b. "Execute and Enforce." These terms have been commented on by the Supreme Court in 167 U. S. 479. Typical provisions elaborating the meaning of those terms are New York Labor Law, Sec. 21; and Illinois Fire Escape Law, Sec. 6. c. "Prosecute." The term is sometimes used for duty of administrative officers to procure the action of states or district attorneys (" prosecuting" officials). The duty of prosecuting officials in relation to administrative officials is expressed in the Wisconsin Industrial Commission Law, Sec. 66. A power of an administrative official to control the action of the prosecuting official (which is very rare) is expressed in U. S. R. St., Sec. 838 For a very exceptional provision permitting the compounding of an offense, see Laws of Virginia, 1916, Ch. 46, Sec. 5. To meet the possible remissness of regular prosecuting officials, authority to prosecute (through attorneys of their own) is sometimes conferred on administrative officers: Ill. Coal Mine Act, 1899, Sec. 33; Wisconsin 2394-66; New York Labor Law, Secs. 12, 48; Vermont, 1884, Act, No. 112; Willard, Legislative Handbook, Secs. 277, 378. d. Provisions for the Recovery of Pecuniary Penalties. 66 Statutes use the terms "fine" and "penalty" somewhat indiscriminately. A "fine" is properly imposed as the result of criminal proceedings instituted by indictment; a penalty" is at common law recoverable by action of debt, brought in the absence of a different provision by the prosecuting official; so provided by New York Code of Civil Procedure, Sec. 1962. Criminal proceedings for small fines and penalties are frequently regulated by general statutes, and call for no special provision in drafting a statute. e. Informers' Actions. The attention of those responsible for the drafting of statutes should be called to recent evidences of legislative disfavor: the abrogation of informers' shares in the Federal Revenue Administration (R. St. Sec. 3463, also 18 St. L. 186), their total abrogation in New Hampshire, Act 1899, Ch. 31, and their reprobation by the modern legislative practice of other countries. Draftsmen unfamiliar with this development are apt to insert them in statutes; see, e. g., Illinois Flag Law, Sec. 10. They are subject to abuses, see 81 Justice of Peace 258; for provisions to meet these abuses see U. S. R. St., Secs. 3491, 3493, also see Sec. 5294. Somewhat different is a provision permitting a court to reimburse an informing complainant out of the penalty for his expenses; see English Margarine Act, 1887, Sec. 11. Different are also the provisions giving injured parties rights to fixed penalties, see U. S. R. St. 4965; Act of Congress, February 4, 1887;, 24 St. L. 387; R. St. Secs. 4529, 5517. f. Provisions for Civil Liability and Bond. A person offending against a penal statute is civilly liable to a party injured thereby; an express provision to that effect is rare, see Indiana, Sec. 7473. In some instances the statute requires a bond to satisfy such a liability; e.g., New York Liquor Tax Law, Sec. 16; New York General Business Law, Sec. 15, 25; New Jersey Compiled Laws, I, p. 18. For a full provision, see Illinois Private Employment Agency Law, Sec. 2. For provision giving an administrative officer power to require such bond, see Act of Congress, Oct. 28, 1919 (66 Congr. Public No. 56) Sec. 5 g. Enforcement through Courts of Equity. Brief provisions, applicable to particular statutes, are found in Massachusetts Laws, 1885, Ch. 314, Sec. 13; Iowa Laws 1884, Ch. 143; English Public Health Act, 1875, Sec. 107. Very full provisions for restraining nuisances are found in the socalled red-light injunction laws, and in the liquor statutes modeled upon them: see Act of Congress, Feb. 7, 1914; 38 St. L. 280, and Act of Oct. 28, 1919 (Volstead Act), Sec. 22. For provision for injunction after conviction, see Australian Industries Preservation Act, 1906-1910. Sec. 10. h. Administrative Enforcement. Provisions for such enforcement are found in legislation concerning public health and nuisances. For a well-drawn provision, see English Public Health Act, 1875, Sec. 46; see also Secs. 98, 257. American legislation: Act of Congress, Apr. 14, 1906, 34 St. L. 114. Judicial order authorizing administrative enforcement: New York Tenement Law, Sec. 126. IV. FORMAL, AND FORCE AND EFFECT PROVISIONS. A. FORMAL PARTS. a. Title to Act. This subject is of vital importance where there are constitutional provisions upon the subject, but everywhere a title is customary, and the observance of the best practice desirable. The cardinal rule of draftsmanship is brevity and avoidance of unnecessary matter, for a title which is more specific than necessary has the double disadvantage that it increases the risk of not adequately covering some particular provision, and that it may fail to be sufficiently adequate for future amendments. An act concerning, or relating to (naming briefly the subject matter of the statute), without any addition, is probably the best form, and there seems to be only one decision that could possibly throw any doubt upon such a title by reason of its brevity (Reeder vs. Township, 39 N. J. L. 509). A title expressing only the object to be accomplished by the act ("to promote the public health ") should be considered as too vague, though sustained in one case (People vs. Phippin, 70 Mich. 6); otherwise every act might be entitled "an act to promote the general welfare of the state." A title indicating a very wide category while dealing only with a specific head is also objectionable, so an act defining certain crimes " (sustained 49 Wash. 460). The most desirable title for an amending act seems: "an act to amend," or "an act further to amend," giving the title to the original act. All the difficulties that ordinarily arise can thus be avoided. However, as an exception, it seems objectionable to legislate concerning a new crime under a title "an act to amend the criminal code " (sustained in 273 Ill. 485), since on that theory an act to amend the Revised Statutes would be sufficient. Such a form of legislation may also entirely nullify the rule as to unity of subject matter. A drafting manual should briefly state the most significant decisions that have been rendered by American courts, leaving the draftsman to draw his own conclusions, but the case in favor of the briefest form of title, short of absolute vagueness or misleading generality, seems overwhelming. A provision in the statute itself indicating a short title by which the act may be decided is not uncommon and may be desirable. The title of an amending act may then use the short title, so “an act to amend the act approved December 23, 1913, known as the Federal Reserve Act." b. The Form of Amending Acts. In a number of states there are constitutional provisions forbidding amendments by reference to title only, and requiring reenactment of the particular section as amended. This is generally construed as applying to acts purporting to be amendments, and to forbid the change of matter by striking out, adding or changing words, stating them out of their original context. In Illinois the provision has also been applied to acts purporting on their face to be independent acts, but which in effect alter existing legislation. A hard and fast rule, that whatever can be accomplished by amending existing legislation, must be so accomplished, is extremely difficult to comply with, and a proposition to negative the supposed rule established by the Supreme Court, has been adopted by the constitutional convention of Illinois. However, as a drafting rule, the practice now enforced in Illinois through fear of unconstitutionality, has a great deal to recommend it; for it keeps the existing structure of the statute book as far as possible unaltered. c. Preamble. A preamble may be properly used to express matters not strictly legislative in character, expressions of policy, of the occasion of the act, etc. See e.g., the preamble to the Government of India Act, 1919. d. Enacting Clause. This is generally prescribed by the constitution. Attention should be called to the practice in some states of inserting it in the first section of the act. See Proceedings of Pennsylvania Commission on Constitutional Amendment and Revision, I, p. 59. B. LEGISLATION BY REFERENCE. a. The Objectionable Type. The criticism of English writers (Ilbert, Legislative Forms and Methods, pp. 254-266; Thring, Practical Legislation, pp. 48-58) is directed against the practice of providing for one subject matter by making applicable to it the rules previously enacted, with regard to another subject matter, instead of reenacting these rules, so, if in a law creating a Federal Trade Commission, the commission were given power to compel testimony by reference to similar power given to the Interstate Commerce Commission. The practice seems to be resorted to in England for tactical reasons. it gives assurance that what is proposed to be enacted has already received parliamentary sanction in another case and that no change will be made. In America, the practice is not very common; see 2 Rob. (La.) 248; 36 Ill. 423; 53 Ill. App. 25; 48 N. J. L. 407 (unconstitutional under New Jersey Constitution, IV, 7, 2. An identical clause in the New York Constitution has never been successfully invoked.) In Kentucky it has been held unconstitutional to incorporate the provisions of another statute so far as applicable." I Ky. Law Rep. 168. b. Adoption of an Entire System of Laws, or of the Laws of Another Jurisdiction. The practice is illustrated by the Act of Illinois, adopting the common law, and by the provision of the Revised Statutes of the U. S., Sec. 721, adopting the laws of the states as rules of decision in trials at common law in the federal court. When the bill for the Clayton Antitrust Law was before Congress, the following provision was suggested: "It shall be unlawful for any corporation engaged in commerce to do any business in any state contrary to the laws of the state under which their corporation was created, or contrary to the law of the state in which it may be doing business." The suggestion was dropped when it was pointed out that the United States would thereby undertake the enforcement of state laws which it could neither foresee nor control. c. The Proper and Common Use of Legislation by Reference. When general statutes deal with subsidiary matters of administration, enforcement, operation, or interpretation, they are naturally incorporated into other statutes of more substantive content, whether expressly referred to or not. Codes of procedure and interpretation acts are the most common of such subsidiary laws. If there is express reference to the law to be incorporated it should be with the addition "as the same may be amended from time to time "; see 170 Ill. 336; 12 Peters 524, 625. In Australia this rule was fixed by an Interpretation Act enacted in 1916. C. OPERATION IN TIME AND PLACE. a. Provisions Qualifying the Rule of Prospective Operation. (1) Statutes prescribing forms for legal proceedings. Such statutes may provide for optional application to pending proceedings. The following is a liberal provision: This act shall apply to all matters existing at the time of the passing of this act whether the proceedings are actually pending or not, and any proceeding in any such matter may be continued or taken under this act as if the matter originated under this act, or may be continued or taken under the acts hereby repealed, or partly under this act, or partly under said repealed acts, as occasion may require. (English Settled Estates Act, 1877, Sec. 57.) (2) Referring the adjustment of existing conditions to administrative direction. See New York Labor Law, Sec. 79f. 11. This is unusual. (3) Provisions invalidating or altering existing contracts: As to constitutionality, see 219 U. S. 465. English instances in point are Railway and Canal Traffic Act, 1888, Sec. 11. Factory Act, 1901, Secs. 82, 3; 10 and 11 Vict. Ch. 34, Sec. 154. For an American instance, see the Tariff Act, 1864, Sec. 97 (13 St. L. 273). Provisions nullifying private arrangements which seek to take advantage of an impending statutory change (so-called padlock clauses) are 459 illustrated by the English Act, 3 George V, Ch. 3, 1913, enacted in con- b. Extraterritorial Effect, Reciprocity and Retaliation. The statutory precedent material is adapted only to special classes of cases. For power to take action on account of nuisances arising outside of the jurisdiction of a local authority, see English Public Health Act, Sec. 108. For the application of Workmen's Compensation Act to injuries suffered outside of the state, see Harvard Law Review, Vol. 31, p. 619, and Bradbury's Workmen's Compensation Laws, I, pp. 34-63. In measures affecting trade and commerce, it deserves consideration whether exemptions from provisions are not advisable in view of the requirements of competition and the provisions of foreign laws, thus marking requirements may be modified for articles intended for export, Act of Congress, Apr. 26, 1910, Ch. 191; 36 St. L. 331, Sec. 2, and see the so-called Edge Act, modifying the operation of the Antitrust law with regard to foreign trade corporations. Reciprocity provisions are of special importance in connection with professional licenses. See Texas statutes, Sec. 5738, giving the Board of Medical Examiners general power to make appropriate arrangements. For an example of reciprocity provisions in connection with fish and game laws, see Session laws of Washington, 1901, Ch. 134, pp. 280-281. Retaliatory clauses occur in connection with the admission of foreign corporations to do business in the state. See for an example, Missouri Statutes, Sec. 7073; also New Jersey Statutes, p. 2857. D. REPEAL PROVISIONS. a. As to the common repealing clause, see Lewis-Sutherland on Statutes, Sec. 256; and 113 U. S. 79. b. Saving Provisions in Connection with Repeals. These are of particular importance for penal consequences of repealed acts, which are sometimes taken care of by general statutes, see U. S. Rev. St., Sec. 13, 5598. A full general saving statute is Sec. 4 of the Statutory Construction Act of Illinois. Even this provision leaves doubts as to licenses granted under repealed acts; and the grant of a new power of revocation may leave it doubtful as to whether it can be exercised as to licenses granted under the repealed act. Perhaps there should be a general interpretation clause to the effect that previous acts shall be deemed repealed only in so far as they are inconsistent with the operation of the new law. For saving provisions in acts superseding authorities, see English Local Government Act, 1888, Secs. 122-124; also Sec. 126 as to savings in other respects. For saving provisions applicable to regulations, see Australia Acts Interpretation Act, 1916. A general statute for saving should include expired as well as repealed acts. |