the principle that such an interpretation must be made that the subject-matter will stand rather than fail,- ut res magis valeat quam pereat. If it is impossible to reconcile the contradictory or repugnant expressions, a saving clause repugnant to the general scope of the statute will be declared void, or a rule hereafter to be adverted to will be followed, that the words used later in point of time will prevail. Rule 10. A distinction must be taken between an exception and a proviso. If a particular clause be treated as an exception and an action be brought for a breach of the statute, it will be incumbent on the plaintiff to show in his pleadings that the defendant is not protected by the exception. But if the clause be treated as a proviso, the party sued if embraced within the general words of the statute will be answerable, unless he shows on his part that he is relieved by the operation of the proviso. The distinction becomes a rule of pleading, and shows which of the two parties to an action holds the burden of proof. One mode of distinguishing the two is to note that an exception is a part of the general words of the statute; a proviso follows after the general words, and is usually preceded by the word "provided." The distinction itself seems highly technical. There is a further question whether, if a proviso be repugnant to the general body of the act, the so-called "purview," the proviso is void. Upon this point the authorities are apparently at variance, though not perhaps really so when closely scrutinized. A proviso does not have the same effect in this respect as the "saving clause" referred to in Rule 9. An old decision compares the case to a will, where a later clause prevails rather than an earlier one, because it is the last expression of the testator's desire; and so by analogy in the present case, the last expression of the lawgiver's intent should be heeded.1 The correct view seems to be that when a clause in the nature of a proviso does not destroy the "purview," but leaves that to prevail in its general scope, and at the same time withdraws from its operation some item which would otherwise be included, the proviso is valid.2 - Rule 11. In general a statute acts prospectively. It affects future and not past transactions. The general principle is, to 1 Attorney-General v. Chelsea Water- Me. 360, 369, 370; Matter of N. Y. & Works, Fitzgibbon's R. 195; Townsend Brooklyn Bridge, 72 N. Y. 527, 530, v. Brown, 4 Zab. 80. 2 Savings Institution v. Makin, 23 531. make the statute act retrospectively only when the words imperatively require it.1 To this rule there are some important exceptions. If the object of the statute be to prevent a delay or failure of justice, it may properly be allowed a retrospective operation. An act repealing the penal severities of an usury law may be construed in the same way. It would seem that this principle would extend to the repeal of any penal enactment. The great object of the rule is, then, to prevent a retrospective operation of the statute if it works injustice or interferes with vested rights.3 If, however, the words of the statute are plain, its retrospective operation must be allowed; and then a question may arise as to whether the law is not opposed to some constitutional provision upholding vested rights. Rule 12. A difference is to be noted between words that are "mandatory" and such as are "directory." Words are said to be mandatory when an act prescribed must be done as the statute requires; they are directory when the act may be done in some other way or form, or at some other time. This distinction has much to do with the time when an act must be performed. It is a general rule that if an act be directed to be done on a particular day, it may be done on some other and even later day. On the other hand, where the interests of the public or of third persons are concerned, permissive words will be construed as obligatory; the word "may" will be held to mean "must." (a) Rule 13. Statutes giving authority to be exercised in derogation of private right must be strictly followed. An instance of this kind is that of land sold by law for the nonpayment of taxes. If the steps required by the statute are not strictly followed by the public authorities, the sale will be void.5 Another important instance is that of the delegation to a village or other local authority, of the exercise of the right of eminent domain.6 1 Dash v. Van Kleeck, 7 Johns. 477. The French Code expresses the principle without qualification: "The law only pro vides for the future; it has no retroactive 2 Curtis v. Leavitt, 15 N. Y. 9. (a) See Gilmore v. City of Utica, 121 N. Y. 561; The People v. Mayor of Syra 67; Newburg Turnpike Road v. Miller, 5 Johns. Ch. 101. Striker v. Kelly, 2 Den. 323. 6 Matter of the Rensselaer R. R. Co. v. Davis, 43 N. Y. 137. Matter of the Commissioners of Washington Park, 52 N. Y. 131. cuse, 59 Hun, 258; aff'd 128 N. Y. 632. Rule 14. Where a statute having in view the protection of the public health or morals, or the suppression of frauds, inflicts a penalty for doing an act, its commission is deemed unlawful, though not prohibited in terms. The penalty implies a prohibition. A contract to perform the act is illegal and void. It was accordingly held that one who sells liquor without a license in violation of the excise law, cannot recover the price of the liquor from the purchaser.1 Rule 15.- A person may waive a statutory or even a constitutional provision intended for his benefit; 2 but jurisdiction of the subject-matter of an action cannot be obtained by a court in this way, although a party may waive the statutory steps necessary to bring himself before a court which already has jurisdiction of the subject-matter. Jurisdiction means the power which a court has to hear and determine a cause. Such a power can be conferred by law alone, and not by the consent of the parties. But where the court has jurisdiction of the subject-matter, if a defendant submits to it, he cannot afterwards object, for example, that by law the action should have been brought in another county. His submission is a waiver of such an objection.5 Rule 16. When a statute gives a remedy for a right already existing at common law, an injured party may at his election resort either to the common law or to the statutory proceeding. This statement assumes that there has been no repeal of the common law either in express terms or by implication. The rule is applicable both to civil and criminal proceedings. But if the right itself is created by the statute, and adequate means for enforcing it are provided, the proprietor of the right is confined to the statutory remedy. This point is in fact covered by the succeeding rule. Rule 17.—The expression of one thing is the exclusion of another, expressio unius, exclusio alterius. This is a rule of wide application, extending to all written instruments, but is said never to be more applicable than in the case of statutes.8 Considerable caution is to be used in the application of this principle. It may be that the statute mentions some things of a class by way of example, in which case others of the class would not be excluded. On the other hand, the words 1 Griffith v. Wells, 3 Den. 226. 2 Buel v. Trustees of Lockport, 3 N. Y. 197. 3 Coffin v. Tracy, 3 Caines, 129; Davis v. Packard, 7 Pet. 276. • United States v. Arredondo, 6 Pet. 691. 5 Brown v. Webber, 6 Cush. 560. 6 Rex v. Robinson, 2 Burr. 800, 805. Dudley v. Mayhew, 3 N. Y. 9; Donaldson v. Beckett, 2 Bro. P. C. 129. 8 Broom's Legal Maxims, 652. may be restrictive and intended to exclude all that are not enumerated. This view may easily be taken where, for example, certain specific things are taxed. The argument would be strong that other articles were not to be taxed.1 Similar principles have been applied to statutes conferring immunities or creating exemptions from statutory liabilities. Common-law exemptions would be tacitly excluded.2 This rule may easily be carried too far, as exceptions are often introduced as a mere matter of caution.3 One of the Amendments to the United States Constitution was adopted to avoid any use of this rule by the court adverse to the rights of the people.4 Rule 18. When words are of doubtful meaning certain circumstances may be called on to aid the interpretation, which would not be resorted to if the meaning were clear. 1. The preamble may be referred to in order to explain the enacting part of the statute, when doubtful; but not to restrain its meaning when clear and unambiguous.5 2. The title may be referred to for the same purpose. 3. Reference in like case may be had to extrinsic circumstances. 4. In construing revised or codified statutes, a mere change of language will not be regarded as evidence of an intention to vary the construction. The intent to vary must be manifest and certain,8 5. When one statute is referred to in another by several descriptive particulars, some of which are plainly false and others. true, the former may be rejected as surplusage, provided the latter are sufficient to show clearly what is meant.9 6. Although a statute be inartificially drawn, effect must be given to it if the intent can be fairly made out from the words.10 7. Where words are obscure the intent may be inferred from the cause or necessity of the enactment."1 1 The King v. Inhabitants of Woodlawn, 2 East, 164; Lead Company v. Richardson, 3 Burr. 1341, 1344. Cumines v. Supervisors of Jefferson Co., 63 Barb. 287; People ». Wood, 71 N. Y. 371; Pumpelly v. Village of Owego, 2 The King v. Cunningham, 5 East, 45 How. Pr. 219. 478. 8 See the principle stated and qualified in Tinkham v. Tapscott, 17 N. Y. 141, 152, 153. 4 U. S. Constitution, Amendments, Art. IX., "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." 5 Jackson v. Gilchrist, 15 Johns. 89. 7 Smith v. Helmer, 7 Barb. 416. 8 Dominick v. Michael, 4 Sandf. 374; Douglas v. Douglas, 5 Hun, 140; Davis v. Davis, 75 N. Y. 221. 9 Watervliet Turnpike Co. v. McKean, 6 Hill, 616. 10 Matter of Commissioners of Washington Park, Albany, 52 N. Y. 131. 11 People v. Asten, 49 How. Pr. 405; aff'd 62 N. Y. 623. 8. Inconsistent expressions must be harmonized to reach the intent.1 9. Grammatical rules do not prevail over the manifest sense of the language.2 10. A re-enactment of the same provisions in substantially the same terms as in former statutes, is deemed an adoption by the legislature of the judicial decisions on the former acts.3 11. Circumstances leading to the enactment of a statute may sometimes be considered in aid of its interpretation.* These and like special rules, being for the most part intended to overcome doubt and remove obscurity, will not be made use of when the language is plain and unequivocal. In such a case, the title of the statute is not considered; though there may be special cases, arising, perhaps, under constitutional clauses, in which the court will look to the title for the true construction, even though the language of the act be clear. It will, however, in such a case proceed with great caution.6 The same general rule applies to the use of a preamble when the language of the act is clear.7 III. Repeal and its Effect. It is of the essence of a statute, not in its nature declaratory, that it changes the existing law. The common law thus gives place to a statute, and an old statute to a new one. All statutes not amounting to contracts are thus capable of repeal. The leading principles governing repeal are embodied in the following rules: Rule 1. No statute can be rendered irrepealable by a declaration of the legislature that it shall not be repealed. Nor can any existing legislature impose upon subsequent legislatures valid restrictions as to modes of legislation.8 Each successive legislative body has plenary power over the whole field of legislation, unless restricted by constitutional provisions. Rule 2. Statutes may be repealed either by express words. or by implication. Questions principally arise as to repeal by implication. There will in general be no repeal by implication unless the two acts are manifestly inconsistent with and repugnant to each other.9 Where two statutes can stand together, 1 In the Matter of N. Y. & Brooklyn Bridge Co., 72 N. Y. 527. 2 People v. Gates, 56 N. Y. 387. Beach Railway Co., 84 N. Y. 565. 5 In the Matter, etc., Village of Middletown, 82 N. Y. 196. 574. People v. Davenport, 91 N. Y. 7 Constantine v. Van Winkle, 6 Hill, 177; Jackson v. Gilchrist, 15 Johns. 89. 8 Smith v. Helmer, 7 Barb. 416. 9 Bowen v. Lease, 5 Hill, 221. |