28. Unconstitutional Acts. In all countries where there is a written constitution designating the powers and duties of the legislative as well as the other departments of the goverment, an act of the legislature may be void as being against the constitution. A statute must conform to the constitution of the United States, and to the constitution of its particular state, and, if it infringe the provisions of either, it may be declared void. The courts of justice have the right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first, of the United States, and then that of their own state, as the paramount or supreme law to which every inferior or derivative power and regulation must conform; for the judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law." 29. Municipal Ordinances. Laws passed by the governing body of a municipal corporation, for the regulation of the affairs of the corporation, are municipal ordinances. The term ordinance is the usual denomination of such an act, although in England and in some of the United States the term by-law is in common use as preferable to ordinance. A by-law proper is a subordinate rule for the government of the body passing it." A resolution of a council is but another name for an ordinance, and, if it be a legislative act, it is immaterial whether it is called a resolution or an ordinance, so long as the requirements essential to the validity of an ordinance be observed; but, if the act be merely declaratory of the will of the corporation, it is proper to act by resolution, which is more in the nature of a ministerial act.' 77 The authority of ordinances passed by a municipality 75 Kent's Comm. 449. 76 117 Ind. 221 (1888); 63 Iowa 372 (1884). 77 99 Pa. 330 (1882); 19 U. S. App. 622 (1894). under its charter powers is derived from the state legislature, and not only from the municipality that passes them. When the power is not expressly granted to a municipality, it is implied as incident to its existence; but, in case of an express grant of the power to enact ordinances limited to certain specified cases and for certain purposes, the corporate power of legislation is confined to the objects specified, all others being excluded by implication." This power cannot be construed as imparting to the municipality the right to repeal the laws in force or to supersede their operation by any of its ordinances. Nor can the presumption be indulged that the legislature intended that an ordinance passed by the city should be superior to, or take the place of, the general laws of the state on the same subject." Municipal ordinances are limited to, and can have no effect beyond, the limits of the municipality; but all persons, even non-residents, who, being themselves within the limits of the municipality, are, while there, citizens, and are governed by its laws."" 30. An ordinance must be general, impartial, certain, and definite, and it must not contravene the constitution, any public law, principles of public policy, or common right. If repugnant to the constitution or general laws, an ordinance is void." An, ordinance that gives to one sect a privilege which it denies to another is not general and impartial, and is in violation of both the constitution and the law; and where an ordinance declares some act to be an offense, it must define that offense explicitly and mention the penalty with certainty." Ordinances in restraint of trade are void, but such enactments may be made to regulate trade; they may be enacted to prevent the use of certain streets for market purposes, but they may not restrain the sale of the usual commodities that pertain to a merchant's regular calling, by prohibiting during 78 11 S. C. 292 (1878); 33 N. H. 431 (1856). 8123 Conn. 132 (1854). 82 26 La. Ann. 671 (1874); 49 N. J. Law 42 (1886). market hours the sale of certain goods outside of the market limits."3 31. Necessary to the validity and binding effect of municipal ordinances is their passage by an organized and acting council, by the necessary majority, after the required number of readings, according to the rules, the signing and approval by the proper officers, and their publication, when required by the charter, in the manner designated." Where there are mandatory laws requiring that an ordinance must be passed by a certain vote, the yeas and nays must appear on the record of the council's proceedings, except where the record shows the measure has been adopted unanimously." In some states, municipal ordinances may cover the same ground as the state law and both are enforceable. The fact that there is a general statute in force on the subject covered by an ordinance does not make further regulation unnecessary and unreasonable;" but, in some states, legislation by ordinance in addition to state legislation is not permitted." 32. Interpretation and Construction. - A statute is the will of the legislature, and, in order to determine what intention is conveyed by the language used in any act of congress or legislature, or in a municipal ordinance, judicial interpretation and construction are often necessary." 88 Interpretation is the act of finding out the true sense of any form of words, that is, the sense that their author intended to convey; and of enabling others to derive from them the idea that was intended to be conveyed by the author." Construction is properly the drawing of conclusions respecting subjects that lie beyond the direct expression of the text, from elements known from, and given in, the text 83 33 Ill. 416 (1864); 43 I11. 47 (1867); 11 Pick. (Mass.) 168 (1831). 84 19 N. J. Eq. 412 (1869); 20 Atl. Rep. (Pa.) 424 (1890). 85 78 N. Y. 363 (1879); 22 Mich. 104 (1870); 89 Ill. 361 (1878). 86 14 Ala. 400 (1848); 36 Conn. 215 (1869); 4 Neb. 101 (1875); 23 Conn. 128 (1854). 8718 Fla. 318 (1881). 881 Kent's Comm. 468. 89 Dr. Lieber's Hermeneutics (3d Ed. by Hammond), p. 11. conclusions that are in the spirit, though not within the letter, of the text."" 90 The terms interpretation and construction are generally synonymous, but in matters concerning statutes and written instruments, a distinction is drawn; however, the terms are used interchangeably by the courts in most cases. If the language be clear and admit of but one meaning, there is no need of interpretation and construction." There can be no departure from the plain meaning of a statute on grounds of its unwisdom or of public policy." The first and cardinal 33. Rules of Interpretation. rule in interpretation is to look at the statute itself-the meaning, the scope, and the object of the enactment- and if, upon the face of it, can be gathered plainly what the intention of the legislature was, those incidental rules that are mere aids to be invoked where the meaning is clouded are not to be regarded." The language of a statute is often ambiguous, and to adhere to its literal meaning in all cases would be to miss its real meaning in many instances; hence, the employment of interpretation and construction to discover the real meaning. The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. These signs are the words, the context, the subject-matter, the effects and consequences, and the spirit and reason of the law." 96 The natural import of the words is to be adopted," and if technical words be used, they are, in general, to have assigned to them their technical sense." Words and expressions that have acquired a definite meaning in law must be so expounded." 90 Dr. Lieber's Hermeneutics (3d Ed. by Hammond), p. 44. 912 Cranch (U. S.) 386 (1805). 9211 C. B. (Eng.) 378 (1851); Sedg. St. L. (5th Ed.) 197. 932 Cent. Rep. (S. C. D. of C.) 694 (1886). ILLUSTRATION. - No mere misnomer in the name of a natural person or corporation is fatal to the validity of an act, if the person or corporation intended can be collected from the words." The word may means must or shall in cases where the public interest and rights are concerned." A conjunction may be taken in a disjunctive sense; therefore, and may be construed to be or. 100 The term void in some instances has been limited to mean voidable, that is, to be made void by some plea or act of the party in whose favor the statutes are set up.' 101 34. The context is to be looked into, if the words be still dubious. Thus, the preamble is often examined closely to help the construction of the provisions of an act. Of the same nature and use is the comparison of a law with other laws made by the same legislators, that have some affinity with the subject, or that expressly relate to the same point; that is, statutes upon the same subject must be construed with reference to each other; what is clear in one statute shall be called in to explain what is obscure and ambiguous in another. The intention of the lawmakers is to be sought in the entire context of the section, statutes, or series of statutes, upon the same subject;103 the intention of a statute is to govern, even though the construction grounded upon such intention may appear to be contrary to the literal import of the words.104 102 35. The subject-matter is always supposed to be in the thought of the lawmaker, and all his expressions are taken as directed to that end. 105 Words of a doubtful and ambiguous meaning ought always to be understood and explained in reference to the subject-matter and the occasion on which they were used.' 106 ILLUSTRATION. - Where an English law forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain or other victual; but when it is considered that the statute was made to suppress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, it is seen upon what the restraint is intended to be laid. 107 983 Sumn. (U. S.) 279 (1838). 999 Port. (Ala.) 390 (1839). 100 19 Vt. 131 (1847). 101 13 Mass. 515 (1816). 1021 Black. Comm. 60. 103 18 Wall. (U. S.) 301 (1873). |