MUNICIPAL LAW is a rule of civil conduct, prescribed by the supreme power of a state. Municipal law, or the jus civile, is thus explained in the Institutes of Justinian. Quod quisque populus ipse sibi jus constituit, id ipsius proprium est civitatis; vocaturque jus civile, quasi jus proprium ipsius civitatis. This definition is less precise and scientific than that given by Sir William Blackstone. Municipal law is composed of written and unwritten, or of statute and common law. Statute law is the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities.1

It is a principle in the English law, that an act of Parliament, delivered in clear and intelligible terras, cannot be questioned, or its authority controlled, in any court of justice. "It is," says Sir William Blackstone, "the exercise of the highest authority that the kingdom acknowledges upon earth." When it is said in the books, that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean that the courts are to give the statute a reasonable construction. They will not readily presume, out of

1 For an accurate analysis of the nature of law, the student should consult Bentham's Fragment on Government, Works, i., esp. p. 263, note (b), and Austin on Jurisprudence, Lect. I., and passim. A short criticism of Austin's views in the

American Law Review, vi. 723 et seq., may also be referred to.

The jus civile of the Romans was defined as above in contrast to the jus gentium explained ante, 1, n. 1.

respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of but one construction, there is no doubt in the English law as to the binding {448} efficacy of the statute. The will of the legislature is the supreme law of the land, and demands perfect obedience. (a)

But while we admit this conclusion of the English law, we cannot but admire the intrepidity and powerful sense of justice which led Lord Coke, when Chief Justice of the K. B., to declare, as he did in Doctor Bonham's Case, (b) that the common law doth control acts of Parliament, and adjudges them void, when against common right and reason. The same sense of justice and freedom of opinion led Lord Chief Justice Hobart, in Day v. Savage, (c) to insist that an act of Parliament, made against natural equity, as to make a man judge in his own case, was void; and induced Lord Chief Justice Holt to say, in the case of The City of London v. Wood, (d) that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying. Perhaps what Lord Coke said in his Reports on this point may have been one of the many things that King James alluded to, when he said, that in Coke's Reports there were many dangerous conceits of his own uttered for law, to the prejudice of the crown, Parliament, and subjects. (e)

1. Laws Repugnant to the Constitution Void. — The principle in the English government, that the Parliament is omnipotent, does not prevail in the United States; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other form of government. But in this, and all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. {449} The law with us must conform, in the first place, to the Constitution of the United States, and then to the subordinate constitution of its particular state, and if it infringes the provisions of either,

(a) 1 Blackst. Comm. 91, 160, 186; Christian's note to 1 Blackst. Comm. 41.

(b) 8 Co. 118. (c) Hob. 87.

(d) 12 Mod. 687. (e) Bacon's Works, vi. 128.

it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the Constitution, and to regard the Constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the Constitution, is absolutely null and void. (x)

(x) All statutes are presumably constitutional. Grenada County Supervisors v. Brogden, 112 U. S. 261. A statute is not unconstitutional simply because it appears to the court not to conform to the general theory upon which the government is founded or the spirit of our institutions. Reeves v. Corning, 51 Fed. Rep. 774; Forsythe v. Hammond City, 68 id. 774. The courts will not inquire into the question whether, in enacting a law, the legislature had sufficient information or was misled by false representations. Farmers' Loan & T. Co. v. Chicago, &c. Ry. Co., 39 Fed. Rep. 143; Soon Hing v. Crowley, 113 U. S. 703, 710.

The courts cannot annul a statute on the ground that its passage was procured by fraud. See Carr v. Coke (N. C.), 22 S. E. Rep. 16; Wyatt v. Wheeler & Wilson M. Co., id. 120; 29 Am. L. Rev. 734. So the motives of the legislature do not affect the validity of its laws. Mayor of Baltimore v. Board of Police, 15 Md. 376; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, id. 703; People v. Glenn County, 100 Cal. 419; Parker v. State, 132 Ind. 419; Wichita v. Burleigh, 36 Kansas, 34. When a statute is enacted in accordance with the requirements of the Constitution, questions relating to the observance of legislative procedure are for the legislature and not for the courts. Lyons v. Woods, 153 U. S. 649; Hunt v. Wright, 70 Miss. 298; McDonald v. State, 80 Wis. 407; In re Ryan, id.

414; Pelt v. Payne, 60 Ark. 637; State v. Jones, 6 Wash. 452. A statute which was unconstitutional when enacted, is not reviewed and made effective by a subsequent change in the Constitution authorizing such legislation. Comstock Mill Co. v. Allen, 21 Nev. 325. If unconstitutional only in certain sections, which are separable from the other sections and are made valid by amendment, the whole becomes constitutional as if re-enacted. Baldwin v. Frank, 120 U. S. 678; Presser v. Illinois, 116 U. S. 252; Pollock v. Farmers' L. & T. Co., 158 U. S. 601; State v. Cincinnati (Ohio), 40 N. E. Rep. 508.

A person who voluntarily asks for the benefit of a statute cannot in the same proceeding aver its unconstitutionality: Collier v. Morrow, 90 Ga. 148; nor can one who has procured the passing of a special statute. Treasurer v, Martin, 50 Ohio St. 197. A statute which is constitutionally invalid, cannot be ratified and made valid by a constitutional amendment. State v. Tufly, 20 Nev. 427.

The legislature cannot make its laws dependent upon their acceptance by a majority vote of the people. State v. Hayes, 61 N. H. 264; Justices' Opinion, 160 Mass. 586; 23 L. R. A. 113, and note; see Armstrong v. Traylor, 87 Texas, 598. The legislature cannot be compelled to enact laws on a certain subject, though the State constitution requires it. In re State Census (S. D.), 62 N. W. Rep. 129.

A State statute yields to a Federal

2. Power of the Judiciary to declare them Void. — The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the Constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legislature when it appears to them to have been passed in violation of the Constitution, would be to contend that the law was superior to the Constitution, and that the judges had no right to look into it, and regard it as a paramount law. It would be rendering the power of the agent greater than that of his principal, and be declaring, that the will of only one concurrent and co-ordinate department of the subordinate authorities under the Constitution was absolute over the other departments, and competent to control, according to its own will and pleasure, the whole fabric of the government, and the fundamental laws on which it rested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard {450} and enforce them. Prom the mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by the means of frequent periodical elections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the

statute upon the same subject when it latter. Gulf, &c. Ry. Co. v. Hefley, 158 is competent for Congress to enact the XI. S. 98.

government, and every member of the community, from undue and destructive innovations upon their chartered rights. (a)

It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature, made in violation of the Constitution, or of any provision of it, null and void. (x) The progress of this doctrine, and the manner in which it has been discussed and established, is worthy of notice. It had been very ably examined in the Federalist, (b) and its solidity vindicated by unanswerable arguments; but it was not until the year 1792 that it seems to have received a judicial consideration.1

(a) M. De Tocqueville is of opinion, that if the free institutions of America are to be destroyed, it will be owing to the tyranny of majorities, driving minorities to desperation. The majority constitutes public opinion, which becomes a tyrant, and controls freedom of discussion and independence of mind. This is his view of the question, and English writers on the institutions of society in this country have expressed the same opinion. If there was no check upon the tyranny of legislative majorities, the prospect before us would be gloomy in the extreme. But in addition to the indirect checks of the liberty of the press, and of popular instruction and of manners, religion, and local institutions, there are fundamental rights declared in the constitutions, and there are constitutional checks upon the arbitrary will of majorities confided to the integrity and independence of the judicial department. M. De Tocqueville seems to be deeply impressed with the dangers in a democracy, of the corrupting and controlling power of disciplined faction, and well he may be. The most dangerous and tyrannical of all crafts is party or political craft. The equal rights of a minor party are disregarded in the animated competitions for power; and if it were not for the checks and barriers to which I have alluded, they would fall a sacrifice to the passions of fierce and vindictive majorities. See Tocqueville's De la Démocratie en Amérique, ii. c. 15. The whole work is interesting, startling, profound, liberal, and instructive. The author is remarkably fearless, candid, and unprejudiced in his discussions and reflections.

(b) No. 78.

1 In Den dem. Bayard v. Singleton, Martin (N. C.), 48, citizens of the United States brought an ejectment for lands held by the defendant under a conveyance from a commissioner of forfeited estates. An act of the state legislature required the courts, in all cases where the defendant made affidavit that he held the disputed property under a sale from such a commissioner, to dismiss the suit on motion. The defendant made such an affidavit, and moved that the suit be dismissed. At

May term, 1787, "the court, after every reasonable endeavor had been used in vain for avoiding a disagreeable difference between the legislature and the judicial powers of the state, at length, with much apparent reluctance, but with great deliberation and firmness, gave their opinion separately, but unanimously, for overruling the aforementioned motion," on the ground that the act was unconstitutional and void as depriving the citizen of his right to a trial by jury.

(x) See supra, 296, note (x); Thayer's Cases on Const. Law, 146.

In Hayburn's Case, which came before the Circuit Court of the United States for the District of New York, in April, 1791, the judges proceeded with the utmost delicacy and {451} caution to declare an act of Congress, assigning ministerial duties to the circuit courts, to be unconstitutional. The court laid down the position, that Congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial; and that the act in question was not obligatory upon the court. But they nevertheless proceeded, voluntarily and ex gratia, as commissioners, to execute the duties of the act.

In Pennsylvania and North Carolina, the circuit courts of the United States, within those districts, equally held the act not binding upon them, because the legislature had no right or power to assign to them duties not judicial; but they were not so accommodating as the Circuit Court of New York, for they declined to act under the law in any capacity. (a)

In 1792, the Supreme Court of South Carolina, in the case of Bowman v. Middleton, (b) went further, and set aside an act of the colony legislature, as being against common right and the principles of magna charta, for it took away the freehold of one man and vested it in another, without any compensation, or any previous attempt to determine the right. They declared the act to be ipso facto void, and that no length of time could give it validity. This was not strictly a question arising upon any special provision of the state constitution; but the court proceeded upon those great fundamental principles which support all government and property, and which have been supposed by many judges in England to be sufficient to check and control the regulations of an act of Parliament. The next case in which the power of the judiciary to disregard or set aside a statute for being repugnant to the Constitution, was one that came before Judge Paterson, at Philadelphia, in April, 1795. (c) He asserted the duty of the court, and the paramount authority {452} of the Constitution, in remarkably clear and decided language. That was a case of an act of Pennsylvania, which he held to be unconstitutional, and not binding. He insisted that the Constitution was certain and fixed, and contained the permanent will of the people, and was the supreme law, and paramount to the

(a) 2 Dallas, 410, 411, 412. (b) 1 Bay, 252. (c) Van Home v. Dorrance, 2 Dallas, 304.

power of the legislature, and could only be revoked or altered by the authority that made it; that the legislature was the creature of the Constitution, and owed its existence to the Constitution, and derived its powers from the Constitution, and all its acts must be conformable to it, or else they will be void.

The same question afterwards arose before the Supreme Court of South Carolina, in the case of Lindsay v. The Charleston Commissioners, (a) and the power of the legislature to take private property for necessary public purposes, as for a public street, was freely discussed; and though the judges were equally divided on the question whether it was a case in which the party was entitled to compensation, those who held him so entitled held also that the law was unconstitutional and inoperative until the compensation was made. The judges, in exercising that high authority, claimed to be only the administrators of the public will; and the law was void, not because the judges had any control over the legislative power, but because the will of the people, declared in the Constitution, was paramount to that of their representatives expressed in the law. In Whittington v. Polk, (b) it was decided, in 1802, by the general court of Maryland, with great clearness and force, that an act of the legislature repugnant to the Constitution was void, and that the courts had a right to determine when it was so void.

Hitherto this question, as we have seen, was confined to some of the state courts, and to the subordinate or circuit courts of the United States. But in Marbury v. Madison, (c) the subject was brought under the consideration {453} of the, Supreme Court of the United States, and received a clear and elaborate discussion. The power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any state legislature, were declared, in an argument approaching to the precision and certainty of a mathematical demonstration.

The question, said the chief justice, was, whether an act repugnant to the Constitution can become a law of the land, and it was one deeply interesting to the United States. The powers of the legislature are defined and limited by a written Constitution. But to what purpose is that limitation, if those limits may at any time be passed? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine

(a) 2 Bay, 38. (b) 1 Harr. & Johns. 236. (c) 1 Cranch, 137.

the persons on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation. If the Constitution does not control any legislative act repugnant to it, then the legislature may alter the Constitution by an ordinary act. The theory of every government, with a written constitution, forming the fundamental and paramount law of the nation, must be, that an act of the legislature repugnant to the Constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow in fact what was established in theory, and to make that operative in law which is not law. It is the province and the duty of the judicial department to say what the law is; and if two laws conflict with each other, to decide on the operation of each. So if the law be in opposition to the Constitution, and both apply to a particular case, the court must either decide the case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law. If the Constitution be superior to an act of the legislature, the courts must decide between these conflicting rules; and how can they close their eyes on the Constitution, and see only the law?

This great question may be regarded as now finally settled,

and I consider it to be one of the most interesting {454} points in favor of constitutional liberty, and of the

security of property, in this country, that has ever been judicially determined. (a) There never was any doubt or difficulty in New York, in respect to the competency of the courts to declare a statute unconstitutional, when it clearly appeared to be so. Thus, in the case of The People v. Platt, (b) the Supreme

(a) See decisions in the state courts to the same point, in 1 N. H. 199; 12 Serg. & Rawle, 330, 339; Charlton, [175,] 176; 1 Harr. & Johns. 236; 1 Hayw. 28; 2 Hayw. 310, 374; 1 Murphy, 58; 3 Desaus. 476; 1 Const. R. [Treadway] (S. C.) 267; Le Breton v. Morgan, 16 Martin (La.), 138; Hoke v. Henderson, 4 Dev. (N. C.) 7. When a law requires a constitutional majority of more than a mere numeral majority, the courts of justice may look beyond the law into the proceedings of the legislature, to see that the prerequisites have been complied with, and that it has passed by the constitutional majorities. The State v. McBride, 4 Mo. 303. But this last point was left in doubt, in B. & N. F. Railroad v. City of Buffalo, 5 Hill (N. Y.), 209. [So they may to determine the date of an act. Thus, extrinsic evidence of the year in which an act was signed, "Approved, December 24, Abraham Lincoln," was held admissible. Gardner v. The Collector, 6 Wall. 499, citing Purdy v. The People, 4 Hill, 384; De Bow v. The People, 1 Denio, 9, and other cases.]

(b) 17 Johns. 195.

Court held that certain statutes affecting the right of Z. Platt and his assigns to the exclusive enjoyment of the river Saranac were in violation of vested rights under his patent, and so far the court held them to be unconstitutional, inoperative, and void. The control which the judicial power of the state had, until the year 1823, over the passing of laws, by the institution of the council of revision, anticipated, in a great degree, the necessity of this exercise of duty. A law containing unconstitutional provisions was not likely to escape the notice and objection of the council of revision; and the records of that body will show that many a bill which had heedlessly passed the two houses of the legislature was objected to and defeated, on constitutional grounds. The records to which I refer are replete with the assertion of salutary and sound principles of public law and constitutional policy, and they will for ever remain a monument of the wisdom, firmness, and integrity of the council. (c)

3. When a statute takes effect. — A statute, when duly made, takes effect from its date, when no time is fixed, and this is now the settled rule. It was so declared by the Supreme Court of the United States in Matthews v. Zane, (d) and it was likewise so adjudged in {455} the Circuit Court in Massachusetts, in the case of The Brig Ann. (a) I apprehend that the same rule prevails in the courts of the several states, and that it cannot be admitted that a statute shall, by any fiction or relation, have any effect before it was actually passed. A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in every other case relating to contracts or property, it would be

(c) An act of Congress having given to the Secretary of the Treasury the right of appeal from the collector of the customs, on his decision relative to unascertained duties, or duties paid under a protest, it was held that the aggrieved merchant was confined to that remedy, and could not sustain a suit at law against the collector. Cary v. Curtis, 3 How. 236; [Curtis v. Fiedler, 2 Black, 461.] The strong objection to the decision is, that it takes the final construction of statute law from the established courts, and places it in an executive officer, holding at the pleasure of the President. It is the common-law right of the citizen to appeal to the courts, on the authority of laws, and to seek there redress from wrong and oppression. The decision of the same court, in Bend v. Hoyt, 13 Peters, 263, recognized principles that seem to he at variance with the above decision.

(d) 7 Wheaton, 164.

(a) 1 Gall. 62; [1 Fed. Cas. 927.] The same rule is declared in New Jersey by statute. Elmer's Digest, 534.

against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect; and which doctrine was very much discussed in the case of Dash v. Van Kleeck, (b) and shown to be founded not only in English law, but on the principles of general jurisprudence. (c) A retrospective statute, affecting and changing vested rights, is very generally considered, in this country, as founded on unconstitutional principles, and consequently inoperative and void. (d)1 But this doctrine is not understood to apply to re-

(b) 7 Johns. 477.

(c) Nemo potest mutare consilium suum in alterius injuriam, Dig. 50. 17. 75; Taylor's Elements of the Civil Law, 168; Code, 1. 14. 7; Bracton, 1, 4, fo. 228; Code Napoleon, art. 2.

(d) Tennessee Bill of Rights, art. 20; New Hampshire Bill of Rights, art. 23; Osborne v. Huger, 1 Bay, 179; Ogden v. Blackledge, 2 Cranch, 272; Bedford v. Shilling, 4 Serg. & Rawle, 401; Duucan, J., in Eakin v. Raub, 12 id. 363-372; Society v. Wheeler, 2 Gall. 105; Washington, J., in Society for Propagating the Gospel v. New Haven, 8 Wheaton, 493; Merrill v. Sherburne, 1 N. H. 199; Ward v. Barnard, 1 Aikens, 121; Brunswick v. Litchfleld, 2 Greenl. 28; Proprietors of Ken. Pur. v. Laboree, ib. 275; Story, J., in Wilkinson v. Leland, 2 Peters, 657, 658; Lewis v. Brackenridge, 1 Black. (Ind.) 220; Jones v. Wootten, 1 Har. (Del.) 77; Forsyth v. Marbury, R. M. Charlton, 333; Boyce v. Holmes, 2 Ala. 54; Williamson v. Field, 2 Sandf. Ch. 534. [The following are examples of curative statutes held valid. Randall v. Kreiger, 23 Wall. 137; Weed v. Donovan, 114 Mass. 181. Statutes changing the remedy only have been held valid. Wellshear v. Kelley, 69 Mo. 343; Railroad Co. v. Commissioners, 35 Ohio St. 1. See Simpson v. City Savings Bank, 56 N. H. 466. The legislature cannot make a contract where there was none, N. Y., &c. R. R. Co. v. Van Horn, 57 N. Y. 473; nor validate a transaction which the courts have held void, Forster v, Forster, 129 Mass. 559 (where the cases are collected and classified); nor validate void judicial proceedings, Maxwell v. Goetschius, 40 N. J. L. 383; Lane v. Nelson, 79 Pa. St. 407. — B.]

1 Retrospective Laws. — A retrospective state law is not, as such, contrary to the Constitution of the United States. 456, n. (c); Baltimore and Susquehanna R. R. v. Nesbit, 10 How. 395; Locke v. New Orleans, 4 Wall. 172; Drehman v. Stifle, 8 Wall. 595, 603. Laws curing defects have been held valid in many cases. Thus, in case of an assessment made under an ordinance void for informality, Schenley v. Commonwealth, 36 Penn. St. 29, 57; see Miller v. Graham, 17 Ohio St. 1; Abbott v. Lindenbower, 42 Mo. 162; Conway v. Cable, 37 Ill. 82; of a deed made in good faith, but to the wrong person, Kearney v. Taylor, 15 How. 494;

of contracts partially invalid for usury, Savings Bank v. Allen, 28 Conn. 97; even, in one case, of a conveyance of a married woman's land, void as to her. Goshorn v. Purcell, 11 Ohio St. 641. See further, Thomson v. Lee County, 3 Wall. 327; Shaw v. Norfolk County R. R., 5 Gray, 162, 180. On the other hand, in Hasbrouck v. Milwaukee, 13 Wis. 37, it was held, and it would seem on sound reason, that a contract of a municipal corporation, void as ultra vires, could not be ratified by the legislature so as to impose a burden on the corporation without its assent.

The constitutions of some states ex-

medial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects, and adding to the means of {456} enforcing existing obligations. (a) Such stat-

(a) Duncan, J., in Underwood v. Lilly, 10 Serg. & Rawle, 101; Tate v. Stooltzfoos, 16 id. 35; Bleakuey v. F. & M. Bank, 17 id. 64; Hepburn v. Curts, 7 Watts, 300; Foster v. Essex Bank, 16 Mass. 245; Locke v. Dane, 9 id. 360; Oriental Bank v. Freese, 18 Me. 109; Townsend v. Townsend, Peck (Tenn.), 16, 17; ib. 266; State v. Bermudez, 22 La. 355. In Patin v. Prejean, 7 La. 301, it was admitted that rights acquired under a contract could not be affected or modified by a subsequent statute; but then it was said that the means of enforcing or insuring the enjoyment of such rights might be extended or restricted by the legislature, as circumstances may require. This is a loose and dangerous admission. The language of the Supreme Court of New York, in Butler v. Palmer, 1 Hill, 325, is equally so; and it seems to be there conceded, that the legislature has unlimited power to interfere with vested rights, unless they be saved by some restriction to be found in the federal or state constitution ! ! Ch. J. Marshall, in Sturges v. Crowninshield, 4 Wheaton, 200, 207, spoke on this subject in a general and latitudinary manner, which was rather hazardous. He says, that the distinction between the obligation of a contract and the remedy given to enforce that obligation exists in the nature of things, and that without impairing the obligation of the contract, the remedy may be modified as the wisdom of the nation shall direct. Imprisonment of the debtor is no part of the contract, and he may be released from imprisonment by the legislature, without impairing the obligation. So statutes of limitation relate to the remedies. It, however, seems to me, that to lessen or take away from the extent and efficacy of the remedy to enforce the contract, legally existing when the contract was made, impairs its value and obligation. The Supreme Court of the United States, in Mason v. Haile, 12 Wheaton, 378, adopted and established the above dictum of Ch. J. Marshall, but not without a frank and just objection

pressly prohibit retrospective laws. See Rich v. Flanders, 39 N. H. 304; Goshorn v. Purcell, 11 Ohio St. 641; De Cordova v. Galveston, 4 Texas, 470. And it is always laid down as a rule of construction that, to avoid injustice or unconstitutionality, a statute is to be taken as prospective only, unless its language is inconsistent with that interpretation. [9 Q. B. D. 672; ] McEwen v. Den, 24 How. 242; Quackenbnsh v. Danks, 1 Denio, 128; S. C. 3 Denio, 594; 1 Comst. 129; Atkinson v. Dunlap, 50 Maine, 111; Harvey v. Tyler, 2 Wall. 328, 347; Plumb v. Sawyer, 21 Conn. 351: Taylor v. Keeler, 30 Conn. 324, 325; Torrey v. Corliss, 33 Maine, 333: Hopkins v. Jones, 22 Ind. 310; Seamans v. Carter, 15 Wis. 548; Boston & Maine

R. R. v. Cilley, 44 N. H. 578; Hannum v. Bank of Tennessee, 1 Coldw. 398; Broom's Legal Maxims, Nova constitutio futuris formam imponere debet non præteritis. But see Pardo v. Bingham, L. R. 4 Ch. 735.

Further restrictions are sometimes imposed by the state constitutions forbidding the legislature to exercise judicial functions. On this ground it has been held, for instance, that the legislature cannot confirm and declare valid proceedings in invitum in insolvency held before a person having no jurisdiction, which the supreme court of the state had adjudged to be void. Denny v. Mattoon, 2 Allen, 361. See also Richards v. Rote, 68 Penn. St. 48.

utes have been held valid when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights, as a statute to confirm former marriages defectively celebrated, or a sale of lands defectively made or acknowledged. The legal rights affected in those cases by the statutes were deemed to have been vested subject to the equity existing against them, and which the statutes recognized and enforced. (b) But the cases cannot be extended beyond the circumstances on which they repose, without putting in jeopardy the energy and safety of the general principles. (c)

on the part of Mr. Justice Washington. He observed, that the great and intelligible principle upon which the cases of Sturges v. Crowninshield and Ogden v. Saunders were decided, was, that a retrospective state law, so far as it operated to discharge or vary the terms of an existing contract, impaired its obligation, and that a prospective law in its operation had not that effect; and that in the last case cited this principle was subverted, and the distinction between retrospective and prospective laws, in their application to contracts, disregarded, and that to abolish imprisonment for debt, and apply it to existing contracts, impaired their obligation. In the subsequent case of Jackson v. Lamphire, 3 Peters, 280, it was observed that state legislatures had the undoubted right to pass recording acts, by which the elder grantee should be postponed to a younger, if the prior deed was not recorded within a limited time. They have the like power to pass limitation laws affecting the time of the remedy on existing contracts. [Curtis v. Whitney, 13 Wall. 68; ante, 419, n. 1.]

(b) Goshen v. Stonington, 4 Conn. 209; Wilkinson v. Leland, 2 Peters, 627; Langdon v. Strong, 2 Vermont, 234; Watson v. Mercer, 8 Peters, 88; 3 Story's Comm. on the Constitution, 267.

(c) Retrospective laws, as used in the constitutions of Tennessee, North Carolina, and Maryland, mean laws impairing the obligation of contracts. Peck (Tenn.), 17. The Supreme Court of the United States, in Satterlee v. Matthewson, 2 Peters, 413, and in Watson v. Mercer, 8 id. 110, declared that the Constitution of the United States did not prohibit the states from passing retrospective laws, devesting antecedent vested rights of property, provided such laws did not impair the obligation of contracts, or partake of the character of ex post facto laws. The same doctrine was declared by the Chief Justice of the United States, in Charles River Bridge v. Warren Bridge, 11 Peters, 539, 540. But though the Constitution of the United States does not reach such state laws, they remain, nevertheless, to be in most cases strongly condemned, as being contrary to right and justice.

It seems to be settled, as the sense of the courts of justice in this country, that the legislature cannot pass any declaratory law, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. It is only evidence of the sense of the legislature as to the pre-existing law. (See the case of the acts alluded to, post, ii. 23, 24.) The powers of government in this country are distributed in departments, and each department is confined within its constitutional limits. The power that makes is not the power to construe the law. That latter trust belongs to the judicial department exclusively. Kent, Ch. J., in Jackson v. Phelps, 3 Caines, 69; Ogden v. Blackledge, 2 Cranch, 272; Jones v. Wootten, 1 Harr. (Del.) 77; Field v. The People, 2 Scam. (Ill.) 79; Cotton v. Brien, 6 Rob. (La.) 115. When

The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received the royal sanction, or even before it had been introduced into Parliament. (d) This was an extraordinary instance of the doctrine of relation, working gross injustice and absurdity; and yet we find the rule declared and uniformly adhered to, from the time of Henry VI. (e) All the judges agreed, in the case of Partridge v. Strange, in the 6th Edward VI.,(f) hat the statute was to be accounted in law a perfect act from the first day of the session; and all persons {457} were to be punished for an offence done against it after the first day of the session, unless a certain time was appointed when the act should take effect. In the case of The King v. Thurston, (a) this doctrine of carrying a statute back by relation to the first day of the session was admitted in the K. B.; though the consequence of it was to render an act murder which would not have been so without such relation. The case of The Attorney-General v. Panter (b) is another strong instance of the application of this rigorous and unjust rule of the common law, even at so late and enlightened a period of the law as the year 1772. An act for laying a duty on the exportation of rice thereafter to be exported, received the royal assent on the 29th of June, 1767, and on the 10th of June of that year the defendants had exported rice. After the act passed, a duty of one hundred and fifteen pounds was demanded upon the prior exportation, and it was adjudged, in the Irish Court of Exchequer, to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injustice of punishing the party for an act innocent and lawful when it is done; but the decree was affirmed, upon the opinion of the twelve judges, that the statute,

Lord Bacon composed his admirable aphorisms, De Fontibus Juris, he assumed the proposition that declaratory statutes communicated an interpretation that was as efficacious as if it had been contemporary with the passage of the statute. But in his age, the partition of power among departments was not accurately understood, or precisely defined, or constitutionally limited; and he held, notwithstanding, that they ought not to be passed, except in cases in which a retrospective operation to a statute would be just, — leges declaratorias ne ordinato nisi in casibus ubi leges cum justicia retrospicere possint. Bacon's Works, vii. 450, Aphorism 51.

(d) 4 Inst. 25. (e) 33 Hen. VI. 18; Bro. Exposition del Terms, 33.

(f) 1 Plow. 79. (a) 1 Lev. 91. (b) 6 Bro. P. C. 553.

by legal relation, commenced from the first day of the session. The K. B., also, in Latless v. Holmes, (c) considered the rule to be too well settled to be shaken, and that the court could not take notice of the great hardship of the case. The voice of reason at last prevailed; and by the statute of 33 Geo. III. c. 13, it was declared that statutes are to have effect only from the time they receive the royal assent; and the former rule was abolished, to use the words of the statute, by reason of "its great and manifest injustice."

There is a good deal of hardship in the rule as it now stands, both here and in England; for a statute is to operate from the very day it passes, if the law itself does not {458} establish the time. It is impossible in any state, and particularly in such a wide-spread dominion as that of the United States, to have notice of the existence of the law, until some time after it has passed. It would be no more than reasonable and just, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, however, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time. Thus, in the case of The Brig Ann, (a) the vessel was libelled and condemned for sailing from Newburyport, in Massachusetts, on the 12th of January, 1808, contrary to the act of Congress of the 9th of January, 1808, though it was admitted the act was not known in Newburyport on the day the brig sailed. The court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity; and that unless such time be allowed as would enable the party, with reasonable diligence, to ascertain the existence of the law, an innocent man might be punished in his person and property for an act which was innocent, for aught he knew, or could by possibility have known, when he did it. (b)

(c) 4 T. R. 660. [See Tomlinson v. Bullock, 4 Q. B. D. 230. A proclamation by the President was held to go into effect when signed and sealed, in Lapeyre v. United States, 17 Wall. 191. See also United States v. Norton, 97 U. S. 164. — B.]

(a) 1 Gall. 62.

(b) Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th January, 1808, before notice of the act had arrived. 1 Paine, 23.

The Code Napoleon (c) adopted the true rule on this subject. It declared that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire {459} after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes (a) have also declared the very equitable rule that every law, unless a different time be prescribed therein, takes effect throughout the state on, and not before, the 20th day after the day of its final

passage. (b)

If the statute be constitutional in its character, and has duly gone into operation, the next inquiry is respecting its meaning; and this leads us to a consideration of the established rules of construction, by which its sense and operation are to

be understood.

4. Acts, Public and Private. — There is a material distinction between public and private statutes, and the books abound with cases explaining this distinction in its application to particular statutes. It is sometimes difficult to draw the line between a public and private act, for statutes frequently relate to matters and things that are partly public and partly private. The most comprehensive, if not the most precise, definition in the English books is, that public acts relate to the kingdom at large, and private acts concern the particular interest or benefit of certain individuals or of particular classes of men. (c) Generally speaking, statutes are public; and a private statute may rather be considered an exception to a general rule. It operates upon a particular thing or private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This is a safe and

(c) Art. 1. (a) Vol. I. 157, sec. 12.

(b) By the Revised Statutes of Massachusetts, in 1836, it is the thirtieth day after, and by the constitution of Mississippi, as declared in 1833, it is sixty days thereafter. [See Bishop on Written Laws for similar provisions in other states.]

(c) Dwarris on Statutes [2d ed. 464]; Gilbert on Ev. 39. [See Holland on the Form of the Law, London, Butterworths, 1870, passim, esp. p. 163.]

just rule of construction; and it was adopted by the English courts in very early times, and does great credit to their liberality and spirit of justice. (d) It is supported by the opinion of Sir Matthew Hale, in Lucy v. Levington, (e) where he lays down the rule to be, that though every man be so far a party to a private act of Parliament as not to gainsay it, yet he is not so far a party as to give up his interest. To take the {460} case stated by Sir Matthew Hale, suppose a statute recites that whereas there was a controversy concerning land between A and B, and enacts that A shall enjoy it, this would not bind the interest of third persons in that land, because they are not strictly parties to the act, but strangers, and it would be manifest injustice that the statute should affect them. This rule, as to the limitation of the operation of private statutes, was adopted by the Supreme Court of New York, and afterwards by the Court of Errors, in Jackson v. Catlin. (a)1 It is likewise a general rule, in the interpretation of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by necessary implication. (b)

(d) 37 Hen. VI. 15; Bro. Parliament, pl, 27; Boswell's Case, 25 & 26 Eliz., cited in Barrington's Case, 8 Co. 138, a. [Local and Special Laws. — As to when courts will take notice of, see Aiton v. Stephen, 1 App. Cas. 456; Perry v. New Orleans, &c. R. R. Co., 55 Ala. 413. Local and special legislation is forbidden by constitutional provision in many states. Van Riper v. Parsons, 40 N. 3. L. 1; People v. Harper, 91 Ill. 357; cases infra. For further discussion as to what constitutes special legislation, see Van Riper v. Parsons, 40 N. J. L. 123; Sutterly v. Camden Common Pleas, 41 N. J. L. 495; Wheeler v. Philadelphia, 77 Pa. St. 338; Kerrigan v. Force, 68 N. Y. 381. In Gardner v. Newark, 40 N. J. L. 297, it is said that the tendency has been to enlarge the class of public acts, and to make it apply to all acts which in any way affect the public at large. So, Village of Winooski v. Gokey, 49 Vt. 282. — B.]

(e) 1 Vent. 175. (a) 2 Johns. 263; 8 Johns. 520, S. C.

(b) 1 Blackst. Comm. 261; Comyns's Dig. tit. Parliament, R. 8; The King v. Allen, 15 East, 333; The King v. Inhabitants of Cumberland, 6 T. R. 194; Story, J., 2 Mason, 314; Commonwealth v. Baldwin, 1 Watts, 54; The People v. Rossiter, 4 Cowen, 143; United States v. Hewes, U. S. D. C. for Pennsylvania, February, 1840,

1 McKinnon v. Bliss, 21 N. Y. 206; Earl of Shrewsbury v. Scott, 6 C. B. N. S. 1, 157. But if a private act in positive and express terms proposes to affect and does affect the rights of parties not before the legislature, a court of law is bound to give effect to the provision. 6 C. B. N. S. 157-160; Edinburgh Railway Co. v. Wau-

chope, 8 Cl. & Fin. 710, 724. It is noticeable that in ultra vires cases the English courts are sometimes careful to state that the act of incorporation in question is a public act, of which all are bound to take notice. East Anglian Ry. Co. v. Eastern Counties Ry. Co., 11 C. B. 775, 811.

There is another material distinction in respect to public and private statutes. The courts of justice are bound, ex officio, to take notice of public acts without their being pleaded, for they are part of the general law of the land, which all persons, and particularly the judges, are presumed to know. Public acts cannot be put in issue by plea. Nul tiel record cannot be pleaded to a public statute; the judges are to determine the existence of them

[Crabbe, 307.] In cases of grants by the king, in virtue of his prerogative, the old rule was said to be, that nothing passed without clear and determinate words, and the grant was construed most strongly against the grantee, though the rule was otherwise as to private grants. Stanhope's Case, Hob. 243; Turner & Atkyns B., Hard. 309; Bro. Abr. Patent, pl. 62; 2 Blackst. Comm. 347. But the rule was and is to be taken with much qualification, and applied to doubtful cases, where a choice is fairly open without any violation of the apparent objects of the grant. This was the doctrine in Sir John Molyn's Case (6 Co. 5), where it was held that the king's grant should be taken beneficially for the honor of the king and the relief of the subject; and Lord Coke observed in that case on the gravity or wisdom of the ancient sages of the law, who construed the king's grants beneficially, so as not to make any strict or literal construction in subversion of such grants. He also observed, in his commentary on the statute of quo warranto (18 Ed. I., 2 Inst. 496, 497), that the king's patents, not only of liberties, but of lands, tenements, and other things, should have no strict or narrow interpretation for the overthrowing of them; but a liberal and favorable construction for the making of them available in law, usque ad plenitudinem, for the honor of the king. And it was always conceded in the cases, that if the grant was declared to be made ex certa scientia et mere motu, they were to be construed beneficially for the grantee, according to the intent expressed in the grant, and according to the common understanding and proper signification of the words. Alton Wood's Case, 1 Co. 40, b. In the case of Sutton's Hospital (10 Co. 27), the doctrine was, that a grant for a charitable purpose is taken most favorably for the object, and that the usual incidents to a corporation are held to be tacitly annexed to the charter.

And if the royal grant was not in a case of mere bounty or donation, but one founded upon a valuable consideration, the stern rule never applies, and the grant is expounded as a private grant, favorable for the grantee, or rather according to its fair meaning, for the grant is a contract. See a clear and full view of the ancient law on the construction of royal grants, by Mr. Justice Story, in his opinion in Charles River Bridge v. Warren Bridge, 11 Peters, 589-598. See also infra, ii. 556.

In addition to the restrictions which the common law has imposed upon the operation of private statutes, they are usually laid under special checks by legislative rules, or by law, as to the notice requisite before a private bill can be introduced. See the notice requisite on the application to the legislature of New York for private purposes. N. Y. R. S. 3d ed. i. p. 181. The constitution of New York (art. 7, sec. 9) requires the assent of two thirds of the members elected to each house, to every bill appropriating public moneys or property for private purposes. So the legislature of North Carolina is prohibited by their constitution, as amended in 1835, from passing any private law, without thirty days' previous notice of application for the law. The caution, checks, and course of proceedings, in the English Parliament, on passing private bills, are detailed at large, and with great precision and accuracy, in May's Treatise upon the Law and Proceedings of Parliament, 383-460.

from their own knowledge. (c) But they are not bound to take notice of private acts, unless they be specially pleaded, and shown in proof, by the party claiming the effect of them. In England the existence even of a private statute cannot be put in issue to be tried by a jury on the plea of nul tiel record, though this may be done in New York under the Revised Statutes. (d)

5. Rules for the Interpretation of Statutes. — The title of the act and the preamble to the act are, strictly speaking, no parts of it. (e) They may serve to show the general scope and purport of the act, and the inducements which led to its enactment. They may, at times, aid in the construction of it;(f) but generally they are loosely and carelessly inserted, and are not safe expositors of the law. The title frequently alludes to the subject-matter of the act only in general or sweeping terms, or it alludes only to a part of the multifarious matter of which the statute is composed. The constitution of New Jersey, in 1844, has added a new and salutary check to multitudinous matter, by declaring (g) that every law shall embrace but one object, and that shall be expressed in the title. (x) So also in New York, by the revised constitution of 1846, art. 3, sec. 16, no private or local bill shall embrace more than one subject, and that shall be expressed in the title.2 The title, as it was observed in United States v.

(c) The Prince's Case, 8 Co. 28, a.

(d) Dwarris on Statutes, 520; Trotter v. Mills, 6 Wend. 612.

(e) The King v. Williams, 1 W. Bl. 95; Mills v. Wilkins, 6 Mod. 62.

(f) Sutton's Hospital, 10 Co. 23, 24, b; Boulton v. Bull, 2 H. Bl. 463, 500.

(g) Art. 4, sec. 7.

2 The constitutions of many other states contain a similar provision, which,

although treated as only directory in California and Ohio, Washington v. Murray,

(x) The statutes are now often required by the State Constitution to embrace but one subject which is to be clearly expressed in the title, the object being to prevent surreptitious legislation. Van Home v. State (Neb.), 64 N.W. Rep. 365. Under this provision an Act is not invalid when its principal object only is there expressed, and other incidental objects germane thereto and included therein are not so expressed. State v. Mines, 38 W. Va. 125; State v. Brookover, id. 141; Gaines v. Williams, 146 Ill. 450; People

v. Taylor, 96 Mich. 576; State v. Kolsem, 130 Ind. 434. So penalties imposed by a statute, but not mentioned in its title, are not obnoxious to this provision. State v. Koshland, 25 Oregon, 178. If a statute has one title and two subject-matters, it is invalid only as to the one not expressed in the title. Ex parte Cowert, 92 Ala. 94. A title or preamble explains the Act only when the letter is of doubtful meaning. Tripp v. Goff, 15 R. I. 299; Wilson v. Spaulding, 19 Fed. Rep. 304.

Fisher, (h) when taken in connection with other parts, may {461} assist in removing ambiguities where the intent is not plain; for when the mind labors to discover the intention of the legislature, it seizes everything, even the title, from which aid can be derived. So the preamble may be resorted to in order to ascertain the inducements to the making of the statute; but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble. Notwithstanding that Lord Coke (a) considers the preamble as a key to open the understanding of the statute, Mr. Barrington, in his Observations on the Statutes, (b) has shown, by many instances, that a statute frequently recites that which is not the real occasion of the law, or states that doubts existed as to the law, when in fact none had existed. The true rule is, as was declared by Mr. J. Buller and Mr. J. Grose, in Crespigny v. Wittenoom, (c) that the preamble may be resorted to in restraint of the generality

(h) 2 Cranch, 386. (a) Co. Litt. 79, a. (b) P. 300. (c) 4 T. R. 793.

4 Cal. 388; Pim v. Nicholson, 6 Ohio, N. S. 176; Ohio v. Covington, 29 Ohio St. 102, is said to have been generally considered as mandatory. Cooley, Const. Lim. c. 4, p. 82; c. 6, p. 150; post, 465, n. 1. And it is accordingly laid down that when the title embraces more than one object the whole act will be void, ib. 148; and when the act contained matters not connected with the object named in the title, it has been held to be void as to them, Ryerson v. Utley, 16 Mich. 269; Mewherter v. Price, 11 Ind. 199; Savannah v. Georgia, 4 Ga. 26. [The whole act was held void in State v. McCann, 4 Lea, 1, because more was embraced in the act than was referred to in the title. But the better view would seem to be that if the part sufficiently referred to can be sepalated, it should be held valid. Van Riper v. North Plainfield, 43 N. J. L. 349; In the matter of Met. Gas Light Co., 85 N. Y. 526; Jones v. Thompson's Exr., 12 Bush, 394. See generally, Montclair v. Ramsdell, 107 U. S. 147; Unity v. Burrage, 103 U. S. 447; San Antonio v. Mehaffey,

96 U. S. 312; Albrecht v. State, 8 Tex. App. 216; Dorsey's App., 72 Penn. St. 192; Rader v. Township of Union, 39 N. J. L. 509. In construing a statute, the title may be resorted to at least to remove ambiguities in the act. Coomber v. Justices of Berks, 9 Q. B. D. 17, 32, 33; In the matter, &c. Village of Middletown, 82 N. Y. 196; In the matter of Boston, &c. Co., 51 Cal. 624. — B.]

The title of an act of Congress has been said to be of especially little weight, owing to the notorious custom of inserting provisions which have nothing to do with the subject-matter of the act as it appears in the title. Hadden v. The Collector, 5 Wall. 107. But the reasoning of The Eagle, 8 Wall. 15, 24, looks the other way. [Hadden v. The Collector is approved in United States v. Union Pac. R. R. Co., 91 U. S. 72, 82.] See Little v. Watson, 32 Maine, 214; Commonwealth v. Slifer, 53 Penn. St. 71; Ogden v. Strong, 2 Paine, 584; Kidder v. Stewartstown, 48 N. H. 290, 292.

of the enacting clause, when it would be inconvenient if not restrained, or it may be resorted to in explanation of the enacting clause, if it be doubtful. This is the whole extent of the influence of the title and preamble in the construction of the statute. The true meaning of the statute is generally and properly to be sought from the body of the act itself. But such is the imperfection of human language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms as to secure it from ambiguous expressions, and from all doubt and criticism upon its meaning.

It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute, taken and {462} compared together. (a) The real intention, when accurately ascertained, will always prevail over the literal sense of terms. (b) (x)

(a) Co. Litt. 381, a; Marshall, C. J., 12 Wheaton, 332; Mason v. Finch, 2 Scam. 224.

(b) Thompson, C. J., in The People v. Utica Ins. Co., 15 Johns. 380; Whitney v. Whitney, 14 Mass. 92. [It is well settled that a more literal meaning of words in a statute will yield to a less literal, where such meaning is shown by the act itself, viewed with the aid of the outside helps which are allowed to the court, to have been the legislative intent. Caledonian Ry. Co. v. North British Ry. Co., 6 App. Cas. 114, per Lord Selborne. But it would seem clear that no evidence should be allowed to show a meaning which the words themselves are incapable of bearing; i. e., to show that the legislature intended to enact something else than what they have expressed in the law. Yet the language of some of the courts of this country seems to go almost to this extent. Oates v. National Bank, 100 U. S. 239; Perry County v. Jefferson County, 94 Ill. 214. But that when the meaning of the words is clear it is conclusive, see Water Commissioners v. Brewster, 42 N. J. L. 125; Bentley v. Board of Health, 4 Ch. D. 588. Statutes should be construed, where the words permit, so as to work beneficially rather than injuriously; e. g., so as not to take away vested rights. Metropolitan Asylum Dist. v. Hill, 6 App. Cas. 193, 208; Dixon v. Caledonian, &c. Companies, 5 id. 820, 827. — B.]

(x) Every statute is to be so interpreted and applied, so far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law. Maxwell on Statutes, 122; Bloxam v. Favre, 8 P. D. 101, 107.

The state of the law when a statute was enacted may be considered in construing it, but the history of the Act is immaterial when its language is clear. Philipps v. Rees, 24 Q. B. D. 17; Reg. v. London, id. 213; Ex parte Byrne, 20 id. 314; Cooper

When the expression in a statute is special or particular, but the reason is general, the expression should be deemed general. (c)

(c) 10 Co. 101, b.

v. Adams, [1894] 2 Ch. 557; United States v. Trans. Mo. P. Co., 58 Fed. Rep. 58. So the policy of a statute is not material if such policy is open to doubt and controversy. Municipal Building Society v. Kent, 9 A. C. 273. In interpreting a codified law the earlier law and decisions can only be used to construe provisions which are doubtful, or which have already acquired a technical meaning. Bank of England v. Vagliano, [1891], A. C. 107; Robinson v. Canadian Pac. Ry., [1892] A. C. 481. But in a mere act of consolidation the original provisions have prima facie their meaning continued. Mitchell v. Simpson, 25 Q. B. D. 183; 23 id. 373.

The legislature is presumed to know the decisions existing when a law was enacted. Ex parte Kent County Council, [1891] 1 Q. B. 725. The courts, in determining the intent, cannot revert to the views expressed by members of the legislature in debate, or receive testimony from them as to what was intended, although they may consider statements made in debate as to current history, or the special meaning of words employed. United States v. Oregon & C. R. Co., 57 Fed. Rep. 426; United States v. Wilson, 58 id. 768; Stewart v. Atlanta Beef Co., 93 Ga. 12; Sackrider v. Supervisors, 79 Mich. 59; Cumberland County v. Boyd, 113 Penn. St. 52; 37 Albany L. J. 428, 449. So the supposed policy of legislature will not prevail against the plain language of a statute. Bate Refrigerating Co. v. Sulzberger, 157 U. S. 1; Tompkins v. First Nat. Bank, 18 N. Y. S. 234. In case of conflict, the enrolled copy of an act of Congress prevails over the printed volume. McLaughlin v. Menotti, 105 Cal. 572.

A statute made with one intent cannot be used in construing another statute made with a different intent. Reg, v. Income Tax Commissioners, 22 Q. B. D. 296.

But the judicial construction given to a particular form of words may be applied to different statutes. Barlow v. Teal, 15 Q. B. D. 403. Statutes should be limited in intent to things and persons within the jurisdiction of the legislature. Colquhoun v. Heddon, 25 Q. B. D. 129.

Common words have their ordinary popular meaning in a general act; but in Acts relating to a particular trade, business, or transaction, the words have the meaning given to them therein. Unwin v. Hanson, [1891] 2 Q. B. 115; Hornsey Local Board v. Monarch I. B. Society, 24 Q. B. D. 1; Barlow v. Ross, id. 381; Life Ins. Ass'n v. Tucker, 12 id. 186; Hough v. Windus, id. 224; Salmon v. Duncombe, 11 A. C. 627; Pietermaritzburg v. Natal Land Co., 13 id. 478; The Dunelm, 9 P. D. 164. A change in the words relating to the same subject-matter is prima facie intentional. Brighton Guardians v. Strand Union, [1891] 2 Q. B. 156.

In case of doubt, that construction will be adopted which will have the least collateral effect, injurious to third parties, beyond the purpose and policy of the Act: Railton v. Wood, 15 A. C. 363; or which will not impair rights without compensation: Att.-Gen. v. Horner, 14 Q. B. D. 257; London, Brighton, & S. C. Ry. v. Truman, 11 A. C. 45; or which will not enable a person to defeat the obligation of his contract by his own acts. Gowan v. Wright, 18 Q. B. D. 201. So a reading will be adopted by which one Act will not conflict with others, if it is reasonably capable of being so read, though the words are not thereby given their ordinary meaning. Reg. v. Tunbridge Overseers, 13 Q. B. D. 342. "Or" should be read as "and" only when the context makes that the necessary meaning. Halsbury, L. C., in Mersey Docks v. Henderson, 13 A. C. 595,

Scire leges, non hoc est verba earum tenere sed vim ac potestatem, and the reason and intention of the lawgiver will control the

603; United States v. Fisk, 3 Wall. 447; Dumont v. United States, 98 U. S. 143. In a penal statute "or" will not be given that interpretation when the effect is to aggravate the offence. State v. Walters, 97 N. C. 490.

A special section of a statute, which limits the general words of a prior section, governs the latter. Ex parte Johnson, [1893] 1 Q. B. 21. In general the whole Act is to be considered together. Colquhoun v. Brooks, 14 A. C. 493. Palpable injustice or absurdity will not be deduced from a literal reading when that intention is not manifested by express words. The Duke of Buccleuch, 15 P. D. 86; Ex parte Dunn, 23 Q. B. D. 461; Reg. v. Clarence, 22 id. 65; Colquhoun v. Brooks, 14 A. C. 493; Rector of Holy Trinity Church v. United States, 143 U. S. 457, reversing 36 Fed. Rep. 303. But for this purpose a strong case of injustice must appear. In re Hall, 21 Q. B. D. 137; Plumstead Board of Works 13. Spackman, 13 id. 878. New privileges or powers conferred upon a company incorporated for profit will not be extended by implication beyond what is conferred expressly or by necessary inference. Scottish Drainage Co. v. Campbell, 14 A. C. 142; Altrincham Union v. Cheshire Lines Committee, 15 Q. B. D. 597. So powers conferred upon a local authority will, in case of doubt, be construed to include such only as are necessary to carry out the objects of the statute. Wandsworth Board of Works v. United Telephone Co., 13 Q. B. D. 904. A casus omissus will be created by interpretation only in a case of strong necessity. Mersey Docks v. Henderson, 13 A. C. 595, 602.

A general expression following certain words, but applicable also to others, applies prima facie to all. Great Western By. v. Swindon & C. Ry., 9 A. C. 787. General

expressions in a statute which has a certain and definite scope will, in the absence of a contrary intent clearly indicated, be limited to its object and purpose. United States v. Crawford, 6 Mackey, 319; Electro-Magnetic M. & D. Co. v. Van Auken, 9 Col. 204. Evidence of the practice of the Legislature as to taking the oath of allegiance was admitted to explain the statutes relating to oaths upon the trial of an information against a member for voting without having taken the oath, in Att.-Gen. v. Bradlaugh, 14 Q. B. D. 667. But neither usage nor long-continued practice can be proved to explain statutes relating to tolls. Northam Bridge Co. v. The Queen, 55 L. T. 759.

As Americans are historically a religious people by their early grants, constitutions and history, an intention to act against religion will not be imputed to any of our legislatures. Rector of Holy Trinity Church v. United States, 143 U. S. 457. The long-continued, uniform practice of the executive department, having the duty to execute a statute, is entitled to great weight in its construction, especially if acquiesced in. Brown v. United States, 113 U. S. 568; United States v. Philbrick, 120 U. S. 52; Same v. Hill, id. 169; Westbrook v. Miller, 56 Mich. 244.

Statutory authority to execute certain works includes everything reasonably necessary for their execution. Harrison v. Southwalk & V. W. Co., [1891] 2 Ch. 406. Statutory powers conferred upon a corporation, which exist of common right apart from the statute, are interpreted as a prohibition against the exercise of the more extensive rights which the company might have had as an owner. Shipowners' London Ass'n v. London & I. D. J. Committee, [1892] 3 Ch. 242. When land or rights are granted by statute for the construction of certain works which necessarily require

strict letter of the law, when the latter would lead to palpable injustice, contradiction, and absurdity. This was the doctrine of Modestinus, Scævola, Paulus, and Ulpianus, the most illustrious commentators on the Roman law. (d) 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 objects and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. (e) These rules, by which the sages of the law, according to Plowden,(f) have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the approbation of ages.

The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import; (g) and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context, or other parts of the instrument, that the words were intended to be applied differently from their ordinary or their legal acceptation. (h) The current of authority at the present day, said Mr. Justice Bronson, (i) is in favor of reading statutes according to

(d) Dig. 1. 3. 17; ib. lib. 27. 1. 13. 2. Maledicta interpretatio quæ corrodit viscera texti. Lord Coke.

(e) 10 Co. 57, b; 3 Co. 7; Plowd. 10, 57, 350, 363; Eyre, C. J., in Boulton v. Bull, 2 H. Bl. 490; Marshall, C. J., 9 Wheaton, 189.

(f) Plowd. 205.

(g) Story, J., 1 Wheaton, 326; Lord Tenterden, 3 B. & Ald. 522.

(h) Certainty to a certain intent in general is ordinarily sufficient in the construction of statutes. The words are to be taken in the sense, say the judges in Vermont, that would convey the meaning required, to all men of ordinary discernment alike, and that may be called certain without recurring to possible facts which do not appear. Fairlee v. Corinth, 9 Vermont, 269.

(i) 20 Wendell, 561. In Mallan v. May, 13 Mees. & W. 511, the ordinary rule of construction was declared to be, that words were to be construed according to their strict and primary acceptation, unless from the context of the instrument, and the intention of the parties, to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect.

support, the right to necessary support is implied, if the context does not lead to a contrary construction. London & N. W. Ry. v. Evans, [1893] 1 Ch. 16. If a special tribunal created to assess damages

is no longer available, the compensation may be determined and enforced by suit. Bentley v. Manchester, &c. Ry., [1891] 3 Ch. 222.

the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. A saving clause in a statute is to be rejected, when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act inconsistent and destructive of itself. (j) Lord Coke, in Alton Wood's Case,(k) gives a particular illustration of this rule, by a case which would be false doctrine with us, but which serves to show the force of the rule. Thus, if the manor of Dale be by express words given by statute to the king, saving the right of all persons interested therein, or if the statute vests the lands of A in the king, saving the rights of A, the interest of the owner is not {463} saved, inasmuch as the saving clause is repugnant to the grant; and if it were allowed to operate, it would render the grant void and nugatory. But there is a distinction in some of the books between a saving clause and a proviso in the statute, though the reason of the distinction is not very apparent. It was held by all the barons of the Exchequer, in the case of The Attorney-General v. The Governor, and Company of Chelsea Waterworks (a) that where the proviso of an act of Parliament was directly repugnant to the purview of it, the proviso should stand, and be held a repeal of the purview, because it speaks the last intention of the lawgiver. It was compared to a will, in which the latter part, if inconsistent with the former, supersedes and revokes it. But it may be remarked upon this case of Fitsgibbon, that a proviso repugnant to the purview of the statute renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one, and not by the other, or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be equally rejected. (b)

(j) Plowd. 565; 8 Taunt. 13-18. (k) 1 Co. 47, a. (a) Fitzg. 195; 4 Geo. II.; [Townsend v. Brown, 4 Zabr. 80.] (b) In Savings Institution v. Makin, 23 Maine, 360, it was held, in the case which led to a great and able discussion, that a saying clause in a statute, in the form of a proviso, restricting in certain cases the operation of the general language of the enacting clause, was not void, though the proviso he repugnant to the general language of the enacting clause. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting 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 repugnancy.

There is also a technical distinction between a proviso and an exception in a statute. If there be an exception in the enacting clause of a statute, it must be negatived in pleading; but if there be a separate proviso, that need not, and the defendant must show it by way of defence. (c)

Several acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system.1 This rule was declared in the cases of Rex v. Loxdale, and The Earl of Ailesbury v. Pattison; (d) and the rule applies, though some of the statutes may have expired, or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred {464} that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. Upon the same principle, whenever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied. Quando lex aliquid concedit, concedere videtur et id, per quod devenitur ad illud.

Statutes are likewise to be construed in reference to the principles of the common law;2 for it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age; and when we consider the constant vehement, and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we

(c) Spieres v. Parker, 1 T. R. 141; Abbott, J., 1 B. & Ald. 99; Thibault v. Gibson, 12 Mees. & W. 88; ib. 740. The office of a proviso is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent. Story, J., Minis v. United States, 15 Peters, 445; Boon v. Juliet, 1 Scam. 258.

(d) 1 Burr. 445; Doug. 27. See also Vernon's Case, 4 Co. 4; 4 T. R. 447, 450; 5 id. 417; Dwarris on Statutes, 569; Thompson, C. J., 15 Johns. 380, S. P.

1 Huber v. Reily, 53 Penn. St. 112. This is especially so in the case of the revenue laws. United States v. Collier, 3 Blatchf. 325.

2 The rule for the construction of acts

of Congress is the same, although there is no common law of the United States. Rice v. Railroad Co., 1 Black, 358, 374. See McCool v. Smith, ib. 459.

cannot be surprised at the great sanction given to this rule of construction. It was observed by the judges, in the case of Stowell v. Zouche, (a) that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the Exchequer, in Heydon's Case, (b) was to this effect. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act; what was the mischief against which the common law did not provide; what remedy the Parliament had provided to cure the defect; and the true reason of the remedy. It was held to be the duty of the judges to make such a construction as should repress the mischief and advance the remedy. (c)

In the construction of statutes, the sense which the contemporary members of the profession had put upon them is

deemed of some importance, according to the maxim that {465} contemporanea expositio estfortissima, in lege. (a) Statutes

that are remedial, and not penal, are to receive an equitable interpretation, by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. They are construed liberally, and ultra but not contra the strict letter. (b) This may be illustrated in the case of the registry acts, for giving priority to deeds and mortgages, according to the dates of the registry. If a person claiming under a registered deed or mortgage had notice of the unregistered prior deed when he took his deed, and procured the registry of it in order to defeat the prior deed, he shall not prevail with his prior registry, because that would be to counteract the intent and policy of the statutes, which were made to prevent and not to

(a) Plowd. 365. (b) 3 Co. 7.

(c) This is especially the case as to statutes which relate to matters of public utility, as to establishments of piety, charity, education, and public improvements. Magdalen College Case, 11 Co. 71, b.

(a) Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus et norma loquendi are governed by usage. The meaning of things spoken or written must be, as it hath been constantly received to be, taken from common acceptation. Ch. J. Vaughan, in Sheppard v. Gosnold, Vaugh. 169. A contemporary exposition, even of the Constitution of the United States, practised and acquiesced in for a period of years, fixes the construction. Stuart v Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheaton, 304; Cohens v. Virginia, 6 Wheaton, 264.

(b) Dwarris on Statutes, 615 et seq.

uphold frauds. Statutes are sometimes merely directory, and, in that case, a breach of the direction works no forfeiture or invalidity of the thing done; but it is otherwise if the statute be imperative. (c)1

6. Effect of Temporary Statutes. — If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires or is repealed. Though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose. (d) If

(c) To interpret a statute strictly, is to adhere precisely to the words or letter of the law, which include, of course, fewer particulars than a freer construction. To interpret it liberally, largely, or comprehensively, is to carry the meaning of the lawgiver into more complete effect than a confined interpretation would allow. It may be termed the rational interpretation. Rutherforth's Inst. b. 2, c. 7, secs. 3-11. The general rule, even in the construction of a constitution, is, that where it gives a general power, or enjoins a duty, it gives by implication every particular power necessary for the exercise of the one, or the performance of the other. But if the means for the exercise of the power be also granted, no other or different means or powers can be implied. Field v. The People, 2 Scam. 79; [ante, 254, n. 1.]

(d) Miller's Case, 1 Wm. Bl. 451; Marshall, C. J., in Yeaton v. United States, 5 Cranch, 281; The Irresistible, 7 Wheaton, 551; The United States v. Passmore, 4 Dallas, 372; United States v. Preston, 3 Peters, 57; The State v. Cole, 2 McCord, 1; Anon., 1 Wash. 84; The State v. The Tombecbee Bank, 1 Stewart (Ala.), 347; Pope v. Lewis, 4 Ala. 487; Commonwealth v. Marshall, 11 Pick. 350; Allan v. Furrow, 2 Bayley (S. C.) 584. The same as to judicial proceedings begun under an act, and not finished when it is repealed. They cannot be pursued. 1 Wm. Bl.

1 People v. Cook, 14 Barb. 259, 290; S.C. 4 Seld. 67; Wheeler v. Chicago, 24 Ill. 105; State v. Lean, 9 Wis. 279, 292. But it is said that it is difficult to treat any constitutional provision as merely directory and not imperative. People v. Lawrence, 36 Barb. 177, 186; Cooley, Const. Limit, c. 4, p. 74 et seq. Cases of legislative construction of a state constitution are Mayor of Baltimore v. State, 15 Md. 376; Moers v. Reading, 21 Penn. St. 188; State v. Mayhew, 2 Gill, 487; Johnson v. Joliet & Chicago R. R., 23 Ill. 202, 207. But see Sadler v. Langham, 34 Ala. 311. The contemporaneous construction of a statute by public officers, including the Attorney-General, who are required to aid in carrying it out, is im-

portant, and perhaps decisive when the error is not plain. Union Ins. Co. v. Hoge, 21 How. 35, 66. See United States v. The Recorder, 1 Blatchf. 218; United States v. Gilmore, 8 Wall. 330; United States v. Lytle, 5 McLean, 9. So, a construction which has been adopted by the inferior courts. Plummer v. Plummer, 37 Miss. 185. And it has become a principle of general adoption that when a statute of one state has received a construction there, and is afterwards adopted by another, the construction is part of the law. Commonwealth v. Hartnett, 3 Gray, 450; Adams v. Field, 21 Vt. 266; Whitcomb v. Rood, 20 Vt. 49; Myrick v. Hasey, 27 Me. 9; Hess 1). Pegg, 7 Nev. 23.

a statute be repealed, and afterwards the repealing act be {466} repealed, this revives the original act;(a)l and if a statute

be temporary, and limited to a given number of years, and expires by its own limitation, a statute which had been repealed and supplied by it is ipso facto revived. (b) If, before the expiration of the time, a temporary statute be continued by another act, it was formerly a question under which statute acts and proceedings were to be considered as done. In the case of the College of Physicians, (c) it was declared, that if a statute be limited to seven years, and afterwards by another statute be made perpetual, proceedings ought to be referred to the last statute, as being the one in force. But this decision was erroneous, and

451; 4 Yeates, 392; Wharton's Dig. [tit. Statutes, A.] n. 6; Butler v. Palmer, 1 Hill (N. Y.), 324. The proceeding must have been executed, and not executory, to save it from being lost by the repeal. But it seems that a seaman in the navy, put under arrest before his term of service expired, may be retained for trial by a court-martial after his term has expired. This rule of construction is indispensable to the discipline of the navy. Case of Walker on habeas corpus, American Jurist, No. 6, p. 281. [The following are further examples of the means, outside of the words of the statute, which may be resorted to to aid in its interpretation: — (1.) Previous construction of similar laws. Greaves v. Tofield, 14 Ch. D. 563; The Abbotsford, 98 U. S. 440. (2.) History of the statute, including circumstances under which it was passed, previous state of law, &c. State v. Nicholls, 30 La. An. Pt. 2, 980; The Queen v. Most, 7 Q. B. D. 244; Yewens v. Noakes, 6 Q. B. D. 530. (3.) Long-continued official usage. Wetmore v. State, 55 Ala. 198; Hahn v. United States, 14 Ct. of Cl. 305; Swift, &c. Co. v. United States, ib. 481. Comp. In the matter of Manhattan Savings Institution, 82 N. Y. 142. (4.) Legislative construction. Georgia, &c. Co. v. Nelms, 65 Ga. 67; People v. Dayton, 55 N. Y. 367. — B.]

(a) Case of the Bishops, 12 Co. 7; 2 Inst. 686; Doe v. Naylor, 2 Blackf. (Ind.) 32; M'Nair v. Ragland, 1 Bad. & Dev. Eq. 525; Commonwealth v. Churchill, 2 Metcalf, 118; Wheeler v. Roberts, 7 Cowen, 536. A statute in Ohio, of February 14, 1809, and of Illinois, of 19th of January, 1826, abolished the rule of the common law stated in the text, as to the constructive revival of repealed statutes.

(b) Collins v. Smith, 6 Wharton, 294. (c) Littleton's Rep. 212.

1 Hastings v. Aiken, 1 Gray, 163. But it is not infrequently provided that the repeal of a repealing act shall not have the effect mentioned in the text. Cases of repeal by implication arising from the passage of later acts containing provisions repugnant to or the same as those in the act repealed are United States v. Tynen,

11 Wall. 88; Commonwealth v. Kelliher,

12 Allen, 480. See The Reform, 3 Wall. 617, 633.

With regard to the repeal of a statute by disuse, mentioned in note (k), see O'Hanlon v. Myers, 10 Rich. (S. C.) 128, a case standing on its peculiar circumstances, and not to be extended in its application. An act of 1691, which had been declared obsolete by an authoritative compilation of 1736, and which prescribed a manner of punishment which could not now be followed, was held inoperative.

contrary to what had been said by Popham, Ch. J., in Dingley v. Moor; (d) and all acts, civil and criminal, are to be charged under the authority of the first act. Thus, in the case of Rex v. Morgan, (e) on an indictment for perjury, in an affidavit to hold to bail, it was laid to have been taken by virtue of the statute of 12 Geo. I., which was a temporary law for five years, and which was afterwards, and before the expiration of it, continued by the act of 5 Geo. II., with some alterations. Lord Chief Justice Hardwicke said, that when an act was continued by a subsequent act, everybody was estopped to say the first act was not in force; and as the act in question was not altered in respect to bail, the offence was properly laid to have been done against the first act. In Shipman v. Henbest,(f) the King's Bench held, that if a statute be permitted even to expire, and be afterwards revived by another statute, the law derives its force from the first statute, which is to be considered as in operation by means of revival. If, however, a temporary act be revived after it has expired, the intermediate time is lost, without a special provision reaching to the intermediate time. (g)

{467} 7. Statute Penalties. — If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the

(d) Cro. Eliz. 750. (e) Str. 1066.

(f) 4 T. R. 109.

(g) Statutes are not considered to be repealed by implication, unless the repugnancy between the new provision and a former statute be plain and unavoidable. Foster's Case, 11 Co., 56, 63 a; 1 Rol. 91; 10 Mod. 118, arg.; Bacon's Abr. tit. Statute, D. A construction which repeals former statutes or laws by implication, and devests long-approved remedies, is not to be favored in any case. Cowen, J., 3 Hill, 472. A statute cannot be repealed by non-user, White v. Boot, 2 T. R. 274; Dwarris on Statutes, 672; though it is said to have been held in the Scotch law that statutes lose their force by desuetude after sixty years. See Dr. Irving's Introduction to the Study of the Civil Law, 123-127, on the doctrine in Scotland derived from the civil law, that laws may be abrogated by long disuse. [Repeal by Implication. — Repeal by implication is very much disfavored. Dobbs v. Grand Junction Waterworks Co., 9 Q. B. D. 151, 158; Wragg v. Penn Township, 94 Ill. 11. In general, the later law must be so repugnant to the earlier that they cannot reasonably stand together. Walker v. The State, 7 Tex. App. 245. It has also been held that where a later law appears to be intended to cover the same subject as a former, the former is impliedly repealed. United States v. Claflin, 97 U. S. 546; United States v. Tynen, 11 Wall. 88. See Bishop on the Written Laws, §§ 158-162. A repeal suspends the penalties imposed, even in respect to cases pending at the time. Speckert v. Louisville, 78 Ky. 287. As to the effect of revision and consolidation, see Scheftels v. Tabert, 46 Wis. 439. — B.]

statute. (x) Lord Holt, in Bartlett v. Viner, (a) applied this rule to the case of a statute inflicting a penalty for making a particular contract, such as a simoniacal or usurious contract; and he held

(a) Carth. 251; Skinner, 322.

(x) Statutes in derogation of common-law rights, especially when permissive only, are usually construed strictly. Metropolitan Asylum District v. Hill, 6 A. C. 193; London, Brighton, & S. C. Ry. v. Truman, 11 A. C. 45; see The Warkworth, 9 P. D. 20. Provisos in a statute are strictly construed. Clark's Appeal, 58 Conn. 207. Penal statutes are also construed strictly. Scott v. Morley, 20 Q. B. D. 126; Globe Pub. Co. v. State Bank, 41 Neb. 175; In re McDonough, 49 Fed. Rep. 360. The method provided by a statute for recovering a penalty must be followed with all possible strictness. Smith v. Wood, 23 Q. B. D. 380; 24 id. 23. Penalties incurred under a statute prior to its repeal; are sometimes enforceable thereafter. See North Dakota Nat. Bank v. Lemke, 3 N. D. 154; McCann v. Mortgage Co., id. 172; Gorman v. McArdle, 67 Hun, 484; U. S. Rev. Stats. § 13; United States v. Keokuk & H. Bridge Co., 45 Fed. Rep. 178; Snell v. Campbell, 24 id. 880; Com'th v. Sullivan, 150 Mass. 315; Pusey v. Com'th, 84 Ky. 276.

In England, crimes are not created by the retrospective operation of an act of Parliament, unless such intention by the Legislature is clearly expressed. Reg. v. Griffiths, [1891] 2 Q. B. 145. Statutes penal in their nature are not construed retrospectively, if their language admits of a prospective effect only. Reg. v. Vine, L. R. 10 Q. B. 195, 199; In re Pulborough School Board, [1894] 1 Q. B. 725. And, in general, a prospective construction will always be preferred, when possible. Warshung v. Hunt, 47 N. J. L. 256; McGeehan v. Burke, 37 La. Ann. 156. Hence a statutory increase in the rate of interest affects only future rights. Cum-

mings v. Howard, 63 Cal. 503. Prima facie all statutes are prospective only. Allhusen v. Brooking, 26 Ch. D. 564. So a statute will not be so construed as to have a greater retrospective operation than its language renders necessary. Knight v. Lee, [1893] 1 Q. B. 41; Ex parte Board of Trade, 2 id. 369; Dibb v. Walker, [1893] 2 Ch. 429; Ex parte Todd, 19 Q. B. D. 195; Lauri v. Renad, [1892] 3 Ch. 402; Reid v. Reid, 31 Ch. D. 102. A civil damage law does not, without express words, apply to persons injured before it was enacted. Reinhardt v. Fritzsche, 69 Hun, 565. Declaratory acts may in general operate retrospectively. Jones v. Bennett, 63 L. J. 705. So of Acts relating to procedure: Curtis v. Stovin, 22 Q. B. D. 513; Singer v. Hasson, 50 L. T. 326; and of Acts intended to remedy an existing evil and giving a new remedy to parties injured. Reg. v. Birwistle, 58 L. J. M. C. 158.

Statutes of taxation are construed in favor of the tax-payer. In re Thorley, [1892] 2 Ch. 613; American Net & Twine Co. B. Worthington, 141 U. S. 468; Rice v. United States, 53 Fed. Rep. 910. But statutory grants of property, franchises, or privileges in which the government is interested, will be strictly construed in its favor. Coosaw Mining Co. v. State, 144 U. S. 550. Statutes relating to frauds upon the revenue, though imposing penalties, are not construed strictly in the defendant's favor, like penal laws, but in such manner as to carry out the intent of the legislature. United States v. Stowell, 133 U. S. 1; United States v. Brown, Deady, 566; United States v. The Coquitlam, 57 Fed. Rep. 706.

that the contract was void under the statute, though there was a penalty imposed for making it. The principle is now settled, that the statutory prohibition is equally efficacious, and the illegality of a breach of the statute the same whether a thing be prohibited absolutely or only under a penalty. (b) The New York Revised Statutes (c) make the doing an act contrary to a statute prohibition a misdemeanor, though no penalty be imposed. Whether any other punishment can be inflicted than the penalty given by the statute has been made a serious question. (d) The Court of K. B., in Rex v. Robinson, (e) laid down this distinction, that where a statute created a new offence, by making unlawful what was lawful before, and prescribed a particular sanction, it must be pursued, and none other; but where the offence was punishable at common law, and the statute prescribed a particular remedy, without any negative words, express or implied, the sanction was cumulative, and did not take away the common-

(b) Bensley v. Bignold, 5 B. & Ald. 335; De Begnis v. Armistead, 10 Bing. 107, S. P.; Dwarris on Statutes, [2d ed. 536 ]; The State v. Fletcher, 5 N. H. 257. Every statute made to redress an injury, grievance, or mischief gives an action to the party aggrieved, either expressly or by implication. Van Hook v. Whitlock, 2 Edw. Ch. 304. Affirmatives in statutes that introduce a new rule imply a negative of all that is not within the purview. Hob. 298. And when a statute limits a thing to be done in a particular form, it includes in itself a negative, viz. that it shall not be done otherwise. Plowd. 206, b. Affirmative words in a statute do sometimes imply a negative of what is not affirmed, as strongly as if expressed. Nott, J., in Cohen v. Hoff, 2 Tredway, 661. The word may, in a statute, means must or shall, when the public interest or rights are concerned, or the public or third persons have a claim, de jure, that the power shall be exercised. [Supervisors v. United States, 4 Wall. 435; Galena v. Amy, 5 Wall. 705; Mason v. Fearson, 9 How. 248;] Alderman Blackwell's Case, 1 Vern. 152; King v. Barlow, 2 Salk. 609; King v. Inhabitants of Derby, Skinner, 370; The King v. Mayor of Hastings, 1 Dowl. & Ry. 148; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 113. See also 5 Cowen, 193; 1 Peters, 64; 9 Porter, [Ala.] 390. Though penal statutes are said to be construed strictly, yet the courts are bound to give effect to their plain and obvious meaning, and not narrow the construction. They must search out and follow the true intent of the lawgiver. Buller, J., in 1 T. R. 101; Story, J., in 3 Sumner, 209; Pike v. Jenkins, 12 N. H. 255. [Revenue laws are not penal laws in the sense that requires them to be construed with great strictness in favor of the defendant. Cliquot's Champagne, 3 Wall. 114; Taylor v. United States, 3 How. 197, 210.]

(c) ii. 696, sec. 39.

(d) If a statute creates an offence, and does not make it indictable, but prescribes a penalty, a resort to an indictment is precluded. The State v. Maze, 6 Humph. (Tenn.) 17.

(e) 2 Burr. 799; Almy v. Harris, 5 Johns. 175; Stafford v. Ingersoll, 3 Hill, 38,

S. P.

law punishment, and either remedy might be pursued. (f) (y) The same distinction had been declared long before; (g) and the proper inquiry in such cases is, was the doing of the thing for which the penalty is inflicted lawful or unlawful, before the passing of the statute? If it was no offence before, the party offending is liable to the penalty, and to nothing else. (h)1

(f) By common law, acts contra bonos mores are indictable; but in Louisiana there is no such mass of undefined indictable offences, and no act is indictable that is not made a statute offence and indictable. The State v. Williams, 7 Rob. (La.) 252.

(g) Castle's Case, Cro. Jac. 644; Regina v. Wigg, 2 Salk. 460.

(h) A question was raised in the N. Y. District Court of the United States, in the case of The United States v. Gates (New York Legal Observer for January, 1846), how far a penal statute was to be deemed cumulative, or a mere repeal of a prior statute, and only the substitution of another penalty, leaving both penalties or punishments to be inflicted. The question in most cases resolves itself into an inquiry as to the intention of the subsequent law. Cumulative penalties merely do not repeal a former statute; but when new qualifications or modifications are added, the repeal may be inferred; and if the case be not clear, such ought to be the inference, lest a person might be twice punished for the same offence.

1 That is, to nothing else so far as the public wrong or criminal aspect of the act is concerned. But the offender may also be liable to a civil action at the hands of a party in whose favor the duty was imposed, and who has suffered special damage by its infraction. Conch v. Steel,

3 El. & Bl. 402; Atkinson v. Newcastle & Gateshead W. W. Co., L. R. 6 Ex. 404. [Atkinson v. Newcastle Water Works was reversed on appeal (2 Ex. D. 441), and Couch v. Steel was doubted. The court held that the mere fact of a statutory duty did not imply a duty to private persons.

(y) When a special form of remedy is given by statute for a common-law liability, the plaintiff has an election of remedies in the absence of words excluding that at common-law. Vallance v. Falle, 13 Q. B. D. 109. If the statute creating a liability provides no remedy, an action of debt, or other common-law remedy to enforce it, may be adopted. Vallance v. Falle, 13 Q. B. D. 109. An action of debt on a statute is an ancient common-law remedy, and a statute may enable a third person to sue upon an obligation which it creates. In re Rotherham Alum & C. Co., 25 Ch. D. 103. When a statute creating a new obligation gives a remedy to compel its performance, this is generally exclusive of other remedies. Lamplugh v. Norton, 22 Q. B. D. 452;

Vallance v. Falle, 13 id. 109; see Bailey v. Bailey, id. 855; Pietermaritzburg v. Natal Land Co., 13 A. C. 478. An enabling statute does not curtail other previously existing remedies. Brockwell v. Bullock, 22 Q. B. D. 567. Statutes authorizing towns to abate nuisances do not preclude them from their common-law right to resort to the Courts for the same purpose. American Furniture Co. v. Batesville, 139 Ind. 77. The party for whose benefit a statute was enacted may waive it and thereby legalize a past act in disregard thereof. Goldsmid v. Great Eastern Ry., 25 Ch. D. 511; see Baddeley v. Granville, 19 Q. B. D. 426. Contra, when the statute is in pursuance of a general policy. Phinney v. Mutual L. Ins. Co., 67 Fed. Rep. 493.

The distinction between statutory offences, which are mala prohibita only, or mala in se, is now exploded, and a breach of the statute law, in either {468} case, is equally unlawful and equally a breach of duty; and no agreement founded on the contemplation of either class of offences will be enforced at law or in equity. (a)

There are a number of other rules of minor importance, relative to the construction of statutes, and it will be sufficient to observe, generally, that the great object of the maxims of interpretation is to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy. (b) But it would be quite visionary to expect, in any code of statute law, such precision of thought and perspicuity of language as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and litigious interpretations. Lord Coke complained, (c) that in his day great

(a) Aubert v. Maze, 2 Bos. & Pull. 371; Cannan v. Bryce, 3 B. & Ald. 179; Daniels, Ex parte, 14 Vesey, 191.

(b) Lord Mansfield, in Pray v, Edie, 1 T. B. 313; Willes, 397; United States v. Fisher, 2 Cranch, 399. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est. The English judges have frequently observed, in answer to the remark that the legislature meant so and so, that they in that case have not so expressed themselves, and therefore the maxim applied, quod voluit rum dixit. Where I find the words of a statute perfectly clear, I shall adhere to the words," said Denman, C. J., in 4 Nev. & Man. 426.

(c) Pref. to 2 Co.

See also Gorris v. Scott, 9 L. R. Ex. 125. Comp. Borough of Bathurst v. Macpherson, 4 App. Cas. 256. — B.]

With regard to a point mentioned a few sentences earlier, it is undoubtedly a true rule of construction that the imposition of a penalty on a certain act leads to the inference that it is absolutely prohibited. But it is only a rule of construction, for it is obvious that even what is called a penalty in a statute may be no more than a tax on a certain course of conduct which is permitted if the tax is paid. Thus, in The Creole, 2 Wall. Jr. 485, a statute providing that certain vessels should be "obliged" to employ a pilot, or "forfeit

and pay" a sum spoken of as "a penalty" to the use of an eleemosynary institution, was held to leave the employment optional subject to a tax, — whether rightly or not is immaterial here. See notes on Shipping in vol. iii. An act cannot be called illegal unless it is absolutely prohibited and put outside the protection of the law in all connections, which is shown by such consequences as the invalidity of contracts to do the act in question, the rule in pari delicto potior est conditio defendentis, and the denial of relief when the illegal act is part of the plaintiffs case. See a fuller statement, 6 Am. L. Rev. 723-725.

questions had oftentimes arisen "upon acts of Parliament, overladen with provisos and additions, and many times on a sudden penned or corrected, by men of none, or very little judgment in law."(d)

(d) In Douglass v. Howland, 24 Wendell, 45-47, Mr. Justice Cowen has expressed himself with a justice, strength, and truth on the subject of the interpretation of statutes, worthy to be transcribed. "We cannot," he observes, "escape the power of construction, so long as we have a judicial system. Well known rules in the construction of statutes ought not to be departed from. Statutes in affirmance of the common law, or in affirmance of judicial construction upon a former statute, ought not to be holden a deviation from the former law, unless it be obviously so. There is scarcely any branch of legal policy more worthy of being enforced, than that which aims to keep the laws of a nation the same in all respects from one age to another, except in points where change becomes absolutely necessary. Time, says Lord Hale, is wiser than all the wits in the world, and the law which has been tried by it has the highest possible evidence in its favor. Time is the schoolmaster which teaches law most effectually, and without which it cannot be generally known. In the New York Revised statutes of 1830, a vast deal is made up of enactments intended merely to repeat what had been decided by our own or the English courts. But changes in the language of the reports, or rules of court, or the old statutes, occur at every step of the revision. All the general acts were remodelled. An arrangement more scientific, a style improved in elegance and simplicity, were sought to be introduced throughout the whole; hence short paragraphs, made up of short sentences, generalities, ellipses, complications, equivalent words or translations, for old and well defined technical terms. In short, the old costume was dismissed, and that of the civil code of France adopted as nearly as could be. Yet I take it that the main substance of what we had before was always intended to be retained. The revision was mainly a re-enactment or codification of the substance, the principle of what we had before, though I admit the identity cannot easily be ascertained in very many instances. It cannot be that the formal changes I have mentioned meant a change in substance. The transmutation of a principle of the common law, or a rule of practice, into a statute, or an old statute, or its received construction into a new one, without a palpable design to depart from the former, ought not to be considered as a departure. We are then left where we were, with all the old helps about us, the old lights burning. It has been a settled rule, in respect to the revision, in 1801, of the old statutes, that where the law was antecedently settled by clear expressions or adjudications, the mere change of phraseology was not to be construed a change of the law, unless such phraseology evidently purported an intention to work a change. Case of Yates, 4 Johns. 359; Taylor v. Delancey, 2 Caines's Cases, 150, 151. If such was the rule of construction under the revision of 1801, which proceeded by cautious and prudent steps, fearful to go even beyond a change of orthography, what shall we say of an age when there is literally a mania for changing every law in some way?"

We are reminded by these remarks of the principles of Solon, the Athenian lawgiver, that it was better to retain old laws, even though in some respects objectionable, than to be always eager to change them for new ones, though possibly superior. Little or no confidence can be placed in the authority of laws which are incessantly altered, remodelled, and exchanged; and that those only which have been sanctioned and established by long usage, and under which the citizens had, as it were, been born

Various and discordant readings, glosses, and commentaries will inevitably arise in the progress of time, and, perhaps, as often from the want of skill and talent in those who comment, as in those who make the law. Though the French codes digested under the revolutionary authority are distinguished for sententious brevity, there are numerous volumes of French reports already extant, upon doubtful and difficult questions arising within a few years after those codes were promulgated. (e)

{469} The Emperor Justinian, in one of the edicts which he published in confirmation of the authority of the Pandects, and prefixed to that work, expressly prohibited the civilians of his time, and those of all future ages, from writing any commentary upon his laws. (a) The history of Justinian's reign shows the folly and absurdity of this attempt to bar all future innovation. Greater changes took place in a few years in the laws and jurisprudence of Justinian, said Montesquieu, than in the three hundred years of the French monarchy immediately preceding his time; and those changes were so incessant and so trifling, that the inconstancy of the emperor can only be explained by

and educated, are likely to be religiously observed. Schöman's Dissertations on the Assemblies of the Athenians, Cambridge, 1837, p. 240.

(e) The Journal du Palais, présentant la jurisprudence de la Cour de Cassation, et des Cours Royales, sur l'application de tous les codes français aux questions douteuses et difficiles, had amounted, in 1818, to fifty volumes and upwards. From the time of the French Revolution down to 1828 there were one hundred volumes of

statutory law made in France.

(a) Secunda Præfatio Digestorum, sec. 21. In imitation of Justinian, the King of Bavaria, by his royal mandate of October 19, 1813, prohibited the publishing of any commentaries on his penal code, by officers of state, or private scholars. The code of Frederick II. of Prussia referred all dubious constructions of law to the interpretation of a law committee, and the professors of law were not allowed to lecture on the code. Doctor Lieber says that M. de Savigny was the first Prussian jurist who delivered lectures on that code, and he justly observes that interpretation cannot be dispensed with wherever human language is used, except in mathematics. The necessity of it lies in the nature of things, of our mind, and of our language. No code can provide for all specific cases, or be so constructed as to close all further inquiry. In France, Bavaria, Austria, Prussia, &c., some authority is always designated, from which, in doubtful cases, explanations shall be obtained; and in France and Prussia many large volumes of additions and explanations have been officially published and added to their codes. See Legal and Political Hermeneutics, by Francis Lieber, 2d ed., Boston, 1839, pp. 40-46, and which is a treatise replete with accurate logic, and clear and sound principles of interpretation, applicable to the duties of the lawgiver, and the science of jurisprudence.

having recourse to the secret history of Procopius, where he is charged with having sold equally his judgments and his laws. (b) (x)

(b) Grandeur des Romains et leur Décadence, c. 20. The best digest that I have seen of the rules and of the examples in the English law concerning the construction of statutes is to be found in Dwarris's General Treatise on Statutes, London, 1830, [2d ed. 1848,] and published since the first edition of these commentaries. The rules are illustrated by cases drawn from the whole body of the reports, ancient and modern, in a full and satisfactory manner. See Dwarris, c. 12 and 13, [c. 9, 10,] from p. 688 to 780, [550 to 694.] Mr. (now Sir F.) Dwarris has added to his work an excellent statutory history of English law, from Magna Charta down to the end of the reign of George IV. It is a running commentary on the principal statutes, in which Lord Coke's celebrated exposition of the statutes, in his 2d Institutes, as far as it extends, is essentially incorporated.

(x) Repeal of Statutes. — A repeal by implication is effected only when the later enactment is so inconsistent with or repugnant to an earlier one that the two cannot stand together. Kutner v. Phillips, [1891] 2 Q. B. 267; Fortescue v. St. Matthew, id. 170; West Ham v. Fourth City M. B. Society, [1892] 1 Q. B. 654; see In re Busfield, 32 Ch. D. 123; Wigram v. Fryer, 36 Ch. D. 87; Pollock v. Land Imp. Co., 37 Ch. D. 661; Reg. v. Licensing Justices, 14 Q. B. D. 13. The party claiming such a repeal has the burden of proof. Lybbe v. Hart, 29 Ch. D. 8. The repeal of a statute by implication is not favored, and different laws upon the same subject will, if possible, be permitted to stand together. Kollenberger v. People, 9 Col. 233; Re Hall, 38 Kansas, 670; Lyddy v. Long Island City, 104 N. Y. 218; Hearn v. Brogan, 64 Miss. 334; People v. Gustin, 57 Mich. 407. The later of two hopelessly repugnant laws must prevail. State v. Howe, 28 Neb. 618. A statute is not affected by a later one, which is constitutionally invalid, though it contains a repealing clause. In re Rafferty, 1 Wash. St. 382. A later special statute can repeal a former general one only when they cannot be harmonized. London County Council v. London School Board, [1892] 2 Q. B. 606; City & S. L. Ry. v. London County

Council, id. 513. But the provisions of special legislation are not necessarily repealed by subsequent general legislation inconsistent therewith. In re East London Ry., 24 Q. B. D. 507; Seward v. The Vera Cruz, 10 A. C. 68; In re Smith, 35 Ch. D. 589; In re Williams, 36 Ch. D. 573; McKenna v. Edmundstone, 91 N. Y. 231; State v. Cleland, 68 Maine, 258; Harrisburg v. Sheck, 104 Penn. St. 53; Com'th v. Macferron, 152 id. 244; Cook County B. Gilbert, 146 Ill. 268; 44 Ill. App. 69; Black River Imp. Co. v. La Crosse Booming Co., 54 Wis. 659; Justices v. Com'th, 81 Va. 209; Bogardus v. Gordon (N. J. Ch.), 30 Atl. Rep. 812; State v. Archibald, 43 Minn. 328. But a general statute made applicable to all cities is held to control special statutes applying to particular cities. Kennedy v. Board of Education, 82 Cal. 483. Parties to a pending suit have not necessarily any greater vested right than others under a statute the terms of which are clear and express. Att.-Gen. v. Theobald, 24 Q. B. D. 557.

A statute amending a prior Act "so as to read as follows," and restating it at length, does not repeal and re-enact like sections or clauses, but continues them. State v. Mines, 38 W. Va. 141; Com'th v. Kenneson, 143 Mass. 418; State v. Wish, 15 Neb. 448; see People v. Upson,

79 Hun, 87. It impliedly repeals omitted or inconsistent provisions in the amended Act. In re Prime's Estate, 136 N. Y. 347. If, in such case, the amended statute has previously been repealed, it is re-enacted by the amending statute. People v. Jefferson County Board, 77 Hun, 372; 143 N. Y. 84. A statute which contains the above-quoted clause, and expressly repeals all laws conflicting therewith, is not in pari materia with the amended Act, but will be construed independently. Cortesy v. Territory (New Mex.), 32 Pac. Rep. 504. Upon the re-enactment of a statute which had a settled judicial construction, that construction should be followed. Harvey v. Travelers' Ins. Co., 18 Col. 354. So when statutes are adopted from another State or country, the previous construction thereof in that State is binding. Sanger v. Flow, 48 Fed. Rep. 152; Coulter v. Stafford, id. 266; Interstate Commerce Commission v. Baltimore & O. R. Co., 43 id. 37.

Changes in a general revision of the statutes are not construed as changing the law, unless manifestly so intended. Clark v. Powell, 62 Vt. 442. A statute of general revision, when clearly intended to be complete, repeals all prior Acts on the same subject, even though not repugnant thereto, and not containing words of repeal. Jernigan v. Holden, 34 Fla. 530; Little v. Cogswell, 20 Oregon, 345; Keese v. Denver, 10 Col. 112; Clay County Supervisors v. Chickasaw County Supervisors, 64 Miss. 534; Com'th v. Mason, 82 Ky. 256. A new proceeding for a new offence created by statute is a bar to an indictment. Reg. v. Hall, [1891] 1 Q. B. 747. A statute making those who misapply certain money liable to a penalty and repayment on pain of imprisonment makes a proceeding thereunder a bar to a civil suit to recover the same moneys. Vernon v. Watson, [1891] 2 Q. B. 288.