of review in all cases where disappointed partisans could obtain a hearing after being dissatisfied with the rulings of the court.28 § 330 (201). A declaratory statute is sometimes intended to declare the meaning of an existing statute. Such statutes are akin to interpretation clauses,—they are futile and inoperative in legislation when designed to affect rights retrospectively; but will operate prospectively.29 A declaration in an act of the legislature as to what they intended in a preceding act does not make the law retrospectively what is so declared to be intended, if the previous act will not bear that interpretation; though such declared intention will be effective in the future.30 Such statutes will be construed, if possible, as intended only to lay down the rule for future cases.31 § 331 (202). Affirmative and negative statutes.- An affirmative statute is one which is enacted in affirmative terms. A negative statute is one expressed in negative terms. These statutes have very different effects; the former is generally cumulative, the other displaces existing rules. 28 Cooley, Const. Lim. 94; Salters v. Tobias, 3 Paige, 338; People v. Supervisors, 16 N. Y. 424. A mandate of the legislature to the judi ciary, directing what construction shall be placed on existing statutes, is an assumption of judicial power, and unconstitutional. Governor v. Porter, 5 Humph. 165. 29 Postmaster-General v. Early, 12 Wheat. 148, 6 L. Ed. 577; Governor v. Porter, 5 Humph. 165; Greenough v. Greenough, 11 Pa. St. 489, 51 Am. Dec. 567; Reiser v. Tell Ass'n, 39 Pa. St. 137; Kupfert v. Building Ass'n, 30 Pa. St. 465; Lincoln, etc. Ass'n v. Graham, 7 Neb. 173; Moser v. White, 29 Mich. 59; People v. Supervisors, 16 N. Y. 424; Ogden v. Blackledge, 2 Cranch, 272, 2 L. Ed. 276; Dash v. Van Kleeck, 7 John. 477, 5 Am. Dec. 291; Young v. Beardsley, 11 Paige, 93; Ashley, Appellant, 4 Pick. 23. See Reis v. Graff, 51 Cal. 86. 30 Bassett v. United States, 2 Ct.. of Cl. 448. 31 Todd v. Clapp, 118 Mass. 495; Shallow v. Salem, 136 id. 136; McNichol V. United States, etc. Agency, 74 Mo. 457; Bernier v. Becker, 37 Ohio St. 72; Linn v. Scott, 3 Tex. 67; Citizens' Gas Light Co. v. Alden, 44 N. J. L. 648; Lambertson v. Hogan, 2 Pa. St. 22; Journeay v. Gibson, 56 id. 57, 61; James v. Rowland, 52 Md. 462; Le Bois v. Bramell, 4 How. 449, 11 L. Ed. 1051; Bassett v. United States, 2 Ct. of Cl. 448. An affirmative statute does not take away the common law in relation to the same matter. An affirmative provision without any negative expressed or implied makes no alteration in any common-law rule in regard to the same subject-matter. A statute authorizing a tenant in fee to lease for twenty-one years did not affect his common-law right to lease for a longer period." An act authorizing a particular court to try a certain offense does not conflict with an earlier act giving power to another to try the same offense." So a statute imposing a liability on certain persons to repair a road was held not inconsistent with the common-law duty of the parish to make such repairs, and therefore did not impliedly exonerate the parish.35 Where an affirmative statute provides a new remedy for an existing right not inconsistent with the common-law remedy, the latter is not abolished; the new remedy is cumulative, and the party possessing the right may pursue either at his election.36 The same rule applies as between successive statutory remedies 32 Co. Litt. 115a; Jackson v. Bradt, 2 Caines, 169; Bruce v. Schuyler, 9 Ill. 221, 46 Am. Dec. 447; Attorney-General v. Brown, 1 Wis. 513; Mullen v. People, 31 Ill. 444; Nixon v. Piffet, 16 La. Ann. 379; State v. Macon Co. Ct., 41 Mo. 453; Planters' Bank v. State, 6 Sm. & M. 628; White v. Johnson, 23 Miss. 68; De Pauw v. New Albany, 22 Ind. 204; Blain v. Bailey, 25 id. 165; McLaughlin v. Hoover, 1 Ore. 31; Brown v. Miller, 4 J. J. Marsh. 474; Lillard v. McGee, 4 Bibb, 165; South's Heirs v. Hoy, 3 Bibb, 522. 33 Dwar. on St. 475. 34 Co. Litt. 115a. 35 Rex v. St. George's Hanover Square, 3 Camp. 222. See Gibson v. Preston, L. R. 5 Q. B. 219. 36 Caswell v. Worth, 5 E. & B. 849; Waldo v. Bell, 13 La. Ann. 329; Raudebaugh v. Shelley, 6 Ohio St. 307; O'Flaherty v. McDowell, 6 H. L. Cas. 143; Livingston v. Van Ingen, 9 John. 507; Crittenden v. Wilson, 5 Cowen, 165; Stafford v. Ingersol, 3 Hill, 38; Heath, Ex parte, id. 42; Kelly v. Union Township, 5 Watts & S. 536; Renwick v. Morris, 3 Hill, 621; Barden v. Crocker, 10 Pick. 383; Mitchell v. Duncan, 7 Fla. 13; State v. Berry, 12 Iowa, 58; Wilson v. Shorick, 21 id. 332; Coxe v. Robbins, 4 Halst. 384; Mayor, etc. v. Howard, 6 Har. & J. 383; Bearcamp River Co. v. Woodman, 2 Greenlf. 404; Booker v. McRoberts, 1 Call, 243; Almy v. Harris, 5 John. 175; Farmers' Turnpike v. Coventry, 10 id. 389; Fryeburg Canal v. Frye, 5 Greenl. 38; Wetmore v. Tracy, 14 Wend. 250; United States v. Wyngall, 5 Hill, 16; Constantine v. Van Winkle, 6 id. 177; Leland v. Tousey, id. 328. or successive statutes creating rights, and against implied repeal. An affirmative statute giving a new right does not of itself and necessarily destroy a previously existing right, created by another statute to which it does not refer, but will do so if it appears to have been the intention of the legislature that the two rights should not exist together.3 Although a statute provides that a certain thing shall prove a certain fact, this does not render other proof incompetent unless it is explicitly so provided.39 The absence from the code of a principle which has been part of the jurisprudence does not impair its authority.40 § 332 (203). A negative statute is one expressed in negative terms. And here the rule prevails that if a subsequent statute, contrary to a former, has negative words, it shall be a repeal of the former; and a negative statute, it is said too, so binds the common law that a man cannot afterwards have recourse to the latter.41 Of this form and nature is this provision generally found in the statute of limitations: "No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this statute, unless the same is contained in some writing signed by the party to be charged thereby.” Negative words make a statute imperative.12 § 333 (204). An affirmative statute may imply a negative. If a new power be given by an affirmative statute to a certain person by a particular designation, although it be an affirmative statute, still all other persons are in general 37 Gohen v. Railroad Co., 2 Woods, 346, Fed. Cas. No. 5506; Cont. Election of Barber, In re, 86 Pa. St. 392. 38 O'Flaherty v. McDowell, 6 H. L. Cas. 142; Stewart v. Greaves, 10 M. & W. 712. 42 Bladen v. Philadelphia, 60 Pa. St. 464; State v. Smith, 67 Me. 328; Hurford v. Omaha, 4 Neb. 336; People v. Allen, 6 Wend. 486; Liverpool Borough Bank v. Turner, 2 De G. F. & J. 502; Rex v. Newcomb, 4 39 Bethlehem v. Watertown, 51 T. R. 368; Howard v. Bodington, Conn. 490. 40 Martin v. Jennings, 10 La. Ann. 553. 41 2 Inst. 388. L. R. 2 P. Div. 203, 211; Williams excluded from the exercise of the power, since expressio unius est exclusio alterius. Thus, if an action founded upon a statute be directed to be brought before the justices of Glamorgan in sessions, it cannot be brought before any other person or in any other place." If a thing is limited to be done in a particular form or manner it excludes every other mode, and affirmative expressions introducing a new rule imply a negative." Affirmative words which are imperative, and therefore mandatory, imply a negative of anything contrary or alternative to the direction so given.45 Where an act requires that a juror shall have twenty pounds a year, and a later act that he shall have twenty marks, the latter implies an abrogation of the former, otherwise it would have no effect. There is an implied negative in statutes which are intended to prescribe the only rule to be observed; they repeal all acts which provide a different rule. Where a statute creates a right, and also provides the remedy, the latter is exclusive; it implies a negation of any other. 48 So where the same statute creates an offense, 46 43 Sedgw. Const. St. & Const. L. 30. 44 District Township, etc. v. Dubuque, 7 Iowa, 262; Smith v. Stev. ens, 10 Wall. 321, 19 L. Ed. 933; Uncas National Bank v. Rith, 23 Wis. 339; New Haven v. Whitney, 36 Conn. 373; Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100; Burgoyne v. Supervisors, 5 Cal. 22; Watkins v. Wassell, 20 Ark. 410; Perkins v. Thornburgh, 10 Cal. 189. 45 Davison v. Gill, 1 East, 64; Bryan v. Sundberg, 5 Tex. 418. 46 Rex v. Worcestershire, 5 M. & S. 457; Curtis v. Gill, 34 Conn. 49; Gorham v. Luckett, 6 B. Mon. 146; 1 Black. Com. 89. 47 People v. Burt, 43 Cal. 561; Daviess v. Fairbairn, 3 How. 636, 11 L. Ed. 760; Industrial School Dist. v. Whitehead, 13 N. J. Eq. 290; Roche v. Mayor, etc., 40 N. J. L. 257; Swann v. Buck, 40 Miss. 268; Riggs v. Brewer, 64 Ala. 282; Daw v. Metropolitan Board, 12 C. B. (N. S.) 161; Re Spring Street, 112 Pa. St. 258; Re Alley in Kutztown, 2 Woodw. Dec. (Pa.) 373; Sacramento v. Bird, 15 Cal. 294; State v. Conkling, 19 id. 501. 48 Lang v. Scott, 1 Blackf. 405; Smith v. Lockwood, 13 Barb. 209; Almy v. Harris, 5 John. 175; Dudley v. Mayhew, 3 Comst. 9; Thurston v. Prentiss, 1 Mich. 193; State v. Corwin, 4 Mo. 609; Bailey v. Bryan, 3 Jones (N. C.), 357; Ham v. Steamboat Hamburg, 2 Iowa, 460; Conwell v. Hagerstown Canal, 2 Ind. 588; Victory v. Fitzpatrick, 8 Ind. 281; McCormack v. Terre prescribes the penalty and mode of procedure, only what the statute thus ordains is permissible.49 § 334 (205). Preceptive, prohibitive and permissive statutes. When a statute commands certain actions, and regulates the forms and acts which ought to accompany them, it is called a preceptive statute. A prohibitive statute is one that forbids all actions which disturb the public repose, and injury to the rights of others, or crimes and misdemeanors, or when it forbids certain acts in relation to the transmission of estates or the capacity of persons or other objects. A permissive statute is one which allows certain. actions or things to be done without commanding them; as, for example, when it allows persons of a certain description, or, indeed, any person, to make a will," to pre-empt lands, to vote, or to form corporations. Of this nature is a statute which permits a candidate at an election at the polling place or canvass, or that a clergyman accused of an ecclesiastical offense may attend the proceedings of the commission appointed to inquire into the accusation.53 Such statutes Haute, etc. R. R., 9 id. 283; Camden v. Allen, 2 Dutch. 398; West v. Downman, L. R. 14 Ch. Div. 111; Colley v. London, etc. Co., L. R. 5 Ex. Div. 277; Brain v. Thomas, 50 L. J. Q. B. Div. 663; Bonham v. Bd. of Education, 4 Dill. 156, Fed. Cas. No. 1629. There are three classes of cases in which statutes deal with liabilities: 1. Where a liability existed at common law, and was only re-enacted by the statute with a special form of remedy; in such cases the plaintiff has his election unless the statute contains words necessarily excluding the commonlaw remedy. 2. Where a statute has created a liability but given no remedy, there a party may adopt an action of debt or other remedy at common law to enforce it. Wood v. Bank, 9 Cow. 194; Cole v. Thayer, 8 Cow. 249; Gallatian v. Cunningham, 8 Cow. 364; Judson v. Leach, 7 Cow. 152. 3. When the statute creates a liability not exist. ing at common law and gives a particular remedy; here the party must adopt the form of remedy given by the statute. Vallance v. Falle, L. R. 13 Q. B. Div. 109; Bailey v. Bailey, L. R. 13 Q. B. Div. 859; O'Flaherty v. McDowell, 6 H. L. Cas. 143; Steward v. Greaves, 10 M. & W. 711. 49 Bashaw v. State, 1 Yerg. 177, 185; Stradling v. Morgan, 1 Plowd. 206; Slade v. Drake, Hobart, 295; Bish. W. L., § 250. 501 Bouv. Inst. 48. |