Carden, Administrator v. L. & N. R. R.

ure, was, at the time the cause of action accrued, an infant, married woman or of unsound mind, the action may be brought within a like number of years after the removal of such disability or the death of the person, whichever happened first, that is allowed to a person having no such impediment to bring the same after the right accrued."

It will assist us in seeking to arrive at a proper determination of the meaning of the words of the statute to trace chronologically in the order of their enactment the variations which have attended this statute since its original enactment in 1854.

Section 4 of the act of 1854 reads as follows: "Actions under this act shall be commenced within one year from the time of such death."

This entire statute, with the limitations and all the exceptions to the same, appears in 2 Stanton's Revised Statutes, page 510. Upon the adoption of the General Statutes the compilers transferred the whole act of 1854, except article 4. to chapter 57 of the General Statutes. They embraced other statutory provisions in sections 4 to 9, inclusive, of that chapter.

Section 3, chapter 63 of Stanton's Revised Statutes, volume 2, page 128, provides: "An action for an injury to the person of plaintiff or of his wife, child, ward, apprentice or servant, and action for a malicious prosecution, shall. be commenced within one year next after the cause of action accrued."

The section in the General Statutes that corresponds with the one quoted is section 3, article 3, chapter 71, and reads as follows: "An action for an injury to the person of plain

Carden, Administrator v. L. & N. R. R.

tiff or of his wife, etc., or for injuries to person, cattle or stock by railroads, or by any company or corporation, and actions for malicious prosecutions, shall be commenced within one year after the cause of action accrued, and not thereafter."

It will be noted that the act of 1854, which thus gave right of action for the loss of life, expressly provided that the limitation should be one year from the date of such death; and later, in the general revision of the statutes, the limita tion clause was transferred to the chapter on limitations and included in a section with others, and the phraseology was changed for the sake of brevity and conciseness.

It seems evident that it was the intention of the legislature to limit the time when actions could be instituted under this statute to one year from the day when the cause of action accrued, which undoubtedly was the date of the death. To hold that this suit may be commenced at any time within one year after the appointment of an administrator, who may be appointed any time within twenty years, is to hold that a radical change in the policy of the statute was worked simply by a change of phraseology, dictated merely by convenience in a general revision of the statutes, as the obvious purpose was to provide for a reasonable limitation of actions which did not accrue to a man in his lifetime, but which might accrue for the benefit of his estate after his death.

It is admitted by plaintiff that if the cause of action had accrued to his intestate in her lifetime, the running of a statute would not be stayed by her death until the grant of administration, but having begun would have continued; and it is not easy to see why upon principle any distinc

Carden, Administrator v. L. & N. R. R.

tion should be made between the case where a cause of action accrued in the lifetime of an intestate and where it does not accrue until after her death. The only reason that can be given why the statute should not run in any case is that there is no person to sue and no person to whom laches can be imputed. But it seems to us that the reason applies to the one case as well as to the other, and if an exception is allowed in favor of the one it ought to be extended to the other. The statute itself makes no such exception to the operation, and it can exist only by equitable implication.

Mr. Chancellor Kent, on page 142, says: "The doctrine of an inherent equity creating an exception as to any disability where the statute of limitation creates none has been long and I believe uniformly exploded. General words of the statute must receive a general construction, and if there be no express exception the court can create none. It is a universal principle of construction that courts must find the intents of the legislature in the statute itself, and unless some ground can be found in the statute for restraining or enlarging the meaning of its general words they must receive a general construction; that is, to read it as it is written without any arbitrary subtraction or addition to its meaning." (See Beckford v. Wade, 17 Vesey, p. 87.)

The statute under which this suit was instituted provides "that actions under it must be commenced within twelve months after the cause of action shall have accrued."

There is nothing in these words which imply in addition the existence of a person legally competent to enforce it by suit. If it did, why, in subsequent parts of the statute.

Carden, Administrator v. L. & N. R. R.

is it provided that the statute shall not run in certain cases specified, which are excepted from the operation of the statute because the person in whose favor the cause of action exists is legally incompetent to sue? Obviously if the term "right of action" implies the existence of a person competent to commence an action there was no occasion for the special provisions relieving persons not competent from the operations of the statute.

Nothing further need have been said, for the courts after having ascertained the existence of a right of action, would have next inquired whether there was any person in existence legally competent to enforce it by suit and compute the time accordingly; and if it was the intention to provide that the statute should only run where there is both a right of action and a person to assert it, why not insert a provision to that effect in express terms? There is no provision of the statute making the exception contended for in this case, nor do we perceive any reason why any such exception should have been made. If the cause of action does not accrue until after the death of the party who would have been entitled to sue the persons interested in the suit have the full time allowed by the statute in which to move in the matter to obtain a grant of administration and commence a suit. (See Tynes v. Walker, 35 Cal.)

Three of the heirs in this case were fully of age and each laboring under no disability. There was but one cause of action and there could have been but one recovery; and if we recognize the doctrine of implied exception contended for we do not perceive that a case like this comes within the principle. It certainly has less equity than the case where.

Carden, Administrator v. L. & N. R. R.

the cause of action had accrued within the lifetime of the party, yet in that case confessedly the statute runs on and the cause of action is barred in one year, except as provided in sections 2526 and 2527, which have no application here, whilst if we are to accept the construction contended for by counsel of appellant it would give to the heirs of such a party twenty-one years after the accrual of the cause of action to institute their suit, a period of limitation which is in conflict with the express words of the statute, and we can not believe that the legislature ever intended to make this radical change in this statute, for under such a construction, it entirely ceases to be a statute of repose, and in its effect is of precisely the opposite character.

The cases cited by counsel as stated before were all for the recovery of personal property, and brought under the provisions of the common law; and even if the rule of construction on this question of limitation announced in them is the true one, which may be doubted, it certainly can not apply to the enforcement of rights acquired under a statute which is highly punitive in its character, as this, and which, under every rule of construction, must be most strictly construed.

For the reason indicated in this opinion the case is affirmed.