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with. A directory statute is one which lays down certain rules relating to particular acts, which acts may be valid although such rules are not complied with.63
It is often difficult for the courts to decide whether a particular statute was intended to be mandatory or merely directory. It is a matter of construction, and all the circumstances which attended the passage of the law are taken into consideration, unless its character can be determined by a study of the words employed. As an illustration, the laws requiring marriage licenses which have been passed in many of the States might be cited. Were these laws mandatory, they would tend toward restricting marriage. But the law favors marriage, and from this the courts argue that these license laws are merely directory, and that a marriage entered into without a license will be valid; the only real force which they have growing out of the provision under which ministers and others who solemnize a marriage between persons who have no license are punished. The marriage itself is valid, although the law be entirely ignored.
§ 53. Prospective and Retrospective Statutes. As to their operation, statutes are prospective or retrospective. A prospective statute is one which applies only to acts which arise after its enactment. A retrospective statute is one which applies to acts which took place or rights which existed before its enactment.65 Retrospective laws are seldom passed, and in some jurisdictions are prohibited by constitutional provisions.66 Ex post facto laws that is such retrospective laws as make acts, innocent when done, crimes, or increase the penalty attached to crimes already committed are prohibited by the constitution of the United States.67
THE AUTHORITIES AND THEIR INTERPRETATION.
$54. The Rank of the Various Authorities.
55. General Rules for the Interpretation of Laws.
§ 54. The Rank of the Various Authorities. The various sources of law in the United States rank in authority as follows: (1) The constitution of the United States. (3) The treaties and statutes of the United States. (3) The constitution of the State. (4) The statutes of the State. (5) Local ordinances. (6) The common law as evidenced by the reports of cases. (7) The common law as evidenced by usage.
In determining the law applicable to a particular case in controversy before the courts, the judge appeals to the various sources of authority which are mentioned above. If the necessary principle is found in the constitution of the United States, he need look no further, for that document is of supreme authority. But, as we have already seen, the principles of law which are stated in the constitution are few, and of the most general character. Next in rank to the constitution as a source of authority are the treaties and statutes of the federal government.2 These are of coördinate rank. A later treaty will supersede a prior statute if contradictory thereto, and a later statute will supersede a prior treaty. No law of the particular States has any force if inconsistent with the laws, treaties, or constitution of the federal government. It is of course to be understood that the federal government can enact only such laws as are within its jurisdiction as established by the federal constitution.*
A large majority of the cases which come before the State courts involve only the laws of the particular State. At the basis of these laws is the State constitution, which is fundamental in its character. No statute of the State is of any validity if it is inconsistent with the principles of the constitution. Furthermore, no enactment of a subordinate legislative body, as that of a municipal corporation, is of any validity when it contradicts either a statute or the constitution of the State in which it is situated. The authorities which have thus far been mentioned together make up the written law which is in force in the United States. As we
1. See supra, § 40.
2. See supra, §§ 41, 42.
3. See "Treaties,"
4. See supra, § 41.
5. See supra, §§ 43, 44.
6. See 28 Cyc. 363, 365.
have already seen, the unwritten or common law is of no force as against any statutory or constitutional principle."
855. General Rules for the Interpretation of Laws. The interpretation or construction of the laws, and particularly of statutes and constitutions, is a large subject and an important one, for often their meaning is not clear. The business of courts is to apply the law to particular states of fact which come before them; but their object is not accomplished, or is only partly accomplished, when they have found a rule which seems to apply to the case in hand. They have still to determine the exact meaning of the law, and hence there arises a necessity for rules of interpretation. These rules have grown up as part of the unwritten law, and are based upon the wisdom and experience of the courts. The following general rules apply to the interpretation of all laws, whether written or unwritten:
1. Words are generally to be understood in their ordinary popular signification; but technical terms are to be interpreted according to their meaning in the art or science in which they are employed.
2. Words and phrases should be interpreted in the light of the context. For example, if the same word appears twice in the same law, its meaning in one instance may assist in its proper interpretation in the other.
3. Where a particular rule is in itself of doubtful significance, the subject-matter of the law will usually be found of assistance in determining its meaning.
4. If a rule is capable of two interpretations, one of which is absurd and the other reasonable, it is to be presumed that the latter interpretation is intended.10
5. The reason and spirit of a law are always to be considered in its interpretation.1
7. See supra, § 39.
8. 1 Blackstone Comm. 59.
9. "Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon." 1 Blackstone Comm. 59.
10. "As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the
Bolognian law, mentioned by Puffendorf, which enacted that whoever drew blood in the streets should be punished with the utmost severity,' was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit." 1 Blackstone Comm. 60.
11. "C But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given
In addition to the rules which have just been stated as applicable to all laws, various technical rules for the interpretation of statutes are also in vogue, as well as other equally technical rules which govern the interpretation of judicial decisions, as will be seen in the following sections.
§ 56. Rules for the Construction of Statutes. In addition to the general rules stated in the preceding section, the following special rules apply to the construction of statutes:12
1. Statutes are to be interpreted in the light of the unwritten law.13 If a statute is merely declaratory of the unwritten law, its meaning may be determined by the true meaning of the principles of the unwritten law which it declares, or, if a statute contains a word whose meaning has already been determined in the unwritten law, it is presumed to have the same meaning in the statute.14
2. Statutes which apply to persons or things of an inferior rank cannot, by any general words, be extended to those of a superior.15
3. Penal statutes are to be strictly construed. That is, they are to be construed in the interest of the accused person, who is to be given the benefit of any doubts as to their construction.16
in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither stayed in the ship upon that account, nor contributed any thing to its preservation." 1 Blackstone Comm. 61.
12. See 1 Blackstone Comm. 87; and Statutes," Cyc. 13. "There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the
making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy." 1 Blackstone Comm.
14. See 8 Cyc. 383, 384.
15. "So a statute, treating of 'deans, prebendaries, parsons, vicars, and others having spiritual_promotion,' is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, and bishops being of a still higher order." 1 Blackstone Comm. 88.
16. "Penal statutes must be construed strictly. Thus the statute 1 Edw. VI, c. 12, having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this should not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year." 1 Blackstone Comm. 88.
As to the meaning of "benefit of clergy see 12 Cyc. 778.
4. Statutes relating to fraud are to be construed liberally and beneficially."
5. A saving or condition totally repugnant to the body of the statute is of no effect.18
6. A statute has no power to impose limitations upon the authority of future legislatures. 19
7. A later statute impliedly repeals all prior statutes with which it is inconsistent.20
8. Under the common law, the repeal of a repealing statute operated to revive the original statute; but in England at this time, and in many of the States, this rule has been abolished.
17. "Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts upon the offense, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5, which avoids all gifts of goods, etc., made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture." 1 Blackstone Comm. 88.
18. A saving, totally repugnant to the body of the act, is void. If, therefore, an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A. in the king, saving the right of A.; in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king." 1 Blackstone Comm. 89.
19. "Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign
power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. When you repeal the law itself, (says he,) you at the same time repeal the prohibitory clause, which guards against such repeal.'" 1 Blackstone Comm.
20. "But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express