whom the complaint is made on his side has only to show, to upset the proceedings, that the case is other than that provided for in the law or that the conditions on which the rule is to apply have not been fulfilled.

In the legal subject the parties to the dispute find to whom they should go for a settlement. The court to which the complaint is made finds whether the law confers the authority to act under the case and conditions that have been proven to exist. The legal action tells what must be done. There the parties look to determine their rights and obligations under the law, and the court in its decision gives its judgment by using the very words of the law. The clear statement of the law makes it, in a word, easier to obey and easier to enforce. The statement of the example is of course much simpler than the fact, but there is hardly need of proof that failure to follow the logical order in the arrangement of the subject-matter makes more difficult the work of all parties to whom the law applies.

The order of the different enactments in a bill is subject to no hard and fast rule. In the normal measure of non-partisan character the controlling influences should be the convenience of those who must obey and administer the law. If several things are to be done in a certain order the enactments that require them should follow that order. Permanent provisions of a general character should come first. Dependent clauses should follow those on which they depend. Formal matters should be put later in the bill; details should be put in forms or schedules, preferably at the end. Temporary provisions should be grouped together so far as the subject-matter allows.

On the other hand, political influences may justify warping a bill out of its usual sequence. When a measure

involves a principle which is likely to be attacked during passage it may be best to put that proposal first so as to concentrate attention on the main contentious issue to enable the rallying of the entire party to the support of the measure. If formal details precede, the debate may bring out minor differences of opinion which split the support of the bill and make difficult a later agreement as to general policy. If the main object is agreed upon first, the adjustment of details will seldom offer serious difficulties.

CHAPTER VIII

LANGUAGE OF STATUTES

PLAINNESS AND UNIFORMITY, MANDATORY AND

DIRECTORY LANGUAGE

In General

The meaning of a statute must be found within its four corners. There is no proper way in which the courts which interpret or individuals who obey the laws can broaden or narrow their express declarations. It is therefore essential that the draftsman should make the law clear, concise, exact. Language should be used, as far as possible, in the ordinary sense and if it is otherwise used the intent so to do should plainly appear. Care should be taken to use the same words always with the same meaning, for though the courts may recognize different meanings for the same words in different parts of the statute,1 those who must obey the law will find it easiest to do so when no detailed comparison with the context is necessary to determine the legislative intent. The standard of uniformity of meaning should be kept, indeed, not only throughout the individual act but in all laws in which the terms appear. Otherwise the law when put in a revision becomes for the layman as unclear as if words had different meanings in different parts of the same act.

Where the language is uniform and exact, the intent will be clear, the citizen will know what the rule requires,

1 See Louisville & N. R. Co. v. Gaines, 3 Fed. 266 (U. S. 1880). But see Green v. Weller, 32 Miss. 650 (1856).

the judge will not have the duty to reconcile contradictory terms nor be forced to judicial legislation by ambiguous provisions. Intent will, it is true, control language1 and grammatical construction, where intent can be ascertained, and thus the courts may partly remedy the wrong done by careless legislation, but the court should not be called upon to do the work of the legislature. Not a little of our judicial legislation is due to the faults of the legislatures rather than those of the courts. If the law is properly drawn there will be but little necessity of ascertaining its meaning by construction,2 with the attendant possibility of its defeat. The determination of what the law means is always difficult, due to the accumulation of laws from different authors and from different sessions. It is rendered infinitely more difficult when careless phraseology makes the meaning of the individual statute unclear.

The rules which the courts have adopted for the interpretation of the language of statutes furnish not only guide posts for the law interpreter but warnings and prohibitions which must be carefully studied by the lawmaker. It is of prime importance, in choosing language for statutes, to remember that if the language of the law is clear and plain, courts of justice have no authority, because of evil consequences which would result, to give it a construction different from its natural and obvious meaning. Considerations of evil and hardship will not change the statute when its language is unambiguous. If the bill is exact, it leaves no room for judicial legislation under the guise of an effort to ascertain the legislative intent.

1 State v. Myers, 44 N. E. 801 (Ind. 1896); State v. Scaffer, 104 N. W. 139 (Minn. 1905); Fremont E. & M. V. Ry. v. Pennington County, 105 N. W. 929 (S. D. 1905).

2 U. S. v. Ninety- Nine Diamonds, 139 F. 961 (Minn. 1905).

Mandatory and Directory Language

A prime essential for good lawmaking is that the legislator should keep clearly in mind whether he intends to command or to lay down only optional rules for the guidance of those who are to obey the law. There is no way in which the intent of the law may be more easily defeated than by the use of language which leaves in doubt whether the rule was intended as imperative. Instances of this abuse have become increasingly frequent in recent years. Careless use of words has forced the courts to extend the rules of construction to ascertain the will of the legislature, and the process once begun has continued until now the rules of construction often seem to be extended to defeat rather than to ascertain what the law was intended to mean. The fault lies not alone with the courts. Words which in ordinary use have a definite meaning because of careless drafting of laws have ceased to have it in our statutes. Words like "may," "must" and "shall" are constantly used in statutes without intending that they shall be taken literally. The courts are forced thus to arrive at "the object evidently designed to be reached" by the use of arbitrary standards. But a set of hard and fast rules can give a uniform interpretation of intent only when the terms used are used uniformly. When they are used carelessly, sometimes with one intent, sometimes with another, the rules of construction may serve to give them a definite meaning, but they do not give us the assurance that what the law intended has always been ascertained. The duty to change the meaning of terms which has been forced on the court in doubtful cases by poor lawmaking has led to an increasing use of the power. What a marked change this practice has brought in the

1 Fields v. U. S., 27 App. D. C. (433), (1906).

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