(dissenting.) Under the statutes of this state, a landlord has the right to dispossess a tenant, when he is guilty of an unlawful detainer, by bringing an action against him for the recovery of the land demised. What is an unlawful detainer? The statute in force at the commencement of this action, so far as it is applicable to this case, is as follows: “When any person shall wilfully and with force hold over any lands, tenements or other possessions after the determination of the time for which they were demised or let to him, * * * or shall fail or refuse to pay the rent therefor when due, and after demand made in writing for the delivery of the possession thereof, by the person having the right to such possession, his agent or attorney, shall refuse to quit such possession, such person shall be deemed guilty of an unlawful detainer.” Mansfield’s Digest, § 3348.
The court, in its opinion in this case, assumes that this statute needs interpretation, and, construing it, says: “Whenever the intention of the makers of a statute can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contrary to the letter of the statute;” and quotes approvingly from Lieber’s Hermeneutics, 103, as follows: “There are considerations which ought to induce us to abandon interpretation, or, in other words, to sacrifice the direct meaning of a text to considerations still weightier; especially not to slaughter justice, the sovereign object of laws, for the law itself, the means of obtaining it.” The case - of the sepoy, in which the letter of the order of the Governor General of India abolishing flogging in the native army was “slaughtered,” and the unfortunate sepoy was sentenced to be corporeally punished, when according to the letter of the order he was not subject to the punishment imposed upon him, is cited to illustrate the wisdom of the quotation. Comments on the illustration are unnecessary.
The rule for interpreting statutes is not correctly stated in the opinion of the court. In the interpretation of statutes, “the legislature must be understood to mean what it has plainly expressed, and this excludes construction.” “It has,”-says Mr. Endlieh in his work on the “Intei’pretation of Statutes,” “been distinctly stated, from early times down to the present day, that judges are not to mould the language of statutes in order to meet an alleged convenience or an alleged equity; are not to be influenced by any notions of hardships, or of what in their view is right and reasonable, or is prejudicial to society; are not to alter clear words, though the legislature may not have contemplated the consequences of using them; are not to tamper with words for the purpose of giving them a construction which is supposed to be more consonant with justice than their ordinary meaning. * * * Their duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words. * * * The business of the interpreter is not to improve the statute; it is to expound it. Whilst he is to seek for the intention of the legislature, that intention is not to be ascertained at the expense of the clear meaning of the words. The question for him is, not what the legislature meant, but what its language means. * * * It is clear that, to give it a construction contrary to, or different from, that which the words import or can possibly import, is not to interpret the law, but to make it; and judges are to remember that their office is jus dicere, not jus dare. Every departure from the clear language of the statute is, in effect, an assumption of legislative power by the court.” Endlich on Interpretation of Statutes, §§ 4, 7, 8; Wilson v. Thompson, 56 Ark. 110; Railway Company v. B’Shears, 59 Ark. 243; Memphis & Little Rock R. Co. v. Adams, 46 Ark. 159; Collins v. Karatopsky, 36 Ark. 330.
In Reynolds v. Holland, 35 Ark. 59, this court said: “The rule to be applied in this view is: First. That the intention is to be sought in the whole of the act taken together, and in other acts in pari materia. If the language be plain, unambiguous, and uncontrolled by other parts of the act, or other acts or laws upon the same subject, the courts cannot give it a different meaning to subserve a public policy, or to maintain its constitutional validity. The question for the courts is not what would be wise, politic and just, but what did the legislature really mean to direct. This narrow circle embraces and circumscribes the whole ambit of the court, although within that it may move very freely in catching the intention. It may disregard the literal meaning of the words, when it is obvious from the act itself that the use of the word has been a clerical error, or that the legislature intended it in a sense different from its common meaning.”
In construing the statute in question, this court holds, in its opinion delivered in this case, that a tender of payment of the rent due (according to the opinion of two of the judges, within a reasonable time after the demand for possession required by the statute, and, according to the opinion of another, at any time before the commencement of an action, of unlawful detainer for the possession of the demised premises) prevents the holding of the tenant from becoming unlawful, and deprives the landlord of Ms right of action. In so holding the court converts the demand that the statute provides shall be made for possession into a demand for rent. How did it reach this conclusion? In arriving at it, it says: “While the statute names no period of time to elapse after the service of notice to vacate, to be allowed the tenant, yet the question remains, whether it was intended that the notice was to serve as an actual and immediate forfeiture of the lease the instant it was served, or whether it was given in ord^r to give him a reasonable time in which to pay or to vacate, and as a notification that the forfeiture would be claimed. * * * If the object of the legislature was to declare that all rights were forfeited by nonpayment, it seems reasonable to suppose that they would have given the lessor the right to immediate eviction [which they did do]. What object the service of notice to quit could have, if he had this right, it is hard to perceive. To hold that the mere service of the notice gave this right is to attribute more potency to the serving of a paper than to the failure of payment. The notice could not have been to apprise the lessee that rent was due, because he was bound to'know this from his contract. The remedy is not a summary one. Grow v. Morris, 15 Ga. 303. The conclusion is irresistible that, in requiring notice, it must have been for some purpose, and this purpose must have been to give the tenant time to fulfill his contract before suit would be brought.”
The conclusion reached is in direct conflict with the statute, and is based upon premises that are not true. The statute does not provide that any notice shall be given the tenant. It provides that a tenant, in eases like this, who (1) shall fail or refuse to pay rent for the land demised to him when due, and (2) after demand made in writing for the possession thereof by the landlord shall refuse to quit such possession, shall be deemed guilty of an unlawful detainer. -In that event what is the remedy provided by the statutes for the landlord? An action of unlawful detainer for the recovery of the land demised. What is the relief? A judgment 'for possession (Mansfield’s Digest, §§ 3351, 3361 and 3362). Upon the failure or refusal to pay the rent when due the tenant forfeits the right to the possession, and the landlord becomes entitled to it. This is the reason he is authorized by the statute to demand it. He would have no right to do so, if he was not entitled to it. Having this right, the statutes provide that he may demand it, and, in the event the tenant refuses to deliver it, sue for and recover it in an action of unlawful detainer. This shows clearly that the object of the statutes is not to enforce the payment of the rent, but the demand for possession.
The rent in this case was due on a specified day, and no demand for it, or notice, was necessary, or required by the statute. The tenant was informed by his contract when it would and did become payable. Hence the statute did not provide that any demand for rent shall be made, or notice that it is due shall be given; and it is not necessary in any case, unless made so by the terms of the contract of the landlord and tenant, as where the rent is made payable on demand.
In Minnesota a statute provides: “When any person holds over any lands or tenements * * * after the termination of the time for which they are demised or let to him, * * * or after any rent becomes due, according to the terms of such lease or agreement, * * * the party entitled to possession may make, complaint thereof to any justice of the peace of the county, and the justice shall proceed to hear, try and determine the same,” etc.; and further provides: “If, upon the trial of any complaint under this chapter, the justice or jury shall find that the defendant or defendants or either of them, are guilty of the allegations in the complaint, the said justice shall thereupon enter judgment for the complainant to have restitution of the premises,” etc. Geni. St. ch. 84, §§ 11, 9. This statute clearly means that an action of unlawful detainer may be be brought against the tenant, if he fails to pay the rent when due and thereafter holds the demised premises, and is the same as the statute under consideration in that respect. In construing the Minnesota statute in Spooner v. French, 22 Minn. 37, the court said: “The statute, section 11, gives the right to these proceedings (an action for possession by the landlord) when the tenant holds over * * * after any rent becomes due. No other thing is required by the statute. * * * No demand of the rent is contemplated by the statute.” See Wright v. Gribble, 26 Minn. 99, to the same effect.
In the case before us the parties agreed upon the conditions upon which the tenant should hold the land let to him, and that was, upon payment of the rent at 'the times stipulated. The statutes of this state provide for the protection of the landlord, in such cases, against the holding of the land by the tenant after he has failed to comply with the conditions. They provide, as before stated, that the landlord may recover the land of the tenant, in the event he fails or refuses to pay the rent when due, and refuses to deliver the possession of the land after a demand in writing therefor by the landlord. The statutes impose no other condition upon the landlord’s right to recover. This court has, however, added another in this case, and that is, the failure or neglect of the tenant to pay the rent, according to the opinion of two judges, within a reasonable time after the demand for possession, and, according to the opinion of one, before the commencement of an action by the landlord to recover the land. In adding the last condition the court, in my opinion, has departed from the clear language of the statute, and assumed legislative power.
There was no waiver of the forfeiture in this ease by the landlord. The forfeiture accrued on account of the non-payment of the rent due on the 9th day of November, 1890, for the months of November and December in 1890, and of January in 1891. The amount due them, in advance, for these three months, was $17.50. It appears that no payments were made for rent after the 9th of November, 1890. The tenant offered to pay the $17.50 after that time, but the landlord refused to accept it. Notwithstanding these facts, this court relieves the tenant of the forfeiture, and cites Little Rock Granite Co. v. Shall, 59 Ark. 409, to support its action. In thatcasethis court held that a court of equity could relieve a tenant, upon equitable grounds, of a forfeiture which it was stipulated in the lease the tenant should suffer in the event he failed to perform his covenants. In this ease the forfeiture is statutory, and no court can lawfully relieve against it; for to do so, as said by Mr. Justice Matthews in Clark v. Barnard, 108 U. S. 436, “would be in contravention of the direct expression of the legislative will.” State v. McBride, 76 Ala. 51, 59, 60.
My conclusion is that appellee, Parker, or his grantees, are entitled to the possession of the land in controversy.
Hughes, J., concurs with me in this opinion.