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their political institutions are based upon a fundamental statute emanating from this power. The author has treated the subject objectively in a rigorously scientific and impartial manner; the method he employs is largely historical.

"Modern constiutions are not the systematic work of jurists. They have sometimes been the result of theoretical speculations. We can only judge constitutional system correctly by studying the origin of the fundamental law upon which that system is based, or by tracing the evolution of the customary law to which it conforms. The aim of the book before us is to show the possibilities of such an investigation, beginning with the origin, growth and character of written constitutions, then with royal charters and constitutional compacts divided into the German group and the LatinScandinavian group, lastly, with Democratic Constitutions, viz., the United States of America, France and Switzerland. The two books before us should be found in the hands of every jurist and student of constitutional history."

The unfortunate lack of uniformity in the divorce laws of the different States is a subject on which we have written considerably. The effect of this condition of the States' statutes is two-fold. First, divorce is made easy for the rich, and hard to secure for the poor; and, second, the judgment of the court of the State granting the divorce, loses all force and effect outside of the boundaries of the State.

The historical, philosophical and analytical schools differ greatly in their conception as to how far moral law may influence the judicature of any locality, but, it is certain that public opinion will, in the end, frame legislative enactments in accordance with its ideas.

If similar divorce laws were enacted in every State, and if these statutes contain, first, a requirement that the person seeking a divorce must have a residence of five years, and, second, that the divorced party should not marry within five years, it would seem that proper restrictions were placed upon parties, and that individuals would not in the present light and fickle fashion, seek marriage and again divorce.

The divorce laws of several States have been used as a sort of boom to populate growing

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The recent case of Le Mesurier v. Le Mesurier decided by the Privy Council in England does away with the theory which has existed in England since the decision of Jack v. Jack, of Matrimonial Domicile in Jurisdiction for Divorce. In Jack v. Jack, 24 D. 483 it was well recognized that the domicile of the party was mainly to be looked after in considering the competency of the court to decree divorce.

In that case the husband, a domiciled Scotchman had married a Scotswoman in Scotland, and had been wronged by her committing adultery there. He had gone to America without any idea of returning to Scotland, and the Scotch courts were much inclined to grant the decree, although his wife claimed that her residence was his, which was in America.

The new doctrine of matrimonial domicile was then most fully expounded by the late Lord President Inglis who argued that the true foundation of jurisdiction and divorce must have some actual relation to (1) the wrong to be redressed, (2) the remedy to be applied and (3) the character of the union which it is the effect of the decree to dissolve, and that it was not therefore necessary that the husband should at the date of the action have such a domicile within the territory as would regulate his succession at death. In short, the court held that a man could have a matrimonial domicile separate and apart from any other. The decision of Jack v. Jack, however, was followed in many

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later cases and it has only been the decision of Le Mesurier v. Le Mesurier which has expounded the new doctrine.

The last named decision has been followed in Dombrowizky v. Dombrowizky. These decisions and the evolution of the theory of domicile in England are perhaps mostly instructive because they show that the trend of English decisions is to give more force to the permanent, actual, absolute domicile of the party seeking a divorce.

There should be no statutes allowing a six months' residence to entitle a person to have such a domicile as is necessary to sue for a divorce, and the power of the courts of many States should be greatly lessened and limited. It is also worthy of comment to write as to the status of persons who have been divorced in England, that all prohibitions which could be placed in the statutes, should be enacted to prevent the divorced from again marrying.

1857 and provides that no minister of any church or chapel of the Church of England wherever marriages may be lawfully solemnized, shall be liable to any set penalty or censure for refusing the marriage of any person whose former marriage shall have been dissolved on the ground of his or her adultery or crime, to be solemnized in such church or chapel, or for refusing to proclaim or permit the publication of the bans of marriage of any such person in any such chapel or church.

The later amendment to this bill by Lord Grimthorpe's proposition provides that no marriage of a person found guilty of adultery, shall be solemnized in any church or chapel in the Church of England within five years after such finding.

Can we not learn from our English brethren that a restriction on marriage when one of the parties has been divorced will prevent many of the scandals which now grace the columns of the daily newspapers, some of which openly announce the intention of divorced parties to marry even before any proceeding has been begun for a dissolution of the marriage ties.

A married man living at Port Hadlock with his wife and four children enticed a girl barely sixteen years old to run away to Victoria, B. C., where he joined her. The runaways were discovered and the man arrested. He relied upon the want of jurisdiction of the British court, but after some consideration the judge sentenced

It is a matter of history that in 1857, Mr. Gladstone was the leader of the party who endeavered to defeat the bill which gave to one tribunal the power to grant divorces instead of the cumbersome method which had before been necessary, namely, the common law action enjoined to an ecclesiastical decree and a bill in Parliament. The effect of this legislation was really to gain simplicity in procedure rather than any loosening of the rules of law to enable persons to be divorecd. Several sections were placed in the bill to appease Mr. Gladstone's party. The two which were thought most highly of were sections fifty-seven and fifty-him to the extreme punishment allowed by law. eight which provided (1) that no clergyman shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or shall be liable to any set penalty or censure for solemnizing or refusing to solemnize the marriage of any such person and (2) that if the minister of any church shall refuse to perform the service for persons who, but for such refusal, would be entitled to have it performed in such church, he shall permit any other minister entitled to officiate within the diocese to perform the service in his church.

Lord Halifax's bill now pending in Parliament repeals section fifty-eight of the act of

Commenting upon the law and the facts in the case, the court said:

"You brought the girl here, but the abduction never took place until she landed here and You might you gave her the chance to return. have receded from your wrong intention, but you chose to take her away, and the abduction took place here and the court here has jurisdiction. I fail to observe any redeeming feature. You were living at Port Hadlock with your wife and children, and in one of your letters you said you had to leave there at once, as you were accused of a most horrible crime, and as a fugitive from justice you came to Canada. You also said you were about to get

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a divorce, which was not true. After you left
you wrote letter after letter breathing, not love,
but criminal sensuality, and you induced the
girl to come here to her ruin. You knew her
age and begged her to put on long dresses to
make her look older. Yours is a crime aimed
at by the laws of all nations. The family circle
must be protected from such as you, who are
nothing more than fiends dressed in human
shape. There is no reason that your sentence
should be any less than the full term the law
allows, and you are sentenced to five years in
the penitentiary."

It is true that the crime is one aimed at by
the law of all nations, and the sentence will be
hailed with satisfaction by everybody who re-
cognizes the need of protection for his family
against such villains.

The attending circumstances are important. It drew to the place a large and noisy and boisterous crowd. The nature of the thing itself is important. It was run by a steam engine. The whistle blew every few minutes. The music played, the gallery ran around, the crowd hallooed, etc., until ten o'clock at night. That it was a mere idle amusement, perfectly legitimate in a proper place or at a proper time, is not wholly unimportant. That which calls together a disorderly crowd in a public place was held to be a public nuisance in King v. Moore, 3 Barn. & Ald. 184. The making of loud music, with instruments or otherwise, in the night time, to the disturbance of a neighborhood, was held to be a public nuisance in Rex v. Higginson, 2 Burrows, 1233; Com. v. Oaks, 113 Mass. 8; Com. v. Smith, 6 Cush. 80. Those who participated did not regard it as a nuisance. Some of the witnesses attended. Some permitted their children to attend. They thought it a harmless amusement for the children. It did them good, rather than harm, and the proprietor was careful, polite, and kept good order. This, I take for granted, is true, at a proper time and in a proper place. Other witnesses lived at a distance. They, of course, were not annoyed, and they thought it was not a nuisance to those who lived near by. Four witnesses who lived close by say that it was a nuisance, disturbed and annoyed them at their homes, and prevented or interrupted their sleep. One witness, who lives on the same street, five lots below, says it was a considerable annoyance, and, to some extent, kept him awake. Quite a number of witnesses who live or do business near by were not annoyed by it, and do not regard it as a nuisance. From all this, and from the general character of such machines in operation, with their usual accompaniments, it is not hard for one to form a pretty accurate opinion on the question involved; that is, that when kept up day and night, for days together, in such a place, it was a decided nuisance to some people, of ordinary sensibility, who lived or had their place of sleeping adjoining or close to the vacant lot, while to those who lived at a distance, those who participated, and some of those who lived close to the place, it was not a nuisance - did not annoy them to

In line with the piano case decided in New York city is the "merry-go-round" case of West Virginia, in Town v. Davis, decided in the Supreme Court of Appeals of West Virginia, 21 S. E. R., 906, it was held that a merry-goround," run by a steam engine, the whistle of which blew every few minutes, accompanied by a band. and attended by a large, noisy and boisterous crowd till after ten at night, disturbing some of the people living near it, is such a nuisance as a town council has power to abate. The court said, in part: "Many of the questions raised by the plaintiff in error have al'ready been discussed and considered. Was the riding gallery a nuisance at that particular place and time? is the only one that remains. That depends on the place, the time, the circumstances, the manner in which it was operated and the effect it produced. Did the noise and crowd, and other effects of this riding gallery, invade any public or private right? Did it materially interfere with and impair the ordinary physical comfort of any one of normal sensibility and ordinary mode of living, in his home or place of business? The place has much to do with it. It seems to have been on a vacant lot in a populous part of the town, with at least four dwellings near by. The time is important. It was operated up to ten, and half after ten in the night, tending to prevent and disturb sleep, and had been kept up continuously for six days. I any material extent."

"STATUTORY CONSTRUCTION."

A paper read by the Hon. F. S. Monnett, of Bucyrus, before the Ohio State Association.

much as whole

have been written on

must inquire whether it is a Federal statute, or whether it is purely a State statute, for the rule of interpretation, as seen hereafter, varies according to the class referred to. Another division

IN asim subject by le treet is baesors and critical utes that is necessary to be understood before stat

expositors of the law, it is difficult to furnish you anything new; in fact, on this subject, I anticipate you would rather have something not new. But as long as Legislatures meet annually, and personal and proprietary rights are affected by their acts, just so long will this branch of the law be one of great and vast importance to the profession. The fundamental division of our government, under its various constitutions, both national and State, into three distinct heads: legislative, judicial and executive, while apparently simple, has grown to be a subject of constant litigation to determine the boundaries of each governmental function and to prevent the one from usurping or intruding upon the other. No more startling illustration of the difficulties and the intricacies involved, in observing these distinctions, is there than that of the effort of the highest tribunal of the land to construe the income tax. Here we observe a court of last resort, and of the choicest scholars, dividing at one time equally upon great and vital questions of construction of the fundamental law of the land, and subdividing many times on minor questions in the same decision, and finally reversing themselves and revising their former opinion within a few weeks after their original decision. If, thus the doctors of the law do disagree, we disciples of the law may go free. So that it may not always be the mark of an inefficient prosecuting attorney if he cannot off-hand, on the street corner, give an infallible construction to some county officer of a new law involving the rights of person or property, for the rules now laid down by adjudication and precedent have grown so numerous that to apply any considerable number to a given case before finally deciding it, is an arduous task in itself.

To analyze this subject and bring it within the limit assigned the speaker, we will analyze the subject itself.

Statute law has been defined as the will of the Legislature of a State, or the will of the nation expressed by the Legislature, expounded by the courts of justice. The Legislature, as the representative of the nation, expresses the national will by means of statutes, which with the exposition by the court, form the body of the statute law. (Willberforce Statute Law, p. 8.)

Bouvier defines it as the written will of the Legislature, solemnly expressed according to the forms necessary to constitute it the law of the State. Before undertaking to interpret a statute, and apply the ordinary rule of interpretation, you

plying the rules of interpretation is, first, whether a statute is simply declaratory, which does not profess to make any alteration in the existing law, but merely to declare or explain what it is; or, second, remedial, meaning those statutes which are made to supply such defects, and to abridge such superfluities in the common law as arise either from the general imperfection of all human laws, whether from the change of time and circumstances, or from the mistakes and unadvised determination of unlearned judges, or from other cause. This modification being effected either by enlarging the common laws where it is too narrow or restraining it where it is too lax. The English Parliament occasioned a division of remedial statutes into two sub-heads, commonly called enlarging and restraining statutes. Such is Wharton's definition, and substantially Blackstone's, of remedial statutes.

46

The other branch of my subject perhaps needs a brief definition. What is "interpretation," and what construction" of statutes? Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey; and of enabling others to do the While construction, on the other hand, is the drawing of conclusions respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text.

same.

Interpretation only takes place if a text conveys some meaning or other. But construction is resorted to when in comparing two different writings of the same individual, or two different enactiuents of the same legislative body, there is a contradiction found where there was evidently no intention of such contradiction, or where it happens part of the When this is the case, statute contradicts the rest. and the nature of the document or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction. I have used Judge Cooley's distinctions as cited in his Constitutional Limitations, 49-50. In common use, however, the word "construction." is generally employed in the law in a sense embracing all that is probably covered by the terms "construction" and "interpretation," and in the broader sense the words "construction" and "interpretation" are used as synonymous and interchangeable.

A lawyer in construing a statute, or in looking for precedents and judicial construction of statutes, must bear in mind the difference between the

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The Constitution of the United States consists in a grant of enumerated powers; hence, in interpreting it and the statutes under it, the courts presume the existence of no power not expressly or impliedly conferred. On the other hand, a State constitution proceeds on the idea that all legislative functions are in the Legislature, and hence the general assembly of the State may exercise all the powers which are properly legislative, and which are not taken away by its own or the Federal Constitution. Congress can pass no laws but those which the constitution authorizes, either expressly or by clear implication, while the State assembly has jurisdiction of all subjects on which its legislation is not prohibited. The powers not granted to the Union to legislate are withheld, but the State retains every attribute of sovereignty which is not taken away. (21 Penn. St. 147, 16; 17 Id. 118-119; 52 Id. 474; Cooley C. L. 10–11.)

The rules of construction of statutes are the same in courts of law and equity. There is always a legal presumption that the Legislature intends nothing unconstitutional, and if an act is susceptible of two constructions, that one must be adopted which is constitutional. But an unconstitutional consequence cannot and must not be avoided by forcing upon the language of the act a meaning which upon a fair test is repugnant to its terms. (24 Cal. 518; 12 Iowa, 1; 21 Id. 221.)

It is an elementary rule of construction that words and phrases of an act are used in their popular and common conception, unless the subject matter or context indicate that they are used in a technical sense. If an act is passed with reference to a particular trade or business, then the words have the meaning as defined by that trade or business, even though the meaning may differ from the common or ordinary meaning. If the language is clear and admits of but one meaning, there is no room for construction. It is not allowable to interpret that which has no need of interpretation. In such a case any departure from the language used would be an unjustifiable assumption of legislative powers. (48 Fed. Rep. 293; 6 Wall. [U. S.] 395; 5 Wheat. 95; 79 Am. Dig. 350.)

And where the language is susceptible of but one meaning, it must receive that meaning, although such construction lead to results that are absurd and mischievous. Courts are not to tamper with the clear and unequivocal meaning of words used, although the consequences may not be such as were contemplated by the Legislature. There can be no

departure from the plain meaning of a statute on the ground of its unwisdom or public policies. (Sedg. on State on Constitutional Law, 231; Cooley, 197.)

Lord Blackburn said no court is entitled to depart from the intention of the Legislature as appearing from the words of the act because it is thought unreasonable. Chief Justice Payton, of Mississippi, laid down the rule that courts have no other duty to perform than to execute the legislative will without any regard to their own views as to the wisdom or justice of the particular enactmeut. It is also a universal principle of construction that courts must find the intent of the Legislature in the statute itself. Unless some ground can be found in a statute for restraining or enlarging the meaning of its general words, they must receive a general construction, and the court cannot arbitrarily subtract therefrom, nor add thereto. There are some apparent exceptions to this broad rule. No limitation must be inferred which will defeat the object of the law. Thus, where two hundred thousand dollars were appropriated for buildings, which must cost three times that amount, it was no limitation as to the expenditures.

Conjunctive sentences describing different branches of the same offense will be construed as conjective or disjunctive, as the object and sense of the law must distinctly require. It is, therefore, only in cases where the words of the statute are capable of two meanings, or where, by giving them their literal interpretation the statute will be inconsistent or ambiguous, that courts have a right to resort to the secondary rules of construction to aid in determining the real intentions of the Legislature. (7 N. Y. 97; 11 Id. 593; 10 Pett. [U. S.] 524.)

Language is rarely so free from ambiguity as to be incapable of being used in more than one sense, and to adhere rigidly to its literal and primary meaning would be to miss its real meaning in many instances. It is observed in Blackstone that if a literal meaning had been given to the laws forbidding a layman to lay hands on a priest, and punish all who drew blood on the streets, the layman who wounded a priest with a weapon would not have fallen within the prohibition, and the surgeon who had bled a person on the street to save his life would have been liable to punishment.

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