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$ 656. When it is said, that where the saving is repugnant to the purview of the act, it is void; by the purview of the act is to be understood, the enacting part, or body of the act, in contradistinction to the preamble.(a) Although it is true that the rule above laid down is well establised, it is equally true, that the purview of a statute may be restrained by a saving in the statute, and such saving will be effectual for that purpose in all cases, where it is not repugnant to the body of the act; that is where the saving clause may prevail, and yet not quite overthrow the entire body of the act, or render it completely nugatory ;(6) as in the case of a deed, the language of the grant may include an entire estate, and there may be in the same deed a reservation or exception of part of the thing granted, which will be good; although a reservation of all that was granted would be void, on the ground of repugnancy to the grant. In the former case both may stand, and yet the deed have some effect as a grant, whereas in the latter, both cannot stand without rendering the grant entirely nugatory. The rule itself, as well as the reasons for it, apply with equal force in the construction of a statute as of a deed. The reason for the rule, and the principle upon which it is based in all cases, sheds light upon the question as to whether a saving is void or not, and if kept distinctly in view will enable any one readily to determine questions arising under this rule.

$ 657. We have seen that a saving clause is only an exception of a specific thing out of the general thing mentioned in the statute. The object of a proviso to a statute is, to either except something from the enacting clause, or to qualify or restrain its generality, or to ex

(a) Paynes v. Canner, 3 Bibb, 181
(6) Thornly and Fleetwood v. Duchess of Hamilton, 10 Mod. 115.

clude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.(a) There has been a distinction in some of the books between a saving clause and a proviso in a statute, though the reason of the distinction is not very apparent. It was held by the barons of the exchequer, in the case of the Atterney General v. The Governor and Co. of the Chelsea Water Works,(6) 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. In reference to this distinction Chancellor Kent has said: “But it may be remarked, upon this case of Fitzgibbon, 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."(c)

$ 654. Sometimes it happens, that a statute makes use of a word in one part of it, which is susceptible of two meanings, and in another part of the same statute the same word is used in a definite sense. In such cases, it is a rule of construction that it is to be understood throughout in that sense, unless the object to which it is applied, or the connection in which it stands, re

(a) Minis v. The Uniled States, 15 Peters, 445.
(6) Fitzg. R. 195.
(c) i Kent, 462.

quires it to be differently understood in the two places.(a) But this rule is not to be applied to cases where, from the language of the act, to confine its use to a definite sense, will render any clause, sentence, or word superfluous, void, or insignificant.(6)

$ 659. It sometimes happens that a section is introduced into a statute, which appears a stranger to and unconnected either with the preamble, or to the general purview of the act, in such cases, but little aid is derived in its construction either from the preamble, or purview of the act. The rule of construction in such a case, as laid down in Bacon's Abr. Statute, I., is, that it must take effect according to its obvious meaning, independent of all influence from other parts of the law. And even if it be a part of the same subject, and either enlarges or restrains the expressions used in other parts of the same act, it must be interpreted according to the import of the words used, if nothing can be gathered from such other parts of the law to change the meaning. But if in this latter case general words are used, which import more than seems to have been within the purview of the law, or of other parts of the law, and those expressions can be restrained to others used in the same law, or in any other upon the same subject, they ought to be so restrained. What we have said in this chapter as well as in a previous chapter is all that is deemed necessary as illustrative of the rule in reference to the construction of statutes in pari materia.

(a) Den er dem. James v. Dubois, 1 Har. N. J. R. 293. (6) Ibid. 293.

CHAPTER XV.

OF AFFIRMATIVE AND NEGATIVE STATUTES.

§ 660. Some statutes are, from their being in affirmative terms, called affirmative statutes; others obtain the name of negative statutes, because they are penned in negative terms. It is a maxim of the law, that an affirmative statute does not take away the common law. It is laid down as a rule in the Institutes; if a statute gives a remedy in the affirmative without a negative, expressed or implied, for a matter which was actionable at common law, the party may sue at the common law, as well as upon the statute, for this does not take away the common law remedy.(a) Thus, it has been held, that where a statute authorized the erection of a mill-dam upon one's own land, upon a creek or river which is a public highway, although it might protect the party from indictment for a nusance; if in doing it, he flow his neighbor's land, he is liable to an action, even though the act provides for a summary mode of appraising and paying the damages arising from such a consequence.(6) In the case cited the court held, that if there had been no express provision in the act for the payment of damages, the defendant would have been still liable to pay them; and the only effect of this provision was, to enforce the duty of making compensation by additional sanctions, as the grant or license might be avoided, if the defendant

(a) 2 Inst. 200.
(6) Crittenden v. Wilson, 5 Cow. 165.

should fail to pay the damages in the manner prescribed by the act. The effect of the grant was merely to authorize the defendant to erect a dam, as he might have done if the stream had been his own, without a grant. In that case he would have been responsible in damages for all the injury occasioned by it to others. It was not the intention of the legislature, by making it a condition of the grant, that the defendant should pay the damages which might result to third persons from his dam, to be ascertained in the manner pointed out in the act, to deprive those who might sustain injury of their remedy by action. Their object was to provide a summary remedy for those who might be injured by the dam, by which they might be remunerated more expeditiously and with less expense than by the ordinary course of law. But as there was nothing in the act which either in terms, or by necessary implication, made it compulsory upon those who might be injured to have their damages assessed under the act, or deprive them of their pre-existing common law remedy by action-as the act was not couched in negative terms, the remedy which it provided was merely cumulative, and not exclusive. The court based their decision upon the above rule laid down in the Institutes, which it cites, as the rule applicable to such a case.(a)

§ 661. In another case(b) it was held, that where a new right is introduced by statute, the party complaining of its violation was confined to the statutory remedy, if one be prescribed. But that it would be otherwise where the right existed at common law, and an affirmative statute intervenes, inflicting a new penalty. The court said, if a statute is introductive of new rights

(a) See Beckford v. Hood, 7 T. R. 628.
(6) Lang v. Scott, 1 Blackf. Ind. R. 405.

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