Harrington v. Smith

28 Wis. 43
CourtWisconsin Supreme Court
DecidedJanuary 15, 1871
StatusPublished
Cited by76 cases

This text of 28 Wis. 43 (Harrington v. Smith) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrington v. Smith, 28 Wis. 43 (Wis. 1871).

Opinion

DixoN, C. J.

This case was twice argued, and it needed not the able, and, as I think, most conclusive argument of the learned counsel who appeared for the defendant on the last occasion, to satisfy my mind of the correctness of the statutory construction for which he contended, and that the commissioners of the school and university lands were not only authorized, but were clearly required to make out and issue certificates upon the sale of the lands in question to the plaintiff. The cause was ably argued, in the first instance, on both sides, and from that argument and subsequent examination, which was very thorough on my part, I had fully reached the same conclusion. The work of the learned counsel, who last argued, as shown by his printed brief or argument, in pointing out and analyzing the various provisions of the statute bearing upon the question, and showing their relation to and dependence upon each other, and the consequent effect and intent of the whole, is such as to supersede and make useless any effort on my part to the.same end. I cannot improve what has been so well done, and have little to say in the line of argument pursued by the same counsel, more than that I fully concur in all his reasoning, from premise to conclusion. I may be in error, and, if so, it is a most serious one, but truth compels me to say that I have no doubt, and never have had since first I understood the matter, that it was the intention of the persons who framed and of the legislature which enacted the [59]*59statute, tbat there should in all cases be made duplicate certificates oí sale, as well where the lauds were fully paid for at the time of application to purchase, as where the payment was partial— as clearly such intention as if it had been declared in so many words in the statute. This conclusion I gather, as the learned counsel has done, from the purview and entire contest of the statute, as well as from particular words and passages, holding, as has been laid down, that the true rule for the construction of statutes is, to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law; and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words. Ryegate vs. Wardsboro, 30 Vt., 746. This principle in the construction of a statute, that every part of it must be viewed in connection with the whole, and, in addition, that it must be construed so as to make all parts harmonize if practicable, and give a sensible and intelligible effect to each, and not to place one portion in antagonism to another, has been recognized and enforced in a great variety of cases, and is, in fact, elementary. Ogden vs. Strong, 2 Paine C. C. R., 581; Brooks vs. Mobile School Commissioners, 31 Ala., 227; Dillingham vs. Fisher, 5 Wis., 475; Calkins vs. Harvey, 13 Wis., 370; Mason vs. Finch, 2 Scam., 223; The Belleville Railroad Company vs. Gregory, 15 Ill., 20; Torrance vs. McDougald, 12 Ga., 526.

I desire to advert merely to three or four sections of the statute, which, in my judgment, are of the greatest weight, and then to refer to some other rules for the construction of statutes, which seem to me to have very strong application.

Section 42 provides (I refer to the present revision), that all moneys paid on account of school and university lands, whether for principal or interest, shall be paid to the state treasurer, who shall give his receipt therefor, and every such receipt or writing shall be countersigned by the secretary of state.

[60]*60Section 43 is in these words : “ The secretary, upon countersigning such receipt or writing, i^hall charge the said treasurer with the amount received by Mm as therein mentioned, in a boot to be kept for that purpose, and shall also enter the name of the person paying the same, the number of the 'certificate upon which the amount shall be paid, and the time of payment.” This is a positive and most unambiguous direction that all moneys for school or university lands shall be paid to the treasurer, for wMck a receipt shall be given by him, and countersigned by the secretary, and that upon countersigning the receipt, the secretary shall enter, in a book to be kept by him for that purpose, the number of the certificate upon which the same is paid. The plain language then is, that for all moneys paid, the secretary shall enter the number of the certificate upon which the payment is made. What more clear and unequivocal evidence of intention can be required than tMs, that a certificate of sale is in all cases to be made ? or how could the legislature have more clearly manifested such intention ? And how is it possible for the secretary of state to comply with this obvious requirement of the statute unless a certificate is in every case made ? And here another rule of interpretation becomes directly applicable, which ■is, that general words in a statute must receive a general construction/unless there be something in it to restrain them, or as it is otherwise frequently expressed, if there be no express exception. Demorest vs. Wynkoop, 3 Johns. Ch., 142; Torrance vs. McDougald,12 Ga., 530; Collins vs. Carman, 5 Md., 505, 533. It must be admitted that the word all, or the words all moneys, are very general, and it is not pretended, nor can it be, that there is anything elsewhere in the statute restraining them, or any express exception. The case in 12 Ga., 530, arose upon the same word, all, in a statute, and it was held that its application could not be restrained, the statute itself containing no exception. In that case LüMPKIN, J., informs us that the rule was considered so inflexible that, the Statute of Wills (32 Hen. VIII.) having authorized all and every person or persons to devise their lands, [61]*61it was feared it might enable infants and insane persons to do it: and tbe statute of 34 Hen. YIII. was consequently passed, to introduce these exceptions. Beckford vs. Wade, 17 Ves., 88. And in 5 Md., 505, which was certainly a hard case, and one which appealed most strongly to the sympathy of the court to find its way out of and escape the operation of this rule, it was still held to be inflexible. The question was upon the right of a widow, who was insane at its date, and so continued, to renounce the provision made for her in the will of her late husband, and to receive her share of his estate as given by law. By the statute of the state, it was necessary that she should dissent from the provision made in the will, a- thing which, being insane, she was incapable of doing. The language of the statute was comprehensive enough to include every widow, whether sane or insane, and the statute having made no exception in favor of the latter, it was decided that none could be made by the courts, whether of law or equity. It clearly appears to me that upon these provisions of the statute, and this rale of construction alone, no exception being found in the statute, and no language Erom which one is fairly or necessarily to be implied, the construction which the statute has always received at the hands of the commissioners is the true one and must stand. But this construction and the conclusion that the framers intended that certificates of sale should in all cases be issued, are most clearly corroborated and shown by other provisions.

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Bluebook (online)
28 Wis. 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-smith-wis-1871.