The times., 1898-08-05


the fiscal year ending June 80. 1899. and
for other purposes" 1t contains but two
sections the first. embracing all the ap-
under head lines indicating
their several objects, covers twenty-one
printed pages; and the second. containing
but five lines. prescribes the forms OF
acquisitions on the commissioners for the
future. The assignment of a designated
sum for the telegraph and telephone SER
vice" rendered to the District government
was not what Dwarris designates "a
preceding enactment" which Congress
desired to repeal by the clause fixing the
rate of charge for the use Of telephones
within the District for the future.
Its Purpose and scope.
It's purpose and scope are more accu-
rately described by the Supreme Court
in 12S L. S. Georgia Banking Co. VS..
Smith where Mr. Justice Field examined
a similar contention with respect TO
clause in a section OF a railroad charter,
which was prefaced by the word pro
vided." The general purpose of pro-
viso. as is well known is to except the
clause covered by it from the general pro-
visions of a statute, from some pro-
visions of II. or TO qualify the operei.0n
of the statute in some particular. But 1t
is often used in other senses. 1t is a
common practice in legislative proceed
ings. on the consideration of bills, for
parties desrous of securing amendments
to them, TO precede their proposed amend
ments with the word provided so as
TO declare that. notwithstanding exist
ing provisions. the one thus expressed is
to prevail thus having no greater sig
MITIGATION than would be attached to the
conjunction but" or 'and' in the same
place, and simply serving to separate or
distinguish the different paragraphs or
sentences Several Illustrations are given
by counsel of the use of the term in this
sense, showing in such cases where an
amendment has been made, though the
provision following often has no relation
to what precedes it,
The Rule Not Absolute.
In % Encyclopedia of Law. p. 1876. the
subject is considered and the result of
the authorities as to the application of
the rule referred TO is thus stated: This
rule is not. however. absolure. and if
the context requires, the proyiso may
be considered as a limitation extending
over more than what Immediately pre-
cedes. or may amount to an independent
enactment"
Among he cases thus cited is u. S.
V. Babbitt Black 65. Congress by the
Sd. Section OF the act of 1882 90 State. q
had declared that registers and receivers
of the Land Office should be entitlde to
receive a certain rate OF compensation
for services Heretofore performed by
them; and appended 10 the section two
clauses each preceded by the word pro
vided.' the first of which declared that
no register or receiver should receive any
compensation for past services, who had
charged or received illegal fees. The sec
ond was in these words And provided
further that no register or receiver shall
receive for his services, during any year,
a greater compensation than the maxi
mum now allowed by law.
In a suit brought against register for
withholding public moneys. he insisted
that the second proviso of the act of
1852 was applicable only TO the case
mentioned in the preceding part of the
section and therefore embraced only fees
for services performed before the passage
of that acs. But the court held that
1.-The proviso referred to Is not limited
in its effect to the section where it is
found, but that 1t was affirmed by Con-
gress as an independent proposition and
applies alike TO all officers of this class. y
The court further held that this purpose
of Congress was clearly implied in its
language, and that what is so implied
in a statute is as much part Of II as
what is expressed; and that "a thing
within the intention of the makers of a
salute is as much within the statute as
If 1t were within the letter" How. 565.
L g, V Freeman.
Maryland Case Is Cited.
To the same effect is the decision in 3i
| Maryland, 1856; Mayor OF Cumberland VS..
| Magruder In that case it was arguel
| that the proviso to a section amending
| the charter of the city which declared the
| corporation should have no power TO
| pledge the credit of the city for an
| amount exceeding $4,000 without a pre-
yious vote of the people approving the
measure, was not of general operation.
| but only applied to the improvements
named in the previous part of the sec
ton. The argument was precisely that
| advanced here. But the court, Miller, j.,
| delivering the opinion. overruled the con-
tention and held that the provision, no
matter by what phrase it is preceded
was an unqualified negation of the power
| as TO all manner of expenditures to the
| limit named. until the vote of the people
had approved it. He said. Its language
| is too plain to be misunderstood, TO i'm
| perative to be disregarded. and the re-
| suit Ii seeks to attain too statutory and
| important TO be defeated by any nice con-
struction in which it is found, or the tech
! nical word by which 1t is prefaced. IN re-
| spect to position and connection it is
| equally potent, and if enacted in a sepa-
| rate section
These utterances are strikingiy applica-
| BILE TO the clause before US. Its language
! is of the most general character; it for
| bids any telephone company to charge
| or receive more than the designated
| rates, without the slightest intimation
| that its operation was to be limited to
| charges against the District government.
| If such had been the purpose of Con-
gress, can II be doubted 1t would have
| secured It by the insertion of a few word.
| limiting 1t to telephones used by the Dis
| trict that would have removed all doubt
on the subject. But 1t cannot be pre-
tended that Congress had any such pur-
| pose, for it Is a matter of universal
knowledge and especially well known tC
the defendant company that its purpose
was to apply to statutory rates to every
telephone operated BY any person or com
pany in the District of Columbia.
This objection is overruled.
Question of COnstitutionality.
The last objection is addressed to tn,
| question of the constt tutionaidty of th'
clause under examination.
| Notwithstanding the qualified assent @
the defendant in the third section of th
answer, do not understand it is deniet
| that this company is to be regarded as
common carrier of telephone messages 70
hire, and as such subject to the power o
| Congress to establish what it may con
slider proper rates of charges for the us
of the telephone service; subject only t
the limitation that such is not required