gives place to a old statute to a new one. to the statute; and an old statute gives place to a new one (z).(31) And this upon a general principle of universal law, leges posteriores priores conCommon law trarias abrogant: consonant to which, it was laid down by the statute, and an law of the twelve tables at Rome, quod populus postremum jussit, id jus raħtum esto. But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant, that it necessarily implies a negative. As, if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and *vir tually repeals the former. For if twenty marks be made a qualification [*93] sufficient, the former statute which requires twenty pounds is at an end(a). But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and the latter law makes the same offence indictable at the (2) If two acts of parliament, having been passed during the same session, and coming into operation on the same day, be repugnant to each other, the act which last received the royal assent will be considered pro tanto a repeal of the other for that purpose, unless the latter act contain something which manifests an intention that the earlier should continue unrepealed. Rex v. Justices of Middlesex, 2 B. & Ad. 818; Paget v. Foley, 2 Bing. N. C. 679. (a) 1 Jenk. Cent. 2, 73. (31) Repeals by implication are not favored, and where the new statute does not in terms repeal the old law, both will stand, so far as effect can be given to them. Daviess v. Fair, bairn, 3 How. (U. S.) 636; Morris v. Delaware, etc., Canal Co., 4 Watts & Serg. 431; Canal Co. v. Railroad Co., 4 Gill & Johns. 1; Naylor v. Field, 5 Dutch. 287; Bowen v. Lease, 5 Hill. 221; State v. Berry, 12 Iowa, 58; Dodge v. Gridley, 10 Ohio, 177; McCool v. Smith, 1 Black. (U. S.) 459; Wyman v. Campbell, 6 Port. 219. Where the two statutes can be so construed that both may stand this will be done. Id. A strict construction is given to a statute which is an innovation upon the rules of the common law. McCluskey v. Cromwell, 11 N. Y. (1 Kern.) 593; M'Queen v. Middletown Manufacturing Co., 16 Johns. 57; Gibson v. Jenney, 15 Mass. 205; Wilber v. Crane, 13 Pick. 290; Sibley v. Smith, 2 Mich. 486; Souter v. Sea Witch, 1 Cal. 162; Rue v. Alter, 5 Denio, 119. Statutes in derogation of common right are strictly construed. Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9, 41; Bridgewater & Utica Plank Road Co. v. Robbins, 22 Barb. 662, 667; Freethy v. Freethy, 42 id. 641, 645; Wright v. Briggs, 2 Hill, 77; Sharp v. Spier, 4 id. 76; Cruger v. Dougherty, 43 N. Y. (4 Hand) 107, 121; Westbrook v. Willey, 47 N. Y. (2 Sick.) 457, 460; People ex rel. Freeman v. Hulburt, 46 N. Y. (1 Sick.) 110, 113; Sewall v. Jones, 9 Pick. 412; Smith v. Spooner, 3 id. 229. And so as to statutes which grant exclusive privileges to individuals or corporations. Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige, 554; Cayuga Bridge Co. v. Magee, 6 Wend. 85; Young v. Mackenzie, 3 Kelly, 31; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. (13 Smith) 93; Commonwealth v. Pittsburgh, etc., R. R. Co., 24 Penn. St. 159; Camden & Amboy R. R. Co. v. Briggs, 2 N. J. 623; Perrine v. Chesapeake & Delaware Canal Co., 9 How. (U. S.) 172; Mills v. St. Clair Co., 8 id. 569; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294, 306. Where a statute of another state or country is adopted, which statute has received a judicial construction there, it will be presumed that the legislature intends that the statute is to be taken with that construction. Draper v. Emerson, 22 Wis. 147; State v. Macon County Court, 41 Mo. 453; Campbell v. Quinlin, 3 Scam. 288; Tyler v. Tyler, 19 Ill. 151; Pennock v. Dialogue, 2 Pet. 1; Waterford, etc., Turnpike v. People, 9 Barb. 161; Kirkpatrick v. Gibson, 2 Brock. Marsh. 388; Drennan v. People, 10 Mich. 169; State v. Swope, 7 Ind. 91; Commonwealth v. Hartnett, 3 Gray, 450; Duramus v. Harrison, 28 Ala. 326; Adams v. Field, 21 Vt. 256; Myrick v. Hasey, 27 Me. 9. assizes; here the jurisdiction of the sessions is not taken away, but both have concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assizes, "and not elsewhere "(b). If a repealing statute be repealed the first statute is not thereby revived, unless by express words. 3. Formerly, if a statute repealing a prior statute was itself repealed, the original enactment, if nothing inconsistent with such an intention appeared, revived, and became again operative, without any formal words for that purpose (c). (32) But it is now enacted that "where any act repealing in whole or in part any former act is itself repealed, such last repeal shall not revive the act or provisions before repealed," unless words be inserted reviving them (d). And wherever "any act shall be made repealing in whole or in part any former act, and substituting some provision or provisions instead of the provision or provisions repealed, such provision or provisions so repealed shall remain in force until the substituted provision or provisions shall come into operation by force of the last made act "(e). Statutes to bind are inoperative. 4. Acts of parliament derogatory from the power of subsequent parliaments bind not(f). So the statute 11 Hen. 7, c. 1, which directs that no person, for the legislature [ *94] assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder(g). Because the legislature, being in truth the sovereign power, is always of equal, always of absolute, authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavoured to tie up the hands of succeeding legislatures. "When you repeal the law itself," says he, "you at the same time repeal the prohibitory clause, which guards against such repeal "(h).(33) (b) Foster's Case, 11 Rep. 56, 63; Michell v. Brown, 1 E. & E. 267, 274. (c) The Bishops' Case, 12 Rep. 7. (d) 13 & 14 Vict. c. 21, s. 5. (e) Id. s. 6. (f) Bac. Max. reg. 19. (h) Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat. L. 3, Ep. 23. (32) The common-law rule has been extensively adopted in the several states of the Union, and there are numerous decisions to the effect that when a statute, which repeals another, is itself repealed, the former statute is revived, and continues in force. Brinkley v. Swicegood, 65 N. C. 626; Doe v. Naylor, 2 Blackf, 32; Commonwealth v. Mott, 21 Pick. 492; Directors of the Poor v. Railroad Co., 7 Watts & Serg. 236; James v. Dubois, 1 Harr. 285; Harrison v. Walker, 1 Kelly, 32; Calvert v. Makepeace, 1 Smith, 86; Hastings v. Aiken, 1 Gray, 163; Janes v. Buzzard, 1 Hemp. 259; Sarsfield v. Van Vaughner, 14 Abb. 297. (33) Every statute enacted by our legislature may be repealed by any subsequent legislature, with the exception of statutes which are in the nature of contracts, or where rights have become vested under them. Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140; Kellogg v. City of Oshkosh, 14 Wis. 623; Bloomer v. Stolley, 5 McLean, 158, 161. If the statute is in the nature of a contract, the legislature cannot repeal it, as such legislation would be unconstitutional. Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358; Benson v. Mayor, etc., of N. Y., 10 Barb. 223; Dartmouth College v. Woodvard, 4 Wheat. 518; New Jersey v. Wilson, 7 Cranch, 164; People v. Platt, 17 Johns. 195; McLaren v. Pennington, 1 Paige, 102; Binghamton Bridge, 3 Wall. 51. Statutes imposformed are void. 5. Acts of parliament that are impossible to be performed can have no validity; and should there arise out of a statute, if literally construed, any absurd consequence, manifestly contradictory to common reason, sible to be per- a more liberal construction would be put on it so as to avoid, if possible, such collateral consequence. I lay down the rule with these restrictions; though it is sometimes laid down more largely, that acts of parliament contrary to reason are void(i).(34) But if the parliament will Unreasonable positively enact a thing to be done which is unreasonable, I know statutes. of no power in the ordinary forms of the constitution vested with authority to control it: and the examples usually alleged in support of this sense of the *rule do none of them prove, that where the main ob[ *95] ject of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above the legislative, which would be subversive of all government. But where general words, if applied to a particular state of facts, would lead to an unreasonable consequence, there the judges are in decency to conclude that this consequence was not intended or foreseen by parliament, and they will strive to expound the statute so as to avoid it. Thus, if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel(k). But, if we could conceive it possible for parliament to enact that he should try as well his own causes as those of other persons, there is no court that has power to (i) Such was the language of Lord C. J. Hobart in Day v. Savadge, Hob. 87. Lord Coke, in Bonham's case, 8 Rep. 115, 118 a, lays down the principle in more guarded terms thus:-"If an act of parliament be against common right and reason, or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." To this doctrine Lord C. J. Holt as sented, in The City of London v. Wood, 12 Mod. (34) In this country the constitutions of the United States and those of the several states, have so limited the powers of the legislature, and have so guarded the rights of the people, that the questions most usually presented to the courts are those relating to the constitutionality of the law, rather than to the question how far a statute may be void by reason of its injustice. And it is a familiar rule that every statute which violates either a state constitution or that of the United States, is invalid, and will not be enforced by the courts. How far the conduct or motives of legislators will be noticed by the courts was discussed in Fletcher v. Peck, 6 Cranch, 87, 130, 131. "There ought to be no limitation to the power of the legislature of an independent state, except what may be found in the fundamental law and the great and eternal principles of justice, morality and religion" per Cady, J., in Beecher v. Allen, 5 Barb. 183. It may be laid down as the law of our American courts, that a statute which does not violate any provision of the state or national constitutions, cannot be held void merely because it violates the principles of right and of natural justice. Calder v. Bull, 3 Dallas, 386, 399; Satterlee v. Mattimore, 2 Peters, 380; Fletcher v. Peck, 6 Cranch, 87; Weister v. Hade, 52 Penn. St. 478; Sharpless v. Mayor, etc., of Philadelphia, 21 Penn. St. 147, 161; People v. Supervisors of Orange, 27 Barb. 575, 593; 17 N. Y. (3 Smith) 235; People v. Toynbee, 2 Park. 490, 533; Knight v. Campbell, 62 Barb. 16, 28; Dow v. Norris, 4 N. H. 16; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Newland v. Marsh, 19 Ill. 376, 384; Harrison v. State, 22 Md. 468, 491; Myers v. English, 9 Cal. 341; Morrison v. Springer, 15 Iowa, 304; Lewis v. Webb, 3 Greenl. 326; Tyler v. People, 8 Mich. 320; Franklyn Bridge Co. v. Wood, 14 Ga. 80. See Cooley on Const. Lim. 168, 187, and notes. See post. defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or no. II. The fairest and most rational method of interpreting the will of the legislator, is by exploring his intentions at the time when the law was made, Rules for inter- by signs the most natural and probable.(35) And these signs preting statutes. are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of them all. The principal rules for interpreting statutes are as under: 1. Statutory words are generally to be understood in their usual and most known signification, and to be read in their natural and ordinary sense(); not Words, how to so much regarding the propriety of grammar(m) as their genbe understood. eral and popular use.(36) Thus the law mentioned by Puffendorf (n), which forbad a layman to "lay hands" on a *priest, was [ *96] adjudged to extend to him who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. (37) So in the act of settlement, (1) Birks app., Allison resp., 13 C. B. N. S. 23. (m) For the maxim, mala grammatica non vitiat chartam, applies to statutes as well as (35) If a contemporaneous construction by the legislature of the same words can be discovered, it is high evidence of the sense intended. Knight v. Campbell, 62 Barb. 17, 28; Philadelphia R. R. Co. v. Catawissa R. R. Co., 53 Penn. St. 20. So a contemporaneous interpretation of a statute under which rights of property have been acquired, will be upheld, when this can be properly done. Warfield, In re, 22 Cal. 51. The practical construction given to a state statute by the public officers of the state, although not admitted as controlling, is not overlooked, and may be regarded as decisive in a case of doubt. Union Ins. Co. v. Hoge, 21 How. (U.S.) 35. In construing ancient statutes, contemporaneous construction, as evidenced by usage, will not be departed from without most cogent reasons; and if the construction be doubtful, usage will control. Chesnut v. Shane, 16 Ohio, 599; Rogers v. Goodwin, 2 Mass. 475; Packard v. Richardson, 17 id. 122, 144; Opinion of the justices; 3 Pick. 517. (36) In the construction of a statute in which the words are plain and explicit, and the sense evident and clear, there is no room for construction, but merely for the application of the statute to the subject-matter before the court; and in such a case, words ought never to be supplied, changed, or qualified. Lane v. Schomp, 20 N. J. Eq. (5 C. E. Gr.) 82; Hyatt v. Taylor, 42 N. Y. (3 Hand) 258; Rich v. Keyser, 54 Penn. St. 86; Manuel v. Manuel, 13 Ohio St. 458; Ingalls v. Cole, 47 Me. 530; Coffin v. Rich, 45 id. 507; Mayor of Wetumpka v. Winter, 29 Ala. 651; Quigley v. Gorham, 5 Cal. 418; Alexander v. Worthington, 5 Md. 471; Bidwell v. Whitaker, 1 Mich. 469; In re Murphy, 3 Zabr. 180; Ezekiel v. Dixon, 3 Kelly, 146. Words in common use are to be taken in their natural, plain and ordinary signification. Schriefer v. Wood, 5 Blatchf. C. C. 215; Philadelphia, etc., R. R. Co. v. Catawissa R. R. Co., 53 Penn. St. 20; Gross v. Fowler, 21 Cal. 392. Where a statute contains a provision that it shall receive a certain construction, the courts are bound by that construction, although the language would otherwise have received a different construction. Smith v. State, 28 Ind. 321. A statute must receive a sensible construction, even though such construction qualifies the universality of the language. People v. Admire, 39 Ill. 251. A term in use in the English law, used in a statute without any definition of its meaning, is to be construed according to the sense in which it is understood in the English law. McCool v. Smith, 1 Black. (U. S.) 459. (37) The true sense of words used in a statute is to be ascertained generally by taking them in their ordinary and popular signification: or, if they are terms of art, in their technical signification. Green v. Weller, 32 Miss. (3 George) 650; Ex parte Hall, 1 Pick. 261. where the crown of England is limited "to the princess Sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words, "heirs of her body," which in a legal sense comprise certain only of her lineal descendants. The construing of a statute doubtless may, by the foregoing canon of interpretation and by the rules which follow, be facilitated. A capacity, however, for rightly apprehending the meaning of the legislature where their language is ambiguous or perplexed, can but be acquired gradually by practical experience and by a careful study of decided cases. Should the intention of the lawgiver prima facie be uncertain, and the phraseology which he uses seem obscure, recourse must not be had to more recondite maxims of construction until the primary maxim has been applied and been found to fail. It was long since resolved (o)—that judges ought not to make any construction against the express letter of a statute; for nothing can so exhibit the meaning of the makers of an act as their own direct words — index animi sermo. "And it would be dangerous to give scope to make a construction in any case against the express words when the meaning of the makers doth not appear to the contrary, and when no inconvenience will thereupon follow : and therefore in such cases a verbis legis non est recedendum"(p). statute must, if 2. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat, quam pereat.(38) As if land' Every part of a be vested in the king and his heirs by act of parliament, saving possible, stand. the right of A.; and A. has at that time a lease of it for [ *97] three years: here A. shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. 3. In conformity with the preceding rule, if words happen to be dubious, we may establish their meaning from the context; with which it may be of sin (0) Edrich's Case, 5 Rep. 118. (p) In elucidation of the above remarks, the reader is referred to Broom's Leg. Max., 4th ed. 548, 551-4, and the cases there collected. Legal terms used in a statute receive their technical meaning unless the contrary intention is plainly apparent; but this rule does not apply to the organic law, for the latter must be construed according to the meaning of those who adopted it. State v. Mace, 5 Md. 471; Clark v. City of Utica, 18 Barb. 451; Knight v. Campbell, 62 id. 16, 28; Merchants' Bank v. Cook, 4 Pick. 405, 411; Snell v. Bridgewater, 24 id. 296, 300. (38) The intention of the legislature is to be deduced from a view of the entire statute. Ogden v. Strong, 2 Paine's C. C. 584. If the language is not explicit, the intention is to be collected from the context, from the occasion or necessity of the law, from the mischief felt, and from the object and remedy designed. A statute must be so construed as to give effect, if possible, to every portion of it, and without rejecting any part as surplusage, or treating it as a repetition of a provision already made. Gates v. Salmon, 35 Cal. 576; Lacey v. Moore, 6 Coldw. (Tenn.) 348; Leversee v. Reynolds, 13 Iowa (5 With.), 310; Ellison v. Mobile, etc., R. R. Co., 35 Miss. (7 George) 572; Brooks v. Mobile School Commissioners, 31 Ala. 227; People v. Burns, 5 Mich. 114; Board of Comr. of LaGrange Co. v. Cutler, 6 Ind. 354; James v. Dubois, 1 Harr. 285. If different parts of a statute are irreconcilably repugnant, the latter part will prevail. Packer v. Sunbury and Erie R. R. Co., 19 Penn. St. 211; Townsend v. Brown, 4 Zabr. 80, 86, 89; Attorney-General v. Chelsea Water Works, Fitzg. 195. |