CHAPTER VIII.

THE CONSTRUCTION AND APPLICATION OF STATUTES IN PARTICULAR CASES.

Statutes delegating public authority-Revenue laws-Penal Laws-Laws as affecting the rights of the government-Effect of statutes on contracts in violation of them-Cumulative remedies and penalties-Retroactive effect of laws-Waiver-Rule that the last statute in point of time prevailsComputation of time in statutes-Subject matter-General words-Misdescription and surplusage-Remoteness of effect-Statutes against wagers-Corporations-The interpretation and proof of foreign lawsRevision of statutes-State-laws, how construed in the courts of the United States-Interpretation of particular words-Miscellaneous cases-Grants or Patents.

HAVING in the previous chapters considered the general principles of interpretation applicable to statutory law, I now proceed, for the more complete understanding of the subject, to examine the construction and application of statutes in particular cases. This will lead me, perhaps at the risk of a repetition of matters already somewhat discussed under the head of the incidents and attributes of statutes, to consider certain classes of enactments, the application of certain general rules or maxims of our law to this special branch of it, to speak of certain arbitrary rules of interpretation which have been adopted, and finally to examine the sense in which particular words are received.

Statutes delegating authority to public officers.-We have already* called attention to the subject of public

* Ante, pp. 102, 103.

officers created by statute; and although the general disposition of the judiciary seems to be to treat such agents with liberal confidence, so long as they appear to be acting in good faith, with due discretion, and within the limits of their conceded powers, and although in the exercise of mere discretionary authority, the courts are unwilling to interfere,-yet where public officers overstep the bounds of their authority, and the courts are appealed to as matter of strict right, the actions of these agents are vigilantly watched, and. their infringements of private right unhesitatingly repressed. This doctrine we have already partially considered under the heads of summary judicial and administrative proceedings.*

So where a statute of the State of Illinois authorized certain commissioners to borrow money and issue bonds, but the stock or bonds of the State were in no case to be sold for less than their par value,-it appearing that the securities had been sold for less than par, the sale was held to be void, and an injunction against the purchaser ordered.+ So in Michigan, where a statute authorized the agent of the State-prison to let out convicts, and required him to give notice in a public newspaper for sealed proposals for letting the convicts, it was held that the statute must be strictly pursued; and a contract made without the statutory notice was adjudged void. So again, where county commissioners were authorized to loan money on mortgage, and upon nonpayment the commissioners were directed by statute to advertise for sale in three places, it was held that a

* Ante, p. 360.

The State of Illinois vs. Delafield, 8 Paige, 527. See this case for a discussion of the meaning of the word par, and of the subject of exchange. Agent of State-Prison vs. Lathrop, 1 Michigan, 438.

compliance with the statute was indispensable; and the directions of the act having been neglected the sale was held void.*

In cases of authority of this kind, where personal trust or confidence is reposed in the agent-where his discretion is to be exercised-the authority is purely personal, and cannot be delegated. Thus, where authority was conferred upon canal commissioners to enter upon lands, &c., it was held that the power could only be exercised by them in person, or. by their express direction, and that an engineer, or other sub-agent could not exercise the power without the express directions of the commissioners. "It is of the greatest public importance," says Mr. Senator Verplanck, "to establish the general rule of agency, that 'delegated authority cannot be delegated again without special power so to do,' as governing the official powers, acts, and contracts of our State officers."+

Where a public body or officer has been clothed by statute with power to do and act concerning the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, even though the phraseology of the statute be permissive only; and

* Denning vs. Smith, 3 J. C. R. 332; Nixon vs. Hyserott, 5 J. R. 58. In regard to these questions of the power and jurisdiction of public officers, we may here notice the rule that process regular on its face, and apparently within the jurisdiction of the court or officer issuing it, is a complete justification to the ministerial officer by whom it is executed, though in fact the court or officer had no jurisdiction. So it has been decided in regard to an execution, regular on its face, issued on a justice's judgment in a case where the justice had no jurisdiction; Savacool va Boughton, 5 Wend. 170; and also in regard to a school-district taxwarrant regular on its face, though the district meeting at which the tax was voted, was illegal; Abbott vs. Yost, 2 Denio, 86.

+ Lyon vs. Jerome, 26 Wend., 485, 496.

if the duty is not performed, an action will lie. So, where the corporation of the city of New York were empowered to cause sewers to be made in that city, and to cleanse the same, it was held that it was their duty to keep them clean, and that an action would lie for negligence in relation thereto.* But in order to succeed in such an action, it must be clear that a duty is imposed by law. So, where in New York the officers and agents of a city corporation assumed to build a bridge, under the authority of a statute not constitutionally passed for want of the required legislative majority, and the bridge fell by reason of its negligent construction, the corporation was held not to be liable.+

In regard to the number requisite to constitute a quorum of the members of a public body, or the number requisite to do business, it has long been settled that, where a statute constitutes a board of commissioners or other officers to decide any matter, as to open books, to receive subscriptions, and distribüte the stock of a railroad company, but makes no provision that a majority shall constitute a quorum; all must be present to hear and consult, though a majority may then decide.

* The Mayor of N. Y. vs. Furze, 3 Hill, 612; Henley vs. Mayor et al. of Lyme Regis, 5 Bing. 91, 3 Barn. & Adol. 77; 1 Bing. N. C. 222, S. C. in error.

The Mayor, &c. of Albany vs. Cunliff, 2 Coms. 165. It must, however, be admitted that in this case it is not easy to ascertain from the opinions of the different members of the court, what was the precise point which they intended to decide. I give the substance of the marginal note. See also People vs. Cooper, 6 Hill, 516.

Withnell vs. Gartham, 6 T. R. 388. Grindley et al. vs. Barker et al. 1 B. and P. 229; Ex parte Rogers, 7 Cow. 526. Crocker vs. Crane, 21

Revenue Laws.-We have already referred* to the language which has been held in regard to laws passed for the collection of revenue, with reference to the principles of strict and liberal construction. We have here to consider the general principles of interpretation which are to be applied to them. The Supreme Court of the United States has said that "laws imposing duties on the importation of goods, are intended for practical use and application, by men engaged in commerce. Merchants are not supposed to be men of science, naturalists, geologists or botanists; and it is a settled rule in the interpretation of statutes of this description, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used."+

Wend. 211. Babcock vs. Lamb, 1 Cowen, 238. In New York the Revised Statutes provide, "Whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or officers so entrusted or empowered, unless special provision is otherwise made." 2 R. S. part iii. chap. viii. title 17, § 27, vol. ii. p. 555.

In New York the act of 1848, creating the office of Auditor of the Canal Department, conferred on him no power to look behind a draft drawn by one of the canal commissioners, and adjudge that the commissioner was without the authority to make it. His powers and duties are strictly of a ministerial character. People vs. Schoonmaker, 19 Barb. 657.

* Ante, p. 834.

Two Hundred Chests of Tea, 9 Wheat. 480, 438. Elliott vs. Swartwout, 10 Peters, 137; see this case, as to the distinction between woolen goods and worsted goods.

"Public policy, national purposes, and the regular operations of government, require that the revenue system should be faithfully observed and strictly executed," says Mr. J. Chase, in Priestman vs. The United States, 4 Dallas, 28, 34.