precise and unambiguous, there is no room for construction; and the particular intention so expressed is alone to be carried into effect. Though statutes are to be construed with reference to the evil they were designed to suppress, this rule does not apply to include cases not embraced in the language employed or fairly implied, though such cases involve the same mischief.18 "While the courts may interpret doubtful or obscure phrases and imperfect language in a statute so as to give effect to the presumed intention of the legislature, and to carry out what appears to be the general policy of the law, they cannot, by construction, cure a casus omissus, however just and desirable it may be to supply the omitted provision." 19

§ 607 (431). A statute of Connecticut which validated deeds executed and acknowledged in any other state "in conformity with the laws of such state" was held not to apply to a deed of land situated in that state, executed in New York and acknowledged before a Connecticut commissioner, defective by the laws of Connecticut, if executed there, for having but one witness.20 In order to extend a statute by equitable construction beyond its letter, it must be collected from the act that the wrong sought to be redressed was one of the considerations for passing it; otherwise it is a casus omissus which a court of law cannot supply. Where an act denies to one class of suitors a remedy or defense which others enjoy, it will not be extended by equitable construction to cases not specified in it, unless the court is satisfied the case is within the mischief or occasion that was in the

Pac. 169; Fort v. State, 92 Ga. 8, 18 S. E. 14, 23 L. R. A. 86; Springside Coal Min. Co. v. Grogan, 53 Ill. App. 60; State v. Plazza, 66 Miss. 426, 6 So. 316; Broadfoot v. Fayetteville, 128 N. C. 529, 39 S. E. 20; Richardson v. Norfolk & W. Ry. Co., 37 W. Va. 641, 17 S. E. 195; Lord Denman in Green v. Wood, 7 Q. B. at p. 185;

Whiteley v. Chappell, L. R. 4 Q. B. 147.

18 United States v. Chase, 135 U. S. 255, 10 S. C. Rep. 756, 34 L. Ed. 117.

19 McKuskie v. Hendrickson, 128 N. Y. 555, 28 N. E. 650.

20 Farrell Foundry v. Dart, 26Conn. 376.

mind of the legislature at the time of its passage." A statute in Maine provided that "hereafter when any woman possessed of property, real or personal, shall marry, such property shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same as her separate property, exempt from any liability for the debts or contracts of her husband." It was held that under this statute she could not make sales and purchases of property. The court, by Shepley, J., said: "It was the intention of the legislature, as the title of the act declares, to sccure to married women their rights in property, and it should receive such a construction as will make that intention effectual, so far as it can be done consistently with the established rules of law. But courts of justice can give effect to legislative enactments only to the extent to which they may be made operative by a fair and liberal construction of the language used. It is not their province to supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This would be an assumption by the judicial of the duties of the legislative department." 22

§ 608 (432). An act which authorizes a municipal body to open and widen streets according to the procedure therein prescribed, and omits to prescribe a procedure for cases of widening streets, is to that extent inoperative. A statute providing for testing the accuracy of the weights and measures used in selling commodities, imposing penalties on those who use them contrary to the act in selling, is not applicable to persons engaged in buying. The heir at common law inherits except in the particular cases in which the statutes of descent provide for a different disposition of

21 Scaggs v. Baltimore, etc. R. R. Co., 10 Md. 268; Jones v. Smart, 1 T. R. 52; Hull v. Hull, 2 Strob. Eq. 174; Moore v. Indianapolis, 120 Ind. 483, 22 N. E. 424.

24

22 Swift v. Luce, 27 Me. 285. 23 Chaffee's Appeal, 56 Mich. 244, 22 N. W. 871.

24 Southwestern R. R. Co. v. Cohen, 49 Ga. 627.

property," and by construction a court cannot extend such statutes to any other cases.26 An officer having authority in his county to take proof or acknowledgment of all instruments in writing conveying land therein was empowered by a later statute to take acknowledgment of deeds for lands in any part of the state; and it was held that his power to receive proof of instruments was not thereby enlarged.27 There may be no apparent reason why an enactment is confined to one of several things, which might for a similar or for precisely the same reason be provided for; yet, if such enactment is free from ambiguity and uncertainty, the courts cannot extend it.28 A divorce act provided that any order made for the protection of a married woman in respect of her earnings might be discharged by the magistrate who made it; it was held that this power could not be exercised by his successor.29 An act authorized a specified and limited number of banking companies in each of twelve districts, five of which were authorized in H. county; it also provided that the number of such banking companies authorized to be formed and to engage in business in H. county should not exceed four; and the full number having organized, and in good faith engaged in business, it was held that the powers in this respect authorized by the statute were exhausted; that in case of the failure or surrender of the franchise by some of such companies, the statute gave no authority for the organization of new and additional companies to take the place of the defunct ones.30

§ 609 (433). A general act providing for the organization of companies for the manufacture and supply of gas was held not to authorize the creation of a corporation for the purpose of supplying "natural gas" to consumers." In the

25 Johnson v. Haines, 4 Dall. 64. 26 Cresoe v. Laidley, 2 Binn. 279. 27 Peters v. Condron, 2 S. & R. 80. 28 Smith v. Rines, 2 Sumn. 354; Swift v. Luce, 27 Me. 285.

29 Reg. v. Arnold, 5 B. & S. 322; Sharp, Ex parte, 10 Jur. (N. S.) 1018. 30 State v. Chase, Governor, 5 Ohio St. 528.

31 Emerson 108 Pa. St. 111.

V. Commonwealth,

judicial argument to this result the court said: "The judicial power of the government may sometimes impute a legislative intent not expressed with perfect clearness, where the words used import such intent, either necessarily or by a plain and manifest implication. But it would be a dangerous excess of judicial authority, not to be justified by any considerations, for a court to declare a law by the imputation of intent when the words used do not import it, either necessarily or by plain implication, and when all the surroundings of the enactment clearly evince that the construction claimed could not have been within the legislative thought." By a statute an inspector was authorized at all reasonable times to enter any shop, and "there to examine all weights, measures, steelyards or other weighing machines;" "and if upon such examination it shall appear that the said weights and measures are light or otherwise unjust, the same shall be liable to be seized and forfeited." 32 It was held that this statute gave no power to seize and forfeit a weighing machine."

32 5 and 6 W. 4, ch. 63, § 28.

33 Thomas v. Stephenson, 2 E. & B. 108.

CHAPTER XVI.

DIRECTORY AND MANDATORY STATUTES.

§ 610 (446). Preliminary explanation of directory and mandatory statutes.-The consequential distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while a failure to comply with the requirements of the other is productive of serious results. This distinction grows out of a fundamental difference in the nature, importance and relation to the legislative purpose of the statutes so classified. The statutory provisions which may thus be departed from with impunity without affecting the validity of statutory proceedings are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the legislature or some incident of the essential act.1 Directory provisions are not intended by the legislature to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the punctilious observance of the provision in question to the object the legislature had in view. If it be essential it is mandatory, and a departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it.

§ 611 (447). Whether statute directory or mandatory — General considerations. There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. Where the provision is in affirmative words, and there are no negative words, and it relates to the time or manner of doing

1 McKune v. Weller, 11 Cal. 49.