Harrington v. Smith

28 Wis. 43 | Wis. | 1871

DixoN, C. J.

This case was twice argued, and it needed not the able, and, as I think, most conclusive argument of the learned counsel who appeared for the defendant on the last occasion, to satisfy my mind of the correctness of the statutory construction for which he contended, and that the commissioners of the school and university lands were not only authorized, but were clearly required to make out and issue certificates upon the sale of the lands in question to the plaintiff. The cause was ably argued, in the first instance, on both sides, and from that argument and subsequent examination, which was very thorough on my part, I had fully reached the same conclusion. The work of the learned counsel, who last argued, as shown by his printed brief or argument, in pointing out and analyzing the various provisions of the statute bearing upon the question, and showing their relation to and dependence upon each other, and the consequent effect and intent of the whole, is such as to supersede and make useless any effort on my part to the.same end. I cannot improve what has been so well done, and have little to say in the line of argument pursued by the same counsel, more than that I fully concur in all his reasoning, from premise to conclusion. I may be in error, and, if so, it is a most serious one, but truth compels me to say that I have no doubt, and never have had since first I understood the matter, that it was the intention of the persons who framed and of the legislature which enacted the statute, tbat there should in all cases be made duplicate certificates oí sale, as well where the lauds were fully paid for at the time of application to purchase, as where the payment was partial— as clearly such intention as if it had been declared in so many words in the statute. This conclusion I gather, as the learned counsel has done, from the purview and entire contest of the statute, as well as from particular words and passages, holding, as has been laid down, that the true rule for the construction of statutes is, to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law; and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words. Ryegate vs. Wardsboro, 30 Vt., 746. This principle in the construction of a statute, that every part of it must be viewed in connection with the whole, and, in addition, that it must be construed so as to make all parts harmonize if practicable, and give a sensible and intelligible effect to each, and not to place one portion in antagonism to another, has been recognized and enforced in a great variety of cases, and is, in fact, elementary. Ogden vs. Strong, 2 Paine C. C. R., 581; Brooks vs. Mobile School Commissioners, 31 Ala., 227; Dillingham vs. Fisher, 5 Wis., 475; Calkins vs. Harvey, 13 Wis., 370; Mason vs. Finch, 2 Scam., 223; The Belleville Railroad Company vs. Gregory, 15 Ill., 20; Torrance vs. McDougald, 12 Ga., 526.

I desire to advert merely to three or four sections of the statute, which, in my judgment, are of the greatest weight, and then to refer to some other rules for the construction of statutes, which seem to me to have very strong application.

Section 42 provides (I refer to the present revision), that all moneys paid on account of school and university lands, whether for principal or interest, shall be paid to the state treasurer, who shall give his receipt therefor, and every such receipt or writing shall be countersigned by the secretary of state.

Section 43 is in these words : “ The secretary, upon countersigning such receipt or writing, i^hall charge the said treasurer with the amount received by Mm as therein mentioned, in a boot to be kept for that purpose, and shall also enter the name of the person paying the same, the number of the 'certificate upon which the amount shall be paid, and the time of payment.” This is a positive and most unambiguous direction that all moneys for school or university lands shall be paid to the treasurer, for wMck a receipt shall be given by him, and countersigned by the secretary, and that upon countersigning the receipt, the secretary shall enter, in a book to be kept by him for that purpose, the number of the certificate upon which the same is paid. The plain language then is, that for all moneys paid, the secretary shall enter the number of the certificate upon which the payment is made. What more clear and unequivocal evidence of intention can be required than tMs, that a certificate of sale is in all cases to be made ? or how could the legislature have more clearly manifested such intention ? And how is it possible for the secretary of state to comply with this obvious requirement of the statute unless a certificate is in every case made ? And here another rule of interpretation becomes directly applicable, which ■is, that general words in a statute must receive a general construction/unless there be something in it to restrain them, or as it is otherwise frequently expressed, if there be no express exception. Demorest vs. Wynkoop, 3 Johns. Ch., 142; Torrance vs. McDougald,12 Ga., 530; Collins vs. Carman, 5 Md., 505, 533. It must be admitted that the word all, or the words all moneys, are very general, and it is not pretended, nor can it be, that there is anything elsewhere in the statute restraining them, or any express exception. The case in 12 Ga., 530, arose upon the same word, all, in a statute, and it was held that its application could not be restrained, the statute itself containing no exception. In that case LüMPKIN, J., informs us that the rule was considered so inflexible that, the Statute of Wills (32 Hen. VIII.) having authorized all and every person or persons to devise their lands, it was feared it might enable infants and insane persons to do it: and tbe statute of 34 Hen. YIII. was consequently passed, to introduce these exceptions. Beckford vs. Wade, 17 Ves., 88. And in 5 Md., 505, which was certainly a hard case, and one which appealed most strongly to the sympathy of the court to find its way out of and escape the operation of this rule, it was still held to be inflexible. The question was upon the right of a widow, who was insane at its date, and so continued, to renounce the provision made for her in the will of her late husband, and to receive her share of his estate as given by law. By the statute of the state, it was necessary that she should dissent from the provision made in the will, a- thing which, being insane, she was incapable of doing. The language of the statute was comprehensive enough to include every widow, whether sane or insane, and the statute having made no exception in favor of the latter, it was decided that none could be made by the courts, whether of law or equity. It clearly appears to me that upon these provisions of the statute, and this rale of construction alone, no exception being found in the statute, and no language Erom which one is fairly or necessarily to be implied, the construction which the statute has always received at the hands of the commissioners is the true one and must stand. But this construction and the conclusion that the framers intended that certificates of sale should in all cases be issued, are most clearly corroborated and shown by other provisions. The 55th section declares when and how patents for the lands shall be issued, and it is only upon the production of the duplicate certificate of sale, with the receipt of the state treasurer, showing that full payment has been made, that the issue of any patent is authorized. Without the production of the duplicate certificate, the commissioners have no authority whatever to issue a patent, which, in my judgment, is a most convincing circumstance in favor of the construction contended for in behalf of the defendant

And if any further proof be necessary to show the intention tbat certificates of sale were to issue where tbe lands were fully paid for at tbe time of purchase, as well as where the payment was partial, or the sale upon credit, it is found in section 112. In that and the five preceding sections, provision is made for the sale of “ mortgaged lands,” or lands bid in by the state on loans from the school and university funds. Section 112 enacted: “ In case of the sale of any such lands to any person for cash, on production of the treasurer’s receipt for the purchase money, the commissioners shall give to the purchaser a certificate which shall entitle him to demand and receive a deed for said land, to be executed by the governor of this state, and recorded in the office of the secretary of state.” It is true that this section was amended, and the issue of a certificate dispensed with, by section 2, chapter 281, Laws 1861, but such amendment •extended only to “mortgaged lands,” and did not include other-lands sold for cash. But the amendment or repeal of a section, or portion of a statute, does not prevent a resort to the part amended or repealed, in inteipireting so much of the statute as remains in force. Bank of Savings vs. The Collector, 3 Wallace, 495. And so resort may be had to section 112, as it stood before amendment, and as part of the context of the statute as originally enacted, to assist in ascertaining the true meaning of other parts of it. “If he who has ex]Dressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure or vague expressions in such a manner that they may agree with those terms that are clear and without ambiguity, which are used elsewhere, either in the fame treaty or some other of the lile kind.” Yattel’s Rules, 17. Potter’s Dwarris, 128. “It gives great light to the interpretation of obscure passages, to compare them with others that have some affinity with them; or to compare them with what goes before or follows in the context.” Puff-endorf’s Rules, id. 133. And see Rutherford’s Rule, id. 136, 137, upen this circumstance of explanation: “as they both came from the same band, so they are botb found together in the same writing.” And also Domat’s Rule, id. 140: “We must prefer the evident meaning of the whole law, to the inconsistent meaning of a defective expression.” Section 112 is, therefore, for our present purpose, still a part of the statute, and it indubitably establishes the intention of the legislature, that, upon a full paid cash sale, a certificate of sale as well as a receipt for the purchase money was to be issued. We have here the only instance in the statute where it became necessary for the framers to make direct, separate and express provision for a cash sale, and we see the provision which was made. It is the key which unlocks and exposes to full view the bidden or doubtful intent of the law makers, if bidden or doubtful it may otherwise be said to have been, and which gives us an exact knowledge of their ideas as to what was to be done in such a case. the sale of the “mortgaged lands” here provided for was part and parcel of the same general system enacted for the sale and disposition of the other lands belonging to the state, and it cannot for a moment be supposed that it was the intention of the legislature to provide for the issue of a certificate of sale upon full cash payment for such lands, and yet that only a receipt should be given upon a like payment for other lands. Every word and letter of the statute forbids such interpretation, for it would seem almost absurd to suppose that the legislature, having already intentionally enacted that only a receipt should be given upon a sale for cash of other lands, should have thus industriously provided for the giving of a certificate of sale as well as a receipt upon cash payment for mortgaged lands, thereby engrafting an entirely new feature upon the system. I say, with all due respect for those who may differ from me in opinion, that this seems to me most absurd; and yet, if I am wrong, such must have been the construction during all the time section 112 was in force, which was continuously from 1849 to 1861. (R. S. 1849, ch. 24, sec. 93.) Section 112 has been modified, which only affects cash sales of mortgaged lands, and not sucb sales of other lands. I am clearly of tbe opinion, therefore, that the mode prescribed for cash sales of mortgaged lands was not a departure Rom that prescribed and intended to be for like sales of other lands. It was a part of the same general plan, which was designed to be harmonious and uniform throughout, and not an anomalous or exceptional proceeding introducéd as to sales of mortgaged lands when a different mode had been prescribed as to sales of exactly the same character of all other lands. -Section 112, therefore, illustrates and enforces in the strongest possible way the intention of the legislature as to the issue of certificates upon other cash sales. It makes such intention clear, if otherwise or uj^on other portions of the statute, by themselves considered, it might have seemed doubtful. It unfolds and discloses to our view just what was passing in the minds of the law makers upon the very point under consideration.

In ojDposition to this construction of the statute, which I think: beyond doubt the correct one, the claim or argument merely is, that the legislature have prescribed no form for the certificate upon a sale of land for cash, and that the making of the certificate is an idle ceremony or routine which might as well or more conveniently have been disjsensed with. Section 38 prescribes , the form and contents of the duplicate certificate upon a time sale. It is silent as to the form and contents of the certificate upon a sale for cash, and the same are not elsewhere prescribed in the statute. It is said, as against other provisions of the statute, which clearly require a certificate upon a cash sale, that this indicates the opposite intention, and that no certificate is required. This, in my judgment, is a somewhat novel mode of arguing away or repealing the express language and requirement of a statute. It is in fact saying no less than this, that where a statute directly requires commissioners authorized to sell public lands for cash to give a certificate upon such a sale, yet that no certificate can be given and none was intended, because the legislature did not at the same time instruct or direct tbe commissioners as fo'what should be the precise form and contents of the certificate. It is saying no less than that, although expressly required, no certificate can be issued unless its form or contents are prescribed by the statute. If the legislature enact or require that which in the nature of things is impossible, I suppose the act is a nullity, and in such case it may be fairly presumed that the legislature did not so intend, or that the act proceeded from some mistake or misunderstanding. If it be true that it is impossible for the commissioners to make the certificate unless the legislature gives the form or instructs them how to do it, then the argument should prevail on this ground. But otherwise I think it should not. How was it all the time section 112 was in force? "Was it impossible for the commissioners to c'omply with the positive requirement of that section, and was so much of the section as related to the giving of the certificate a nullity, because the legislature had not enacted the form or contents of the certificate ? Or did the want of a form or statement of its contents in the statute show that no certificate was necessary or none was intended ? An affirmative answer to these questions would lead to the affirmance of the proposition that no certificate is required or intended to be given upon a cash sale of other than mortgaged lands. An answer in the negative would lead to the very opposite conclusion. I, for one, cannot hesitate. I think a negative answer must be given. I agree with the learned counsel for the defendant when he says it was left to the common sense and discretion of the commissioners to prescribe a form for themselves, and which should comply with the requirement of the statute. A matter so plain and easy of comprehension required no legislative directions, and none were deemed necessary, especially as the legislature had no conditions or restrictions to impose, as in the case of time sales, which is the reason for the specific directions given respecting certificates of that class.

And as to the other branch of the argument or claim, that the making of the certificates is useless, or might have been conveniently or properly omitted, I have only to say that we do not sit bere to revise or correct tbe action of tbe legislature in sucb matters. We bave no legislative power, and cannot dispense with a certificate because it maybe shown that tbe legislature might bave conveniently or wisely done so. Tbe construction of tbe law belongs to this court, but not its policy, and we cannot look to reasons of that kind for disregarding tbe plain requirements of a constitutional enactment. Tbe legislature may, if it chooses, require that to be done which to others seems idle and useless. It is for tbe legislature, and not for tbe courts, to judge whether it is so.

Nor do I, in tbe view I bave taken of tbe question, overlook tbe fact that by tbe statute as originally enacted, and as it stood until tbe decision of this court in McCabe vs. Mazzuchelli in 1861 (13 Wis., 478), all patents for lands sold by tbe state were to be executed by tbe governor. This is a most important circumstance favoring tbe construction for which I contend, and one which has not escaped tbe attention of counsel. ' Tbe certificate, with tbe receipt of tbe state treasurer endorsed thereon, showing full payment, was tbe evidence, and tbe only evidence, upon which tbe governor was to act in signing tbe patent. Since tbe decision above referred to, provision has been made for tbe execution of conveyances by tbe commissioners, but there has been no change in tbe phraseology of tbe statute respecting tbe ■issue of certificates of sale.

And bere, too, I notice what is said by counsel, of tbe laws of "the United States and of other states for tbe sale and disposition of their public lands, of the construction of those laws and •the common usage under them, and of tbe points of similarity ibetween them and tbe law we are construing, showing that tbe latter is based upon and intended as an enactment or adoption 'Of very nearly tbe same system. On tbe supposition that tbe construction is doubtful, it is a point deserving serious consideration, as furnishing a clue to tbe intention of tbe framers. It ids a well established rule of interpretation, that tbe general system of legislation upon tbe subject matter may be taken into yiew, in order to aid tbe construction of one statute relating to tbe subject, and that it is proper to consider other statutes in pari materia, wbetber they are repealed or unrepealed. Church vs. Crocker, 3 Mass., 17-21; Thayer vs. Dudley, id., 296; Mendon vs. Worcester, 10 Pick., 235; Holbrook vs. Holbrook, 1 Pick., 248, 254; Holland vs. Makepeace, 8 Mass., 418, 423; State vs. Baldwin, 2 Bailey, 541; State vs. Fields, id., 554. This rule of construction extends to tbe statutes of other states or countries, wbicb were the source or fountain from which the statute in question was drawn.

And there are other rules of construction I have considered, and which, perhaps, I ought not to omit here. One rule is, that a statute ought, upon the whole, to be so construed that, if possible, no clause, sentence or word, shall be superfluous, void or insignificant. James v. Du Bois, 1 Harrison (N. J.), 285, 293; Hutchen v. Niblo, 4 Blackf., 148. Another and kindred rule is, that every clause and word of a statute shall be presumed to have been intended to have some force and effect. Opinion of Justices, 22 Pick., 571; Same, 7 Mass., 523; Green v. Cheek, 5 Porter (Ind.), 105. These rules come very powerfully in aid of the construction I put upon sections 42 and 43, and particularly on the word all, in section 42, which must be construed as I construe it, or else be wholly deprived of any significance or force whatever.

Another rule of construction is, that where a known statute has been re-enacted in terms, its interpretation will be presumed to have been also adopted by the legislature. McKenzie v. The State, 6 English, 594; Anthon v. The State, 29 Ala., 27. The statute in question was originally enacted in 1849, and subsequently re-enacted in 1858. Long before, and at the time of such re-enactment, it had received a practical and well known interpretation by the officers whose duty it was to execute it, the commissioners of the school and university lands, one of whom was the attorney general of the state. With such established and known practice and construction as to tbe issuing of tbe certificates in cases like tbe present, tbe legislature re-enacted it without change or modification. If tbe language of tbe statute is ambiguous, or tbe intent doubtful, neither of which I can conceive, then this rule is applicable; for tbe re-enactment was a legislative approval of tbe construction which bad been previously given.

And further, on tbe principle of doubt or ambiguity, there are still other rules of statutory construction, which I think should govern. I do not, however, concede that the meaning is doubtful or the intent uncertain, unless it may be on the principle stated by Mr. Smith, in his valuable commentaries on statute and constitutional law, that “ the uncertainty of the sense to be given to a law does not proceed solely from the obscurity or other defect in the expressions used, but also from the limited nature of the human mind, which cannot foresee all cases and circumstances, nor take into view all the consequences of what may be enacted.” (Smith’s Commentaries, sec. 487.) The statute in question was enacted and has been continuously interpreted, understood and acted upon by the executive department of the government, the officers appointed by law to carry its provisions into effect, as requiring the issue of certificates upon cash sales, for a period of over twenty-one years, and during twelve successive administrations of the state. Long and uninterrupted practice under a statute, especially by the officers whose duty it was to execute it, is good evidence of its construction, and such practical construction will be adhered to, even though, were it res integra, it might be difficult to maintain it. McKean v. Delancy's Lessee, 5 Cranch, 22; Edwards' Lessee v. Darley, 12 Wheat., 206, 210; Morrison v. Barksdale, Harper, 101; Attorney General v. Bank of Cape Fear, 5 Iredell’s Eq.; Rogers v. Goodwin, 2 Mass., 475; Packard v. Richardson, 17 Mass., 144; Opinion of the Justices, 3 Pick., 517, 518.

In United States v. Gilmore, 8 Wallace, 330, it was held, as stated, and I have no doubt correctly, by the reporter, that “ constructions of statutes, in relation to accounts of individuals witb tbe United States, made by tbe accounting officers of tbe treasury, especially when so long continued as to become a rule of departmental practice, are entitled to great consideration, and will in general be adopted by this court.”

And in tbis case tbe important fact is not to be overlooked, that tbe bigbest law officer of tbe state — tbe attorney general — bas always been one of tbe commissioners, whose duty it was to construe and carry tbe law into effect. Great weight is undoubtedly to be attached to a construction which bas thus been given. During tbe time tbis uniform construction and practice have prevailed, tbe office of attorney general bas been filled by nine different individuals; all of them gentlemen of learning and accomplishment in their profession; and of tbe other commissioners, some have been lawyers, and four at least have since held tbe office of governor. Tbe concurrent opinion and advice of these attorneys general and of tbe other commissioners, extending through a period of so many years, ought, it would seem, to be some evidence of what tbe law is; and some persons might be disposed, perhaps, to think, evidence equal to a decision of tbis court. The supreme court of tbe United States bas on more than one occasion paid great respect to such evidence on questions of statutory construction. Union Insurance Company v. Hoge, 21 How., 36, 66; Havemeyer v. Iowa County, 3 Wallace, 291. In tbe former case tbe court say, speaking of tbe practical construction of an act of the legislature of the state of New York by tbe public officers of that state, including the attorney general, that it is deserving of consideration, and although it cannot be admitted as controlling, it is not to be overlooked, and perhaps should be regarded as decisive in a case of doubt or where tbe error is not plain.

It was suggested on tbe argument, that the opinions and advice of tbe attorneys general should be disregarded, because they were influenced by tbe fees to be obtained upon issuing tbe certificates. It cannot be supposed that those officers could be influenced by any such paltry and unworthy consideration; but tbe truth is, no fees went to the attorney general until the passage of the act of March 19, 1859. Laws of 1859, ch. 189. R. S., ch. 28, sec. 74. Before that time, and when the construction and practice were fully established, the attorneys general may possibly have been influenced by the rule laid down by Judge Story, that a statute prescribing compensation to a public officer, the meaning of which is doubtful, and which is susceptible of a double construction, should be construed in favor of the officer. United States vs. Morse, 3 Story’s R., 87.

And neither is the report of the judiciary committee of the senate of 1866, in pursuance of the resolution directing the inquiry, to be omitted in' our consideration of the question. Senate Journal 1866, pp. 170, 359. It was by gentlemen, five in number, of experience and ability in the legal profession, acting judicially, and, like the attorneys general and others, under the sanction of an official oath. It is part of the practical exposition which the statute has received, and furnishes strong evidence of the sense and meaning of the law, as understood by the legislature itself.

> All these latter considerations and rules of construction enter very strongly into the question upon the theory that the construction is doubtful, and must, in my judgment, have a controlling effect. But, as I have already said, I cannot regard the construction as doubtful upon the words of the statute itself. It is plain and certain that a certificate is in all cases to be given, and that no patent can issue upon presentation alone of the treasurer’s receipt for the money; and to say, upon grounds of convenience or policy or otherwise, that a patent can be so issued, is to attribute to the legislature an intent which the language of the statute clearly denies and forbids. “We are not,” as the court of appeals of Maryland correctly say, “ at liberty to imagine an intent, and bind the letter of the act to that intent, much less can we indulge the license of striking out and inserting and remodelling, with the view of making the letter express am intent wbicb tbe statute in its native form does not evidence. Every construction is therefore vicious wbicb requires great changes in tbe letter of tbe statute.” Alexander v. Worthington, 5 Md., 485.

Tbe only remaining question in tbe case concerns tbe amount of compensation wbicb tbe commissioners were entitled to charge and receive, whether it was fifty cents for each commissioner for every certificate, or only twenty-five cents. This question depends for its solution upon tbe construction and effect of section 22, chapter 537, Laws of 1865. If that section is general in its operation and extends to certificates and patents for all lands held by tbe state and sold by tbe commissioners, then they were entitled to fifty cents each, but otherwise only to twenty-five cents each. It reads as follows: “ Tbe commissioners of school and university lands, in lieu of all compensation for services rendered necessary by this act, shall be entitled each to receive fifty cents on every patent, and fifty cents on every certificate hereafter issued by them; and no revenue stamps need be affixed to such patents or certificates, anything in chapter 159 of tbe general laws of 1863 to tbe contrary notwithstanding.”

Tbe act of wbicb this section is a part, is entitled “ an act to dispose of tbe swamp and overflowed lands, and tbe proceeds therefrom,” and all tbe remaining sections of it relate exclusively to tbe disposition of such lands and of the proceeds. Tbe inquiry therefore is, whether tbe words “ every certificate ” and “every patent hereafter issued” are to be restricted to certificates and patents for swamp lands, or whether certificates and patents for all other lands were intended. Had this section ended with tbe first clause, and no provision been made with respect to revenue stamps, it is not impossible that its operation might have been limited to certificates and patents issued under tbe act; but tbe last clause, providing that no revenue stamps need be affixed to such patents or certificates, clearly indicates that a more extended operation was intended. To limit tbe first clause to certificates and patents for swamp lands would be to limit tbe last clause also, so tbat tbe legislature would be beld to bave intended tbat no revenue stamps sbould be affixed to certificates and patents for swamp lands, whilst to certificates and patents of all other lands tbe same sbould be affixed according to tbe provisions of chapter 159 of tbe laws of 1863.

This construction seems to me quite inadmissible, and quite contrary to what must bave been tbe intention of tbe legislature by tbe clause in reference to revenue stamps. Tbe intention obviously was to withdraw all certificates and patents from tbe operation of tbe act of 1863, as it was well understood by tbe then recent decision of this court (19 Wis. 369), tbat tbe affixing of such stamps could not constitutionally be required by congress. General operation must therefore be given to tbe last clause, according to tbe intention of tbe legislature; and this being so, it follows tbat tbe first clause was also intended to be general in its effect, and, therefore, tbat tbe compensation to which tbe commissioners were entitled was fifty cents for each certificate and each patent issued to tbe plaintiff.

I think tbe judgment of tbe court sbould be affirmed.

LyoN, J.. concurs. Cole, J., dissents.

By the Court. — Judgment affirmed.