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States from the full operation of the act, is a pal- to that of 1842 with the United States. The impable begging of the whole question that was at portant question, as Mr. Clarke observes in his Treatissue in the Winslow controversy. Such, certainly, ise on Extradition, sec. ed., p. 149, came before the was not its intention unless, as to that matter, the Court of the Queen's Bench, “whether the effect of two are inconsistent. If it be true that, as to the the Extradition Act of 1870 had not been to render offense for which a surrendered criminal may be the treaty with France entirely inoperative.” The tried, the treaty implies what the act expressly de- relation of the act to the treaty of 1842 with the clares, then there is no inconsistency between them United States was not under consideration at all, on this point, and, hence, no reason wliy the act and no opinion was expressed as to whether it did should not in this respect apply to the treaty. The or did not in England "limit the operation of the guaranty which the one requires simply secures be- treaty of 1842.” forehand the immunity which the other implies. So far, moreover, as the opinion that was exLord Derby, as we think, correctly claimed that the pressed had any thing to do with the effect of the treaty and the act are identical in this respect. English act in England, Judge Benedict was entirely

Indeed, the special act passed by Parliament soon mistaken as to its character. Bouvier was before after the treaty was negotiated, and the act of Con- the court on a writ of habeas corpus ; and it was gress of August 12th, 1848, and also the supplement- urged by his counsel that he should be discharged, ary act passed by Congress in 1869, clearly imply because, as was alleged, there was no law in France the doctrine which the English act of 1870 expressly to prevent “his trial for an offense other than that asserts. In the first two of these acts provision for which the rendition was demanded.” The is made for the delivery of a fugitive criminal, counsel for the Crown, in reply to this position, prein order that he may " be tried for the crime of sented the affidavit of M. Adolphe Moreau, the which such person shall be so accused.” Both acts, officially appointed counsel to the French embassy in precisely the same words, specify such a trial as in London, to the effect that “it is a principle of the end or object of the delivery. So, also, the act French and international law, that the indivia ual of 1869 describes the trial contemplated by the de

whose extradition has been granted can only be livery, as having reference to the crimes or offenses prosecuted and tried for the very crime for which specified in the warrant of extradition.” This leg- his extradition has been obtained." This affidavit, islation implies a construction of the treaty which says Mr. Clarke. “was accepted by the court as dethe English act of 1870 puts into express and posi- cisive of the question;" and accordingly the court tive terms. It names the offense for which the trial “ remanded the prisoner to custody, holding that is to be had, as being the one of which the person provision was made by the French law that he has been accused, or as the one “specified in the should be tried only for the offense for which extrawarrant of extradition.” It does not give the re

dition was asked.” Clarke on Extradition, sec. ed., motest hint of any other trial, and, hence, by what pp. 149–152. The remanding of Bouvier to cusit says and by what it does not say, implies that the tody was on the assurance by an affidavit, which the party is to be tried only for the crime “proved by court accepted as “decisive of the question," that the facts on which the surrender is grounded,” which under the law of France he would be tried only for is the express doctrine of the English act of 1870. the offense for which his extradition had been ob

Judge Benedict, in The United States v. Lawrence, tained. This is exactly the doctrine of the English 13 Blatchf. C. C. R. 295, after remarking that "the act of 1870, and the facts clearly show that the British act of 1870” has no authority as a law in court treated the act as operative in England with the United States, proceeded to say: “It would reference to the treaty with France. appear that the English courts incline to the opinion It deserves to be noted also that the words of tne that the act of 1870 has no effect in England, even, Lord Chief Justice, as quoted by Judge Benedict, to limit the operation of the treaty of 1842," which, have nothing to do with the specific question as he held in that case, allows the trial of an extra- whether the English act of 1870 and the treaty of dited person for any offense, whether it is or is not 1842 are consistent with each other, and hence the one for which the surrender was made. As nothing to do with the question whether the act has proof of this statement, he quotes the following effect or not in England with reference to that words of the Lord Chief Justice of the Queen's treaty. What he says is that Parliament, by the Bench in Ex parte Bouvier : "I see plainly what exception as to any thing in the act inconsistent was the intention of the legislature - that is to say, with the treaties referred to, intended “to save erit was intended, while getting rid of the statutes by isting treaties in their full integrity and force." which the treaties were confirmed, to save the ex- There is no doubt of this; yet it does not follow isting treaties in their full integrity and force." that he regarded “the treaty of 1842” as coming

The case of Bouvier, who was demanded by the within the exception because inconsistent with the French Government in 1872, arose under the treaty act of 1870, and hence regarded the act as having of Great Britain with France, and had no relation "no effect in England” in respect to that treaty.

On this point he expressed no opinion. For aught quirement that the committing magistrate “shall that appears in the words quoted, he may have inform such criminal that he will not be surrendered agreed with Lord Derby as to the construction of until after the expiration of fifteen days, and that “the treaty of 1842," and as to the entire consist- he has a right to apply for a writ of habeas corpus.ency of the English act of 1870 with it. Supposing The object of these provisions is to secure to the the two to be consistent, then, of course, the act person accused a reasonable opportunity to have the would not limit the operation of the treaty in Eng- legality of the proceedings tested before a court land, or anywhere else, not because the latter is ex- prior to his actual surrender, and to be discharged cepted from the application of the former, but be- from imprisonment in the event that the proceedcause there is no inconsistency between them.ings shall be held to be illegal. The protection Judge Benedict, however, assuming an inconsist- thus afforded is meant to be remedial as against any ency, sought on this ground to exclude the treaty hasty or improper action on the part of the Governfrom the application of the act as to the question ment. which he was discussing, and thereby retain the The other provisions of the English act call for treaty in full force with his understanding of its no comment, since they relate to matters of purely operation, supporting his opinion by quoting the domestic procedure, and involve no internationa words of the Lord Chief Justice in the case of questions in respect to the construction and applicaBouvier, which, as we have seen, neither contain tion of British extradition treaties. the opinion nor hold any relation to it whatever. The Judge was certainly very unfortunate in the CHINESE NOT ENTITLED TO NATURALIZAcase which he cited, as well as in the words which

TION. he quoted.

UNITED STATES CIRCUIT COURT, DISTRICT OF CALIThere are three other provisions, all of them

FORNIA, APRIL 29, 1878. found in the third section of the English act, which,

MATTER OF AH YUP. though not involved in the Winslow controversy, A native of China, of the Mongolian race, is not entitled deserve a brief mention, since they operate as restric

to become a citizen of the United States under the Re

vised Statutes as amended in 1875. Rev. Stat., 82,169, tions upon the surrender of fugitive criminals. The amendment, R. S., p. 1,435.

A Mongolian is not a "white person" within the meaning first declares that “a fugitive criminal shall not be of the term as used in the naturalization laws of the

United States. surrendered if the offense in respect of which his

ETITION for naturalization. The facts appear in surrender is demanded is one of a political charac- the opinion. ter, or if he prove to the satisfaction of the police SAWYER, J. Ab Yup, a native and citizen of the magistrate or the court before whom he is brought Empire of China, of the Mongolian race, presented a on habeas corpus, or to the Secretary of State, that

petition in writing, praying that he be permitted to

make proof of the facts alleged, and upon satisfactory the requisition for his surrender has in fact been

proof being made, and his making the oath required made with a view to try or punish him for an of

in such cases, he be admitted as a citizen of the United fense of a political character.” The design of this

States. provision is to guard against any surrender for what | The petition stated all the qualifications required by are called political offenses, which, though not al- the statute to entitle the petitioner to be naturalized, ways expressly excluded in extradition treaties, are, provided the statute authorizes the naturalization of

a native of China of the Mongolian race. The petition nevertheless, according to the settled policy of

was presented by B. S. Brooks, a counselor of this Great Britain and most of the nations of Europe,

This being the first application made by a naregarded as non-extraditable.

tive Chinaman for naturalization, the members of the The second provision declares that “a fugitive bar were requested by the court to make such suggescriminal who has been accused of some offense

tions amici curice as occurred to them upon either side within English jurisdiction, not being the offense

of the question; whereupon S. Heydenfeldt, Jr.,

argued the case very fully in opposition to the applicafor which his surrender is asked, or is undergoing

tion. Suggestions were also made by other members sentence under any conviction in the United King

of the bar.present. dom, shall not be surrendered until after he has The only question is, whether the statute authorizes been discharged, whether by acquittal or on expira- | the naturalization of a native of China of the Mongo

lian race. tion of his sentence or otherwise.” This simply

In all the acts of Congress relating to the naturalipostpones the delivery in the cases specified until

zation of aliens, from that of April 14, 1802, down to the purposes of English jurisdiction shall have been

the Revised Statutes, the language has been “that any completed.

alien, being a free white person, may be admitted to The third provision declares that"a fugitive crim- become a citizen," etc. After the adoption of the inal shall not be surrendered until the expiration of thirteenth and fourteenth amendments to the National

Constitution — the former prohibiting slavery and the fifteen days from the date of his being committed

latter declaring who shall be citizens - Congress, in to prison to await his surrender.". This in the

the act of July 14, 1870, amending the naturalization eleventh section of the act is supplemented by a re- laws, added the following provision:




"That the naturalization laws are hereby extended scientific nomenclature do we ordinarily, if ever, find to aliens of African nativity and to persons of African the words “ white person” used in a sense so compredescent." 16 Stat. 256, 8 7.

hensive as to include an individual of the Mongolian Upon the revision of the statutes the revisers, prob

Yet, in all, color, notwithstanding its indefiably inadvertently, as Congress did not contemplate a niteness as a word of description, is made an importchange in the laws in force, omitted the words " white ant factor in the laws adopted for the determination persons," section 2,165 of the Revised Statutes being and classification of the races. I am not aware that the section ccnferring the right reading: “An alien the term “white persons," as used in the statute, as may be admitted to become a citizen," etc. The pro

they have stood from 1802 till the late revision, was vision relating to Africans of the act of 1870 is carried ever supposed to include a Mongolian, while I find into the Revised Statutes in a separate section, whicb nothing in the history of the country, in common or reads as follows:

scientific usage, or in legislative proceedings, to indi“The provisions of this title shall apply to aliens of cate that Congress intended to include in the term African nativity and to persons of African descent." "white person "any other than an individual of the $ 2,169. This section was amended by the Act Caucasian race. I do not find much in the proceedings to correct errors and to supply omissions in the of Congress to show that it was universally understood Revised Statutes of the United States," of February in that body, in its recent legislation, that it excluded 18, 1875, so as to read: “ The provisions of this title Mongolians. At the time of the amendment, in 1870, shall apply to aliens, being free white persons, and to extending the naturalization laws to the African race, aliens of African nativity, and to persons of African Mr. Sumner made repeated and strenuous efforts to descent." (Rev. Stat., p. 1, 435; 18 Stat. 318), and so strike the word “white" from the naturalization laws, the statute now stands.

or to accomplish the same object by other language. First. Is a person of the Mongolian race a "white It was opposed on the sole ground that the effect would person” within the meaning of the statute?

be to authorize the admission of Chinese to citizenSecond. Do those provisions exclude all but white ship. Every senator who spoke upon the subject persons and persons of African nativity or African assumed that they were then excluded by the term descent?

"white person," and that the amendment would Words in a statute, other than technical terms, admit them, and the amendment was advocated on should be taken in their ordinary sense. The words the one hand and opposed on the other upon that “white person,” as well argued by petitioner's counsel, single idea. Senator Morton, in the course of the distaken in a strict literal sense, constitute a very indefi- cussion, said: “This amendment involves the whole nite description of a class of persons, where none can Chinese problem. * * * The country has just be said to be literally white, and those called white awakened to the question and to the enormous magnimay be found of every shade, from the lightest bloude tude of the question involving a possible immito the most swarthy brunette. But these words, in gration of many millions; involving another civilithis country at least, have undoubtedly acquired a zation; involving labor problems that no intelwell-settled meaning in common popular speech, and lect can solve without study and time. Are you they are constantly used in the sense so acquired now prepared to settle the Chinese problem, thus in in the literature of the country, as well as in common advance inviting that immigration ?” Congressional parlance. As ordinarily used anywhere in the United Globe, part 6, 1869–70, p. 5,122. Senator Sumner reStates one would scarcely fail to understand the party plied: "Senators undertake to disturb us in our judgemploying the words "a white person” would intend ment by reminding us of the possibility of large a person of the Caucasian race. In speaking of the numbers swarming from China; but the answer to all various classifications of races, Webster, in his diction- this is very obvious and very simple. If the Chinese ary, says: “The common classification is that of come here they will come for citizenship or merely for Blumenbach, who makes five. First, the Caucasian, labor. If they come for citizenship then in this desire or white race to which belong the greater part of the do they give a pledge of loyalty to our institutions. European nations and those of Western Asia; second, And where is the peril in such vows? They are peacethe Mongolian, or yellow race, occupying Tartary, ful and industrious. How can their citizenship be the China, Japan, eto. ; third, the Ethiopian, or negro occasion of solicitude?" Id., p. 5,155. (black) race, occupying all Africa, except the North ; Many other seuators spoke pro and con on the quesfourth, the American, or red race, containing the tion, this being the point of the contest. Id., pp. Indians of North and South America; and fifth, the 5,121 to 5,177. It was finally defeated, and the amend-. Malay, or brown race, aud occupying the islands of ment cited, extending the right of naturalization to the the Indian Archipelago," eto. This division was African only, was adopted. It is clear from these proadopted from Buffon, with some changes in names, ceedings that Congress retained the word "white" in and is founded on the combined characteristics of the naturalization laws for the sole purpose of excludcomplexion, hair and skull. Linnæus makes four ing the Chinese from the right of naturalization. divisions, founded on the color of the skin: First, Again, when it was found that the term "white perEuropean, whitish; second, American, coppery; third, son " had been omitted in the Revised Statutes, it was Asiatic, tawny; and fourth, African, black. Cuvier restored by the act passed “to correct errors and to supmakes three – Caucasian, Mongol, negro. Others ply omissions " in the Revised Statutes before cited. make many more, but none include the white or Cau- Upon reporting this bill, Mr. Polaud, chairman of the casian with the Mongolian or yellow race; and none committee, explained the various ameudments corof those classifications, recognizing color as one of the recting errors, and upon the amendment to insert the distinguishing characteristics, include the Mongolian words, “ being free white persons,” said: “The origin the white or whitish race. $ 22, “New American inal naturalization laws only extended to free white Cyclopedia,” title “ Ethnology."

persons.” * “A very few years since (iu 1870) Neither in popular language, in literature, nor in Mr. Sumner, of Massachusetts, then in the Senate,



moved to strike out the word 'white' from the naturalization laws, and it was objected to on the ground that that would authorize the naturalization of that class of Asiatic immigrants that are so plentiful on the Pacific coast. After considerable debate, instead of striking out the word 'white,' it was provided that the naturalization laws should extend to the Africans and persons of African descent." After explaining the omission in the Revised Statutes he adds: “The member of our committee who had this chapter on the naturalization laws to examine as a sub-committee failed to notice this change in the law, or it would have been brought before the house when the revision was adopted.” Congressional Record, vol. 3, part 2, session 1875, p. 1,081.

Upon this report the amendment was made as it now stands in the statute. Thus, whatever latitudinarian construction might otherwise be given to the term “ white person," it is entirely clear that Congress intended by this legislation to exclude Mongolians from the right of naturalization. I am, therefore, of the opinion that a native of China, of the Mongolian race, is not a white person within the meaning of the act of Congress.

The second question is answered in the discussion of the first. The amendment is intended to limit the operation of the provision as it then stood in the Revised Statutes. It would have been more appropriately inserted in section 2,165 than where it is found (in section 2,169). But the purpose is clear. It was certainly intended to have some operation, or it would not have been adopted. The purpose undoubtedly was to restore the law to the condition in which it stood before the revision, and to exclude the Chinese. It was intended to exclude some classes, and as all white aliens and those of the African race are entitled to naturalization under the words, it is difficult to perceive whom it could exclude unless it be the Chinese.

It follows that the petition must be denied, and it is so ordered.

a coupon, which was due and past maturity, for thirty dollars, which said coupon was cut from a bond of the State of Virginia, issued under the provisions of the act of Assembly passed March 30th, 1871, commonly known as the Funding Bill;" and the sum of twentytwo dollars and five cents, in money, that being the amount of costs.

The city sergeant refused to receive the coupon tendered, in payment of the fine imposed by the court. And thereupon Clarke applied to this court for a writ of habeas corpus, and insists upon his right to pay the fine assessed against him by the Hustings Court in a coupon of a bond of the State; and that upon such payment, with the costs of prosecution, he is entitled to his discharge from further imprisonment.

This record, therefore, presents for our consideration the simple question, Whether a fine imposed for a violation of law can be discharged in coupons, or whether it can only be demanded and paid in money?

This is the same question which was elaborately argued at the January term of this court in the case of Tyler v. Taylor. That case was argued upon a petition for a writ of mandamus, to the court, to compel the auditor of public accounts to receive from the sergeant of the city of Richmond, certain coupons which had been received by him, in payment of a fine imposed on one Mayo, for a criminal offense.

In that case, this court unanimously held, that the writ of mandamus could not be issued against the auditor of public accounts, because he was not the public officer whose duty it was, under the law, to receive fines collected by the city sergeant, and declaring that this court could only exercise its extraordinary jurisdiction by way of mandamus, to compel a public officer to discharge a duty which the law imposed on him, and not on another. And inasmuch as the city treasurer, and not the auditor of public accounts, was the public officer whose duty it was to receive all fines collected by the city sergeant, the rule was discharged and the case dismissed, without deciding the question on its merits.

In that case it was said, and is here repeated: “This court is always ready and willing to decide, to the best of its ability, all questions, however important or difficult, or however they may affect public or private interests, which are properly brought before it, no matter how great or far-reaching may be the responsibilities it must assume in such decision. But the court is not willing, nor is it any part of its judicial function, to decide questions outside of the case before it, and thus constitute itself a'moot court to determine abstract questions."

The question argued in the case of Tyler v. Taylor did not arise upon the pleadings in the cause, and the court did not (for the reasons stated in its opinion) feel called upon to decide an abstract question. But the same question now does arise properly, upon the record in this case, and the court is now prepared to meet the question and assume all the responsibilities which may be attached to the decision, however it may affect individual or public rights, private or political questions.

But the question we have to determine (however it is sought to be connected with questions which are the subject, unhappily, of political agitation) is purely a legal question, to be determined upon well-defined legal principles, and the rules of construction universally recognized as applicable to the statute law. It


ACT OF 1871.


MARCH, 1878.


EX PARTE CLARKE. By a provision of the Constitution of Virginia all fines paid

in criminal proceedings are appropriated for the support of public schools. By an act of the Legislature, known as the Funding Act, coupons of State bonds issued under such act are made receivable for "all taxes, debts, dues and demands due the State.Held, that the statute included fines, and the coupons were receivable therefor, and the statute was not in violation of the constitutional provision mentioned. ETITION for habeas corpus. The facts appear in

the opinion. CHRISTIAN, J. This case is before us upon a petition filed by James Clarke, invoking the original jurisdiction of this court for a writ of habeas corpus. The petition and the record therewith filed show that the petitioner is confined in jail under an execution issued upon a judgment of the Hustings Court of the city of Richmond, for the sum of thirty dollars, the fine assessed by said court, and twenty-two dollars and five cents, the cost of prosecution on behalf of the Commonwealth.

It is further shown, that the petitioner tendered to James M. Tyler, sergeant of the city of Richmond,




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all depends upon the true construction to be given to if a construction can be legitimately found which will the second section of the act approved March 30th, give force to and preserve all the words in the act. 1871, entitled “ An act to provide for the funding and The best rule by which to arrive at the meaning and payment of the public debt." This section, after de- intention of a law is to abide by the words which the claring that the owners of any of the bonds, stocks or law-maker bas used. Dwarris, p. 179, note. Especiinterest certificates heretofore issued by this State * ally is this the case where the words used have no

may fund two-thirds of the amount of the * double or doubtful meaning, but are plain and explicit in six per centum coupon or registered bonds of in their signification, for it is a rule of universal applithis State, etc., contains the following provision: "The cation that effect must be given to the words used by bouds shall be made payable to order or bearer, and the Legislature where there is no uncertainty or am the coupons to bearer, at the treasury of the State, and biguity in their meaning. bonds payable to order may be exchanged for bonds Now, the words used in the act we are called upon payable to bearer, and registered bonds may be ex- to construe are as broad, explicit and comprehensive changed for coupon bonds, or vice versa, at the option as any terms which could possibly be used. The act of the owner. The coupons shall be payable semi- declares that " coupons shall be receivable at and after annually, and receivable at and after maturity for all maturity, for all taxes, debts, dues and demands due taxes, debts, dues and demands due the State, which the State.” Is there any uncertainty or ambiguity in shall be so expressed on their face.” The only ques- these terms? They all have a certain defiuite, explicit tion, then, we have to determine is, whether fines im- and technical meaning. We cannot discard any one posed for a violation of law are included within the of them as unmeaning and surplusage, but must, aoterms of the statute? I say this is the only question cording to the rules of construction which bind the we have to determine, because the question of the con- courts, give effect to all. We must suppose the Legisstitutionality of the act above referred to, known as lature knew the ordinary meaning and legal force of the Funding Act, has already been determined by this the words which they used. If the provision of the court. The case of Antoni v. Wright, 22 Gratt., set- act had been that these coupons should be receivable tles this question. The same argument against its “ for all taxes and debts due the State," there might constitutionality made in this case was urged in that. be some room for doubt whether fines were embraced I refer to that case and adopt its principles and reason- - for although fines are recoverable by action of debt, ing as a clear and conclusive exposition of the law, and in a certain sense a fine is a debt due the State, and am of opinion that this decision of the court de- yet it might be said, with much force, if not concluclaring the constitutionality of the act of March 30th, sively, that the word debt refers to matters of con1871, and declaring that any act of the Legislature in tract, and that, therefore, a fine is not embraced in the conflict with the provisions of that act, so far as it may meaning of the statute in the word debt. But the

forbid the collecting officers of the State to receive words “dues and demands" are added. Shall we give no in payment of taxes and other demands of the State effect to these words of explicit meaning? Can we any thing else than gold or silver coin, United States take the liberty of striking these words out of the treasury notes, or notes of the national banks of the statute? If we can, then the courts may override the United States," must be held to be an act "impairing powers of the Legislature, and construe away any act the obligation of a contract," and therefore unconsti- it may pass. These words, “dues and demands,” are not tutional and void. This decision of Antoni v. Wright uncertain and ambiguous, but have a certain definiw was recognized and re-affirmed in Wise v. Rogers' and explicit meaning, Adm'r, and Maury v. Wright, 24 Gratt., and must now The word “due” is defined by Webster to be “ that be held to be the settled law of this State. It is not which is owed," " that which custom, station or law necessary, therefore, and indeed it would be a vain requires to be paid," and by Worcester “that wbich and useless task, to attempt to go over again the rea- any one has a right to demand, claim or possess," " that sons which goveru this court in coming to the conclu- which can justly be required." The word demand is sion there reached, and firmly adhered to ever since. a word of still larger significance and more compre I can ouly say for myself, that after a careful consid- hensive meaning. Indeed, Lord Coke says, the word eration of all the views which have been presented on “demand" is the largest word in law except “claim." this question, the opinion of Judge Bouldin, in An- In 2 Coke upon Littleton, 291, b, he says, “Demandum toni v. Wright, is a lucid, able and conclusive exposi- is a word of art, and in the understanding of the comtion of the law-is one based upon judicial logic and mon law, is of so large an extent, as no other word in fortified by judicial authority, which makes it impreg- the law is, unless it be clamum, whereof Littleton vable against every assault which may be made upon it. maketh mention, section 445." Webster defines "de

Adopting, therefore, the principles and reasoning in mand” "the asking or seeking what is due or olaimed the case of Antoni v. Wright, we are left in this case to be due;" and Worcester, “a calling for a thing due to a simple and very narrow inquiry—and that is, Are or claimed to be due.” No words of more explicit or fines impused for a violation of law included in the broader signification could have been used than these purview of the statute? Que of the principal and two words “dues and demands." We cannot discard universally adopted rules of construction of statutes them, but must give them effect. Do they embrace is, that in the construction of statutes the rule of in- fiues ? I am bound by every rule of construction to terpretation is, in respect to the intention of the Leg- say they do. A fine is something “which the law islature, that where the language is explicit, the courts requires to be paid " and that is the meaning of the are bound to seek for the intention, in the words of word "dues.” A fine is a thing "due or claimed to the act itself, and they are not at liberty to suppose, be due" to the State, a liability which the State has a or to hold, that the Legislature intended any thing right to enforce and demand, and that is the meaning different from what their language imports. Potter's of the word “demand." Dwarris on Statutes, p. 146. Words in a statute are I am, therefore, of opinion that fines are clearly emnever to be considered as unmeaning and surplusage, braced within the meaning and the very words of the

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