"STATUTORY CONSTRUCTION."

A paper read by the Hon. F. S. Monnett, of Bucyrus, before the Ohio State Association,

IN

Nas much as whole treaties have been written on this subject by learned professors and critical expositors of the law, it is difficult to furnish you anything new; in fact, on this subject, I anticipate you would rather have something not new. But as long as Legislatures meet annually, and personal and proprietary rights are affected by their acts, just so long will this branch of the law be one of great and vast importance to the profession. The fundamental division of our government, under its various constitutions, both national and State, into three distinct heads: legislative, judicial and executive, while apparently simple, has grown to be a subject of constant litigation to determine the boundaries of each governmental function and to prevent the one from usurping or intruding upon the other. No more startling illustration of the difficulties and the intricacies involved, in observing these distinctions, is there than that of the effort of the highest tribunal of the land to construe the income tax. Here we observe a court of last resort, and of the choicest scholars, dividing at one time equally upon great and vital questions of construction of the fundamental law of the land, and subdividing many times on minor questions in the same decision, and finally reversing themselves and revising their former opinion within a few weeks after their original decision. If thus the doctors of the law do disagree, we disciples of the law may go free. So that it may not always be the mark of an inefficient prosecuting attorney if he cannot off-hand, on the street corner, give an infallible construction to some county officer of a new law involving the rights of person or property, for the rules now laid down by adjudication and precedent have grown so numerous that to apply any considerable number to a given case before finally deciding it, is an arduous task in itself.

To analyze this subject and bring it within the limit assigned the speaker, we will analyze the subject itself.

Statute law has been defined as the will of the Legislature of a State, or the will of the nation expressed by the Legislature, expounded by the courts of justice. The Legislature, as the representative of the nation, expresses the national will by means of statutes, which with the exposition by the court, form the body of the statute law. (Willberforce Statute Law, p. 8.)

Bouvier defines it as the written will of the Legislature, solemnly expressed according to the forms necessary to constitute it the law of the State. Before undertaking to interpret a statute, and apply the ordinary rule of interpretation, you

must inquire whether it is a Federal statute, or whether it is purely a State statute, for the rule of interpretation, as seen hereafter, varies according to the class referred to. Another division of statutes that is necessary to be understood before applying the rules of interpretation is, first, whether a statute is simply declaratory, which does not profess to make any alteration in the existing law, but merely to declare or explain what it is; or, second, remedial, meaning those statutes which are made to supply such defects, and to abridge such superfluities in the common law as arise either from the general imperfection of all human laws, whether from the change of time and circumstances, or from the mistakes and unadvised determination of unlearned judges, or from other cause. This modification being effected either by enlarging the common laws where it is too narrow or restraining it where it is too lax. The English Parliament occasioned a division of remedial statutes into two sub-heads, commonly called enlarging and restraining statutes. Such is Wharton's definition, and substantially Blackstone's, of remedial statutes.

The other branch of my subject perhaps needs a brief definition. What is "interpretation," and what "construction" of statutes? Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey; and of enabling others to do the same. While construction, on the other hand, is the drawing of conclusions respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text.

Interpretation only takes place if a text conveys some meaning or other. But construction is resorted to when in comparing two different writings of the same individual, or two different enactinents of the same legislative body, there is a contradiction found where there was evidently no intention of such contradiction, or where it happens part of the statute contradicts the rest. When this is the case, and the nature of the document or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction. I have used Judge Cooley's distinctions as cited in his Constitutional Limitations, 49-50. In common use, however, the word "construction" is generally employed in the law in a sense embracing all that is probably covered by the terms "construction" and "interpretation," and in the broader sense the words "construction" and "interpretation" are used as synonymous and interchangeable.

A lawyer in construing a statute, or in looking for precedents and judicial construction of statutes, must bear in mind the difference between the

Federal statutes and the State statutes, and the judicial detrminations under each class, for there is a marked difference - a fundamental difference, in respect to implied powers between the Federal and State constitution.

departure from the plain meaning of a statute on the ground of its unwisdom or public policies. (Sedg. on State on Constitutional Law, 231; Cooley, 197.)

Lord Blackburn said no court is entitled to depart from the intention of the Legislature as appearing from the words of the act because it is thought unreasonable. Chief Justice Payton, of Mississippi, laid down the rule that courts have no other duty to perform than to execute the legislative will without any regard to their own views as to the wisdom or justice of the particular enactment. It is also a universal principle of construc

away by its own or the Federal Constitution. Congress can pass no laws but those which the constitution authorizes, either expressly or by clear implication, while the State assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers not granted to the Union to legislate are withheld, but the State retains every attribute of sovereignty which is not taken away. (21 Penn. St. 147, 16; 17 Id. 118-119; 52 Id. 474; Cooley C. L. 10-11.)

The rules of construction of statutes are the same in courts of law and equity. There is always a legal presumption that the Legislature intends nothing unconstitutional, and if an act is susceptible of two constructions, that one must be adopted which is constitutional. But an unconstitutional consequence cannot and must not be avoided by forcing upon the language of the act a meaning which upon a fair test is repugnant to its terms. (24 Cal. 518; 12 Iowa, 1; 21 Id. 221.)

It is an elementary rule of construction that words and phrases of an act are used in their popular and common conception, unless the subject matter or context indicate that they are used in a technical sense. If an act is passed with reference to a particular trade or business, then the words have the meaning as defined by that trade or business, even though the meaning may differ from the common or ordinary meaning. If the language is clear and admits of but one meaning, there is no room for construction. It is not allowable to interpret that which has no need of interpretation. In such a case any departure from the language used would be an unjustifiable assumption of legislative powers. (48 Fed. Rep. 293; 6 Wall. [U. S.] 395; 5 Wheat. 95; 79 Am. Dig. 350.)

And where the language is susceptible of but one meaning, it must receive that meaning, although such construction lead to results that are absurd and mischievous. Courts are not to tamper with the clear and unequivocal meaning of words used, although the consequences may not be such as were contemplated by the Legislature. There can be no

lature in the statute itself. Unless some ground can be found in a statute for restraining or enlarging the meaning of its general words, they must receive a general construction, and the court cannot arbitrarily subtract therefrom, nor add thereto. There are some apparent exceptions to this broad rule. No limitation must be inferred which will defeat the object of the law. Thus, where two hundred thousand dollars were appropriated for buildings, which must cost three times that amount, it was no limitation as to the expenditures.

Conjunctive sentences describing different branches of the same offense will be construed as conjective or disjunctive, as the object and sense of the law must distinctly require. It is, therefore, only in cases where the words of the statute are capable of two meanings, or where, by giving them their literal interpretation the statute will be inconsistent or ambiguous, that courts have a right to resort to the secondary rules of construction to aid in determining the real intentions of the Legislature. (7 N. Y. 97; 11 Id. 593; 10 Pett. [U. S.] 524.)

Language is rarely so free from ambiguity as to be incapable of being used in more than one sense, and to adhere rigidly to its literal and primary meaning would be to miss its real meaning in many instances. It is observed in Blackstone that if a literal meaning had been given to the laws forbidding a layman to lay hands on a priest, and punish all who drew blood on the streets, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who had bled a person on the street to save bis life would have been liable to punishment.

So likewise, the German who was greatly annoyed by having his out lot run over by trespassers and the village cow and horse, placed the following sign thereon; "Any man, woman, child, horse, cow or dog caught trespassing upon these premises will have his or her tail cut off, as the case may be." He never, literally, carried out his threat. So in construction of statutes, the rules of grammar are less

This same rule applies as to acts, and their supplements, and still more, to codes and revisions. Various sections referring to the same subjects, if practicable, should be construed together as one, or as one act or chapter, or as continuous sections of the same act. And one chapter is to be read with another relating to the same subject, as one body of law, though collected from independent laws on previous enactments, where all have been re-enacted by revisory acts.

On this same principle, and under this head, are constructions by context; earlier acts relating to the same subject-matter have been examined by the court in reference to the limiting power of certain words, enlarging, restraining or qualifying terms, so as to effectuate the previous intentions of the law. A by-law which authorized any person to be Chamberlain of the City of London would be construed so as to harmonize and not to conflict with an earlier act or general statute which limited the appointment to a person possessed of certain qualifications. And the court held that any person" would be understood to mean only an eligible per

son. So the various statutes of New York and Ohio relating to, and enlarging the powers of married women, though passed in different years, were held to be construed as one act. (62 Barb. N. Y. 531.)

Where an act conferring jurisdiction of a certain offense upon a police court, provided that the fine to be imposed should not exceed one thousand dollars, nor the imprisonment be more than one year, it was held that, on comparison with other statutes in pari materia, this provision was a limit upon the punishment by either fine or imprisonment, but did not intend to authorize the imposition of both for the same offense. (15 Barb. N. Y. 627.)

So an act enlarging the jurisdiction of justices of the peace, and prescribing no forms of proceedure, must be construed together with earlier acts upon the same subject and as adopting the forms of practice prescribed by them. (105 Pa. St. 610.)

Where a part of an act has been repealed it must, although of no operative force, still be taken into consideration in construing the rest, provided it tends to elucidate an ambiguous word or passage.

and in rendering the meaning of a statute punctuation may be changed or disregarded. Judge Follett adds in his opinion, that ancient inscriptions and writings show that words were grouped together without break or punctuation mark, the location and form of the word being the only indication of the meaning. The use of spaces and marks was adopted very slowly, but mostly since the beginning of the 16th century. In the English case of Barrow v. Wadkin, it was said that "It seems that in the rolls of Parliament the words are never punctuated, and that punctuation was not allowed to throw light on printed statutes in England."

In Cushing v. Workick, 9 Gray, 382, it was held that "Punctuation is not to be regarded in construing a statute."

Punctuation has not arrived at perfection anywhere. In the Ewing case, 11 Pet. 41, the court held, "Punctuation is a most fallable standard by which to interpret a writing. It may be resorted to when all other means fail, but the court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, punctuation will not be subject to changes. In the Pancoast case, 1 Ohio, 385, the court in speaking of a construction claimed by a party, say: "This construction is founded upon a mere grammatical criticism which is never received to change or control the intention of the legislature, where that intention is otherwise freely expressed. Something may depend upon punctuation in the statute books, which may be incorrect, and ought never to vary the true sense."

And in that case they disregarded and left out a

comma.

Judge Day, in the Hamilton case, 15 Ohio St.: 428, says: "Courts will, however, in the construction of statutes for the purpose of arriving at the real meaning and intention of the law makers, disregard the punctuation, or re-punctuate if need be, to render the true meaning of the statute."

Judge Okey made the same observation in the 31 Ohio St. 337; 223 Ohio St. 140.

Some courts have laid down the rule that punctuations by the legislature may be practically ignored, and that punctuation is no part of a statute. And further, that there is no punctuation in it which ought to control the interpretation. (105 U. S. 77; 65 Pa. S. 311; 17 Wall. 496-502.)