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a divorce, which was not true. After you left | The attending circumstances are important. you wrote letter after letter breathing, not love, It drew to the place a large and noisy and but criminal sensuality, and you induced the boisterous crowd. The nature of the thing itgirl to come here to her ruin. You knew her self is important. It was run by a steam engine. age and begged her to put on long dresses to The whistle blew every few minutes. The make her look older. Yours is a crime aimed music played, the gallery ran around, the at by the laws of all nations. The family circle crowd hallooed, etc., until ten o'clock at must be protected from such as you, who are night. That it was a mere idle amusement, nothing more than fiends dressed in human perfectly legitimate in a proper place or at a shape. There is no reason that your sentence proper time, is not wholly unimportant. That should be any less than the full term the law which calls together a disorderly crowd in a allows, and you are sentenced to five years in public place was held to be a public nuisance the penitentiary."
in King v. Moore, 3 Barn. & Ald. 184. The It is true that the crime is one aimed at by making of loud music, with instruments or the law of all nations, and the sentence will be otherwise, in the night time, to the disturbance hailed with satisfaction by everybody who re- of a neighborhood, was held to be a public nuiscognizes the need of protection for his family ance in Rex v. Higginson, 2 Burrows, 1233; against such villains.
Com. v. Oaks, 113 Mass. 8; Com. v. Smith, 6
gard it as a nuisance. Some of the witnesses In line with the piano case decided in New
attended. Some permitted their children to York city is the “merry-go-round" case of attend. They thought it a harmless amusement West Virginia, in Town v. Davis, decided in the for the children. It did them good, rather than Supreme Court of Appeals of West Virginia, 21 harm, and the proprietor was careful, polite, S. E. R., 906, it was held that a "merry-go- and kept good order. This, I take for granted, round," run by a steam engine, the whistle of is true, at a proper time and in a proper place. which blew every few minutes, accompanied by other witnesses lived at a distance. They, of a band. and attended by a large, noisy and course, were not annoyed, and they thought it boisterous crowd till after ten at night, disturb- was not a nuisance to those who lived near by. ing some of the people living near it, is such a Four witnesses who lived close by say that it nuisance as a town council has power to abate. was a nuisance, disturbed and annoyed them
The court said, in part: “Many of the ques- at their homes, and prevented or interrupted tions raised by the plaintiff in error have al- their sleep. One witness, who lives on the ready been discussed and considered. Was same street, five lots below, says it was a conthe riding gallery a nuisance at that particular siderable annoyance, and, to some extent, kept place and time? is the only one that remains. him awake. Quite a number of witnesses who That depends on the place, the time, the cir- live or do business near by were not annoyed cumstances, the manner in which it was operated by it, and do not regard it as a nuisance. From and the effect it produced. Did the noise and all this, and from the general character of such crowd, and other effects of this riding gallery, machines in operation, with their usual accominvade any public or private right? Did it paniments, it is not hard for one to form a pretty materialiy interfere with and impair the ordinary accurate opinion on the question involved; physical comfort of any one of normal sensibility that is, that when kept up day and night, for and ordinary mode of living, in his home or days together, in such a place, it was a decided place of business? The place has much to do nuisance to some people, of ordinary sensibility, with it. It seems to have been on a vacant lot who lived or had their place of sleeping adjoinin a populous part of the town, with at least ing or close to the vacant lot, while to those four dwellings near by. The time is important. who lived at a distance, those who participated, It was operated up to ten, and half after ten in and some of those who lived close to the place, the night, tending to prevent and disturb sleep, it was not a nuisance did not annoy them to and had been kept up continuously for six days. I any material extent.”
the Ohio State Association,
"STATUTORY CONSTRUCTION.” must inquire whether it is a Federal statute, or A paper read by the Hon. F. S. Monnett, of Bucyrus, before
whether it is purely a State statute, for the rule of
interpretation, as seen hereafter, varies according N as much as whole treaties have been written on
to the class referred to. Another division of stat
utes that is necessary to be understood before apexpositors of the law, it is difficult to furnish you plying the rules of interpretation is, first, whether anything new; in fact, on this subject, I anticipate a statute is simply declaratory, which does not proyou would rather have something not new.
fess to make any alteration in the existing law, but long as Legislatures meet annually, and personal merely to declare or explain what it is; or, second, and proprietary rights are affected by their acts, remedial, meaning those statutes which are made just so long will this branch of the law be one of to supply such defects, and to abridge such supergreat and vast importance to the profession. The fluities in the common law as arise either from the fundamental division of our government, under its general imperfection of all human laws, whetlier various constitutions, both national and State, into from the change of time and circumstances, or from three distinct beads: legislative, judicial and the mistakes and unadvised determination of unexecutive, while apparently simple, has grown to learned judges, or from other cause. This modi. be a subject of constant litigation to determine the fication being effected either by enlarging the boundaries of each governmental function and to common laws where it is too narrow or restraining prevent the one from usurping or intruding upon it where it is too lax. The English Parliament the other. No more startling illustration of the occasioned a division of remedial statutes into two difficulties and the intricacies involved, in observ- sub-heads, commonly called enlarging and restraining these distinctions, is there than that of the ing statutes. Such is Wharton's definition, and effort of the highest tribunal of the land to con- substantially Blackstone's, of remedial statutes. strue the income tax. Here we observe a court of The other branch of my subject perhaps needs a last resort, and of the choicest scholars, dividing brief definition, What is “interpretation," and at one time equally upon great and vital questions what “construction” of statutes ? Interpretation of construction of the fundamental law of the land, differs from construction in that the former is the and subdividing many times on minor questions in art of finding out the true sense of any form of the same decision, and finally reversing themselves words; that is, the sense which their author inand revising their former opinion within a few tended to convey; and of enabling others to do the weeks after their original decision. If thus the While construction, on the other hand, is doctors of the law do disagree, we disciples of the the drawing of conclusions respecting subjects that law may go free. So that it may not always be lie beyond the direct expressions of the text, from the mark of an inefficient prosecuting attorney if elements known from and given in the text. he cannot off-hand, on the street corner, give an Interpretation only takes place if a text conveys infallible construction to some county officer of a some meaning or other. But construction is renew law involving the rights of person or property, sorted to when in comparing two different writings for the rules now laid down by adjudication and of the same individual, or two different enactiuents precedent have grown so numerous that to apply of the same legislative body, there is a contradiction any considerable number to a given case before found where there was evidently no intention of finally deciding it, is an arduous task in itself. such contradiction, or where it happens part of the
To analyze this subject and bring it within the statute contradicts the rest. When this is the case, limit assigned the speaker, we will analyze the sub- and the nature of the document or wbatever else it ject itself.
may be, is such as not to allow us to consider the Statute law has been defined as the will of the whole as being invalidated by a partial or other Legislature of a State, or the will of the nation contradiction, then resort must be had to con-trucexpressed by the Legislature, expounded by the tion. I have used Judge Cooley's distinctions as courts of justice. The Legislature, as the repre- cited in his Constitutional Limitations, 49–50. In sentative of the nation, expresses the national will common use, however, the word “construction " is by means of statutes, which with the exposition by generally employed in the law in a sense embracing the court, form the body of the statute law. (Will- | all that is probably covered by the terms "conberforce Statute Law, p. 8.)
struction” and “interpretation,” and in the broader Bouvier defines it as the written will of the sense the words “construction” and “interpretaLegislature, solemnly expressed according to the tion” are used as synonymous and interchangeable. forms necessary to constitute it the law of the A lawyer in construing a statute, or in looking State. Before undertaking to interpret a statute, for precedents and judicial construction of statutes, and apply the ordinary rule of interpretation, you must bear in mind the difference between the
Federal statutes and the State statutes, and the departure from the plain meaning of a statute on judicial detrminations under each class, for there is the ground of its unwisdom or public policies. a marked difference a fundamental difference, in (Sedg. on State on Constitutional Law, 231; Cooley, respect to implied powers between the Federal and 197.) State constitution.
Lord Blackburn said no court is entitled to deThe Constitution of the United States consists in part from the intention of the Legislature as apa grant of enumerated powers; bence, in interpret- pearing from the words of the act because it is ing it and the statutes under it, the courts presume thought unreasonable. Chief Justice Payton, of the existence of no power not expressly or impliedly Mississippi, laid down the rule that courts have no conferred. On the other hand, a State constitution other duty to perform than to execute the legisproceeds on the idea that all legislative functions lative will without any regard to their own views are in the Legislature, and hence the general assem- as to the wisdom or justice of the particular enactbly of the State may exercise all the powers which ment. It is also a universal principle of construcare properly legislative, and which are not taken tion that courts must find the intent of the Legisaway by its own or the Federal Constitution. Con- lature in the statute itself. Unless some ground gress can pass no laws but those which the consti
can be found in a statute for restraining or enlargtution authorizes, either expressly or by clear im- ing the meaning of its general words, they must plication, while the State assembly has jurisdiction receive a general construction, and the court canof all subjects on which its legislation is not pro- not arbitrarily subtract therefrom, nor add thereto. hibited. The powers not granted to the Union to There are some apparent exceptions to this broad legislate are withheld, but the State retains every rule. Vo limitation must be inferred which will attribute of sovereignty which is not taken away. defeat the object of the law. Thus, where two (21 Penn. St. 147, 16; 17 Id. 118–119; 52 Id. 474; hundred thousand dollars were appropriated for Cooley C. L. 10-11.)
buildings, which must cost three times that amount, The rules of construction of statutes are the same it was no limitation as to the expenditures. in courts of law and equity. There is always a Conjunctive sentences describing different legal presumption that the Legislature intends branches of the same offense will be construed as nothing unconstitutional, and if an act is suscepti- conjective or disjunctive, as the object and sense of ble of two constructions, that one must be adopted the law must distinctly require. It is, therefore, which is constitutional. But an unconstitutional only in cases where the words of the statute are consequence cannot and must not be avoided by capable of two meanings, or where, by giving them forcing upon the language of the act a meaning their literal interpretation the statute will be inwhich upon a fair test is repugnant to its terms. consistent or ambiguous, that courts have a right (24 Cal. 518; 12 Iowa, 1; 21 Id. 221.)
to resort to the secondary rules of construction to It is an elementary rule of construction that aid in determining the real intentions of the Legiswords and phrases of an act are used in their popu- lature. (7 N. Y. 97; 11 Id. 593; 10 Pett. (U. S.] lar and common conception, unless the subject | 524.) matter or context indicate that they are used in a
Language is rarely so free from ambiguity as to technical sense. If an act is passed with reference be incapable of being used in more than one sense, to a particular trade or business, then the words and to adhere rigidly to its literal and primary have the meaning as defined by that trade or busi- meaning would be to miss its real meaning in many ness, even though the meaning may differ from the instances. It is observed in Blackstone that if a common or ordinary meaning. If the language is literal meaning had been given to the laws forbidclear and admits of but one meaning, there is no ding a layman to lay hands on a priest, and punish room for construction. It is not allowable to inter-all who drew blood on the streets, the layman who pret that which has no need of interpretation. In wounded a priest with a weapon would not have such a case any departure from the language used fallen within the prohibition, and the surgeon who would be an unjustifiable assumption of legislative had bled a person on the street to save bis life would powers. (48 Fed. Rep. 293; 6 Wall. [U. S.) 395; have been liable to punishment. 5 Wheat. 95; 79 Am. Dig. 350.)
So likewise, the German who was greatly annoyed And where the language is susceptible of but one by having his out lot run over by trespassers and meaning, it must receive that meaning, although the village cow and horse, placed the following sign such construction lead to results that are absurd thereon ; “Any man, woman, child, horse, cow or and mischievous. Courts are not to tamper with dog caught trespassing upon these premises will the clear and unequivocal meaning of words used, have his or her tail cut off, as the case may be." He although the consequences may not be such as were never, literally, carried out his threat. So in concontemplated by the Legislature. There can be no struction of statutes, the rules of grammar are less
important than the intentions of the legislature. order to make the validity of the act depend upon The sense and spirit of the statute will always pre- the intention resulting from such inquiries. (113 U. vail over the strict and grammatical construction of S. 27; Id. 703; 36 N. Y. 285.) its words. If the terms of a statute are ambiguous, On the other hand, the legislative journals are it becomes the duty of the court to give such con- permitted to be used, not, however, as evidence of struction to it as may fairly be said to be in accord the meaning of a statute, for this must be determined ance with the intentions of the legislature.
from the language of the act itself, and the facts On a literal construction of his promise, Moham- connected with the subject on which it is to operate. med II's sawing the governor's body in two was no
Yet, in a case where a statute, the construction of breach of his engagement to save his head ; nor did which was requested, was so worded as to be apTammerlane's burying alive the garrison violate his parently contradictory in some of its provisions, the pledge to shed no blood. So the Earl of Argyle Supreme Court of the United States interpreted the fulfilled in the same spirit his promise to the Laird
same by reference to the journals of Congress from of Glenstane, that if he would surrender he would
which it appeared that the particular phraseology see him safe to England, for he hanged him after
was the result of an amendment without due refersafely taking him across the Tweed to English
ence to the wording of the original bill. (23 Wall. banks.
307–321.) Lord St. Leonard is on record as saying, “Noth
Under the head of “External Circumstances," ing is so difficult as to construct properly an act of
usage has been taken into consideration in construParliament, and nothing so easy as to pull it to ing a statute. Long usage may determine the pieces."
meaning of the language where one of two ambiguChief Justice Pollock said: “There is no import
ous constructions has been adopted. ant word in the English language which does not
It is another elementary rule of construction that admit of various interpretations."
all parts of a statute which relate to the same subLord Coke classifies the rules interpreting an am
ject matter must be construed together; that the biguous statute under four beads:
plain or palpable parts must interpret the ambiguous First. - What was the law before the act was
If one section of an act, for instance, repassed?
quired that notice should be given, standing alone, Second.- What was the mischief or defect for a verbal notice would probably be sufficient, but in which the law had not provided?
a subsequent section it provided that such notice Third.—What remedy the legislature had ap- should be served on a person or left at his usual pointed.
place of residence, which would obviously show Fourth.—The reason of the remedy.
that a written notice was intended in the first sec
tion. It is a legitimate rule of construction, from Surrounding facts and circumstances, with certain restrictions, are allowed to place the interpreters in
the context in surveying the whole act, to allow one the position of those whose words are interpreted. portion to restrict the generality of certain of its Hence, evidence of such intrinsic circumstances may provisions. So it may expand the narrowness of become admissible to show the intent of the legis others if the real intention of the legislature may be lature. (T Barb. N. Y. 416.)
gathered from broader expressions in other parts of To carry out the second rule of Coke, and in order the statute.
The examination of the context is allowable to to understand the scope and object of the enactment,
correct omissions and errors if the omission or the interpreter must ascertain wbat was the mischief
error is or defect for which the law had not provided.
ed in a subsequent section, thereby That is, he must call to his aid all those external or
supplying the omission. The context is to be con
sulted to avoid inconsistencies; and under this rule historical facts which led to the enactment. He
it is the duty of the interpreter to give effect to must refer to the history of the time to ascertain the
every word, clause and provision of the enactment. reasons for and the meanings of the provisions of Hence, the most important purpose of examining the statute. He may even look to the state of pub- all the parts of a statute together, and with referlic opinion, or judicial and legislative opinions on ence to one another, is that of giving, by the means the particular subjects at, and prior to, the time of of such comparison, a sensible and intelligent the enactment. But this rule has never gone so far effect to each, without permitting any one to as to allow a court to take the testimony of the nullify any other, and to harmonize every detailed views of the individual members of the legislature provision of the statute, with the general purpose in debate to ascertain the meaning of the statute by or design which the whole is intended to subserve. them. Neither can the motives of legislators in With this end in view, the rule extends to all supporting an act be inquired into by the court in | amendments which, for this purpose, are regarded
as constituting but one enactment. (Here refer to aid, but does not control, unless other means fail; the legislation on water works.)
and in rendering the meaning of a statute punctuaThis same rule applies as to acts, and their sup- tion may be changed or disregarded. Judge Folplements, and still more, to codes and revisions. lett adds in his opinion, that ancient inscriptions Various sections referring to the same subjects, if and writings show that words were grouped together practicable, should be construed together as one, or without break or punctuation mark, the location as one act or chapter, or as continuous sections of
and form of the word being the only indication of the same act. And one chapter is to be read with
the meaning. The use of spaces and marks was another relating to the same subject, as one body of adopted very slowly, but mostly since the beginning law, though collected from independent laws on
of the 16th century. In the English case of Barrow previous enactments, where all have been re-enacted
v. Wadkin, it was said that “It seems that in the by revisory acts.
rolls of Parliament the words are never punctuated, On this same principle, and under this head, are
and that punctuation was not allowed to throw light constructions by context; earlier acts relatirg to the
on printed statutes in England.” same subject-matter have been examined by the
In Cushing v. Workick, 9 Gray, 382, it was held court in reference to the limiting power of certain
that “Punctuation is not to be regarded in construwords, enlarging. restraining or qualifying terms, ing a statute.” so as to effectuate the previous intentions of the
Punctuation has not arrived at perfection anylaw. A by-law which authorized any person to be where. In the Ewing case, 11 Pet. 41, the court Chamberlain of the City of London would be con
held, “Punctuation is a most fallable standard by strued so as to harmonize and not to conflict with
which to interpret a writing. It may be resorted to an earlier act or general statute which limited the when all other means fail, but the court will first appointment to a person possessed of certain qualifi- take the instrument by its four corners in order to cations. And the court held that “any person
ascertain its true meaning. If that is apparent on would be understood to mean only an eligible perjudicially inspecting it, punctuation will not be sub
So the various statutes of New York and ject to changes. In the Pancoast case, 1 Ohio, 385, Ohio relating to, and enlarging the powers of mar- the court in speaking of a construction claimed by ried women, though passed in different years, were
a party, say: “This construction is founded upon a held to be construed as one act. (62 Barb. N. Y.
mere grammatical criticism which is never received 531.)
to change or control the intention of the legislature, Where an act conferring jurisdiction of a certain where that intention is otherwise freely expressed. offense upon a police court, provided that the fine Something may depend upon punctuation in the to be imposed should not exceed one thousand dol- statute books, which may be incorrect, and ought lars, nor the imprisonment be more than one year, never to vary the true sense. it was held that, on comparison with other statutes And in that case they disregarded and left out a in pari materia, this provision was a limit upon the punishment by either fine or imprisonment, but did Judge Day, in the Hamilton case, 15 Ohio St. not intend to anthorize the imposition of both for 428, says: “ Courts will, however, in the constructhe same offense. (15 Barb. N. Y. 627.)
tion of statutes for the purpose of arriving at the So an act enlarging the jurisdiction of justices of real meaning and intention of the law makers, disthe peace, and prescribing no forms of proceedure, regard the punctuation, or re-punctuate if need be, must be construed together with earlier acts upon to render the true meaning of the statute.” the same subject and as adopting the forms of prac- Judge Okey made the same observation in the 31 tice prescribed by them. (105 Pa. St. 610.) Ohio St. 337; 223 Ohio St. 140.
Where a part of an act has been repealed it must, Much learning has been expended in English although of no operative force, still be taken into courts, as well as in the State courts, as to what efconsideration in construing the rest, provided it fect a title to a statute may have in construing an tends to elucidate an ambiguous word or passage. ambiguous statute. Lord Coke insisted that the
Some courts have laid down the rule that punctua- title to a statute was not only no part of the statute, tions by the legislature may be practically ignored, but should be excluded from consideration in conand that punctuation is no part of a statute. And struing the statute. Lord Cottonbam said the title further, that there is no punctuation in it which should not be resorted to in construing an enactought to control the interpretation. (105 C. S. 77; ment. This rule has been very much changed and 65 Pa. S. 311; 17 Wall. 496-502.)
modified by our judges in this country, both State The Supreme Court of Ohio in the case of Al- and federal. While the title is not regarded as part bright v. Payne, 43 Ohio St. 8, lays down the broad of the act, it is, nevertheless, regarded as a legitirule in construing a statute, that punctuation may | mate aid in ascertaining the intentions of the legis