Kelly v. Dewey

My inability to concur in the majority opinion of course is not due to disagreement with the desirability of the result attained by the construction which it accords to § 2 of Chapter 285 of the Public Acts of 1929, but it springs from a conviction that such a construction is precluded by fundamental and controlling rules of law which should not be sacrificed or transgressed in order to effect a result deemed desirable in an individual case. In the construction of statutes the intent is to be sought, first of all, in the words and language employed, and if the words are free from ambiguity and doubt there is no occasion to resort to other means of interpretation.Swits v. Swits, 81 Conn. 598, 599, 71 A. 782; McKay v. Fair Haven W. R. Co., 75 Conn. 608, 611,54 A. 923; 2 Lewis' Sutherland Statutory Construction (2d Ed.) § 367. Our concern is, not what did the legislature intend to say, but what is the intent expressed by what it did say. Connelly v. Bridgeport, 104 Conn. 238,249, 132 A. 690; Chamberlain v. Bridgeport,88 Conn. 480, 490, 91 A. 380; State v. Faatz, 83 Conn. 300,305, 76 A. 295; Walsh v. Bridgeport, 88 Conn. 528,534, 91 A. 969. "We must construe the Act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions." Murphy v. Way, 107 Conn. 633,639, 141 A. 858; State ex rel. Lewis v. Turney,97 Conn. 496, 504, 117 A. 499; Corbin v. American IndustrialBank Trust Co., 95 Conn. 50, 110 A. 459. If the language is unambiguous "the judiciary is powerless to intervene even to remedy a mistake. To attempt to do so would be a palpable exercise of legislative functions." McKay v. Fair Haven W. R. Co.,supra, p. 611. The provisions of the Act under consideration are not ambiguous; the language of each section is so clear as to leave no room for question as to the meaning expressed thereby. Hence the above rules are applicable and controlling and those by which resort may be had to inferences and extraneous aids where the intention is not clearly expressed by the language used are not available.

There is a further reason why the present case does not afford appropriate occasion for application of the rule, invoked and principally relied upon by the majority opinion, by which, in construing an Act covering, in a single enactment, an entire subject, all its component parts are to be considered together "upon the assumption that the law was intended to be read as a whole with each provision in harmony with every other." New Haven Orphan Asylum v. Haggerty Co.,108 Conn. 232, 239, 142 A. 847. Enactments to which this rule applies are illustrated by the mechanics' lien law, involved in the case just cited and inHartford Builders Finish Co. v. Anderson, 99 Conn. 343,122 A. 76, and the Act of 1919 providing for payment to discharged soldiers, sailors and marines, involved in Bissell v. Butterworth, 97 Conn. 605,118 A. 50, — the Connecticut cases upon which the majority rely on this point. The Act now under consideration (Chapter 285 of the Public Acts of 1929) amended, by separate sections, statutes which are not only physically separate but are distinct in reason and purpose. Chapter 175 of the Public Acts of 1921, which was amended by § 2 of the 1929 Act, originated as one section of the general probation Act of 1903, and was so retained in the Revision of 1918. The Act of 1923 (Chapter 62) amended by § 1 of the 1929 Act obviously was passed to meet a different situation and serve a distinct purpose — to permit courts to suspend execution of sentence, without commitment to a probation officer (which was mandatory when sentence was suspended under the probation Act) substituting for probation the revocation of the suspension upon another conviction within the year. Otherwise there would have been no occasion for passing the 1923 Act.

The fact that the 1929 amendments of these two separate statutes were effected by including them in one chapter is without apparent significance other than convenience and that they pertained to related subjects. Each of these sections is complete in itself and, so far as appears, covers the entire subject-matter intended; each should be construed independently so far as concerns reading, by implication, provisions of one into the other. Plainly the intent expressed in the amendment of the 1923 Act was both to except the specified cases from those in which sentence could be suspended without probation under the Act of 1923, and to require that in other cases suspension be justified by circumstances, made a matter of record. It is equally clear that the only addition to the probation Act which § 2 manifests an intent to make is to require the facts upon which the continuance or suspension is based to be made a matter of record. A belief, on our part, that the same exceptions should have been embodied in the latter statute as in the former, or even an assumption that the General Assembly so desired and intended, does not enable us to insert it by implication. To do so transgresses the limits of a proper exercise of judicial powers and constitutes an invasion of functions which are distinctively legislative. McKay v. Fair Haven W. R. Co.,supra.

In this opinion MALTBIE, J., concurred.