PROVISOS, EXCEPTIONS AND SAVINGS CLAUSES

PROVISOS y limit the application of the enacting clause, section, or provisions of a statute y except something therefrom y qualify or restrain its generality y exclude some possible ground of misinterpretation of it y qualify the generality of the enacting clause or limit/restrict the general language or operation of the statute, not to enlarge it y may ONLY be ENLARGED in cases where there ambiguity in its use y qualifies only the phrase immediately preceding it or restrains or limits the generality of the clause that it immediately follows except when the legislative intent requires other provisions that precede it. y The main provision of a statute should prevail over a proviso since it is found in the later portion of the statute (later portion = latest expression of the intent of the legislation) EXCEPTIONS y That which would otherwise be included in the provision from which it is excepted. y Construed as such if it removes something from the operation of a provision of law y Express mention of exceptions operates to exclude other exceptions y Those which are not within the enumerated exceptions are deemed included in the general rule y A thing not falling under the exception shall come within the purview of the general rule PROVISO EXCEPTION Defeats its operation Express words in the conditionally enacting clause Takes out something Takes out something by way of excuse or from the statute defeasance something that would have been a part of it Modified by engrafting Generally a part of the upon it a new enactment itself provision, providing conditionally for a new case

SAVING CLAUSE y Clause in a provision of law which operates to except from the effect of the law what the clause provides y Save something which would otherwise be lost y Except or save something from the effect of a repeal of a statute y Construed in light of the intent or purpose which the legislature had in mind in providing it in a statute y Principal consideration: effectuate such intent or carry out such purpose

STATUTE CONSTRUED AS A WHOLE AND IN RELATION TO OTHER STATUTES

STATUTE CONSTRUED AS A WHOLE y The whole and every part of a statutes should be construed together y Intent should be ascertained from the statute as a whole y The best interpreter of a statute is the statute itself y Every part should be construed in reference to the whole y Conflicting provisions should be reconciled whenever possible as parts of a coordinated and harmonious whole y General and Special provisions: general provisions would only affect the other parts of the statute to which it may properly apply; the special provisions is construed as an exception to the general provision. y One portion of a statute should not be construed to destroy or render another provision nugatory. (Reason for this rule: legislative enacted the statute with its provisions in harmony and consistent with each other) y If reconciling conflicting provisions is not possible, then: 1) the court should construe it in a way that will best effectuate the legislative intent, OR 2) the last in order of position is frequently held to prevail unless it clearly appears that the intent of the legislature is otherwise y Each provision should be given its due effect and meaning in relation to the rest and avoid surplusage.

The rule that statutes should be construed as a whole also applies to statutes and its amendments.

STATUTE CONSTRUED IN RELATION TO OTHER STATUTES Statutes in pari materia: two or more statutes relate to the same specific subject matter RULE: every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence y In the absence of proof to the contrary, all laws are presumed to be consistent with each other y Every statute should be construed in such a way that will harmonize it with existing laws and attain the purpose of an express national policy y ASSUMPTION: Congress has in mind the previous statutes relating to the same subject matter, and in the absence of any express repeal or amendment, the new statute is deemed enacted in accord with the legislative policy embodied in those prior statutes y A statute will not be construed as repealing prior act on the same subject in the absence of words to that effect, unless there is an irreconcilable repugnancy between them or unless the new law is evidently intended to supersede all prior acts on the matter and to compromise itself the sole and complete system of legislation on the subject y REASON FOR THE RULE: the legislature cannot be said to have intended the establishment of conflictin and hostile systems on the same subject or to leave in force provisions of prior law which may thwart and overthrow the will of the legislature y The earlier law must yield to the later one, it being the later expression of legislative will General Statute Special Statute Applies to all of the people Relates to particular of the state or to all of a persons or things of a class particular class of persons or to a particular portion in the state with equal or section of the state only force Embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class Universal application affecting the entire community y

GENERAL V SPECIAL STATUTE: special act must be taken as intended t constitute an exception to the general act in case of conflict o Reason for the rule: legislature has its attention directed to the special facts and circumstances which the special act is intended to meet o Exception to the rule: 1) when the legislature intended the later general enactment to cover the whole subject and to repeal all prior laws; 2) when the special law creates a general rule and the general law creates a specific and special rule REFERENCE STATUTES: refers to other statues and makes them applicable to the subject of legislation o Adoption of a statutes that was previously repealed revives the statute o Does not include modification or subsequent changes of the adopted statute unless it is so expressed o Reference statute should be so construed as to harmonize with, and give effect to the adopted statute. SUPPLEMENTAL STATUTES: one intended to supply deficiencies in an existing statute and to add, to complete, or extend the statute without changing or modifying its original text o Original statute and supplemental act should be read and construed together to make an intelligible whole REENACTED STATUTES: reenacts a previous statute or the provisions thereof; one in which the provisions of an earlier statute are reproduced in the same or substantially the same words; may also be made by reference o When the legislature reenacted a statute which has received a practical or contemporaneous construction, it is a persuasive indication of the adoption by the legislature of the prior practical or executive construction. (applies only when the statute is capable of construction and the construction has become a settled rule of conduct) ADOPTED STATUTES: patterned after, or copied from a statute of a foreign country o In construing the court shall take into consideration the construction by the courts of the country from which it is taken

STRICT OR LIBERAL CONSTRUCTION

Depends on: 1. Nature of the statute 2. The purpose to be subserved 3. Mischief to be remedied STRICT CONSTRUCTION y Construction according to the letter of a statute, which recognizes nothing that is not express, takes the language used in its exact meaning, and admits no equitable consideration y Scope of a statute shall not be extended or enlarged by implication, intendment, or equitable consideration beyond the literal meaning of its terms y Literal or textual interpretation LIBERAL CONSTRUCTION y Equitable construction as will enlarge the letter of a statute to accomplish its intended purpose, carry out its intent, or promote justice y Construction which expands the meaning of a statute to meet cases which are clearly within the spirit or reason thereof or within the evil which the statute was designed to remedy y Gives a statute its generally accepted meaning to the end that the most comprehensive application thereof may be accorded, without being inconsistent with its language or doing violence to its terms y The words should receive a fair and reasonable interpretation, so as to attain the intent, spirit, and purpose of the law y Cannot be applied to give a meaning which the clear and plain language of the statute rejects y Cannot prevail over the categorical provisions of the law y

mandatory. If not, it may be construed as discretionary. Kinds: o statutes conferring power o statutes granting benefits o statutes prescribing jurisdictional requirements o statutes prescribing time to take action or to appeal o statutes prescribing procedural requirements o election laws on conduct of election (if sought after election, it is deemed directory only) o statutes prescribing qualifications for office o statues relating to assessment of taxes o statutes concerning public auction sales DIRECTORY STATUTE y Permissive or discretionary in nature and merely outlines the act to be done in such a way that no injury can result from ignoring it or that its purpose can be accomplished in manner other than that prescribed and substantially the same result obtained y Uses the word may o Its use in remedial statutes (liberal construction) are permissive and not mandatory y Kinds: o Statutes prescribing guidance for officers o Statutes prescribing manner of judicial action o Statutes requiring rendition of decision within prescribed period (depends on legislative intent) o Constitutional provision regarding the period within which a judgment should be rendered is merely directory when it would lead to a lesser injury. TEST USED TO DETERMINE WHETHER IT IS MANDATORY OR DIRECTORY y Consequences that follow in case what the statute requires is not done or what it forbids is performed y If no substantial rights depend on it and no injury can result from ignoring it; and the purpose of the legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as DIRECTORY. If not, then it is MANDATORY.

MANDATORY AND DIRECTORY STATUTES

Important in resolving the question of what effect should be given to the mandate of a statute MANDATORY STATUTES y Commands either positively that something be done or performed in a particular way OR negatively that something be not done, leaving the person concerned no choice on the matter except to obey y Use of shall, must, ought o Depends on whether it will result to nullity of the act. If it will, it is

A statute will not be interpreted as mandatory if it would result to hardships, injustice, absurd, impossible, or mischievous consequences. MAY AND SHALL y May will be construed as shall when o Statute provides for doing some act which is required by justice or public duty; concerns the public interests or rights of individuals y Shall will be construed as may when o So required by the intention of the legislature; when no public benefit or private right requires that it be given an imperative meaning. y

PROSPECTIVE AND RETROACTIVE STATUTES

In general, laws operate prospectively There is a presumption against the retroactive operation of statutes y Retroactive statues may be given effect if they do not impair the obligations of contract, deprive persons of property without due process of law, or divest rights that have become vested, or which are not in the nature of ex post facto law PROSPECTIVE y Operates upon facts or transactions that occur after the statute takes effect; one that looks and applies to the future y What laws are given prospective application? o Penal statutes, unless it will benefit the offender, who is not a habitual delinquent and when the law does not state otherwise o Substantive statutes: creates, defines or regulates rights concerning life, liberty or property, or the power of agencies or instrumentalities for the administration of public affairs  Will be applied to pending actions if it is the clear intent of the law o Statutes affecting vested rights: right or interest in property that has become fixed or established and is no longer open to doubt or controversy o Statutes affecting obligations of contract: A contract is governed by the laws existing at the time of its execution o Repealing and amendatory acts RETROACTIVE y y

Creates a new obligation, imposes a new duty, or attaches a new disability in respect to a transaction already past y What laws are given retroactive application? o Procedural laws: adjective laws that prescribe rules and forms of procedure of enforcing rights or obtaining redress for their invasion  No vested right may attach to procedural laws  Exception: the law states otherwise or would impair vested rights o Curative statutes: remedial by curing defects and adding to the means of enforcing existing obligations; supply defects, abridge superfluities in existing laws, and curb certain evils Police power legislations exception to the rule that a law will not be given retroactive effect if it will impair obligations of contract or divested rights. y

AMENDMENT, REVISION, CODIFICATION, AND REPEAL

AMENDMENT y Change or modification, by addition, deletion, or alteration, of a statute which survives in its amended form y Express amendment: providing in the amendatory act specific provisions or sections that are supposed to be amended y Implied amendment: Part of a prior statute embracing the same subject as the later act may not be enforced without nullifying the pertinent provision of the latter. The earlier provision is deemed amended to avoid repugnancy y Construed in relation to the statute it amends; should be read together as a whole REVISION AND CODIFICATION y new provisions are inserted, some old provisions are omitted, the phraseology is changed, and sections are rearranged y PURPOSE: restate the existing laws into one statue, simplify complicated provisions, and make the laws on the subject easily found y PRESUMPTION: author has maintained a consistent philosophy or position; different provisions should be construed and harmonized together. When there are provisions that are irreconcilable, then the one that comes later or

y y

best achieves the legislative intent is given effect. What is omitted is deemed repealed Held as a continuation of existing statutes y

REPEAL y Supreme Court does not have the power to repeal laws; only the legislature y Constitution prohibits passage of irrepealable laws; ALL LAWS ARE REPEALABLE y Repeal can be either total or partial, express or implied o Total: completely revoked o Partial: leaves the unaffected portions in force o Express: declaration which states that a particular and specific law is repealed o Implied: where the intention of the legislature is to repeal an existing law, the intention must be given effect (sufficient revelation of the Congress of such intent); generally, not favored  Irreconcilable conflict: later statute shall prevail  Later act is intended as a substitute  Examples: y Revision/codification y Reenactment y all laws or parts thereof which are inconsistent with this Act are hereby repealed or modified accordingly statement saying an act is repealed y As between two laws, one passed later usually prevails because it is the most recent expression of legislative intent y Effect of repeal: renders the related provisions or statutes inoperative o However, when court acquires jurisdiction over a controversy, it usually continues until the final determination of the case o Repeal of a statute defeats all actions and proceeding that are pending (applies appeal) if the statute that Offender A violated was repealed during the pendency of the appeal, then Offender A would be released and the judgment appealed from will be reversed o Does not destroyed vested rights accrued before its repeal

On contracts: laws that exist during its execution will apply; repeal or amendments will not affect the rights of the parties Difference between repeal and expiration o Repeal: crime is obliterated or erased o Expiration: does not erase the crime Effect of repeal of municipal charter o Destroys all offices under it and ends the functions of the incumbents, saves those excepted in the new charter Repeal or nullity of repealing law o When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived unless expressly so provided o But, if the repealing statute is declared unconstitutional, the repealed statute continues to remain in force. o