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Construction.

An important rule in construing statutes is, to give full force and effect to every word.* If, therefore, by one construction a word or a number of words, are rendered superfluous, and by another each word has full force, the latter is to be received, and this though the former is the more natural construction. If, however, the word or words in dispute are clearly irreconcilable with the body of the statute, they must be stricken out.f

In every case, however, the intention of the legislature, if clearly ascertainable, is to govern. To ascertain this intention, the court may resort to the title and to the preamble of the Act,-in no case, however, where the body of the Act is clear, is the title or the preamble to be so interpreted as to control the act itself.§

But there is a large body of statutes, not properly either penal or remedial, which fall under these two heads as regards their construction. Thus, a statute giving a summary remedy is to be construed literally; and those wishing to avail themselves of it must take nothing by intendment.|| Statutes in relation to the sale of lands for the non-payment of taxes, are to be construed literally. Statutes which impose restrictions on trade or common occupations, or which levy an excise or tax on them, must be strictly construed.** So if they impose fines or create forfeitures.†† Statutes levying duties or taxes upon the subjects or citizens, are to be construed most strictly against the government; and their provisions are not to be extended by implication beyond the clear import of the language used. So with statutes made in favor of a corporation or individuals, and in derogation of common right.§§ A statute enumerating persons or things of an inferior dignity, shall not be construed to extend to those of a superior dignity. And lastly, whenever the statute law and the common law conflict, the latter must give way to the former. But in this case the statute is to be construed strictly.¶¶

There are many miscellaneous rules to be drawn from the reported cases upon the subject of the construction of statutes, which do not fall under either of the great divisions of strict or liberal interpretation. Thus, a statute directing the mode of proceeding of a public officer is advisory, and not essential to the validity of the proceedings, unless it be so expressed.*** A statute giving a penalty, implies a prohibition of the act rendered penal, and such act is consequently void.ttt It is

* James v. Dubois, 1 Harr. 285; Opinion of Justices, 22 Pick. 571.

+ The State v. Acuff, 6 Mis. 54.

Jackson v. Collins, 3 Cow. 89; People v. Utica Ins. Co., 15 Johns. 358.

§ State v. Stephenson, 2 Bailey, 334; Jackson v. Gilchrist, 15 Johns. 89. Hale v. Burton, Dudley Geo. 105.

¶ Young v. Martin, 2 Yeates, 312.

** Sewall v. Jones, 9 Pick. 412.

++ The Mayor v. Davis, 6 Watts. & Serg. 269.

U. States v. Wigglesworth, 2 Story, 269.

Sprague v. Birdsall, 2 Cow. 419.

Woodworth v. Paine, Breese, 294.

Melody v. Reab, 4 Mass. 471; Commonwealth v. Knapp, 9 Pick. 496; Lock v. Miller;

3 Stew. & Port. 13.

*** Holland v. Osgood, 8 Verm. 280; The State v. Click, 2 Ala. 26.

ttt Hallett v. Novion, 14 John. 273.

Construction.

a general rule that the word may means must where the legislature means to impose a positive duty, or where the public interests or rights are concerned, and where the public or third persons have a claim de jure that the power designated should be exercised. A long and uninterrupted practice under a statute is good evidence of its construction. Where the construction of a statute is doubtful, an argument from inconvenience will have weight, but not otherwise. Where an old statute has received an early practical construction, which if it were res integra, it might be difficult to maintain, it will be adhered to, especially if great mischief would follow a contrary construction.§ The term person in a statute embraces both natural and artificial persons, unless the language indicates that it was used in a more limited sense.||

We come now to the subject of the repeal of statutes, upon which the law is somewhat involved. Before touching upon this subject, however, it would be well to observe, that if a statute is contrary to plain and obvious principles of common right and reason, it is null and void, as far as calculated to operate against those principles; or if absurd consequences arise out of a statute, it is void pro tanto. Mr. Chitty, in his notes upon Blackstone, takes a different ground, and holds that the statute is not void. But doubtless the later decisions are the law upon this subject.

And with regard to repeal, it is to be first noted, that if a statute repealing another is itself repealed, the first is thereby revived. And again, an older statute must generally give way to a later one where they conflict.** If, however, both can stand, they must be so interpreted. For the law does not favor repeals by implication.tt But if it was clearly the intention of the legislature that the latter statute, though it be not repugnant in all its provisions to the former, should prescribe the only rules which should govern, it repeals the prior one.‡‡

So if a penalty imposed by a former statute is increased, the second statute virtually repeals so much of the former statute as establishes a different penalty. But where the mode of enforcing the penalty is varied, and the penalty is increased, the former statute itself is repealed. So a statute imposing a penalty for the commission of an offence, is repealed by another statute imposing a less penalty for a higher grade of the same offence.||||

If a subsequent statute revises the subject matter of a former one,

*Minor v. Mechanics' Bank, 1 Pet. 64; Ex parte Simonton, 9 Port. 390.

+ McKeer v. Delancy, 5 Cranch, 22.

Putnam v. Longley, 11 Pick. 487, 490.

§ Opinion of the Justices, 3 Pick. 517.

Planters & Merchants' Bank v. Andrews, 8 Port. 404.

Morrison v. Barksdale, Harper, 101.

** Pease v. Whitney, 5 Mass. 380.

++ Loker v. Brookline, 13 Pick. 342, 348; Bowen v. Lease, 5 Hill, 221. Daviess v. Fairbairn, 3 How. 636.

§§ Kinney v. Mallory, 3 Ala. 626; Bowen v. Lease, 5 Hill, 221; Commonwealth v. Kimball, 21 Pick. 373; Leighton v. Walker, 9 N. Hamp. 59.

Smith v. State, 1 Stew. 506.

Construction.

and is evidently intended as a substitute for it, although it contains no express words to that effect, it must operate to repeal the former to the extent to which its provisions are revised and supplied, and the parts omitted are to be considered as annulled.* But a mere change of phraseology in a revision of a statute will not alter the law, unless it evidently appears that such was the intention of the legislature.†

A general law does not operate as a repeal of a special law upon the same subject, passed previous to the general law at the same session. But if passed at a previous session, and the statutes are repugnant, the former is merged in the latter.§

Non-user does not make a statute void; and it has been held that a statute passed in 1700, and recognised in 1799, was not void in 1811 for non-user.||

By judicial construction in some instances the extent and force of the term void when used in statutes, has been limited so as to mean voidable, or to be made void, by some plea or act of the party in whose favor the statutes are set up.T

With regard to the time when a statute takes effect, it is well settled that unless otherwise ordered, it is from the date of its passage. And under this head it need only be added, that it has been held that a clause in a statute repealing a former statute does not take effect until the body of the statute goes into operation.**

In view of the law which prevails in most of the states, that public statutes are taken official notice of by the courts, while private are not, it remains to say a few words upon the distinction between public and private statutes. To constitute a statute a public act, it is not necessary that it should be equally applicable to all parts of the state. It is sufficient if it extends to all persons within the territorial limits described in the statute. So if it contain provisions of a pri-' vate nature, as to incorporate a bank, yet if it also contain provisions for the forfeiture of penalties to the state, or for the punishment of public offences in relation to such bank, it is a public statute.‡‡ It has accordingly been held that the statute incorporating the bank of the United States is a public statute. An act to tax bank stock is a public act. And a statute of a private nature, containing a clause declaring it to be a public act, will be noticed by the courts as a public act.¶¶

The rules of interpretation applicable to private statutes, are the same as those applicable to public or general statutes.***

W. H.

*The Commonwealth v. Cromley, 1 Ashmead, 179; Ellis v. Paige, 1 Pick. 43, 45. + In the matter of Brown, 21 Wend. 316.

t Mc Farland v. State Bank, 4 Pike, 410. Commonwealth v. Hoover, 1 Browne App. 25.

¶ Green v. Kemp, 13 Mass. 515.

** Spaulding v. Alford, 1 Pick. 33.

§ Gage v. Currier, 4 Pick. 399.

Smith v. Saxton, 6 Pick. 483.

tt Pierce v. Kimball, 9 Greenleaf, 54.

Case of Charles Rogers, 2 Greenleaf, 303.

Den v. Helmes, 2 Penn. 1050.

¶¶ The Brookville Ins. Co. v. Records, 5 Blackf., 170. *** Bartlett v. Morris, 9 Port. 266.

§§ Ib.

N. Y. Supreme Court.-In the Matter of John Seaman.

N. Y. Supreme Court.

[Poughkeepsie General Term, January, 1849.]

Before the Honorable WILLIAM T. Mc COUN, SEWARD, BARCULO, and NATHAN B. MORSE, Justices of the Supreme Court of the State of New-York.

IN THE MATTER OF JOHN SEAMAN.

POWER OF SURROGATES' COURTS TO COMMIT FOR A CONTEMPT.

The power to enforce final orders or decrees in a Surrogate's Court is confined to cases where the party is ordered to transfer or hand over specific property in his actual possession or under his control.

Where, however, a final order or decree of a surrogate settles the accounts of a guardian, executor, or administrator, and decrees an indebtedness to a ward, legatee or next of kin, there is no power in the surrogate to commit as for a contempt, by reason of the nonpayment of the indebtedness. The creditor's only recourse is by execution as upon a judgment and that failing he may then take an assignment of the guardian or administrator's bond on file in the surrogate's office.

Informality of commitment pointed out and commented on.

JOHN SEAMAN being imprisoned in the jail of Orange county, upon a precept of commitment issued by the surrogate of that county, applied for and obtained a writ of habeas corpus returnable before the county judge, to which the sheriff made a return setting forth a copy of the precept by which he was arrested and held in custody. The precept recites that whereas, on the 26th of June, 1848, by a certain order made in Orange county Surrogate's Court, before the surrogate of said county, at Goshen, in the matter of the final settlement of the general guardianship of John Seaman, general guardian of the estate of Josiah Mead, a minor, it was ordered that the said John Seaman pay to the said Josiah Mead, who is now of the full age of 21 years, the sum of $427 37, with interest thereon from the 9th of July 1844, and that the said John Seaman be committed to the common jail of the county of Orange, there to remain charged with the contempt mentioned in said order, until he should pay the said sum of $427 37, with interest thereon from the 9th day of July, 1844, and that a warrant issue for that purpose to the sheriff of the county of Orange.

It therefore commanded the sheriff to take the body of the said John Seaman, and him safely and closely keep in his custody in the common jail of the county, until he should pay the $427 37 with interest, &c., or until the said court should make an order to the contrary, or the said John Seaman be discharged by due course of law; and the sheriff is commanded to make and return to the surrogate in his said court, on the first day of July, then next, a certificate under his hand of his doings in the premises, together with the writ. This process must have been issued on the day of the making of the order recited in it, viz.: the 26th June, 1848, inasmuch as the sheriff certifies, that on that day he arrested the John Seaman named in the writ, and has ever since kept him in custody by virtue of it, in the county jail of Orange county.

N. Y. Supreme Court.-In the Matter of John Seaman.

On the hearing of the matter on the return made to the habeas corpus, the county judge remanded the prisoner, whereupon he sued out a certiorari, removing the habeas corpus proceeding into this court.

George F. Betts, for prisoner,

Hasbrouck, contra.

Per Cur., McCOUN, J.-Several questions arise upon the face of the commitment, in regard to the power of surrogates, and the manner in which the surrogate appears to have proceeded in this instance. The order as recited presents something of an anomaly in judicial proceedings. The party is ordered to pay a certain sum of money, and at the same time, without waiting to see whether he will comply or not, it proceeds to adjudge him in contempt, and directs that he be committed to jail, there to remain charged with the contempt, until he shall pay, &c. How could he incur a contempt except by a refusal or neglect to pay? It is very certain he could not, and before proceeding to adjudge him in contempt, the surrogate should have required proof by affidavit, of a demand and refusal. Under the statute in relation to proceedings as for contempts to enforce civil remedies, (2 R. S. 534, sec. 4,) no court of record is authorized to commit for the non-payment of money which it has ordered to be paid, until proof by affidavit is made of the personal demand of such money, and of a refusal to pay it; and the practice of the courts always has been to allow some fifteen or twenty days to elapse after demand before issuing a commitment. So under the statute entitled "Of Surrogates' Courts," where among other powers conferred, is the power to enforce all lawful orders and decrees of the court, by attachment against the persons of those who shall neglect or refuse to comply with such orders or decrees, (2 R. S. 222, sec. 6, sub. 4.) it is necessary to issue the attachment, in order to bring the person before the court to answer for his alleged misconduct in so neglecting or refusing, before he can be lawfully adjudged in contempt and committed to jail. The surrogate in this case, so far as we can judge from the commitment, appears not to have pursued the proper course, even supposing he had authority by law to enforce payment of the money by imprisoning the party,

Besides by the habeas corpus act, it is necessary that the contempt for which a person is committed, should be specially and plainly charged in the commitment. (2 R. S. 567, sec. 40, sub. 3.) It is not so charged in this instance. The commitment only refers to the contempt mentioned in the order, but what that contempt is, don't appear except by inference. The process in that respect is defective, and it is such a defect in matter of substance as entitles the prisoner to a discharge. (2 R. S. 568, sec. 41, sub. 3.)

It is further made a question which we shall now proceed to consider, whether surrogates have power to make decrees for the payment of money on behalf of wards against their guardians-and if so,

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