Irish v. Elliot

The court took time to consider. And, at the next term, Mr. Brackenridge, suggesting, that the allegations in the declaration were more unfavourable to the defendants, than the facts of the case were, desired to withdraw the submission, that he might plead to issue to be tried by a jury. This was done; and the cause, after some time, was settled by a reference.

It may not however be improper to add here the opinion which I had drawn up, to be delivered oh the submission. It is as follows:—

The inspector declared, &c.

On this statement, It has been submitted to us to determine, whether 9d. per lb. of deficient weight be recoverable.

The counsel for the plaintiff contended, that the western inspection law enacting, for the inspection of the western counties, the regulations contained in the act intitled “An act to prevent the exportation of bread and flour not merchantable, and for repealing, at a certain time, all the laws heretofore made for that purpose,” does, of course, enact all the regulations contained in the supplement to that act: for all statutes, relating to the same subject, are to be considered as one law. The forfeiture of 9d. per lb. deficient, imposed by the supplement, cannot be laid aside, without adopting the severer forfeiture of the whole cask, imposed by the original law; and the intention of the legislature is to be regarded rather than strict expressions.

The counsel for the defendant contended, that, this being a penal law, its construction will not be extended by implication; for a penalty will not be exacted on a doubtful construction of a law. The intention of the legislature, that will be regarded by the judiciary, is not what they intended to do, and did not; but what they intended in what they really did, collecting their intention from their expressions. From an oversight in the legislature, courts cannot infer an intention to supply the overflight, and proceed themselves to do what the legislature would have done, if they had observed the omission. It would be strange, if what the legislature thought they had done, but did not, were a law; or if courts should take upon them to supply the want of reflection of the legislature and judge or pronounce the law, not from the expressions, but from the thoughts of the legislators. This is a casus omissus, and can be remedied only by a new law. For such a deficiency, there is a penalty imposed by the eastern inspection law, but none by the western. A supplement is, in all respects, a distinct act from the original. Our inspection law refers to a certain act, which appears to have been passed on a certain day, to wit, 5th April, 1781; and extending this act to us does not extend the supplement also.

4 Bac. 646.

Such is the substance of the arguments on both sides.

It cannot be denied, that the rule, “that divers statutes relating to the same thing ought all to be taken into consideration, in construing any one of them,” is a found rule of construction; in like manner as that all the parts of one statute are to be taken into consideration, in the construction of any one part. So, also, of all the parts of a deed; and so of all deeds relating to one transaction. The whole is considered as one whole, one system, one law, one deed. But this is a rule of construction only, and makes them one, only for the purpose of construction or mutual explanation. It does not mean, that referring to one act necessarily refers to all acts on the same subject; or that extending one act to a district, where it did not operate before extends all other acts on the same subject to this district.

Among other notes read by the plaintiff's counsel, from Bacon’s Abridgement, the following seems most, or is rather the only one that seems, to support his opinion. “The 13 El. c. 10, concerning leaves made by spiritual persons, being enlarged by the 14 El. c. 11, although only the former of these statutes be recited in the 18 El. c. 11; it has been holden, that the latter is virtually recited therein.”

1 Ventr. 246.

2 St. L. 3.

2 St. L. 714-5.

It is dangerous to found opinions on abridgments however respectable. On turning to the case of Bayley v. Murin, referred to in this note, the doctrine stated in the abridgment appears to be one of the reasons for a doubt or opinion of only one of the judges, a most respectable one indeed, chief justice Hale, but this opinion was contradicted by the rest of the court. On examining the two statutes of 13 El. c. 10, and 14 El. c. 11, it appears, that the 14 El. is, as in the case cited it is called, but a kind of appendix to the 13 El. a construction or explanation of its extent: and was made on purpose to define, extend, or limit the sense of it and other statutes, and is intitled “An act for the continuation, explanation, perfecting, and enlarging of divers statutes.” The supplement, in the case before us, is an alteration of the original law. And to say, that the law of September, 1791, by referring to the law of April, 1781, referred also to the law of December, 1781, is saying, that it enacts different regulations, from those to which it refers.

No authority therefore has been shewn, to justify an opinion, that extending one statute, of course, extends all its supplements, or all statutes on the same subject. A supplement seems to be a separate law; and to extend or repeal it, it must be specially named. This very supplement, which, it is contended, must be considered as extended with the original act, contains in itself a declaration, that it is a distinct law from the original act; for it provides, that “all fines and penalties, herein mentioned, shall be recovered, and applied, in manner and form, as directed by this act, and the act to which this act is a supplement.” And another supplement to this original act, extending the regulations, fines, penalties, and forfeitures of the original act and its supplements, to the cases provided for in this last supplement, provides, that “all and every the regulations, fines, penalties and forfeitures, in the said recited act, and the several supplements thereto, and by this act, made, imposed, and inflicted on any persons who should, &c. or should or shall offend against the said recited act, or the supplement thereto, or against this act, shall, &c. as if the article was inserted in the said acts, or as if the said regulations, fines, penalties, and forfeitures, were herein repeated.

3 St. L. 156. 1 St. L. 883. 2 St. L. 2.—713.

If the legislature enacting the law of 1791 and referring to the law of April, 1781, referred to the law of December, 1781, they must have referred also to the law of 1789—and, in both these laws, they must have observed the mode of expression used in the laws, when both an acts and its supplement are referred to. And if they turned over the volumes of the acts of assembly, and examined the expressions constantly used in all such references, they would have uniformly sound in all the same recital of act and supplement or amendment; and no where, in my observation, would they have discovered, that the legislature, intending to extend, confirm, or repeal, an original act and supplement or amendment, ever confined its expression to the original law only, but always repeated the titles of all the acts to be extended, confirmed, or repealed.*

If then the legislature which enacted the western inspection law, in referring to the law of April, 1781, did not use similar expressions to those used by all other legislatures, in referring also to any supplement, what are we to conclude from this, but that they did not mean to refer to any supplement? Against this uniformity of stile in all other laws, I see no circumstances sufficiently strong, from which, in the case of a penalty, to infer an intention of the legislature, to extend to the western inspection, the supplements to the law referred to. For us to say, that they intended it, because we may think they ought to have done it, is to make ourselves legislators. And to suffer executive officers, to model or apply to the exercise of their authority, such laws, or parts of laws, as they may think commodious, is too dangerous to be admitted, and is, in fact, making them legislators. If, therefore, the supplement be not ex tended, to the western inspection, the plaintiff’s demand nils. It is better to say, that this case is not provided for, by our inspection law, than to leave inspectors at liberty to pick and choose, out of all the supplements, such parts, as, from their circumstances, they may suppose the legislature intended to apply to us. The law was not made for the benefit of the inspectors. And, if those concerned in the flour trade think the law imperfect, let them apply to the legislature for a new law, and a more complete system.

3 St. L. 157.

3 St. L. 156.

Comm. 88.

In fact our inspection law seems to have been drawn up with very little care. Though in the reference to the original law, the sections providing for covering waggons, shallops, &c. are excepted yet the section inflicting penalties, for the defect of this, is not excepted: and, though the duty is dispensed with, the penalty may be exacted for the neglect of it, with more colour of authority, than for the defeciency which is the ground of this action. Of laws to carelessly penned as little as possible of the meaning ought to be drawn from presumption.

Laws imposing a penalty are sometimes considered as remedial laws. They have been considered as remedial, when the penalty goes to the party grieved. The penalties of these laws are not to applied; and it is the inspector who sues here, not the purchaser or person concerned in the injury, if any injury existed. We know not that there was any fraud, and we cannot intend, that there was. Perhaps the flour was taken and to be delivered by weight, not by the barrel. Perhaps the flour was not to be exported for sale. Elliot and Williams were and are contractors for the army: it might have been for the use of the army, and, on the delivery there, its quality and quantity would be examined. Our inspection law imposes a penalty on any person exporting flour out of the state, from these counties, by means of the river Ohio, before the same be inspected. Suppose an emigrant to Kentucky should take in his boat a quantity of flour from these counties, for the use of his family for the year ensuing; and not calling on the inspector to examine it, should be sued for the penalty; would the law be considered as remedial or penal?

I take the case before, us to be a penal action, on a , in this view I must declare, that a penalty ought never to be exacted from any man omitting to do what he cannot clearly discern to be his duty to do, Were it therefore only doubtful, whether this regulation extended to the western inspection, I should think this doubt alone a strong, a conclusive argument against the plaintiff.

3 St. L. 156.

1 St. L. 883.

2 St. L. 3. 1 St. L. 886.

2 Burr. 747.

The western inspection law directs the same regulations, “except as to the stamp on the plugs, which shall be marked with the letters W. P. as are prescribed by the act of April, 1781.” Now were not the western inspection law carelessly penned, and were it not, in many instances at least, to be considered as a penal law; some presumption might be drawn from this expression, that it was intended to refer also to the supplement of December, 1781. For this expression seems rather to refer to the 5th section of the supplement, than to the corresponding 11th section of the original law.

On this ground also of this being a case on a penal law, I cannot consent to apply to it the authority of a decision, in the case of Williams v. Rougheedge, which has not been cited. For, though that decision shows, that an act, reviving a principal act, may be held to revive, without naming it, an act explanatory of the principal act, yet it was the case of an insolvent debtor in prison; and an equitable confirmation was given to the reviving act, in favour of the prisoner’s liberty. Here we are called on to strain the construction, to aid the recovery of a penalty.

On the whole, therefore, my opinion is for the defendant: and let the legislature provide for the omission, by a new and complete system.

* St. L. 121-3, 131-8, 307-9, 311-2, 323-7, 333, 343, 358-73, 374, 444-9, 504-9, Galloway's ed.—2 St. L. 152, 162-7, 192-4, 221-4, 245-50, 282-7, 347-71, 373-4. 414-8, 493-9, 505-7. M'Kian's ed.