* 464

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 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, every thing 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.

1

Statutes are likewise to be construed in reference to the principles of the common law; 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 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

(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.

1 The rule for the construction of acts of Congress is the same, although there is no common law of the United States.

Rice v. R.R. Co., 1 Black, 358, 374. See
McCool v. Smith, ib. 459.

deemed of some importance, according to the maxim that * 465 *contemporanea expositio est fortissima 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 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

(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.

(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

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. ch. 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 con struction of a statute by public officers, including the Attorney-General, who are required to aid in carrying it out, is important, 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

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 a statute be repealed, and afterwards the repealing act be

* repealed, this revives the original act; (a)1 and if a statute *466 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, Ala. 487; Commonwealth v. Marshall, 11 Pick. 350; Allen v. Farrow, 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. 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 hab. corp., American Jurist, No. 6, p. 281.

(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 14th, 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.

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 v. Pegg, 7 Nev. 23.

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

VOL. I.

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 34

[ 529 ]

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 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)

(b) Collins v. Smith, 6 Wharton, 294.

(c) Littleton's Rep. 212.

(e) Str. 1066.

(d) Cro. Eliz. 750. į
(f) 4 T. R. 109.

(9) 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 the civil law, that laws may be abrogated by long disuse.

7. Statute Penalties.

If a statute inflicts a penalty for *467 doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. 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 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,

(a) Carth. 251; Skinner, 322.

(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. Ingersol, 3 Hill, 88,

8. P.