AGINGLAWYER

1.
OCT

20

Statutory Construction made easy by a Freshman

STATUTORY CONSTRUCTION 2012

Rule1. Apply the Law when it is CLEAR. Do not Interpret or CONSTRUE.

Rule2 in StatCon is IBC, interpret before you CONSTRUE.   You CONSTRUE only when the
written law is not enough to give meaning and EFFECT to the INTENT of the LAW.

The RULES are simplified in the middle of this REVIEWER. Done by a Freshman, by ang aging
Freshman who shall be a Lawyer soooooon!!!

literal meaning or plain meaning rule

dura lex sed lex

doctrine of necessary implication

ejusdem generis
limitations of ejusdem generis
expressio unios est exclusio alterius
negative- opposite doctrine
application of expressio unius rule
doctrine of casus omissus
doctrine of last antecedent
reddeddo singula singulis

stare decisis

res judicata

obiter dictum

A legislature is a kind of deliberative assembly with the power to pass,

amend, and repeallaws.[1] The law created by a legislature is
 called legislation or statutory law. In addition toenacting laws,
legislatures usually have exclusive authority to raise or lower taxes and
adopt thebudget and other money bills. Legislatures are known by many
names, the most common being parliament and congress, although
these terms also have more specific meanings.

Legislative intent
In law, the legislative intent of the legislature in
enacting legislation may sometimes be considered by the judiciary when
interpreting the law (see judicial interpretation). The judiciary may
attempt to assess legislative intent where legislation is ambiguous, or
does not appear to directly or adequately address a particular issue, or
when there appears to have been a legislative drafting error.
When a statute is clear and unambiguous, the courts have said,
repeatedly, that the inquiry into legislative intent ends at that point. It is
only when a statute could be interpreted in more than one fashion that
legislative intent must be inferred from sources other than the actual text
of the statute.
Sources of legislative intent

Courts frequently look to the following sources in attempting to

determine the goals and purposes that the legislative body had in mind
when it passed the law:
 the text of the bill as proposed to the legislative body,
 amendments to the bill that were proposed and accepted or
rejected,
 the record of hearings on the topic,
 legislative records or journals,
 speeches and floor debate made prior to the vote on the bill,
 legislative subcommittee minutes, factual findings, and/or
reports,
 other relevant statutes which can be used to understand the
definitions in the statute on question,
 other relevant statutes which indicate the limits of the statute
in question,
 legislative files of the executive branch, such as the governor
or president,
 case law prior to the statute or following it which
demonstrates the problems the legislature was attempting to address
with the bill, or
 constitutional determinations (i.e. "Would Congress still have
passed certain sections of a statute 'had it known' about the
constitutional invalidity of the other portions of the statute?").
 legislative intent- the reason for passing the
law

literal meaning or plain meaning rule. If the statute is

clear, plain and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation.
you get the meaning of the law from the word per word written law. Literal meaning or plain
rule means INTERPRETATION of the LAW. ALL WORDS words in a statute should if possible,
be given effect.

Where a statute defines a word or phrase employed therein, the word or phrase should not,
by CONSTRUCTION, be given a different meaning. When the legislature defines a word used
in a statute, it does not usurp the courts function to interpret the laws but it merely
LEGISLATES what should form part of the law itself.

It is settled that in the absence of legislative intent to define words, words and phrases used
in statute should be given their plain, ordinary, and common usage meaning which is
supported by the maxim generalia verba sunt generaliter intelligenda or what is generally
spoken shall be generally understood. It is also the same as GENERALI DICTUM
GENERALITIR EST INTERPRETANDUM a general statement is understood in a general
sense.

WORDS MUST BE SUBSERVIENT TO THE INTENT and

not intent to words.

Ubi lex non distinguit nec nos distinguere debemus.  When the law
does not distinguish, do not distinguish.

dura lex sed lex or HOC QUIDEM PERQUAM DURUM EST, SED ITA LEX SCRIPTA
EST.
The law maybe harsh, but is still the law.    It is exceedingly hard, but so the
law is written.

doctrine of necessary implication this doctrine states that what

is
implied in a statute is as much a part thereof as that which is
expressed. Every statute is understand by implication to contain all such
provision as may be necessary to effectuate to its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it grants, including all such collateral
and subsidiary consequences as may be fairly and logically inferred from its terms.The
principle is expressed in the maxim EX NECESSITATE LEGIS or from the necessity of the
law.

ejusdem generis . THE SAME KIND OR SPECIE.   This is to give effect

to both the particular and general words, by treating the
particular words as indicating the class and the general words as
indicating all that is embraced in said class , although not specifically
named by the particular words.

The rule of ejusdem generis is not of universal application; it should be used to carry out,
not to defeat the intent or purpose of the law; the rule must give way in favor of the
legislative intent;

limitations of ejusdem generis   

requisites:
1. Statue contains an enumeration of particular and specific
words, followed by a general word or phrase;
2. The particular and specific words constitute a class or  are of
the same kind;
3. The enumeration of the particular and specific words is not
exhaustive or is not merely by examples;
4. There is no indication of legislative intent to give general
words or phrases a broader meaning.
expressio unios est exclusio alterius.

the expression of 1 person, thing or consequence IMPLIES

the EXCLUSIONof OTHERS or
What is expressed puts an end to that which is implied.

EXPRESSUM FACIT CESSARE TACITUM, where a Statute, by its

terms, is expressly limited to certain matters, it may not, by
interpretation or CONSTRUCTION, be extended to other
matters.
These also follows that when a statute specifically lists downs the exceptions, what is not list
down as an exception is ACCEPTEDexpress in the maxim EXCEPTIO FIRMAT REGULAM IN
CASIBUS NON EXCEPTIS,

the express exception, exemption or savings excludes others.

application of expressio unius rule. This auxiliary rule is used

inCONSTRUCTION of statutes granting
powers,creating rights and remedies, restrictingcommon rights, and imposing
penalties and forfeitures, as well as those statutes which are strictly construed. It is only
a tool and not a mandatory rule used for ascertaining the legislative intent. The rule must
also yield to legislative intent.

negative- opposite doctrine,WHAT IS EXPRESSED PUTS

AN END TO WHAT IS IMPLIED is known as negative-opposite
doctrine or argumentum a contrario.
doctrine of casus omissus(case of
omission) pro omisso habendus est. A person, object
or thing omitted from an enumeration must be held to have
been omitted intentionally. This rule is not absolute if it can be shown that
the legislature did not intend to exclude the person, thing or object from the enumeration. If
such legislative intent is clearly indicated, the COURT may supply the omissionif to do so
will carry out the intent of the legislature and will not do violence to its language.

doctrine of last antecedent or   AD PROXIMUM ANTECEDENS

FIAL RELATIO NISI IMPEDIATUR SENTENTIA   or relative words refer to the
nearest antecedents, unless the context otherwise requires. QUALIFYING
WORDS restrict ormodify only the words or phrases to which they are immediately
associated.

The last antecedent rule  is a doctrine of interpretation of a statute, by

which "Referential and qualifying phrases, where no contrary intention appears, refer solely
to the last antecedent." The rule is typically bound by "common sense" and is flexible
enough to avoid application that "would involve an absurdity, do violence to the plain intent
of the language, or if the context for other reason requires a deviation from the
rule." Evidencethat a qualifying phrase is supposed to
apply to all antecedents instead of only to the
immediately preceding one may be found in the fact
that it is separated from the antecedents by a comma."

reddendo singula two singuliswhen

descriptions makes it impossible to reconcile,
reconcile it to have a “singular meaning” to settle
the issue.

refers to each phrase or expression to its appropriate object, or let each be put in its proper
place, that is, the words should be taken DISTRIBUTIVELY to effect that each word is to be
applied to the subject to which it appears by context most appropriate related and to which
it is most applicable.
REDDENDO SINGULA SINGULIS,construction. By
rendering each his own; for example, when two
descriptions of property are given together in one mass,
both the next of kin and the heir cannot take, unless in
cases where a construction can be made reddendo
singula singulis, that the next of kin shall take the
personal estate and the heir at law the real estate. 14
Ves. 490. Vide 11 East,, 513, n.; Bac. Ab. Conditions, L.

Stare Decisis  [Latin, Let the decision stand.] The policy of courts to abide

by or adhere to principles established by decisions in earlier cases.  (stah-ray duh-see-sis) n.
Latin for"to stand by a decision," the doctrine that a trial court is
bound by appellate court decisions (precedents) on a legal question
which is raised in the lower court.  Reliance on such precedents is
required of trial courts until such time as an appellate court changes the
rule, for the trial court cannot ignore the precedent (even when the trial
judge believes it is "bad law")

Res Judicata [Latin, A thing adjudged.]  A rule that a final

judgment on the merits by a court having jurisdiction is conclusive
between the parties to a suit as to all matters that were litigated or that
could have been litigated in that suit.
The party asserting res judicata, having introduced a final judgment on
the merits, must then show that the decision in the first lawsuit was
conclusive as to the matters in the second suit. For example, assume
that the plaintiff in the first lawsuit asserted that she was injured in an
auto accident. She sues the driver of the other auto under a theory
of Negligence. A jury returns a verdict that finds that the
defendant was not negligent. The injured driver then files a second
lawsuit alleging additional facts that would help her prove that the other
driver was negligent. A court would dismiss the second
lawsuitunder res judicata because the second lawsuit is based
on the same Cause of Action (negligence) and the same injury
claim.
Obiter Dictum[Latin, By the way.] Words of an
opinion entirely  unnecessaryfor the decision of the case. A remark made or opinion
expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or
collaterally, and not directly upon the question before the court or upon a point not
necessarily involved in the determination of the cause, or introduced by way of illustration,
or analogy or argument.  Such are not binding as precedent.

AEQUITAS NUNQUAM CONTRAVENIT

LEGIS  .  EQUITY never acts in contravention of the law.
The reason of the Law is the Life of the Law or RATIO
LEGIS ET ANIMA.

Interpretation and CONSTRUCTION of Statutes must be

done to avoid evil and injustice. EA EST ACCIPIENDA
INTERPRETATIO QUAE VITIO CARET.

Interpretatio fienda est ut res magis valeat quam

pereat, the interpretation that will give the thing the EFFICACY is to
be adopted. Law must receive sensible interpretation to promote the
ends for which they are enacted. They should be given practical
CONSTRUCTION that will give LIFE to them, IF IT CAN BE DONE
without doing VIOLENCE to reason.

UT RES MAGIS VALEAT QUAM PEREAT, A STATUTE must be

interpreted to give it efficient operation and effect as a whole avoiding
the nullification of provisions. IT is so that a legal provision must not be
so construed as to be a useless SURPLUSAGE. Accordingly, in case of
Doubt or obscurity, that construction should make the statute fully
operative and effective. IT IS PRESUMED THAT THE LEGISLATURE DID
NOT DO A VAIN THING IN THE ENACTMENT OF THE STATUTE.

In PARE MATERIA, of the same person or thing.

INTERPRETARE ET CONCORDARE LEGES LEGIBUS EST
OPTIMUS INTERPRETANDI MODUS, or every statute must be
so CONSTRUED and harmonized with other statutes as to form a
uniform system of Jurisprudence.ALL laws are presumed to be
consistent with each other.

DISTINGUE TEMPORA ET CONCORDABIS JURA ,

distinguish times and you will harmonize laws.

IN enacting a STATUTE, the legislature is presumed to have been

aware, and taken into account, PRIOR LAWS on the subject of
legislation. Thus, conflict on same subject is not intended and if such
occur, Court must construe, through reconciliation to give effect to the
statute. If it is impossible to reconcile and harmonize, one
statute has to give way to the other. The latest statute shall prevail
being the latest expression of the legislative WILL.

A GENERAL LAW and a SPECIAL LAW are in pare materia. The fact
that one is general and the other special creates a presumption that the
special act is to be considered as remaining an exception of the General
Act. One as a General Law of the Land, the other as a LAW for a
Particular case. This shall apply all the time regardless of which law
was enacted first.

CONTEMPORANEOUS CONSTRUCTIONS or CONTEMPORARY

CONSTRUCTIONS are made by the EXECUTIVE Departments.
First type of Contemporary Constructions are the interpretations of  the
Executive on Statutes, for them to implement it, they must understand it
and interpret it if the language of the law is AMBIGUOUS. The executive
makes RULES or IRRs for this statutes, or ADMINISTRATIVE RULES and
PROCEDURES. These IRRs or RULES issued by the executive to execute
the Statute are CONTEMPORARY Construction.
Second Type of Contemporary Constructions are the INTERPRETATIONS
of the JUSTICE Secretary in carrying out PENAL LAWS and all OTHER
LAWS, under her are the PROSECUTORS, FISCALS  of the Philippine
Republic. The issuances on how laws are to be prosecuted are
CONTEMPORARY CONSTRUCTION of the Justice Secretary.
The third type are the DECISIONS OF THE ADMINISTRATIVE BODIES
handling disputes in a QUASI-JUDICIAL MANNER. These decisions are
based on their UNDERSTANDING of Statutes passed by congress, laws
that are enforced. These are CONTEMPORARY INTERPRETATIONS and
Constructions.
THESE CONTEMPORARY CONSTRUCTIONS STATUTES HAPPEN,
WHEN THERE ARE NO ACTUAL CONTROVERSIES QUESTIONING
THE VALIDITY OF STATUTES IN THE SUPREME COURT,
therefore,NO STARE DECISIS HAVE YET BEEN MADE. IF THERE ARE
JUDICIAL INTERPRETATIONS AND CONSTRUCTIONS, THEN
THE JUDICIAL CONSTRUCTIONS ARE governing and are THE
ONES followed BY THE EXECUTIVE DEPARTMENTS once
promulgated by the Supreme Court.
CONGRESS, NOT BEING THE CONSTITUTIONALLY POWER TO
INTERPRET AND CONSTRUE THE LAWS THEY MAKE, MAY ALSO DO
CONTEMPORARY CONSTRUCTION IN FOLLOWING STATUTES THAT
THEY THEMSELVES ARE BOUND TO FOLLOW.

WITH THE GRANT OF POWERS, RIGHTS, PRIVILEGES IS ALSO

THE RIGHT TO INCIDENTAL POWERS OF THE POWERS, RIGHTS
AND PRIVILEGES. THE GREATER POWER IMPLIES INCIDENTAL
LESSER POWER.   This is so because the greater includes the
lesser as expressed in the maxim, in eo quod plus sit, simper
inest et minus.THERE SHALL BE NO CONSTRUCTION TO GIVE
EFFECT TO A LAW THAT SHALL MAKE IT MORE POWERFUL
THAN WHAT WAS INTENDED BY THE LAW.

Every statute is  understood by IMPLICATION, to contain such

provisions as maybe necessary to EFFECTUATE its object and purpose,
or to make effective Rights, powers, privileges or JURISDICTION which
it grants, including all such COLLATERAL and subsidiary consequences
as may be fairly and LOGICALLY inferred from its TERMS, as expressed
in the maxim, Ex necessitate legis or from the NECESSITY of the
LAW. Doctrine of Necessary Implication.
WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY.
QUANDO ALIQUID PROHIBETUR EX DIRECTO, PROHIBETUR ET PER
OBLIQUUM.

WHAT IS AUTOLIMITATION?
Doctrine of Autolimitation—It is the doctrine where the Philippines adheres to principles of
international law as a limitation to the exercise of its sovereignty.

Functus officio  an officer or agency whose mandate has expired either because of the arrival of an expiry
date or because an agency has accomplished the purpose for which it was created. Function is mere
FORMALITY.

Sin perjuico  judgments are judgment, w/o any stated facts

in support of the conclusion.

RULES in STATUTORY CONSTRUCTION

The solemn decisions of the judges upon a statute become part
of the statute ; and the security of men's lives and property, require that they
should be adhered to: for precedents serve to regulate our conduct ; and there
is more danger to be apprehended from uncertainty, than from any
exposition;because, when the rule is settled, men know how to
conform to it; but, when all is uncertain, they are left in the dark, and
constantly liable to error; for the same offence which, at one time, was thought
entitled to clergy, at another, may be deemed capital ; and thus the life or death
of the citizen will be made to depend, not upon a fixt rule, but upon the opinion
of the judge, who may happen to try him, than which a more miserable state of
things cannot be conceived.

1. Presumption of Correctness
a.  "When testing the constitutional validity of statutes, courts shall presume the
statute to be valid."  Consequently, the burden to show the constitutional defect
is on the challenger. "Every act of the legislature is presumed to  be
constitutional, and the Constitution is  to be given a liberal construction so as to
sustain the enactment in question, if practicable."  "When the constitutionality of
an act is challenged,a heavy burden of proof is thrust upon the party making
the challenge.  All laws are presumed to be constitutional and this presumption is
one of the strongest known to the law.

b. "Another rule of statutory construction requires the presumption that, in

enacting statutes, the CONGRESS has full knowledge of existing law and
interpretations thereof . Although the repeal of statutes by implication is not
favored, if two statutes are in pari materia, then to the extent that their
provisions are irreconcilably inconsistent and repugnant, the latter
enactment repeals or amends the earlier enacted statute.
"The legislature is presumed to know the law when enacting
c. 

legislation.
d. When amendments are enacted soon after controversies
arise "as to the interpretation of the original act, it is logical to
regard the amendment as a legislative interpretation of the
original act, a formal change-rebutting the presumption of
substantial change. 
 

e. " We "assume that the legislature chose, with care,  the words it

used when it enacted the relevant statute." 

f.  when current and prior versions of a  statute are at issue, there

is a presumption that the  CONGRESS, in amending a statute, intended
to effect  a substantive change in the law. "Further,  we assume that
CONGRESS’ amendments to a  statute are purposeful, rather than
unnecessary.

g.  "The Supreme Court repeatedly has affirmed that  it  is  a presumption  of
statutory  construction  that,   where  both general  and  specific   statutes 
appear  to address  a   matter,  CONGRESS  intends the  specific statute to  control
the subject
h.  "When a statute begins with the phrase "notwithstanding any other
provision of law," it is presumed that CONGRESS   intended to override any
potential conflicts withearlier legislation.

 i.  "The construction of statutes by agencies charged

with administration of those statutes is entitled to
great weight. A decision of an agency specified to execute the law made by
CONGRESS carries great weight and is entitled to deference unless it is proven the
agency erred.The grant of regulatory authority extends only to duties
or powers conferred by law. As such, "regulations, promulgated pursuant to
definitive statutory authority, have the force and effect of law. Moreover, those
regulations which "clearly and explicitly mirror" statutory authority are likeliest to
be sustained. Any regulation of the Department must be reasonably grounded in
an identifiable and definitive statutory foundation."Generally, the court accords substantial
deference to an agency's interpretations of its own regulations. Provided the interpretation "does

not violate the Constitution, it must be given 'controlling weight unless it

is plainly erroneous or inconsistent with the regulation.
j.  we will overturn  COURT’s  decision only if it can be fairly characterized as  "arbitrary or
capricious" and thus a "clear abuse of delegated discretion." On the other hand, an "agency does
not possess specialized competence over the  interpretation of a statute merely because it
addresses topics within the agency's delegable  authority.  Pure statutory construction, a matter
within the "core competency of the judiciary,"  . "This axiom stems from basic principles of
separation of powers. It
is emphatically the province and duty of
the JUDICIAL DEPARTMENT to say what the law is.  It necessarily
follows that the a priori question whether the statute delegates or withholds discretion is itself a
question of statutory interpretation, one implicating our duty of de novo review."

k.  "Thecircuit court nonetheless deferred to the Technical Review

Board's reasoning, correctly noting that courts give "great deference" to
an agency's interpretation of its own regulations. This deference stems
from Code § 2.2-4027, which requires that reviewing courts "take due
account" of the "experience and specialized competence of the
agency"promulgating the regulation. Even so, "deference is not
abdication, and it requires us to accept only those agency
interpretations that are reasonable in light of the principles of
construction courts normally employ. No matter how one
calibrates judicial
deference, the administrative power
to interpret a regulation does not include the
power to rewrite it. When a regulation is "not ambiguous,"
judicial deference "to the agency's position would be to permit the
agency, under the guise of interpreting a regulation, to create de facto a
new regulation." Though agencies may be tempted to adjudicate their
way around unwanted regulations, such overreaching undermines the
notice and public hearing procedures of the rulemaking process -
thereby putting in jeopardy the "enhanced political accountability of
agency policy decisions adopted through the rulemaking process" and
the democratic virtue of allowing "all potentially affected members of the
public an opportunity to participate in the process of determining the
rules that affect them.
 l.  "However, whenever an "agency's statutory interpretation
conflicts with the language of the statute or when the interpretation
has not been consistently and regularly applied, the usual deference
accorded to an agency's interpretation should be withheld.

m. When Congress enacts an imprecise statute that it

commits to the implementation of an executive agency, it has
no control over that implementation (except, of course,
through further, more precise, legislation).  The legislative and
executive functions are not combined. But when an agency
promulgates an imprecise rule, it leaves to itself the implementation of that rule,
and thus the initial determination of the rule's meaning. And though the adoption
of a rule is an exercise of the executive rather than the legislative power, a
properly adopted rule has fully the effect of law.It
seems contrary to
fundamental principles of separation of powers to
permit the person who promulgates a law to
interpret it as well.
Deferring to an agency's interpretation of a statute does not encourage Congress,
out of a desire to expand its power, to enact vague statutes; the vagueness
effectively cedes power to the Executive. By contrast, deferring to an agency's
interpretation of its own rule encourages the agency to enact vague rules which
give it the power, in future adjudications, to do what it pleases.

Construed Against the State/ Vagueness

a.  "It is an ancient maxim of the law that all such statutes must
be construed strictly against the state and favorably to the
liberty of the citizen.  The maxim is founded on the tenderness of the law
for the rights of individuals and on the plain principle that the power of
punishment is vested in  the legislature and not in the judicial department. No
man incurs a penalty unless the act which subjects him to it is clearly within the
spirit and letter of the statute which imposes such penalty.  There can be no
constructive offenses, and before a man can be punished his case must be plainly
and unmistakably within the statute.  If these principals are violated, the fate of
the accused is determined by the arbitrary discretion of the judges and not by the
express authority of the law."
b.  "When a statute is penal in nature, it "must be strictly construedagainst
the STATE and in favor of an accused.
c.  "While it is true that penal statutes must be strictly  construed against the
STATE  in criminal cases, "wewill  not apply 'an unreasonably
restrictive interpretation of the statute' that would subvert
the legislative intent expressed therein.
d.  "In determining whether a legislative enactment is  unconstitutionally vague,
the Supreme Court has considered whether the words used have a  well-settled . .
. meaning . . . (citing dictionary to determine "generally understood" meaning  for
adjective in ordinance)."A penal statute is void for vagueness if it both
fails to give a person of ordinary  intelligence notice that her
contemplated conduct is forbidden by the statute and encourages 
selective prosecution
 Statutory Exceptions, Negative Element v. Affirmative
Defense

1) "When construing PENAL STATUTES which contain qualifications,

exceptions or exemptions to their application, the limiting language may be
viewed as a negative element of the offense which the prosecution
must disprove. Alternately, the court may determine that the exemption is a
statutory defense, which the accused can assert to defeat the prima facie case of
the prosecution. In determining whether specific limiting language is an element
of the offense or a statutory defense, a court should look both to the intent of the
statute as a whole and the ability of the respective parties to assert the existence
or absence of the underlying facts sustaining the applicability of the limitation.
When determining whether the limiting language is a negative element or a
statutory defense, this Court has identified four factors to be considered: 'the
wording of the exception and its role in relation to the other words in the statute;
whether in light of the situation prompting legislative action, the exception is
essential to complete the general prohibition intended; whether the exception
makes an excuse or justification for what would otherwise be criminal conduct,
i.e., sets forth an affirmative defense; and whether the matter is peculiarly within
the knowledge of the defendant.' An application of these factors to the present
case demonstrates that the phrase "except as provided by law," as used in Code §
29.1-553, establishes a statutory defense as opposed to a negative element

2) "In order to resolve whether there is a due process violationin this

case, we first must address the threshold issue of whether the
absence of a valid prescription is an affirmative defense or a negative
element of the offense. If it is the latter, the burden of proof is on the STATE,
and it cannot be shifted to the accused...When construing penal statutes which
contain qualifications, exceptions or exemptions to their application, the limiting
language may be viewed as a negative element of the offense which the
prosecution must disprove.  Alternately, the court may determine that the
exemption is a statutory defense, which the accused can assert to defeat the
prima facie case of the prosecution.
The ACCUSED BEARS THE
BURDEN OF PRODUCING EVIDENCE OF THE NEGATION of
circumstances sufficient to raise a reasonable doubt of his
guilt.      In determining whether specific limiting language
is an element of the offense or a statutory defense,
a court should look both to the intent of the statute as a
whole and the ability of the respective parties to assert
the existence or absence of the underlying
facts sustaining the applicability of the
limitation.Accordingly, we should consider the wording of the exception and
its role in relation to the other words in the statute; whether in light of the
situation prompting legislative action, the exception is essential to complete the
general prohibition intended;whether the exception makes an excuse
or justification for what would otherwise be criminal
conduct, i.e., sets forth an affirmative defense; and whether the matter is
peculiarly within the knowledge of the defendant. (It is undoubtedly the
general rule that the state must prove all the essential facts
entering into the description of the offense. But it has been held
in many cases that when a negation of a fact lies peculiarly
within the knowledge of the defendant it is incumbent on him to
establish that fact).
We next observe that the "valid prescription" exemption of Code § 18.2-250
relates to a fact that would be solely within the knowledge of the accused. If we
accept appellant's contention that the STATE must prove appellant had no valid
prescription, the offense would be virtually unprovable. Under appellant's theory,
to obtain a conviction under the facts of this case, the STATE would be required to
prove that no medical professional, wherever located, in this Commonwealth or
elsewhere, had prescribed the drug to appellant. This would involve a nationwide
search of chain drugstores, as well as independent pharmacies, hospitals, prison
infirmaries, etc. Appellant, at oral argument, conceded that such an undertaking
would most likely be impossible. CONGRESS clearly did not intend such a result,
nor would they enact such an impotent statute

Constitutional Construction
1)  "The rights enumerated in this Bill of Rights shall not be construed to limit
other rights of the people not therein expressed. 
 
2)“The office and purpose of the constitution is to shape and fix the limits
of governmental activity. It thus proclaims, safeguards and preserves in
basic form the pre-existing laws, rights, mores, habits, and modes of
thought and life of the people as developed under the common law and
as existing at the time of its adoption to the extent and therein stated…
The purpose and object sought to be attained by the framers of the
constitution is to be looked for, and the will and intent of the people who
ratified it is to be made effective.  As we have stated, CONGRESS may
enact any law or take any action “not prohibited by express terms, or by
necessary implications by the Constitution.
3)“A fundamental right is oneEXPLICITLY  OR   IMPLICITLY  implied
guaranteed by the constitution
4) "It is an "established principle of constitutional law that a court will not rule
upon the constitutionality of a statute unless such a determination is absolutely
necessary to decide the merits of the case. A
statute will be construed
to avoid a constitutional question whenever this is possible.
5) "The construction of a constitutional provision by
CONGRESS  (note it is congress construing,   not the supreme court, that is why
it is CALLED  “CONTEMPORANEOUS CONSTRUCTION”)is entitled to consideration,
and if
the construction is  contemporaneous with adoption of
the constitutional provision, it is entitled to great  weight.   In addition, 
Long acquiescence in such an announced  construction so strengthens it that it
should not be changed unless plainly wrong.
6) Constitutional provisionsare EITHER SELF-EXECUTING  OR
MANDATORY.

 A self-executing provision does not require enabling legislation for its

enforcement.
A mandatory provisiondeclares or imposes a duty or 
requirement that must be followed.

A  Directory provision sets forth procedures  or " confers discretion on

the legislature" for its implementation.

7) "We review arguments regarding theCONSTITUTIONALITY OF A

STATUTE DE NOVO. When the constitutionality of a statute is challenged,
we are guided by the principle that all acts of CONGRESS are presumed to be
constitutional. Where a statute is constitutional as applied to a litigant, the
litigant has no standing to challenge the statute on the ground that it may be
unconstitutional on its face, that is, as applied to a third person in a
hypothetical situation. As a general rule, "a party has standing to
challenge the constitutionality of a statute only insofar as it has an
adverse impact on his ownrights
8) "However, when a court, in determining the constitutionality of a
statute, departs from the express limitations of the Constitution and
relies instead on implied constitutional restrictions, the legislative
usurpation must be very clear and palpable to justify the court’s
holding that an enactment is unconstitutional.

9) "This Court’s jurisprudence with respect to Article IV, Section 12 is

well established. “The fact that many things of a diverse nature are
authorized or required to be done in the body of the act, though not
expressed in its title is not objectionable, if what is authorized by the
act is germane to the object expressed in the title, or has a legitimate
and natural association therewith, or is congruous therewith, the
title is sufficient.   “[I]f there is doubt as to the sufficiency of the title, the
doubt must be resolved in favor of its sufficiency, as courts will not
declare an act of the legislature unconstitutional unless it is plainly so.   The
analysis of a particular act must necessarily “stand on its own,” and we must
look to both the body and to the title of the act under scrutiny to determine
whether the act violates the Constitution.

10) "As a general rule, where a statute is constitutional as applied

to a litigant, the litigant has no standing to challenge the statute on
the ground that it may be unconstitutional on its face, that is, as
applied to a third person in a hypothetical situation."  We have  said
that classification ordinarily will be upheld "if any state of facts  can be reasonably
conceived that would support it."  But where the  statute creates a "suspect
classification" (e.g. race, sex, or religion) or  where it affects a
fundamental constitutional right, the presumption  of constitutionality fades, and
the "strict scrutiny" test, rather than the  more relaxed "rational relationship" test
applies.

"Statutory interpretation presents a pure question of

11) 

law and is accordingly subject to de novo review by this

Court.
de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again."

Retroactive Enactment of Laws

1) "Accordingly, when a statute is amended while an action is pending, the rights
of the parties are  to be deemed in accordance with the law in effect when the
action is begun, unless the amended  statute shows a clear intention to vary such
rights. (Our analysis is guided by the fundamental  principles of
statutory construction that retroactive laws are not favored, and that
a statute is  always construed to operate prospectively unless a
contrary legislative intent is manifest.); New laws will  apply only to future
cases unless there is something in the very nature of the case, or in the 
language of the new provision, which shows that the new law was intended to
have a  retrospective effect. Further, every reasonable doubt is resolved
against a retroactive operation of  a statute, and words of a statute ought
not to have a retrospective operationunless they are so  clear, strong
and imperative that no other meaning can be annexed to
them . Retroactive effect will be given to a statute only when  legislative intent
that a statute be so applied is stated in clear, explicit, and unequivocal terms. 
 Common Law

1) In construing statutes, thestatutory definition must prevail

over the common law definition 
2) CONGRESS  is presumed to have known and to have had the
common law in mind in the enactment of a statute.  The statute
must therefore be read along with the provisions of the common law,
and the latter will be read into the statute unless it clearly appears from
express language or by necessary implication that the purpose of the
statute was to change the common law. 
  
 

3) "We also apply the established principle that a statutory provision will not
be held to change the common law unless the legislative intent to
do so is plainly manifested.  Therefore, a statutory change in the common
law will be recognized only in that which is expressly stated in the words of the
statute or is necessarily implied by its language.   
 
4) "A statutory provision will not be held to change the common law unless the
legislative intent to do so is plainly manifested.  "Statutes in derogation of the
common law are to be strictly construed and not to be enlarged in their operation
by construction beyond their express terms. Accordingly, "[a] statutory change in
the common law is limited to that which is expressly stated in the statute or
necessarily implied by its language because there is a presumption that no change
was intended. "When an enactment does not encompass the entire subject
covered by the common law, it abrogates the common-law rule only to the extent
that its terms are directly and irreconcilably opposed to the rule

Previous Construction of a Statute

1) "Where a statute has been construed by the
courts, and  is then re-enacted by the legislature, the
construction given to  it is presumed to be
sanctioned by the legislature, and thenceforth
becomes obligatory upon the courts."   Hence, when
the court finds the old construction should be modified, it
cannot anymore, since the court is BOUND by its old
construction because such statute was RE-Enacted.
2) "The term "battery" possesses "a long history of definition by" the
courts, and therefore, it "carries its historical construction" when used by
CONGRESS in a statute.
3) "We have said that “when judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the same
language in a new statute indicates, as a general matter, the intent to
incorporate its judicial interpretations as well.”   (STARE DECIS becomes the interpretation
and construction of a law or STATUTE that is ambiguous even if it was applied to a private case)

New Law New Remedy

4) "It is an established principle of statutory interpretation that "a statute
prescribing a new remedy for an existing right should never be
construed to abolish a pre-existing remedy in the absence of express
words or necessary implication.     Further, " 'when a statute gives a new
remedy, and contains no negative, express or implied, of the old
remedy, the new one provided by it is cumulative, and the party may
elect between the two.'

Two Statutes Pertaining to the Same Subject

1) "It is well accepted that statutes relating to the same subject
should not be read in isolation .   Such statutes should be considered
in pari materia.   Moreover, statutes dealing with the same subject matter should
beconstrued together to achieve a harmonious  result, resolving conflicts to
give effect to legislative intent.   An accepted principle of statutory construction is
that, when it is not clear which of two statutes applies, the more
specific statute prevails over the more general. Also, when
statutes provide different procedures on the same subject
matter, "the general must give way to the specific.

"As a preliminary matter applicable to all of your

questions and in accord with the rule of statutory
construction in pari materia, 
 statutory provisions are not to be considered as isolated fragments of law.    Such
provisions are to be considered as a whole, or as parts of a greater connected, homogeneous
system of laws, or a single and complete statutory compilation.

 Statutes in pari materia are considered as if they constituted but one act, so that
sections of one act may be considered as though they were parts of the other act.

As a general rule, where legislation dealing with a particular subject consists of a system
of related general provisions indicative of a settled policy, new enactments of a fragmentary
nature on that subject are to be taken as intended to fit into the existing system and to be
carried into effect conformably to it, and they should be so construed as to harmonize the
general tenor or purport of the system and make the scheme consistent in all its parts and
uniform in its operation, unless a different purpose is shown plainly or with irresistible
clearness. It will be assumed or presumed, in the absence of words specifically indicating the
contrary, that the legislature did not intend to innovate on, unsettle, disregard, alter or violate a
general statute or system of statutory provisions the entire subject matter of which is not directly
or necessarily involved in the act(noting that in absence of words to contrary, legislature did not
intend to alter or repeal general statute or system). 

 3) Closely
related statutes must be read as being consistent with one
another. Two statutes which are closely interrelated must be
read and construed together and effect given to all of their
provisions. Statutes should beconstrued, if possible, so as to harmonize,
and force and effect should be given the provisions of each.
4) The primary objective of statutory construction is to ascertain and give effect to
legislative intent. 'In interpreting statutes, "courts should give the fullest possible
effect to the legislative intent embodied in the entire statutory
enactment. Potentially conflicting statutes should be harmonized to
give force and effect to each.   
 
5) Cityand municipal ordinances must be consistent with the laws of the
Constitution. Thus, if a statute and a local ordinance both can  be given
effect, courts must harmonize them and apply them  together.
 The Meaning of Words

1) In the absence of a contrary definition, the words in a statute are

presumed to have their usual and ordinary meaning.
3) A fundamental rule of statutory construction requires that every part of a
statute be presumed to have some effect, and not be treated as meaningless
unless absolutely necessary. "We must assume that the legislature did not intend to do a
vain and useless thing.  "It is a well established rule of construction that a
statute ought to  be interpreted in such a manner that it may have
effect, and not  found to be vain and elusive.  "A word or clause contained in a
statute may only berejected as surplusage if it "appears to have
been inserted through inadvertence or mistake, and  which is incapable
of any sensible meaning," or is otherwise repugnant to the rest of the
statute.

4) "We will not construe a statute by singling out a particular term or phrase, but will construe

in the context of the other language

the words and terms at issue 

used in the statute.

5) While in the construction of statutes the constant endeavor of the courts isto
ascertain and give effect to the intention of the legislature, that
intention must be gathered from the words used, unless a
literal construction would involve a manifest absurdity. "The Court has stated the
related principle that "the plain, obvious, and rational meaning of a statute is
always to be preferred to any curious, narrow, or strained construction."
Statutes should not be interpreted in ways that produce
absurd or irrational consequences. 

6) "A statute must be construed with reference to its subject  matter, the object
sought to be attained, and the legislative  purpose in enacting it; the provisions
should receive a  construction that will render itharmonious with that
purpose  rather than one which will defeat it.

7)[i]f the language of a statute is plain and unambiguous, and its meaning
perfectly clear and definite, effect must be given to it. It is unnecessary to resort
to any rules of statutory construction when the language of a statute is
unambiguous. In those situations, the statute's plain meaning and intent govern.

"Language is ambiguous if it admits of being

understood in more than one way, refers to two or more
things simultaneously, is difficult to comprehend, is of
doubtful import, or lacks clearness and definiteness.”

9) "Black's Law Dictionary 1586 (8th ed. 2004) defines "valid" as "Legally

sufficient;  binding." (noting that if the STATUTE does not provide a statutory
definition we may look to the dictionary definition to determine legislative intent

10) "In drafting the statute, thelegislatureseparated the two

prohibitions with a comma  followed by the disjunctive
word "nor." We have noted that, pursuant to the rules of grammar, 
"phrases separated by a comma and [a] disjunctive . . . are
independent. The disjunctive serves to connect the two parts of
the sentence but also to keep them separate and
independent.”
12) "The word [willful] often denotes an act which is intentional, or knowing, or
voluntary, as distinguished from accidental. But when used in a criminal statute it
generally means an act done with a bad purpose; without  justifiable excuse;
stubbornly, obstinately,  perversely[.]  The word is also employed to characterize 
a thing done without ground for believing it is lawful.  The term "willful act"
imports knowledge and consciousness that  injury will result from the act
done.   The act done must be intended or it must involve a reckless disregard for
the rights of another and will probably result in an injury. [T]he term "gross,
wanton, and culpable" describes  conduct.  The word "gross" means
"aggravated or increased  negligence" while the word "culpable" means
"deserving of  blame or censure."   'Gross negligence' is  culpable or criminal when
accompanied by acts of  commission or omission of a wanton or willful nature, 
showing a reckless or indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury, or which make it not
improbable that injury will be occasioned, and the offender knows, or is charged
with the knowledge of, the probable result of his acts

13) "But, courts  are not permitted to add language to a statute

nor are they  permitted to accomplish the same result by
judicial interpretation."  Rather, when the language of a statute is
unambiguous, courts are bound by the plain meaning of that language and may
not assign a construction that amounts to holding that the General Assembly did
not mean what it actually has stated.  
 
14)  "It is  equally well established, however, that if the language of a  statute is
clear and unambiguous, a regulatory interpretation by  the Department that is in
conflict with the plain language of the statute cannot be sustained.  
 

15) "Under the rule of ejusdem generis, when a particular class of

persons or things is enumerated in a statute and general words
follow, the general words are to be restricted in their meaning to a sense
analogous to the less general, particular words. Likewise, according to the
maxim noscitur a sociis (associated words) when general and specific words
are grouped, the general words are limited by the specific and will be construed
to embrace only objects similar in nature to those things identified by the specific
words. 
16)  If
a statute expressly excepts a class which would otherwise fall
within its terms, the exception negates the idea that any other class is to
be excepted.

17)  One such rule, sometimes referred to as the last  antecedent

doctrine, is particularly applicable here and can be summarized as
follows: Referential and qualifying words and phrases,  where no
contrary intention appears, refer solely to the last
antecedent.  The last antecedent is  'the last word, phrase, or
clause that can be  made an antecedent without impairing the meaning  of the
sentence.'  Thus a proviso usually is  construed to apply to the provision or clause
immediately preceding it.   (explaining and applying  "the grammatical 'rule of the
last antecedent,' according to which a limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it immediately
follows . . . ."); (noting that construction of a statute according to the last
antecedent rule is "quite sensible as a matter of grammar

19) "An  erroneous interpretation of a statute by those charged 

with its enforcement cannot be permitted to override [the statute's]
clear meaning.Amendments of statutes can only be made by the
legislature and not by the courts or administrative  officers charged with
their enforcement

20) "But
principles of statutory construction are not so rigid. Although we
presume that the same term has the same meaning when it occurs here and
there in a single statute, the Court of Appeals mischaracterized that
presumption as “effectively irrebuttable.” We also understand that “[m]ost
words have different shades of meaning and consequently may be variously
construed, not only when they occur in different statutes, but when used more
than once in the same statute or even in the same section.” Thus, the
“natural presumption that identical words used in different parts of
the same act are intended to have the same meaning … is not rigid and
readily yields whenever there is such variation in the connection in which the
words are used as reasonably to warrant the conclusion that they were
employed in different parts of the act with different intent.” Ibid. A given term
in the same statute may take on distinct characters from association with
distinct statutory objects calling for different implementation strategies." 
Ibid. (Latin, short for ibidem, meaning "the same place") is the term used to provide
an endnote or footnote citation orreference for a source that was cited in the preceding endnote or footnote. It is similar in
meaning to idem (meaning something that has been mentioned previously; the same), abbreviated Id., which is commonly used
in legal citation.[1] To find the ibid.source, one must look at the reference preceding it.

"Generally, phrases separated by a comma and the disjunctive

 21) 

"or," are independent. (finding that, the word "or" connects two parts of a
sentence, "'but disconnect[s] their meaning'"); (noting disjunctive results in
alternatives, which must be treated separately); (finding that limiting phrase in
statute is independent of and does not modify two earlier phrases because the
limiting phrase is separated from the first two by a comma and the disjunctive
"or"); (interpreting the use of a comma and the disjunctive "or" as implying
two separate and independent phrases in a Virginia statute authorizing
payment of dividends by corporation "out of net earnings, or out of its net
assets in excess of its capital"). Accordingly, the phrase, "made by the
Defendant to any law enforcement officer," is independent of and does not
modify the phrase, "[a]ny written or recorded statement or confessions." 

The Terms May/Shall

1) The term "may," as used in a statute, should be given its ordinary
meaningintended by the CONGRESS  -permission, importing discretion. 
2) It is also true, however, that  the Supreme Court has held that the
word"may," while ordinarily  importing permission, will be construed to
bemandatory when it is necessary to accomplish  the
manifest purpose of the legislature. 
3) The use of the word "shall" in a statutegenerally implies that its
terms are intended to be mandatory, rather than permissive or
directive. 
4) "[T]he use of ‘shall,’ in a statuterequiring action by a public official ,
is directory and not mandatory unless the statute manifests a contrary
intent."14 "A statute directing the mode of proceeding by public officers is to be
deemed directory, and a precise compliance is not to be deemed essential to the
validity of the proceedings, unless so declared by statute.

The Term Aggrieved “Locus Standi”

1)  ""The term 'aggrieved' has a settled meaning when it becomes necessary to
determine who is a proper party to seek court relief from an adverse decision.  In
order for a petitioner to be  'aggrieved,' it must affirmatively appear that such 
person had some direct interest in the subject matter  of the
proceeding that he seeks to attack. . . .  The petitioner 'must show that he has
an immediate, pecuniary and substantial interest in the litigation, and
not a remote or indirect  interest.'  . . .  Thus, it is not sufficient that 
 the sole interest of the petitioner is
to advance someperceived  public right or to redress
some  anticipated  public injury when the only wrong he has
suffered is in common with other persons similarly situated .  The
word 'aggrieved' in a statute contemplates a substantial grievance and means a
denial of some personal or property right, legal or equitable, or imposition of a
burden or obligation upon the petitioner different from that suffered by the
public generally. 

Mens Rea/ Scienter/  Intent

1)     "In the final analysis, the issue whether mens rea or  scienter is a necessary
element in the indictment and proof of a  particular crime becomes a question of
legislative intent to be  construed by the court.   Thus, to insert a mens rea
element into the offense, and to require proof thereof, would defeat the
statutory purpose, which is to criminalize the introduction of firearms into a
school environment.  So we will not add, by implication, language to  the statute
that the legislature expressly has chosen not to include. Consequently, we hold
that the trial court correctly decided, in refusing the instruction in question, that
this statute is one of strict criminal liability, and that the  Commonwealth was
required to prove only that the defendant had possessed, on school property, a
firearm of the type described in the statute.

2)     "The contention that an injury can amount to a crime only when

inflicted by intention is no provincial or transient notion. It is as
universal and persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal individual
to choose between good and evil.
         A relation between some mental element and punishment for a harmful act
is almost as instinctive as the child's familiar exculpatory "But I didn't mean to,"
and has afforded the rational basis for a tardy and unfinished substitution of
deterrence and reformation in place of retaliation and vengeance as the
motivation for public prosecution.
         Unqualified acceptance of this doctrine by English common law in the
Eighteenth Century was indicated by Blackstone's sweeping statement
that to constitute any crime there must first be a "vicious will. "
Common-law commentators of the Nineteenth Century early pronounced
the same principle,   although a few exceptions not relevant to our present
problem came to be recognized.
Crime, as a compound concept,  generally constituted only from
concurrence of an evil-meaning mind with an evil-doing hand, was
congenial to an intense individualism. 
As the states codified the common law of crimes, even if their enactments
were silent on the subject, their courts assumed that the omission did not
signify disapproval of the principle but merely recognized that intent was so
inherent in the idea of the offense that it required no statutory affirmation.
 Courts, with little hesitation or division, found an implication of the
requirement as to offenses that were taken over from the common law. The
unanimity with which they have adhered to the central thought that
wrongdoing must be conscious to be criminal is emphasized by the variety,
disparity and confusion of their definitions of the requisite but elusive
mental element. 
However, courts of various jurisdictions, and for the purposes of
different offenses, have devised working formulae, if not scientific
ones, for the instruction of juries around such terms as "felonious
intent," "criminal intent," "malice aforethought," "guilty knowledge,"
"fraudulent intent," "wilfulness," "scienter," to denote guilty
knowledge, or "mens rea," to signify an evil purpose or mental
culpability. 
By use or combination of these various tokens, they have sought to protect
those who were not blameworthy in mind from conviction of infamous
common-law crimes....The Government asks us by a feat of construction
radically to change the weights and balances in the scales of justice. 
The purpose and obvious effect of doing away with the requirement of a guilty
intent is to ease the prosecution's path to conviction, to strip the defendant of
such benefit as he derived at common law from innocence of evil purpose, and to
circumscribe the freedom heretofore allowed juries. 
Such a manifest impairment of the immunities of the individual should not
be extended to common-law crimes on judicial initiative.
3) "The presence of a "vicious will" or mens rea  was long a requirement of
criminal responsibility. But the list of exceptions grew, especially in the
expanding regulatory area involving activities affecting public health, safety,
and welfare. Id., at 254. The statutory offense of embezzlement, borrowed
from the common law where scienter was historically required, was in a
different category. 13  Id., at 260-261.
"[W]here Congress borrows terms of art in which are accumulated the legal
tradition and meaning  [401 U.S. 601, 608] of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached to
each borrowed word in the body of learning from which it was taken and
the meaning its use will convey to the judicial mind unless otherwise
instructed." 

The Dillon Rule and Grants of Authority

The Dillon Rule of strict construction controls our determination of the powers of
local governing bodies.  This rule provides that municipal
corporations
have only those powers that are expressly granted, those
necessarily or fairly implied from expressly granted powers, and those that are
essential and indispensable.  
"In determining legislative intent, the rule is clear that
where a power is conferred and the mode of its execution
is specified, no other method may be selected;  any other
means would be contrary to legislative intent and, therefore,
unreasonable.  A necessary corollary is that where a grant of power is silent
upon its mode of execution, a method of exercise clearly contrary to legislative
intent, or inappropriate to the ends sought to be accomplished by the grant, also
would be unreasonable.
"Consistent with the necessity to uphold legislative intent, the doctrine of
implied powers should never be applied to create a power
that does not exist or to expand  an  existing power beyond
rational limits.   Always, the test in application of the doctrine is
reasonableness, in which concern for what is necessary to promote the public
interest is a key element.
Finally, when a statute creates a specific grant of authority, the
authority exists only to the extent specifically granted in the
statute. It can never go beyond the authority given .
 
6) “When the legislature delegates authority to an administrative
agency to promulgate regulations, those regulations must
neither exceed the scope of the authority delegated nor be
inconsistent with it. Furthermore, "delegations of legislative power are
valid only if they establish specific policies and fix definite standards to guide
the official, agency, or board in the exercise of the power. Delegations of
legislative power which lack such policies and standards are unconstitutional
and void." For example, language in an enabling statute which provides merely
"that the regulations be designed to protect and promote the safety and
health of employees" is insufficient.
7) "We consistently have held that when the primary purpose of an enactment is to raise
revenue, the enactment will be considered a tax, regardless of the name attached to the act.  
The General Assembly is directly prohibited from enacting “any local, special, or private law . . .
[f]or the assessment and collection of taxes. There is, however, an exception to this specific
prohibition. The General Assembly may by special act like RA 7160(Local Government
Code) delegating the power of taxation to any province, city, municipality.

Inconsistent Regulations/Laws
As a preliminary matter, we agree with Manassas' statements that regulations
of Executive Departments   have the force of law, and that any  Executive
Department concerned with the execution of a statute’s interpretation of its
governing statutes, as reflected in its regulations, is entitled to great
weight.Regulations,however, may not conflict with the
authorizing statute.  Whether a regulation isinconsistent with its
enabling legislation is properly a subject of judicial review.

If both the statute and the ordinance can stand together and be
given effect, it is the duty of the courts to harmonize them and not
nullify the ordinance. 
City and municipal ordinances must be consistent  with STATUTES.
Such ordinances are inconsistentwith state law when they cannot
co-exist with a statute. The fact that a county or municipal ordinance enlarges  on a statute's
provisions does not create a conflict with  the statute unless the statute limits the
requirements (Separability Clause is inserted)for  all cases to its own terms. Thus, if a statute and a local
ordinance both can  be given effect, courts must harmonize them and apply them  together.
 A Single Body of Law
1) "When attempting to define terms in one part of the Code, courts should read
a statute with "a view toward harmonizing it with other
statutes. "Ordinarily, when a particular  word in a statute is not
defined therein,  a court must give it  its ordinary meaning. 
2) "When asked to interpret various code sections, the SUPREME
Court oftenexamines other related statutes that contain
similar or  contrasting language to help determine
legislative intent.
The Exclusion Rule

Ambiguity
1) "Language is ambiguous when it may be understood
in  more than one way, or simultaneously refers to two
or more things.
2) "When the language of a statute is ambiguous, it must be interpreted in
a manner that will give effect to the intent of  CONGRESS. 
3) "The primary goal of statutory construction is to discern and give
effect to legislative intent, with the reading of a statute as a whole
influencing the proper construction of ambiguous individual provisions 
4) Doctrine of Contra proferentem: "Used in the connection
with the construction of written documents to the effect that an
ambiguous provision is construed most strongly against the person
who selected the language." Black's Law Dictionary, 5th Ed.
5) "Instead, we find the restrictive covenant, in particular the phrase "residential purposes," to be
ambiguous in several respects....Indeed, even the circuit court's interpretation that the term "
'[r]esidence' means more than mere physical presence and less than domicile" is ambiguous. It can be
argued that a nightly or weekly rental is more than mere physical presence. Moreover, if the phrase
"residential purposes" carries with it a "duration of use" component, it is ambiguous as to when a rental
of the property moves from short-term to long-term. Under our case law, a restrictive covenant of
"substantial doubt or ambiguity" must be interpreted "in favor of the free use of property and against
restrictions

Criminal Versus Civil Intent of a Statute

The question whether a particular statutorily defined penalty is civil or
criminal is a matter of statutory construction." First, one must determine
whether the legislature, in establishing the penalizing mechanism, indicates
either expressly or impliedly a preference for one label or the other. Second,
where the legislature has indicated an intention to establish a civil penalty,
one must address "whether the statutory scheme was so punitive either in
purpose or effect as to negate that intention 

Supremacy Clause of the Constitution

1) "Byvirtue of the Supremacy Clause of the Constitution
supersedes any conflicting state law. The preemption of Local laws by
STATUTES  may occur by express statutory language or other clear indication that
Congress intended to legislate exclusively in the area. Even if Congress does not
intend the enactment of a STATUTORY scheme completely to preempt Local laws
in the area, congressional enactments in the same field override Local laws with
which they conflict.
The Supreme Court has identified three ways in which
preemption may occur:
 (1) Congressmay adoptexpress language setting forth the
existence and scope of preemption; 
(2) Congress may adopt a framework for regulation
that "occupies the field" and leaves no room for states to
adopt supplemental laws; and
 (3) when statute actually conflicts with the constitution, typically
when compliance with both laws is a "physical impossibility" or the
statute stands "as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress. 
2)  "Settled legal principles provide that the Constitution, not a state
court erroneous interpretation of it, is controlling. (in context of
determining whether to apply retroactively a new rule for the
conduct of criminal prosecutions, adopting Blackstonian view that
judges...find the law rather than make the law and that judicial
declaration of law is merely a statement of what the law has always
been. 

Public Policy
1) "A court may not "second-guess the lawmakers on matters
of economics, sociology and public policy. . . . Those 
considerations belongexclusively in the legislative
domain.Regardless of whether it "may or may not be better public
policy".Meaning COURTS do not interpret provisions for
ECONOMICS, SOCIOLOGY and PUBLIC POLICY.
2) "Judicial review does notevaluate the "propriety, wisdom,
necessity and expediency" of legislation.We ask only
whether the statutory classification erects an irrational,
arbitrary distinction - one that no conceivable state of facts
could reasonably sustain.

Posted 20th October 2012 by AGINGLAWYER

  

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