# Railway Company v. B'Shears/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Battle
​HUGHES, J., (after stating the facts). The only question we have considered and determined in this case is, whether this suit can be maintained, the citizens of Fulton having failed to provide and tender to the railway company means sufficient to defray the reasonable expenses of grading a switch or side track at said town ​of Fulton for the use of said company, in accordance with the requirement of section 5501 of Mansfield's Digest. There does not appear to be any ambiguity or obscurity in this section of the statute. Where a statute is unambiguous, as a general rule, but little room is left for construction.
In the case of Sturges v. Crowninshield, 4 Wheaton, 202, it is said: "Although the spirit of the instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words of the instrument expressly provide shall be exempt from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of the words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any ease, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the obscurity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application." Quoted in Sutherland on Statutory Construction, pp. 315, 316, sec. 238.
Mr. Sutherland says: "One who contends that a section of an act must not be read literally must be able to show one of two things: either that there is some other section which cuts down or expands its meaning, or else that the section itself is repugnant to the general purview. The question for the courts is, what did the legislature really intend to direct; and this intention must be sought in the whole of the act, taken together, ​and other acts in pari materia. If the language be plain, unambiguous and uncontrollable by other parts of the act, or other acts or laws upon the same subject, the court cannot give it a different meaning to subserve public policy or to maintain its constitutionality. The limited meaning of the words will be disregarded when it is obvious from the act itself that the use of the word was a clerical error, and that the legislature intended it in a different sense from its common meaning. Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity, of the result, is out of place. It is not the province of the courts to supervise legislation, and keep it within the bounds of propriety and common sense." Sutherland on Statutory Construction, sec. 238.
Where the statute makes no exceptions, the courts can make none. It might be very just and reasonable and right that the statute should make an exception, such as is contended it does make, or ought to be construed to make, but this was within the power of the legislature, "and its exercise of the power cannot be restrained or varied by the courts to subserve" convenience, to relieve from hardships or from requirements that seem unreasonable, or even absurd, where the language is plain and unambiguous. Sims v. Cumby, 53 Ark. 421; McGaughey v. Brown, 46 Ark. 37; Springfield, etc. Ry. Co. v. Lambert, 42 Ark. 122; Memphis, etc. Railroad Co. v. Carllee, 39 Ark. 246.
The circuit court erred in awarding the mandamus, for the reason that no tender of amount necessary to pay expenses of grading switch had been made before suit, as required by the statute.
Reversed and dismissed.