changed by doubtful implication, nor overturned except by clear and unambiguous language." 44 And in case of doubtful construction or of conflicting statutory provisions, that interpretation should be given which best 'protects the rights of a person charged with an offense to a trial according to the common-law." 45

§ 70. Prior judicial construction. When the legislature enacts a statute which is substantially the same as one which has already received a judicial construction, it will be presumed to have known that construction, and to have intended to adopt it.46 And words which have received a judicial interpretation, and have a fixed and well-known legal significance, are presumed to have been used in that sense, unless a contrary intention clearly appears.47

§ 71. Construction as a whole. In construing a statute, the intention of the legislature is not to be ascertained from any particular expression or section, but from the whole act. It is a cardinal principle that a statute is to be construed as a whole, and effect is to be given, if possible, to every section and clause.48 And all the words. used in the act are to be given force and meaning.49 But if two provisions or clauses of the same statute are so repugnant that they cannot stand together, that which is later in position will prevail.50

the courts are not bound by that construction which obtained with reference to the common-law offense." Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217.

44 State v. Hildreth, 82 Vt. 382, 74 Atl. 71, 24 L. R. A. (N. S.) 551, 137 Am. St. Rep. 1022, 18 Ann. Cas. 661.

45 People v. Craig, 195 N. Y. 190, 88 N. E. 38, rev'g 129 App. Div. 851, 114 N. Y. Supp. 833, which aff'd 60 Misc. 529, 112 N. Y. Supp. 781.

46 O'Byrnes v. State, 51 Ala. 25; Sopher v. State, 169 Ind. 177, 81 N. E. 913, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27; State v. Brewer, 22 La. Ann. 273.

47 State v. Jones, 91 Ark. 5, 120 S. W. 154, 18 Ann. Cas. 293.

48 Colorado. Dekelt v. People, 44 Colo. 525, 99 Pac. 330.

Idaho. People v. Ah Ho, 1 Idaho 691.

§ 72. Construction of statutes together. In ascertaining the meaning of a particular statute, all statutes in pari materia are to be taken into consideration. In other words, all statutes on the same subject, whether enacted on the same day, or on different days of the same session, or at different sessions, are to be taken together as one law.51

§ 73. Construction in connection with the constitution. Unless a contrary intention clearly appears, it is to be presumed that the legislature intended a statute to be in accordance with constitutional provisions, and statutes, therefore, are to be construed in connection with the constitution, and, if possible, so as to be in accordance therewith.52 Every presumption is in favor of the constitutionality of a statute. Any doubts must be resolved in favor of its validity, and no statute will be declared unconstitutional unless it is clearly so beyond any reasonable doubt.58

So. 369; In re Roberts, 157 Cal. 472,
108 Pac. 315.

51 United States. United States v.
Stever, 222 U. S. 167, 56 L. Ed. 145,
32 Sup. Ct. 51; MacDaniel v. United
States, 87 Fed. 324, certiorari denied
171 U. S. 689, 43 L. Ed. 1179, 19 Sup.
Ct. 885.

Indiana. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; State v. Hope, 15 Ind. 474; State v. Rackley, 2 Black f. 249.

Iowa. State v. Sherman, 46 Iowa

Sneed 98; Howlett v. State, 5 Yerg. 144.

Texas. Cain v. State, 20 Tex. 355; Fondren v. State, 74 Tex. Cr. 552, 169 S. W. 411.

52 Adams v. New York, 192 U. S. 85, 48 L. Ed. 575, 24 Sup. Ct. 372; People v. Peacock, 98 Ill. 172. And see United States v. Standard Brewery, 251 U. S. 210, 64 L. Ed. 229, 40 Sup. Ct. 139, aff'g 260 Fed. 486; United States v. Jin Fuey Moy, 241 U. S. 394, 60 L. Ed. 1061, 36 Sup. Ct. 658, Ann. Cas. 1917 D 854, aff'g 225 Fed. 1003; Whaley v. State, 168 Ala. 152, 52 So. 941, 30 L. R. A. (N. S.) 499; Eskridge v. State, 25 Ala. 30; People v. McBride, 234 Ill. 146, 84 N. E. 865, 123 Am. St. Rep. 82, 14 Ann. Cas. 994; State v. Donaldson, 41 Minn. 74, 42 N. W. 781.

See also § 36, supra.

Of two permissible constructions, that one under which the law is valid will be adopted rather than one under which it would not. In re Ahart, 172 Cal. 762, 159 Pac. 160. 58 See $36, supra.

§ 74. Expression of one thing an exclusion of others. The maxim, cxpressio unius est exclusio alterius, applies in the construction of penal statutes.54

§ 75. Special enumeration followed by general words. In the construction of penal statutes, the courts are also governed by the general rule that general words following an enumeration of a particular class of persons or things or acts will be construed as applicable to cases or matters ejusdem generis, that is of like kind with those described by the particular words, in the absence of a clearly manifested legislative intent to the contrary.55 But the purpose of the rule is

Illinois. Marquis v. City of Chicago, 27 Ill. App. 251.

Indiana. Mendenhall v. State, 189 Ind. 175, 126 N. E. 434.

Iowa. State v. Gardner, 174 Iowa 748, 156 N. W. 747, L. R. A. 1916 D 767, Ann. Cas. 1917 D 239.

Kansas. State v. Jett, 69 Kan. 788, 77 Pac. 546; State v. Doty, 57 Kan. 835, 48 Pac. 145; State v. Hardin, 1 Kan. 474.

Minnesota. State V. Shaw, 39 Minn. 153, 39 N. W. 305.

Missouri. State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842; State v. Bryant, 90 Mo. 534, 2 S. W. 836; State v. Grisham, 90 Mo. 163, 2 S. W. 223.

New York. People v. Todd, 51 Hun 446, 4 N. Y. Supp. 25.

Texas. Ex parte Lingenfelter, 64
Tex. Cr. 30, 142 S. W. 555, Ann. Cas.
1914 C 765.
Virginia.
Gratt. 884.
Washington. State v. Eberhart, 106
Wash. 222, 179 Pac. 853.

Nuckolls V. Com., 32

England. Rex v. Inhabitants of Whitnash, 7 Barn. & C. 596.

Where a statute provided that "no tradesman, artificer, workman, laborer, or other person whatsoever," should exercise his ordinary calling on Sunday, it was held that the words "other person whatsoever'' were intended to refer to persons of like denomination with those specially mentioned, and not to all persons, without regard to their occupation, and that the statute, therefore, did not apply to farmers. Rex v. Inhabitants of Whitnash, 7 Barn. & C. (Eng.) 596.

Theaters and such other amusements as are exhibited and for which an admission fee is charged" as used in a statute prohibiting the keeping of such places open on Sunday includes moving picture shows. Ex parte Lingenfelter, 64 Tex. Cr. 30, 142 S. W. 555, Ann. Cas. 1914 C 765.

The words "other building" in a statute making it burglary to break and enter any shop, store, booth, tent, warehouse or other building,"

to carry out, and not to defeat, the legislative intent,56 and it will not be applied where it would result in defeating that intent, as evidenced by the entire act,57 or in giving the general words no meaning.58 So where the particular words exhaust the class by embracing all the things capable of being classed as of their kind, the general words must be construed as embracing something outside of that class.59

F. Intention to Make Prohibited Act a Crime

§ 76. In general. Whether a statute which prohibits an act and imposes a penalty for its commission makes the act a crime, and requires the penalty to be imposed in a criminal prosecution, or merely subjects the person doing the act to liability in a civil action, depends upon the intention of the legislature, as gathered from the whole act, the terms used in it, and the purpose of the prohibition.60 To make an act a crime, the statute need not expressly and in terms declare it to be a crime, or a felony, or a misdemeanor,61 nor need it in express

were held not to include a chicken house building. State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842. See Shirk v. People, 121 Ill. 61, 11 N. E. 888.

56 United States v. Mescall, 215 U. S. 26, 54 L. Ed. 77, 30 Sup. Ct. 19, rev'g 164 Fed. 580; Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930.

57 State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179; Ex parte Berger, 193 Mo. 16, 90 S. W. 759, 3 L. R. A. (N. S.) 530, 112 Am. St. Rep. 472, 5 Ann. Cas. 383; Salt Lake City v. Doran, 42 Utah 401, 131 Pac. 636.

Where it is apparent that the legis lature intended by the general words to go further than the particular ones. People v. Gogak, 205 Mich. 260, 171 N. W. 428; McDade v. People, 29 Mich. 50.

58 In such case they will be given their natural meaning. Ex parte Lingenfelter, 64 Tex. Cr. 30, 142 S. W. 555, Ann. Cas. 1914 C 765.

59 United States v. Mescall, 215 U. S. 26, 54 L. Ed. 77, 30 Sup. Ct. 19, rev'g 164 Fed. 580; State v. Smith,

233 Mo. 242, 135 S. W. 465, 33 L. R. A. (N. S.) 179; Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930.

60 In Wisconsin it was held that a statute subjecting to a pecuniary penalty only any person who should wilfully obstruct a public highway, to be recovered in an action brought in the name of the state, did not create a criminal offense, and that an actionby the state to recover the penalty was a civil action. State v. Smith, 52 Wis. 134, 8 N. W. 870; State v. Hayden, 32 Wis. 663.

As to the act of congress excluding Chinese from the United States, see United States v. Hing Quong Chow, 53 Fed. 233.

61 United States. United States v. Joyce, 138 Fed. 455.

Florida. Fine v. Moran, 74 Fla. 417, 77 So. 533.

Iowa. Bopp v. Clark, 165 Iowa 697, 147 N. W. 172, 52 L. R. A. (N. S.) 493, Ann. Cas. 1916 E 417; State v. York, 131 Iowa 635, 109 N. W. 122.

Louisiana. State v. Allen, 129 La. 733, 56 So. 655, Ann. Cas. 1913 B 454.

terms prohibit the doing of the act,62 nor declare it to be unlawful.63 According to some courts, no act can be a crime unless some penalty is provided for its commission.64 But in other jurisdictions it is held.