saving clauses and provisos. The effect of an exception, which "is part of the enacting clause, and is of general application,"" is simply to restrict, from application to the matters excepted, the general language of the section or statute, which, without the exception, would have included the same." It is clear that its effect must reach, and control the construction of, the general language of the enactment, preceding or following, so far as its applicability extends.]

A difference, indeed, has been said to exist in this respect between the effect of a saving clause or exception and a proviso in a statute. It is said by Lord Coke that when the enactment and the saving clause are repugnant-as where a statute vests a manor in the king saving the rights of all persons, or vests in him the manor of A. saving the rights of A.the saving clause is to be rejected, because otherwise the enactment would have been made in vain (a). One authority which he cites for this proposition is the case of the reversal of the Duke of Norfolk's attainder, by an Act of Mary. That Act declared that the earlier Statute of 38 Henry VIII., which had attainted the Duke, was no Act, but utterly void, providing, however, that this reversal should not take from the grantees of Henry VIII. or Edward VI. any lands of the Duke which those kings had granted to them; and this provision was held inoperative to save the rights of the grantees. But this resulted, it is said, not because the saving clause was repugnant to the enacting part, but because the latter, in declaring the attainder void, in effect

11 Wilb., p. 304.

12 See Ibid.; Bish., Wr. L., § 58; Sedgw., p. 50; Potter's Dwarris, p. 119; Co. Litt. 47a; Shep. Touchst. 78. It follows, that, in an action based on the statute, the pleadings must negative an exception contained in the enacting clause, as otherwise it cannot be seen that the general language of the statute embraces the particular Case: sce authorities just referred to and cases cited by them. obvious that a proviso or saving clause may be engrafted upon the enacting clause as an exception by words of reference. Verba relata

It is

hoc maxime operantur per referentiam, ut in eis inesse videntur. Thus a reservation in a general clause of an act of Parliament, in the words " 'except as hereinafter mentioned," was held to contain the exception made in a subsequent clause, as if incorporated in the general one; so that plaintiff's declaration must state the reservation and exception: Vavasour v. Ormrod, 6 B. & C. 430; 13 Engl. C. L. R. 227, per Lord Tenterden. (a) Alton Wood's Case, 1 Rep. 47. See Yarmouth v. Simmons, 10 Ch. D. 518. [See also, Bish. Wr. L., § 65.]

established also that the lands of the Duke had never vested in the Crown; that none, consequently, had ever passed to the grantees; and that there was thus no interest to be saved on which the clause could operate (a). [So a saving clause keeping in effect all acts regulating fees, etc., of officers was held not to apply to one taking away fees entirely."]

The illustrations given by Coke are cases of conveyance of land; and the rule as regards the construction of repugnant passages in a conveyance by deed has always been that' the earlier of them prevails (b). But it may be questioned whether there is any solid ground for this distinction between a saving clause and a proviso in a statute. ["There does not appear to be any real distinction between a saving clause and a proviso. Each of them is . . . something engrafted on a preceding enactment."" Each is merely an exception of a special thing out of the general things mentioned' in the statute." Each is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in the case provided." The office of each is to except some particular case from a general principle where from peculiar circumstances attending the case there would be some hardship if it were not excepted;" to qualify, restrain, or otherwise modify the general language of an enacting clause, or to exclude some possible ground of misinterpretation that might exist if cases which the Legislature did not mean to include, were brought within the statute."" And as to a proviso, it has been said that its function is that of limiting the language of the law-maker, not of enlarging or

(a) Plowd. 565; see Savings Institution v. Makin, 23 Maine, 370. 13 Webb v. Baird, 6 Ind. 13.

(b) Co. Litt. 112; Shep. Touchst. 81, Hard. 94; Furnivall v. Coombes, 5 M. & Gr. 736.

14 Quoted from Wilb., at p. 301. 15 Cit. R. v. Taunton, St. James, 9 B. & C. at p. 836, per Bayley, J. 16 Cit. Halliswell v. Corp. of Bridgewater, 2 Anderson, at p.

192.

17 Cit. Voorhees v. Bank of U. S., 10 Pet. 449, at p. 471.

18 Cit. Huidekoper's Lessee v. Burrus, 1 Wash. at p. 119.

19 Cit. Wayman v. Southard, 10 Wheat. at p. 30; Minis v. U. S., 15 Pet. at p. 445. And see Sav. B'k v. U. S., 19 Wall. 227; Boon v. Juliet, 2 Ill. 258; Ihmsen v. Nav. Co., 32 Pa. St. 153, 157; Sedgw., at p. 49. But see Bish., Wr. L., $$ 59, 65.

extending the act or section of which it is a part," and its effect that of negativing an authority granted beyond its prescribed and clearly defined limits."

$ 185. [It would seem logically to follow from this view, that, where the proviso or saving clause exceeds that function,-viz., that of creating an exception of some special thing from general language, or excluding some possible ground of misapprehension, it must fail to be of any validity. Accordingly, it has been held that a proviso, as well as a saving clause, which is repugnant to the enacting clause or purview" is to be held void." On the other hand it is maintained, that] when the proviso appended to the enacting part is repugnant to it, it unquestionably repeals the enacting part (a). The later of two passages in a statute, being the expression of the later intention, should prevail over the earlier; as it unquestionably would, if it were embodied in a separate Act." [But it has been forcibly pointed out, by an eminent writer upon this subject," that since the several parts of a statute are enacted simultaneously, and so appear by the legislative records, there is, in reason, no room for the presumption upon which this rule professes to be based; and that the rule now ought to be that the location of a clause ought not to have the importance attached to it which it formerly had; so that an irreconcilable conflict between two clauses "may vitiate the whole, or the part to which the clauses relate, or the one or the other may give way according to the nature of the

20 Re Webb, 24 How. Pr. (N. Y.) 247.

21 Comm'rs of Kensington v. Keith, 2 Pa. St. 218.

"What comes within the “purview of a statute, means the enacting part, or body, of the same, as distinguished from the preamble, saving clause and proviso:" The San Pedro, 2 Wheat. 132; Sedgw. p. 45.

23 See Mason v. Boom Co., 3 Wall. Jr. 252; Dugan v. Bridge Co., 27 Pa. St. 303, 309; Exp. Mayor's Ct., 4 Clark (Pa.) 315; 1 Kent.

9927

case. And "the true principle undoubtedly is, that the sound interpretation and meaning of a statute, on a view of the enacting clause and proviso, taken and construed together, is to prevail. If the principal object of the act can be accomplished, and stand under the restriction of the proviso, the same is not to be held void for repugnancy.' Nor, of course, if a reasonable operation can be given to the proviso consistent with the principal object of the act as gathered from its purview, can there be any question of a repeal of the latter by the former; and in construing statutes, the terms of a proviso may be limited by the general scope of the enacting clause, to avoid repugnancy." Thus, a proviso may have the effect of suspending, for a time, the operation of a statute and preserving in force another which would be repealed by it immediately; as, where an act, declared to be in effect from the date of its passage, changed the time for holding a certain court in a certain district, but contained a proviso that the first term should be held in a particular county, which, under certain other provisions of the act, could not be done until six months after the passage of the act, it was held that the previously existing law was thereby preserved in force until such term could be held in the county designated."

186. Construction of Provisos, etc.-[From a consideration of the office and function of a proviso, it would seem to follow that it can have no existence, separate and apart from the provision which it is designed to limit. "If it was not intended to restrain the general clause, it was a nullity."" Upon the repeal of the act, it falls, and does not continue in force as an independent enactment." Where it follows and restricts an enacting clause general in its scope and language,

26 Ibid.

27 Folmer's App., 87 Pa. St. 133, 137; 1 Kent, Comm. *463, note b. And see Renner v. Bennett, 21 Ohio St. 431.

28 Treas'r of Vermont v. Clark, 19 Vt. 129. And see Sav. Institution v. Makin, 23 Me. 360.

29 Graves v. State, 6 Tex. App. 228. And see Clarke v. Rochester, 24 Barb. (N. Y.) 446, for similar

construction of an act amending the charter of a city, but providing that certain sections should not take effect until approved by the corporation.

30 Ihmsen v. Nav. Co., 32 Pa. St. 153, 157. But see Bish., Wr. L., § 65.

31 Church v. Stadler, 16 Ind.

463.

it is to be strictly construed and limited to the objects fairly within its terms." Consequently, an exception, from the general provisions of an act exempting property from execution, of cases of claims for wages of "laborers or servants," would not include those of persons occupying the position of book-keeper, or the like." Nor would an exception from the benefits of the statute of limitations of notes, bills, or other evidences of debt issued by any bank or other moneyed corporation, cover notes of a railroad company authorized by law to be circulated as money." Moreover, a proviso is always to be construed with reference to the immediately preceding parts of the clause to which it is attached" and limits only the passage to which it is appended, and not the whole section or act," or, at least, only the section with which it is incorporated." Thus, where a section of an act ended with a proviso that no debtor should be imprisoned on any process for more than twelve months for any debt incurred before the filing of his petition, in case a final order for protection from process was refused, it was held that this did not refer to all cases where the final order was refused, but only to such as were suggested in the preceding part of the section ;" and where the third section of an act gave a court stenographer a compensation of $10 per day spent in court taking notes, with a proviso, that the whole compensation, in counties of a certain number of inhabitants, should not exceed $1200 per annum, and the fourth section required him to write out the notes in long hand, when ordered by the court to do so, at a certain

32 U. S. v. Dickson, 15 Pet. 141, 165; Epps v. Epps, 17 Ill. 196; Roberts v. Yarboro, 41 Tex. 449. But it is said, that, in a criminal statute, an exception or proviso will be liberally construed in favor of the defendant: see Bish., Wr. L.. §§ 226, 227, 229; and he need only bring himself within its letter, to be entitled to its benefit, regardless of its intent: ib. § 229. so, provisos and saving clauses protecting acts done under a statute repealed are to be liberally construed: Foster v. Pritchard, 2 H. & N. 151; 40 E. L. & Eq. R. 446.

And

And a clause saving rights existing at the passage of an act will protect rights existing at the time of its going into effect: Rogers v. Vass, 6 Iowa, 405.

33 Epps v. Epps, supra. Comp. ante, 99.

34 Butts v. R. R. Co., 63 Miss. 462.

35 Wilb., p. 302, cit. Exp. Partington, 6 Q. B. 649, at p. 653.

36 Ibid.; Spring v. Collector, 78 Ill. 101.

37 Lehigh Co. v. Mey., 102 Pa. St. 479.

38 Exp. Partington, supra.