamble, 64 id. 528. 22 Iowa, 137 ; Charless v. Lamberson, In the Homestead Cases, 31 Tex. 677, 1 id- 435; Comstock v. Bechtel, 63 Lindsay, J., says : "What constitutes Wis. 656; Bmzel v. Grogan, 67 id. a family? Lexicographers, from ;^47_ whom in our hteraiy education we * Thompson on Homesteads and Ex- derive all our knowledge of the cor- emptions, g 4 and note ; 45 Am. Dec. rect import of words, tell us that the 252. word ' family,' in its origin, meant LIBERAL CONSTKUCTION. 543 plements of trade" it has been held that the press and type of a practical printer, which are necessarily used by him and his journeymen in the publication of a weekly newspaper, were exempt under that term.^ § 423. A statute of Wisconsin provided that on a writ of re- plevin from a justice's court the value of the property " shall be assessed according to the oath of one or more -credible, dis- interested persons whom the officer shall swear truly to assess the value thereof;" and that if on the return of any Avrit of replevin it shall appear that the value of the goods and chattels replevied shall have been assessed by the jury to be of greater value than the amount of which the justice has jurisdiction, then the justice shall certify the case to a superior court. The " jury " here mentioned was construed to mean not the jury called to try the case, though its ordinary meaning, but the " one or more credible, disinterested persons " to be sworn by Bervants ; that this was the signiiica- tion of the primitive word. It now, however, has a more comprehensive meaning and embraces a collective body of persons living together in one house, or within the curtilage, in legal phi'ase. This may be assumed as the generic description of a family. It may, and no doubt does, have many specific senses in which it is often nsed. arising from the paucity of our own as well as of all other languages. Examining and criticising the word in all its specific uses and appropria- tions, it will be most obvious that it was in none of these specific senses that the term ' family ' was used in the constitution. Its use in such a sense would have been objectless and nuga- tory, because it would be wholly im- practicable in its application to the civil affairs of mankind. It was most certainly used in its generic sense, embracing a household composed of parents and children or other rela- tives, or domestics and servants ; in short, every collective body of per- sons living together within the same cui'tUage, subsisting in common, di- recting their attention to a common object — the promotion of their mutual interests and social happiness. These must have been the characteristics of the 'family' contemplated by the f ramers of the constitution in engraft- ing this provision upon it It is, be- sides, the most popular acceptation of the word, and is more fully in unison with the beneficent conception of the political power of the state m making so humane and so wise a concession as that of the inviolability of a homestead from all invasion by legal process." ' Sallee v. Waters, supra; Patten v. Smith, 4 Conn. 450. But probably by a weight of authority, where there are several men employed in their use, they are not within the exemption. Buckingham v. Billings, 13 Mass. 82 ; Spooner v. Fletcher, 3 Vt 133 ; Dan- forth V. Woodward, 10 Pick. 423. See as to analogies, Batchelder v. Shap- leigh, 10 Me. 135 ; Kilburu v. Dem- ming, 2 Vt. 404 ; Ford v. Johnson. 34 Barb. 364 ; Meyer v. Meyer, 23 Iowa, 375. 0-ii LIBERAL CONSTRUCTION. the officer ; for in construing statutes particular words ought not to be permitted to control the evident meaning of the context.^ The Enghsh statute of mortmain in terms forbade disposition of land to charitie% by other means than a deed executed a year before the grantor's death, and hence it was claimed, but without avail, that the statute did not apply to copyholds. " If it were perfectly clear," say the court, " that it was impossible for the mode of conveyance pointed out by the statute to be adopted in the case of copyhold, the only consequence that would follow would be that the statute would absolutely prohibit any conveyance of copyhold to charitable uses. But it would by no means be a legitimate consequence that copyhold lands could lawfully be conveyed without the formalities required by that act. The act was passed for the sake of pubhc policy and to prevent persons from conveying their lands to charitable uses in a secret manner at or near to the time of their death." It was suggested by the court that, " admitting that there could not be an operative bargain and sale [in case of copyhold], still the parties might at least have attained the object of notoriety by executing a deed declaring the uses of the surrender in the mode required by the stat- ute." ^ In Maryland, in addition to the ordinary bonds of exec- utors, a statute provided for a bond on the giving of which they were relieved from exhibiting any inventory or account. This bond was conditioned for paying all just debts of and claims against the deceased, and all damages which might be recovered against him as executor, and also all legacies be- queathed by the will.'' All actions upon administration and testamentary bonds were required by the statute of limitations to be brought within twelve years after the giving of the said bonds and not after. It was held that the bond so provided for was a testamentary bond to which the limitation applied, though not provided for until after the enactment of the lim- itation law.* § 424-. In several cases where suit has been brought within the period of the statute of limitations and has abated by death or marriage of one of the parties after the exj)u^ation of that period, a new suit commenced within a reasonable time 1 Williams v. McDonal, 3 Pin. 331. 3 Act 1798, ch. 101, subch. 14, § 6. 2 Doe V. Waterfcon, 3 B, & Aid. 149. * State v. Boyxi, 2 Gill & J. 365. LIBERAL CONSTEUCTION. 545 by the party to or against whom the action survived has been maintained unaffected by the statute, though it -ontained no saving for such a case. ^ The nineteenth section of 4 and 5 Anne, chapter 10, provides that if any person or persons against whom a cause of action existed, or any of them, were beyond the seas, the statute of limitations should not commence to run until their return. Where one joint contractor died abroad, it was held that the statute did not begin to run until his death, and that, within 1 In Hodsden v. Harridge, 3 Will- iams' Saunders, 64a, the suit abated by the marriage of the plaintiflf , a female, and it was argued in support of the bar of the statute that the suit abated by the vohmtary act of the plaintiff, and therefore she was not within the ■equity of the statute ; but the court . afiii-med the right to bring the said action within two terms. See Dum- ford's note (a) to Carver v. James, Willes, 857. " By the statute of 21 Jac. 1, c. 16, § 4, it was provided that *in all cases the party plaintiff, liis heu's, executors or administrators, as the case shall require, may commence a new action or suit from time to time, witliin a year after such judg- ment reversed, on such judgment given against the plaintiff or outlawry reversed, and not after.' AVithin the equity of that section the courts have allowed an executor or administrator, within a year after testator's or in- testate's death, to renew a suit com- menced by the testator or intestate. Gargorave v. Every, 1 Lutw. C. P. 260 ; Willcox v. Huggius, Fitzg. 172, 290; 2 Str. 907. And in Lithbridge V. Chapman, 15 Vin. Abr. 103, and cited in Willcox v. Huggins, that in- dulgence was extended to fourteen months after the intestate's death. So if there be any delaj^ in grantmg administration on account of any suit respecting the will, the time may be extended. 2 Strange, 907. No 35 precise time, indeed, appears to have been fixed. But in that case Fitz Lee, J., said : ' I think it shoiild be in the nature of journeys accounts, which is a taking up and pvusuing of the old action in a reasonable time, wliich is to be discussed by the discre- tion of the justices. Spencer's Case, 6 Coke, 9&. And by the same rale, I think, what is or is not a recent prose- cution in a case of this nature is to be determined by the discretion of the court from the cu-cumstances of the case; but generally the year in the statute is a good du-ection' Where an act of parhament for dividing and allotting lands directed all disputed claims to be tried by a feigned issue, and limited the time for bringing such actions to six mouths, it was holden that an action brought witliiu the time, but wliich abated by the death of the defendant, must be re- vived against the heir witliin six months afterwards. Knight v. Bate, 2 Cowp. 738." Crosier v. Tomlinson, 2 Mod. 71 ; Chandler v. Vilett, 2 Saimd. 120; Matthews v. PliUhps, 2 Salk. 424; Piggott v. Rush, 4 Ad. & El. 912 ; Cmiewis v. Mornington, 7 EL & B. 283 ; Kinsey v. Hey wai'd, 1 Lord Raym. 434 ; Himter v. Glenn, 1 Bailey, 542; Parker v. Fassit, 1 Har. & J. 337 ; Allen v. Roundti-ee, 1 Spears, 80 ; Martm v. Archer, 3 HiU (S. C), 211 ; Angell on Lim. 325-330 ; Huntington V. Brinkerhoff, 10 Wend. 278. 54G LIBERAL CONSTRUCTION. six years from his death, an action might be brought against his co-contractors ; for though such a case was not within th& literal words of the section, it was within their equity.^ It has- also been held that where a defendant has pleaded a partner- ship in abatement and the plaintiff commenced a new suit within a year and a day after the first writ was quashed, the bar of the statute did not apply ; that the statute did not run after the commencement of the original action.^ These decisions seem to proceed upon the cases interpreting old English stat- utes by their equity. There may be reason in England for adhering to the early decisions while the same statute contin- ues in force, and in any other jurisdiction adopting the same statute, and therefore, presumably, adopting it with the home construction. Crompton, J., said : " I look upon the construc- tion of old statutes as law not to be interfered with ; it has been acted upon, and the legislature have taken it for granted. "We are therefore to abide by the old decisions." ^ But it is held to be no answer to the plea of the statute of limitations that after a cause of action accrued, and after the statute had begun to run, the debtor, within the six years, died, and that by reason of litigation as to the right of probate an executor of his will was not appointed until the expiration of the six 1 Towns V. Mead, 16 C. B. 123, 134, ^ Cuxlewis v. Momiugton, supra. 141. See Townsend v. Deacon, 3 Ex. Tliis is well iUusti'ated by the inter- 706 ; Forbes v. Smith, 11 id. 161. The pretation given in this country of the charter of a commercial corporation borrowed plu-ase " beyond seas " — restrained the making of debts owing out of the state : Murray v. Baker, 3 at the same time, exceeding tlu-ee Wheat. 541 ; Forbe v. Foot, 2 Mc- times the amount of stock paid in. Cord, 331 ; Shelby v. Guy, 11 Wheat, and provided that the directors 361 ;« Bank of Alexandria v. Dyer, 14 should be personally Uable for the Pet. 141 ; Pancoast v. Addison, 1 H. excess, as well as the company. On & J. 350 ; Wakefield v. Smart, 8 Ark. the question whether such a liabiUty 488; Denham v. Holeman, 26 Ga. of the directors came witliin the six 182 ; Stephenson v. Doe, 8 Blackf. montlis' hmitation for bringing ac- 508 ; Galusha v. Cobleigh, 13 N. H. 79 ; tions for penalties, fines and forfeit- Richardson v. Richardson, 6 Ohio, ures, it was held that the statute Avas 125 ; West v. Pickesimer, 7 id. 235. not penal, but remechal ; therefore Or out of the United States : Mason that it was not within that provision v. Johnson, 24 lU. 159 ; Marvin v. of the statute of Umitations. Neal v. Bates, 13 Mo. 217 ; Fackler v. Fack- Moultrie, 12 Ga. 104 ler, 14 id. 431 ; Keeton v. Keeton, 20 2 Downing v. Lindsay, 2 Pa, St id. 530; Gonder v. Eastabrook, 33 382. Pa. St. 374 LIBERAL CONSTKUOTION. 547 3'cars, and that the plaintiff sued the executor witliin a reason- able time after probate granted.^ The death of the party to or against whom an action has accrued will not suspend the statute;' not even if the heir or devisee be under a disability will the running of the statute in such case be arrested.' § 425. Where a statute limited the time for suing, but gave a further period to persons abroad, after they returned, it was construed as giving that additional time to the executor of a per- son who never returned but died abroad.* A Vermont stat- ute of limitations provided that when any suit shall fail by reversal, on Avrit of error, motion in arrest of judgment, plea in abatement or on demurrer, and "the merits of the cause shall not be tried," the plaintiff may, from time to time, com- mence another suit within one year after such judgment re- versed, etc. In Phelps v. Wood ^ the court, by Redfield, J.^ said : " It is evident this exception, or proviso of the statute, was intended to reach all those cases where a suit was brought and the merits of the action failed to be tried, without the fault of the plaintiff, and the period of limitation had become complete during the pendency of the suit. So that the present suit is clearly within the equity of the proviso, although not strictly within its terms. It may be said, too, that should a suit be abated, without a plea, but on motion, as may sometimes be done, the case would not come within the exception. The same is true where the j)laintiff is compelled by some error in pleading, variance, or otherwise, to become nonsuit, without his own fault. And no doubt these and many other cases, not coming technically within the terms of the proviso, would still be held to come within, its equity." ^ If the cause of ac- 1 Rhodes v. Smethurst, 4 M. & W. ogous instances from the reports. He 42. puts them on the ground that the ^Daniel v. Day, 51 Ala. 431. statute of Umitations is founded on 5 Meeks v. Vassault, 3 Saw. 206. aa arbitrary presuuiption of pay- * Townsend v. Deacon, 3 Ex. 706 ; ment " These cases," he says, '' are Forbes v. Smith, 11 icL 161. all decided upon tlie prmciple of re- 5 9 Vt. 399. garding the spirit and intent of the 6 This case sanctions a latitudinary statute rather than a strict interpre- consti'uction to except cases on the tation of its terms. We are inclined ecjxiity of the statute, and is not in to adopt the same doctrine here, be- harmony with the general current of cause we think it just and well wai-- authority of that state in that I'egard. rauted by decided cases in referenc3 The learned judge gives several anal- to this subject As a general rule I 548 LIBERAL CONSTRUCTION. tion accrues after the intestate's death it has been considered in some cases as existing only from the time there was some one capable of suing, and hence that the statute commences to run only from the grant of administration.^ § 4:2Q. The statute of James I. was " worded very loosely i"^ and its beneficial operation during the long period it has been in force has been ascribed to its liberal interpretation.* Mr. AVood in his valuable work on limitations thus succinctly epito- mizes some instances of that liberal construction : " Although there is no express mention of the action of assumpsit, which was at the period of its enactment the most important of all actions, yet as it was clear that this omission was uninten- tional,^ it was construed as embracing that action by fair in- tendment, and as coming within the reason of the statute, and also as coming under the head of trespass on the case.^ So, should be averse to adopting such a rule of construction, as bemg unsafe and unsatisfactoiy. But statutes of limitation regard the remedy, and, being foimded upon an ai'bitrary ground of presumption, require to be liberally expounded to prevent in- justice." Tynan v. Walker, 35 Cal. 634, con- tains a sti'ong protest, well supported by authority, against imiDhed excep- tions to the statute of limitations on the theory that the cases were withia the reason of the exceptions for which the statute itself provided; the allowance of such exceptions "ovei-tum," says Sanderson, J., "the maxim that courts are authorized to declare the law only, and not to make it. If they may add at all to the exceptions provided for in the statute, under the pretense that the case before them is of equal equity with those given in the statutes, who is to fix the limit of their interpola- tions, or establish the line between legislative and judicial functions? If they may add one to the list of ex- cepted cases, by parity of reason they may add another, and so on until the entire body of the statute has become emasculated, and the wiU of the ju- diciaiy substituted for that of the legislature. How much more ia keep- ing with the legitimate exercise of judicial functions are those cases where it has been held that the courts can create no exceptions where the legislatm-e has made none." 1 Fishwick v. Sewell, 4 H. & J. 399 ; Geiger v. Brown, 4 McCord, 423; Aritt V. Elmore, 2 Bailey, 595 ; Clark V. Hardiman, 2 Leigh, 347. See Tynan v. Walker, 35 CaL 634. 2 Parke, B., ia Inghs v. Haigh, 8 M. & W. 769 ; Wood on Stat. Lim. § 16. 3 Wood on Limitations, sec. 16. * Denman, C. J., in Pigott v. Rush, 4 A. & E. 912. 5 HaiTis V. Saunders, 4 B. & C. 411 Bac. Abr. title Limitations, E. L Leigh V. Thornton, 1 B. & Aid. 625 Beatty v. Burnes, 8 Cranch, 98 Chandler v. Villett, 2 Saund. 120 Haven v. Foster, 9 Pick. IIS ; Crosier V. Tomhnson, 2 Hod. 71 ; Baldro v. Tohnie, 1 Oregon, 176; WiUiams v. Williams, 5 Oliio, 444; Maltby v. Cooper, Morris (la), 59. LIBERAL CONSTRUCTION. 549 too, although the saving clause in cases of disability does not in terms mention any actions on the case except actions on the case for words, yet it has always been construed as extending to all actions on the case from the manifest inconvenience of a contrary construction." ' The general rule is, undoubtedly, that the statute of limitation begins to run against a party im- mediately upon the accrual of the right of action, and con- tinues to run, unless he Avas then under a disability mentioned in it, or its running is prevented or arrested by some fact speci- fied for that effect in the statute.^ §427. "Where the legislature has made no exception the courts of justice can make none, as this would be legislating.* The insolvency of the defendant or the plaintiff's want of means to prosecute a suit, or his banlo-uptcy, will not suspend or prevent the running of the statute.* But one implied ex- ception has been extensively recognized, namely, that the stat- ute does not run during a period of ci\al war as to matters of controversy between citizens of the opposing belligerents.* Another example of avoiding a positive statute upon grounds of equity is afforded by tliose cases in which courts of equity give effect to unwritten contracts relating to lands on the ground of part performance.^ The great object of the statute of frauds is clearly expressed in the title prefixed to it. It is for the prevention of frauds and perjuries. It is not, there- fore, to be presumed that it was intended in any instance to 1 Wood on St of Lim. sec. 16. lard, 16 Wend. 572 ; Sands v. Camp- 2 WeUs V. CliUd, 13 AUen, 333 ; The bell, 31 N. Y. 345. In North Carolina, Sam Slick, 3 Curt. 480 ; Harrison v. it was held in Vance v. Grainger, Harrison, 39 Ala, 489 ; Dozier v. Ellis, Conf. 71, that where the evidence of 28 Miss. 730 ; Barnes v. Williams, 3 debt sued on had been detained in Ired. L. 481 ; Warfiekl v. Fox, 53 Pa. the hands of a master by order of a St. 382 ; Bucklin v. Ford, 5 Barb. 393 ; court of equity, the statute was mean- Sacia v. De Graaf, 1 Cow. 356 ; Prj'or time suspended. V. Rybm-n, 16 Ark. 671 ; Favorite v. » Bank v. Dalton, 9 How. 523 ; Booher, 17 Ohio St. 548; Howell v. Mclves v. Ragan, 3 Wlieat 29; Han-, 15 Ala, 194 ; Conover v. Wright, Troup v. Smith, 20 John. 33 ; CaUis 6 N. J. Eq. 613; Clark v. Richardson, v. Waddy, 2 M\mf. 511 ; Hamilton v. 15 N. J. L. 347 ; De Kay v. Darrah. 14 Smith, 3 Murphy, 115. id. 288; Thorpev. Corwin, 20id. 311; * Mason v. Crosby, Da vies, 303; Piuckney v. Burrage, 31 id. 21 ; Kist- Harwell v. Steel, 17 Ala. 372. ler V. Hereth, 75 Ind. 177 ; Parsons v. * Wood on St Lim. § 6 ; § 368, ante, McCracken, 9 Leigli, 495 ; Rogui-s v. *> 2 Story's Eq. § 753 et seq. Hillliouse, 3 Conn. 398 ; Barker v. Mil- 550 LIBERAL CONSTRUCTION. encourage fraud, and Tve may infer that any construction wliicli would have a certain tendency to do so would counter- act the design of the legislature by advancing the mischief intended to be prevented.^ As the statute was intended to prevent frauds and perjuries, any agreement in which there was no dano-er of either has been held to be out of the stat- ute ; ^ or if within the statute, it is taken out when specific performance is necessary to prevent fraud, as in case of one party refusing to perform when the other had partly per- formed.'' § 428. Statutes which are to be liberally construed will, like all others, be so construed as to exclude all cases which, though within the letter, are not within the mischief to be remedied, or the remedial or benign object in view, and, there- fore, not within the intention of the law-maker. A statute enacting that any deed from a husband to a wife for her use shall be void as against his creditors, who were such at the time of execution, does not prevent a voluntary conveyance by the husband of a chattel which is exempt from execution.* As this interpretative function, however, of excluding cases and applications which are not within the legislative intention is not peculiar to hberal construction, a few cases by way of farther illustration will suffice.^ Municipal corporations, by reason of the purposes for which they are organized and for which they raise money and possess property, are excepted by implication from various statutes which apply to corpora- tions generally. They are generally held not subject to gar- nishment.^ In some of the states, either by force of statutes 1 WUber v. Paine, 1 Oliio, 117; 2 9 Colo. 204; Covington v. McNickle, Pomeroy's Eq. § 921. 18 B. Mon. 262 ; Wheeler v. McCor- 2Att'y-Gen'l V. Day, 1 Ves. Sr. 221. mick, 8 Blatchf. 267; MaxweU v. 3 Bond V. Hopkins, 1 Sch. & Lef. Collins, 8 Ind. 38 ; Vane v. Vane, 433 ; Wilson v. West Hartlepool Co. L. R 8 Ch. 383 ; Union Canal Co. v. 2 De G. J. & S. 475 ; Humphreys v. Young, 1 Whart. 410. Green, L. R. 10 Q. B. Div. 148 ; Nunn « Erie v. Knapp, 29 Pa, St. 173 V. Fabian, L. R. 1 Ch. 35. Bulkley v. Eckert, 3 Pa. St. 368 * Smith V. Allen, 39 Miss. 469. McLellan v. Young, 54 Ga. 399 s Commercial Bank v. Foster, 5 La. Mobile v, Rowland, 26 Ala. 498 Ann. 516; Ayers v. Knox, 7 Mass. Hawthorn v. St. Louis, 11 Mo. 59 806; Green v. Commonwealth, 12 Pendleton v. Perkins, 49 id. 565 AUen, 155 ; Stockett v. Bird, 18 Md. Fortune v. St. Louis, 23 id. 239 ; Had- 484 ; Electro-K etc. Co. v. Van Auken, ley v. Peabody, 13 Gray, 200 ; Boone LIBERAL CONSTKUCTION. OOl nvhich indicate the purpose to subject them to such process, or by the courts' refusing to except the reasons operating else- where and thereon to accept them by impHcation, these corpo- rations are liable, like natural persons and other corporations, to garnishment.^ The revenues of public corporations are the essential means by which they are enabled to perform their appointed work. Deprived of their regular and adequate sup- ply of revenue, they are practically destroyed, and the ver}" ends of their creation thw^arted. It is settled doctrine that the taxes and public revenues of such corporations cannot be •seized under execution against them, either in the treasury or in transit to it.^ § 429. The application of the words of a statute may be restrained to bring the operation of it within the intention of the legislature, when no violence is done by such inter- pretation to the language employed. On this principle the provision that no person shall be sued before any justice ex- cept in the township where he resides was held to have no application to a defendant w^ho resided out of the state or in another county. The object of the statute was to prevent justices at the county seat of a county from engrossing the principal business at the expense of the justices of the other townships.* " An act concerning conveyances " provided that every partition of any tract of land or lot made under any order or decree of any court, and every judgment or decree by which the title to any tract of land or lot shall be recovered, shall be recorded ; . . . and until so recorded, such parti- Co. V. Keck, 31 Ark. 387 ; Stillman v. v. Hartford, 12 Conn. 404 ; Wilson v. Isham, 11 Conn. 123; Derr v. Lubey, Lewis, 10 R. I. 285; Wales v. Musca- 1 MacArthur, 187 ; Bradley v. Rich- tine, 4 Iowa, 302 ; Drake on Att (5th niond,6Vt.l21 ; Parsons v.McGavock, ed.) § 516. 2 Tenn. Ch. 581 : Memphis v. Laskie, 2 Dillon on Municipal Corporations 9 Heisk. 511 ; Biunliam v. Fond du (2d ed.), §§ 9, 65, and cases cited; Chi- Lac, 15 Wis. 193 ; Buflfham v. Racine, cago v. Hasley, 25 111. 595 ; Egeiton 26 Wis. 449 ; McDougal v. Hennepin v. IMunicipahty, 1 La. Ann. 435 ; Mu- Co. 4 Minn. 184; Mervvin v. Chicago, nicipalitj^ v. Hart, 6 icL 570; New Or- 45 111. 133 ; Greer t. Rowley, 1 Pitts- leans, etc. R. R. Co. v. IMimieipality. burgh, 1 ; Mayor, etc. v. Root, 8 Mi 7 id. 148. See Smoot v. Hart, 33 Ala. 95 ; Brown v. Gates, 15 W. Va. 131. 69 ; Newark v. Funk. 15 Ohio St 462. I Adams v. Tyler, 121 Mass. 380; sMaxweU v. CoUins, 8 Ind. 38; W^hiddeu v. Drake, 5 N. H. 13 ; Bray Wheeler v. :McCormick, 8 Blatchf. v. Wallingford, 20 Conn. 416 ; Ward 267. 552 LIBERAL CONSTRUCTION. tion, judgment or decree sliall not be received in evidence in- support of any right claimed by virtue thereof.' In an action of trespass to try title and for partition of land, a former un- recorded judgment was offered in evidence. It was held ad- missible ; that this statute was only intended for the protection of hona fide purchasers and creditors ; that it has no appUca- tion when such judgment is offered in evidence in a second trial between the parties to the former suit in which it was rendered.'^ 1 Pasc. Dig. art. 4710. 2 Rvissell V. Farquliar, 55 Tex. 355. In tliis case Moore, C. J., said : "If coui-ts were in aU cases to be con- trolled in their construction of stat- utes by the mere literal meaning of the words in wliich they are couched, it might well be admitted that the appellant's objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts, in a blind effort to refrain from an interference with legislative authority by their failure to apply well-established ndes of construction, to in fact abrogate their own power and usurp that of the legislatiire, and cause the law to be held du-ectly the contrary of that which the legislature had in fact intended to enact. Wliile it is for the legislatiu-e to make the law it is the duty of the courts to ' tiy out the right intendment' of statutes upon which they are called upon to pass, and by their proper consti'uc- tion to ascertain and enforce them according to their ti'ue intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise to express its intent, and to follow which wovxld prevent that intent. In seeking to ascertain the intent of a statute, the words in which it is expressed should, and evi- dently must, receive our first as well as chief consideration. If, upon the perusal of a statute, its intent, and the means for caiTying such intent into effect, plainly appear, and there is no apparent conflict between it and other seemingly vmrepealed laws, it should be consti-ued and enforced by the courts in conformity with the ordmary signification of the words in wliich it is expressed, unless a ne- cessity for otherwise construing it is made to appear. But if its mere pe- rusal should not enable the court to satisfactorily interpret it, then it be- comes the duty of the court to look diligently for the intention of the legislatm-e, keeping in view at all times the old law, the evil and the remedy. R. S. art. 315, sec. 6. . . . The section in question forms a part, of an act concerning conveyances. And when subsequently re-enacted, it is found in a law regiilating and concerning registration. The evil in the legislative mind evidently was that, vmder existing laws, frauds might be perpeti-ated upon hona fide purchasers and creditors by persons who had previously parted with or been divested of their title to land, upon subsequent pm-chasers and creditors having no adequate evi- dence or information of such previ- ous divestiture of title. By the old law the bringing of suit charged all the world with notice lis pendens of the matters then in htigatiou. But LIBERAL CONSTRUCTION. bOO A statute of Virginia prohibited the sale of any office or deputation of any olhce toucliing the administration of jus- tice, and contained a proviso tliat nothing in the act should be so construed as to proliibit the appointment, quahfication and acting of any deputy clerk or deputy sheriff who shall be em- ployed to assist the principals in the execution of the duties of their respective offices.^ The question arose on that statute whether a contract was legal by which a sheriff agreed that another should perform the duties of his office, and have all the fees, privileges and emoluments of it, and in consideration thereof should pay to the sheriff a gross sum, unconnected in any manner with the fees of the office. The court declared that it was settled by numerous authorities that, where the res- ervation or agreement is not to pay out of the projlts, but to pay generally a certain sum, which must be paid at all events, this is a sale of the office ; and a bond for the performance of such an agreement is void by the statute.^ It apparently adopts the view of WiUis, C. J., in Layng v. Paine, as to the principal reasons for making the statute : (1) that offices might be ex- ercised by persons of skiU and integrity, and (2) that they might take only the legal fees. The proviso, and the history of the office — it having been immemoriaUy farmed out,— induced the court to hold that the contract in question was not prohib- ited. A statute which inhibited a party as witness testify- ing as to any transaction with or statement by a deceased party was held not to extend to conversations with a surviv- this notice ceased with the termina- injiu-ed thereby had a right to com- tion of the case ; and, therefore, con- plain, or to insist tliat another had veyances by judgment or decree of lost some valuable or vested right by court were within the same evil as his failure to comply with the law." existed in regard to transfers be- Crosby v. Huston, 1 Tex. 237. tween parties prior to the registration 1 1 Kev. Code of 1819, ch. 145, p. 559. laws. Hence it was essential that -'Hailing v. McKinney, 1 Leigh, 42, they should be subjected to the same citing Ingram's Case, Co. Lit. 234a; rule. Public convenience also de- Trevor's Case, Cro. Jac. 269 ; 12 Coke, manded that there should be one 369 ; Woodward v. Foxe, 3 Lev. 289 ; office in each county where those de- 2 Vent 187 ; 3 Inst 148 ; Layng v. siring to do so could inform them- Paine, Willes' Rep. 571 ; Parsons v. selves as to the transfers or incum- TlK)mpson, 1 H. Bl. 322 ; Garforth v. brances affecting all the real estate in Fearon, id. 327 ; Law v. Law, Cas. the county. But if any one failed to Temp. Talb. 140 ; 3 P. Wms. 391 ; have his transfer registered, certainly Harrington v. Du Chatel, 1 Bro. C. C only those who were in some way 124 ; Noel v. Fisher, 3 Call, 215. 554: LIBEKAL CONSTllUCTION. ing partner of the deceased, though the testimony might result in estabUshing a contract with the firm.^ A New Jersey statute makes void and of no effect any warrant of attorney for confessing judgment which shall be included in the body of any bond, bill or other instrument for the payment of money.2 This provision was contained in an act which when passed was entitled " An act to regulate the practice of the courts of law." It was therefore held that it was a mere regu- lation of the practice in the courts of that state, and did not prohibit the making therein of such warrants of attorney for use in other states in the form that may be legal in their €ourts.* "Laws," by construction, have been narrowed to mean only written laws, as in the application of that provision of the thirty-fourth section of the judiciary act of 1789, that " the laws of the several states, except when the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at €ommon law in the courts of the United States, in cases where they apply." * In Holmes v. Paris ^ the statute required a notice to a sur- veyor, or some municipal officer, of a defect in a highway, for a period not less than twenty-four hours prior to an acci- dent, to render the town liable. But if the defect was caused by the surveyor while acting as a servant of the town, the notice was not necessary. The court say : " AVe inchne to the opinion that the statute does not apply to a case such as this. In its literal terms, it does ; in its purpose and intent, it does not. This particular provision of the statute was intended for another class of cases. Its purpose is to allow a town a reasonable opportunity to remove a defect after receiving in- formation of its existence. ]Srotice of a fact to a person who already knows the fact cannot be useful. . . . Statutes are often in some respects literally deficient by reason of their generality. They are necessarily expressed in general terms. 1 Bennett v. Fraiy, 55 Tex. 145 ; v. Tabb, 18 WaU. 546 ; Supervisors v. AVhart. Ev. § 469. Schenck, 5 id. 772 ; Watson v. Tarp- 2 Rev. of 1877, p. 81, § 1. ley, 18 How. 517 ; Debnas v. Ins. Co. s Hendi-ickson v. Fries, 45 N. J. L. 14 Wall. 665. 555, 5 75 Me. 559. * Swift V. Tyson, 16 Pet. 1 ; Boyce LIBERAL C0X8TECCTI0N. 555 All cases that may arise under them cannot be anticipated. Therefore there must be some flexibility in their interpre- tation and application to facts. There must be some power and discretion in the courts to consider probable purposes, motives and results." The object of an act was to pro- vide for the disposition of public property and not to interfere Avith the location of streets ; it was therefore held that the designation therein of one of the boundaries of that property as the " eastern line of E street to its point of intersection with the northern line of J street," was not intended, and did not operate to extend E street northward to J.^ A statute against gaming was that, " if any person shall lose to another," he might receive it back. This was held not applicable to one who sets up or is interested in setting up a faro bank, and loses money to those who bet against the bank,^ " When the evil," say the court, " which led to the passage of the act is con- sidered, it is evident that the legislature did not intend to em- brace within its protection those who engage in gaming by means of contrivances which are onl}^ used by those who make gaming a business," * A statute of Indiana required an official bond to be signed and acknowledged by the principal and his sureties in the presence of the county commissioners. The question arose whether a bond not so acknowledged was valid. The requirement was held du'cctory. It had been decided that the surety of an officer executing an official bond upon the faith of a promise by the principal that it would be exe- cuted by another as surety, and allowing the principal to have the custody of the bond, would be discharged if the bond were tendered by the principal, and in good faith accepted, without being executed by that other. It was merely to rem- edy the mischiefs to the public which were apprehended in consequence of the law as thus declared, and such as might en- sue from the forgery of sureties' names, that the statute in question was enacted. That mischief was the loss of public moneys by sureties of officers avoiding liability as such upon official bonds. The remedy was not, certainly, to devise ad- ditional methods by which liability might be avoided, but to close for the future the door of escape already existing, or sup- iRiirr T, Dana, 23 Cal. 11, 20; 2 Brown v, Thompson, 14 Bush, 538. -Jacobs V, Kruger, 11) id, 411, ^ Id, 55G LIBEKAL CONSTEUCTION. posed to exist; not to relieve persons becoming sureties of county treasurers, but to protect the people from the defalca- tions of those officers. It was not for the benefit of the surety that he was required in person to acknowledge the bond before the commissioners, but it was to prevent him from afterwards making any question concerning the genuineness of his signa- ture, or the validity of the instrument as against him.^ § 430. Liberal construction is given to suppress the mischief and advance the remedy. For this purpose, as has abeady^ been said, it is a settled rule to extend the remedy as far as the words will admit, that everything may be done in virtue of the statute in advancement of the remedy that can be done consistently with any construction.^ Where its words are plain and clearly define its scope and lunit, construction can- not extend it; or where the language is so exphcit as to exclude any reasonable inference that such extension was in- tended. Lord Brougham said : " If we depart from the plain and obvious meaning, we do not in truth construe the act, but alter it. We supply a defect which the legislature could eas- ily have supphed, and are making the law, not interjjreting it." * " We are bound," said BuUer, J., " to take the act of parlia- ment as they have made it ; a casus omissus can in no case be supplied by a court of law, for that would be to make law." * It wiU make no difference if it appears that the omission on the part of the legislature was a mere oversight, and that without doubt the act would have been drawn otherwise had the attention of the legislature been du-ected to the oversight at the time the act was under discussion.'* When the lan- guage is general or obscure the court must construe it, and, 1 State V. Blaii-, 32 IncL 313. The L. R. 1 C. C. R. 284; Edward v. following cases contain implied ex- Trevellick, 4 E. & B. 59. ceptions for not being within the in- -Turtle v. Hartwell, 6 T. R. at tention of the statute : Simpson v. jd. 429 ; Atcheson v. Everitt, 1 Cowp. Unwin, 8 B. & Ad. 134; Ramsden v. at p. 391. Gibbs, 1 B. & C. 319 ; Hearne v. Gar- 3 Gwynne v. Bm-nell, 7 CI. & F. ton, 2 E. & E. 66 ; Aberdare Local 696. Board v. Hammett, L. R. 10 Q. B. •» Jones v. Smart, 1 T. R 44. 162 ; Core v. James, L. R. 7 Q. B. ■' Hardc. on St. 21 ; Lane v. Ben- 135 ; Reg. v. Sleep, L. «& C. 44 ; Reg. nett, 1 M. & W. 70 ; N. E. R'y v. V. Dean, 12 M. & W. 39 ; Lee v. Leadgate, L. R. 5 Q. B. 161. Simpson, 8 C. B. 871 ; Reg. v. Hai-rey, LIBERAL COXSTRUCTION. 557 as far as it can, make it available for carrying out the objects of the legislature and for doing justice between parties.^ §431. Casus omissus. — It will be seen by the foregoing illustrations of liberal construction that where lanouaiic has received an expansive construction it has been to efl'ect the in- tention of the law-maker, not to give the statute an effect beyond the intention or to supply the defects of the statute. It results from the judicial function of ex])ounding the law as it is that the courts cannot extend it to meet a case which has clearly and undoubtedly^ been omitted to be provided for.^ As the judicial committee said in Crawford v. Spooner,' "we can- not aid the legislature's defective phrasing of an act ;• we can- not add and mend, and, by construction, make up deficiencies which are left there ; " in other words, the language of stat- utes, but more especially of modern acts,* must neither be ex- tended beyond its natural and proper meaning, in order to supply defects, nor strained to meet the justice of an individual •case.^ If the language is plain, precise and unambiguous, there is no room for construction ; and the particular intention so expressed is alone to be carried into effect. A statute of Con- necticut which validated defeds executed and acknowledged in any other state " in conformity with the laws of such state " was held not to apply to a deed of land situated in that state, executed in ]^ew York and acknowledged before a Connecti- cut commissioner, defective by the laws of Connecticut, if executed there, for having but one witness.* In order to ex- tend a statute by equitable construction beyond its letter, it must be collected from the act that the wrong: soufiht to be redressed was one of the considerations for passing it ; otherwise it is a casus omissus which a court of law cannot supply. Where an act denies to one class of suitors a remedy or defense which others enjoy, it wiU not be extended by equi- table construction to cases not specified in it, unless the court 1 PhilUps V. PliilUps, L. R. 1 p. & ^ Hardc. on St 20, 21 ; Lord Den- D. 173. man in Green v. Wood, 7 Q. B. at 2 Hardc. on St. 20. p. 185 ; 'Wliiteley v. Chappell, L. R. 4 3 6 Moore's P. C. 9. Q. B. 147, •• Lord Brougham in Gwynne v. ^ Fai-rell Foundry v. Dart, 26 Conn. BumeU, 7 CI. & F. at p. 696 ; Lord Sel- 376. borne in Pinkerton v. Easton, L. R. 16 Eq. at p. 492. 558 LIBERAL CONSTKTJCTION. is satisfied the case is witliin the mischief or occasion that was in the mind of the legislature at the time of its passage.^ A statute in Maine provided that " hereafter when any woman possessed of property, real or personal, shaU marry, such pro])- erty shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same as her separate prop- erty, exempt from any liability for the debts or contracts of her husband." It was held that under this statute she could not make sales and purchases of property. The court, by Shep- ley, J., said : " It was the intention of the legislature, as the title of the act declares, to secure to married women their rights in property, and it should receive such a construction as- wiU make that intention efTectual, so far as it can be done con- sistently with the established rules of law. But courts of jus- tice can give effect to legislative enactments only to the extent to which they may be made operative by a fair and liberal construction of the language used. It is not their province to supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This would be an assumption by the judicial of the duties of the legislative department." ^ § 432. An act which authorizes a municipal body to open and widen streets according to the procedure therein pre- scribed, and omits to prescribe a procedure for cases of widen- ing streets, is to that extent inopierative.' A statute providing for testing the accuracy of the weights and measures used in seUing commodities, imposing penalties on those who use them contrary to the act in seUing, is not applicable to persons en- gaged in buying.* The heir at common law inherits except in the particular cases in Avhich the statutes of descent provide for a different disposition of property,' and by construction a court cannot extend such statutes to any other cases.^ An officer having authority in his county to take proof or acknowl- edgment of aU instruments in writing conveying land therein 1 Scaggs V. Baltimore, etc. R. R. Co. 3 Chaffee's Appeal, 56 Mich. 244. 10 Md. 268 ; Jones v. Smart, 1 T. R. * Soutliwestern R. R. Co. v. Cohen, 52; HuU V. Hull, 2 Strob. Eq. 174; 49 Ga. 627. Moore v. Indianapolis, 120 Ind. 483 ; ^ Johnson v. Haines, 4 Dall. 64. S. C. 22 N. E. Rep. 424. 6 Cresoe v. Laidley, 2 Binn. 279. 2 Swift V. Luce, 27 Me. 285. LIBERAL CONSTRUCTION. 559 was empowered by a later statute to take acknowledgment of deeds for lands in any part of the state ; and it was held that his poAver to receive proof of instruments was not thereby en- larged.' There may be no apparent reason why an enactment is confined to one of several things, which might for a sim- ilar or for precisely the same reason be provided for ; yet, if such enactment is free from ambiguity and uncertainty, the courts cannot extend it.^ A divorce act provided that any order made for the protection of a married woman in respect of her earnings might be discharged by the magistrate who made it ; it was held that this i)ower could not be exercised by his successor.^ An act authorized a specified and limited number of banking companies in each of twelve districts, five of which were authorized in H. count}" ; it also provided that the number of such banking companies authorized to be formed and to engage in business in H. county should not exceed four ; and the full number having organized, and in good faith engaged in business, it was held that the powers in this re- spect authorized by the statute were exhausted ; that in case of the failure or surrender of the franchise by some of such companies, the statute gave no authority for the organization of new and additional companies to take the place of the defunct ones.* § 433. A general act providing for the organization of com- panies for the manufacture and supply of gas was held not to authorize the creation of a cor^^oration for the purpose of sup- plying " natural gas " to consumers.^ In the judicial argument to this result the court said : " The judicial power of the gov- ernment may sometimes impute a legislative intent not ex- pressed with perfect clearness, where the words used import such intent, either necessarily or by a plain and manifest im- plication. But it would be a dangerous excess of judicial au- thority, not to be justified by any considerations, for a com't to declare a law by the imputation of intent when the words 1 Peters v. Condron, 2 S. & R 80. * State v. Chase, Governor, 5 Ohio 2 Smith V. Rines, 2 Sumn. 354 ; Swift St. 528. V. Luce, 27 Me. 285. 5 Emerson v. Commonwealth, 108 'Reg. V. Arnold, 5 B. & S. 322; Pa. St 111. Sharp, Ex parte, 10 Jur. (N. S.) 1018. 560 LIBEKAL CONSTEUCTION. used do not import it, either necessarily or by plain implica- tion, and when all the surroundings of the enactment clearly evince that the construction claimed could not have been within the legislative thought." By a statute an inspector Avas authorized at all reasonable times to enter any shop, and " there to examine all Aveights, measures, steelyards or other w^eighing machines ; " " and if upon such examination it shall appear that the said weights and measures are hght or other- wise unjust, the same shall be liable to be seized and forfeited." ^ It was held that this statute gave no power to seize and for- feit a weighing machine.- § 434. Remedial statutes. — These have been defined in very general terms as those which, in brief, are made to cor- rect defects in the existing law — for amendment of the law ; ' those wdiich have for their object the redress of some existing grievance, or the introduction of some regulation conducive to the public good. They may be either affirmative or nega- tive, as they command or prohibit anything in particular to be done or omitted.* A variety of remedial statutes have been cited, with the decisions thereon, in the preceding pages. Guided by the general principles which underlie and justify liberal construction, the courts must continually add to the list ; for, in the construction of the fluctuating luxuriance of legislation by the numerous legislative bodies in this country, there w411 be frequent occasions to apply these principles to new cases to cure defects and abridge superfluities which, in the phrase of Blackstone, " arise either from the general im- perfection of all human laws, from the change of time and circumstances, from mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other causes w^hatever." ^ Instances are chiefly valuable as illustrations of those principles and to teach their true scope and spirit. Statutes enacted to promote and facilitate the administration of justice are prominent in the category of remedial statutes.* 1 5 and 6 W. 4, cli. 63, § 28. * Van Hook v. Whitlock, 2 Edw. 2 Thomas v. Stephenson, 2 E. & B. Ch. 304, 310 ; Fairchild v. Gwynne, 16 108. Abb. Pr. 31. 3 Bearpark v. Hutchinson, 7 Bing. ^ 1 Cooley's Black. Com. 86, 87. at p. 186. 8 MitcheU v. Mtchell, 1 Gill, 66. LIBERAL CONSTRUCTION. 561 Acts providing for a change of venue for convenience of wit- nesses or to obtain an impartial trial ; ^ regulating the practice of law,' or to expedite litigation,^ are remedial. § 435. Under an act to prevent delays in obtaining judgment on account of infrequent sessions of the courts, a jjermission therein to take judgment by default in vacation was construed to authorize a judgment to be entered by consent after service of process.* Where a hmited jurisdiction is conferred by stat- ute the construction is strict as to the extent of jurisdiction ; but Uberal as to the mode of proceeding.'^ The proceedings of a landlord to remove his tenant, being dilatory and expensive, a summary remedy was provided by a statute in derogation of the common law. In that respect it was held it should be strictly construed. It was remedial because intended to rem- edy the evils alluded to, and so far it should be construed Ub- erally ; that looking at the remedy the courts should take care that it be made effectual, if possible, in the manner mtended." A statute extending, and thus, therefore, amending a similar statute affording a summary remedy, has been held to be re- medial and to receive a hberal exposition. This was held in reference to the act of forcible entry and detainer, where the amendment consisted in extending it, first, to a vendor, under a contract of purchase, who has entered into possession before obtaining a deed and w^ho refuses to comply with the contract ; and second, to the case where lands have been sold under a judgment or decree and the party to such decree, after the time of redemption, refuses after demand to surrender posses- sion.^ The amendment was held under the first clause to make the act appUcable to one put in possession by such vendee, and under the second to make it applicable to a party pur- chasing the subject pendente lite. Without questioning the correctness of this decree it is proper to say that statutes pro- viding for summary remedies are strictly construed. Why should not a later act merely extending such summary remedy 1 Griffin V.Leslie, 20 Md. 15; Wright 5 Russell v. WTieeler, Hempst 3; V. Hanmer, 5 id. 375. Barret v. Chit«-ood, 2 Bibb, 431. 2Hoguet V. WaUace, 28 N. J. L. « Smith v. Moffat, 1 Barb. 65 ; Lynde 523. V. Noble, 20 John. 80 ; Wnkiiison v. 3 People V. Tibbetts, 4 Cow. 384 ; 2 CoUoy, 5 Burr, at p. 2G9S. Inst. 251, 325, 393. ■? Jackson v. "Warren, 32 IlL 331. * Hoguet V. Wallace, siqjra. 36 562 LIBERAL CONSTBUCTION. be governed by the same rule ? ^ A provision introduced by amendment to extend it ought afterwards to be construed pre- cisely as it would be construed had it been a part of the act as originally enacted. As an amendment it is intended to ex- tend the summary remedy and to supply a defect in the exist- ing law, but only in the sense in which the original act w^as^ intended to correct a defect in the existing law affording a different remedy in such cases. Such acts are within the defini- tion of remedial laws ; for that reason they should be Mberally construed ; but both the original and amendatory acts being in derogation of the common law and providing a summary rem- edy, they are subject to another rule requiring strict construc- tion, which more than neutralizes the rule of Uberal construc- tion due to a remedial statute. § 4:36. By the probate procedure act of California a creditor of a decedent's estate is required to present his claim duly veri- fied to the executor or administrator within ten months after publication of notice by such executor or administrator, other- wise it is barred. An amendatory act was passed adding a proviso " that when it is made to appear by the affidavit of the claimant to the satisfaction of the executor or administra- tor and the probate judge, that the claimant had no notice as provided in this act, by reason of being out of the state, it [the claim] may be presented at any time before a decree of distribution is entered." This amendment w^as held in that state to be remedial.^ Such it obviously is, for it creates a meritorious exception to an arbitrary rule. A statute of Mas- sachusetts provided that " when an executor or administrator dies or is removed from office during the pendency of a suit in which he is a party, the suit may be prosecuted by or against the administrator de lonis non^' etc. By a liberal construction it has been held in that state that an administrator de lonis non to succeed an administratrix, whose marriage extinguished her authority, was within that provision. All the reasons w^hich induced the passage of that law apply to such a case \ all the mischief which it was intended to remedy would other- wise exist in such a case, namely, delay in the settlement of the estate, the loss of judgments already recovered, of attachments and costs. " In making this decision," say the court, " we apply 1 AnU, % 398. 2 Cullerton v. Mead, 22 Cal 95. LIBERAL CONSTEUCTION. 563 an old and unshaken rule in the construction of statutes, to wit, that the intention of a remedial statute will always jDre- vail over the literal sense of its terms, and, therefore, when the expression is special or particular, but the reason is general, the expression should be deemed general." ' An act provid- ing for execution of powers in a will, by the successor of an executor, for sale of lands for purposes of the will and admin- istration, is remedial and entitled to a liberal construction.- The statute which renders void bequests to witnesses was in- tended to prevent wills from becoming nullities by reason of any interest in witnesses to them, created entirely by the wills themselves. A wife of a legatee is within the mischief on ac- count of the unity of husband and wife, in legal contempla- tion, and statutes concerning wills being subject to liberal construction, a bequest in a will so witnessed is void and the will properly attested.^ § 437. Statutes are remedial which are intended to promote the convenience of suitors.* So are statutes to improve the procedure for obtaining legal redress, so far as the rights of another party are not unduly prejudiced.^ A statute declared that it should be lawful for any one w^ho had a cause of action against an insurance company " to bring suit in any county where the property insured may be located." Its language did not apparently include life and accident insurance com- panies, both of which were equally within the mischief that required a remedy, and a supplemental act was passed, enact- ing that all provisions of the former act " shall apply to life and accident insurance companies." This was construed to authorize suits to be brought in the counties where the person insured resided — where the subject of the risk insured against was domiciled or located.^ The requirement that a trial judge, 1 Brown v. Pendergast, 7 Allen, - Drayton v. Grimke, 1 Bailey's Eq. 427, citing Co. Lit. 245; Beawfage's 392. Case, 10 Co. 101b; Dwarr. on St. 2d s Winslow v. Kimball, 25 ]\Ie. 493. ed. 616; Whitney v. Whitney, 14 ^ Hoguet v. Wallace, 28 N. J. L. Mass. 92, 93 ; People v. Utica Ins. Co. 523 ; Griffin v. Leshe, 20 Md. 15 ; 15 John. 381; Crane v. Allmg, 2 ]\IitcheU v. MiteheU, 1 Gill, 66 ; Smith Green (N. J.), 593 ; Wmslow v. Kim- v. IMofTat, 1 Barb. 65. ball, 25 Me. 495 ; Murphy v. Leader, s Sunonton v. Barrell, 21 Wend. 4 Lrish L. 143 ; Jebb & Bourke, 75 ; 1 363 ; Sprowl v. Lawrence, 33 Ala. 674. Kent's Com. Gtii ed. 461, 463. •> Quinn v. Fidehty Ben. Asso. llO Pa St. 382. 564 LIBERAL CONSTRUCTION. on the request of either party, file his charge to the jury of record in the cause, when complied with, makes the charge a part of the record without anything more ; it is not necessary to embody it in a bill of exceptions to make it a part of the record on error.' The statute allowing a defendant in eject- ment to set off the value of improvements against mesne prof- its is remedial.- A statute requiring a court having power to issue a commission in the nature of a writ de lunatico inqui- rendo, to decide and direct who shall pay all the costs attend- ant upon the issuing and execution of such commission, was held remedial, and to be construed accordingly.* A statute authorizing an oflBcer of a municipal corporation to take all proper and necessary means to open and reverse judgments which he has reason to believe had been obtained by collu- sion, or founded in fraud, is a beneficial act, intended to pro- tect the treasury against fraud, and should be very liberally construed ; it was held that the officer need not disclose what has caused him to so believe.* Where a justice of the peace of another town in the same county, next adjoining the resi- dence of the plaintiff, has jurisdiction to try an action, two towns contiguous at either corner are adjoining towns within the meaning of the statute, in the absence of any legal defini- tion to show what distance the junction of two towns must con- tinue in order to adjoin.^ § 438. Acts which promote the pubhc convenience in crimi- nal prosecutions and involve no hardship or injustice to the ac- cused are remedial. A statute which provided that " when a person shall commit an offense on board of any vessel or float he may be indicted for the same in any county through any part of which such vessel or float may have passed on that trip or voyage," was held not confined to that part of the trip or voyage which had been performed before the offense was committed, but extended to the entire trip.^ Where a vessel had started on her voyage, and it was still intended to prosecute it, though when the offense was committed and for two days previously she was lying at anchor in a river by rea- 1 Downing v. Baldwin. 1 S. & R. 3 Hassenplug's Appeal, 106 Pa. St 298 ; Wheeler v. Winn, 53 Pa. St. 122, 527. 127. 4 Sharp v. Mayor, etc. 31 Barb. 573. 2 Learned v. Corley, 43 Miss. 687, 5 Hohnes v. Carley, 31 N. Y. 290. mi. 6 Nash V. State, 2 Greene (la.), 286. LIBERAL CONSTRUCTION. 565. son of adverse winds, it was held, nevertheless, that she was- navigating the river within the meaning of a statute relating to offenses on board of vessels navigating any river. The statute did not define any crime or fix the punishment, but only changed the venue. It was not, properly speaking, a penal statute. It was held that the court was not bound to give it such straitened construction as would turn it into legal nonsense by holding that it only applied while the vessel was moving.^ By a general statute of New Hampshire a justice of the peace was given jurisdiction to hear and determine prose- cutions and actions of a criminal nature arising within his county, where the punishment was by fine not exceeding SIO.'^ By another statute it was provided that " if any person shall, wilfully and maliciously commit any act whereby the real or personal estate of another shall be injured, such person shall be punished by imprisonment in the common jad for a term not less than thirty days nor more than one year, or by a fine not exceeding $100, or by both said punishments, in the discre- tion of the court." * The statute did not expressly designate- the tribunal to try the offenses committed under it. The- court say : * " We cannot believe it to have been the purpose of the law-making power to ordain that the minor offenses under this act should be sent in the first instance to the grand jury for their investigation, rather than to the justices of the peace in the several counties where they were committed. It seems to us that the malicious act involved or implied in destroying by poison twelve hens or chickens may, with en- tire propriety, under the general law regulating the jurisdic- tion of justices of the peace, be investigated and finally set- tled, and punished under the decision of a justice of the peace.'^ With a view to judicious administration of justice, the court, does not exclude from the jurisdiction of a justice all cases, which arise under the statute, though it prescribes a punish- ment generally for that class of offenses beyond the jurisdic- tion of such a court. § 439. Statutory provisions in relation to arbitrations are- liberally construed.^ They tend to advance the public welfare 1 People V. Hulse, 3 Hill, 809. ■» In State v. Towle, 48 N. H. 97. 2 Rev. Stat. 18.51, sec. 1, ch. 222. » Tiiskaloosa Bridge Co. v. Jemison, sComp. St. 1853, ch. 229, sec. 19. 83 Ala. 476; Tankersley v. Richard- "566 LIBERAL CONSTRUCTION. by putting an end to litigation, and discouraging a multiplicity of suits; and the parties cannot complain of them because the arbitrators are judges of their own selection, and cannot assume jurisdiction outside of the submission, nor bind the parties beyond their consent, as evidenced by the submission.^ Where the reference and award are in substantial comphance with the statute, they will be upheld as made under it.^ Where a cause depending before a justice of the peace was, by agree- ment of the parties, submitted to arbitrators, who made an award which was entered up in the judgment of the court, from which an appeal was taken, it was held that the award was final unless impeached on the grounds mentioned in the statute — corruption, want of notice, or other misconduct of the arbitrators. " It is wholly unimportant," say the court, " whether the award is made under the statute or not, as it is equally conclusive as an award at common law, and can only be impeached " on those grounds.^ The statute should be liber- ally construed ; but still the parties acting under it must sub- stantially pursue its provisions ; otherwise the award of arbi- trators cannot be made a judgment of the court.* Where a statute which provided a mode of submitting causes to arbi- tration enacted that each party should choose one arbitrator, and by the arbitrators thus chosen an umpire should be se- lected, and it was objected that the award was not a good statutory award, on the ground that by the terms of the agree- ment each party appointed an arbitrator, who then appointed the thu'd man, and the cause was tried by the three, in the first instance, it was held that the objection went to the form merely, and was invahd.^ A statute prescribing certain forms for submission to arbitrators, and allowing parties to agree that a judgment of a court of record designated in the instru- ment of submission should be rendered upon the award, is cumulative, not exclusive; and an award pursuant to the submission which would have been valid at common law, son, 2 Stewart, 130 ; Wright v. Bol- 2 id. ton, 8 Ala. 548 ; Mobile Bay Road Co. v. 3 Wright v. Bolton, 8 Ala. 548. Yeind, 29 id. 325 ; Bingham's Trustees ^ Owens v. Withee, 3 Tex. 161. V. Guthrie, 19 Pa. St. 418; Owens v. sporshey v. Railroad Co. 16 Tex. Withee, 3 Tex. 161. 516. 1 Tuskaloosa Bridge Co. v. Jemison, 83 Ala. 476. LIBERAL CONSTKUCTION. 567 but which does not conform to the statute, will support an action.' § 440. Statutes giving the right of appeal are liberally con- strued in furtherance of justice; such an interpretation as •will work a forfeiture of that right is not favored.^ "Where the statute gave the defeated party twenty days " after per- sonal notice of the judgment," it was held that the right might be exercised within that period after he received Avritten no- tice from the party recovering the judgment. The court say : *' This does not mean twenty days after he shall ascertain by his own inquiries or investigation that such judgment exists against him, but twenty days after he shall receive personal notice of the judgment from the party himself in whose favor the judgment was entered," ^ An act intended to extend the right of appeal is remedial and should receive a liberal con- struction. If it provides a remedy in a case where otherwise injustice might be done, it should be given effect in all cases where proceedings have not been had to such an extent as to exclude its application.'* A statute giving a certiorari was so framed that literally it was available only to the complainant, to review proceedings in the statutory action for forcible en- try and detainer. But as it was deemed reasonable to extend to the defendant the same means for the correction of errors, as to the plaintiff when similarly situated, the right was held reciprocal and aUke demandable by either party .^ Statutes 1 Browning v. Wheeler, 24 Wend, upon an agreement for arbiti'ation at 258 ; Diedrick v. Richley, 2 Hill, 271 ; common law would be to substitute Bumside v. "VMiitney, 21 N. Y. 148. a veiy different conti'act from that This is not perhaps in any proper into which he entered, sense the result of hberal consti'uc- - Houk v. Barthold, 73 IncL 21, 25 ; tion of the statute, but of the general Pearson v, Lovcjoy, 53 Barb, 407 ; rule that a new remedy created by Cally v. Anson, 4 AVis. 223. statute where one exists at common * Id. As to notice in writing be- law is cumvdative unless a different ing required, see Gilbert v. Columbia intention is expressed ; and that the T. Co. 3 Johns. Cas. 107 ; Miner v. legislature did not intend to make Clark, 15 Wend. 425 ; Lane v. Cary, any innovation upon the common 19 Barb. 539; Matter of Cooper, 15 law further than the case requires. John. 532 ; IMcEwen v. Moutgojiiery Burnside v. Whitney, supra. In Deer- lus. Co. 5 Hill, 104 ; People v. Croton field V. Arms, 20 Pick. 480, an award Aqueduct Board, 26 Barb. 248. was held wholly inoperative in such ■• Converse v. Burrows, 2 Minn. 229. a case. The court say that to hold See Vigo's Case, 2 1 Wall. 648. the party boimd by the submission as ^ RusseU v. Wheeler, Hempst 3. 568 LIBERAL CONSTKUCTION. providing for amendment of pleadings and proceedings in the courts are remedial and receive a very liberal construction.^ To remedy the evils consequent upon the destruction of any pubhc record by fire or otherwise, a statute was passed. It was held remedial though it altered the rules of evidence, as in making an abstract of title evidence.^ § 441. Statutes which confer or extend the elective fran- chise,^ which take away penalties,* which give compensation to those whose property is taken compulsorily,^ statutes which are in favor of those on whom taxes are assessed or burdens laid,'' or in favor of those who are subjected to prejudice by exercise of a special privilege granted by law,' are remedial and to be liberally construed. Where the intent is plain to confer a privilege upon those whose rights are to be affected by a statutory proceeding in derogation of the rights of pri- vate property, and the language is doubtful as to the extent of the privilege, it is the duty of the courts to give it the largest construction in favor of the privilege which the language em- ployed will fairly permit.^ This was declared of the time or period during which assessors were required to continue their sessions to revise assessments. The provision was that they should continue in session " each and every secular day for the period of twenty consecutive days." The court, regarding the revision as a privilege to persons assessed, excluded Sundays.* Statutes providing a mode of reimbursement for outlays made pursuant to law for the benefit of another are favorably con- strued to make such indemnity effectual. Thus, a compulsory process was allowed a municipal authority to collect the cost of work on a sidewalk, the owner having failed to comply with a direction to do the work himself.'" " l^o penalty," say the court, " is imposed on the owner, but a remedial process is 1 Fidler v, Hershey, 90 Pa. St. 363 ; p. 153 ; Mayor, etc. v. Lord, 17 Wend. Bolton V. King, 105 id. 78 ; Dick's 285 ; affirmed 18 id. 126. Appeal, 106 id. 589, 596; Goods of eWliite Co. v. Key, 30 Ark. 603; Ptuddy, L. R 2 P. & D. 330. Walker v. Chicago, 56 lU. 277. 2 Smith V. Stevens, 82 III. 554. "^ Boston, etc. Co. v. Gardner, 2 3 Thompson v. Ward, L. R. 6 C. P. Pick. 33, 37 ; Finch v. Birmingham at p. 353. Canal Co. 5 B. & C. 820. * Evans v. Pratt, 3 M. & G. at s Walker v. Chicago, swpra. p. 7G7. Old. 6 Reg. V. St Luke's, L. R. 7 Q. B. at i" Hudler v. Golden, 36 N. Y. 446. LIBERAL CONSTEUCnON. 56^ provided for the purpose of securing simple indemnity for ex- penditures lawfully made for his benefit. The statute, there- fore, is to be construed liberally, with a view to the beneficial ends proposed." ^ § 442. Statutory provisions for the protection of ofiicers employed in the administration of justice in the discharge of their duty are remedial, and are to be extended by construc- tion, as far as their words will permit, to embrace all cases within their purview.- An act was intended to grant a bounty to pioneer settlers on an exposed frontier, but was ambiguous as to the beneficiaries ; it was resolved in favor of including all those equally within the reason of the bounty.' Section 1594 of the Eevised Statutes of the United States was derived from an act to promote the efficiency of the navy, and being in- tended to enable the president, with the advice and consent of the senate, to relieve a deserving officer from the consequences of the findings of retiring boards, it should, it was held, be liberally construed in favor of justice.* An act legitimating bastards has been held remedial and to be liberally construed.^ In New York, a statute " for the protection of married women " has been held remedial and to be hberally construed.^ Patents for inventions should be liberally construed.'' The provisions ^Hudler v. Golden, 36 N. Y. 446. were to be narrowly watched, and con- 2 Cook V. Clark, 10 Bing. at p. 21 ; stinied with a rigid adherence to their Morris v. Van Voast, 19 Wend. 283, terms, as being in derogation of the 3 Ross V. Barland, 1 Pet. 655. See general rights of the community. Roane v. Innis, Wythe (Va.), 62. At present a far more hberal and ex- •* United States v. Burchard, 125 panded view of the subject is taken. U. S. 176. Patents for inventions are now treated 5 BeaU V. BeaU, 8 Ga. 210. as a just reward to rngeniovis men, *> Billings V. Baker, 28 Barb. 343 ; and as higlily beneficial to the public, Goss V. Caliill, 42 id 310. not only by holding out suitable en- ''Blanchard v. Sprague, 3 Sumn. couragements to genius and talents 539. "Formerly, in England," said and enterprise, but as vdtimatoly Judge Story, "courts of law were secm-ing to the whole communit}' disposed to indulge in very close and great advantages from the free com- strict construction of the specLfica- munieation of secrets, and ijrocesses, tions accompanying patents, and ex- and machtnerj^ which may be most pressing the nature and extent of the impoitant to aU the great interests of invention. This construction seems society, to agriculture, to commerco to liave been adopted upon the no- and to manufactures, as well as to- tion that patent-rights were in the the cause of science and art" natm-e of monopoUes, and, tlierefore, 570 LIBERAL C0N8TKUCTI0N. of the act of congress passed in 1851 to limit the liability of ship-owners, although they change the common law, are not penal nor in derogation of natural right so as to require a strict construction. They were enacted to remedy the rigor of the common law, and should be construed, if not hberally, at least fairly, to carry out the policy they were enacted to promote; and the term "any goods, wares or merchandise whatsoever " was held to include baggage.^ The statutes re- quiring railroad companies to fence their roads are made pro lono jnoblico, and are to be construed liberally to attain the end for which they are enacted.^ But such statutes are not to be so literally construed as to render a railroad corporation liable for injuries occasioned upon its road, at a time when the fence is temporarily out of repair, without fault or negligence in any manner imputable to the company.* § 443. In construing a remedial statute which has for its end the promotion of important and beneficial public objects, a large construction is to be given when it can be done without doing actual violence to its terms ; and this construction will be given in favor of a right of appeal by a party aggrieved, to procure a review of the acts of officers who by erroneous ac- tion have improperly defeated a public improvement.* And a power granted to a municipal corporation to enlarge any of the slips in the city is a continuing power ; and, being granted to subserve the public convenience, and connected with the necessary regulation and regular supply of a rapidly growing city, should be liberally construed in favor of the public inter- est. It was held to authorize the enlargement by extending the slips further into the river as Avell as widening them.^ An act empowering a company to contract for purposes of pubhc advantage ought not to receive a narrow construction.^ So a law respecting public rights and interests, generally, should be liberally construed, so as to make it effectual against the evil it was intended to abate, when this can be done without de- priving any individual of his just rights.'' Authority was given 1 Chamberlain v. Western Transp. * Wolcott v. Pond, 19 Conn. 597. Co. 44 N. Y. 305. ^ Marshall v. Vultee, 1 E. D. Smith, 2Tallman v. Syracuse, etc, E. R. 294. €o. 4 Keyes, 128. 6 Dover Gas L. Co. v. Dover, 7 De G. 3 Murray v. New York Cent. R. R. M. & G. 545. €o. 4 Keyes, 274. ' Plowman, Ex parte, 53 Ala. 440. LIBERAL CONSTRUCTION. 571 to designate a state paper, and to enter into a contract with the publisher for publication of legal and other notices required by law to bo published therein. The statute conferring this power was held remedial and the power a continuing one ; that it was not exhausted by a single exercise.' § m. Statutes for the prevention of fraud are remedial and liberally construed. Such is an act to prevent an insolvent debtor from making preferences among his creditors.^ " These statutes," said Lord Mansfield, " cannot receive too liberal a construction, or be too much extended in suppression of fraud." ^ It was held that an English statute imposing a pen- alty on any officer of a Imiited company who signs on its behalf a bill of exchange upon which its name does not appear, and also rendering him personally liable to the holder of the bill. 1 Weed V. Tucker, 19 N. Y. 423. De- nio, J., said: "When we are seeking to ascertain the intention of the law- maker, we are to assume that the statute was designed to be an ade- quate and final arrangement for the pubhc exigency which called for its enactment. That exigency in this case was a provision which should secure the continued pubhcation of these legal notices, and we are to in- tend that the statutory provisions were framed with a view to accom- plish that result ; and not that a tem- porally measure was in the consider- ation of the legislature, which, when it should fail from its inherent de- fects, could be sui^plied by fiu'ther legislation. .... We disclaim any poAver to supply a defect in it if one exists. If the language, reasonably construed, fails to carry out what we conceive to have been the general in- tention of the legislature, it is a casus omissus, which is irremediable hj the courts. But when the question, as in this case, is what the language em- ployed reaUy means, it is important to ascertain from all legitimate sources wJiat the emergency or ])ub- lic necessity was wliich led to the enactment, and we are not to pro- noimce the measure inadequate witli- out a faithfvd endeavor to accommo- date the language to the obvious intention." In another part of the opinion the learned judge further said : " It is a part of the legal ar- rangements for carrying on the gov- ernment and providing for the ad- ministi-ation of justice among the citizens of the state, and is remedial in its character. In such cases the inile is that, if the words of a statute are not exphcit, the sense is to be gathered from tlie occasion and ne- cessity of the law, the defect in the former law, and the designed rem- edy. It is to be so consti'ued as most eifectuaUy to meet the beneficial end in view, and to prevent a failure of the remedy. It is to be construed liberally, in conti'adisliuction from a merely verbal construction — largely and beneficially — so as to suppress the mischief and advance the rem- edy." 2TerriIl v. Jennings, 1 Met (Kj-.) 450 ; Cadogan v. Kennett, 2 Cowp. at p. 434 ; Bank of United States v. Lee, 13 Pet. 107. 2 Cadogan v. Kennett, supra. 572 LIBERAL CONSTEUCTION. ■was partly remedial and partly penal.^ The same construction was placed on another statute for preventing false and double returns to parliament, which gave every person grieved by a false return a right of action against the returning officer.^ Such statutes, so far as they inflict a penalty on the offender, are strictly construed ; but where they act on the offense by setting aside the fraudulent transaction, they are construed liberally.^ An act that no member of the common council of a city, or other officer of the corporation, should be directly or indirectly interested in any contract, work or business, the price or consideration of which was to be paid from the city treasury, was held to apply to a newspaper owned by the health commissioner of the city and designated to publish the proceed- ings of the common council. This restriction was deemed highly salutary. It was designed to prevent persons employed and appointed to promote and protect the public interest from being diverted from those objects by the temptation of the pecuniary advantages they might otherwise secure to them- selves. The policy of it is similar to that which courts of equity have, from a high sense of duty, imposed upon all per- sons acting in the capacity of trustees. Instead of being un- reasonably restrained by construction, the provision should be liberally applied for the promotion of the end designed to be accomplished by its enactment.* § 445. Whenever a penal statute is declared to be remedial by a provision therein, as, for example, a law against gaming, a strict construction wiU. not be applied.^ "Where all civil laws are required by statute to be liberally construed, with a view to effect their objects and to promote justice, the courts must obey the statutory rule ; nevertheless, to authorize an attach- ment, all material requirements must be substantially comphed with.^ 1 Penrose v. Martyr, E. B. & E. 499. Ga. 253 ; Ellis v. WMtlock, 10 Mo. •^ Wynne v. Middleton, 1 Wils. 125 ; 781 ; Smith v. Moffat, 1 Bai-b. 65. WUb. on St. 234 4 Mullaly v. Mayor, etc. 6 T. & C. 3 1 Black. Com. 88 ; Twyne's Case, 3 168. Co. 82b; Cadogan v. Kennett, 2 Cowp. 8 Seal v. State, 13 Sm. & M. 286. 432, 434 ; Gorton v. Champneys, 1 ^ Dunnenbaum v. Schram, 59 Tex. Bing. at p. 301 ; Gumming v. Fryer, 281. Dudley (Ga.), 182 ; Carey v. GUes, 9 CHAPTER XYI. DIRECTORY . ND MANDATORY STATUTES. § 446. Preliminary explanation. 448. Provisions as to time generally- directory. 451. Also formal and incidental provisions. 453. Statutory bonds differing from statute. § 454. Mandatory statutes. 458. Statutes wliich confer new- rights, privileges, etc. 460. Statutes which are in form permissive. § 446. Preliminary explanation of directory and manda- tory statutes. — The consequential distinction between direct- ory and mandatory statutes is that the violation of the former is attended with no consequences, while a failure to comply with the requirements of the other is productive of serious re- sults. This distinction grows out of a fundamental difference in the nature, importance and relation to the legislative pur- pose of the statutes so classified. The statutory provisions which may thus be de])arted from with impunity without af- fecting the validity of statutory proceedings are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the legislature or some incident of the essential act.^ Directory provisions are not intended by the legislature to be disregarded ; but where the consequences of not obeying them in ever}^ particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the punctilious observance of the pro^dsion in question to the object the legislature had in view. If it be essential it is man- datory, and a departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it. § 447. There is no universal rule by which directory provis- ions may, under all circumstances, be distinguished from those which are mandatory. Where the provision is in affirmative words, and there are no negative words, and it relates to the 1 McKune v. WeUer, 11 Cal. 49. 574 DIRECTORY AND MANDATORY STATUTES. time or manner of doing the acts whicli constitute the chief purpose of the law, or those incidental or subsidiary thereto,, by an official person, the provision has been usually treated as directory.^ Generally, it is so ; but it is a question of in- tention.- Where a statute is affirmative it does not neces- sarily imply that the mode or time mentioned in it are exclu- sive, and that the act provided for, if done at a different time or in a different manner, will not have effect. Such is the ht- eral imphcation, it is true ; but since the letter may be modified to give effect to the intention, that implication is often pre- vented by another implication, namely, that the legislature intends what is reasonable, and especially that the act shall have effect; that its purpose shaU not be thwarted by any trivial omission, or a departure from it in some formal, inci- dental and comparatively unimportant particular. " It would not, perhaps, be easy," said Sharswood, J., "to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. AYhere the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction it- self, they may be and often have been construed to be directory -^ but negative words which go to the power or jurisdiction have never, that I am aware of, been brought within the category." * " It is the duty of courts of justice," said Lord CampbeU, " to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed." * Lord Penzance said : " I have been carefully through aU the principal cases, but, upon reading them aU, the conclusion at Avhich I am constrained to arrive is this : that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord CampbeU in the case of the Liverpool Bank v. Turner." 1 In re Petition of Douglass, 58 Barb. - Kellogg v. Page, 44 Vt. 356. 174; Att'y-Gen'l v. Baker, 9 Rich. 3 Bladen v. Philadelphia, 60 Pa. St. Eq. 521 ; State v. Harris, 17 Ohio St. 464, 466. 608 ; Bladen v. Philadelphia, 60 Pa. * Liverpool Bank v. Turner, 30 L. J. St 464 Ch. 380. DIKECTOKV AND MANDATOKY STATUTES. ( O He had said in the same judgment, " I beUeve, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider th© importance of the provision, and the rehition of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or directory." ^ Unless a fair consideration of a statute, directing the mode of proceed- ing of public officers, shows that the legislature intended com- pliance with the provision in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely.^ Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as manda- tory ; and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purposes of the statute.' § 448. Provisions directory as to time. — Provisions regu- lating the duties of public officers and specifying the time for their performance are in that regard generally directory. Though a statute directs a thing to be done at a particular time, it does not necessarily follow that it may not be done afterwards.* In other words, as the cases universally hold, a statute specifying a time within which a pubhc officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be per- formed, or the phraseology of the statute, is such that the designation of time must be considered as a hmitation of the power of the officer.^ And it was accordingly held that a 1 Howard v. Bodington, L, R 3 P. 5 People v. Allen, 6 Wend. 486 ; Div. 211. Jackson v. Young, 5 Cow. 269 ; Heath, 2 Jones V. State, 1 Kan. 273. Ex parte, 3 Hill, 42 ; "Walker v. Chap- SNeal V. Burrows, 34 Ark. 491; man, 22 Ala. 116; Charter v. Greame, Moimt V. Kestei-son, 6 Cold. 452 ; 13 Q. B. 216 ; Reg. v. Mayor, etc. 7 Cheatham v. Brien, 3 Head, 552 ; At- E. & B. 910 ; Reg. v. Ingall, L. R. 2 kmson v. Rhea, 7 Humph. 59 ; Sellars Q. B. Div. 199 ; Doe d. Phillips v. ■V. Fite, 3 Baxt 131. Evans, 1 Cr. & M. 450 ; Rex v. Denby- 4 Wilson V. State Bank, 3 La Ann. shire, 4 East, 142 ; Pond v. Negus, 3 196. Mass. 230; ^Vheeler v. Chicago, 24 576 DIRECTORY AND MANDATORY STATUTES. brigade order, constituting a court-martial, issued in July, when by the mihtia law it was made the duty of the com- mandant of the brigade to issue such order on or before the 1st day of June in every year, was vahd.^ A provision that ^n appeal bond be executed before an appeal is perfected, when not a part of the essential steps to take an appeal, is di- rectory.- So is a provision that an officer shall take his official oath within a certain period,^ or give his official bond,* even where the issue of a commission to him is prohibited until such bond is given ; ^ for it would be attended with mischievous consequences if in such cases aU the official acts of such de- linquent were held void. His acts, if he in fact filled the office, would doubtless be valid. There could be no collateral inquiries affecting the right of a de facto officer to act. A statute which provides that commissioners to locate a county seat shall meet at a time and place provided for, that a ma- jority shall constitute a quorum to do business, "and that the commissioners may adjourn to some other place or time, and may adjourn from time to time until the business before them may be completed," is directory merely, and the commission- ers have the power to elect a chairman and empower him to tix the time of the next meeting.^ § 449. A statute required the township clerk to certify on or before the first Monday of October in each year to the su- pervisor of his township the amount of the town indebted- ness growing out of the payment of bounties. Where such certificate was not made within that period, but was within a IlL 105 ; Torrey v. Millbuiy, 21 Pick. 3 Howland v. Luce, 16 John. 135. 64 ; Colt V, Eves, 12 Conn. 243 ; People * Boykin v. State, 50 Miss. 375 ; Peo- V. Cook, 14 Barb. 259; Wright v. pie v. Holley, 12 Wend. 481. In Sperry, 21 Wis. 331 ; State v. Click, 2 Platan v. State, 56 Texas, 94, it was Ala. 2G ; Limestone Co. v. Rather, 48 held that the statute requiring a party Ala. 433 ; St. Louis Co. Ct v. Sparks, elected to office to quaUf y within a 10 Mo. 117 ; Lee v. State, 49 Ala. 43 ; prescribed period of time will be con- Hugg V. Camden, 39 N. J. L. 620; strued as du-ectory only in a case Eustis V. Kidder, 26 Me. 97 ; Lacka- where, from reasons beyond liis con- wana Iron Co. V. Little Wolf, 38 Wis. ti'ol, he cannot qualify within the 152 ; Rex v. Leicester, 7 B. & C. 6 ; time allowed ; but such construction Bosanquet v. Woodford, 5 Q. B. 310 ; will not be given in a case of neglect Rex V. Span-ow, 2 Str. 1123. or refusal to qualify. 1 People V. Allen, 6 Wend. 486. » McBee v. Hoke, 2 Speers, 138. 2 McCarver v. Jenkuis, 2 Heisk. 629. « Edwards v. Hall, 30 Ark. 31. DIKECTORY AND MANDATORY STATUTES. O i I week afterwards, and seasonably to answer tlio intended pur- pose, it was held good, and the provision so far directory. The information Avas to enable the supervisor to include the amount certified in the tax levy.^ The provision of the statute requiring that grand jurors should " be summoned at least five days before the first day of the court " to which they may be summoned is manifestly merely dh^ectory to the sheriff and for the convenience of the jurors, that they may have suffi- cient notice of the service required of them. And though it may be true that a juror could not be compelled to attend un- less so summoned, yet if he thinks proper to attend and serve without such notice, it constitutes no objection to the regular organization of the grand jury. The time of summoning jurors, except so far as their own convenience is concerned, is quite an immaterial thing which could in no wise affect their offi- cial acts.'- And so of other departures from the letter of stat- utes relating to obtaining jurors.^ It is so of the requirement that defendant in replevin be summoned to appear at the next term.^ The provision requiring a judge who tries a cause without a jury to give his decision on or before the first day of the next term is directory. It imposes a duty upon the judge ; but as the parties have no control over his action, it would be a harsh construction which should deprive them of the fruits of the litigation because the judge fails to decide by a particular day.^ So of the requirement that the officer be- fore whom proceedings are had against an absconding, con- cealed or non-resident debtor, shall make his report within twenty days after the appointment of trustees, and that the latter cause their appointment to be recorded within thirty days.^ The omission of a justice of the peace to file his return to an appeal within the time required by law is not fatal. The appellate court will have jurisdiction of the case if the return is made after the time so prescribed.' A statute spe- 1 Smith V. Crittenden, 16 Mich. 152. * Jolmson. Ex parte, 7 Cow. 424 2 Johnson v. State, 33 I\Iiss. 363. ^ Rawson v. Paj-sons, 6 Mich. 401 ; 3 State V. Carney, 20 Iowa, 82 ; Wood v. Chapin, 13 N. Y. 509 ; Fraser State V. Pitts, 58 Mo. 556: State v. v. Willey. 2 Fla. 116. Gillick, 7 Iowa, 287 ; State v. Smith, ** Wood v. Chapin, 18 N. Y. 509. €7 Me. 328; Huecke v. Milwaukee ' Kellogg, Ex parte, 3 Cow. 372. City R'y Co. 69 Wis. 401 ; Birchard v. Booth, 4 id. 67. 87 5 78 DIKECTOET AND MANDATORY STATUTES. cified a time for trustees to make a sale of trust property; this was held directory, and that a sale made afterwards was good and passed the title.^ A statute requiring a court, on the first day of a term, to assign cases for trial on particular days, was held directory.- If a statute direct a tax to be levied at a given time and it is omitted, it may be levied at a differ- ent time.* Where a special act was passed in relation to the presentation of cei'tain claims, otherwise not allowable, and requiring them to be presented within thirty days, and, there- fore, made a distinction between such claims and ordinary ones as to the time of presentment, it was held mandatory ; that the presumption was that such limitation as to time was material to be followed."* § 450. The assessors of a school district were du-ected by a statute to assess the district tax within thirty days after the clerk had certified the vote for raising the tax, and it was held to be merely directory, as there were no negative words in the statute limiting their power to make the assessment afterwards.^ A statute requu^ed ward inspectors of a city to certify the result of the ward elections, on the day subsequent to the clos- ing of the polls, or sooner. It was held that their certificate was valid although it was not made tiU the second day after tiie closing of the poUs.^ The statutory requirement that the polls of election be closed at sunset has been held to be direct- ory.'^ A certificate was required to be made out immediately, and though one was made seven months afterwards, it was received in evidence, and the election held good.^ The time mentioned by statute within which swamp lands granted by congress to Oregon should be selected was held not imperative, there being no hmitation of the power of the selecting officer.* 1 Savage v. Walshe, 26 Ala. 019, 2Demo, 160; Pond v. Negus, 3 Mass. 631. 230. 2 People V. Doe, 1 Mich. 451. * Corbett v. Bradley, 7 Nev. 106. 9 State V. HaiTis, 17 Ohio St. 608 ; 5 Pond v. Negus, 3 Mass. 230. State V. Horner, 34 Md. 569 ; State v. Co. « Heath, Ex parte, 3 Hill, 42. Ck)ni'rs, 29 id. 516 ; Tuohy v. Chase, 30 ^ Holland v. Davies, 36 Ark. 446 ; CaL 524 ; Shaw v. Orr, 30 Iowa, 355 ; Swepston v. Barton, 39 id. 549 ; Fry People V. Lake Co. 33 CaL 487 ; Peo- v. Booth, 19 Oliio St. 25. pie V. Rochester, 5 Lans. 11 ; Corbett ^ People t. Peck, 11 Wend. 604 V. Bradley, 7 Nev. 106 ; Looney v. 9 Gaston v. Stott, 5 Oregon, 48. Hughes, 30 Barb. 605 ; Gale v. Mead, DIRECTORY AND MANDATORY STATUTES. 579 § 451. Formal aiul iiiculental reij[iiirements directory. — Statutes directing the mode of proceeding by public officers are directory, and are not to be regarded as essential to the valid- ity of the proceedings themselves unless so declared in the statutes.^ In People v. Cook - the court say : " Statutes direct- ing the mode of proceeding of public officers are directory, and are not to be regarded as essential to the validity of the pro- ceedings themselves, unless it be so declared in the statute." The qualification further on in the opinion is : " Unless there is something in the statute itself which plainly shows a different intent." As said by Cobb, C. J. : * " The first rule appears . . . inaccurate. The words ' unless it be so declared in the statute ' seem to require an express declaration that di- recting the manner is essential, however important and essen- tial a just view of the policy of the statute may show such provisions to be." The learned chief justice added : " The rule secondly stated contains probably all that the learned justice intended to say in the first, and as a general proposition is doubtless correct. But the intent to make such provision es- sential may appear as well by the general scope and policy of the statute as by a direct averment. In other words, unless a fair consideration of the statute shows that the legislature in- tended compliance with the provision in relation to the man- ner to be essential to the validity of the proceeding, it is to be regarded as directory merely." This view was well illus- trated by the case in which this language was used. There was a statutory provision relating to a special election for se- lecting a county seat in these words : " If upon the canvassing of said votes by said commissioners they shall find that no place has received a majority of all the votes cast, it shall be their duty to proclaim the same, and also the time of the sec- ond election, as herein provided ; and the canvass of the votes of the second election and the proclamation of the result shall be the same as at the first." In a case where there was no choice at the first election, and a second election was held 1 People V. Cook, 14 Barb. 259, 390 ; 3 in Jones v. State, 1 Kan. 273, See HoUaud V. Osgood, 8 Vt 280 ; Corliss Westbrook v. Rosborough, 14 CaL V. Corliss, id. 373 ; Holding, Ex parte, 180; Kenfield v. Irwin, 52 id 164; 5 J Ala. 458. People v. Thompson, G7 id, 627. 2 14 Burb. 259. 580 DIRECTOEY AND MANDATOET STATUTES. without a proclamation, the court held the provision impera- tive, and that there was no authority to hold the second elec- tion without it. It was an important and necessary provision. " "Without it," said the chief justice, " the law provided no means for informing the people that any second election was to be held for the location of the seat of justice, and man};^ oi them might, and some of them probably would, know nothing about it."" A statute required the reading and signing of the minutes of the board of supervisors. This was held merely du-ectory, but it should be scrupulously observed; and the omission to do so, though it may indicate perhaps carelessness, if not incapacity, does not affect the validity of the proceed- ings.' A statute relating to docketing judgments by tran- script has been held directory as to clerical particulars.- It was provided that " no judgment shall affect any lands, tenements, real estate or chattels real, or have any preference as against other judgment creditors, purchasers or mortgagees until the record thereof be filed and docketed as herein di- rected." Those directions were that the clerk, at the time of filing the record, enter in an alphabetical docket a statement of the judgment, containing among other things the hour and day of entering the same. By another act the clerk, on request and payment of fees, was required to furnish a tran- script containing all the facts necessary to make a perfect docket of the judgment ; and on presenting the transcript to the clerk of any other county, it was his duty to file the same and docket the judgment, specifying among other particulars the day and the hour on which the judgment was perfected, and the day and hour of docketing the same. By a subsequent act, which was the subject of construction, it was declared that " no judgment or decree which shall be entered after this act takes effect shall be a lien upon real estate, unless the same shall be docketed in books to be provided and kept for that purpose by the county clerk of the county where the lands are situate." It was held that an error in the statement of the date, amount, etc., which would be amendable by the court in which the judgment was rendered would not vitiate the lien of such judgment as against persons who have not been act- ually misled and prejudiced thereby. " It could not, I think," 1 Arthur v. Adam, 49 Miss. 404. 2 gears v. Bumham, 17 N. Y. 445. DIRECTORY AND MANDATORY STATUTES. 581 said Strong, J., "have beeu the intention of tlie legislature, by any of the provisions in regard to the docketing and lien of judgments, to require a strict, literal compliance in every par- ticular with the requirements as to the contents of the docket, in order that the judgment nuiy be a lien on lands as against other incumbrances. If such a compliance was necessary, a variance of a day or hour as to time, or a single penny as to the amount of the judgment, would vitiate the docket and render it a nullity as to securing a preference over other in- cumbrances. A substantial observance of those requirements, having reference to the object the legislature had in view of affording information to all who might be affected by the judgment, I am satisfied is all that was designed or is neces- sary. Those provisions are merely directory- ; and omissions and variances which cannot work any prejudice are immaterial. It is for the court so to administer the provisions as to the docketing and lien of judgments as carefully to secure the in- formation designed to be given, and at the same time to pro- tect the judgment creditor from the loss of his preference on ■ account of slight omissions and defects entirely unessential to the docket for the purpose of such information." ^ § 452. The clause in the constitution requiring the supreme court of appeals to " decide every point fairly arising upon the record, and give its reasons therefor in writing," is direct- ory and does not affect the common-law doctrine of res ju- dicata. The court say: " Notwithstanding that clause in the constitution, if the points are involved in the issue, they are 7'es judicata, although not mentioned in the opinion of the court or noticed by counsel on either side. That clause of the constitution is merely directory to the court, and it ought to be followed ; but it does in no wise change the common-law rule as to the doctrine of res judicata. The contrary doctrine would lead to endless litigation ; and no suitor could know when his controversy was terminated. There would be any- thing but repose in such a construction of the constitution as that." - A statute requiring the instructions to the jury to be in writing is directory, and the violation thereof cannot 1 See Hunt v. Grant. 19 "WencL 90, from $:1.000 to $30,000. Hart v. Rey- where a docket was amended nunc nolds, 3 Cow. 42, note. pro tunc by increasing the amovmt -' Heurv v. Davis, 13 W. Va. 230. 582 DIKECTOET AND MANDATORY STATUTES. be assigned as error in Texas, though the rule is otherwise in some states.^ So is a provision that the judge shall cau- tion the jury. 2 Under a statute providing a remedy by the verdict of a jury for the undervaluation of land by highway commissioners, the verdict Avas required to be certified by the justice who issued the summons. His duties in the premises were of a ministerial character. He had no control of the proceedings. He was not to preside, or to direct the admis- sion or exclusion of evidence, as on a trial before him. His duties were limited to issuing a summons, drawing the names of six jui'ors, swearing them and witnesses, and finally certify- ing the verdict. The statute prescribed no penalty, and im- posed no forfeiture in case of non-compliance with its provis- ions. There was no declaration that the verdict should be void for failure to comply with them. It was held that the verification of the verdict was not incapable of being certified in other ways as w^ell as by the justice w^ho issued the sum- mons. It was a formal matter, because it proved nothing that could not be proved in other ways as satisfactorily. Its omission could work no prejudice to the certainty of the pro- ceeding. The affidavit of some of the jurors, or the certificate of another justice, would accomphsh the same purpose prac- tically. The proper and just re-assessment and the verdict were the essential matters, and could not be dispensed with ; but the certificate was a matter of form, which could be sup- plied by other evidence without prejudice to any one. The misconduct or mistake of a public officer in a matter of mere form should not prevent the attainment of right and justice. The requirement that the justice who issued the summons should certify the verdict was held directory.^ By statute no ordinance providing for subscription by parishes and mu- nicipal corporations to the stock of corporations undertaking works of internal improvements was valid until approved and ratified by a majority of the voters on whose property the tax w^as proposed to be levied. For the purpose of facilitating the taking of this vote, a certified list of such voters was to 1 Galveston, etc. E'y Co. v. Dunlavy, 2 Thompson v. State, 26 Ark. 323. 56 Tex. 2o6. Contra, Penberthy v. 3 People v. Supervisors, 34 N. Y. 268. Lee, 51 "Wis. 261 ; Householder v. Granby, 40 Ohio St 430. DIRECTORY AND MANDATORY STATUTES. 583 be furnished to commissioners. This list was not furnished in a particular case, and its omission was urged as a fatal objec- tion to a subscription })ursuant to a favorable vote on a sub- mission of the question. The court held that the provision requiring it was directory and not a condition precedent. ^' When a formality is not absolutely necessary," say the court, "for the observance of justice, but is introduced to fa- cilitate its observance, its omission, unless there is an annul ling clause in the law, will not annul the act." ^ The requirement that the inspectors of a corporate election be sworn, in the absence of a nullifying clause on account of the omission, was held directory ; that the election was not in- validated by the failure of the officers to be sworn.'- A statu- tory provision that the clerk of the district give notice of the annual meetings was merely directory, and that the proceed- ings after the meeting were valid although no notice was given.' A board of canvassers cannot reject a poll book on account of its being transmitted to the clerk through one not an elective officer. Statutes concerning the manner of con- ducting elections are directory unless the non-com])liance is expressly declared to be fatal to the vahdity of the election or will change or make doubtful the result.^ The sheriff was di- rected by statute, upon making a sale of real estate, to file his certificate of sale in the clerk's office ; the statute was held di- rectory, and that his omission to file it did not prejudice the proceedings.^ So a statute requii'ing the vote of the common council upon a resolution opening streets in a city to be taken by ayes and nays was held director3\'^ Statutory provisions as to drawing jurors for a trial are directory, and irregularities therein, when not objected to at the time, are waived.' Provis- ions requiring a sheriff to note on an execution the day of its receipt,* requmng him to make a levy in the presence of two witnesses,^ requiring the secretary of state to publish the act 1 New Orleans v. St. Romes, 9 La. * Wilf ord t. State, 43 Ark. 63 ; Mc- Ann. 573. Crary ou Elections, § 200. 2 Matter of Mohawk, etc. R R Co. » Jackson v. Young, 5 Cow. 269. 19 Wend. 143. « Striker t. KeUy, 7 Hill, 9. 8 Marchant v. Longworthy, 6 Hill, ' Cole v. Perry. 6 Cow. 584. '646 ; S. C. 3 Denio, 526. 8 Hester v. Keith. 1 Ala. (N. S.) 316. 9 Davidson v. Kiiliu, 1 Disney, 405. 584 DIKECTORY AJfD MAXDATOKY STATUTES. against dueling three montlis,' are directory. A statute whicli provided how a levy should be made v;hen the defendant in execution failed or refused to point out property was held directory ; that is, that he should levy first on personal or movable property, then on uncultivated lands, and lastly on improved lands, establishing that order. Though the failure to make a levy as required by statute might be sufficient in a particular case, properly presented, to set aside the levy and make the officer liable in damages, the sale would not neces- sarily be Yoid.^ The provision in the code as to advertising the adjournment of the supreme court is directory to the clerk, and, if not complied with, still the court may be held at the time fixed in the order of adjournment, and a party not prejudiced by the omission of the clerk cannot complain.^ Compliance with a requirement to make a plan for the drain- age of the whole city is not imperative or a condition prece- dent to the power of contracting for work in any of the sewerage districts.^ Failure of the tax assessor to pin to the assessment roll the affidavit prescribed by statute does not so vitiate the assessment roll as to render nugatory all subse- quent proceedings with reference to it and all the sales for taxes under it. It is manifest that the purpose of the legisla- ture was to make all such requirements as this directory and not mandatory in the sense that failure to observe them will annul subsequent proceedings. The court say : " This affidavit is requu'ed to be made after the completion of the assessment roll as an additional guaranty to his oath of office to secure the performance of the duty of the assessor in the particular matters to which the affidavit relates. It was assumed that ia order to be able to make the required affidavit the assessor would act as it suggests to be necessary in order to make it ])erfectly, and it was admonitory to him as weU as a guide to the board of supervisors as to what was required of him. There is nothing to suggest a purpose in the legislature to make the required affidavit a condition of the validity of the assessment or essential to the jurisdiction of the board of su- pervisors to deal with the rolls as the law directs. On the 1 State V. CUck, 2 Ala. 26. * Matter of N. Y. Prot. E. Pulx 2 Pearson v. Flanagan, 52 Tex. 266. School, 47 N. Y. 556. 3 Wise V. State, 34 Ga. 348. DIRECTORY AND MANDATORY STATUTES. 5S5 contrary, we think the manifest purpose of the legislature Avas to make al] such requirements directory and not mandatory in the sense that failure to observe them will annul subsequent proceedings." ' The statute is directory in requiring the board of police to take deeds of trust on real estate to secure the re- payment of loans of the common school fund, and makes it the plain duty of the board to do so. But it does not make void a note given for such loan not secured b}^ a trust-deed. - § 453. Statutory bonds uot coiiforniinn? with statute. — In the absence of negative words a bond diU'ering in form and mode of execution from what is required by statute, but con- taining substantially the required conditions, is vaUd. Eefer- ring to the official bond of a sheriff, Cooley, J., said : " If the several duties which the sheriff is called upon to perform could only arise because of the statute requiring the giving of the bond, there would be abundant reason for saying that until a bond in conformity with the statute was produced no recovery could be had. But this statute does not impose the duties ; they would be the same if no'official bond were required; and a sheriff de facto is charged with them under the same circum- stances as is the sheriff dejure. It needs no statute to enable the officer to give a valid bond to perform any such duty ; and had B. executed to H. and R. a common-law bond, conditioned that he would duly levy and return the execution they placed in his hands, there could have been no doubt of its validit}^^ When a party gives a bond that he may have some privilege or right, as an office, appeal, supersedeas, or the like, and he has the benefit as upon having given the bond required by law, he cannot afterwards avoid responsibility upon it because he has dej)arted in some particular from the statutory form, or omitted some formality in execution, approval or filing.* An 1 Chesnut v. Elliott, 61 Miss. 569 ; Marsh. 416 ; Governor v. Allen, 8 Fifield V. Marinette Co. 63 Wis. 532, Iiumph. 176 ; MontvUle v. Haughton,. modifying Marsh v. SupervLsoi-s, 43 7 Conn. 543 ; Commonwealth v. Wol- id. 503, and other cases in Wisconsin bert, 6 Binn. 293. See People v. to the contrary. Mitchell, 4 Sandf. 466 ; People v. '- Acts of 1854, ch. 345, and of 1856, Meighan. 1 Hill, 298 ; Ai-mstrong v. cIl 27 ; Gaines v. FarLs, 39 Jliss. 403. United States, 1 Pet C. C. 46 ; Van See State v. State Bank, 5 Ind. 356. Deusen v. Hajn^ard, 17 Wend- 67. 3 Bay Co. v. Brock, 44 Mich. 45 ; * Id. ; Hester t. Keith, 1 Ala. (N. S.) United States v. Tingey, 5 Pet 115; 316; Bartlett v. Board, 59 111. 3C4- Thompson v. Buckhauuou. 3 J. J. Supervisoi-s v. Kaime, 39 Wis. 468. 5S6 DIKECTOET AXD MAXDATOKY STATUTES. appeal bond filed without a required justification of sureties is nevertheless good, and will support the appeal, if the sure- ties are in fact sufficient. The provision of the statute requir- ing a justification is so far directory where no different inten- tion is manifest.^ § 451. Mandatory statutes. — Mandatory statutes are im- perative ; they must be strictly pursued ; otherwise the pro- ceeding which is taken ostensibly by virtue thereof will be void. Compliance therewith, substantially, is a condition pre- cedent ; that is, the validity of acts done under a mandatory statute depends on a compliance with its requirements. When a statute is passed authorizing a proceeding which was not allowed by the general law before, and directing the mode in which an act shall be done, the mode pointed out must be strictly pursued. It is the condition on which alone a party can entitle himself to the benefit of the statute, that its directions shall be strictly complied with. Otherwise the steps taken will be void. But when the proceeding is permitted by the general law, and an act of the legislature directs a particular form and manner in which it shall be conducted, then it will depend on the terms of the act itself whether it shall be con- sidered merely directory, subjecting the parties to some disa- bility if it be not complied with, or whether it shall render the proceeding void. If no emancipation were permitted, and an act of the legislature should permit owners of slaves to emancipate them m some prescribed form, if the form were not complied with the act would be void.- "Where legislation points out specifically how an act is to be done, although without it the court or officials under their general powers 1 St Louis, etc. R. R. Co. v. Wilder, mentioned in the statvite, did not 17 Kan. 244. In Hardy v. Heard, 15 show on its face a compliance with Aik. 184, it was declared that the de- the law, and could not be evidence sign of the statute in requiring the under the statute. But if such deed recital of the judgment, execution, is in comphance with the statute, it etc., in a sheriff's deed for land sold is only privia facie eTidence, and under execution was to relieve the may be entirely overthrown by evi- purchaser from the necessity of pro- dence that the sale had never been ducing the judgment, etc., and to made, or had not been made in ac- leave to the party who would contest cordance with the law. Moore v. the sale to establish its invalidity; Brown, 11 How. (U. S.) 424. that a deed for land sold under exe- ^ Monk v. Jenkins, 2 Hill's Ch. 12. cution, not containing the recital DIRECTORY AND MANDATORY STATUTES. 587 would have been able to perform the act, yet as the legislature imposed a special limitation, it must be strictly pursued ; and although performed b}' a discretionary officer, the Hmitation of the statute renders the doing of the act ministerial in him performing it, in which no discretion can be indulged.^ Ena- bling statutes, on the principle of exjjressio unius est excluslo alterhis, impliedl}^ prohibit any other than the statutory mode of doing the acts which they authorize.- This is illustrated by the numerous cases where statutory rights and remedies are given in respect to which the statute must be strictly pursued.^ Where a statute in granting a new power prescribes how it shall be exercised, it can lawfully be exercised in no other way.* Negative words in granting power or jurisdiction can- not be directory.^ And even affirmative Avords, in such a case, without any negative expressed, imply a negative. Where a statutory power or jurisdiction is granted, which otherwise does not exist, whether to a court or an officer ; and in all cases where, by the exercise of such a power, one may be divested of his property, the grant is strictly construed ; the mode of proceeding prescribed must be strictly pursued ; the provisions regulating the procedure are mandatory as to the essence of the thing required to be done.^ 1 Hudson V. Jefferson Co. Ct. 28 ship, 103 id. 250 ; Providence Co. v. Ark. 359. Chase, 108 id. 319 ; Harris v. Gest, 4 2 Dalton V. Murphy, 30 Miss. 59 ; St. Ohio 469 ; Campbell v. AUison, 63 Veazie v. Cliina, 50 Me. 518 ; Wen- N. C. 568 ; Bayley t. Hazard, 3 Yerg. del V. Durbin, 26 Wis. 390 ; Beltz- 487 ; Whipley v. Mills, 9 Cat 641 : Hil- hoover v. GoUings, 101 Pa. St. 293. di-eth v. Gwindon, 10 id. 490 ; Elliott v. 3 Ante, § 393 ; Buckley v. Lowiy, 3 Chapman, 15 id. 383 ; Gordon t. Mich. 419 ; Haley v. Petty, 42 Ark. 392 ; Wansey, 19 id. 82 ; Doclmg v. Moore, People V. Reed, 5 Denio, 554 ; Wilson 20 id. 14 ; CUnton v. Phihips, 7 T. B. V. Palmer, 75 N. Y. 250; Lane t. Mon. 117. Wheeler, 101 id. 17 ; Stafford v. Bank, ^ Head v. Ins. Co. 2 Cranch, 127 ; 16 How, 135 ; Stafford v. Canal & Best v. Gholson, 89 111, 465 ; I'rjmklin BankingCo. 17How. 283;Illmois.etc. Glass Co. v. White, 14 Mass. 286; R R. Co. V. Gay, 5 111. App. 393 ; Kirk State v. Cole, 2 McCord, 117. V. Armstrong, Hempst. 283 : Coffman '^ Bladen v. Pliiladelphia, 60 Pa St V, Daveny, 2 How. (Miss.) 854 ; Max- 464. well V. Wessels, 7 Wis. 103 ; Brown v. « Potter's Dwarris, 224 ; Corwin v. Ry. Co. 83 Mo. 478 ; McLaughlin v, Merritt, 3 Barb. 341 ; Harrington v. State, 66 Ind. 193 ; Flory v. Wilson, 83 People, 6 id. 607 ; People v. Common id. 391 ; Dawson's Appeal. 15 Pa. St Council of Brooklyn, 22 iil 404 • 480 ; Cheriy Overseers v. Marion Over- Bloom v. Burdick. 1 HiU, 130 ; People seers,96 id. 528 ; Road in Salem Town- v, Schemerhorn, 19 Bai-b. 540 ; Com- 5S8 DIRECTORY AND MANDATORY STATUTES. § 455. 'What the law requires for the protection of the tax- payer, for example, is mandatory, and cannot he regarded as du'ectory merely.^ " One rule is very plain and well settled," said Shaw, C. J., " that all those measures which are intended for the security of the citizen, for securing equality of taxa- tion, and to enable every one to know with reasonable cer- tainty for what real and personal pro])erty he is taxed, are conditions precedent ; and if they are not observed he is not legally taxed, and he ma}^ resist it in any of the modes pro- vided by law for contesting the validity of the tax. But many regulations are made by statute, designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, the com- pliance or non-compliance with which does in no respect affect the rights of tax-paying citizens. These may be considered as director}^ ; oiRcers may be liable to animadversion, perhaps, to punishment, for not observing them, but yet their observance is not a condition precedent to the validity of the tax." ^ An order of court requiring fort}^ clear days in a summons is man- datory." ^ So is the requirement that there be inserted in veni- res the command that the officer summon twent^^-f our persons, ''freeholders of his county or corporation residing remote from the place where the offense is charged to have been com- mitted." •* So also, that sales of real estate under execution shall take place at the court-house of the county.^ When the power to affect property is conferred by statute upon those who have no personal interest in it, such power can be exer- cised only in the manner and under the circumstances speci- fied. The requirement can never be dispensed with as being directory where the act, or omission of it, can by possibility work injury, however slight, to any one affected by it.^ Pro- mon Council of Albany, Ex parte, 3 137 ; Hubbell v. Weldon, Lalor, 139 ; Cow. 358 ; Barnard v. Viele, 21 Wend. Sibley v. Smith, 2 Mich. 486. 89 ; Brisbane v. Peabody, 3 How. Pr. i Clark v. Crane, 5 Midi. 151. 109 ; Rogers v. Murray, 3 Paige, 390 ; 2 Torrey v. MiUbuiy, 21 Pick. 67 ; Atkms V. Kinnan, 20 Wend. 249 ; Sibley v. Smith, 2 Midi. 486. Sherwood v.Reade ,7 Hill. 431; Sharp 3 Barker v. Palmer, L. R. 8 Q, B. V. Spcir, 4 Hill, 76 ; Morse v. Wilham- Div. 9. son, 35 Barb. 473 ; Sherman v. Dodge, •* Whitehead v. Commonwealth, 19 6 John. Ch. 107 ; Dennmg v. Smith, Gratt. 640. 3 id. 331 ; Cohoes Co. v. Goss, 13 Barb. ^ Koch v. Bridges, 45 Miss. 247. t'Id. DIRECTORY AND MANDATORY STATUTES. 589 visions are directory where they relate to some immaterial matter not of the essence of the thing to be done; Avhere a compliance is matter of convenience rather than substance; "where the departure from the statute avlQ cause no injury to any person affected by it,' § 456. The special powers given to corporations, to courts or officers must be exercised with strict, substantial adherence to all directions of the statute.- When a statute which sri'ants power or authority has expressly fixed, limited or declared the time, with reference to essential antecedent acts, when sucli authority shall begin to be exercised all other time is excluded ; expj'essio unius est exdusio alteriiis? It was held under an act relative to the organization of corporations, which pro- vided that " when the certificate has been filed as aforesaid the persons who shall have signed and acknowledged such certificate and their successors shall be a body politic and cor- porate," that until this certificate had been so filed there was no provision making such persons a corporation ; therefore the filing of it was a condition precedent." ^ A body corporate, created for a special purpose, with limited powers, being a creature of the statute, must conform m its action to the law of its creation, and acts done contrary to such reguLv tions are simply void.^ In statutory proceedings the statute must be substantially complied with ; every act required which is jurisdictional, or of the essence of the proceeding, or pre- • People V. Schemerhorn, 19 Barb. 81 Pa. St. 349 ; Chollar Mining Co. v. 558. See Koch V. Bridges, 45 Miss. Wilson, 66 CaL 374 ; Seymour v. Judd, 247 ; Hurford v. Omaha, 4 Neb. 336 ; 2 N. Y. 464 ; Childs v. Smith, 55 Barb. Best V. Gholson, 89 EL 465 ; People v. 45. Cook, 14 Barb. 290 ; 8 N. Y. 67 ; ^ Childs v. Smith, 55 Barb. 45. Marsh v. Chesnut, 14 IlL 228 ; Clark < \^ ; Bigelow v. Gregory, 73 IlL V. Crane, 5 Midi. 151 ; State t. Mc- 197. See Vanneman v. Young (N. J.), Lean, 9 "Wis. 292 ; Norwegian Street, 20 Atl. Rep. 53 ; Cross v, Pinckney- 81 Pa. St. 349 ; McKune v. Weller, 11 viUe MiU Co. 17 111. 54. Cal. 49. 5 Cope v. Tliames Haven, etc. Co. 3 2 Cope V. Thames Haven, etc. Co. 3 Ex. 841 ; Frend v. Dennett, 4 C. B. Ex. 841 ; Diggle v. London, etc. R R (N. S.) 576 ; Gordon v. Winchester Co. 5 id. 442; Des Moines v. Gil- Building Asso. 12 Bush, 110; Beckett Christ, 67 Iowa, 210 ; Pittsburg v. v. Uniontown Building Asso. 88 Pa. Walter, 69 Pa St. 365 ; Pensacola V. St 211; Working Men's Building Reese, 20 Ma. 437 ; Norwegian Street, Asso. v. Coleman, 89 id. 428. 590 DIRECTORY AND MANDATORY STATUTES. scribed for the benefit of the party to be affected thereby, must be done ; the requirement is mandatory.^ Of this nature is the certificate of a justice of the peace of the town where the parties reside, as to the death of an infant's father, re- quired by a statute relative to the binding of infants as ap- prentices to be given, before the consent of the mother can be deemed sufficient, and tlie indorsement of such certificate on the indenture itself.- Every material requirement must be strictl}" observed in carrying out the laws for condemning pri- vate property to public uses, and the proceedings must show affirmatively on their face a substantial adherence to the course prescribed by the statute.* Land cannot be so taken without compliance with the preliminary requirement to endeavor to agree with the owner upon the compensation.^ § 457. Where work required by a municipal charter to be let by contract on competitive bidding has been done by day's work there is a fatal departure from the statute.^ An act requiring a preliminary notice for the benefit of persons to be affected, or the information of the public, when a statutory power is to be exercised, is mandatory.^ A provision prohib- iting the passing or adopting of certain resolutions by the common council until two days after the publication thereof in a prescribed manner, held mandatory ; that compliance was essential — jurisdictional.'' So one requiring a comptroller to publish notices stating when the time for redemption of land iTJuited States v. Wyngall, 5 Hill, SKroop v. Forman, 31 Mich. 144; 16 ; Olcott V. Frazier, id. 503 ; Sharp Bennett v. Drain Commissioner, 56 V. Speir, 4 HUl, 76 ; Sharp v. John- id. 634. son, id. 92 ; In re Petition of Ford, 6 * People v. Hillsdale, etc. T. Co. 2 Lans. 92 ; Weed v. Lyon, Walk. Ch. John. 190. 77; Galpin v. Abbott, 6 Mich. 17; 5 Matter of Manhattan R. R Co. 102 In re Selby, 6 Mich. 193 ; O'Donnell N. Y. 301 ; In re Emigrant Industi-ial T. Mclntyre, 37 Hun, 615; Thurston Savings Bank, 75 id. 388; In re Mer- V. Prentiss, 1 MicK 193 ; Duanesburgh riam, 84 id. 596, 609 ; In re Wed, 83 id. V. Jenkins, 46 Barb. 294 ; Wheeler v. 543 ; In re Lange, 85 id. 307. Mills, 40 id. 644 ; Whitney v. Thomas, « Lane v. Burnap, 39 Mich 736 ; 23 N. Y. 281 ; Hascall v. Madison Barnett v. Scully, 56 id. 374 ; Bennett University, 8 Barb. 174 ; In re Peti- v. Drain Coram'r, id. 634 ; Welker v. tion of Folsom, 2 T. & C. 55. Potter. 18 Ohio St. 85. - People V. Gates, 57 Barb. 291 ; ^ In re the Petition of Douglass, 46 People V. Adu-ondack Co. id. 656. N. Y. 42. DIRECTORY AND MANDATORY STATUTES. 591 sold for taxes would expire. It is intended for the protection of the land-owner, and unless complied with no title will pass by the deed.^ § 458. Statutes which eoufer new right, privilege, etc.— Where a statute confers a new right, privilege or inimnnity the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is man- datory. An instance of such legislation is that relating to married women, by which they may acquire and dispose of property, make contracts in regard to it, and assert other rights. Such statutes, providing the form and mode of exer- cising the rights thus given, are mandatory ; they must be fol- lowed substantially to give validity to their acts.^ The same is true in regard to copyrights.' Where a statute provided for sealed bids to be received until a certain day, when they are required to be opened, all bids put in after that day are excluded.^ § 459. Where an existing right or privilege is subjected to regulation by a statute in negative words, or those which im- port that, it is only to be exercised in a prescribed manner, the mode so prescribed is imperative.'^ A provision of the Wiscon- sin registry law was that " no vote shall be received at any annual election in this state, unless " certain previous condi- tions were complied with ; it was held to be imperative ; that all votes received in violation of the regulation should be rejected in an action to try the title to an office.'^ Where the language of iWestbrook v. Willey, 47 N. Y. v. Wentworth,82icl.280; Innisv.Tem- 457 ; Cruger v. Dougherty, 43 id 107 ; pletou, 95 id. 2C2 ; ^MiUer v. Ruble, 107 Doughty V. Hope, 3 Denio, 594; 1 id. 395; Montoursville Overseers v. N. Y. 79. Fairfield Overseers, 112 id. 99. 2Bartlettv.O'Donoghue,72Mo.563; 3"\Vlieaton v. Peters, 8 Pet 591; Hoskinsonv. Adkins, 77 id. 537; Bag- JoUie v. Jaques, 1 Blatchf. 618; Ba- ley V. Embersou, 79 id, 139 ; Beckman ker v. Taylor, 2 id. 82 ; Newton v. V. Stanley, 8 Nev. 257 ; Shumaker v, Cowie, 4 Bing. 234 ; Avanzo v. ]Mudie, Johnson, 35 Ind. 33 ; Mattox v. Hight- 10 Ex. 203 ; Brooks v. Cock, 3 Ad. & shue, 39 id 95 ; Galium v. Petigrew, E. 141 ; Henderson v. Maxwell, L. R, 10 Heisk. 394 ; Leggate v. Clark, 111 5 Ch. Div. 892 ; Matliieson v. HaiTod, Mass. 308 ; Armsti-ong v. Ross, 20 N. L. R. 7 Eq. 270. J. Eq. 109 ; Ti-imnier v. Heagy, 16 Pa. ^ Webster v. French, 12 111. 302, St. 484; Gliddeu x. Strupler, 52 id 5 Stay ton v. Hulings, 7 Ind 144; 400; Dimham v. Wright, 53 id. 107; Union Bank v. Laird, 2 Wheat 390. Graham v. Long, 65 Pa, St 383 ; Miller ^ state v. Hikuimtel, 21 Wis. 506 ; 592 DIRECTORY AND MANDATORY STATUTES. a statute is that no debt or contract thereafter incurred or made by a municipal corporation shall be binding . . . unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made, it is mandatory, and the power to contract is limited accordingly.^ The provisions of the statute of frauds are another notable instance of manda- tory regulations. Where the whole aim and object of the leg- islature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to .do it in any other manner, no doubt can be entertained that the command is imperative.- The enactment, for instance, of the metropohtan building act,^ that the walls of buildings shall be constructed of brick, stone or other incombustible material, though containing no prohibitory words, obviously prohibits by implication and makes illegal their construction with any other.* A statute provided that an assignment for the benefit of creditors shall be duly acknowledged by the assignor, and the certificate thereof duly indorsed, before delivery to the assignee ; that the assignor at the date of the assignment, or within twenty days thereafter, make and deliver to the judge of the county of his residence a schedule, verified by him, as prescribed by the act, containing a full and true account of all his creditors and their residences, as far as known ; the sum owing to each creditor, and the nature of the debt and how it arose ; the consideration of the debt and the place where it arose; a statement of any security for any debt, etc. This statute also required a bond from the assignee for faithful per- formance of the trust. These provisions were held mandatory.^ State V. Stumpf, 23 Wis. 630 ; In re Grover, J., deliveriBg the opinion of Election of McDonough, 105 Pa. St. the court, said : " In construing these 488. See Dale v. Irwin, 78 111. 170, two latter sections, the supreme court and Clark v. Robinson, 88 ILL 498, . . . applied the rule adopted in where it was held that the negative the construction of statutes, prescrib- provision or prohibition was direct- ing the time for the performance of ory. oflhdal acts by public officers, in the 1 Bladen v. Pliiladelphia, 60 Pa, St. performance of which the pubhc 464. have an interest. In construing these 2 EndL on St. t^ 481. latter statutes it is weU settled tliat, 3 18 and 19 Vict. ch. 122, § 12. where the act prescribes a time for * Id. ; Stevens v. Gourley, 7 C. B. the performance of the act, without (N. S.) 99. anytlung prohibiting the doing it 5 Juliand v. Rathbone, 39 N. Y. 369. after the time so fixed, the act shall DIRECTORY AND MANDATORY STATUTES. 593 § 460. Statutes whicli are permissive in form. — Where statutes are couched in words of i)er]iiission, or declare that it be valid if performed after the time prescribed. The rea.son for tliis con- sti'uction is that the pubhc, or some portion thereof, have an interest in the performance of the act, and, to prevent injury from the laches of the officer, the rule has been adopted. That class of cases holding that, where the common law confers a right or gives a remedy, and a statute is enacted conferring a new right or giving a new remedy, it wiU be so con- strued as not to take away the com- mon-law right or remedy, vmless it contains negative words showing that sucli was the legislative iatent, was somewhat relied on ; neither class is analogous to the present statute. The acts to be performed are by private persons, not pubhc officers. The act creates no new right or remedy, but is designed to regulate an existing right merely. In construing such statutes the common-law rule, as laid down by the elementary writers, is to consider, first, what mischief, if any, resulted from the exercise of the com- mon-law right ; second, what is the remedy provided by the statute for such mischief; tliird, to give the statute such construction, if practi- cable, as win suppress the miscliief and make the remedy efficient. Ap- plying the lode to the present statute the mischief to be remedied is ob- vious: to prevent pretended assign- ments being made obstacles in the way of creditors. The first section pro- vides that it shall be acknowledged, and the proof thereof certified before dehveiy. Tliis court has hold (Ilard- mann v, Bowen, 39 N. Y. 196) that an assignment dehvered without such acknowledgment and certificate is void. This does not necessarily de- termine the effect of non-compUance 38 with the requirements of the two following sections, as the judgment may be ujjheld by the provision that the acknowledgment, etc., shall be made before the dehveiy of tlie as- signment But in the absence of tliis, I think the same constniction should be given to the clause, which then would read, every convej-ance made by a debtor in trust for his creditors shall be acknowledged. Experience has shown that debtors frequently, with a view to defraud their credit- ors, and make compositions with them advantageous to themselves, made general assignments of all their property in trust for creditors, giving no information of the character, sit- uation or value of the property as- signed, or the amount of the debts, residence of creditors, whether the debts were secured, and giving no information to a creditor to enable him to ascertain anytliing in relation to the value of the property assigned, or the amount and bona fides of the debts entitled to share in the pro- ceeds of the property." After point- ing out how comphance with the provisions of the statute in question would remedy these evUs, the learned judge continued : " but, in case of failure so to complj^ the assignment must be adjudged void. This con- sti'uction Avill render these sections efficient in suppressing fraud, while that adopted by the supreme court [holding these provisions directoiy] rendei-s them almost nugatory and useless." " To make," says Cassoday, J., "a voluntary assignment for the benefit of, or in trust for, crechtons, vaUd as against the creditors of the person making the same, it is essen- tial that all the rcquii-ements of the statutes should be substantially com- 594 DIKECTOEY AND MANDATORY STATUTES. shall be lawful to do certain things, or provide that they may be done, their literal signification is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do those things or refrain, at their election. Where it was provided that the capital stock of a bank might consist of a certain sum, the provision was held discretionary and not imperative. 1 .Story, J., said: "The argument of de- fendants is, that ' may ' in this section means ' must,' and reh- ance is placed upon a well-known rule in the construction of public statutes where the word ' may ' is often construed as imperative. Without question such a construction is proper in all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject further than that the exposition ought to be adopted in this as in other cases which carries into effect the true intent and object of the legislature in the enactment. The ordinary meaning of the language must be presumed to be intended,. unless it would manifestly defeat the object of the provisions." The words in a statute, " it shall be lawful," of themselves, merely make that legal and possible which there would other- wise be no right or authority to do. Their natural meaning is permissive and enabling only. But there may be circum- stances which may couple the power with a duty to exercise it. It lies upon those who call for the exercise of the power to show that there is an obligation to comply.^ The lord chancellor said : " The words ' it shall be lawful ' confer a fac- ulty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the con- ditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be ex- ercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to ex- plied with." Shakman v. Sclilueter, i Mnor v. Mechanics' Bank, 1 Pet 46 N. W. Rep. 542, 77 Wis. , citing 46. Fuhrman v. Jones, 68 Wis. 497 ; Clark 2 Julius v. Lord Bishop of Oxford, V. Lamoreux, 70 id. 508 ; Hanson v. L. R. 5 App. Cas. 214. Dunn, 76 id. 455. DIRECTOKY AND MANDATOKY STATUTES. 595 ercise that power when called on to do so. Whether the power is one coupled with a duty such as I have described is a question wliich according to our system of law, speaking generally, it falls to the court of queen's bench to decide, on an application for a mandamus. And the words ' it shall be lawful,' being according to their natural meaning permissive and enabling only, it lies on those, as i.t seems to me, who con- tend that an obligation exists to exercise this power, to show in the circumstances of the case something' which, accordinji" to the principles I have mentioned, creates this obligation." ' § 401. On an indictment against church wardens for net making a rate to reimburse the constables, the statute ap- pears to have used the words " may make a rate," but it was naturally held that the constables were entitled to be reim- bursed, and that the church wardens, being made the deposi- taries of a power for that purpose, could not refuse to exercise it.^ Kex V. Havering Atte Bower ^ was the case of a mandamus in reference to the power granted by royal charter to the steward and suitors of a manor, giving them authority to hear and determine civil suits. It was held that this was in effect the establishment of a court for the public benefit, and that the steward and suitors of the manor were bound ta hold the court. In Macdougall v. Paterson ^ the question was- whether the plaintiff in a county court action who had recov- ered his debt should not have his costs taxed and allowed in a particular way. The statute had provided there, that under the circumstances in which the plaintiff stood, the court might, by rule or order, direct that he might recover his costs ; and Jervis, C. J., delivering the opinion of the court, stated that the conclusion to be drawn from the cases was that, when a statute confers an authority to do a judicial act in a certain case,-it is imperative on those so authorized to exercise the au- thority, when the case arises, and its exercise is duly applied for by a party interested, and having the right (that is, having by statute the right) to make the application. The case of Mor- risse v. Royal British Bank * was a case of the same kind, and de- cided that, under the words " it shall be lawful for the court," 1 Backwell's Case, 1 Vera. 152. ■• 11 C. B. 755. 2 Rex V. Barlow, 3 Salk. 609. » 1 C. B. (N. S.) 67. 3 5 B. & Aid. 691. 596 DIRECTORY AND MANDATORY STATUTES. a creditor who had obtained judgment against a joint-stock banking company, and bad failed to collect bis debt against it, ^Yas entitled as of right to an execution against a share- holder on complying with the conditions imposed by the statute. In Kegina v. Tithe Commissioners ' a power was given to the tithe commissioners in dealing with certain land- owners to confirm agreements for commutations of tithe, under certain special circumstances and conditions. The court held, upon the construction of the whole statute, that if a case occurred, coming within the terms of the statute, the commissioners were bound to confirm the agreement there mentioned. In delivering the opinion of the court Mr. Jus- tice Coleridge observed : " The words undoubtedly are only empowering, but it has been so often decided as to have be- come an axiom, that in public statutes words only director}^, permissory or enabling may have a compulsory force, where the thing to be done is for the public benefit or in advance- ment of pubhc justice." § 462. There is much conflict of authority on this question in this country as well as in England, owing probably in great part to diverse circumstances distinguishing the cases and indicating the intention with which the permissive words were employed. It is believed that the conclusion reached in the cases men- tioned in the preceding section is supported by a preponderating weight of reason and authority. In all cases where the words *' it shall be lawful " or the word " may " or any equivalent per- missive expression is employed with reference to a court of justice, and independently of any precise conditions expressed or implied, they give the tribunal jurisdiction, leaving it to exercise its discretion according to the requirements of jus- tice in each particular case.^ Where, with reference to con- ditions expressed or implied, or independent of any special circumstances, it is manifestly intended that the power should be exercised for the promotion of justice or the pubhc good, such permissive words are imperative in the former case upon 1 14 Q. B. 459. Q. B. Div. 535 ; Julius v. Bishop {»f 2 Re Bridgman, 1 Drew. & S. at p. Oxford, L. R 5 App. Cas. 314 ; Beach 169 ; Rex v. Justices of Norfolk, 4 B. v. Reynolds, 64 Barb. 506 ; Jarman, & Ad. 238 ; Castelll v. Groom, 18 Q. B. Ex parte, L. R 4 Cli. D. at p. 838. 490 ; Reg. v. Bishop of Oxford, L. R 4 DIKECTORY AND MANDATORY STATUTES. 597^ the requisite conditions being shown, and in the other upon apphcation by those entitled to invoke the exercise of the power, such circumstances as were needful having been con- sidered by the legislature.^ Permissive words in respect to courts or officers are imperative in those cases in which the public or individuals have a right that the power so conferred be exercised.'- Such words, when used in a statute, will be con- strued as mandatory for the purpose of sustaining and en- forcing rights, but not for the purpose of creating a right or determining its character ; they are peremptory when used to clothe a public officer with power to do an act which ought to be done for the sake of justice, or which concerns the pub- lic interest or the rights of third persons.^ "Where a statute confers poA\'er upon a corporation, to be exercised for the pub- lic good, the exercise of the power is not merely discretionary, but imperative, and the words " power and authority " in such case mean duty and obhgation.* The words " authorized and empowered " are imperative in respect to a board of super- visors where parties improperly assessed are entitled, under conditions stated in the statute, to have taxes refunded by the act and decision of such board.^ The " power to levy all need- ful taxes and to pay and discharge all claims on or against th& county which have been expressly or imphedly authorized by law " conveys authority and imposes the duty of providing for any local object sanctioned by the legislature.® An act provided that a city council might, " if it believe the public good and the best interests of the city requu'ed it," levy 1 Girdlestone v. Allan, 1 B. & C. 61 ; ~ Tarver v. Commissioners' Court, Cook V. Tower, 1 Taunt. 372 ; Barber 17 Ala. 527 ; IMitchell v. Duncan, 7 Fla. V. Gamson, 4 B. & Aid. 281; Crake 13; Reg. t. Adamson, L. R. 1 Q. B. V. Powell, 2 E. & B. 2 10 ; Macdougall v. DW. 201. Paterson, 11 C. B. 755 ; Asplin v. Black- 3 Banks, Ex parte, 28 Ala. 28 : Rex man, 7 Ex. 386 ; Reg. v. Williams, v. Barlow, 2 Salk. 609 ; Johnston v. 2 C. & K. 1001 ; Bower v. Hope Life Pate, 95 N. C. 68. Ins. Co. IIH. L. Cas. 389, 402; Marson ^ Mayor, etc. v. Mamott. 9 Md. V. Lund, 13 Q. B. 664 ; Morisse v. 160 ; Com'rs of Pub. Schools v. Co. Royal B. Bank, 1 C. B. (N. S.) 67 ; Com'rs, 20 id. 449 ; Barnes v. Thomp- Reg. r Boteler, 4 B. & S. 989 ; Reg. v. son, 2 Swan, 317. Mayor of Har-nnch, 8 Ad. & E. 919 ; 5 People v. Boai'd of Supervisors, 56 Roles V. Rosewell, 5 T. R. 538 ; Hardy Barb. 452. V. Bern, id. 636 ; Tolmie v. Dean, 1 ^ Com'rs of Pub. Schools v. Ca Wash. T'y, 47. Com'rs, siipra. "598 DIKECTOEY AND MANDA.TOKY STATUTES, a tax to pay its funded debt ; and it was held imperative ; that a mandamus lay at the instance of a creditor to compel such a tax to be levied. The court said : " The discretion thus given cannot, consistently with the rules of law, be resolved in the negative. The rights of the creditor and the ends of justice demand that it should be exercised in favor of affirmative ac- tion," ^ In another case the same court said : " The conclusion to be deduced from the authorities is, that where power is given to public officers in the language of the act before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permis- sive in form, is in effect peremptory. What they are empow- ered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere dis- cretion, but to impose a positive and absolute duty." - A stat- ute provided that the certificate of tax sale Tiiay be substan- tially in the following form. The word may in this provision was held to be equivalent to shaU.^ The use of both may and shall in the same provision may afford a very forcible indica- tion of the intention. Thus, the use of words that are plainly compulsory in one aspect, and the use of others which liter- ally are permissive in another, necessarily leads to an infer- ence that the primary meaning is to be retained,* It is pro- vided by the 18 and 19 Yict,, chapter 128, that " every vacancy in the burial board shall be filled up by the vestry within one month, and in case any such vestry shall neglect to fill up any such vacancy, the vacancy may be fiUed up by the burial board at any meeting thereof," It was held that the word " may " an this provision was not imperative.^ By a statute it was provided that in a certain event a bridge should " become a 1 Galena v. Amy, 5 WaE 705, 709. ler v. Houlilian, 32 id, 486; GilfiUan 2 Supervisors v. United States, 4 v. Hobart, 35 id. 185. WaU. at pp. 446, 447 ; Hogan v. Dev- 4 wilb. on St 204 lin, 2 Daly, 184. 5 id. ; Reg, v. Overseers of South 3 Clark V. Schatz, 24 Minn. 300 ; Kel- Weald, 5 B. & S. 391. DIEECTOKY AND MANDATOEY STATUTES. 599 public bridge and may be maintained by the county." " This," say the court, " is a direction to a public body (not an option to a private person or corporation), in the execution whereof the inhabitants of that county have a pecuniary interest. In fact the public generally may be said to have such an interest. "Where persons or the public have an interest in having the act done by a public body, ' may ' in such a statute means ' must.' ' This rule must prevail where there is nothing that Avould evince a contrary intention in the statute or in the sur- rounding facts." ^ "Whether merely permissive or imperative depends on the intention as disclosed by the nature of the act in connection with which the word is employed and the con- text.3 1 Newburgh Turn. Co. v. Miller, 5 104 ; Spangler v. Jacoby, 14 IlL 297 ; John. Cli. 113; Malcolm v. Rogers, 5 Supervisors v. People, 25 IlL 181. Cow. 188. 3 Lewis v. State, 3 Head, 127 ; 1 2 Phelps V. Hawley, 52 N. Y. 23, 27 ; Kent's Com. 463 ; IMinor v. Mechan- ^teckert v. East Saginaw, 23 Midi, ics' Bank, 1 Pet 46, 64 CHAPTER XYII. RETROACTIVE STATUTES. § 463. Generally regarded with dis- favor. 465. Ex post facto laws. 467. Reti'ospective laws relating to criminal procedure. 470. Change of punishment by sub- sequent legislation. § 471. Laws impairing obligation of conti-acts. 476. Change of remedy. 480. Vested rights inviolable. 483. Curative statutes. § 463. (xenerally regarded with disfayor. — Eetrospective statutes relate to past acts and transactions. Retroactive statutes are those which operate on such acts and transactions and change their legal character or effect. Congress, as well as the states, are expressly forbidden by the federal constitu- tion to pass any ex post facto law,^ and the states are forbidden to pass any law impairing the obligation of contracts.^ As retrospective laws are generally unjust and in many cases oppressive, they are not looked upon with favor. Statutes not remedial will therefore not be construed to operate retro- spectively, even when they are not obnoxious to any consti- tutional objection, unless the intent that they shall do so is plainly expressed or made to appear.^ Where the intention 1 Ai-t I, sees. 9 and 10. 2 Id. 3 HiU V. Nye, 17 Hun, 467 ; Dash v. Van Kleeck, 7 Johns. 477 ; McMannis V. Butler, 49 Barb. 176 ; Railroad v. Murrell, 11 Heisk. 715; Goshen v. Stontagton, 4 Conn. 220; Life Ins. Co. V. Ray, 50 Tex. 512 ; Fviltz v. Fox, 9 B. Mon. 499; Taylor v. Rountree, 15 Lea, 725 ; Buckley, Ex parte, 53 Ala. 42 ; Barnes v. Mayor, etc. 19 id. 707; Bond v. Munro, 28 Ga. 597; State V. Bradford, 36 id. 422; AU- husen v. Brooking, L. R. 26 Ch. Div. 564; Evans v. Williams, 2 Drew. & Sm. 324 ; Marsh v. Higgins, 9 C. B. 551 ; Waugh v. Mddleton, 8 Ex. 352 ; Couch V. McKee, 6 Ark. 484; Gra- ham, Ex parte, 13 Rich. 277 ; Jolmson V. Johnson, 52 Md 668 ; Appeal Tax Court V. Western, etc. R. R. Co. 50 id. 274 ; Blanchard v. Sprague, 3 Sumn. 279; Duval v. Malone, 14 Gratt. 28; Succession of Deyraud, 9 Rob. (La.) 357; Nicholson v. Thompson, 5 id. 367; Gnidiy v. Rees, 7 La 278; Gil- more V. Shuter, 2 Lev. 227 ; Warder V. Arell, 2 Wash. (Va.) 282 ; WaUace V. Tahaf erro, 2 Call, 447 ; EUiofs Ex'r V. Lyell, 3 id. 268 ; Green v. Anderson, 39 Miss. 359 ; Commonwealth v. Hewitt, 2 H. & IVL 181 ; Ryan v. Com- KETEOACnVE STATUTES. 601 as to being retrospective is doubtful the statute will be con- strued as prospective only; but where the language clearly indicates that it was intended to have a retrospective effect, it will be so applied.^ § 464. A statute should not receive such construction as to make it impair existing rights, create new obligations, impose new duties in respect of past transactions, unless such plainly appear to be the intention of the legislature.^ In the ab- sence of such plain expression of design, it should be con- strued as prospective only, although its words are broad enough in their literal extent to comprehend existing cases.' A gen- eral provision that the statute of limitations shall run against the state will not be construed retrospectively.^ A statute of limitations which does not purport to include existing cases will be applied only to those which subsequently arise.' Al- though there is no vested right in an office which may not be disturbed by legislative enactment, yet to take away the right thereto the terms of the statute in which the purpose is stated must be clear.^ A statute provided that every will de- vising or purporting to devise all the testator's real estate shall be construed to pass all the real estate which he was entitled to devise at the time of his death. It w^as held to be prospective merely and did not operate on wills previously executed, though the testator died after its enactment. Thus, the power of sale in such a will did not embrace lands acquired after the will was executed. It was enacted expressly in the same statute that it should not affect the construction of any will previ- ously made.' A new constitutional provision as to the ad- monwealth, 80 Va. 385; State v. John. 477 ; Wood v, Oakley, 11 Paige, Judge Bermudez, 12 La- 353 ; Mil- 400 ; Johnson v, Burrell, 2 HlU, 238 ; ler V. Reynolds, 5 iVTa'-cia (N. S.), 665 ; Butler v. Palmer, 1 Hill, 324 ; Snyder Orr V. Rhine, 45 Tex. 345 ; Crigler v. v. Snyder, 3 Barb. 621 ; Hackley v. Alexander, 33 Gruu. '374; State v. Sprague, 10 Wend. 114; McMannis Norwood, 12 IVtd. 195; Quilter v. Ma- v. Butler, 49 Barb. 176; In re Appli- pleson, L. R. 9. Q B. Div. 672. cation of Prot. Ep. P. School, 58 Baib. 1 State V. Norwood, 12 Md. 195. 161. 2 Green v. Anderson, 39 JMiss. 359. ■» State v. Pmckney, 22 S. C. 484 3 Crigler v. Alexander, 33 Gratt * Pitman v. Bump, 5 Oregon, 17. 674 ; Campbell, etc. Co. v. Nonpareil, ^ People v. Green, 58 N. Y. 295. etc. Co. 75 Va, 291 ; Moon v. Burden ^ Green v. Dikeman, 18 Barb. 535 ;. 2 Exch. 22 ; Dash v. Van Kleeck, 7 Parker v. Bogardus, 5 N. Y. 309. ■602 KETKOACTIVE STATUTES. vanced age which should prevent the incumbents of certain judicial offices from retaining them was held prospective; it did not apply to persons in office at the time of its tak- ino- effect. An officer was elected under the old constitution by the provisions of which he was eligible ; a new constitu- tional provision took effect on the same day, which was the first day of the official term ; he was held in office so as to be M'ithin the exemption. It was held also that it was not in- tended by the new judiciary article to overthrow or disturb what had been lawfully done under and in pursuance of the constitution and laws previously existing.' A statute pro- vided for review by a court of assessments on complaints, with power to require the amount erroneously assessed to be deducted. After an application had been made and proof taken, the law was changed. It was held that the new act did not apply to pending cases.^ The repeal of a statute giving jurisdiction takes away the right to proceed in pending cases.^ Section Yll of the Revised Statutes of the United States, which provides that the jurisdic- tion of the federal courts shall be exclusive of the courts of the several states as to all matters and proceedings in bank- ruptcy, was held not to affect a creditor's bill filed in a state court before the Eevised Statutes were adopted.'' An act which extended for four years the time in which a magistrate's execution may be levied Avithout renewal was held to be pro- spective and not to embrace executions which were issued be- fore it was passed.-^ A statute which gave the probate court the power to entertain biUs of review of its own decrees and judgments was held to have no retrospective operation so as 1 People .V. Gardner, 59 Barb. 198. Hampton v. Commonwealth, 19 id. 2 In re Petition of Remsen, 59 Barb. 329 ; Uwchlan T. Eoad, 30 id. 156 ; Illi- 317 ; In re Petition of Eager, 58 id. nois, etc. Canal v. Chicago, 14 111. 334 ; 557 ; In re Petition of Treacy, 59 id. Macnawhoc Plantation v. Thompson, 525. 36 Me. 365; Lamb v. Schottler, 54 Cat ■' Butler V. Palmer, 1 HUl, 324 ; As- 319 ; Smith v. Dist. Com-t, 4 Colo. 235 ; sessor v. Osbornes, 9 Wall. 567 ; Mc- Hunt v. Jennings, 5 Blackf. 195. Cardie, Ex parte, 7 id. 506 ; Balti- ■* Davis v. Lumpkin, 57 Miss. 506. more, etc. R. R. Co. v. Grant, 98 U. S. See Farris v. Houston, 78 Ala. 250; 398;SouthCarolinav. Gaillard,101id. Gholston v. Gholston, 54 Ga. 285; 433 ; North Canal St. Road, 10 Watts, McCool v. Smith, 1 Black, 459. 351 ; Fenelon's Petition, 7 Pa. St. 173 ; ^ Briggs v. Cottrell, 4 Strob. 86. KETROACTIVE STATUTES. COti to confer upon it jurisdiction of a bill to review a decree rendered prior to the passage of the act. A statute respecting the title of personal property, requiring tlie deeds thereof to be recorded in the county where the property is, was held not to apply to conveyances of such property made prior to the pas- sage of the act.' The father of an illegitimate child, begotten under a former act, but born under a new act, nuiy be com- pelled to contribute towards its support by a prosecution under the latter.^ It results from this conservatism that retrospect- ive laws will be strictly construed.* § 4:65. Ex post facto laws. — An authoritative exposition of ex post facto laws was given in an early case by the supreme court of the United States.* Chase, J., said : " The prohibition in the letter is not to pass any law concerning and after the fact, but the plain and obvious meaning and intention of the prohibition is this : That the legislatures of the several states shall not pass laws after a fact done by a subject or citizen which shall have relation to such fact and shall punish him for havin"- done it. ... I do not think it was inserted to secure the citizen in his private rights of either property or contracts. . . . I will state what laws I consider ex jpost facto laws within the words and the intent of the prohibition : 1st. Every law that makes an action done before the passing of the law, and whicli was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Ever^^ law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these and similar laws are manifestly unjust and oppres- sive. In my opinion the true distinction is between ex post facto laws and retrospective laws. Every ex ijost facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law; the former only are prohibited. 1 Palmer v. Cross, 1 Sni. & M. 48. Moon v. Burden. 2 Ex. 22 ; Edmonds 2 Willets V. Jeffries, 5 Kan. 470. v. Lawley. 6 M. & W. 285 ; McCowan 3 Hedger v. Rennaker, 3 Met. (Ky.) v. Davidson, 43 Ga, 480. 255 : Couch v. Jeffries, 4 Burr. 2460 ; * Calder v. BuU, 3 DalL 386, 390. 004 EETROACTIVE STATUTES. Every law that takes away or impairs rights vested, agree- ably' to existing laws, is retrospective, and is generally unjust and may be oppressive ; and it is a good general rule, that a law should have no retrospect ; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their com- mencement, as statutes of oblivion or of pardon. They are certainl}^ retrospective and literally, both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law ; but only those that create or aggravate the crime or increase the punishment, or change the rules of evi- dence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the statute of limita- tions, or to excuse acts which were unlawful, and before com- mitted, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." This construction of the constitutional prohibition has been repeatedly affirmed in later cases.^ It is settled that the term apj^lies only to criminal and penal cases, and was not intended to prevent retrospective legislation affecting civil rights of persons or property.^ § 466. Any law is an ex post facto law within the meaning of the constitution if passed after the commission of a crime charged against a defendant, which, in relation to that offense or its consequences, alters the situation of the party to his disadvantage.'' § 467. Procedure. — A statute relating to procedure is not for that reason beyond the reach of the constitutional inhibi- tion of ex post facto laws. So long as subsequent laws do not 1 Fletcher v. Peck, 6 Crancli, 138; McCowan v. Davidson, 43 Ga. 480; Wilson V. Ohio, etc. R'y Co. 64 111. Ex parte Garland, 4 Wall. 390 ; Ki-ing 542 ; Cummings v. Missouri, 4 WalL v. Missouri, 107 U. S. 221. 326. 3 Kring v. IMissoiu-i, 107 U. S. 221 ; •^ Watson V. Mercer, 8 Pet. 88 ; Wilson v. Ohio, etc. R'y Co. 64 El. Fletcher v. Peck, 6 Cranch, 87 ; Og- 542 ; United States v. HaJl, 2 Wash, den V. Saunders, 12 Wheat. 266 ; Sat- 366 ; Hopt v. Utah, 110 U. S. 574 ; Med- terlee v. Matthewson, 2 Pet 380 ; ley, In re, 134 id. 160. EETROACTIVE STATUTES. 605 liave tlie effect to deprive a defendant of any substantial riglit which he had touching his defense as the law stood when the offense was committed, nor alter his situation in rehition to the offense or its consequences to his disadvantage, they are not ex post facto within the meaning of that inhibition." A. ^7as convicted of murder in the first degree, in Missouri, and the judgment of condemnation was alhrmed by the supreme <;ourt of the state. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to imprisonment for twenty-five years, had on his own appeal been reversed. By the law of that state in force when the homicide was committed, this sentence was an acquittal of the crime of murder in the first degree ; but before his plea of guilty was entered the law was changed, so that by force of its provisions if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. It was held that as to this case the new law- Avas an ex post facto law withUi the meaning of section 10, article I, of the constitution of the United States, and that he could not be again tried for murder in the first degree. Mr. Justice Miller, delivering the opinion of the court, said: "The constitution of Missouri so changes the rule of evidence that what was con- clusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment ; for, whereas the law as it stood when the homicide was committed was that, when con- victed of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction." In another part of his opinion the learned justice said : " It cannot be sustained, without destroying the value of the con- stitutional provision, that a law, however it may invade or modify the rights of a party charged with crime, is not an ex post facto law, if it comes within either of these compre- hensive branches of the law designated as pleading, practice 1 Id. ; Cooley, C. L. 329, 330 ; Marion v. State, 20 Neb. 233 ; 29 N. W. Rep. 911. 606 EETROACTIVE STATUTES. and evidence. Can the law with regard to bail, to indict- ments, to grand juries, to the trial jury, all be changed to the disadvantage of the prisoner by state legislation after the of- fense was committed, and such legislation not held to be ex post y«c^^, because it relates to procedure?" . . . "And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? "We think it cannot." After reviewing the course of decision upon the associated clause prohibiting state legislation impairing the obligation of con- tracts, he continues : " Why is not the right to life and liberty as sacred as the right growing out of a contract? "Why should not the contio-uous and associated words in the constitution relating to retroactive laws on these two subjects be governed by the same rule of construction? And why should a law, equally injurious to rights of the party concerned, be under the same circumstances void in one case and not in the other?" The point is noticed that when the accused pleaded guilty of murder in the second degree the new constitution was in force, which altered the effect of conviction for the lesser de- gree of the offense by declaring that it should not be an acquit- tal of a higher degree. The answer was : " Whether it is ex post facto or not relates to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offense it is a^to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. But so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law i& sought to be appHed. No other thne or transaction but this has been in any adjudged case held to govern its ex post facto character." ^ This decision is of the greatest importance in its bearing upon the effect of retrospective laws relating to pro- cedure. Such laws must be tried by the test which is enun- ciated in that case. Any retroactive law, though relating to procedure, which deprives the prisoner of any substantial 1 Kring v. LOssouri, 107 U. S. 221. EETKOACTIVE STATUTES. COT right that he would have by the law as it stood at the time^ when the imputed offense was committed, or which as to that offense or its consequences alters his situation to his disadvan- tage, is an ex jyost facto law, within the constitutional prohi- bition,^ In two cases which originated in Missouri the supreme court of the United States held that a law which excluded a minister of the gospel from the exercise of his clerical function and a lawyer from practice in the courts unless each would take an oath that he had not engaged in or encouraged armed hostilities against the government of the United States was an ex post facto law because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of convic- tion,' A statute which provided that " every surveyor who shall have wilfully and knowingly violated the instructions of the surveyor-general in not marking out the boundaries of lands formerly granted, and which are within surveys by him or them made," should be criminally prosecuted, was held ex post facto? A statute which purports to authorize the prosecution, trial and punishment of a person for an offense previously committed, and as to which all prosecution, trial and punish- ment were, at the time of its passage, already barred accord- ing to the pre-existing statute of limitations, is unconstitutional and void.'' The repeal of a general statute of amnesty is ex post facto as to offenses previously committed.* § 468. A statute rendering ineligible as a voter or office- holder any person who teaches or practices polygamy or be- longs to an association encouraging such practice, or any other crime, and providing for a test oath, is not an ex po3t facto law.® A statute which enlarges the class of persons who may be competent as witnesses is not ex post facto in its appli- cation to offenses previously committed, for it does not attach criminality to any act previously done, and which was inno- •Cooley,C. L. 330. v. People, 26 N. Y. 167; Yeaton v. 2 Ciimmings v. Missouri, 4 Wall. United States, 5 Cr. 281 ; In re Mur- 277 ; Garland, Ex parte, id. 333. phy, 1 Woolw. 141. 3 State V. Solomons, 3 Hill (S. C), 96. 5 state v. Keith, 63 N. C. 140. 4 Moore v. State, 43 N. J. L. 203. ^Wooley v. Watkins (Idaho), 22^ See State v. Sneed, 25 Tex. (Supp.) 66 ; Pac. Rep. 102. State V. Keith, 63 N. C. 140 ; Hai-tixng (30S RETROACTIVE STATUTES. cent when done, nor aggravate past crimes, nor increase the punishment therefor ; nor does it alter the degree, or lessen the amount or measure of the proof made necessary to con- viction for such offenses. Such alterations relate to modes of procedure only Avhich the state may regulate at pleasure, and in which no one can be said to have a vested right. Mr. Jus- tice Harlan, in enunciating this doctrine as the opinion of the -court, said : " Alterations which do not increase the punish- ment, nor change the ingredients of the offense, or the ulti- mate facts necessary to estabhsh guilt, but — leaving untouched the nature of the crime and the amount or degree of proof essential to conviction — only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions, or trials there- after had, without reference to the date of the commission of the offense charged." '*■ It had been previously decided by the same court that " a law changing the place of trial from one county to another county in the same district, or to a different dis- trict from that in which the offense was committed or the in- dictment found, is not an ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment." 2 Statutes are not ex post facto which. ])yo- vide on account of past convictions a severer penalty for repe- tition of like offenses in the future.^ In such a case the court said : " We entertain no doubt of the constitutionality of this section, which promotes the ends of justice by taking away a purely technical objection, while it leaves the defendant fully and fairly informed of the nature of the charge against him, and affords him ample opportunity for interposing every meri- torious defense. Technical and formal objections of this nat- ure are not constitutional rights." * iHopt V. Utah, 110 U. S. 574; Raod v. Commonwealth, 9 Gratt. 738 ; Lauglilin v. Commonwealth, 13 Busli, Ross' Case, 2 Pick. 165. 261. See Hart v. State, 40 Ala. 32. * Commonwealth v. Hall, 97 Mass. 2 Gut V. State, 9 Wall. 35. 570. 3 People T. Butler, 3 Cow. 347; RETROACTIVE STATUTES. GOO § 4-60. Acts for transferring criminal cases to another court,^ or providing a new tribunal or giving a new jurisdiction to try offenses already committed,^ do not al)ridge any right, and are not ex jpost facto. When the offense was committed the jury was by statute judge of the law. This act was repealed before the trial. Such change, as applied to tliat case, was held not ex post facto} Nor are treaties which pro- vide for surrender of persons charged with previous offenses ; * nor statutes giving additional challenges to the government ; ^ statutes reducing the defendant's peremptory challenges,** or modifying the grounds of challenge for cause ; ^ statutes author- izing amendments to indictments;^ statutes regulating the framing of indictments with a view to exclude redundancies and reduce them to essential allegations ; ^ statutes generally to facilitate the routine of procedure and preclude defendants from taking advantage of mere technicalities which do not prejudice them.^" Where there has been a legal conviction, but an erroneous judgment thereon, which resulted according to the law in a discharge of the convict on reversal of the judgment, a law enacted subsequent to the commission of the crime, that on such a reversal the court in Avhich the conviction was had should, on return of the record, pass such sentence thereon as the appellate court should direct, was not an ex post facto law.^^ In such a case, Shaw, C. J., said, with reference to the pro- visions of such a statute : " They relate simply to errors in the imposition of sentences, in cases where neither the law nor the 1 State V. Cooler, 8 S. E. Eep. 692. « Dowling t. State, 5 Sm. & M. 664 ; 2 Commonwealth v. Phillips, 11 South v. State, 86 Ala, 617. Pick. 28 ; Wales v. Belcher, 3 id 508 ; ^ Stokes v. People, 53 N. Y. 164. State V. Sullivan, 14 Rich. L. 281; SLasure t. State, 19 Ohio St 43; Swing's Case, 5 Gratt. 701. State v. Manning. 14 Tex. 402 ; Sulli- 3 Marion v. State, 20 Neb. 233 ; 29 N. van v. Oneida. 61 111. 242. W. Rep. 911. 9 State v. Corson, 59 'Sle. 187 ; State 4 In re De Giacomo, 12 Elatchf. 391. v. Learned, 47 id. 426. 5 Jones V. State, 1 Ga. 610 ; AValston lo Commonwealth v. Hah, 97 Mass. V. Commonwealth, 16 B. Men. 15; 570; Lasm-e v. State, 19 Ohio St 43. Walter v. People, 32 N. Y. 147; War- "Ratzky v. People, 29 N. Y. 124; ren v. Commonwealth, 37 Pa. St 45 ; Jacquins v. Commonwealth, 9 Cuah. State V. Ryan, 13 Minn. 370 ; State v. 279. Wilson, 48 N. H. 398 ; Commonwealth V. Dorsey, 103 Mass. 412. 39 610 EETEOACTTVE STATUTES. evidence upon which the convictions rest is in any respect im- puo-ned, where the original process is right, the facts sufficient and regularly proved, and all the proceedings, up to the sen- tence, were right, and where the alleged error is in the sentence only. Kow is this act retrospective or prospective? It cer- tainly refers, in its terms, to the future, and to writs of error thereafter to be brought. It was competent for the legisla- ture to take away writs of error altogether, in cases where the irregularities are formal and technical only, and to provide that no judgment should be reversed for such cause. It is more favorable to the party to provide that he may come into court upon the terms allowed by this statute than to ex- clude him altogether. This act operates like the act of limita- tions. Suppose an act were passed that no writ of error should be taken out after the lapse of a certain period. It is contended that such an act would be unconstitutional on the o-round that the right of the convict to have his sentence re- versed upon certain conditions had once vested. But this ar- gument overlooks entirely the well-settled distinction between rights and remedies." ^ A subsequent statute requiring the de- fense of insanity to be specially pleaded at the arraignment is not ex ])ost facto? " It works no injustice," say the court, " to the defendant and deprives him of no substantial right which he would otherwise have. It is not, therefore, objectionable as an ex fost facto [law] when applied, as in the present case, to a crime already committed at the time of its enactment, any more than a statute authorizing indictments to be amended, or conferring additional challenges on the government, or authorizing a change of venue, or other like statutes regulat- ing the mode of judicial or forensic proceeding in a cause." * 1 Jacquins V. Common wealth, supra, nuisance created or maintained prior 2 Perry v. State, 87 Ala. 30. to its passage, was held not ex post 3 Id. A statute of Iowa authorized facto. '• This," say the court, " is a the ti-eatmer.t of traffic in intoxicat- civil not a criminal proceeding, and ing liquors as a nuisance and subject the provisions of the statute referred to eqviitable proceedings for abate- to relate to the remedy. The right raent. A later statute authorized the to a particular mode of procedm-e is court to tax an attorney fee in such not a vested one which the state cases agamst the defendant and to cannot change or abolish." Drake v. close the building in which the nui- Jordan, 73 Iowa, 707 ; 86 N. W. Eep. Banco had been maintained for one 653, citing Cooley, C. L. (5th ed.) 349, year. This latter law, applied to a 443 ; Tilton v. Swift, 40 Iowa, 80 ; KETROACTIVE STATUTES. Gil § 470. Cliange of punishment by subsequent legislation.— Obviousl}^ enough a retrospective statute would be ex post facto which increased in kind the punishment, or which added new elements of punishment. But there has been some diversity of decision where the punishment has been changed and on the whole, as judicially considered, has thus been made less severe.^ It is believed, however, that at the present time, the doctrine accepted as most consonant to rea son and authority is that laid down in Hartung v. People.^ After the prisoner had been convicted of murder and sen- tenced to death, and while her case was pending on appeal, the legislature changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefi- nitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The court of appeals held that this later law re- pealed all laws for punishment for murders theretofore com- mitted. It was ex ])ost facto as to that case, and could not be applied to it. Mr. Justice Denio said : " It is highly probable that it was the intention of the legislature to extend favor, rather than increased severity, towards this convict and others in her situation ; and it is quite likely that, had they been con- sulted, they would have preferred the application ' of this law to their cases, rather than that which existed when they com- mitted the offenses of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a It^w at that time. It would be useless to speculate upon the question Avhether this would be so upon the reason of the thing, and according to the spirit of our legal institutions, be- cause the rule exists in the form of an express written precept, the binding force of which no one disputes. ... It is Wormley v. Hamburg, id. 25 ; Eqiiita- Herber v. State, 7 Tex. 69 ; Mclnturf ble L. Ins. Co. v. Gleason, 56 id. 48 ; v. State, 20 Tex. App. 335 ; Qarke v. County of Kossuth v. Wallace, 60 id. State, 23 Miss. 261 ; State v. Arliu, 89 508. N. H. 179 ; Timier v. State, 40 Ala. 21. 1 See Strong v. State, 1 Blackf. 193 ; 2 oo n. Y. 95, 612 EETKOACTIYE STATUTES. enouo-h to brino; the law within the condemnation of the con- stitution that it changes the punishment, after the commission of the offense, by substituting for the prescribed penalty a different one. We have no means of saying whether one or the other would be the most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot thus experiment upon the criminal law. . . . It is enough, in my opinion, that it changes it in any manner, except by dispensing with divisible portions of it. . . . An3^thing which, if applied to an individual sentence, would fairly fall within the idea of a re- mission of a part of the sentence, would not be liable to objection. Any change which should be referable to prison discipline or penal administration as its primary object might also be made to take effect upon past as well as future of- fenses ; as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like. Changes of this sort might operate to increase or mitigate the severity of the punishment of the convict; but would not raise any question under the constitutional provision " against ex post facto laws.^ In 'Commonwealth v. McDonough - it was held that a law passed after the commission of the offense, which mitigated the punishment," as regarded the fine and the maximum of imprison- ment that might be inflicted, was an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense. As to a defendant convicted of carrying a concealed weapon, an amended law was held ex post facto, first, because it abrogated the right which before existed of defending against the charge on the ground that he had good and suffi- 1 Shepherd v. People, 25 N. Y. 406 ; Petty, 22 Kan. 477 ; Gai-vey v. People, Ratzkey v. People, 29 id, 124 ; Kuck- 6 Cal. 554 ; State v. Willis. 66 Mo. ler V. People, 5 Park. Cr. R. 212; 131; Marion v. State, 16 Neb. 349; Carter v. Burt, 12 Allen, 424 ; Green State v. Cooler, 8 S. E, Rep. 692. T. Shumway, 39 N. Y. 418; In re -' 13 Allen, 581. EETKOACjnVE STATUTES. CI 3 cient reason to apprehend an attack, and made an act criminal which was not so at the time the amendment was passed, and because it changed but did not mitigate the punishment for the offense. "There has been much diversity of opinion," said Arnold, C. J., " as to what would constitute mitigation of punish- ment in such a case ; but the view best sustained by reason and authority is, that a law changing the punishment of offenses committed before its passage is objectionable, as being ex post facto, unless the change consists in the remission of some sep- arable part of the punishment before prescribed, or is referable to prison discipline or administration as its primary object.^ It is enough for courts to render judgment according to law, without being required to determine the relative severity of different punishments, when there is no common standard in the matter by which the mind can be satisfactorily guided."^ § 471. Laws impairiiig obligatiou of contracts.— The fed- eral constitution provides that no state shall pass any law impairing the obhgation of contracts.* The obligation of a contract is the law which binds the parties to perform their agreement.* It is the means provided by law by which it can be enforced, by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these- means impairs the obligation.'* A contract valid at its incep- tion cannot be made invalid, its construction changed, or the remedy thereon taken away or materiaUy impaired, by sub- sequent legislation. The laws which exist at the time and place of the making of a contract determine its validity, con- struction, discharge, and measure of efficiency for its enforce- ment.*" A statute of frauds embracing a pre-existing parol contract not before required to be in writing would affect its validity. A statute declaring that the word "ton" should thereafter be held, in prior as well as subsequent contracts, to • Cooley, C. L. 329. den v. Saunders, supra; Bronson v. -Lindzey v. State, 65 Miss. 542; Kinzie, 1 How. 319; McCracken v. Cooley, C. L. 324 Hayward, 2 id. 612 ; Walker v. VVliite- 3 Art I, sec. 10. head, 16 Wall. 314 ; Von Hoffman v. *Ogdenv.Saimders, 12 Wheat. 213; Quiucy. 4 Wall. 535: Edwards v, Sturges V. Crowninshield. 4 icL 122. Kearzey, 96 U. S. 595 ; Tennessee v. 5 Louisiana v. New Orleans, 102 Snoed. id. 69; Mason v. Haile, 12 U. S. 203. Wheat 370. 6 Green v. Biddle, 8 Wheat 92 ; Og- 614 EETKOACTIVE STATUTES. mean half or double the weight before prescribed, M-ould af- fect its construction. A statute providing that a previous contract of indebtment may be extiDguished by a process of bankruptcy would involve its discharge ; and a statute forbid- ding the sale of any of the debtor's property under a judg- ment upon such a contract would relate to the remedy. It cannot be doubted, either upon principle or authority, that each of such laws passed by a state would impair the obhgiir tion of the contract, and the last mentioned not less than the first.i § 472. The prohibition has been considered as extending to contracts executed and executory ; to conveyances of land as well as commercial contracts ; to pubhc grants from the state to corporations and individuals, as well as private contracts between citizens ; to grants and charters in existence when the constitution was adopted and even before the revolution, and to compacts between the different states themselves.^ " An executed contract," says Chief Justice Marshall, " as weU as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extin- guishment of the right of the grantor, and implies a contract not to re-assert that right. A party is therefore always es- topped by his own grant. Since, then, in fact, a grant is a contract, the obligation of which stiU continues, and since the constitution uses the general term ' contract,' without distin- guishing between those which are executory and those which are executed, it must be construed to comprehend the latter as weU as the former. A law annulling conveyances betwe.'n individuals, and declaring that the grantors should stand seized 1 Von Hoffman v. Quiacy, 4 "VValL cisco, 18 id. 590 ; People v. Piatt, 17 652. John. 195; Rehoboth v. Hunt, 1 2 Ogden V. Saunders, 12 Wlieat. 217 ; Pick. 224 ; Lowry v. Francis, 2 Yerg. Fletcher v. Peck, 6 Cr. 87 ; New Jer- 534 ; State v. Barker, 4 Kan. 379, 435 ; Bey V. Wilson, 7 id. 164 : Terrett v. University of North Carolina v. Fay, Taylor, 9 id. 43 ; Town of Pawlet v. 1 Murph. 58 ; AVabash, etc. Co. v. Clark, id. 292 ; Dartmouth CoUege v. Beers, 2 Black, 448 ; State Bank v. Woodward, 4 Wheat 518 ; Society, Knoop, 16 How. 369 ; Hartman v. etc. V. New Haven, 8 id. 464, 481 ; Greenhow, 102 U. S. 672 ; Hawkms Green v. Biddle, id. 1; Davis v. v. Barney's Lessee, 5 Pet. 457; De Gray, 16 Wall. 203 ; Hall v. Wiscon- Graflf v. St. Paul, etc. R R. Co. 23 pin, 103 U. S. 5 ; IMontgomery v. Kas- Minn. 144 ; Robertson v. Land Corn- son, 16 CaL 189 ; Grogan v. San Fran- missioner, 44 Mch. 274. KETROACnVE STATUTES. ci; of their former estates, notAvithstanding these grants, would be as repugnant to the constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances." ^ Wlien a state becomes a party to a contract, the same rules of law are ap|)lied to her as to private persons under like circumstances.^ So when the state, as such, or any lesser pubhc corporation, makes a grant, or otherwise contracts, it is bound by its obligations by the same supreme and paramount rule. ^ § 473. Charters creating corporations for private purposes, laws giving franchises, bounties to encourage enterprise and ex- penditures, and patents and copyrights, or any exclusive privi- lege, are also inviolable contracts, the obligations of Avhich are secured by the constitutional provision under consideration.* It does not apply to municipal charters or oflBces ; they are mere agencies of government, and, except as specially re- strained by other constitutional restrictions, are within the continued exclusive control of the legislature.^ Counties and 1 Fletcher v. Peck, 6 Cranch, 87, 136. 2 Davis V. Gray, 16 WaU. 233. 3 Cincinnati, etc. R. R Co. v. Car- thage, 36 Ohio St. 631 ; State v. Com- missioners, etc. 4 Wis. 414. 4 Slaughter-House Cases, 16 Wall. 36, 74 ; Dartmouth CoUege v. Wood- ward, 4 Wheat. 518; Planters' Bank V. Sharp, 6 How. 391; l^iistees of V. University" v. Indiana, 14 How. 268 ; State Bank v. Knoop, 16 How. 369 ; State v. Hey ward, 3 Rich. 389 ; Norris v. Trastees, etc. 7 G. & J. 7 ; Grammar School v. Burt, 11 Vt 632; Commonwealth v. CuUen, 13 Pa. St. 133; Backus v. Lebanon, 11 N. H. 19 ; State v. Noyes, 47 Me. 189 ; Bank of Natchez v. State, 6 Sm. & M. 599 ; Peojjle V. Manhattan Co. 9. Wend. 351 ; INIiuers' Bank v. United States, 1 Greene (la.), 553; Bridge Co. v. Ho- bokeu Co. 13 N. J. Eq. bl ; Michigan State Bank v. Hasitings, 1 Dougl. (Mich.) 227 ; People v. Jackson, etc. Plank Road Co. 9 Mich. 285; Haw- thorne V. Calef, 2 Wall. 10 ; Bank of the Dominion v. McVeigh, 20 Gratt. 457 ; Bank of the State v. Bank of Cape I'ear, 13 Ired. 75 ; Mills v. Wilhams, 11 id- 558 ; Wales v. Stetson, 2 Mass. 143 ; Nichols v. Berti-am, 3 Pick. 342 ; King V. Dedham Bank, 15 Mass. 447 ; Turnpike Co. v. Davidson Co. 3 Tenru Ch. 396 ; Sloan v. Pacific Co. 61 Mo. 24 ; Central Bridge v. Lowell. 15 Gray, 106; State v. Richmond, etc. R R. Co. 73 N. C. 527 ; Detroit v. Plank Road Co. 43 Mich. 140 ; Bruffett v. G. W. R. R. Co. 25 111. 353 ; State v. Tom- beckbee Bank, 2 Stew. 30 ; Edwards V. Jagers. 19 Ind. 407; People v. Board of State Auditors, 9 Mich. 327. Butler V. Pennsjdvania, 10 How. 402; United States v. Hartwell, 6 WaU. 385 ; Newton v. Commission- ers, 100 U. S. 559 ; Koontz v. Franklin Co. 76 Pa. St. 754 ; French v. Common- wealth, 78 Pa. St. 339; Augusta v. Sweeney, 44 Ga. 463; Opinion of Justices, 117 Mass. 603; People v. Green, 58 N. Y. 295: Wyandotte v. Drennan, 46 ^lich. 478 : State v. Kalb 50 Wis. 178 ; People v. Power, 25 111. C16 EETKOACTIVK STATUTES. towns are, as to their corporate existence, completely within such control. They may be changed, altered, enlarged, dimin- ished or extinguished by the mere act of the legislature.^ And all private corporations and grantees of franchises are subject to the exercise of all essential powers of government — to taxation," so far as not contracted away upon consideration^ to the power of eminent domain and of police.' The legis- lative power of a state, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. It may increase or diminish the salary or change the mode of compensation.^ § 474. The objection to a law on the ground of its impair- ing the obligation of a contract can never depend upon the extent of the change which the law effects in it. Any devia- tion from its terms by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed therein, or dispensing with those which are, how- ever minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.^ Where municipal bonds have been put upon the market as commer- cial paper, the rights of the parties thereto are to be deter- mined according to the statutes of the state as they were then 187, 181 : Sangamon Co. v. Spring- apolis, etc. R. R. Co. v. Kercheval, 16 field, 63 111. 66 ; Borough of Dunmore's IncL 84 ; Bradley v. McAtee, 7 Bush, Appeal, 52 Pa. St. 374 ; Guilford v. 667 ; State v. Noyes, 47 Me. 189 ; Van- CorneU, 18 Barb. 615 ; Guilford v. Su- derbilt v. Adams, 7 Cow. 349 ; State pei-visors, 13 N. Y. 143 ; Ricliland Co. v. Sterling, 8 Mo. 697 ; Calder v. V. Ricliland Center, 59 Wis. 591. Kurby, 5 Gray, 597 ; Him v. State, 1 1 Id. ; Beckwith v. Racine, 7 Biss. Oluo St 15 ; Toledo, etc. R. R. Co. 142. V. Jacksonville, 67 IlL 37; Chicago 2 Cooley, C. L. 340. Packmg Co. v. Chicago, 88 IlL 221 ; 3 Matter of Ken-, 42 Barb. 119; People v. Commissioners, 59 N. Y. West River Br. Co. V. Dix, 16 Vt. 446 ; 92; Beer Co. v. Massachusetts, 97 6 How. 507 ; Enfield Toll Br. Co. v. U. S. 25 ; Fertihzing Co. v. Hyde Hartford, etc. R. R. Co. 17 Conn. 40, Park, id. 659 ; Stone v. Mississippi, 454 ; Providence Bank v. BilUngs, 4 101 U. S. 814. Pet. 514; Thorpe v. R. & B. R. R. Co. ■» Butler v. Pennsylvania, 10 How. 27 Vt 140; McCulloch v. Maryland, 402; Newton v. Commissioners, 100 4 Wheat 327 ; Ohio, etc. R. R Co. v. U. S. 559. McClelland, 25 IlL 140; Osborn v. 5 Green v. Biddle, 8 Wheat 84; Bank of U. S. 9 Wheat 738 ; Indian- Planters' Bank v. Sharp, 6 How. 337. EETROACTIVE STATUTES. 617 c< nstrued by her highest court ; and in a case involving those rights the supreme court of the United States will not be governed by any subsequent decision in conflict with that under which they became payable. The settled judicial con- struction of a statute, so far as contract rights were there- under acquired, is as much a part of the statute as the text itself, and a change of decision is the same in effect on pre- existing contracts as a repeal or an amendment by legislative enactment.^ A bankrupt or insolvent law of any state, which discharges both the person of the debtor and his future acqui- sitions of property, is not " a law impairing the obligation of contracts," so far as respects debts contracted subsequent to the passage of such law. But a certificate of discharge, under such a law, cannot be pleaded in bar of an action brought by a citizen of another state in the courts of the United States or of any other state than that where the discharge was ob- tained.'^ A law which authorizes the discharge of a contract by the payment of a smaller sum or at a different time or in a different manner than the parties have agreed impairs its obli- gation by substituting for the compact of the j)arties a legis- lative act to which they have never assented.* " It is within the undoubted power of state legislatures to pass recording acts by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within a limited time ; and the power is the same whether the deed is dated before or after the passage of the recording act. Though the effect of such a deed is to render the prior deed fraudulent and void as against a subsequent purchaser, it is not a law impairing the obliga- tion of contracts."* Contracts made in violation of some interest or revenue regulation may be validated by repeal of such regulation. In validating a void contract its obligations are not impaired, but legal impediments to its enforcement according to the intention of the parties are removed.^ A corporation charter is not subject to forfeiture for acts or omis- 1 Douglass V. Pike Co. 101 U. S. 677. 5 Satterlee v. Matthewson, 2 Pet - Ogden V. Saunders, 12 Wheat. 213. 406 ; Gibson v. Hibbaid, 13 Midi. 214 ; See Denny v. Bennett. 128 U. S. 439. Welch v. Wadswortli, 30 Conn. 149 ; 3 Golden v. Prince, 3 Wash. 313. Wood v. Kennedy, 19 Ind. 68. See * Jackson v. Lampliire, 3 Pet 290. Baugher t. Nelson, 9 Gill, 299. 618 KETEOACTIVE STATUTES. sions which were not causes of forfeiture at the time they occurred.^ If, when a private corporation contracts a debt, its stockholders are under a certain liability by law, this laAV can- not, as to creditors becoming such while it existed, be re- pealed.- So a statute imposing liabilities on stockholders in a corporation to which they were not subject by the charter or general law under which the corporation was organized is unconstitutional.'' § 475. The prohibition of the constitution against the pas- sage of laws impairing the obligation of contracts applies to the contracts of the state, and to those of its agents acting under its authority, as well as to those between individuals. And that obligation is impaired, in the sense of the constitu- tion, when the means by which a contract at the time of its execution could be enforced — that is, by w^hich the parties could be obliged to perform it — are rendered less efficacious by legislation operating directly upon those means.^ As long as a city exists, laws are void which withdraw or restrict her taxing power, so as to impair the obligation of her contracts made upon a pledge, expressly or impliedly given, that it shall be exercised for their fulfillment.^ A statute authorized a city to issue bonds to a specified amount, and, among other strin- gent provisions to secure their prompt payment, prohibited the subsequent issue of any other bonds, for any other pur- pose whatever, except in payment of such bonded debt. It was held that the holders of those bonds were entitled to the benefit of this restriction as a most material element of the contract, and that it was not subject to legislative repeal and amendment so as to impair the right or diminish the security without their consent.^ "Where a municipal corporation has 1 People V. Jackson, etc. PL R. Co. 5 Wolff v. New Orleans, 103 TJ. S. 9 Mich. 285. 358 ; State v. Madison, 15 Wis. 30 ; 2 Hawthorne v. Calef, 2 Wall. 10; Von Bavimbach \. Bade, 9 id. 559; Coming v. IVIcCiillough, 1 N. Y. 47 ; Phelps v. Eooney, id 70. Story V. Furman, 25 N. Y. 214; Nor- 6 Smith v. Appleton, 19 Wis. 468; ris V. Wrenschall, 34 Md. 492. People v. Woods, 7 Cal. 579 ; People 3 Ireland v. Palestine, etc. T. Co. 19 v. Bond, 10 id. 563 : Munday v. Eah- Ohio St. 369. way, 43 N. J. L. 338 ; Board of Liq- « Wolff V. New Orleans, 103 U. S. nidation v. McComb, 92 U. S. 531. 358, 367. EETKOACTIVE STATUTES. G19 lawfully issued its bonds for specified sums, to bear interest at a stated rate, it cannot subsequently provide for taxing that debt, and for detaining a part of it for payment of the tax.' § 4:70. Change of remedy. — The constitutional provision is a negation. No law is permitted to be enacted to impair the obligation of contracts. There is no mandate to enact laws for their enforcement. Eemedics exist in the common law. And courts are supposed to exist throughout the states with competent jurisdiction. The practical question arises upon changes in the law — upon affirmative legislation. Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are in- separable, and both are parts of the obligation which is guar- antied by the constitution against impairment.'- If legislation " tends to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, q^d ciio dat his dat,- — he who gives quicldy gives twice, — has its counterpart in a maxim equally sound, — qui serius solvit, minus solvit, — he who pays too late, pays less. Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition." * The rule affirmed by the court of last resort is that in modes of proceeding and forms to enforce the contract the legislature has the con- trol, and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with conditions as to seriously impair the value of the right.^ If a particular form of proceeding is prohibited, and another is left or is pro- vided which affords an effective and reasonable mode of en- forcing the right, the obligation of the contract is not im- paired.^ A statutory provision requiring a plaintiff having an iMuiTay V. Charleston, 96 U. S. » Id. ; Huntzinger v. Brock, 3 432. Grant's Cas. 243; Evans v. Mont- 2 Walker v. Wliitehead, IG Wall. 314. goniery, 4 Watts & S. 218 ; McDaniel 3 Louisiana v. New Orleans, 102 v. Webster, 2 Houst. 305; Read v. U. S. 203, per Field, J. Bank, 28 Me. 318 ; Walker v. Wliite- 4 Tennessee v. Sneed, 96 U. S. G9 : head, 16 Wall. 314 ; Von Hoflfman v. Bronson v. Kinzie, 1 How. 311; Qiiiucy, 4 id. 552 ; Pollard, Ex parte, Sturges V. Crowninshield, 4 Wheat. 40 Ala. 77 ; Nelson v. ^McCrary, 60 id. 122 ; Mason V. Haile, 12 id. 370 ; Green 301 ; Collins v. East Teun. etc. R. K. V. Biddle, 8 V\Tieat. 92 ; White v. Co. 9 Heisk. 841 : Williams v. Weaver, Hai-t, 13 WalL 646. 94 N. C. 134 ; Cutts v. Hai-dee, 38 G^ 620 RETKOACTIVE STATUTES. executory judgment against a city to file a certified copy thereof with the controller, preliminary to obtaining a warrant on the treasury in payment, does not impair the obligation, and is constitutional.' § 477. A statute, passed after the making of a mortgage, which declared that the equitable estate of the mortgagor should not be extinguished for twelve months after a sale under a decree in chancery, and which prevented any sale unless two-thirds of the amount at which the property had been valued by appraisers should be bid therefor, impaired the obligation of the contract.^ Taney, C. J., says : " Undoubtedly a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agri- culture, or the tools of a mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Eegulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty according to its own views of policy and humanity. It must reside in every state to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And although a new remedy may be deemed less convenient than an old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitu- tional. Whatever belongs merely to the remedy may be 350 ; stocking v. Hunt, 3 Denio, 274 ; v. Loyal, 38 Ga. 531 ; Hardeman v. WolfkeU V. Mason, 16 Abb. Pr. 221; Downer, 39 id. 425; Sneiderv. Heidel- SulUvan v. Brewster, 1 E. D. Smith, berger, 45 Ala. 126 ; MauU v. Vaughn, 681; MiUer v. Moore, id. 739; Cole- id. 134; Farley v. Dowe, id. 334; man v. BaUandi, 23 Minn. 144; Rockwell v. Hubbell's Adm'r, 2 Doug. Quackenbush v. Danks, 1 Denio, 128 ; (Midi.) 197 ; Sprecher v. Wakeley, 11 Danks v. Quacken})ush, 3 Denio, 594 ; Wis. 432 ; In re Kennedy, 2 S. C. 1 N. Y. 129 ; Cusic v. Douglas, 3 216 ; Breitung v. Lindauer, 37 Mich- Kan. 123 ; Morse v. Goold, 11 N. Y. 217. 281 ; Hill V. Kessler, 63 N. C. 437 ; Mar- i Louisiana v. New Orleans, 102 tin V. Hughes, 67 N. C. 293; Story v. U. S. 2(3. Furman, 35 N. Y. 214, 223-4 ; Maxey 2 Bronson v. Kinzie, 1 How. 311. ketkoactivp: statutes. C21 altered according to the will of the state, provided the altera- tion does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by act- ing on the remedy, or directly on the contract itself. In either €ase it is prohibited by the constitution." ^ In McCracken v. Hay ward ^ it was held that a law^ which provided that a sale should not be made of property levied on under an execution unless it would bring tAvo-thirds of its appraised value was unconstitutional and void for like reason. Baldwin, J., de- livered the opinion of the court, in the course of which he said : " In placing the obligation of contracts under the pro- tection of the constitution, its framers looked to the essen- tials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution ; an- nulling all state legislation which impaired the obligation, it w^as left to the states to prescribe and shape the remedv to enforce it. The obligation of a contract consists in its bind- ing force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either than that which the terms of the contract indicate according to their settled legal meaning ; w^hen it becomes consummated, the law defines the duty and the right ; compels one party to perform the thing contracted for, and gives the other a right to en- force the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract in favor of one party, to the injury of the other; hence any law. Avhich in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the constitution." In Edwards v. Kearzey ^ it was held that an exemption of a homestead to the value of $1,000, inserted in a new constitution adopted after a debt was contracted, im- paired the obligation of the contract.* Mr. Justice Swayne 1 Bronson v. Kinzie, 1 How. 311. 3 96 U. S. 595. 2 2 How. 608. * Giuin v. Barry, 15 Wall 610 ; 622 KETEOACTIVE STATUTES. delivered the opinion of the court, and, alludirig to what had been said by the chief justice in Bronson v. Kinzie relative to the power of the states to enact exemption laws, said : " The learned chief justice seems to have had in his mind the maxim de minimis, etc. Upon no other ground can any exemption be justified. Folic}^ and humanity are dangerous guides in the dis- cussion of a legal proposition.^ He who follows them far is apt to bring back the means of error and delusion. The pro- hibition contains no qualification, and we have no judicial au- thority to interpolate any. Our duty is simply to execute it." He concludes with this declaration : " The remedy subsisting in a state when and where a contract is made and is to be per- formed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to im- pah* and lessen the value of the contract is forbidden by the constitution and is therefore void." § 4:78. Legislation cannot be permitted to affect the con- struction of existing contracts. It is also held that the par- ties are entitled to a remedy as efficacious as that afforded when the contract was made. They are entitled to have the iden- tical compact enforced, but not by the precise modes of pro- cedure in force at its execution ; only an equivalent remedy. There is some diversity of opinion as to the degree of change or departure from an exact equivalence there may be with- out conflicting with the constitution. What the suitor has a right to claim is the use of such remedy as may be adequate to his demand ; not that he shall be permitted to enforce that demand in any special form or by any specific process.^ No attempt has been made to fix definitel}^ the line between alter- ations of the remedy which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights ; every case must be determined on its own circumstances.* Statutes taking away all remedy on existing contracts would be manifestly void.* Where the changes in- Homestead Cases, 22 Gratt 2G6; * CaU v. Hagger, 8 Mass. 430 ; State Lessley v. Phipps, 49 INIiss. 790. v. Bank, 1 S. C. 63 ; Osborn v. Nich- iSee Von Hoffman v. Quincy, 4 olson, 13 Wall. 663; West v. San- Wall. 553. som, 44 Ga. 295 ; Johnson v. Bond, 2 Tennessee v. Sneed, 96 U. S. 73, 74. Hempst. 533 ; Rison v. FaiT, 24 Ark. 5 Von Hoffman v. Quincy, 4 WaE 161 ; McFaiiand v. Butler, 8 Minn. 553. 116 ; Jackson v. Butler, id. 117. KETROA.CTIVE STATUTES. 623 troduced are intended and suited to clog, hamper and embar- rass the proceedings to enforce the right, so as to destroy it, the statute is not a regukition of the remedy but impairs the obHgation of the contract.' The remedy for the enforce- ment of a contract to which a party is entitled under state statutes in force when the contract was made cannot be sub- sequently taken away by decisions of the state courts giving those statutes an erroneous construction, any more than by subsequent legislation.- It has been held that the remedy is within the discretion of the states, and that a stay of execu- tion for a reasonable time is not obnoxious to constitutional objection.^ An act passed in Wisconsin in May, 1862, exempt- ing from civil process all persons who had or might volunteer or enroll themselves as members of any military company, mustered into the service of the United States or of that state, during their service, was held to be void as operating to impair the obligation of contracts ; that it was within the rec- ognized power of the states to change or modify the laws gov- erning proceedings in courts of justice in regard to past as well as future contracts. That power was held to be unre- stricted, except that a substantial remedy must be afforded according to the course of justice as it existed at the time the contract was made.* A Pennsylvania act of like nature passed in 1861, and construed to mean a stay during the war or for three years and thirty days, unless it should sooner termi- nate, was sustained. " In such cases," says Woodward, J., " the rule is that the remedy becomes part of the obhgation of the contract, and any subsequent statute which affects the rem- edy impairs the obligation, and is unconstitutional. Bronson v. Kinzie^ and Billinger v. Evans ^ are illustrations of this rule. The tune and manner in which stay laws shaU operate are properly legislative questions, and will generally depend, said Judge Baldwin in Jackson v. Lamphire," " on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to the enactment." ^ The learned judge added : '• It is 1 Oatman v. Bond, 15 Wis. 20. 5 1 How. 323. 2 Butz V. Muscatine, 8 Wall. 575. <> 4 Wright, 327. s Chadwick v. Moore, 8 W. & S. 49. ' 3 Pet 280. ^Hasbrouck v. Sliipman, 16 Wis. ^Breitenbach v. Bush, 44 Pa. St 30& 313. 624 EETKOACTIVE STATUTES. impossible to separate this question of reasonableness from the actual circumstances in which the country found itseK at the date of the war. . . . ISTow, if a stay of execution for three years would not be tolerated in ordinary times, did not these circumstances [then historically known] constitute an emergency that justified the pushing of legislation to the ex- tremest limits of the constitution? ... In view of the extraordinary circumstances of the case we cannot pronounce it um'easonable. We see in it no wanton or careless disre- gard of the obligation of contracts. . . . Another circum- stance which bears on the reasonableness of the enactment is the provision Avhich suspends all statutes of limitation in favor of the soldier during the time he is exempted from pro- cess. The provisions were reciprocal and both were reason- able." ^ Where an indeJinite stay was provided for on the consent of two-tliirds of the creditors, subject to no other than their discretion, the obligation of the contracts held by the non-consenting minority was impaired.^ A statute directing that execution upon any judgment there- after obtained should not issue until two years after the rendi- tion of the judgment, unless the plaintiff should indorse upon the execution that satisfaction may be received in notes of particu- lar banks, was held unconstitutional. Such a law attempts to impair the obligation.^ An ordinance, ostensibly to change the 1 See Coxe's Ex'r v. Martin, 44 Pa, an equivalent in money, and a subse- St 332. quent law says the equivalent shall 2 Bunn V. Gorgas, 41 Pa. St. 441. not be in money, such act would im- 3 Townsend v. Townsend, Peck, 1 ; pair the obligation of the contract S. C. 14 Am. Dec. 722. " The con- If the law in being at the date of the tract," says Haywood, J., " is made by contract gives immediate execution the parties, and, if sanctioned by law, on the rendition of the judgment, a it promises to enforce performance subsequent act declaring that the ex- should the party decliae performance edition shall not issue for two years hunself. The law is the source of would lessen or impair the contract the obligation, and the extent of the equally as much in principle as if obligation is defined by the law in use it suspended execution forever ; in at the time the contract is made. If which case the legal obligation of the this law du-ect a specific execution, conti'act would be whoUy extin- and a subsequent act declares that guished. The legislature may alter there shall not be a specific executio,"", remedies, but they must not, so far as the obligation of the contract is less- regards antecedent contracts, be ren- ened and impaired If the law in dei<^dless efficacious or more dilatory being at the date of the contract gives than those ordained by the law in EETROACnVE STATUTES. 025 jurisdiction of the courts, provided that all contracts, without regard to the terms of payment made by the parties, should be payable in four annual instalments. This was held unconstitu- tional.^ A law which clianges the rules of evidence relates to the remedy and is not within the constitutional inhibition.'^ A law abolishing distress for rent has been sustained as applica- ble to existing leases.' The right to imprison for debt is not a part of the contract. It is regarded as penal rather than re- medial. The states may abolish it whenever they think proper.* A law which takes from a mortgagee a right of possession until after foreclosure ; * a law suspending the right to sue on being when the contract was made, if such alteration be the direct and special object of the legislature, appar- ent in an act made for the purpose." See Farnsworth v. Vance, 2 Cold. 108 ; overruled by Webster v. Rose, 6 Heisk. 93. A IVIissouri act extended the time for retm-n of executions to second term after issue, and prohib- ited sales till within fifteen days of the return day, and from justices' courts for twelve months. This was held unconstitutional. Stevens v. An- drews, 31 ]\Io. 205. In tliis case Nap- ton, J., said: "We do not question the power of the legislature over rem- edies, whether they relate to past or future contracts, provided the new remedy does not impaii- the obUgation of the contract. It is the unques- tioned power of the legislature to regulate the modes of proceedings in their courts, and prescribe the forms of process, both final and mesne, and their manner and time of execution. General laws relating to the modes of proceeding, both before and after judgment, would hardly be called in question, although applied to past contracts, merely because of some in- cidental effect favorable to the plaint- iff or defendant in the suit. . . . The act now under considei'ation is not designed to make any permanent 40 change in the forms of proceedings heretofore in use. On the contrary, the old system is retained ; and the act, without changing the rule, at- tempts to suspend its operatioru It recognizes the propriety of letting ex- ecutions nm for six months as the permanent rule, but it suspends this general regulation for two years and apphes the suspension to past con- ti'acts." See Webster v. Rose, 6 Heisk. 93 ; Burt v. WiUiams, 24 Ark. 91 ; Hudspeth v. Davis, 41 Ala, 389 ; Taylor v. Steams, 18 Gratt 244 ; Cutts V. Hardee, 38 Ga. 350; Aycock v. Martin, 37 id. 124; Sequesti'ation Cases, 30 Tex. 688 ; Clark v. Mai-tm, 3 Grant's Cas. 393; Johnson v. Hig- gms, 3 Met. (Ky.) 566. 1 Jacobs v. Smallwood, 63 N. C. 112. '-^Neass v. Mercer, 15 Barb. 318; Howard v. Moot, 64 N. Y. 262. ^ Van Rensselaer v. Snyder, 9 Barb. 302 ; 13 N. Y. 299 ; Guild v. Rogers, 8 Barb. 502 ; Conkey v. Hart, 14 N. Y. 22. •* Von Hoffman v. Quincy, 4 Wall 552; Beers v. Haughton, 9 Peters, 359 ; Ogden v. Saunders, 12 Wheat 230; Stiu'ges v. Crowninshield, 4 id. 200. 5 Mundy v. Monroe, 1 Mich. 68 ; Blackwood v. Van Vleet, 11 id. 252. Q2Q KETROACnVE STATUTES. the note or bond until after foreclosure ; * extending redemp tion;2 or shortening the redemption," impairs the obligation^ and is within the prohibition under consideration. § 479. Limitation laws relate to the remedy and not di- rectly to the right. They are not considered as elements enter- ing into contracts, for, it is said, parties do not look forward to a breach of their agreements, but to the performance.* A law passed subsequently to a contract, and changing the period of limitation, is not necessarily a law impairing its obhgation.^ And ordinarily courts disregard the limitation fixed in the place of the contract or tort and enforce only that of the lexfori.^ Usually the bar of a statute limiting transitory actions is said not to ex- tinguish the right, because such actions may be brought any- where, while the statute can have no effect beyond the territory of the sovereign that enacted it ; therefore the right remains to. s ipport such action whenever the lex fori wiU permit it to be brought. But even under these statutes, if the subject- matter of an action and the opposing claimants of the right have continued within the same jurisdiction until the statutory term has expired, the title is transferred to him in whose favor the bar exists, and that title Avill be recognized and uxDheld in. the tribunals of other states as well.^ § 480. Tested rights inviolable. — Tested rights cannot be destroyed, divested or unpaired by dhect legislation. Then- protection is one of the primary purposes of government. They are secured by the bill of rights, and the constitutional limita- 1 Boice V. Boice, 27 Minn. 371. Drake v. Wilkie, 30 Hun, 537 ; Cal- ^ Robinson v. Howe, 13 Wis. 341 ; houn v. KeUogg, 41 Ga, 231. Dikeman v. Dikeman, 11 Paige, 484 ; ' Moore v. State, 43 N. J. L. 203 \ Greenfield v. Dorris, 1 Sneed, 550 ; Newby's Adm'r v. Blakey, 3 H. & M. January v. Januaiy, 7 T. B. Mon. 542 ; 57 ; Brent v. Chapman, 5 Cr. 858 ; Goenen v. Schroeder, 8 Minn. 387. Shelby v. Guy, 11 Wheat 361; But see Stone v. Bassett, 4 Mirm. 298. Thompson v CaldweU, 3 Litt 136 ; 3 Cargill V. Power, 1 Midi. 369. Story's Conf. L. § 5826; Huber v. 4 Moore v. State, 43 N. J. L. 203 ; Sterner, 2 Bmg. N. C. 202 ; Don v. Ogden v. Saunders, 12 Wheat 313 ; Lippmann, 5 CI. & Fin. 1 ; Brown v. Don V. Lippmann, 5 CL & Fm. 1. WUcox, 14 S, & M. 127 ; Davis v. 5 3 Parsons on Cont 557. Minor, 1 How. (IMiss.) 183 ; Woodman 6 Moore v. State, 43 N. J. L. 203; v. Fulton, 47 Miss. 682; Spencer v. Gulick V. Loder, 13 id. 68 ; Town- McBride, 14 Fla. 403. See Swickard send V. Jemison, 9 How. 407 ; Ed- v. Bailey, 3 Kan. 507. wards v. Kearzey, 96 U. S. 595; RETROACTIVE STATUTES. 627 tions upon the exercise of the sovereign powers.' There is a vested right in property which one owns, and it cannot be legis- lated away.' A vested right is property as tangible things are when they spring from contract or the principles of the com- mon law.^ There is a vested right in an accrued cause of ac- tion ; < in a defense to a cause of action ; * even in the statute of limitations when the bar has attached, by which an action for a debt is barred. That statute presumes evidence from length of time which cannot now be produced ; payment which cannot now be proved." A person in adverse possession is no longer subject to action to disturb him ; the one has a vested right to his defense, and the other a title with all its incidents and im- plications.'^ And it is then secure against legislative inter- ference.^ 1 Wilson V. WaU, 34 Ala. 288 ; Dav- idson V. New Orleans, 96 U. S. 97 ; Baugher v. Nelson, 9 GiU, 299 ; Max- well V. Goetscliius, 40 N. J. L. 383 ; Collins V. East Tenn. etc. R R. Co. 9 Heisk. 841 ; Dash v. Van Kleeck, 7 Jolin. 477 ; Davis v. Minor, 1 How. (Miss.) 183 ; Dodge v. County of Platte, 16 Hun, 285 ; Wood v. Mayor, etc. 34 How. Pr. 501 ; State Bank v. Knoop, 16 How. 369 ; Dodge v. Woolsey, 18 id, 331 ; Greenough v. Greenough, 11 Pa. St 489; De ChasteUux v. Fair- cliUd, 15 Pa. St 18 ; Smith v. Louis- ville, etc. R. R Co. 62 IMiss. 510; HaUoran v. T. etc. R R Co. 40 Tex. 465 ; Aldridge v. Tuscumbia, etc. R R Co. 2 St & P. 199; Boatwright V. Faust, 4 McCord, 439 ; Municipal- ity No. 3 V. Michoud, 6 La. Ann. 605 ; Steele v. Steele. 64 Ala. 438; Coosa R Co. V. Barclay, 30 Ala. 120 ; Dillon V. Dougherty, 2 Grant's Cas. 99; State V. Squires, 26 Iowa, 340 ; Smith V. Van Gilder, 26 Ark. 527. 2 Lane v. Nelson. 79 Pa. St 407 ; Greenough v. Greenough, 11 Pa, St 489; De Chask'llux v. Fairchild, 15 Pa St 18; Norman v. HeLst 5 W. & S. 171; Aldridge v. Tuscumbia, etc. R R Co. 2 Stew. & Port 199 ; Thistle V. Frostburg Coal Co. 10 "Sid. 129. s Collins V. East Tenn. etc. R R Co. 9 Heisk. 841 ; DiUon v. Dougherty, 3 Grant's Cas. 99. * Smith V. Louisville, etc. R R Co. 62 Miss. 510. 5 Davis V. Minor, 1 How. (Miss.) 183. 6 Davis V. Minor, supra. 7 Knox V. Cleveland, 13 Wis. 249; Moore v. Luce, 29 Pa. St 260 ; Lef- fingwell V. WaiTen, 2 Black, 599. 8 Moore v. State, 43 N. J. L. 207 ; Maxwell v. Goetscliius. 40 id. 383. A statute provided that by partic- ular pleading a borrower might de- fend against a usurious loan to the extent of the usury. It was regarded as remedial, and though imposing a duty to pay the loan and law- ful interest in accordance with tlie debtor's equitable duty, and made to operate retrospectively in deroga- tion of the statute in force when the loan was made by which the couti'act was unlawful, it was held not obnox- ious to the objection that it took away a vested right, for it was said there could be no vested right to do wrong. Baugher v. Nelson, 9 GUI, 299; Town of Danville v. Pace, 25 628 RETROACTIVE STATUTES. If a contract when made is a nullity, it cannot be validated by an act of the legislature, for that would be to impose a binding agreement where none existed.^ A right of redemption, once vested is a property right which can only be taken by due process of law ; it cannot be abrogated by a legislative act.- A lien or other right once attached cannot be destroyed by repeal of the law under which it was derived.^ After a tax has been legally remitted it cannot be reimposed.* When a right has been perfected by judgment the fruits of recovery cannot be diverted by new legislation,^ nor subjected to new hazard by reviving a new right to appeal,^ or some other mode of review.'^ An act cannot affect the construction of the will of a testator who died before it was passed,^ Eights of a hus- band in the property of the wife when vested cannot be im- paired by subsequent legislation.^ Treaties are the supreme law of the land ; rights which have vested under them cannot be destroyed or affected by the action of either the legislative Gratt 1 ; Satterlee v. Mathewson, 16 S. & R. 191 ; The Ironsides, Lusliing- ton, 458. 1 N. Y. etc. R. R. Co. v. Van Horn, 57 N. Y. 473. 2 WUlis V. Jelineck, 27 Minn. 18. 3 Appeal Tax Court v. Western R. R. Co. 50 Md. 274 ; Warren v. Jones, 9 S. C. 288 ; Daniels v. Moses, 12 S. C. 130 ; Walton v. Dickerson, 4 Rich. L. 568. The repeal of a general corpo- ration law by a statute substantially re-enacting and extending its pro- visions does not affect the existence of corporations organized under it. United Hebrew B. Assoc, v. Ben- shimol, 130 Mass. 325. 4 INIunicipality No. 3 v. Michoud, 6 La. Ann. 605. 8 Commonwealth v. Welch, 2 Dana, 330. s Hooker v. Hooker, 10 Sm & M. 599 ; HaUoran v. T. & N. etc. R R. Co. 40 Tex. 465 ; Burch v. Newbury, 10 N. Y. 374. 7 Stewart v. Davidson, 10 Sm. & M. 351 ; Johnson v. Johnson, 52 Md. 668. 8Boatwi-ight v. Faust, 4 McCord, 439. Statutes prescribing the requi- sites to be observed in making a will may be made to operate upon wills already made where the testator dies afterwards. Sutton v. Chenault, 18 Ga. 1; Wynne v. Wynne, 2 Swan, 405. So its provisions may be con- trolled and their vahdity affected by legislation intermediate the execution of the will and the death of the tes- tator. Magruder v. Carroll, 4 Md. 335. See Blackman v. Gordon, 3 Ricli. Eq. 43. Congress has power to authorize by special act the extension of a patent, notwithstanding the fact that the original patent had pre- viously expired and the invention has been intrdduced to pubhc use. A special act of congress authorizing the extension of a particular patent should be read and construed in con- nection with the general acts on the subject of patents. Jordan v. Dob- son, 2 Abb. (U. S.) 398. 9 Westervelt v. Gregg, 12 N. Y. 203 ; Bouknight v. Epting, 11 S. C. 71. EETROACTTVE STATUTES. 629' or the executive department of tlie government, nor by the rules of practice adopted by the officers of the latter depart- ment ; nor are the courts in determining those rights to be con- trolled by the action or rules of practice of the other depart- ments.' It is not within the power of the legislature to create a legal liability out of a past transaction, for which none arose by the law as it stood at the time of its occurrence.^ § 481. Imperfect and inchoate rights are subject to future legislation and may be extinguished while in that condition ; ' but such statutes, and others which involve expense or inter- fere with the existing course of business, will not be con- strued to affect such rights or existing cases, or impose new d uties or disabihties in respect of past transactions, unless the intention to do so is clearly expressed — even remedial stat- utes.* § 482. Remedial statutes may apply to past transactions and pending cases.* — Where statutory relief is prescribed for a cause w^hich is continuous in its nature, as a statute of lim- itations, or desertion for a certain time as ground for divorce, if the cause continues after the statute goes into effect, the future continuance of the cause may be supplemented by the time it w^as continuous immediately before the act w^as passed to constitute the statutory period.^ No person can claim a 1 Wilson V. Wall, 34 Ala, 288. See Red River, 29 La, Ann. 608 ; Kimbray Hauensteine v. Lynham, 28 Gratt. 62, v. Draper, L. R. 3 Q. B. 160 ; Wright v. 2 Steele v. Steele, 64 Ala. 438 ; Coosa Hale, 6 H. & N. 227 ; Singer v. Has- R. Co. V. Barclay, 30 id. 120 ; Frasier son, 50 L. T. 326 ; Excelsior Manuf'g V. Town of Tompkins, 80 Hun, 168 ; Co. v. Keyser, 62 Miss. 155 ; Garrison N. Y. etc. R. R. Co. v. Van Horn, 57 v. Cheeney, 1 Wash. T'y, 489 ; Garden- N. Y. 473 ; Sutherland v. De Leon, 1 hire v, McCombs, 1 Sneed, 83 ; Johnson Tex. 250. V. Koockogey, 23 Ga. 183 ; Lockett v. 3 Cage V. Hogg, 1 Humi)h. 48 ; Tivey Usry, 28 id. 345 ; Eskridge v. Ditmars, V. People, 8 Mich. 128. 51 Ala, 245 ; Sumner v, IVIiller, 64 * State V. Bradford, 36 Ga. 422 ; N. C. 688 ; BaUey v. R. R Co. 4 Harr. Bond V. Munro, 28 id. 597 ; The Iron- 389 ; Berry v. Clary, 77 Me. 482 ; Costa sides. Lush. 458 ; Allhusen v. Brook- Rica v. Erlanger, L. R. 3 Ch. Div. 69 ; ing, L. R. 26 Ch. Div. 564; Evans v. Duauesburgh v. Jenkins, 57 N. Y. 191. Williams, 2 Dre^v^y & Sm. 324 ; t* McCraney v. McCraney, 5 Iowa, Marsh v. Higgins, 9 C. B. 551 ; AVaugh 232 ; Benkert v. Benkert, 32 Cal. 467 ; V. Middleton, 8 Ex. 352 ; Green v. Tliornburg v. Thomburg, 18 W. Va. Anderson, 39 Miss. 359. 522 ; Spencer v. McBride, 14 Fla. 403 ; 5 Ludeling v. His Creditors, 4 Mar- Ross v. Duval, 13 Pet 45 ; Hare v, tin (N, S.), 603 ; Carnes v. Parisli of Hare, 10 Tex. 355 ; Greenlaw v. Green- 630 EETROACTIVE STATUTES. \ ested right in any particular mode of procedure for the en- forcement or defense of his rights.^ Where a new statute deals with procedure only, jprima facie it appUes to aU ac- tions — those which have accrued or are pending, and future actions.' If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern, and regulate the proceedings.' But the steps already taken, the status of the case as to the court in which it was com- menced, the pleadings put in, and all things done under the late law, will stand, unless an intention to the contrary is plainly manifested ; and pending cases are only affected by general words as to future proceedings from the point reached when the new law intervened.* A remedy may be provided for existing rights, and new remedies added to or substituted for those which exist.* Every case must to considerable ex- tent depend on its own circumstances. General words in remedial statutes may be applied to past transactions and law, 12 N. H. 200 ; Clark v. Clark, 10 id. 391 ; Crossman v. Crossman, 33 Ala. 486 ; Bailey v. BaUey, 21 Gratt 43. lid. 2Chaffe V. Aaron, 62 Miss. 29; Wright V. Hale, 6 H. & N. 227 ; Ed- monds V. Lawley, 6 M. & W. 285 ; Kimbray v. Draper, L. R. 3 Q. B. 160 ; Lawrence E. R. Co. v. Mahoning Co. 35 Ohio St. 1 ; Matter of Beams, 17 How. Pr. 459 ; Sampeyreac v. United States, 7 Pet. 222 ; Dobbins v. Bank, 112 UL 553 ; People v. Tibbets, 4 Cow. 384 ; People v. Supervisors, 63 Barb. 83 ; Lane v. Nelson, 79 Pa. St. 407 ; Gardner v. Lucas, L. R. 3 App. Cas. 582 ; People v. Peacock, 98 lU. 172 ; Rockwell V. Hubbell, 2 Doug. (Mich.) 197 ; Henscliall v. Schmidtz, 50 Mo. 454 ; Jacqums v. Clark, 9 Cusk 279 Blair v, Cary, 9 Wis. 543 ; Common- wealth V. Bradley, 16 Gray, 241 Walston V. Commonwealth, 16 B. Mon. 15; McNamara v. Minn, etc, R. R. Co. 12 Mum. 388; Rivers v, Cole, 38 Iowa. 677, 3 Ludeling v. His Creditors, 4 Mar tin (N. S.), 603 ; Scott v. Duke, 3 La, Ann . 253 ; Commercial Bank v. Mark- ham, id. 698 ; Featherstonh v. Comp- ton, 8 id. 285 ; State v. Brown, 30 id. 78 ; Tennant v. Brookover, 12 W. Va. 337. 4 Culver V. Woodruff Co. 5 Dill. 392 ; Ewing's Case, 5 Gratt 701 ; Ti'ist v. Cabenas, 18 Abb. Pr. 143 ; Womack v. Womack, 17 Tex. 1 ; Litch v. Brother- son, 25 How. Pr. 416 ; Tennant v. Brookover, supra; Newsom v. Green- wood, 4 Oregon, 119 ; State v. Solo- mons, 3 HiU (S. C), 96; Bates v. Steams, 23 Wend. 482; Bedford v. Shilhng, 4 S. & R. 401; Butler V. Palmer, 1 Hill, 324; WUhams v. Smith, 4 H. & N. 559; Palmer v. Conly, 4 Denio, 374; Satterlee v. Matthewson, 2 Pet. 380. 5 Anonymous, 2 Stew. 228 ; Com- monwealth V. Hall, 97 Mass. 570 Sutherland v. De Leon, 1 Tex, 250 Davis V. Branch Bank, 12 Ala. 463 Coosa R. Co. V. Barclay, 30 Ala, 120; City v. R. R. Co. 35 La. Ann. 679 ; Buckley, Ex parte, 53 Ala. 43 ; Society, etc. v. Wheeler, 2 GaR 139. EETEOACTIVE STATUTES. C31 pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of con- venience, reasonableness and justice.^ § 483. Curative statutes.— The legislature has power to pass healing acts which do not impair the obligation of contracts nor interfere with vested rights.^ They are remedial by cur- ing defects, and adding to the means of enforcing existing •obligations.' The rule in regard to curative statutes is that if the thing omitted or failed to be done, and which constitutes the defect sought to be removed or made harmless, is some- .thing which the legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act, or doing it in the mode which the legislature might have made immaterial by a prior law, it may do so by a subsequent one.* On this principle the legislature may validate contracts made ultra vires by munici- pal corporations.^ It may thus ratify a contract of a municipal 1 TUton V. Swift, 40 Iowa, 78 ; MU- ler V. Graham, 17 Ohio St 1 ; Riggins V. State, 4 Kan. 173 ; State v. Smith, 58 Comi. 397; Mabi-y v. Baxter, 11 Heisk. 682 ; Mann v. McAtee, 37 CaL 11 ; Chaney v. State. 31 Ala. 343 ; Mer- win V. BaUard, 66 N. C. 398 ; Sunco V. State, 8 Tex. App. 406 ; Bradford v. Bai'clay, 43 Ala. 375 ; Duanesbm-gh v. Jenkins, 57 N. Y. 191. 2 Green v. Abraham, 43 Ai'k. 420. 3 Jarvis v. Jarvis, 3 Edw. Ch. 463 ; Satterlee v. Matthewson, 2 Pet 38a ^ Green v. Abraham, s^ipra; State v. Squires, 26 Iowa, 340 ; Watson v. Mer- cer, 8 Pet 88; Cliesnut v. Shane, 16 Oliio, 599 ; Newman v. Samuels, 17 Iowa, 518; Journeay v, Gibson, 56 Pa. St 57; Shonk v. Brown, 61 id. 327 ; Dulany v. Tilgliman, 6 G. & J. 461 ; Dentzel v. Waldie, 30 Cal. 138 Johnson, v. Richardson, 44 Ark, 365 Bamet v. Barnet 15 S. & R 73 Tate V. Stool tzfoos, 16 id. 35 ; Jackson V. Gilchrist, 15 Jolm. 89 ; Raverty v. Fridge, 3 INIcLean, 330 ; Gosliorn v. PurceU, 11 Ohio St 641; Davis v. State Bank, 7 Ind. 316 ; Tliornton v. McGrath, 1 Duv. 349 ; State v. Town of Union, 33 N. J. L. 350 ; Jackson- ville V. Basnett, 30 Fla, 525 ; Re Van Antwerp, 1 T. «& 0. 433 ; 56 N. Y. 261 ; Bass V. Mayor, etc. 30 Ga. 845 ; Honey V. aark, 37 Tex. 686 ; Montgomery v. Hobson, Meigs, 437; Constantine v. Van Winkle, 6 HiU, 177; Van Winkle v. Constantine, 10 N. Y. 422 ; Hardenbm-gh v. Lakin, 47 N. Y. 109 ; Davis v. Van Arsdale, 59 Miss. 367 ; Jackson v, Dillon, 2 Overt 261 ; Matthewson v. Spencer, 3 Sneed, 513 ; O'Brian v. County Commissioners, 51 Md. 15 ; Washington v. Washing- ton, 69 Ala 281 ; Vaughan v. Swayzie, 56 Miss. 704 ; People v. Supervisors, 20 Midi. 95 ; People v. I\Iitchell, 35 N. Y. 551 ; People v, McDonald, 69 id. 362 ; Duanesburgh v. Jenkins, 57 N. Y. 191 ; Morris v. State, 62 Tex. 728. * O'Brian v. County Commission- ers, 51 IMd. 15 ; Bass v. Mayor, etc. 30 Ga, 845; Single v. Supervisor, 38 Wis. 303 ; Brown v. Mayor, etc. 63 N. Y. 239. 632 RETKOACTIVE STATUTES. corporation for a public purpose. Municipal corporations are agencies of the state through which the sovereign power acts in matters of social concern. It may confer upon them, subject to such constitutional restraints as exist, power to enter into con- tracts, and may annex such limitations and conditions to its exercise as, in its discretion, it deems proper for the protection of the pubhc interests. The right to limit involves the power to dispense with limitations ; and in such case as the legislature could have authorized a contract without previous advertise- ment, or competitive bidding, it may affirm a contract made, although made originally without authority of law.^ The leg- islature may establish contracts and deeds defectively exe- cuted, acknowledged or recorded,- including those of married women;' marriages may be validated and offspring legiti- mated ; * also defective sales of property ,5 defective assessments of taxes,^ and municipal ordinances irregularly adopted.'' § 484. The important question on such statutes is, would the acts done be effectual for the purpose intended, if a law, made prior to those acts, had directed them as they were done ^ whether the statute alone made them essential for that pur- pose. Acts which are jurisdictional and could not be antece- dently dispensed with by statute cannot be made immaterial by subsequent legislation.^ Eights resting upon such curable de- fects alone cannot be deemed meritorious and are not entitled to the protection accorded to vested rights. Where they are- 1 Id. ; In re Van Antwerp, 56 N. Y. Washington v. Washington, 69 Ala. 261. 281. 2 Jackson v. Dillon, 2 Overt. 261 ; 5 Davis v. State Bank, 7 Ind. 316 ; Montgomeiy v. Hobson, Meigs, 437 ; Thornton v. McGrath, 1 Duv. 349 ; Jackson v. Gilchrist, 15 John. 89 ; Power v. Penny, 59 Miss. 5. Hardenburgh v. Lakin, 47 N. Y. 109 ; « Davis v. Van Arsdale, 59 Miss. 367 Atwell V. Grant, 11 Md. 101 ; Cutler People v. McDonald, 69 N. Y. 262 V. Supervisors, 56 Miss. 115 ; Hughes Jacksonville v. Basnett, 20 Fla. 525 V. Cannon, 2 Humph. 589. Cochran v. Baker, 60 Miss. 282 1. 3Constantinev.VanWinkle,6Hill, Francklyn v. Long Island City, 32: 177 ; Van Winkle v. Constantine, 10 Hun, 451 ; Vaughan v. Swayzie, 56- N. Y. 422 ; Johnson v. Pachardson, 44 Miss. 704. Ark. 365 ; Watson v. Mercer, 8 Pet. ' State v. Town of Union, 33 N. J. L. 88. But see Alabama Ins. Co. v. 350; Walpole v. EUiott, 18 Ind. 258; Boykm, 38 Ala, 510. Schenley v. Commonwealth, 36 Pa.. ^Honey v. Clark, 37 Tex. 6^,6 ; St. 29 ; MoitIs v. State, 62 Tex. 72a 8 State V. Town of Union, mpra. EETEOACTIVE STATUTES. C33 relied on as an excuse for repudiating contracts, executory or executed, they are not within the protection of the constitu- tion.* If the jurisdictional facts are wanting the proceeding is a nullity and cannot be cured by any subsequent legislation, for no prior legislation could make it effectual. Thus, for example, in Lane v. Kelson : ^ "It is settled by a current of authority that the legislature cannot by an arbitrary edict take the property of one man and give it to another ; and that when it has been attempted to be taken by a judicial proceed- ing, as a sheriff's sale, which is void for want of jurisdiction, it is not in the power of the legislature to infuse life into that which is dead." ' 1 Baugher v. Nelson, 9 Gill, 299 ; S. 171 ; Greenough v. Greenough, 11 O'Brian v. County Commissioners, Pa St 489 ; De Chastellvix v. Fair- 61 Md. 15 ; Thomson v. Lee County, child, 15 id. 18 ; Menges v. Dentler, 3 WalL 337 ; People v. Mitchell, 35 33 id. 495 ; Bagg's Appeal, 43 id. 512 ; N. Y. 551 ; Johnson v. Richardson, 44 Schafer v. Eneu, 54 id. 304 ; Shonk v. Ark. 365 ; Green v. Alpraham, 43 id. Brown, 61 id. 320 ; Richards v. Rote, 420. 68 id. 248 ; Hegarly's Appeal, 75 id. 2 79 Pa. St 407. 50a ' Citing Newman v. Heists 5 W. & INDEX. ABATEMENT — of action, how prevented, by liberal cx)nstruction of statute of limita- tions, in case of death or marriage of party, § 424 ABSURDITY — arguments based on, out of place against plainly expressed intention, §§ 238, 324 general words may be restricted to avoid, g§ 246, 258, 410. hteral constniction may be departed from to avoid, g§ 323, 324 and if ambiguous or imcei-tain, will be avoided by construction, § 324 ACCESSION TO OFFICE — courts take judicial notice of, § 298. ACTION — plaintiff should have title at commencement of, § 148. reti-ospective vesting of title presumed not intended to affect pending action, § 148. statutes for limitation of, how construed, §§ 424-426. statutes regulating procedure apply to pending, § 482. ACTUS NON FACIT REUM, NISI MEUS SIT REA, §§ 354, 355. AFFIDAVIT — when reqiiired of a paiiy may be made by attorney of corporation, § 420. statutoiy direction to verify assessment roll by, dii-ectory, § 452. AFFIRMATIVE STATUTES — what are, § 202. their operation, §§ 202-2C4 how form affects construction as to being directory or mandatory, § 447. AMBIGUITY — in pubUc grants resolved in favor of govei-nment, §§ 378-380, AMENDATORY ACTS — constitutional regulations, § 131. they are mandatory, § 131. purpose of, § 131. make no change in the effect of amendment, § 133. require re-enactment of amended section, § 132. even when a subdivision clause is amended, § 132. not necessary to restate old act or section amended, § 132, an erroneous recital of it, surplusage, § 132. requirement when act revised, § 132. 636 INDEX. AMENDATORY ACTS (continued) — a section amended to "read as follows," g§ 132, 133, 137. repeals what is not embraced in amended form, § 133. new matter tlius introduced operates only from the taking effect of amendatory act, § 133. old matter re-enacted is continued in force without interruption, §§ 133, 134, 142. operates prospectively by virtue of re-enactment, § 133. repeal of amendatory act repeals same matter in amended act, §133. general words of time constiaied disti'ibutively, § 133. how statute amended operates prospectively, § 133. when repeal and re-enactment not simultaneous, § 134 constitutional regvilation may apply to independent act which is intended to be amendatory, § 135. implied amendments by independent acts, § 185. not within the mischief intended to be remedied, § 135. nor is a statute wliich furnishes a rule of construction, § 185. nor one referred to for procedure, § 135. of two constructions warranted by the words, that will be adopted which best harmonizes with the general tenor and spirit of amended act, § 833. a:mendments— admissible during process of enactment of bill, § 49. must be germane to subject of bill, § 49. concurrence in, made by other house, does not require yeas and nays, § 49. construction of remedial statute for, of records of courts, § 419. ANiaiALS — right to detain trespassing till charges paid, etc., strictly construed, §398. APPEAL — right of, to one who thinks himself aggrieved, not extended to default judgment, § 339. statutes prescribing method of, strictly construed, § 394 when recognizance required of appellant by statute, how construed as to corporations, § 421. statutes hberally construed which give a right of, §§ 440, 443. \ notice to give effect to limitations for, § 369. APPROPRIATION ACT — provisions in, presumed to have temporary effect like the act itself, §218. ARBITRATION — statutes providing for and regulating, liberally construed, §§ 401, 439.^ ASSESSMENT — affidavit to verify, not imperative, § 453. INDEX. 637 ASSIGNMENTS — for benefit of creditors, statutory regulations concerning, to prevent fraud, mandatory, § 459. ASSOCIATED WOEDS — effect of, in construction, §§ 263, 266. ATTACHMENT — statute giving writ of, strictly construed, § 393. and to be strictly followed, § 393. ATTORNEYS- AT-LAW — females not eligible by construction of the general word " citizen," § 321. AUTHORITY — statute should, if possible, be so construed as to bring it within the legis- lative power, § 423, BASTARDS — acts legitimating, hberally construed, § 442. father of, affected by statute made after begetting, requiring contribu- tion for support of, § 464 BILL — ACT — ORDINANCE — definitions, §§ 60, 61, 64. BLACKSTONE, SIR W^L— his views of the union of the fundamental powers, § 2. BOARD OF SUPERVISORS — statute requiring signing record of their proceedings, directory, § 451. BONA FIDE PURCHASERS — statutes for the protection of, and creditors, not appUcable to others, §429. BOUNDARIES — com'ts take notice of boundaries of state, § 298. BOUNTY — hberal construction of, § 442. BRIDGE — franchise to buUd not construed to be exclusive, § 378. grant of right to build does not include right to obstruct navigation, g386. power to municipal corporation to lay out highways does not include right to obstruct navigation by, § 386. BUILDING ]\L\TERIAL — regulations concerning, in fii'e Kniits, mandatory, § 459. BURDEN — statute imposing, or exempting from common, strictly construed, §§ 361- 304. BY-LAWS — not judicially noticed, § 296. penalty of, may be inciurred without criminal mind, § 355. 638 INDEX. CALENDAR — courts take notice of, § 302. CASUS OMISSUS — can never be supplied by court, §§ 430, 433. not the province of courts to supply defective enactments, § 43L act providing for companies to make and supply gas does not authOTize them to supply natural gas, § 433. CENSUS — courts take judicial notice of the resiilts of, when official, § 298b CERTIORARI — statute granting, liberally construed, § 440. CHARGE TO JURY — remedial provision for filing of record, § 437. requirement to be in writing, how construed, § 452. CHARTER — of corporation, serves twofold purpose : to create and define the agree- ment between members, § 382. is the measm-e of the corporate powers, § 382. CHILD — how construed, § 258. illegitimate, when entitled to statutory rights granted to, § 371. includes grandchild, § 253. CITIZEN — comprehensively understood includes females, but they maybe excluded in considering existing laws and their policy, § 331. CLAIM — definition of, 253. COLONIAL LAWS, §§ 17, 18. COLONISTS — right of, to laws of mother country, § 15. the force and nature of such laws, § 16. what Enghsh statutes brought by, to this country, §§ 15, 16, 195. EngUsh statutes passed after establishment of colonies, § 17. COMITY — as to efi'ect of foreign laws, § 12. transitoiy rights enforcible subject to principles of, § 13. foreign law considered by, §§ 184, 188. COMMON COUNCIL — being gianted power to judge of the election of its members does not oust the courts of jurisdiction, § 384 acts prohibiting members being interested in contracts, business, etc, of municipality, § 444 mandatory provisions governing proceedings by, § 457. giving power, and permissive in form, § 462. INDEX. 639 COMMON LAW (see Colonists) — act mitigating rigorous rule of, relative to ship-owners, how construed, §442. statutes in derogation of, strictly construed, §§ 139, 290, 400. if remedial, liberally consti'ued, g§ 400, 401. when a statute changes a comzuon-law offense, it is still a common-law offense, § 142. it is repealed when a statute defines and enacts a common-law offense and prescribes a penalty, § 142. words having delinite sense in the, to be construed by, §§ 253, 291. "heir," one capable of inheriting; "actions," "svut," "final judg- ment," "party," §254. rules of interpretation derived from, § 289. its part in our jurisprudence, § 289. not presumed the legislature intends to make innovations upon, beyond necessity, § 290. statutory lien has common-law incidents, § 290. available to ftimish means to effectuate a statute, § 291. statute in affirmance of, construed by, § 291. statutes in amendment of, construed in hght of, § 291, covirts take notice of, § 295. CXDMMUNIS ERROR FACIT JUS — when may be invoked, §§ 309, 311, COMPENSATION — for land taken for pubhc use to be sought according to statute, § 398. acts giving, to persons whose property taken compulsorily, § 441. COMPETITIVE BIDDING — requirement to let contract by, under m\micipal charter, imperative^ §457. sealed bids, and opening of, § 458L COMPUTATION OF TIME — general nile of computing time consisting of days, weeks, months or years, § 111. the period consists of entire days, § 111. when fractions of a day recognized, § 110. when computation from an act done or date, the day of that act or date excluded, § 112. " from," is a term of exclusion, § 112. the words "to," " till" or "until" inclusive, § 113. the first day excluded, and the last included in computing the period, § 112. computation, when a summons or notice required to be served a given number of days, § 113, where right to be exercised within a determinate period, § 114 when Sundays included or excluded, § 115. CONDITION — if act forbidden except on, and condition is impossible, the prohibition is absolute, § 222. 6i0 INDEX. CONGRESS — has only delegated powers enumerated, § 4 their scope, §§ 31, 23. power lo legislate for territories, § 23. CONSEQUENCES — courts have no concern with, when the law is plain, § 824 it is then their simple duty to execute it, § 324. CONSTITUTION (see Titles of Statutes) — the great charter of repubhcan government, § 3. the organic and paramount law, § 2. defines and divides the governmental powers, § 3. separation of legislative, executive and judicial powers, §§ 3-5. requirements as to legislative procedure mandatory, §§ 26, 41, 42, 5^ 64-66. as to legislative powers, §§ 63-66. as to titles and subjects of statutes, § 76. generally regarded as mandatory, §§ 79-81, 117. mischief intended to be cured, § 78. liberally construed to aid legislation not within mischief, §§ 83, 92, 93. prohibition of special and local laws, § 116. reqviirement of general laws, and their uniform operation, § 116. whether general laws can be made applicable is a legislative question, §117. if a general law exists, that question answered, § 118. imperative to pass only general laws on enumerated subject, § 118. appUcations of general words of statute denied or excepted when im- constitutional, § 836. CONSTRUCTION (see Contemporaneous Construction; Liberal Con- struction; Strict Construction; Words and Phrases) — re-enactment of statutes to prevent imphed repeal, §§ 138, 148-153. title by entireties not abolished by statute giving married woman con- ti'ol of her separate estate, § 150. when general and a particular intent expressed, latter prevails, §§ 153, 158, 159, 167, 216, 222. statute to take effect at a futm-e day, how consti-ued, § 160. of re-enacted statutes, § 168. of repealing statutes, § 168. reference had to pre-existing law in construction of revision, § 162. Uberal, of remedial statutes, § 207. how quahfied by other rules of constmction, § 207. as where punitive compensation for wrong, § 308. strict, of certain statvites of remedial natm-e, § 207. of penal statutes against accused, § 208. of statutes in derogation of common law, § 207. of statutes for taking private property for pubUc use, § 207. authorising svmimary proceedings, § 207. more or less strict according to severity of penalty, § 308. use of title of statute in, § 310. effect of constitutional restriction to one subject expressed in title, § 21L INDEX. C41 ■CONSTRUCTION (continueil) — language of act to be construed in view of title, § 211. value of preamble for, g§ 212, 213, 247. one part of statute to be construed with another, § 215. presumed all parts intended to harmonize, § 215. general words may be (lualified by expression of partievdar intent, § 216. general act may be limited by excei)tions, provisos, etc., § 216. partial couHict may cause an excei)tiun, g 217. not allowed to revoke or alter a statute when words may have proper effect without, § 217. contradictions, however, cannot stand together, § 217. statute itself furnishes the best means of its own exposition, § 219. when intention thus ascertained it will prevail, ^ 219. effect of provisos, exceptions and saving clauses, § 222. what they quahfy, g 222. presumption that what is excepted would otherwise be within pur- view, g 222. proviso sti'ictly construed, § 223. the intention of provisions qualified by provisos, saving clauses, etc., to prevail, §§ 221, 228. legislative, has weight, g 229. to depart from literal, what two things necessary, § 238. effect to be given to every part, §§ 239, 240. inconsistent expressions to be harmonized, §§ 239, 260. to be consti'ued as a whole and so as to accomplish the legislative intent, §§ 239-246. of words and phrases, §§ 218, 219, 247-255. of re-enacted statutes, §g 255, 256. of statutes adopted by general reference, § 257. of statute incorporated in another, § 257. of words of reference, § 257. with reference to grammatical sense, §§ 258, 259. should receive reasonable and common sense, § 259. mistakes may be corrected by, § 260. mistaken reference may be corrected by context, § 260. where one word has been used for another, or omitted, § 260. the strict letter is thus made to yield to the mtention, § 260. meaningless words may be eUminated by, § 260. to supply omitted words, or read statute in different words, intent must be clearly expressed, § 260. of associated words, §§ 262-266. of relative and quaJifyiug words and phrases, § 267. when general words follow particidar, g§ 268-281. reddendo singidar singidis, g 282. regiilations on a given general subject will extend to new class of same subject subsequently added, § 284. and exceptions in such regidations wUl apply, § 284 doubtful provisions not to be constiaied to conflict with general princi- ples, § 287. 41 642 INDEX. (X)NSTRUCTION (continued) — of statutes in pari materia, § 288. with reference to the common law, § 289. a statute should be construed as a whole with reference to the whole system of which it is a part, § 219. value of preamble in, §§ 212, 213, 247. extrinsic facts, wliich are supposed to have been known to legislature, not provable to aid, § 298. liberal, §§ 408-445. of statute of Hmitations, §§ 424-426. of old statutes re-enacted after having received a construction, § 424 when statute has made no exception the covirts can make none, § 427. of statute of frauds, § 427. to prevent delays in obtaining judgment, § 435. relative to arbitrations, § 439. giving right of appeal, § 444 extending elective franclaise, § 441. taking away penalties, § 441. providing compensation to parties whose property compulsorily taken, § 441. of provisions in favor of tax-payers, § 441. in favor of those affected by proceedings in derogation of common right, § 441. for protection of officers, § 442. married women, § 442, of acts for accomplishment of pubhc objects, § 443. sti'ict, wUl not be given to penal laws which are declared by the statute to be remedial, § 445. as to being du-ectory or mandatory, §§ 446-463. opposed to giving retrospective effect, § 463. or to affect existing rights, § 464 or to create new obUgations, § 464 as to being ex post facto, §§ 465^70. as to impairing obhgation of conti'acts, §§ 471-479. documents for, to be read in view of siu-rounding facts, § 300. any document equally authentic as a statute in which the objects of a statute are made known may be referred to, § 300. journals of convention referred to to learn intention of words in con- stitution, § 300. of legislature for hke purpose, § 300. or history of enactment, § 300. or to see if duly passed, § 300. declarations of members of legislature as aid to construction, § 300. contemporaneous, when invoked, § 307. statutory, prospectively conclusive, § 307. when acted on by inferior courts, § 307. when decisions conflicting, § 307. effect of general usage on, § 308. . local differences in construction of general statutes disregarded, § 808. INDEX. G43 CONSTRUCTION (continued) — practical, by those for whom law enacted not lightly questioned, § 309. effect of in interior department of the general government, § 309: of state and county officers, § 309. should be adhered to, §§ 310, 313-320. ■with reference to eirects and consequences, §§ 321-324 presumed not intended to affect existing institutions, systems and policies any fm-ther than the terms of the statute require, § 321. ought to be reasonable if the words will permit, §§ 322, 324 so that pubUc and private rights are not infringed, §§ 322, 323, 334 considerations of what is reasonable, convenient, causes hardship or injustice have weight, §§ 322, 323. pernicious consequences will be avoided by, if possible, § 322. presumed tliat legislature intend every part of a law to have effect* g 325. that statutes passed from good motives, § 330. that facts necessary to validity of statute existed, § 331. that the legislature did not intend a vain tiling, § 331. or to violate the constitution, § 331. strict and hberal compared, g§ 346-3^18. strict, not precise converse of Uberal, §§ 347, 348. does not admit of expansion beyond letter, §§ 347, 348. strict, varies according to gravity of consequences, § 347. strict, results from many rules of, § 347. strict, consistent with effect to carry out intention, §§ 348-350. strict^ of penal statutes, §§ 347-361. penal statutes cannot be extended beyond their- letter by, § 350. cases within the policy or miscliief of statute excluded if not within the letter, gg 350-352. etrict, does not preclude the application of common sense, §§ 350-3o6w most favorable to accused to be adopted, §§ 353, 357. of revenue laws, §§ 361-363, 365. exemption from taxation and other common burdens, § 364 statutes against common right, § 366. of limitations, § 368. as to new trials and appeals, § 369. interfering with legitimate industries, § 370. of statutes creating liabilities, §§ 371-377. for costs, §§ 371, 372. causing death, § 371. discharging insolvent debtors, § 372. granting exemptions from execution, § 372. allowing recoveries for damages resulting from intoxication, against sellers, etc., §§ 373-377. of pubUc grants, §§ 378, 379. delegation of power, §§ 379-396. of statutory rights, §§ 397, 398. statutes in derogation of the common law. § 400. 641 INDEX. CONSTRUCTION (continued) — interpretation clause authoritative, § 402. contemporaneous legislative consti-uction high evidence of intention, §403. so far as it professes to declare the past or present meaning of statute, not binding on the courts, § 402. policy of law, how considered for, § 407. CONTEMPORANEOUS CONSTRUCTION — what is, §g 307-312. ' when invoked, § 307. length of time continued important consideration, § 312. has implied judicial, legislative and popvilar sanction, §§ 307, 809. where statute doubtful, effect of long construction by inferior courts, §307. of constitution, long acquiesced in, § 307. by official usage, § 309. judicial interpretation, § 310. •CONTEXT — may serve to engraft an exception to general words by implication, § 216. to restrict general words, or expand them, §§ 216, 239-241. words expanded or hmited to agree with general intent, ^■§ 218, 237-246. statute itself furnishes the best means of its own exposition, §§ 219, 237, 241. when the words not certam, intent may be collected from context, etc., §241. may modify meaning and effect of words of absolute repeal, § 242. and of particular words and expressions, § 242. may show the word orphan to mean minor, § 242. jury merely a credible person, § 242. birds not live animals, § 242. may show intent that limited expression shall be expanded, § 245. to be consulted to learn in what sense words intended to be used, § 246. wiU not change effect of words contraiy to intent, § 246. popular meaning of words accepted imless contrary intention appeai-s by, § 250. othei-wise when the context shows different intention though a general statute directs that the popular meaning be followed, §251.' ■" and " and " or " used indifferently, xmless other intent indicated in, §252. effect of, showing repeated use of same words, § 254. available to correct mistakes, g 260. effect of associated words, §§ 262-265. effect of, when general words f oUow particular, §§ 268-281, CONTINUING POWER — when not conferred, § 482. INDEX. C45 CONTRACTS — illegal when in contravention of law, §§ 335, 386. may be valid though contiavening revenue regulations, § 336. obhgation of, detined, g?; 471, 477. what are, within proliibition of laws inipaiiiug obligation of, § 472. certam laws part of, § 471. state, like a natural person, bound by its contracts, g 472. municipal charters not, § 473. charters giving bounties, patents and copyrights are, § 473. may be vahdated by statute, § 474. of state, protected f roua impairment like those of private persons, § 475. how its contracts may be impaired, § 475. if a contract a nullity it cannot be made good by subsequent legislation^ §480. when, may be made good by statute, § 483. CONTRADICTIONS — cannot stand together, § 217. how resolved where general provision, applicable to multitude of sub- jects, antagonized by another, appUcable to a pait of those sub- jects, § 217. considerations of reason and justice have weight in adjusting such conflict, § 217. effect of analogies in such case, § 217. effect of total confUct, § 220. effect of, by provisos and saving clauses, § 221. CONVENIENCE — argument based on, forcible, § 152. out of place against plainly expressed intention, § 238. considered in construction of statutes, §§ 322, 324. argument upon, has no force when the law is plain, §§ 325, 332. presumption that mconvenience, injustice and absmdity not intended, §332. acts remedial when intended to promote public, § 438. CONVICTION — can be none for offense unless the law violated be in force, § 166. CORPORATIONS — established by pubhc law, judicially noticed, § 295. municiiial, vested with portion of governmental authority, § 380. confined in their action to powei-s granted, § 380. grants to, whether public or private, strictly constmed, §§ 380, 381, 383. city having power to make contracts to supply water cannot constitute a monopoly, § 384. charter construed with reference to the whole, and not the individuals, §381. cannot be created except by statute, § 382. powers of, only such as statutes confer, § 382. no particular form of words necessary to create, §, 383. may result from necessary implication, § 383. *64:6 INDEX. COEPORATIONS (continued) — enumeration of powers implies exclusion of others, § 382. may be organized under general law for every purpose within its lan- guage, § 383. even for a business which could not have been within the legislative contemplation, § 383. granting to common council power to judge of the election of its mem- bers does not oust the comrts of jurisdiction, § 384 mvist pursue statutory modes when any are prescribed ; otherwise may act in customary way, § 385. grants of special powers to, to be followed as mandatory, § 456. consti-uction of law authorizing, to act when certificate of organization filed, § 456. must conform their action to law of their creation, § 456. all subject to the exercise of the essential powers of government, § 473. Uabihty of stockholders cannot be altered by law subsequent to con- ti'acting debt, § 474 COSTS — statutes allowing, how construed, § 371. statutory provision permissive in form as to, imperative, § 461. construction of statute relative to payment of by county when convict unable to pay, § 419. COUNTIES — subject to legislative control, § 473. COURTS — construction of foreign law by, § 192. have power to declare invaUdity of unconstitutional laws, § 831. will use their best energies to reconcile acts with constitution, § 331. of two possible consti'uctions will adopt that which will maintain stat- ute, § 332. wUl not pervert language and sense of statute to maintain it when plainly unconstitutional, § 333. ■judicially notice pubhc statutes, § 335. what included in supervisory power over inferior tribunals, § 342. inherent power of, to make rules, § 342. statutes not presumed to be intended to oust jurisdiction of superior, § 333. constitutional directions as to scope of decision directory, § 452. statutory direction that instructions to jviry be in writing, how con- strued, § 451. that they caution jury, directory, § 452. to advertise adjomiiment of, directory, § 452. terms of, fixed by law, judicially noticed, § 298. take notice who are their own officers, § 299. and their signatm-es, § 299. of their own records, § 299. not of what relates to another case, § 299. garnishment not another case, § 299. INDEX. C47 COURTS (continued) — provisions gi-anting special powers to, mandatory, § 456. words permissive in form, or importing power and authority, imper- ative, § 461. may declare statutes, contravening constitution, void, § 169. take judicial notice of public statutes, §§ 181, 198. and their derivation, validity, commencement and operation, § 181. state, take notice of federal statutes, g 181. will inform themselves of facts which affect statutes, §§ 181-183, 292-313. cannot judge of wisdom of statutes, § 235. cannot correct excesses or omissions in, § 235. confined to statutory power, § 391. to take notice of all proper records affecting the validity of statutes, §§ 41-45, 52-54. power of to make rvdes, § 68. to determine what are general laws, § 118. are not to determine when general laws can be made applicable, § 118. COVENANT — none impUed m pubUc grants, § 378. CRIMES — ai'e in theu* nature local, § 12. pimishable exclusively in tlie country where committed, § 12. CRimNAL MIND — necessary to conviction for offenses, §§ 354, 355. in what the wrongful intention may consist, g 355. by-laws may be violated without tliis element, § 355. reasonable belief in existence of chcumstances may rebut, § 355. may have exculpating effect, like absence of reasoning faculty, §355. CTBIULATIVE — grant of jmisdiction, when not exclusive, §§ 396, 399. new remedy where one already exists, § 399. CURATIVE ACT — as to instruments recorded, held not repealed by subsequent statute pro- hibiting recording such insti'uments, § 148. have a wholesome effect, § 206. legislatiure has power to pass, § 483. if they do not interfere with vested rights nor impair obligation of conti'acts, § 483. when vahd, § 483. may vahdate contracts and deeds defectively executed, acknowledged or recorded, § 482. marriage may be validated, § 483. and offspring legitimated, § 483. jurisdictional facts bemg wantmg, a proceeding requhing them fatally defective, ^§ 323, 484. and such defects cannot be cured by legislation, g 484 64 8 IKDEX. DA3IAGES — allowed by statute for causing death, § 371. resulting from intoxication, §§ 373-877. no apportionment of, among vendors of liquors, § 877. DEATH — statutes giving right of action for, to widow and next of kin, how con- sti-ued, g§ 371, 398. confined generally to pecimiary damages, § 371. liberal consti-uction of statute of limitations as appUed to actions abated by death or marriage, § 424. DEED OF TEUST — of mode of security, required on loaning pubUc funds, not imperative, ^452. DELEGATION — of legislative power, §§ 67-73. of taxmg power, strictly construed, § 365. of governmental authority, must be clearly made, § 380. powers granted to city not to be delegated to committee, § 384 DEVISE — power to take land by, not implied from that to incorporate, § 378» DIRECTORY STATUTES — explanation of, in comparison with mandatory statutes, § 446. no universal rule as to, § 447. aflfirmative statutes do not always imply a negative, § 447. importance of provision to be considered, § 447. its relation to others, § 447. provisions as to time, g§ 448-450. which are formal and incidental, §§ 451-453. substantial observance of, sufficient, § 451. DISTANCE — how computed on a river, § 253. DOCKET — of judgments, statutory directions concerning, how construed, § 451. EJUSDEM GENERIS — when things included in general words following particular must be^ §§ 268-276. such general words wiU not include things or persons of a superior class, § 277. consti-uction when enumeration is exhaustive, § 278. intention appearing it controls these iTdes, §§ 279, 280. ELECTION — statutes requiring proclamation concerning, mandatory, § 451. that inspectors of, be sworn, directory, § 452. concerning manner of conducting, directory, § 452. power gi-anted to common council to jvidge of election of their mem- bers not exclusive. § 384. INDEX. C49' ELECTIVE FRANCHISE — acts for extension of, liberaUy construed, § 441. EMERGENCY CLAUSE — constitutional jjrovisions requiring, § 108. effect of omitting, § 108. sufficiency of emergency is for the legislature, § 108. EMINENT DOMAIN — grant of right to take private property without consent of owner must be in plain words, g 387. strictly construed, g 387. statutes for condemnation of private property not to be extended by implication, § 387. being a comn\on-Iaw right, statutes regulating its exercise not to receive most rigid construction, § 387. what interest or estate in lands to be taken, § 387. necessitj' of taking a juchcial question, § 387. determination of corporate board not conclusive, § 387. in construing acts for exercise of, two lodes recognized, § 887. exercise of, in respect to property akeady devoted to pubUc use, § 388. power to invade prior appropriation not ordinarily mipUed, § 388. consti'uction with reference to property already appropriated to public use, § 389. mode provided for obtaining compensation exclusive, § 398. never imphed that the government has smrrendered the right of, § 378. every material requirement of the statute to be sti'ictly observed, § 456. proceedings to show this on then- face, § 456. ENABLING STATUTES — to be strictly pursued, § 454. ENACTING STYLE — importance of, under constitutions prescribing form, §§ 62-66, 214. ENACTMENT — proof of, §§ 27-45. ENUMERATION — object of, in statute, § 270. no a priori presumption that tilings enumerated are aU of the same kind, § 270. when general term follows, §§ 268-281. weakens general law as to things not expressed, § 828. EQUITABLE CONSTRUCTION — what is, §g 413, 414. now obsolete, §§ 413, 414 ESSENCE — of proceeding, statutes relating to, mandatory, § 456. EXCEPTION — what is, § 222. inti-oduced to qualify general language. § 216. 650 INDEX. EXCEPTION (continued) — intended when particular intent expressed in opposition to general in- tent, § 216. partial conflict between statutes causes, §§ 217, 243. context may have the effect to engi-af t an exception by implication, §§ 216, 243. an exception is not co-extensive with provision it qualifies, § 219. when part of enacting clause restricts merely to matter excepted, § 222. is co-extensive with matter which precedes, § 222. not always, § 222. must be negatived in pleading, § 222. express mention of certain, excludes others, § 326. strengthens force of general law, § 328. where the statute of limitations makes none, the courts cannot make any, § 427. unless in case of civil war, § 427. exception from a statute hberally construed will be construed strictly, §223. exceptions to general competency of witnesses, § 224. immemorial practice may conti'ol in consti'uction of general words of statute, § 429. "EXECUTION — statute requu-ing ofiicer to file certificate of sale under, directory, § 452. so the requhement to note on it the time of its receipt, § 452. du-ecting how levy under be made, directory, § 452. requirement that sales under be made at coui't-house, mandatory, § 455. EXECUTIVE POWER — of executive department, § 4 EXECUTORS — construction of remedial statute relating to new appointment of, on change of residence, § 419. act remedial providing for execution of powers of will by succession of, § 436. .EXEMPTIONS — in penal statutes construed hberally for the accused, § 227. in favor of debtors hberally construed, §§ 223, 420-423. from toUs on turnpikes UberaUy construed in favor of agriculture, § 420. yoke of oxen not necessarily yoke broken to work, § 420. from all taxation may by evident intention in context be only from taxation for revenue, § 243. confined to taxes mentioned in the act, § 246. what included in one-horse or ox-cart, § 248. statutes exempting from taxes or other common burden strictly con- strued, § 364. of property from execution, how construed, §§ 372, 422. what change admissible as to existing debts in favor of debtors, §§ 477, 478. INDEX. 651 'EX POST FACTO LAWS — effect of changing penalty by adding milder alternative, § 143. prohibited by constitution, §§ 206, 403. definition of, § 405. application of prohibition in federal constitution, §§ 465-470. prohibition of, ai)pUes only to ci-iminal laws, § 465. test of application, §g 405-407. requiring test oath as to past transactions, § 467. present acts, § 408. enlarging class of witnesses, § 468. taking away teclinical objections, § 469. changing place of trial, § 409. providing new tribunal, § 409. new treaties for surrender of fugitives, § 469. giving additional challenges to peofjle, § 469. reducing defendants' challenges, § 469. modifying grounds of challenge for cause, § 469. authorizing amendments of indictments, § 469. regulating the framing of indictments to facihtate procedure, § 469. requiring defense of insanity to be pleaded, § 469. allowing attorney fee to be added to penalty recoverable by civil action for unlawful Uquor tratfic, § 409. providing for severer penalty for repetition of offense, § 468. change of punishment is, § 470. except abatement of separable part, § 470. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS — maxim in aid of interpretation to ascertain intention, § 825. when mention of one or more things exclusive, §§ 325, 326. not applicable when instance stated by way of example merely, § 329. nor when declaratory of common law, § 329. nor when tliere is reason for mentioning one and not other, § 329. express saving, exception, etc., exclusive, g 328. when statute enumerates persons or things to be affected, others ex- cluded, § 327. ■when statute mentions the property on wliich rates to be levied, they can be levied on no other, § 327. enumeration of cu-cumstances constituting personal qualification exclu- sive, § 327. repeal limited to clause specified, g 327. revision repeals acts not included, g 327. statutory jm-isdiction confined to enumerated subjects, § 327. when right given by statute and remedy therefor prescribed, it is exclu- sive, §§ 399, 454-459. when new power granted, and means of executing it, they are exclu- sive, §§ 399, 454-459. when emancipation forbidden by general law, an act permitting it in a particular form, exclusive, § 454. enabling statutes governed by tliis maxim, § 454. as to time, § 456. 652 INDEX. FEDERAL STATUTES — tlieir scope and authority, § 21. federal and state legislation compared, §§ 21, 22. belong to one system, § 22. FEMALES — presumed not to be meant by the term " citizen " when used to designate persons who may be admitted as attorneys, § 321, FERRY — f rancliise to establish not construed to be exclusive, § 378. l^ublic, not included in pubhc grant of land or water-course, § 379. private right of, passes with fee, § 879. FORCIBLE ENTRY AND DETAINER — act extending remedy by, hberaUy construed as remedial, § 435. FORECLOSURE BY ADVERTISEMENT — statute regulating must be substantially followed, § 390. no intendments in favor of regularity, § 390. such sales are by contract, and therefore statute to have reasonable con- struction, § 391. FOREIGN LAW — effect of depends on comity, § 12. not judicially noticed by courts, §§ 12, 295. rejected when repug-nant to local pohcy, § 12. criminatory acts done imder, and consummated against law of forum, §12. penal, etc., laws not enforced, § 12. in case of colonization, § 15. laws of one state foreign to another state, § 22. not foreign in federal com'ts, § 22. presumption that it is the same as the lex fori, § 184 how proved, §§ 188, 190. functions of com-t and jury in relation to, § 192. authoritative exposition of, g§ 186, 191. what is, §§ 189, 190. proof of construction of, § 192. FOREIGN NATIONS — existence of, judicially noticed, § 297. and their forms of government, as recognized by the executive de- partment, § 297. FORMAL ACTS — statutory provisions concerning, directory, §§ 451-453. FORMS OF LEGISLATION (§§ 60-66) — when held to be directory, §§ 62, 63. when held mandatory, §§ 64, 65. reasons for holding mandatory, § 66. FRANCHISE — legislature may grant exclusive, § 164 but will be strictly construed, § 164 I^^)EX. 053 {FRANCHISE (continued) — ciuiuilativo franchises not exclusive may be granted, § 164. grants of, by public, strictly construed, t^ 878. no implication of an exclusive grant, § 378. public, can only be created by an act of the legislature, § 378. public grants of, not implied to be exclusive, § 378. the gi-ant of right to take and exact toll not implied, g 378. power to incorporate does not include power to take lands by de- vise, § 878. FRAUD — liberal construction of acts to prevent, § 444 statutory regulations to prevent, in assignments for benefit of creditors mandatory, § 459. FRAUDS, STATUTE OF — liberal construction to carry out its purpose, § 427. FUNDAMENTAL POWERS — necessity of their separation, § 2. how separated and how corrected, §§ 2, 3. the province of each, g§ 2, 3. not defined in the constitution, § 6. FUNDAMENTAL RIGHTS — statutes not construed to interfere with, § 290. GAMING — what is, § 352. contract for purchase of options is not, § 352. statutes intended for protection against, not applicable to professional gamblers, g 429. GARNISHMENT- law of, inapplicable to municipal corporations, § 428. not another case, § 299. GENERAL LAWS — what are such laws, §§ 116, 120. a law applying to some townships and excepting others is not a general law, § 159. when a general law exists on a subject, it is judicially apparent that such a law can be made applicable, § 118. enmnerated subjects must be dealt with by, § 118. courts must determine what are, § 118. laws are general when they deal with a whole generic class, § 121. classification of subjects for general legislation, § 121. laws of a general nature, ^§ 121-123. uniform operation of laws of general nature, §§ 121-123. implied requirement of, § 126. GENERAL PRINCIPLES — doubtful provisions not construed so as to conflict witli, § 287. , 654 INDEX. GENERAL USAGE — effect of, in construction of statute, § 308. must be universal, § 308. practice iuconsistent with statute cannot repeal it, § 308. of no avail against plain statute, § 308. practical construction by those for whom a law is enacted, § 309. not allowed to defeat manifest pui-pose, § 309. GEOGRAPHY — courts take notice of, of state, §§ 299, 301, 304 of notorious surveys, etc., § 298. of civil divisions created by law, § 298. GRAM^IATICAL SENSE — presumed to be intended unless evidence of different intention, § 258. only a rule of interpretation and gives way when a different intent ap- pears, § 258. common-sense construction may require departure from, § 259. apphcation of relative words, § 259. effect of general quahf ying words at end of sentence or in middle, § 259. tense of statutes not always followed, § 259. relative words refer to last antecedent, §§ 257, 259, 267. , GRANDCHILD — when included under term cluld, § 253. GRANT OF POWER — strictly construed when by its exercise one may be divested of his prop- erty, § 454. the prescribed procedure mandatory, § 454. HARDSHIP — considered in constniction of ambiguous statute, § 324 otherwise if intention plain, § 324 HEIR — denotes one capable of inheriting, § 253. HEIRS — inherit according to common-law where statute silent, § 432. HISTORY — couiiB take judicial notice of, as to facts of general interest, § 298. courts take more particular notice of the, of the state where they sit §298. HOMESTEAD AND EXEMPTIONS — law of, in pari materia with dower law, § 284 HOUSE OF LORDS — branch of legislature and a judicial tribunal, § 3. relation of judges thereto, § 3. IMPLICATIONS AND INCIDENTS — what is a necessary implication, § 336. wh^t is implied from a statute is a part of it, § 334 IXDEX, 055 IMPLICATIONS AND INCIDENTS (continued) — statutory felony includes common-law elements and incidents, § 334. procurers and abettors are i)rincii)als and accessories on the same terms, § 334. in such cases, same peremptory challenges allowed, § 334 it is incident to all public laws that they be noticed judicially by courts, § 335. otherwise as to private statutes, § 335. if penalty imposed for doing an act, it is impliedly prohibited, § 335. implied that a contract about things unlawful is void, § 336. aU cases to which a statute caimot constitutionally apply impliedly ex- cepted, § 336. when statutory provision general, everything necessary to make it effectual impUed, § 337. public grant to individuals to be enjoyed in a corporate capacity creates coriiox'ation, § 337. of rights, may be asserted by statutory designation, § 337. statute enlarging rights of married women impliedly aboUshed estates by curtesy, § 338. disability vmder statute of limitations, § 338. right to ti-ade implied from right to own and enjoy merchandise, § 338. where new statute extends existing new power, it is extended with its limitations, § 145. that established poUcy not intended to be departed from, § 145. married women may incur Uability for repairs to separate property, §338. private examination of married women unnecessary when they ac- knowledge deed of separate property, § 338. power to ti-ade includes that to borrow money, § 338. that married woman borrows on her separate estate, § 838. that a default judgment is by consent and not appealable, § 339. when duty to repair imphed from condition to buUd, § 339. of disability of minors to sue for partition from provision that plaintiff must state titles of pax-ties, § 339. from existence of a right that there is appropriate remedy by statute or common law, § 340. grant of power impUes a grant of aU necessary or incidental power, §§ 341, 344, 345. when measure directed ordinary means implied, § 341. power to examine witnesses ; authority to subpoena them implied, § 341. power to grant alimony, incident to divorce jurisdiction, § 341. extending expressly penal regulations to new subjects, impUes that they were not before included, § 335. imphed exclusion of tilings not mentioned, § 325. enactment of law does not imply it was not the law before, § 329. power to sheriff to sell personal property implies power to take posses- sion, § 343. power to create a municipal debt imphes power to levy taxes to pay it, §343. '^56 INDEX, BIPRISONIMENT FOR DEBT — not part of contract, and may be abolished without impairing its obUga- tion, § 478. laiPROVEMENTS — remedial act for set-off of, § 437. INDICTMENT — subsequent statute regulating framing or amendments of, not ex post facto, § 469. IN FORMA PAUPERIS — right so to sue construed strictly, § 398. INJUSTICE — argument based on, forcible, §§ 152, 323, 324 INSOLVENT DEBTORS — statutes for discharge of, strictly construed, § 372. INSTITUTIONS — created by law judicially noticed, § 295. INTENTION — hteral meaning may be departed from to avoid absurdity and carry out, §323. of statute, when ascertained, controls in construction: of its parts, § 218. general words restricted to it and narrower words expanded to it, §§ 218, 219. may be cut down to avoid conflict with settled pohcy, § 218. when ascertained, §§ 218, 219. words may be altered or supplied to harmonize parts with it, § 218. construction wldch accords best with subject and general pvu-pose will prevaU, § 219. when a general intent and a particular intent are expressed the latter will prevail, §§ 153, 158, 159, 167, 216, 222, 231. otherwise if the general act intended to be tmiversal and exclusive, § 159. where general act required and repeals inconsistent provisions it repeals special acts on same subject, § 159. intention to make unconstitutional exception will not be imputed to legislature, § 159. intention of a statute is the law, § 234 must be embodied and expressed in the statute, § 234. a statute is hence a written law, § 234 it is there to be first sought for without other aids, §§ 236, 237. aU rules of interpretation are intended to reach it, § 234. where it is plain and obvious no interpretation necessary, § 234. rules of construction are only important as tliey serve to ascertain the intention, §§ 234 235. and this is true as to aU statutes, § 234. if plainly expressed in the statutes it cannot be controlled by anything extraneous, § 237. whole statute to be read to determine it, § 239. INDEX. 657 INTENTION (continued) — then the simple duty of the courts to enforce the law according to its terms, §§ 237, 238. cases cannot be included or excluded merely because there is no reason against it, § 237. if dLffer(?ut f lom the literal import, it should prevail, ^g 237, 245. question for the court is, what did the legislature really intend, § 238. if it is plain from the statute itself, and others in pari materia, no dif- ferent intent can be imputed to serve a supposed policy or maintain its validity, g 23a one part to be construed with another, § 239. the general intent the key to that of all the parts, § 240. it is control Img a.s to minor parts, §§ 241, 245. declaration of, in an act controlling, § 246. ascertained from whole act, a guide in reading particular words and ex- pressions, g§ 241-246. may exclude cases within the letter, § 243. in following the, where reason ceases, the law ceases, § 243. notice not necessary to officer of his own act, § 243. possession of game during period prohibited when consistent with innocence, § 243. requirement of notice of things done, may require notice of non- action, g 243. general exemption from taxation may be confined to taxation for revenue, § 243. new condition may be supplied by implication, g 244 or new exceptions, ^ 246. inaccuracies of name may be corrected, § 244 literal sense of words departed from, §§ 245, 246, 251, 259. " city " may include incorporated town, § 245, limited words or expressions may be expanded, § 245. or general words restricted, § 246, seemingly incongruous provisions brought to harmonize, § 245. resti'ictive clauses in one section may be amended by implicatioD in others, § 246. context will not modify natural effect of words contrary to, § 246. words and phrases to be construed according to, § 247. "immediate danger" qualified to effectuate, § 251. " and " and " or " used indifferently and constnied according to, § 252. presumption of, where legislatm-e enact a statute without change after it has received, consti'uction, § 255. when re-enacted with change, §§ 255, 256, will control grammatical sense, § 258. may be effectuated by corx-ection of mistakes by context, § 260. omitted words may be supplied, wrong word changed tj correct one, and meaningless disregarded, § 260. by transposing clauses, § 260. must be clear to correct words of statute, § 260L 42 GbS INDEX. INTENTION (continued) — controls the rule from associated words and maxim of ejusdem generis, §§ 267, 279, 280. proof of exti-insic facts supposed to have been known to legislators and to have influenced their intentions, § 298. sti-ict construction not to defeat, §g 348-350, 356. case must be within, and also letter of penal statute, §§ 349, 350. to bring case witliin penal statute there should be a criminal intention, §§ 354, 355, 356. Uberally inferred in construing remedial statutes, § 409. cases not within, excluded, § 411. how to be learned, § 412. no set form to express, § 416. words controlled by, when manifest, §§ 416, 417, 423. how it conti-ols in construction of statute of limitations, §§ 424-426. of statute of frauds, § 428. cases not within, excluded though within the letter of statute, § 428. municipal corporations excluded from general law of garnishment, § 428. words may be restrained to brmg operation of statute within, §§ 428* 429, 436. whether statute directory or mandatoiy decided upon, § 447. where doubtful, statute construed to operate prospectively, §§ 463, 434. INTERPRETATION (see Construction) — compared with construction, § 236. INTERPRETATION CLAUSE — introduced to remove possible obscurity, § 216. binding, authoritative, §§ 229, 231, 246. criticisms of, § 230. general and special provisions of the nature of, § 231. latter of most weight, § 231. enactment based on misconception of what the law is, does not of itself change the law, § 231. general statutory definition will apply only where no diif erent intention appears, § 331. when authoritative, § 402. not binding on the courts, § 402. when legislative consti-uction high evidence of intention, § 402. to what applicable, § 402. when strictly construed, § 402. regarded with disfavor in England, § 403. not always regarded as containing definitions, § 404 but provisions by way of extension, § 404. will still include its proper sense, § 404. not generally absolute, but only applicable when not inconsistent with intent, § 405. when penal acts declared remedial, § 445. INDEX. 659 INTOXICATING LIQUORS — nature of judicially noticed, § 303. INTOXICATION — statute allowing recovery of damages for, against vendors of liquors and of renters, § 373. held remedial, §§ 373-377. actual damage necessaiy, § 374. injury to person must be physical, § 374. exemplary allowed only where there are aggravations, § 374 exception in Ohio, § 374. consequential injuries recoverable, § 374. construction as to elements of damage, §§ 374, 376. form of remedy and parties, §§ 376, 377. JUDGMENT — statute providing for obtaining, on motion strictly construed, g§ 393, 398. construction of remedial statute as to effect of voluntary discharge from arrest under, § 416. act to prevent delays in obtaining, remedial, § 435. providing for docketing, how construed, § 451. JUDICIAL KNOWLEDGE — of public statutes, § 181. of facts affecting them, §§ 181-183, 292-313. of the common law, § 184 of other states, § 184. of state statutes by federal courts, § 185. of public law, §§ 293, 294 commencement, expiration and repeal of statutes and their con- struction, § 293. of any decision that they are unconstitutional, § 393. includes notice of all facts and proceedings which concern their validity and interpretation, § 294. may resort to histoiy to do away with obscurity, § 294 of the common law and the fundamental law, § 295. the law of nations, § 295. the law merchant, § 295. of the antecedent laws, § 295. of matters so notorious as to be imiversally known, § 293. matters within the cognizance of the particular court, § 293. when acts done in pursuance of foreign law made effectual by domestic, the former noticed, g 293. of territorial divisions of state, § 295, of coi-porations and institutions established by law, § 295. of state laws by federal courts, i^ 293. treaties, law of the land and judicially noticed, § 293. of general customs, § 295. of meaning of C. O. D., § 295. busine^ of mercantile agencies, § 396. 660 INDEX. JUDICIAL KNOWLEDGE (continued) — commercial usages as to holidays, § 296. customs of the road, § 296. of the sea, § 296. private statutes and by-laws not noticed, § 296. nor municipal ordinances, § 296. of existence of foreign nations, § 297. their national emblems and flags and seals, § 297. that they have judicial tiibunals, etc., § 297. and general nature of their jurisprudence, § 297. supreme court maintained its appellate jiu-isdiction depending on amount by taking notice of vast mining operations on the public lands, § 298. courts take notice of the result of an official census, § 298. of derivation of land titles, § 298. that a portion of state was in. insuiTCction, § 298. and under whose control, § 298. that in consequence certain courts closed, § 298. civil law suspended, § 298. what law prevailed, § 298. that the Confederate currency imposed by force, and at discount, §298. of the general facts relating to its emission, etc., § 306. the accession of persons to office and the tenure under constitution and laws, § 298. the geography and topography of state, §§ 298, 304, 305. the navigability of large rivers, § 303. the history of state as to facts of general interest, § 298. of the boundaries of state, § 298. its civU divisions created by law, § 298. of notorious surveys, streets, areas and lines, § 298. of terms of courts fixed by law, § 298. of their owti officers, and records, § 299. not of contents of record La another case, § 299. garnishment not another case, § 299. of facts in general, §§ 301-306. of the character of a trade as to being a nuisance, § 301. of gift enterprises, § 303. of the seasons, § 302. calendar, § 302. that a patent was void for want of novelty, § 304 of the course of natui'e, §§ 302, 305. moi-tuary tables based on, § 302. of the nature of liquors, § 303. that coal oil inflammable, § 305. of the course of agricultiu-e, § 302. when particular crops mature, § 302. not of vicissitudes of climate, § 302. of what is generally known in their jurisdiction, § 304 INDEX. 661 JUDICIAL KNOWLEDGE (continued) — of tlie art of pliotogi'aphy, § 305. of pliilosopliic and scientific facts and principles, § 305. that work of barber not one of necessity on Sunday, § 306. of tlie nature of lotteries, of billiard tables, § 306. of the character of the circulating medium and meaning of popular language concern iug it, ^5 300. of the changes in the com-se of business and of new processes to facili- tate it, g 306. of railroad superintendent's general authority, § 306. of the customary price of ordinaiy labor, § 306. of meaning of well-known abbreviations, § 306. that free masonry a charitable institution, § 306. the usual duration of voyage across the Atlantic, § 306. the ordinary incidents of railway travel, § 306. that the language of all countries fluctuates, § 306. the distance between well-knoA\Ti cities, § 306. the speed of railway ti'avel between theno, § 30ft, particular facts of state history, § 298. JUDICIAL POWER — what its exercise includes, § 5. authority in exposition of law, § 5. nature of, § 6. determines what the law is, § 11. and kind and measure of redi'ess, § 11. JUDICIARY — its function to expoimd the laws, § 3. what measure of judicial power vested in, § 5. within province of, to decide as to vaUdity of statutes, § 41. JURISDICTION — may be taken away by repeal of statutes conferring, § 165. effect of, § 165. effect of abolisliing and restoring, on pending cases, § 165. special, must be confined to enumerated subjects, § 380. and exercised according to statute, g§ 394^396. over waters, with reference to low-tide line, § 386. towns may have co-extensive, § 386. statutory, conferred on coiu-ts, how construed, § 391. methods of obtaining, strictly constinied, § 394. of com-ts, not given or lost by miplication, § 395. not taken away by grant of similar to another tribimal, §§ 395-397. granted by constitution, cannot be abridged or altered by legisla- tion, § 397. repeal of statute giving jui'isdiction takes away power to pixx^eed in pending eases, § 464. statutoiy, confined to enumerated cases, § 343. when general, § 343. granted by constitutioi], un:Uterable by legislature, § 397. 662 INDEX, JURISDICTION (continued) — statutory, act conferring construed strictly as to extent, liberally as to mode of exercise, § 435. of justices, as to penalty, § 438. divorce, includes power to grant alimony, § 341. incidental po\vei*s from, general and special, §§ 342, 343. statutes assuming by regulating exercise of, confer, § 343. granted to a court, to be exercised as such, § 342. statutes not presumed to intend to oust, of superior courts, § 333. a statute giving common councU power to judge of the election of its members does not oust the jui'isdiction of the coui'ts, § 384 depending on jimction of towns, § 437. JURY — held to mean a witness in a procedui-e act, § 423. statutoiy provisions as to summoning, du-ectory, § 449. as to di-awing, du-ectoiy, § 452. LAND GRANTS — for pubhc enterprises, how constnied, § 379. do not include right of pubhc ferry. § 379. to ascertain intent of, com-ts may consider condition of country and the purpose declared on face of, § 379. LANDLORD AND TENANT — statute amending another afifording summary remedy between, liber- ally construed, § 435. LAW MERCHANT — courts take notice of, § 295. LAW OF NATIONS — ' courts take notice of, § 295. LAW OF THE CASE — a decision of the supreme court is the, in subsequent proceedings, § 820. LAWS — in case of change of sovereignty, § 19. of colonists, §§ 15, 16. LAWS IMPAIRING OBLIGATION OF CONTRACTS — recording laws affecting priority may be passed, § 474 contracts may be vahdated by subsequent statute, § 474. corporate charter not subject to be forfeited by statute for past acts, which when done not cause, § 474 state contracts within constitutional prohibition, § 475. what impairment of proliibition prevents, § 475. municipal power of taxation cannot be withdi'awn to impair its capacitj to pay debts, § 475. remedy within control of state, but cannot be so changed as to materiallj affect obligation of contracts, §§ 476, 477. how greatly may remedy be changed, § 478. list of admissible changes, § 476. INDEX. 663 LAWS IMPAIRING OBLIGATION OF CONTRACTS (continued) — effect of mortgage cannot be changed, § 477. mode of redemption may not be altered, § 477. nor conditions of sale, § 477. how far exemptions allowed, §^ 477, 478. legislation not permitted to utfect construction of existing contracts, g478. and parties entitled to a remedy as efficacious as when the contract was made, § 478. stay laws, § 478. change of jurisdiction of courts to adjudge present payment or collec- tion of debts, § 478. imprisonment for debt may be abolished, § 478. preventing mortgagee from taking possession before foreclosure, § 478. shortening the time of redemption, § 478. suspending the right to sue on the bond or note until after foreclosure, §478.. prohibited by constitution, § 206, laws affecting validitj% construction, discharge or efficient enforcement, gg 471, 474. prohibition applies to executed and executory contracts, § 472. to corporate charters, §§ 472, 473. state cannot impair obligation of its contracts, § 472. statutes granting franchises, bounties, patents, copyrights, etc., protected against impairment, § 473. prohibition does not permit any degree of impairment, § 474. does not permit any change of the terms, § 474. extends to change of law by judicial decision, g 474. bankrupt or insolvent law for discharge of debtor proliibited, § 474 or discharge by part payment, § 474. laws of this effect prohibited, § 463. what laws come within prohibition, §§ 471-479. LEGISLATIVE INTERPRETATION — when conclusive, § 307. long, should be adhered to, § 311. LE IISLATIVE JOURNALS — not records at common law, § 44. their force as evidence to affect validity of statutes, §§ 30-45. records, when required by the constitution, § 44. may be consulted for parliamentary histoiy of an act, § 43. silence of journals as to facts not re(iuirod by the constitution to be en- tered will not affect statute, g§ 46, 47. entries necessiirj' to show compliance with constitution in paiticiUars requii-ed by it to be there shown, § 48. when there is power to dispense with readings on separate days the cause need not be entered on, § 47. LEGISLATIVE POWER — cUstinct from other fundamental powei-s, § 2. of federal government, vested in congress, § 4. QQ4: INDEX. LEGISLATIVE POWER (contiBued) — of congress, § 4. of state legislatures, §§ 4, 6. its sole function of law making, § 6. nature of, §§ 6, 8. how it acts, § 7. scope of its exercise, §§ 7, 8, 11. limitations, §§ 10, 11. federal and state, g§ 4, 21. cannot be delegated, § 67. exceptions, § 70. what is a delegation of legislative power, § 69. powers may be granted which are gwasi-legislative, § 68. delegation of, g§ 67-73. LEGISLATIVE PROCEDURE — constitutional regulations of, mandatory, §§ 26, 30, 41, 43, 50, 64, 65, 66. bills must be signed by presiding officer. § 51. only necessary when expressly required, § 51. signatures of presiding officers not a part of legislative process, § 51. pxirpose of requu'ing them, i^ 51. when acts should be approved, §§ 55, 56. nature of functions of executive on bUls, § 55. how a bill will become a law witliout approval, § 57. computation of time for tliis pvuiDose, §§ 57-59, 111, 115. how a bill to be returned when vetoed, § 59. submitting to popular vote laws or questions relating thereto, §§ 71-73. local laws may be made to depend on popular vote, § 75. LEGISLATIVE RECORDS — at common law, §§ 27, 28, 30. conclusive, g§ 27, 30, 40. when legislative journals may be consulted to impeach, §§ 40, 45. LEGISLATURE — has exclusive power to make laws, § 2. scope of its functions, §§ 7, 10. must be legal, § 26. is in America a representative body, § 29. derives its power from a constitution, § 29. compared with I^j-itish parUament, § 23. m ist legally convene, § 26. it exercises a delegated power, § 26. must keep within i^owei* granted as to membership, etc., § 26. procedure prescribed in constitution mandatory, §§ 26, 29, 30, 41, 42, 50. Limitation as to time for introduction of bills, § 26. not to be evaded by amendments, § 26. common-law record of legislation, § 27. legislative records im^der constitutions, g§ 30, 45. cannot authoritatively declare what the law is or has been, § 229. a legislative oonstruction of a statute has weight, g 22'J. INDEX. CG5 LEGISLATURE (continued) — its authority is exclusively to declare what it shall be in the future^ i^ 229. presumed to know existing statutes, §§ 226, 287. LEVY — statutory provisions as to making, before witnesses not imperative, § 452. LIABILITY — statutes creating or increasing, strictly constiiied, § 371. LIBERAL CONSTRUCTION — to what statutes applied, §§ 408, 409. applied to remedial and other statutes enacted pro bono publico, vmless prevented by some paramount nile of construction, §§ 410, 413. applied to carry out intention, § 409. intention Uberally infeiTed by, § 409. what is, and illustrations, §§ 415-433. consists in giving words such meaning as renders statute effectual to carry out intention, § 416. of rederaptiou laws, § 420. exemptions, §§ 420-422. of word " jury " in procedure act, § 423. of statute of mortmain, § 423. of testamentary bond, ^ 423. of statute of Umitations, §§ 424r-426. when action abated by death or marriage, § 424 of the statute of frauds to effectuate its pvirpose, § 427. by, cases excluded though within the letter, if not witliin the intention, §§ 428, 429. of act to prevent delay in obtiuniug judgment, § 435. pvu-pose of, § 430. of statutes relative to arbiti'ations, § 439. of statutes giving right of appeal, § 440. of acts extending elective franchise, § 441. taking away penalties, f? 441. providing compensation, § 441. provision m favor of tax-payers, etc., § 441. for protection of officers, § 442, married women, § 442. of acts for accomplislunent of public objects, g 443. for prevention of fraud, § 443. LICENSE — pui-suing profession without requked license vitiates claim for services, § 335. LIMITATIONS — defense of statute of, a vested right, § 480. time occurring before passage of statute may be adiled to time af terAvard to make up period, g 482. GGG INDEX. LBIITATIONS (continued) — under successive, j)art of time iinder one may be added to period under another, § 151. general provision that statute of shall run against the state vpill not be construed reti'ospectively, § 464. effect of title sustained by the bar where parties reside, § 479. statute of, will not be construed to apply to existing cases, § 464 statute of, relates to remedy and not directly to right, § 479. does not necessarily impau- obhgation of contract, § 479. statute of, at place of suit applies, § 479. of action against sheriffs, etc., in remedial statute, how construed, § 416. statutes of, how constnied, §§ 368, 424, 426. where action has abated by death or marriage, § 424 when statute has made no exception, the coui'ts can make none, § 427. one recognized in case of civD. war, § 427. as to new trials and appeals, § 369. LOAN — may be construed in remedial statute to mean moneys voluntarily ad- vanced without legal request, § 420. LOCAL LAWS (see Special Laws) — may be made to depend on popular vote, § 75. MANDATORY STATUTES — what they are, § 454. where a particular mode of doing an act authorized by statute is pointed out it must be puioued, § 454. enabling statutes are, § 454 prescribed procedure for evercise of newly granted power mandatoiy, g454 laws protecting tax-payers are such, § 454. provision requiring certain words to be inserted in venires, § 455. sales under execution to be made at court-house, § 454 statutory requh-ement can never be dispensed with as dii'ectory where departm'e from can work injuiy, § 455. acts such, when of the essence, ^ 455. when mandatory as to time, § 456. statutory proceedings governed by rule of, § 456. letting work by competitive bidding under mimicipal charter, § 457. statutes for exercise of power of eminent domain, § 457. prescribing mode of adopting resolutions for certain pm-poses by com- mon council, § 457. regulations as to new right, privilege or immunity. § 458. relating to sealed bids, § 458. regulating municipal proceedings to contract debts, § 459. statute of frauds, § 459. where intention would otherwise be defeated, statutes are mandatory, § 459. relating to building material for protection against fire, § 459. INDEX. GOT MANDATORY STATUTES (continued) — for certain mode of making assignments for benefit of creditors to prevent fraud, § 459. when permissive in form, §§ 460^63. MARGINAL NOTES — effect of, in construction, § 226. MARRIAGE — under proliibited conditions may not constitute bigamy where there is no criminal purpose, § 355. statutes abolisiiing any of the incidents of, strictly construed, § 400. how statute of limitations construed as appUed to suits abated by, § 424. LIARRIED WOMEN — enlargement of then- rights implies abolition of estate by curtesy, § 338. removes disability under statute of limitations, § 338. right of to own and enjoy merchandise impUes right to ti-ade, g 338. to convey land without private examination, § 338. then- power to ti-ade implies power to borrow money, § 338. that she borrows on her separate estate, § 338. when statute specifies cases m wliich they may sue, others excluded, §337. statutes increasmg powers of, strictly construed, § 400. have been held remedial and to be hberally construed to effect ui- tent, § 400. a statute authori2;ing them to have, hold and possess property will not authorize them to make sales and pui-chases, g 431. acts for protection of, hberally construed, § 443. statutes prescribing mode of exercising or enforcing new rights manda- tory, § 458. exemption from statute of limitation gives them control of separate property, § 146. acts giving them such control do not abolish title by entureties. § 150. statute denymg them right to dispose of land not unpliedly repealed by act entitlmg them to receive and hold propeiiy, § 149. aiAY — when mandatory, ^§ 460-463. when "may '' and " shaU " used in same provision, § 463. MEMBERSHIP OF LEGISLATURE — constitutional limit imperative, § 26. MERITS OF LEGAL CONTROVERSY — what law governs, § 11. plaintiff to have title at commencement of action, § 148. MESNE PROFITS — act for set-off of value of uuprovements against, g 437. MISCHIEF — intended to be cured considered in construction, § 393. UberiU construction of remedial statutes to suppress, §§ 409, 410, 430. 668 INDEX. MISTAKES — may be corrected by construction, § 260. MONTESQUIEU, BARON — his view of the union of the fundamental powers, § 3. MONTH — not a technical word, and understood generally as a calendar, § 253. otherwise in England and New York, § 253. MORTGAGE — subsequent legislation restrained affecting sale, redemption, etc., by pro- hibition of laws impah'ing obligation of contx'acts, § 477. also to prevent mortgagee from taking possession vmtil after fore- closure, § 478. subsequent statute suspending the right to sue on the note or bond until after foreclosure impairs tlae obligation, § 478. so a statute shortening the time of redemption, § 478. MOTIVES — no issue allowable as to legislature, § 330. MUNICIPAL BONDS — how protected by constitutional prohibition of laws impaning obUgation of contracts, §g 474, 475. MUNICIPAL CORPORATIONS — tmder legislative conti'ol, § 473. theu' charters not contracts, § 473. taxing power of, cannot be withdrawn so as to impair the means of paying their debts, § 475. contract which is ultra vires may be made good by curative act, § 483. provision of charter that work be let to lowest bidder imiDerative, § 457. provisions mandatory requu'ing particular proceedings to contract debt, §459. not witliin law of garnishment, § 428. MUNICIPAL PRACTICE — under indefinite jjro visions of charter respected, § 311. NEGATIVE STATUTE — what is, §g 202. 203. NEGATIVE WORDS — make a statute mandatory, §§ 447, 454. jjrovisions granting new power prescribing mode of exercise, imply them, ^ 454. statutes regulating v^ith, mandatory, § 459. NEW TRIALS — statutes as to notice to give effect to limitations, § 369. NEXT OF KIN — statutes giving action to, for causing death, § 371. illegitimate child not included in England, § 371. otherwise in this country, § 371. statutes allowing damages to, resulting from intoxication, g§ 373-376. INDEX. 669 NON-USER — will not repeal a statute, § 137. NOTICE — constiaied to be written, when, g 245. when made necessary to create a duty to repair, not necessary to officer who caused defect, § 243. when required of affirmative action, may also require of non-action, §243. if required to impose a duty, should be actual notice, § 354. requirement of, as to limitations for new trial or appeal, § 369. required by letter of statute, may be dispensed with when not withi n intention, § 429. preliminary, when required to persons to be affected by proceedings, §457. publication of, mandatory in respect to redemption, § 457. OBJECT — of a statute, when plain, controls effect of particular words and expres- sions, g§ 241-246, 273. of statute, may be considered for construction, § 393. OFFICE — com-ts take notice of accession of persons to, and their tenure under the constitution and laws, § 298. a statute will not be given a retroactive effect to take away an office, §464. wiU not apply to incumbents to exclude on account of advanced age, § 464. what is the sale of, § 429. when immemorial custom will make an exception, § 429. not held by contract, § 473. subject to legislative conti'ol, g 473. salary of, may be increased or diminished, § 473. OFFICER — not one who has gone out of office, § 358. constiTiction of remedial act to prevent certain, from being interested, §444. OFFICERS — statutes impose duty on, by words importing power and authority, or permission, §§ 460-462^ acts for protection of, liberally construed, § 442. construction of doubtful statutes relating to compensation of, § 419. OFFICIAL ACTS — statutory provisions concerniug, directory as to time, §§ 448-450. OFFICIAL BONDS — construction of remedial statute relatiN-e to actions for breach of, § 418. statutory requirements to facilitate proof of execution of, how construed, §429. good, tliough not executed according to dii^ections of statute, § 453. 670 INDEX. OFFICIAL USAGE — effect of, in construction of statute, § 309. «0R" AND"AND"— const^ued as if used accurately if according to intent, § 253. may be understood as used indifferently if intent require it, § 252. ORDINANCE — definition, § 61. municipal, not noticed by courts, § 296. ORPHAN — may be construed in remedial statute by context and manifest intent to mean infant with living parents, § 420, PALEY, DR.— his views relative to separation of the legislative and judicial charac- ters, § 2. PARI MATERIA— when statutes are in such relation, §§ 283-288. general words in a later law often qualified by previous acts on same subject, § 284. new subjects introduced by general words wiU faU into established classifications, §§ 284, 287. homestead and exemptions are in, with dower laws, § 284. law for attachments against water-craft in, with general attachment law, §284. " any person " in a later statute in, construed to harmonize with earlier one requiring certain qualifications, § 285. being in, does not warrant disregard of conflict in the later act, § 286. when statutes not in, § 286. act in relation to confinement of stock not in, with provisions as to speed of railroad trains, § 286. regard must be had to all parts of statutes in, § 287. statutes in, construed as a connected whole, § 288. a code relating to one subject governed by one spnit and policy, § 288. PARLIAMENTARY GOVERNMENT IN THE BRITISH COLONIES, §§ 17, 18. PARLIAMENTARY PROCEDURE (§30) — constitutional regulations mandatory, §§ 26, 41, 42. PASSENGERS — statutes depriving them of compensation for injuries received while riding on platform, § 372. PENAL DAMAGES — given to injured party are intended to be part of his indemnity, § 360. are assignable, § 360. action for, not a criminal action and has none of its incidents, § 360. PENAL LAWS — when declared by same to be remedial wiU not be strictly construed, §445. INDEX. G7i PENAL LAWS (continued) — what arc such, § 208. construed strictly, § 208. statutes may be penal in part and remedial in part, § 208. construed strictly agaiubt accused and favorably for him, § 208. include not only such as provide for pimishmeuts pursuant to state prose- cutions, but all punitive statutes, ^ 3o8. and those i)rescribing punitive compensation to injured party, § 358. those which impose a burden or take away any right or benefit of injured party, § 358. making tender of certain bills a bar to a demand, § 358. though beneficial not to be construed liberally, g§ 358, 359. acts penal and remedial, how construed, §§ 359, 360. revenue law-s held not to be, § 361. to be strictly construed according to severity of penalty, § 347. should be so construed as to carry out the obvious intention, §§ 354, 356. words in, not to have narrowest interpretation, § 357. what statutes are penal, § 358. must exist at the time of conviction, § 160. acts mitigating punishment, § 166. repealing effect of statutes changing criminal laws, §§ 142-144. repeal and re-enactment in same words a continuation, § 143. when part unconstitutional and part not so, §§ 170-173. PENALTIES — acts taking away, liberally construed, § 441. when party may have vested right in, § 166. lost by repeal of statute before judgment, § 166. PERMISSIVE STATUTE (§205) — when mandatory, §§ 460, 462. as to persons having right to invoke permissive provisions imperative, §462. PLACE OF TRIAL (see Procedure; — construction of act when offense committed on board a boat, § 438. POLICE — statutes extending, control over private property or restraining use. of. sti'ictly construed, § 367. never implied that the government has surrendered the police power, § 378. POLICY — of government, not safe rule for construction, § 407. POWER — the legislative a distinct, § 2. statutory, lost by repeal of statute, § 165. when jurisdiction of court prohibited pending causes fall, § 165. statutorj', stiictly construed, g§ 378, 397. when mandator}', though permissive in form, §§ 460-462. 672 INDEX-. POWER (continued) — of sheriff to sell personal property includes right to take possession, §343. to create municipal debt includes power to levy tax to pay it, § 343. to examine witnesses includes that to subpoena them, § 841. those incidental granted with principal, § 344. statutes granting, strictly construed, § 390. granted to several all must act § 390. of officers in levying taxes and selling property for non-payment, strictly construed, g§ 361-366, 390. and to be sti-ictly foUowed, § 390. power to sell in such acts does not include power to convey, § 390. given to a city to open and widen sti-eets, but pz'ocedure only for lay- ing out, is inoperative as to widening, § 390. given to freeholders to make prudential rules for improving their com- mon lands does not include imposing penalties on sti'angers, § 390. of summaiy foreclosm-e by advertisement, § 390. to towns to make donations to railroads, etc., not invalid because means of determining amovmt, etc, wanting, § 390. such construction to be given as wiU answer intention, § 390. gi'ant of, generally impUes reasonable means for exercise of, § 390. act conferring powers recited in former act construed as embracing them, § 390. when gi-anted with reference to another act for definition, only includes the general power there recited, § 390. special, conferred on a court, sti'ictly construed, § 391. when to be exercised according to existing law, § 399. statutes granting, and prescribing how it is to be exercised, exclude any other mode, § 454, afl&rmative words in such case imply a negative, § 454 negative words in such case cannot be directory, § 454. new grant of, by exercise of which one may be divested of his property, strictly construed, § 454. to affect property, must be exercised in prescribed manner, § 455. special, to be exercised by corporations, courts and officers substantially according to statute, § 456. words importing, and authority, when imperative, § 456. PRACTICAL CONSTRrCTION — not hghtly questioned, §§ 309, 311. effect of, depends on long continuance, § 812. only the interpreter of doubtful statute, § 312. the length of time required to give strength to, § 313. PREAMBLE -- what is, § 212. value of, for construction, §§ 212, 213, 247. not part of law, § 212. true office of, § 212. INDEX. CT3 PRECEPTIVE STATUTE, § 205. PRESUMPTIONS — that IVn-oign law is the same as that where the court sits, § 184 none that the goveranient has surrendered any of its fundamental pow- ers, g 378. of principal's disability when deputy acts, g 309. that what is excluded from a statute by an exception would otherwise be within it, § 222. not universal, § 222. that proviso applies to preceding matter, § 223. this removed by a different intention appearing, § 223. that legislature proceeded with knowledge of existing laws, §§ 226, 287. that legislatm-e re-enacting statutes intended to adopt construction they have received, § 333. that legislature did not intend any further change in existing law than is expi-essed, § 333. nor to violate fundamental principles, § 333. or oust jurisdiction of superior courts, § 333. nor to surrender public rights, § 333. that statutes are to be consti-ued by the common law, § 333. that statutoiy powers are to be executed according to common law, §333. that discretionary power is to be reasonably exercised, § 333. are conclusive or rebuttable, § 330. that statutes duly authenticated are duly enacted, § 830. passed from good motives, § 330. that legislation is founded upon proper evidence, § 331. facts recited cannot be disproved to invalidate a statute, § 331. presumed that the legislature have not done a vain thing, § 331. that the legislature intends its acts to be vahd and have effect, § 33L statutes presumed to be valid, § 331. that the legislature is acquainted with the law, § 333. PRINTED STATUTES — may be corrected by original act, § 40. PRIVATE GRANT — words of, taken most strongly against the grantor, § 378. PRIVATE STATUTES — definition, § 194 not judicially noticed, § 296. PRIVILEGE — pubUc grants of, strictly construed, § 378. statutes conferring private, should not be so construed as to work public mischief, § 386. PROCEDURE — change of, after commission of crime, may come within prohibition of ex post facto laws, g 465. 43 674: INDEX. PROCEDURE (continued) — acts to improve procedure remedial. § 437. giving right to bring action against insurance company at place where is the subject of insurance, § 437. aQ,t that trial judge file charge to jury of record, § 487. resort had to common law for, where statute giving a right or creating an offense is sUent as to, § 396. where statutory fails, §§ 397, 399. PROHIBITION — impUed from penalty, § 835. from proviso that provision not be construed to permit, § 343. PROHIBITR^E STATUTE, § 205. PROPERTY — public grants of, strictly constiiied, § 378. land grants by government consti'ued stiictly, §§ 878, 379. PROSPECTIVE STATUTE, § 206. PROVISO — what is, § 232. introduced to qualify or restrict general language, §§ 216, 223. totally repugnant to purview repeals it, § 221. repealed by statute which repeals the provision it qualifies, § 222. presumption that what is excluded from a statute by, would otherwise be withki it, g 222. otherwise when introduced from abundant caution, § 222. what it applies to, § 223. does not apply to another section, ixnless intent appears, § 223. appUes to the provision or clause inunediately preceding, §§ 223, 267. ■ if irrelevant, has been rejected, § 223. sti'ictly consti'ued, § 223. it takes no case out of enacting clause which does not fall within its terms, § 223. matter of, may tend to enlarge purview, § 223. in penal statutes construed hberally for accused, § 227. PUBLIC GRANTS — words of, consti'ued most sti-ictly against grantee, § 378. any ambiguity in, operates in favor of government, § 378. the presumption is against the government having parted with any of its powers for accomplishing its ends, § 378. against its having parted with any part of its sovereign power of legislation, 378. or of police or taxing power, § 378. or power of eminent domain, § 878. in grant of land no implied covenant to do any further act, § 878. in grant of franchise t«j build a bridge or road, or to establish a ferry, no implied contract not to grant same to others, § 378. of power to incorporate does not include power to take land by devise, g 378. INDEX. 675 PUBLIC GRANTS (continuo.1) — construction of grant to city of right to use soil under road to lay pipes to convey water, § 386. of land bordering on tide water, § 386. PUBLIC OBJECTS— • liberal constiuction of acts for accomplishment of, § 443. PUBLIC RIGHTS — not deemed relinquished except by plain words, § 386. not to be prejudiced by constiniction of statutes conferring private privi- lege, § 386. PUBLIC STATUTES — what are such, §§ 120, 121, 193, 198. a statute establisliing a municipal court is such, §§ 120, 121. PUNCTUATION — effect of, in construction, § 232. PURVIEW — is the enacting part of statute, § 137. QUALIFYING WORDS AND PHRASES — to what they refer, §§ 267, 269. have been applied to several preceding sections, § 267. REASONABLENESS — has a potent influence in construction, § 333. REBELLION — statutes enacted by states in, § 20, note. RECORD — remedial act that trial judge file of record his charge, § 437. REDDENDO SINGULA SINGULIS — when general words so construed, § 283. REDEMPTION — right of, liberally consti'ued, § 420. word " owner " used in generic sense in law of, § 420. cannot be annulled by legislation, § 480. RE-ENACTMENT — of statute which has received construction, § 255. with change of phraseology, § 256. REFERENCE — adoption of statute by general, § 257. confined to matter immediately preceding, g§ 357, 359. RELATIVE WORDS — their apphcation or reference, §§ 357, 359, 367. REMEDIAL STATUTES — to receive a liberal construction, §§ 346, 347. may be extended to cases clearly within mischief, § 348. giving penalty to aggrieved party remedial as weU as penal, § 359. 676 IKDEX. REMEDIAL STATUTES (continued) — when in part penal, how constTued, §§ 358-360. providing for arbiti'ations, ^ 439. appeal or certiorari, § 440. extending elective franchise, § 441. taking away penalties, § 441. providing compensation to those whose propei-ty is compulsorily taken, §441. in favor of taxed persons, § 441. of those affected by proceedings in derogation of their rights, § 441. for protection of officers, § 442. of married women, § 442. of ship-owners, § 442. for accompUshment of important public objects, g 443. what are such, § 207. liberally construed, § 207. such construction when precluded. § 207. statutes may be remedial in part and penal in part, § 208. what are, for purpose of hberal constixiction, §§ 408, 412, 434, 445. statutes such, unless excluded by some i-ule of construction, §§ 410, 412. letter of, may be extended to embrace cases within the mischief, § 410. three points to be observed in construction of, § 409. intention of to be carried out, § 409. more liberally inferred in constiaiing such statutes, § 409. construed Uberally to reach mischief and advance remedy, §§ 410, 411. cases not within intention excluded, § 411. use of particular words will not be permitted to control evident inten- tion, § 423. what testamentary bond construed to include, § 423. construction of statute of limitations, §§ 424-426. act to prevent delays in obtaining judgment, § 435. act extending time, in excejitional cases, for presenting claims against decedeufs estate, § 436. act for execution of powers of will, by successor of executor, § 486. act making void bequest to witness to will, § 436. statutes intended to promote the convenience of suitors, § 437. to improve procedure, § 437. or promote public convenience, § 438. provision that trial judge file of record his charge to jury, § 437. for set-off of value of improvements, § 437. act empowering court to decide about costs on commissions de lunatico, §437. EEMEDY — may be changed if right not impaired, § 164 restored by repeal of law prohibiting, § 164. when affirmative statute provides, where one existed at common law, §202. rule where such statutes successively provide, § 202. liberal construction given to statutes to advance, § 430. INDEX. 677 REMEDY (continued) — eveiything may be done consistently with any construction for that j)iir[)Ose, >^' 430. but not where contrary intention clearly expressed, § 430. statutes of limitation relate to, g 47'J. no vested right in, § 482. nev, njmedy may be added to or substituted for those which exist, § 482. and applied to existing cases, § 482. subject, however, to a contrary intent appearing, and consider- ations of reasonableness, g 482. governed by law of forum, g 13. given by statute, limited to strict statutory bounds, § 392. not to be enlarged by consti'uction, § 392. only available on statutory conditions, §§ 392, 393. when new given, one already existing, § 399. REPEAL — when added to unconstitutional act, § 175. words expressing absolutely may be quaUfied by context, § 242. of law giving jurisdiction takes away power to proceed in pending cases, §464. effect of repealing statute adopted by general reference, § 257. power of repeal, g 136. modes of, § 137. will take effect from any subsequent statute expressing intent, § 137. the word repeal not necessaiy, § 137. repealing words may be qualified by context, § 242. suspension not a repeal, § 137. what is, § 137. what are repealing statutes, § 209. may be express or implied, § 137. is express when declared in direct terms, § 137. is implied when there is subsequent repugnant legislation, §§ 137, 138. takes effect w-hen repealing statute goes into operation, § 137. when statutes profess to make a change repeal suggested, § 137. rei)eal of aU laws within purview is a repeal of all on same subjects, §137. repugnancy of later statute causes repeal, § 137. being ascertained, later act in date or position will prevail, §§ 138, 170, repugnancy in principle or spirit not sirfficieut, § 137. of unconstitutional provision has no effect, ^§ 137, 147. will not repeal private act, § 137. non-user or custom will not repeal, § 137. statute will not cease on removal of some of the evils aimed at, § 137. statutes may be rendered inoperative by repeal of fundamental parts, § 137. inipUed repeals ascertained as legislative intent is ascertained in other cases, by construction, ^138. not favored, and only allowed to extent of repugnancy, § 138. statutes not repugnant unless tliey relate to tlie same subject, §§ 138, 148. 678 INDEX. REPEAL (continued) — diflference in repealing effect between affirmative and negative statutes, §§ 138, 139. repugnance of any previous statute contrary to a negative statute read- ily seen, § 139. not so apparent in case of affirmative statutes, §§ 139, 140. when a statute gives an exclusive rule it implies a negative, § 139. when affirmative words imply a negative, § 140. new grant of part of power already possessed repeals residue, § 141. repeal by changing criminal law, g 142. common law is repealed as to a common law oif ense when it is defined and enacted by statute which also prescribes the pvmishment, § 142. change of elements of an offense or punishment a repeal, § 142. creation by statute of an offense consisting of some of the elements of an existing offense and others, no repeal of the existing offense, §§ 142, 143. if an offense identified by name or otherwise is altered in degrees or inci- dents it is repealed, § 143. where a new law covers whole subject of an old one, adds new offenses and prescribes different penalties, it is a repeal, § 143. a revision is an imphed repeal, § 143. where act does not refer to old law, defines an offense pimishablebyold law and provides new pimishment, it does not affect a past offense, §14a no repeal where penalty reduced or place of confinement changed, §143. granting a larger or a different power is a repeal of limitations, § 145. when exercise of new power requires grantee to go beyond previoiis hmits, § 145. where new grant ignores former conditions, § 145. radical change in leading part of an act will repeal inconsistent pro- visions, § 146. restriction on bottomry loans impliedly removed on abohtion of monop- oly to which it was subsidiary, § 146. estate by curtesy abolished by enlargement of rights of married women, § 146. imphed, removed theh exemption from statute of limitations, § 146. difference as to miphed repeal where there is express repeal or inconsist- ent legislation, § 147. no repeal by re-enactment of part of act in another for a different scheme, § 147. nor wiU suspension of latter suspend the other, § 147. statutes adopted by reference not repealed by repeal of statute adopted, §§ 147, 159. instance of appointing election on coimty seat question at April elec- tion, and subsequent change of that election, § 147. presumption against imphed repeal, and courts endeavor to harmonize statutes, §§ 148-153. illustrations, §§ 148-153. INDEX. 679 REPEAL (continnod) — contiatlictory act of less scope will have effect to impose a limitation, §150. or exception, §§ 153, 167. acts passed at same session deemed less likely to conflict, §§ 151, 153. act imposing new regulations of existing duty ha.s no repealing effect^ § 151. an affirmative act providing a new procedure, cumulative, §j; 150, 151. no repeal by passage of successive limitation laws, g 151. successive affirmative acts relative to venue may stand together, § 151. not sufficient to repeal that acts are different ; they must be contradict- ory, § 152. as act presumed to be passed deliberately and with knowledge of existing laws, repugnancy must be irreconcilable, § 152. considerations of convenience, justice and reasonableness strong against implied repeal, § 152. revision a repeal, § 154. what is revision, § 154. a new statute intended to be exclusive effects a repeal, §§ 152, 153. general laws will not repeal those which are particular, ^g 157, 158. when general laws recjuii-ed and repeal inconsistent legislation, paiiicu- lar or special acts repealed, § 159. what is a later law potent to repeal, g 160. provision later in position is such, § 160. effect of, without a saving clause, § 162. indefinitely suspended while the repealing statute in force, § 162. revival by repeal of repealing statute, § 162. inchoate rights lost by repeal, § 163. otherwise if perfected by judgment, § 163. rights arising on conti-act, when not affected by repeal, g 164. vested rights not affected by, g 164. causes of action barred by statute of limitations not revived by its re- peal, § 164 repeal of statute after judgment will not defeat an appeal previously taken, § 164. repeal of statute essential to a judgment after repeal requires reversal, g 164. repeal of statute prohibiting remedy restores it, g 164. prohibiting defense of usury, repeals law of usury, g 164. powei-s derived wholly from statute extinguished by its repeal, § 165w proceechngs in progress at time of repeal ended, g 165. effect of, on penalty or forfeiture, g 166. effect of, pending appeal, g§ 164-166. operates as a pardon, g 166. acts mitigating punishment, § 166. see Saving Clause. where is no express, none is presumed to be intended, g 321. not presumed to change the law or existing iustitiitious, systems or poli- cies more than the terms of statute require, g 321. 680 ESTDEX. EEQUIEED READINGS OF BILLS — purpose of, § 49. actual, required, § 250. amendments do not require same readings as bills, § 49. does not extend to eveiytliing which becomes law by the act, § 49. requirement to read on separate days, § 49. what sufficient cause for dispensing witli, not a judicial question, § 49. RES JUDICATA — decision of case is, though not made in compliance with constitution^ §451. RETROSPECTIVE LAWS — such law giving illegitimates a right to inherit, presumed not intended to affect pending action in which plaintttf had no title at its com- mencement, § 148. may take away defenses based on irregularities, § 164. may vaUdate contracts, § 164. when obnoxious, § 206. when not imjust, § 206. may have eflfect prejudicially on private interests, when not protected by constitution, § 206. strictly cousti'ued, § 406. statutes which change the iTde of evidence relate to the remedy, and do not impair the obligation of contracts, § 478. a law abolishing distress for rent has been sustained, § 478. also imprisonment for debt, which is not considered as part of the contract, § 478. statutes of Limitation may be changed and affect existing cases, § 479. legislature cannot create a legal hability out of past ti'ansaction, § 581. statutes win not be consti'ued to injui'e inchoate rights, if it can be avoided, § 481. nor to interfere with the existing course of business, unless the in- tention is clearly expressed, § 481. remedial statutes wliich are retarospective, how construed, § 483. continuing fact commencing before passage of act, and continuing afterwards, how affected, § 482. statutes relating to procedure prima facie apply to existing cases, § 483. pending proceedings good as far as they have gone when new act takes effect, § 482. definition, § 463. regarded with disfavor as generally imjust, § 463. ex post facto laws and laws impaii-Lng obligation of contracts prohib- ited, § 463. statute should not be so construed as to affect existing rights, § 464 or impose new duties or obligations in respect of past transactions, §464. general provision that statute of limitations shall run against state, not be construed retrospectively, § 464 INDEX. 681 RETROSPECTIVE LAWS (continued) — statute of limitations will not be construed to apply to existing cases, §464. statute will not be construed to take away a right to an office, § 464. as by applying to incumbents new regulation as to age, >5 404. new statute for review of proceedings on complaints against assess- ments, not applied to pending cases, § 464 for review by pi-obate coui't of its own decisions given only pro- spective effect, g 464. new record of deeds not applicable to existing deeds, § 464. strictly construed, § 464. subsequent act allowing attorney's fee to be added to penalty, § 469. what are ex post facto laws, §§ 465, 470. what laws impair obligation of contracts, §§ 471-479. recording laws may apply to existing deeds, § 474. contracts may be validated, § 474. periods of limitation may be changed, § 477. REVENUE LAWS — how construed, § 361. tax laws consti-ued sti-ictly, § 362. also statutes delegating the taxing power, § 365. and statutes exempting from taxation, § 364. REVISION — repeal of, does not revive revised acts, § 168. nor the common law, § 168. what is, § 154 implied repeal, §§ 154-156. to be alone consulted when the meaning is plain, § 156. when there is a conflict original acts consulted, § 156. title of original act may be considered in case of doubt, § 156. does not repeal exceptions in original law, § 156. dates of original enactments will determine priority of parts, § 161. REVIVAL — repealed statute revived by repeal of repealing statute, §§ 162, 168. otherwise where constitution requu-es new act to contain revised law, § 168. repealing a statute revives common law, § 168. where repealing statute substitutes other provisions, § 168. may be made to depend on contingent event, § 168. where act expressly revived, how to be construed, § 168. incomplete proceedings, made void by repeal, not revived by revival of statxite, § 168. repeal of revision does not revive revised acts, § 168. REVIVAL OF ACTIONS — law for, against representatives in pari materia with law for appoint- ment of executors and adiuiuistratoi-s. g 284. constiniction of remedial statute for, on death of plaintiff, §§ 416, 436. 682 INDEX. RIGHTS — law at the time of their accrual governs, § 11. statutory, inchoate when, g 11. under foreign law, § 13. in action, plaintiff should have title when suit brought, § 148. statutory right, while inchoate, lost by repeal, § 163. distinguished from remedy, § 164. when vested under statute whUe in force, not destroyed by repeal, § 164 pubhc, not ti'eated as relinquished by inference, § 386. when statute creates, effect on existing, § 202. effect of repeal on statutory, while inchoate, § 163. statutes against common right strictly construed, §§ 366, 367. liberal construction of acts for persons affected prejudicially by favors granted to others, § 441. inchoate, are subject to legislation, § 481. new remedy may be provided for existing, and added to or substituted for those wliich exist, § 482. vested, not to be legislated away by curative statutes, § 483. not meritorious which rest upon defects, § 484. if jurisdictional facts are wanting, the proceeding cannot be sustained nor cm-ed, § 484. the proceeding will be fatally and incurably defective, § 484 statutes conferring new, strictly construed, § 458. prescribing mode of enforcement mandatory, § 458. regulating existing, with negative words, mandatory, § 459. common law, not taken away unless intention clear, § 400. ROAD — f rancliise to build not constnied to be exclusive, § 378. grant to plank-road company to lay its road on established highway im- pUes no power to take exclusive possession, § 378. RULE OF ACTION — how applied judicially, § 9. prescribed by the legislature, § 10. RULE OF CIVIL CONDUCT— ^ what is, §§ 7, 8. RULE OF PROPERTY — when doubtful statute construed by inferior courts and has become a, § 307. practical constmction binchng when it has become a, § 309. constructions which are, strongly adhered to, g§ 314, 317. 318. SALARY — not changed by appropriation being made of a less sum, § 150. SALE — of real estate on execution, statute requuing cei-tificate of to be filed, directory, § 452. requirement that execution, be made at court-house, mandatory, § 455. INDEX. 683 SAME SESSION — laws passed at same session deemed less likely to conflict, §§ 151, 153, 283. SAVING CLAUSE — " what is, §§ 232, 225. is void if totiilly repugnant to purview, §§ 221, 2281 generally restricts repeal, § 225. strictly construed, § 225. in penal acts provisos and exemptions in favor of accused liberally con- strued, § 227. general intent of repeal cut down by special intent in saving claiise, §225. its effect, § 225. a general saving law \\tI1 have effect unless a different intent is mani- fested in subsequent repeals, § 226. general excluded by special, § 325. general provisions will operate, § 325. express saving, exception or exemption excludes others, § 328. effect of against repeal, § 167. general statute may operate as such, § 167. SEALED BIDS — statutes regulating, mandatory, § 458. SEA SHORE — grants of, how construed, g 386. act to incoporate city bordering on, vests no part of, § 386. SESSIONS OF LEGISLATURE — time and length of, prescribed in constitution, mandatory, § 26. must be held at proper place, § 26. extra sessions, § 26. SET-OFF — remedial act allowing, of improvements, § 437. SHALL BE LAWFUL — when mandatory, ^§ 460-462. SHIP-OWNERS — consti-uction of act mitigating rules of common law in favor of, § 442. ''SINGLE MAN" — may be made by context and manifest Latent to include u nm arried woman, § 417. SINGLE SUBJECT OF STATUTES — constitutional provisions, § 76. held mandatory, ^f$ 79-81. what is the subject or object, § 83. no limit to its magnitude, § 84. tlie required imitj'. § 84. no objection that subject only partially treated, § 84. all the provisions must be germane to subject, § 85. and not broader than the title, § 85. 684: INDEX. SINGLE SUBJECT OF STATUTES (continued) — a subject includes incidents and subsidiaiy details, § 93. what an act of tQCorpoiation may include, § 94. illustrations, showing what detaUs and incidents are germane, §§ 94> 95, 96. includes abolition of tilings inconsistent, § 97, a plurality of similar subjects may be gi-ouped and constitute a single subject, § 98. but if individualized in treatment there is no unity, § 98. a curative act may apply to many msti-uments or proceedings, § 99. one act may relate to all or a portion of the courts of a state, § 100. under title to amend an act. only provisions can be included which might have been included in tlie act amended, § 101. curative provisions would make the act double, § 101. provisions not germane to or outside the title, void, §§ 102, 170. effect of including more than one subject in act and in title, § 103. "SINGLE WOMAN" — may be made by context and manifest intent to include married woman, §418. SOVEREIGNTY — every nation possesses exclusive within its own territory, § 13. what it extends to, § 13. all residents subject to it, § 13. local law governs acts done, contracts made, etc., § 13. how change of, affects the laws, § 19. is in the people, § 41. gi-ant of right to sue state sti-ictly construed, § 386. SPECIAL LAWS — prohibition of in constitution, § 116. object of proliibition, g§ 120, 127. definition, §§ 120, 127. local laws are special as to place, § 127. legislature has power to pass special and local laws in the absence of constitutional inliibition, § 119. invalidity of unequal special laws, § 119. proliiljition of, on enumerated subjects is an implied requirement of gen- eral laws, §§ 126, 127. individual cases of enumerated class cannot be provided for, §§ 126, 129. exudative laws cannot be passed, § 130. dTARE DECISIS — statutory consti-uctions should be adhered to, §§ 310, 312. when a point has been once settled it should be adhered to, § 313. to give stability to law, § 313. precedents have effect on legal science as experiments in philosophy, §313. decisions have effect beyond the particular case, § 313. they become authority, § 313. the liighest evidence of what the law is, § 313. INDEX. 685 STARE DECISIS (continued) — distinction between j)recedents which are rules of property and those which are not, ^§ 314, 315, 317, 318. will be regarded as a rule of property if its nature is such or will oper- ate to become such, ^ 318. no absolute rule wlien imperative, § 316. when departed from there is a thoughtful comparison of consequences, ^5 316. two grounds for departing from a single decision, § 317. applicable to constitutions and statutes, § 317. applies only to decisions on points involved in causes, i; 317. applies not alwaj's to the reasoning, but only the conclusion and what- ever that necessarily involves, g 320. there is no effect on questions not decided, though they might have arisen, § 318. a judicial construction of statutes becomes a part of them, § 319, and rights wliich have attached under a construction, especially under conti-acts, cannot be divested by a change, § 319. contract rights are protected by the federal constitution from such im- pairment, § 319. a decision of the supreme court is law of the case in its subsequent trial and proceedings, § 321. STATE — bovmd like a natural person by its contracts, § 472. its conti'acts protected from impairment like contracts of private per- sons, § 474 STATUTE OF FRAUDS — applicable to prior contracts, may impair their obligation, § 471. STATUTE OF LIMITATIONS (see LimitationsX STATUTES (see Repeals; Titles of Statutes and Single Subject op Statutes) — have no extraterritorial effect, §§ 12, 14 effect of foreign statutes and laws, § 12. extraten-itorial effect in case of colonization, § 15, continuance after change of sovereignty, § 19. of states in rebellion, § 20. domain of federal and state statutes, §g 21, 22. statutes of one state foreign to other states, § 22. state statutes not foreign to general government, § 22k common-law record of, g 27. no plea denying admitted, gg 27, 53. vaUdity of, how tiied, g§ 27, 43, 44, 52, 182. how question of existence raised and decided, §§ 27, 52, 53, 54 legislative record, ^ 28. parol evidence not sufficient to impeach, § 43. joui-nals may be consulted for parliamentary history of, § 43. absence of provision for verifying all proceedings necessary to due en- actment of, §§ 40, 41. QS<0 INDEX. STATUTES (continued) — will not be declared void on facts admitted by parties litigant, § 45. presumed valid, § 46. operation of, may be made to depend on contingency, §§ 72-74 or foreign legislation, § 74. constitutional requii-ements as to single subject and title, §§ 76-103. duration of, § 136. take efifect from date of passage unless other date specified, g§ 104, 106. date of passage is date of last act in process of enactment, g 104. purpose of specifying future commencement, § 104. formerly acts of parliament took effect from beginning of session, § 105. lias been changed by statute, § 105. same rule recognized in North Carolina, § 106. legislature may fix future day for act to take effect, § 107. speak from the day they take effect, § 107. and from the first moment of that day if it be a future day, § 111. if they take immediate effect, they commence to operate at the precise time of passage, § 110. taking effect on pubUcation, § 109. effect of genei-al statute fixing futiu-e date for acts to commence, § 107^ supplemental act taking immediate effect may give such effect also to the original act, § 107. constitutional provisions regulating the time of acts taking effect, §§ 108, 109. are mandatory, § 108. emergency clause, § 108. in the absence of emergency clause when required, time of tak- ing effect not shortened, § 108. repealing power, § 136. repeals express and implied, §§ 136-178. negative statute is one expressed in negative terms, § 139. afiii'mative statute is one expressed in affirmative terms, § 139. what penal laws include, § 143. where statute changes iJunishment of common-law offense it is still a common-law offense, § 142. specific regulations in general law adopted by general reference in local act, how affected by subsequent changes, § 390. courts have no concern with policy or expediency of statutes, § 237. whether expressed in general or limited terms, legislature to be taken to mean what it has plainly said, § 237. a different mtent is not thus to be imputed to legislation to serve any supposed i)olicy or to maintain its validity, § 238. to be read so as to harmonize and give effect to all their parts, §§ 239-246. every part to have effect, § 240. literal import not to govern against evident intention, §§ 241-246. intention declared in, controlling, § 246. interpretation of words and phrases, §§ 247-255. recitals in, effect of, § 194. value of, in construction, § 247. INDEX. C87 STATUTES (continued) — prohibitory statutes uot construed on principles of leniency, § 254. prohibited things not void for theii- tendency, § 254. user of words in, § 255. re-enacted after receiving construction, § 255. effect of re-enacting with change, § 256. every cliange does not indicate change of intent, § 256. adoption of, by general reference, §§ 257, 390. confined to object of adoption, § 257. effect of rejieal after adoi)tion, § 257. effect of incorporating existing statute in a new one, § 257. not vitiated by bad grammar, § 259. may be fatally vague and ambiguous, § 261. in pari materia, gg 283-288. to be construed with reference to whole system of which it is a part, § 284. doubtful provisions not to be construed in conflict with general princi- ples, § 287. courts will judicially notice history of act in process of enactment for certain purposes, § 300. to be read iu view of surrounding facts, § 300. when object may be learned from another document, § 300. contemporaneous construction of, § 307. effect of general usage iu construction of, § 308. practice inconsistent with, cannot repeal, § 308. Bhould be so consti'ued, if possible, as to make it valid, § 324 duly authenticated, presumed duly enacted, § 330. except where by organic law it is provided otherwise, § 330. expediency and moral justice of, not considered by com'ts to affect validity, § 330. facts assumed by act cannot be disproved to invalidate, § 331. act creating county cannot be invalidated by disproving required popula- tion, § 331. presumed to be intended to have effect and capable of it, § 331. * presumed valid, § 331. every intendment made in favor of, § 332. epecific prevails over general, § 325. in derogation of existing law sti-ictly constmed, § 333. public, noticed by courts, § 335. private, not noticed, § 335. construed with reference to object or pm-pose, § 346. strict constmction of, § 346. construction rests upon many rules, § 347. penal, strictly construed, g 349. cannot be extended l)y implication, § 350. strict construction ai)plies whether statute refers to description of the offense, the penalty or procedure, § 352. revenue laws, how construed, g 361. for taxation, §§ 362, 36a 688 INDEX. STATUTES (continued) — exemption from taxation, or other burdens, § 364. against common right sti'ictly construed, § 366. of hmitations, § 368. fixing limitations of right to move for new trial or to take appeal, § 369. interfering with legitimate industries, how construed, § 370. creating or increasing liability, g 370. giving action to widow and next of kin for negUgently causing death, §§ 371, 398. costs, § 371. for discharge of insolvent debtors, § 372. for exemption of property from execution, § 372. depriving passengers of compensation for injuries who ride on platform, § 372. allowing recoveiy of damages from intoxication against sellers and renters, §§ 373-377. modified expressly or by imphcation by later legislation, § 287. doubtful provision not construed to conflict with general principles, § 287. or f undaftiental rights. § 290. object of, has potent influence in construction of, § 292. state, in federal courts, § 293. every part of, should have a reasonable effect, § 398. authorizing persons to sue in forma paiq^eris, § 398. construction of insolvent act as to voluntary conveyances, § 419. act providing compensation of pubhc ofiicers, § 419. when intended for the protection of purchasers and creditors, not aj)- plicable to others, § 429. remedial, §§ 434, 444. when declared to be remedial, how constmed, § 445. directory, §§ 446-453. mandatory, ^§ 454-462. statutory dii-ection to secretary of state to publish, directory, § 452. to make plan of drainage before directing work to be done, direct- ory, § 452. retrospective, §§ 463-482. curative, §§ 483, 484 STATUTORY DEFINITIONS — apply where a statute does not otherwise interpret itself, § 231. their general application, § 231. special statutory definitions exclude aU others, § 231. not appUcable to pleadings on the statute to which they apply, § 281. STATUTORY LAW — definition of, §§ 6, 7, 8. what included in, §§ 7, 8, 11. cannot be extended to govern existing cases, § 11. has no extraterritorial effect, § 12. essential that there be a legal legislature, § 26. INDEX. 6.S9 STATUTORY LIEN — lias only coiiinion-law incidents, § 290. STATUTORY POLICY — strict construction, to prevent overturning established and well defined. § 407. general language will te constixied in liai iiiouy with, § 407. STATUTORY PROCEEDINGS — must be conformable to statute, J5 4~)C. every act which is jurisdictional, or of essence of proceeding, or for beneiit of party affected, mandatory, § 45G. certificate of justice of death of infant's father, as a prerequisite t<. mother's consent to apprenticeship, § 4.56. every material retiuu-fnient of statute to be followed in exercise of power of eminent domain, § 456, provision that wt)rk under municipal charter be let to lowest bidder, mandatory, g 457. STATUTORY RIGHTS — depend on statiites creating them, § 398. to recover for death caused by negligence, g^ 371, 398. statutes for accommodation of particular citizens or corporations, § 398. to sue ill forma jMinjjer is, § 398. to detain trespassing animals, g 398. for alloAvance of gratuitous credits against debt to state, § 398. mechanic's lien law, j^ 398. to obtain svimmary judgment, § 398. as to mode of obtaining compensation for property taken for public use, §398. statutes regulating, mandatory, §§ 458, 459. STAY LAWS — consti-uction of as to impairing obhgation of contracts, § 478. STORY, MR JUSTICE — his views of the separation of fundamental powers, § 3. STRICT CONSTRUCTION — a statute m derogation of an existmg statute will be strictly construed, §137. best to follow reason and rule of common law, g 290. statute in affirmance of the common law construed by it, g 291. extraneous facts in aid of, § 292. object of statute has potent influence in, § 292. contemporaneous, § 292. object of statute considered, § 292. extrinsic aids in, § 292. comjmred witli liberal, g§ .346-348, 359, 360. not precise convei-se of hl)eral consti'uction, §§ 347, 348. appUed to peuid laws, j^ 361. does not embrace a case not within letter, §§ 348, 350, 354 so if not within the iutontiou, § .^O. not so applied as to defeat intention, §§ 34&-350. 44 690 INDEX. STRICT CONSTRUCTION (continued) — not opposed to application of common sense, § 350. applies to description of offense, penalty and procedure, § 353. statute not to be extended beyond grammatical sense on a plea of fail- ure of justice, § 353. penalty not inflicted if meaning in doubt, § 353. if notice necessary to impose a duty it must be actual notice, g 354 doubts on reading statute to be resolved in favor of accused, §§ 353, 357. ambiguities not to be imagined in order to apply a lenient construction, ^357. of revenue statutes, § 361. of statutes which impose taxes, §§ 362, 363. or exempt from taxation, g 364. or delegate the taxing jpower, § 365. of statutes against common right, § 366. limiting right to move for new ti-ial or take appeal, § 369. interfering with legitimate industries, § 370. of public grants, g§ 378, 379. of delegation of power to corporations, §§-379-386. eminent domain, §§ 387-389. of statutes granting power, §§ 390, 391. providing new remedy, §§ 393, 393. summary proceedings, § 393. new methods of proof, § 393. methods of appeal, § 394. exceptional methods of obtaining jurisdiction of parties, § 394. of new procedure for new offense, § 396: of staUitory rights, §§ 397, 398. statutes in derogation of common law, § 400. of statutes relative to married women, § 400. when interpretation clause strictly construed, § 402. of retrospective laws, §§ 406, 464. of statutes to prevent interference with well defined and established statutory policy, § 407. appUed to statutes granting new right, privilege or immunity, § 458. SUBJECT-MATTER — of statute, conti-oUing effect of in construction, § 218. general words may be resti-ained to it, § 218. words of narrower import expanded to it, § 218. general provision in appropriation act presumed temporary, § 218. act giving pilot's lien construed not to apply to government vessels, §218. general saving clause limited to acts repealed by same act, § 218. exemption in revenue law limited to taxes provided for in same act, §218. SUITORS — acts remedial which are intended to promote convenience of, § 437. SUPPLEMENTAL ACTS (see Amendatory Acts), § 135. INDEX. C&l SUMMARY PROCEEDINGS — statutes for, sti-ictly coustinied, g§ 207, 393, 399. TAXATION — statutes authorizing, or delegating power of, constmed strictly, §§ 361- 363, 365. also exenii)tions from, § 364. never implied thit tlie government has suiTendered the power of, § 3T8. TAX-PAYER — provisions for protection of, mandatory, § 454. publication of notice as to time of redemption, § 457. TECHNICAL WORDS — when used technically to be constinied accoi'ding to technical meaning, gg 247, 253, 254. in the sense generally accepted among tliose engaged in the trade, etc., to which tliey apply, g 254 TENSE — of statutes not always followed, g 259. TERRITORIAL DIVISIONS — established by public statutes judicially noticed, § 295. TERRITORIAL LAWS — power of congress to legislate for territories, §g 23, 24, 195. TERRITORIES — power of congress to legislate for, §g 23, 24. nature of government in, §§ 24, 25. TESTAMENTARY BOND — what construed to include, § 423. TEST OATH — statute requiring of suitors, strictly construed, § 367. statute requiring in respect to past acts, ex post facto, § 467. when apjjlicable to present acts, § 468. TIME WHEN STATUTES TAKE EFFECT (gg 104-111, 160) — statutory provisions requiring official acts, directory as to, §g 448-450. TITLE — acquired by laws of one coimtry good everywhere, § 13. TITLE TO LAND — coui-ts take judicial notice of the source whence derived, ,i; 298. TITLES OF STATUTES — constitutional reiiuirement to express subject of act, § 76. held mandatory, gj; 79-81. indispensable part of every act, g>5 86. 211. how subject required to be stated in, g 86. niustbe as comprehensive as the subject, § 87. and broad enough to cover aU the provisions, ^^ 87, 211. thr purpose fur which title must express tlie subject, g 88. 692 INDEX. TITLES OF STATUTES (continued) — the degree of particularity in expressing the subject left to discretion of tlie legislature, § 88. it may be too general ; if misleading will vitiate act, § 80. it need not index the details of act, §g 88, 211. it may index details, and will be good expression of the general subject m which they converge, § 95. it need not give synopsis of means to accomplish the statutory purpose, §88. " etc." may increase scope of the title, § 89. should accompany bill in its passage, g 91. a subject stated generally in the title includes incidents and subsidiary details, §§ 93-95. amendatory and supplemental acts, § 101. sufficient if it identihes the original act and expresses the purpose to amend or supplement it, § 101. may contain whatever might have been inserted in amended or sup- plemented act, §^ 101, 132. if act and title contain more than one svibject, whole act void, § 103, no part of statute, § 210. of gi-eat importance in modern legislation, § 210. could not, at common law, control plain words in the statute, § 210. referred to in case of doubt to clear away ambiguities, §^ 210, 213. acts identified by, § 210. when no constitutional barrier, plain words may give act effect beyond, g 210. effect of constitutional restriction to one subject in, § 211. act to be consti-ued in view of, § 211. is a limitation to scope of act, § 211. TOLL — franchise to take not impUed in grant, § 378. TOPOGRAPHY — courts take judicial notice of, of state, § 298. TOWNS — subject to legislative conti'ol, § 473. may be changed or abolished at the will of the legislature, § 473. TRADE ~ includes a cod fishery, g 356. TRANSITORY RIGHTS— may be enforced anywhere, g§ 13, 14. title acquired vmder laws of one country universally recognized, § 13. contracts the same if not contrary to policy of the law of forum, § 13. . TREATIES — rights which have vested imder cannot be desti-oyed by the legislature nor the executive branch of the government, § 480. are part of the law, §g 197, 394. judicially noticed, § 294. INDEX. 093 UNIFORM OPERATION OF LAWS OF GENERAL NATURE (§§ IIG, 121-123) — there may be differences in details, § 121. provLsiou does uot prevent speciul legislation, § 122. requirement intended to prevent privileges or immunities to one class and not otliers, § 121. to prevent unjust discrimiDations, § 122. of this natm-e are laws as to sufficient fences, § 122. those reqiiiriug all fields to be inclosed therewith, § 122. or prohibiting sheep from running at large, g 122. relating to libel, § 122. or taxes, g 122. criminal laws must have a uniform operation, § 123. also laws relating to common schools, § 123, divorce, descent and distribution of property of decedents, § 123. the general form of a statute not the criterion, § 123. whether a law be of a general nature depends upon its subject-matter, S123. judicious classification admissible, § 123. what is, §§ 127-129. ^ a law in general terms and restricted to no loca^t}^ operating equally, must apply to a group of subjects needing peculiar legislation, § 127, distinctions which do not call for pecuhar legislation cannot be basis of classification, § 128. limitation to even such classification, § 129. a general act cannot be restiicted in ten-itoiy, § 129. what is uxdform operation, § 124. operation is uniform if law operates uniformly imder like conditions and circumstances, § 124. fees may be aUowed according to population, § 124. how uniformity secured in Tennessee, § 124. the number of persons affected does not control, § 125. legislation as to certain Uabdities may be confined to railroad compa- nies, § 125. exceptional jm-isdiction may be given to justices in such cases, § 125. towns and cities may be classified according to popiUation for appropri- ate legislation, § 125. railroads may constitute a class for legislation adapted to them as such, §126. a law embracing whole subject must also have uniform operation, § 127. what is a general subject, § 127. such laws cannot be made special by amendment, § 130. UNREASONABLENESS — argument agamst, forcible, § 152. out of place against plainly expressed intention, § 288. UNWRITTEN LAW — what it includes, g§ 15, 16, 184. of real property, fedei'al com'ts follow, as interpreted in state, § 187. 694 INDEX. USAGE — will not repeal a statute, § 137. long practice may clear away ambiguities, § 137. VENIRE — requirement that certain words be inserted, mandatory, § 455. VESTED RIGHT — retrospective laws impau'ing, § 206. what is, § 164 when party may have in penalty, § 166. cannot be destroyed or impaked, § 480. secm-ed by the bUl of rights, § 480. is property as tangible things are, § 480. there is, in an accrued cause of action or defense, § 480. a defense under statute of hmitations is, § 480. a title may be so derived, §§ 479, 480. if a conti'act when made is a nullity it cannot be made good by an act of the legislature, § 480. a right of redemption once vestsd is a property right, § 480. it cannot be annulled by a legislative act, g 480. a husband's right in the property of his wife cannot bs divested by sub- sequent legislation, § 480. VOLUNTARY CONVEYANCES— consti'uction of remedial statute relating to, § 419. VOTER — statutoiy conditions to right to vote must be complied with, § 459. WAR — in case of civil, exception to statute of limitations admitted, § 424 WARRANT OF ATTORNEY — construction of statutes relative to, § 429. WATER-COURSE — grant of, does h^t include public ferry, § 379. WIDOW — statutes giving action to, and next of kin for causing death, § 371. damages from intoxication, §§ 373-377. WILBERFORCE — his definition of statute law, § 7. WILFUL — meaning in statutes, § 253. WILL — act remedial providing for execution of powers of, by successor of exec- utors, g 436. construction of act making void bequest to witness to, § 437. statute pirovidijQg requisites of, wiU not be apphed to those which have been executed, § 464 INDEX. C95 WILL (continued) — consti-uction of, cannot be affected by act passed after death of testator, §480. WITNESSES — exceptions to competency of, restrictive, § 224. construction of ntatute prohibiting a party as v itness as to transaction after opposite party dead, § -129. act remedial tJiat bequest to, in will, void, g 43G. WORDS AND PHRASES — to be construed, or altered or supplied, to advance intention of act, §§ 218, 246. may be contracted or expanded for that purpose, §§ 219, 238. general, may be cut do\vn to avoid conflict witli settled policy, § 218. limited expression may be expanded to effect intent, § 245. when intention ascertained it controls, § 218. particular words may indicate a hmited intent, §§ 218, 219. general words in one part may be limited by particular words in another part, § 219. meaning of, in a recent statute will have weight, § 229. in common use, to be taken in their common signification, § 229. contemporaneous construction of by legislatiu-e high evidence of its in- tention, § 229. where they conflict with each other, their import may be varied to avoid the conti-adiction, § 238. of absolute repeal, may be qualified by context, g 242. where they do not du-ectly apply to the particular case, the object of act will determine their sense, § 242. orphan maj' be .sliown by context to mean minor, g 242. natural sense of, their literal import, § 245. may be departed from to carry out intention, ^g 245, 246, 250. general, or clause, may be restricted by evident intention, § 246. do not always extend to eveiy case within them, g 246. inquiiy is in what sense they were intended to be used, § 246. may be transposed, § 246. when interpretation clause intended to give particular words another than th 'ir ruiturai meaning, strictly consti'ued, g 402. the sense of, modified by context and associated words, g 262. effect of quaUfying, g§ 267, 269, 279-281. when general, follow particular words, g 268. " laws sometimes construed by context may mean only written laws,'" §429. common or popular, understood in a popular sense, §§ 247, 248, 254, 255, 258. extended to all the objects they denote, g 247. common law, in common-law sense, §g 247, 253. technical, in a technical sense, gg 247, 346. unless context shows a different intent, § 247. of t^vo significations of, the popular should have preference, g§ 248, 250. 696 INDEX. WORDS AND PHRASES (continued) — general should receive general construction, g 249. a statute directing that they be understood according to common usage does not preclude other common-law rules, § 251. other rules of equal dignity and importance to give effect to legis- lative intent, § 251. " immediate danger," how quaUiied by general intent of act, g 251. in statute intended for people should be understood in popular sense, §251. "or" and "and"' construed as interchangeable, § 252. having special or definite sense in common law, understood accordingly, §253. " heir " means one capable of inheriting, § 253. teclmical words used relative to teclmical subject, § 264 when not so used, § 254 common, having a technical meaning, presumjitiveiy used in poju^ar sense, unless relating to technical subject, §g 254 255. in penal statute, must be clear evidence of intention to depart from pop- ular sense, § 254 statutory user of, § 255. when used in statutes and construed, and afterwards re-enacted, § 255. where re-enactment is with change of phraseology, §§ 255, 256. meaningless words may be disregdWed, § 260. omitted words may be supplied, § 260. wi'ong words may be corrected, § 2j60. when descriptive, and essential, must be clear and accurate, § 261. words not to receive narrowest interpretation, even in penal statute, §357. " wife " may be construed " widow " in penal statute in order, to effectu- ate its intention, § 357. "navigating" may be predicated of ,a vessel at anchor, § 357. " deserting," not predicable of leaving for cause, § 355. " tickets " do not include due-bill for a debt, § 358. teclinicai words to receive a teclmical construction, § 346. popular, to be construed according to common acceptation, § 346. " trade " includes a cod fishery, § 356. to "' persuade " in a penal statute equal to " aid," § 356. meaning of " i^rize " and " capture " affected by purpose of act, § 356. " mortgagee " in penal statute does not include '• assignee," § 358. " officer " in penal laws against excessive fees does not include one who has gone out of office, § 358. may be restrained to bring operation of statute within its intention, §429. limited to object and subject-matter of the statute, g 429. WRITTEN LAW — what included, §g 184 189. \ y UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 819 103 3