Nance v. Southern Railway

CLARK, C. J., and HOKE, J., dissenting. This was an action to recover a penalty alleged to have accrued against defendant for refusing to permit plaintiff, standard-keeper of Surry County, to examine and adjust defendant's scales used by it at Pilot Mountain, N.C. There was no evidence that the scales were used in "buying or selling." Plaintiff showed that defendant used them in "weighing freight for shipment." His Honor being of the opinion that plaintiff could not recover rendered judgment of nonsuit. Plaintiff appealed. The right of the plaintiff to maintain this action depends upon the construction of ch. 77, sec. 3073, Revisal. The defendant insists that, correctly construed, the penalty is incurred only by a person "buying and selling" by weights and measures, and that, as it does neither, it is not within the language or spirit of the statute. Sec. 3063, ch. 77, provides, that no trader or other person shall buy or sell, or otherwise use in trading any other, etc. Sec. 3067: "If any person, after demand by the standard-keeper for permission to examine and adjust the same, shall buy, sell or barter, by any weight or measure which shall not be tried by the standard-keeper, etc., he shall forfeit and pay $40," etc. Sec. 3073 provides: "Every personusing weights and measures and steelyards . . . shall allow and permit the standard-keeper of the county to try, examine and adjust by the standard, at least once every two years, all the said weights and measures . . . used in weighing; and every trader or dealer by profession and every miller, at least once in every two years thereafter, shall permit their weights, measures, etc., used in weighing, to be examined and adjusted by the standard-keeper of the county in which such weights, etc., are used . . . and every person using, buying or selling by weights and measures who shall neglect to comply (368) with the requisites of this section shall forfeit $50, to be recovered at the instance of the standard-keeper, one-half to his use and the other half to the use of the county wherein the offense is committed."

Before proceeding to discuss the principal question presented upon the appeal, we desire to call attention to the italicized sentence found in sec. 3073, and the history of the legislation upon the subject. The first statute relating to weights and measures in this State was enacted in 1741, ch. 32. See Laws 1715-1796, p. 146. It will be well to note the provisions of this statute and the amendments made to it, for the purpose of aiding in the construction of Revisal, sec. 3073. The act of 1741, sec. 1, provides: "That no inhabitant or trader shall buy orsell or otherwise make use of in trading," any other than standard weights and measures. Sec. 3 makes it the duty of the justices to provide standard weights and measures and appoint a standard-keeper. Sec. 4: "That any person whatsoever using weights or measures shall bring all their measures and weights to the keeper of the standard, where such person shall reside or trade, to be there tried by the standard, sealed and stamped; and if any person or persons shall buy, sellor barter by any weights or measures which shall not be stamped," a penalty of ten pounds is imposed. Sec. 4: "And whereas steelyards, by use are subject to alteration," it is enacted "that all persons who shall use, buy or sell by steelyards shall once in every year try the same with the standard and take a certificate from the keeper, upon pain of twenty shillings, proclamation money." By ch. 965, Laws 1818, the act was again amended, "providing that every trader, buying or selling by weights and measures, shall before the first day of May next, and at least once every two years thereafter, cause their weights and measures to be examined, etc. And every trader buying or selling by weights and measures, neglecting to comply with the requisites of this act, shall forfeit the sum of fifty dollars," etc. Some doubt having arisen as to the proper construction of the statute, as (369) amended, the Legislature of 1823, Laws, ch. 48, enacted: "That no person except traders and dealers by profession, and millers, shall be required to restamp their weights and measures, any law to the contrary notwithstanding." This statute removed any possible doubt as to the state of the law, and no further amendment was made to it when, in 1834, the commission composed of Judges Iredell, Nash and Battle revised the statute law of the State. In ch. 120 Rev. State., they incorporated into sec. 4 the original statute as amended, in these words: "Every person whatsoever using weights and measures shall bring them to the keeper of the standard where such person shall reside, to be there tried by the standard; and every trader or dealer by profession and every miller, shall, at least once in every two years thereafter, cause their weights and measures to be tried and adjusted." There can be no doubt that the careful and learned commissioners so construed the original statute and the amendments made previous to that time. No change was made by the several revisals of our statute law, as will be seen by reference to Rev. Code (1854), ch. 117, sec. 5; Battle Rev. (1875), ch. 116, sec. 5; Code (1883), ch. 65, sec. 3841; until 1893 (Laws 1893, ch. 100), when an act was passed making it the duty of every person using weights and measures, to allow and permit the standard-keeper to examine and adjust by the standard, once in every two years, their weights and measures used in weighing. This review of the legislation upon the subject throws light upon the construction of the words used in the clause of sec. 3073, upon which plaintiff's alleged cause of action is founded. It will be conceded, that as the statute stood from 1823 until 1893 no duty was imposed upon any other persons than "traders or dealers by profession and millers," to have their weights and measures stamped once, and "every two years thereafter." That being so, when the Legislature came to (370) impose a penalty for neglecting to "comply with the requisites of this section," it confined the penalizing language to "every person using, buying or selling." It will be noted that they are the same words used in the act of 1818, ch. 965, which is expressly limited to "every dealer buying or selling," and a legislative declaration is made in 1823, ch. 48, that they applied to "no person except traders and dealers by profession." It is difficult to foresee the results flowing from such a radical change in a statute which affects almost every home and household in this State, subjecting them to penalties which, if enforced, would seriously embarrass thousands of our citizens.

As the law is now written, it is made the duty of every person using weights and measures in North Carolina to have them tried by the standard-keeper "at least once in every two years." We have no power or right to strike the words out, or to construe them away. The language, in that respect, is too plain for construction. Every housewife, who has draw steelyards, balances, or any other kind of weights, quart or pint measures in her pantry, which she uses for domestic purposes, must allow and permit the standard-keeper at least once in two years to try them. Every farmer who uses them for his domestic or agricultural purposes to weigh in his cotton, measure in his corn, peas or other crops, whether for his own use or simply to enable him to know the yield of his land, is under like obligation. This strange result is rendered still more so when we turn to the first section of the statute and find that no one, other than a trader or other person, who shall buy or sell, or otherwise use in trading, any weights or measures, is required to use such as are according to the standard. In other words, a housewife who has learned that a tumbler holds a half pint, or a farmer that a rock picked up in his field weighs two pounds or a piece of iron one pound, may use it in measuring or weighing, but if either uses a "weight or measure" they must have it tried by the standard. (371) When we turn to sec. 3067 we find that any person who, after demand by the standard-keeper for permission to examine or adjust his weights and measures, shall buy or sell or barter by such weights, etc., not tried, shall be penalized — but he may use them in any other way with impunity. The plaintiff insists that not only is the duty imposed prescribed by sec. 3073, but that for a "neglect to comply" with his demand, every person shall "forfeit fifty dollars," one half of which is for his own use. We are thus brought to inquire what, if any, effect shall be given to the words used in the penalizing clause, "using, buying or selling by weights and measure." The plaintiff insists that they perform no office, have no force and effect. That the word using, being all comprehensive, overshadows and, for all practicable purposes, eliminates them. It is an elementary rule in the construction of a statute that, in ascertaining the intention of the Legislature, resort must first be had to the language used; in other words, the statute must, if possible, be made to speak for itself. If the Legislature has used language of clear import, the court should not indulge in speculation or conjecture for its meaning. In applying this rule the entire sentence, section or statute must be taken into consideration, and every word must be given its proper effect and weight. Courts are not permitted to assume that the lawmaker has used words ignorantly or without meaning, unless compelled to do so to prevent a manifestly absurd result. It is a rule of construction, that when words of general import are used and, immediately following and relating to the same subject, words of a particular or restricted import are found, the latter shall operate to limit and restrict the former. "One provision may be qualified by another, although it does not profess to have that effect. Words expressive of a particular intent incompatible with other words expressive of a general intent, will be construed to make an exception so that all parts of the act may have effect." "The context may thus serve to engraft an (372) exception by implication to dispose of an apparent conflict." 2 Lewis' Sutherland, Stat. Const., sec. 345. "It is the duty of the court to adopt that sense which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the Legislature." U.S. v. Winn, 3 Sumner, 209. This is illustrated in many decided cases and appeals to common sense, as if A write B, "I will come to Raleigh, Southern Railroad, tomorrow," would B have any doubt that A meant to say that he would come on the Southern Railroad to the exclusion of other roads? Would his meaning be made clearer if he had written "by Southern Railroad?" "What the legislative intent was can be derived only from the words they have used. The spirit of the act must be extracted from the words of the act and not from conjecture aliunde." Story, J., in Gardner v. Collins,27 U.S. 93. "In the construction, both of statutes and contracts, the intent of the framers and parties is to be sought first of all in the words and language employed, and if the words are free from ambiguity or doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, or, when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes should be read and understood according to the natural and most obvious import of the language without resorting to subtle and forced construction for the purpose of either limiting or extending their operation." McCluskey v. Cornwell,11 N. Y., 593. In S. v. R. R., 157 Ind. 288, the statute required the road to place in a conspicuous position at its depot a blackboard of fixed dimensions and to write thereon, at a stated time before trains were due, the time of their expected arrival. It imposed a penalty for making a false report. Suit was brought for penalties "for (373) failing to maintain a blackboard and to the failure to put it up in a conspicuous place and to write the required information within the time fixed by the statute." Hadley, J., said: "While it was undoubtedly competent for the Legislature to attach a penalty to the failure to place the blackboard of the prescribed dimensions and put it up in a conspicuous place . . . it was equally competent for that body to omit a penalty for such things and impose it upon the neglect of what it deemed a more important duty." In R. R. v. Cohen, 49 Ga. 627, the statute required standard weights and measures used in selling commodities. The Court held that it could not be extended to include weights used by persons in buying, saying: "We have no authority to extend the law to cases not included in its terms. It is a penal law . . . It would be contrary to well settled rules to give this act the construction contended for, or to apply it to cases outside of its plain terms." In Coe v. Lawrence, 72 E.C.L. (1 Ellis B.), 516, it was sought to recover a penalty for violating a statute. Defendant claimed that he was not within its terms. It was insisted that the Court could find an intention to include him. LordCampbell, C. J., said: "We are not justified in inserting words for the purpose of extending a penalty clause to cases not expressly comprehended in it. . . . By putting the correct grammatical construction on the words, we may, perhaps, induce greater care on the part of those who frame the laws." Lord Coleridge said: "I never heard that it was allowable to insert words for the purpose of extending a penal clause. . . . And even if that were not so, it is quite wrong to alter the language of a statute for the purpose of getting at its meaning," and of the same opinion were all the judges. In Thomas v. Stephenson, 75 E.C.L. (2 Ellis B.), 108, a standard-keeper entered a shop and seized a weighing machine. It was held that the machine was not within the language of the statute and he was compelled to surrender it. In S. v. R. R., supra, the learned justice said: "The (374) Court must interpret such a statute as it finds it. It cannot supply omissions by intendment." He quotes with approval these words: "When the penal clause is less comprehensive than the body of the act, the courts will not extend the penalties provided therein to classes of persons or things not embraced within the penal clause, even when there is a manifest omission or oversight on the part of the Legislature." 26 A. E., 660. If, as is manifest, the Court cannot insert words to enlarge its scope, certainly they may not strike them out to reach a class of persons which they clearly exclude. We have thus far confined the discussion to the obvious meaning of the words "buying or selling" as related to the word "using." Unless they restrict, limit, the word "using," they have no force or effect, and the lawmakers for more than a century and the several Code Commissions have done a vain thing. We may not thus eliminate the words without violating the first principle of construction.

If, however, the words in controversy are of doubtful meaning, and we were compelled to seek the intention of the Legislature by resorting to other rules, it would be our duty to examine the history of the legislation upon the subject, ascertain the legislative policy in dealing with it. It is perfectly manifest from the original act, the amendments and revisals, that the Legislature never intended to penalize the neglect to have weights and measures used for purposes other than buying and selling tested. Again, if, after exhausting all primary rules, we are left in doubt as to the meaning of the statute, we should consider the results likely to flow from a proposed construction and, if they are oppressive, restrictive of primary rights, harsh and inequitable, we should, if possible, without doing any violence to the words used, reject such construction. "When the words are not precise and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute, and when (375) any particular construction would lead to absurd consequences, it will be presumed that some exception was intended by the Legislature to avoid such construction." Shaw, C. J., in Com. v.Kimball, 41 Mass. 370. In the light of the history of this legislation and the language used by the lawmakers, it would lead to most startling and unexpected results to hold that every standard-keeper in North Carolina may biennially invade the privacy of every home, demand entrance into the pantry of the housewife, the barn or shelter of every farmer and demand, under pain of a penalty of fifty dollars, that he be permitted to test and adjust every weight and measure without regard to the use to which it is put. To so hold would invite a swarm of inquisitive officers extorting fees out of the people or subjecting them to penalties. It is true that the defendant is a corporation, and it may be that it should be included with traders and professional dealers, but, as in the case of millers, omitted from the original act, they should be brought in by legislative enactment and not by judicial construction. Again, statutes which restrict private rights of persons, or the use of property in which the public has no concern, should be strictly construed in favor of the citizen. It will never be presumed that the Legislature intends to impose burdens upon the citizen or interfere with his primary rights further than is demanded by the general welfare. While it is a matter of public concern that traders and dealers by profession, engaged in buying and selling, and millers, should be required to use standard weights and measures, and their regulation is within the police power, it is of no concern whatever to the public whether persons using such weights and measures for purely personal, domestic or agricultural purposes, do so. This is clearly recognized by the first section of the statute. To enlarge the penalty clause to include such purposes, even if the language was of doubtful import, would violate this rule and trench upon the (376) reserved rights of the citizen. We are not permitted to apply rules of construction to corporations, for the purpose of bringing them within penalty laws, and refuse to do so in suits against other citizens. If the Legislature deems it wise to include railroads using weights for fixing the amount of freight to be charged for shipment, it is clearly within its power to do so. We have given to this case our most careful consideration, notwithstanding the small amount involved. In case of doubt, we should find it our duty to resolve such doubt in favor of the citizen and the security of his home from invasion by overzealous standard-keepers, making their biennial visits to extort fees or, upon provoking refusal, from their instituting actions for penalties. While the statute, construed as it was written prior to 1893, is wise and wholes some, if used to annoy and vex the people it will be further restricted by exceptions of counties, as has been done to some extent, until we will have a law requiring the use of standard weights and measures in "buying and selling" in only those counties in which it is not enforced. His Honor rendered judgment of nonsuit because this State was not joined as plaintiff. We affirm his judgment for the reasons set forth in this opinion.

Affirmed.