Imágenes de páginas
PDF
EPUB

Opinion of the Court, per PECKHAM, J.

specifically confined to bills drawn on "their face" in days or on a specified day, which are usually short bills. Where the bill says pay on such a day or one day after sight, it did not mean three days thereafter. But the holder should get his money upon such short bills at the day specified.

The construction claimed by the plaintiff would abolish grace upon all time bills on banks or bankers, which was never intended, or it would have been easily expressed.

It is also a rule that statutes, in derogation of the common law, are to be strictly construed. (Bussing v. Bushnell, 6 Hill, 382; Rue v. Alter, 5 Denio, 119.) Though I place but little emphasis upon the rule for this construction. The case of Lefthy v. Mills (4 Tr. R., 170) throws light upon this question. The act there provided for a protest of bills, etc., payable in days "after date;" but the bill drawn was payable "fourteen days after sight," and the court held the statute did not "attach" to such a bill.

In my judgment, the statute of 1857 does not attach to this bill. It follows that it was not due until the 7th of January. It was therefore delivered for protest upon the wrong day. In such case I think the bank committed the error in delivering the bill on the wrong day for protest, and it is liable therefor to the plaintiff. (Am. Ex. Co. v. Haire, 21 Ind., 4.) The notary was directed by the bank to protest the bill. It virtually decided that there was no grace thereon. The notary is not presumed to be a lawyer who is to revise or reverse the decision of his employer as to the character of the bill, and whether it is entitled to grace or not.

The bills and notes (fifty-two in all) delivered on this day to the defendant as notary, were delivered for protest, not for advice from him as a lawyer. Doubtless the action of the bank misled him.

If the bill was not entitled to grace, it was no doubt protested at the right time, as it is held that such bills are due upon the day following, not preceding a public holiday. (Salter v. Burt, 20 Wend., 205; Avery v. Stewart, 2 Conn., 69.)

Statement of case.

There are other questions, but as these will dispose of the case it is not important to discuss them.

[April,

Judgment should be reversed, new trial granted, costs to abide the event.

ALLEN, FOLGER and RAPALLO, JJ., concur.

CHURCH, Ch. J., and GROVER, J., concur upon first ground.
Judgment reversed.

ANDREW P. SETTLE, Respondent, v. JAMES R. Van Evrea, Appellant.

Where the terms of a written constitution are clear and unambiguous, and have a well understood meaning and application, effect must be given to the intent of its framers as indicated by the language employed. The operation and effect of the instrument will not be extended by construction beyond the fair scope of the terms employed, merely because the more restricted and literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be to some extent within the reasons which led to the introduction of some particular provision, plain and precise in its terms.

A commissioner of appeals is not a judge of the Court of Appeals, and is not prohibited by section 21 of article 6 of the State Constitution from acting as referee.

(Argued April 23d, 1872; decided April 30th, 1872.)

APPEAL from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term denying a motion to vacate an order of reference.

An order was entered by stipulation referring this action to Hon. ROBERT EARL to hear and determine. A motion was made on behalf of defendant to vacate the order upon the ground that the referee being a commissioner of appeals could not act, which motion was denied.

Samuel Hand for the appellant. In construing a constitution, the intent of the framers must be sought for, and

Opinion of the Court, per ALLEN, J.

when discovered is to prevail over the literal meaning of the words. (People ex rel. Jackson v. Potter, Ct. of Appeals, Jan., 1872.)

D. S. Morrel for the respondent., The language of section 21, article 6 of the Constitution is clear and precise, and does not include commissioners of appeals. (Smith's Com., 6.7.)

ALLEN, J. A fundamental rule, in the interpretation of written laws or instruments of any kind, is to construe them according to the sense of the terms and the intention of the framers of the laws or parties to the instruments. That intention is first to be sought from the words employed, and if the language is unambiguous, the words plain and clear, conveying a distinct idea, there is no occasion to resort to other means of interpretation. Effect must be given to the intent as indicated by the language employed. Especially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with care, and adopted by the people as the organic law of the State.

If to meet exigencies and to prevent mischiefs it is allowable, sometimes, to depart from the strict letter of a law and imply an intent not clearly expressed in the construction of ordinary statutes, which may be framed in haste and with none of the formalities that attend the preparation and adoption of a State Constitution, it would be dangerous in the extreme to extend the operation and effect of a written Constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms.

That would be pro tanto to establish a new Constitution and do for the people what they have not done for themselves. The terms of the instrument being clear and free from doubt, and having a well understood meaning and application, the SICKELS-VOL. IV.

36

[ocr errors]

Opinion of the Court, per ALLEN, J.

better way is to stand upon the maxim ita lex scripta est, and leave any supposed defect or omission to be remedied by the people or by legislation.

The question whether commissioners of appeals should be subject to all the provisions affecting judges of the Court of Appeals, and of other courts, is one of policy, or, perhaps, convenience, and does not involve any principle or interfere with the general scheme of the judiciary article.

Full effect can be given to every part and provision, according to its terms, by adhering to the ordinary rules of interpretation, and restricting the operation of the section prohibiting certain judicial officers from acting as referees to the judges and justices expressly named. The whole judiciary article (art. 6) is framed with care, and its authors closely and clearly discriminated between the different courts and classes of judicial officers referred to in it. The Court of Appeals is constituted by section two, and is made to consist of a chief judge and six associate judges. These are the judges of the Court of Appeals, and the only judges of that court. By section four, all causes pending in the then existing Court of Appeals were, upon the organization of the present court, vested in it, and the former court ceased to exist. There was and is but one Court of Appeals, but the causes which were pending in the former court on a day named were ordained to be heard "by a Commission of Appeals," to be composed of "five Commissioners of Appeals," with power in the Court of Appeals to order any of such causes to be heard in that court.

The existence of the commission was limited to three years. It was a tribunal created for a temporary purpose and was not a part of the permanent judicial organization, and the members were not a part of the permanent judicial force of the State. Hence they were not necessarily included in many of the important provisions of the Constitution affecting the judicial system then organized, and the judges of the permanent courts then established.

The tribunal is called a "commission of appeals," and the

Opinion of the Court, per ALLEN, J.

members of it "commissioners of appeals," or "commissioners," whenever any reference is made to it or them. Subsequent sections (§§ 6, 7) provide for a Supreme Court, to be composed of "the justices now in office" and for the organization of the general terms of that court.

Section 8 declares that no "judge or justice shall sit at a general term or in the Court of Appeals" in review of his own decision. The terms used in designating the officials and the courts are strictly applicable to the Court of Appeals and Supreme Court, and to them only, and do not describe the commission or the commissioners of appeals.

Section 10 prohibits the judges of the Court of Appeals and the "justices of the Supreme Court" from holding any other office. The convention used the same words before used in the creation of the offices referred to, properly designating the one as "judges" and the other as "justices" of the respective courts, but neither title is equivalent to or synonymous with "commissioner," and cannot without resorting to an undue latitude of interpretation be held to indicate any other judicial officer than those expresssly named.

It would be to disfranchise by implication. "Judges of the Court of Appeals and justices of the Supreme Court," may be removed by concurrent resolutions of the legislature. Other "judicial officers," which includes "commissioners of appeals," may be removed by a different process. (§ 11.)

Commissioners of appeals are judicial officers, and doubtless judges in the ordinary sense of that term, but they are not named as judges in the Constitution, and are not judges of the Court of Appeals or justices of the Supreme Court.

The salaries of the "judges and justices," mentioned in the sections preceding the 14th, are regulated by that section, and their diminution during their term of office prohibited.

The compensation of commissioners of appeals was left to the discretion of the legislature. A permanent provision was not necessary.

The section under which the question before us arose is

« AnteriorContinuar »