gence, to ascertain the existence of the law, an innocent man might be punished in his person and property for an act which was innocent, for aught he knew, or could by possibility have known, when he did it. (b) The Code Napoleon (c) adopted the true rule on this subject. It declared that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire* after the expiration of * 459 the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes (a) have also declared the very equitable rule that every law, unless a different time be prescribed therein, takes effect throughout the state on, and not before, the 20th day after the day of its final passage. (b) If the statute be constitutional in its character, and has duly gone into operation, the next inquiry is respecting its meaning; and this leads us to a consideration of the established rules of construction, by which its sense and operation are to be understood. 4. Acts, Public and Private. There is a material distinction between public and private statutes, and the books abound with cases explaining this distinction in its application to particular statutes. It is sometimes difficult to draw the line between a public and private act, for statutes frequently relate to matters and things that are partly public and partly private. The most comprehensive, if not the most precise, definition in the English books is, that public acts relate to the kingdom at large, and private acts concern the particular interest or benefit of certain individuals or of particular classes of men. (c) Generally speaking, (b) Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th January, 1808, before notice of the act had arrived. 1 Paine, 23. (c) Art. 1. (a) Vol. i. 157, sec. 12. (b) By the Revised Statutes of Massachusetts, in 1836, it is the thirtieth day after, and by the constitution of Mississippi, as declared in 1833, it is sixty days thereafter. [See Bishop on Written Laws for similar provisions in other states.] (c) Dwarris on Statutes [2d ed. 464]; Gilbert on Ev. 39. [See Holland on the Form of the Law, London, Butterworths, 1870, passim, esp. p. 163.] statutes are public; and a private statute may rather be considered an exception to a general rule. It operates upon a particular thing or private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This is a safe and just rule of construction; and it was adopted by the English courts in very early times, and does great credit to their liberality and spirit of justice. (d) y1 It is supported by the opinion of Sir Matthew Hale, in Lucy v. Levington, (e) where he lays down the rule to be, that though every man be so far a party to a private act of Parliament as not to gainsay it, yet he is not so far *460 a party as to give up his interest. To take the case stated by Sir Matthew Hale, suppose a statute recites that whereas there was a controversy concerning land between A and B, and enacts that A shall enjoy it, this would not bind the interest of third persons in that land, because they are not strictly parties to the act, but strangers, and it would be manifest injustice that the statute should affect them. This rule, as to the limitation of the operation of private statutes, was adopted by the Supreme Court of New York, and afterwards by the Court of Errors, in Jackson v. Catlin. (a) It is likewise a general rule, in the interpretation (d) 37 Hen. VI. 15; Bro. Parliament, pl. 27; Boswell's Case, 25 & 26 Eliz., cited in Barrington's Case, 8 Co. 138, a. (e) 1 Vent. 175. 1 McKinnon v. Bliss, 21 N. Y. 206; Earl of Shrewsbury v. Scott, 6 C. B. N. s. 1, 157. But if a private act in positive and express terms proposes to affect and does affect the rights of parties not before the legislature, a court of law is bound to give effect to the provision. 6 C. B. N. s. 157-160; Edinburgh Railway yl Local and Special Laws. As to when courts will take notice of, see Aiton v. Stephen, 1 App. Cas. 456; Perry v. New Orleans, &c. R. R. Co., 55 Ala. 413. Local and special legislation is forbidden by constitutional provision in many states. Van Riper v. Parsons, 40 N. J. L. 1; People v. Harper, 91 Ill. 357; cases infra. For further discussion as to what constitutes special legislation, see Van Riper v. Par (a) 2 Johns. 268; 8 Johns. 520, s. c. Co. v. Wauchope, 8 Cl. & Fin. 710, 724. It is noticeable that in ultra vires cases the English courts are sometimes careful to state that the act of incorporation in question is a public act, of which all are bound to take notice. East Anglian Ry. Co. v. Eastern Counties Ry. Co., 11 C. B. 775, 811. sons, 40 N. J. L. 123; Sutterly v. Camden Common Pleas, 41 N. J. L. 495; Wheeler v. Philadelphia, 77 Pa. St. 338; Kerrigan v. Force, 68 N. Y. 381. In Gardner v. Newark, 40 N. J. L. 297, it is said that the tendency has been to enlarge the class of public acts, and to make it apply to all acts which in any way affect the public at large. So, Village of Winooski v. Gokey, 49 Vt. 282. of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by necessary implication. (6) There is another material distinction in respect to public and pri (b) 1 Blackst. Comm. 261; Comyns's Dig. tit. Parliament, R. 8; The King v. Allen, 15 East, 333; The King v. Inhabitants of Cumberland, 6 T. R. 194; Story, J., 2 Mason, 314; Commonwealth v. Baldwin, 1 Watts, 54; The People v. Rossiter, 4 Cowen, 143; United States v. Hewes, U. S. D. C. for Pennsylvania, February, 1840, [Crabbe, 307.] In cases of grants by the king, in virtue of his prerogative, the old rule was said to be, that nothing passed without clear and determinate words, and the grant was construed most strongly against the grantee, though the rule was otherwise as to private grants. Stanhope's Case, Hob. 243; Turner & Atkyns B., Hard. 309; Bro. Abr. Patent, pl. 62; 2 Blackst. Comm. 347. But the rule was and is to be taken with much qualification, and applied to doubtful cases, where a choice is fairly open without any violation of the apparent objects of the grant. This was the doctrine in Sir John Molyn's Case (6 Co. 5), where it was held that the king's grant should be taken beneficially for the honor of the king and the relief of the subject; and Lord Coke observed in that case on the gravity or wisdom of the ancient sages of the law, who construed the king's grants beneficially, so as not to make any strict or literal construction in subversion of such grants. He also observed, in his commentary on the statute of quo warranto (18 Ed. I., 2 Inst. 496, 497), that the king's patents, not only of liberties, but of lands, tenements, and other things, should have no strict or narrow interpretation for the overthrowing of them; but a liberal and favorable construction for the making of them available in law, usque ad plenitudinem, for the honor of the king. And it was always conceded in the cases, that if the grant was declared to be made ex certa scientia et mero motu, they were to be construed beneficially for the grantee, according to the intent expressed in the grant, and according to the common understanding and proper signification of the words. Alton Wood's Case, 1 Co. 40, b. In the case of Sutton's Hospital (10 Co. 27), the doctrine was, that a grant for a charitable purpose is taken most favorably for the object, and that the usual incidents to a corporation are held to be tacitly annexed to the charter. And if the royal grant was not in a case of mere bounty or donation, but one founded upon a valuable consideration, the stern rule never applies, and the grant is expounded as a private grant, favorable for the grantee, or rather according to its fair meaning, for the grant is a contract. See a clear and full view of the ancient law on the construction of royal grants, by Mr. Justice Story, in his opinion in Charles River Bridge v. Warren Bridge, 11 Peters, 589-598. See also infra, ii. 556. In addition to the restrictions which the common law has imposed upon the operation of private statutes, they are usually laid under special checks by legislative rules, or by law, as to the notice requisite before a private bill can be introduced. See the notice requisite on the application to the legislature of New York for private purposes. N. Y. R. S. 3d ed. i. p. 161. The constitution of New York (art. 7, sec. 9) requires the assent of two thirds of the members elected to each house, to every bill appropriating public moneys or property for private purposes. So the legislature of North Carolina is prohibited by their constitution, as amended in 1835, from passing any private law, without thirty days' previous notice of application for the law. The caution, checks, and course of proceedings, in the English Parliament, on passing private bills, are detailed at large, and with great precision and accuracy, in May's Treatise upon the Law and Proceedings of Parliament, 383-460. - 35 [ 545] vate statutes. The courts of justice are bound, ex officio, to take notice of public acts without their being pleaded, for they are part of the general law of the land, which all persons, and particularly the judges, are presumed to know. Public acts cannot be put in issue by plea. Nul tiel record cannot be pleaded to a public statute; the judges are to determine the existence of them from their own knowledge. (c) But they are not bound to take notice of private acts, unless they be specially pleaded, and shown in proof, by the party claiming the effect of them. In England the existence even of a private statute cannot be put in issue to be tried by a jury on the plea of nul tiel record, though this may be done in New York under the Revised Statutes. (d) 5. Rules for the Interpretation of Statutes. The title of the act and the preamble to the act are, strictly speaking, no parts of it. (e) They may serve to show the general scope and purport of the act, and the inducements which led to its enactment. They may, at times, aid in the construction of it; (f) but generally they are loosely and carelessly inserted, and are not safe expositors of the law. The title frequently alludes to the subject-matter of the act only in general or sweeping terms, or it alludes only to a part of the multifarious matter of which the statute is composed. The constitution of New Jersey, in 1844, has added a new and salutary check to multitudinous matter, by declaring (g) that every law shall embrace but one object, and that shall be expressed in the title. So also in New York, by the revised constitution of 1846, art. 3, sec. 16, no private or local bill shall embrace more than one subject, and that shall be expressed in the title. The title, as it was observed in United States v. (c) The Prince's Case, 8 Co. 28, a. (d) Dwarris on Statutes, 520; Trotter v. Mills, 6 Wend. 512. (e) The King v. Williams, 1 W. Bl. 95; Mills v. Wilkins, 6 Mod. 62. (f) Sutton's Hospital, 10 Co. 23, 24, b; Boulton v. Bull, 2 H. Bl. 463, 500. (g) Art. 4, sec. 7. 2 The constitutions of many other states contain a similar provision, which, although treated as only directory in California and Ohio, Washington v. Murray, 4 Cal. 388; Pim v. Nicholson, 6 Ohio, N. s. 176; Ohio v. Covington, 29 Ohio St. 102, is said to have been generally considered as mandatory. Cooley, Const. Lim. c. 4, p. 82; c. 6, p. 150; post, 465, n. 1. And it is accordingly laid down that when the title embraces more than one object the whole act will be void, ib. 148; and when the act contained matters not connected with the object named in the title, it has been held to be void as to them, Ryerson v. Utley, 16 Mich. 209; Fisher, (h) when taken in connection with other parts, may assist in removing ambiguities where the intent is 461 not plain; for when the mind labors to discover the intention of the legislature, it seizes everything, even the title, from which aid can be derived. So the preamble may be resorted to in order to ascertain the inducements to the making of the statute; but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble. Notwithstanding that Lord Coke (a) considers the preamble as a key to open the understanding of the statute, Mr. Barrington, in his Observations on the Statutes, (b) has shown, by many instances, that a statute frequently recites that which is not the real occasion of the law, or states that doubts existed as to the law, when in fact none had existed. The true rule is, as was declared by Mr. J. Buller and Mr. J. Grose, in Crespigny v. Wittenoom, (c) that the preamble may be resorted to in restraint of the generality of the enacting clause, when it would be inconvenient if not restrained, or it may be resorted to in explanation of the enacting clause, if it be doubtful. This is the whole extent of the (h) 2 Cranch, 386. (a) Co. Litt. 79, a. Mewherter v. Price, 11 Ind. 199; Savan- Eagle, 8 Wall. 15, 24, looks the other way. nah v. Georgia, 4 Ga. 26. x1 The title of an act of Congress has been said to be of especially little weight, owing to the notorious custom of inserting provisions which have nothing to do with the subject-matter of the act as it appears in the title. Hadden v. The Collector, 5 Wall. 107. But the reasoning of The The whole act was held void in State v. McCann, 4 Lea, 1, because more was embraced in the act than was referred to in the title. But the better view would seem to be that if the part sufficiently referred to can be separated, it should be held valid. Van Riper v. North Plainfield, 43 N. J. L. 349; In the matter of Met. Gas Light Co., 85 N. Y. 526; Jones v. Thompson's Exr., 12 Bush, 394. See generally, Montclair v. Ramsdell, 107 U. S. 147; Unity v. Burrage, 103 U. S. 447; [Hadden v. The Collector is approved in United States v. Union Pac. R. R. Co., 91 U. S. 72, 82.] See Little v. Watson, 32 Maine, 214; Commonwealth v. Slifer, 53 Penn. St. 71; Ogden v. Strong, 2 Paine, 584; Kidder v. Stewartstown, 48 N. H. 290, 292. San Antonio v. Mehaffey, 96 U. S. 312; In construing a statute, the title may be resorted to at least to remove ambiguities in the act. Coomber v. Justices of Berks, 9 Q. B. D. 17, 32, 33; In the matter, &c. Village of Middletown, 82 N. Y. 196; In the matter of Boston, &c. Co., 51 Cal. 624. |