"Instances without number exist where the meaning of words in a statute has been enlarged, restricted, or qualified to carry out the intention of the legislature. The inquiry, where any uncertainty exists, always is as to what the legislature intended, and, when that is ascertained, it controls."

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The supreme court of Arkansas has repeatedly manifested, in the most explicit terms, the rules that should obtain in the construction of statutes in this state. They say that where the terms of a statute are ambiguous, the court, in order to ascertain their meaning, must resort to the general spirit and intent of the enactment, keeping in view its known object and the mischief intended to be remeBuckner v. Bank, 5 Ark. 536, 41 Am. Dec. 105; Davis v. Tarwater, 13 Ark. 52; McKenzie v. Murphy, 24 Ark. 155; McNair v. Williams, 28 Ark. 200; Railroad Co. v. Howell, 31 Ark. 119; State v. Smith, 40 Ark. 431; Doles v. Hilton, 48 Ark. 307, 3 S. W. 193. A statute must be so expounded that, not only every clause, but every word, shall have some operation and effect. Lytle v. State, 17 Ark. 608; Scott v. State, 22 Ark. 369; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; Wilson v. Biscoe, 11 Ark. 44.

died. Wassel v. Tunnah, 25 Ark. 101.c

In McNair v. Williams, 28 Ark. 200, the court said:

"One part of a statute must be so construed by another that the whole may, if possible, stand, and that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. Less regard is to be paid to the words used than to the policy which dictated the act."

In State v. Smith, 40 Ark. 431, the court said:

"It is the duty of every court to so construe a statute as to effect the clearly expressed intention of the legislature, and not to defeat it by adhering too rigidly to its letter, or to technical rules of construction. Any construction that would lead to absurd consequences should be discarded."

Decisions might be multiplied on this subject. It is sufficient to say that these cases show that in construing statutes the fundamental rule is to get at the intention of the legislature. Mr. Sutherland says:

"No clearer statement has been or can be made of the law as to the dominating influence of the intention of a statute in the construction of all its parts than that which is found in Kent's Commentaries: 'In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms, and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion.'

Blackstone, in his Commentaries, mentions three things which are to be considered in the construction of all remedial statutes: the old law, the mischief, and the remedy; that is, how the law stood at the making of the act, the mischief for which that law did not adequately provide, and what remedy the legislature has supplied to cure this mischief. And it is the duty of judges so to construe the act as to suppress the mischief and advance the remedy. This injunction is simply to carry out the intention of the lawmaker, which is the cardinal aim with reference to all statutes. The in

tention in statutes which are for this purpose recognized as remedial, or enacted pro bono publico, is more liberally inferred, and to a greater extent dominates the letter, than is admissible in dealing with those which must be strictly construed. The more I have reflected upon this statute, the more I am impressed with the belief that the construction I have placed upon it was not only the meaning intended by the legislature, but it is the meaning most consonant with reason and justice. It is a construction which promotes the very purpose which the legislature had in view. It is a construction which gives force and effect to every provision of the act. And it is a construction which does equal and exact justice between all parties. It must be admitted that a construction placed upon the third section of this act which would permit a person to take a mortgage upon a piece of real estate, and five years afterwards, when both the mortgagor and the mortgagee knew that the money thus raised had been expended for other purposes than the erection of any buildings or improvements upon the land, that such a mortgage, under this statute, should have priority over mechanics, laborers, and material men whose labor and material had constructed the buildings upon it, would lead to an absurdity, nullify the enacting clause of the section, and deprive the material men, laborers, and mechanics of that protection which it was the object of the legislature to afford. I am of the opinion, there. fore, that the proper construction of this statute only gives priority to the mortgagee over the mechanic, the laborer, and the material man when the mortgage was given or executed for the purpose of raising money or funds which were actually used in making the erection or improvements or buildings on the land. But, if wrong. in this so far as Dyke Bros. is concerned, I am of the opinion that the Chaunceys are estopped from availing themselves of their mort gage to defeat their lien. It is true, there is a direct conflict in the evidence between Kelly and Dyke as to whether or not Kelly ever told Dkye that he had $1,500 of the Chaunceys' money in his hands belonging to Matthews, and that he would see that he (Dyke) got his money out of it. Both parties give reasons which are substantial for the testimony which they give in this respect, but there is so much in the testimony of Kelly that is evasive in relation to his connection with the Chaunceys in this matter, not to mention the fact that he is squarely contradicted along the same line by Tenny, that the court is inclined to the opinion that he ought to give credence to the testimony of Dyke. It appears from the testimony that Dyke, only a month before he claims to have had the interview with Kelly; refused to sell Matthews lumber to go into his residence; and it is not denied that, for three years prior to the time that Dyke says he had the interview above referred to with Kelly, Kelly had requested him, whenever he was furnishing lumber to go into houses upon which he held a mortgage, to advise him (Kelly) of it; and the additional fact that it had been the custom of Kelly, in representing the Chaunceys, to withhold so much of the money as was to go into the improvements from the borrower as would

satisfy the laborers, the mechanics, and the material men; and that is precisely what he undertook to do in this case, and which, doubtless, he would have accomplished but for the fact that Matthews, by devious methods, overreached him, got the money out of his possession, and then misappropriated it. Dyke also testifies that he never would have sold Matthews the lumber but for the fact of this promise made by Kelly. The court thinks that this constitutes an estoppel.. But it is said that Dyke had made the contract with Kelly to furnish the lumber to Matthews before the interview took place, and, therefore, being obligated to deliver the lumber, the doctrine of estoppel would not apply. The answer to that is that the agreement to deliver the lumber is not shown to have been in writing, or that any portion of the purchase price therefor had been paid, or that any earnest money had been paid. The contract, therefore, to furnish the lumber, being for the amount of $400, and not in writing, falls clearly within the statute of frauds. Section 3470, Sand. & H. Dig. This doctrine of estoppel, however, cannot be made to apply to Tenny & Co., because the testimony shows that Tenny & Co. entered into a written contract; and, furthermore, it does not appear from his testimony that he would not have delivered the lumber but for any statement made by Kelly.

As to Goddard, no promise, implied or otherwise, existed as between Kelly and him.

The court is of opinion, therefore, that the proceeds of the property, when sold, should be distributed as follows: First. The cost and expense of the sale should be paid. Seçond. The claim of Dyke Bros. should be paid in full, including interest from the date of judgment to the date of payment. Third. That Elihu Chauncey, Charles Chauncey, and William L. Savage, trustees, should be paid $3,000, less any rents and profits of the property which they may have received since said Matthews was adjudicated a bankrupt. That after they have been paid, as aforesaid, the said J. M. Tenny & Co. and the said H. I. Goddard should be paid in full, with interest at 6 per cent. per annum from the date of their judgments to the date of payment, and, if the sum left over is not sufficient to pay them in full, then it should be distributed pro rata between them; but if, after they are paid in full, there is a surplus, then the same, or so much thereof as may be necessary, should be turned over to Elihu Chauncey, Charles Chauncey, and William L. Savage, or their agent or attorney of record, and any excess should be retained by the trustee for the benefit of the general creditors. And that the referee in bankruptcy should cause an accounting to be had between the trustee of said Matthews and said mortgagees of the rents and profits received by said mortgagees upon said property, so as to ascertain what was due upon said mortgage as of the date upon which said Matthews was adjudicated a bankrupt; and in making payment of the said $3,000 to the mortgagees as herein before provided for any sums received by them as rents and profits since said adjudication in bankruptcy should be deducted from the sum of $3,000 herein before ordered to be paid to them.

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SPRECKELS SUGAR REFINING CO. v. MCCLAIN, Internal Revenue Collector.

(Circuit Court of Appeals, Third Circuit. January 13, 1902.)

No. 17.

1. INTERNAL REVENUE-WAR REVENUE ACT OF 1898-CONSTITUTIONALITY. Section 27 of the war revenue act of 1898, imposing a tax upon the gross receipts of refiners of oil and sugar, held constitutional.

2. SAME-TAX ON SUGAR REFINERS-GROSS RECEIPTS OF BUSINESS.

Under section 27 of the war revenue act of 1898, which imposes an excise tax "on the gross amount of all receipts" of sugar refiners "in 1 P.H.CAS.-6

their business" in excess of $250,000 annually, rentals from wharves owned by a corporation organized for and engaged in the business of sugar refining, and used as a necessary adjunct to said business, are receipts in the business, to be included in computing its gross income for the purpose of such tax.

8. SAME-INTEREST ON DEPOSITS.

Interest received by such company on corporate funds deposited or invested for the time being, while not in use, is also a part of its receipts in the business, and subject to the tax.

4. SAME-MODE OF COLLECTION-MONTHLY ASSESSMENTS.

War Revenue Act 1898, § 27, which provides that every person, company, etc., doing the business of refining petroleum or sugar, or owning a pipe line, whose gross annual receipts exceed $250,000, "shall be subject to pay annually a special excise tax" on the amount of their gross receipts in excess of said sum, and which further provides that a true and accurate return of the amount of gross receipts as aforesaid shall be made and rendered monthly by such persons or companies, requires the payment of such tax annually, and on annual receipts; and a regulation of the commissioner requiring the assessment and collection of the tax monthly, on the monthly returns, is unauthorized.

Gray, Circuit Judge, dissenting in part.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

John G. Johnson, for plaintiff in error.

J. W. Thompson and James B. Holland, for defendant in error. Before ACHESON, DALLAS, and GRAY, Circuit Judges.

The

DALLAS, Circuit Judge. The plaintiff below (and here)' is a corporation erected under the law of Pennsylvania for the purpose "of refining sugar, which will involve the buying of the raw material therefor and selling the manufactured products, and of doing whatever else should be incidental to the said business of refining." defendant is the collector of internal revenue for the First district of Pennsylvania. The action was brought to recover certain sums of money which he had exacted under section 27 of the war revenue act of 1898, and which the plaintiff had paid under protest. That section is as follows:

"That every person, firm, corporation, or company carrying on or doing the business of refining petroleum, or refining sugar, or owning or controlling any pipe line for transporting oil or other products, whose gross annual receipts exceed $250,000, shall be subject to pay annually a special excise tax equivalent to one quarter of one per centum on the gross amount of all receipts of such persons, firms, corporations, and companies in their respective business in excess of said sum of $250,000. And a true and accurate return of the amount of gross receipts as aforesaid shall be made and rendered monthly by each of such associations, corporations, companies, or persons to the collector of the district in which any such association, corporation or company may be located, or in which such person has his place of business."

The parties agreed upon a special verdict, the material portions of which are set out in the opinion of the court below (109 Fed. 76), and need not be here repeated.

1. The first and most important question raised by the assignment of errors is whether the above section is unconstitutional. This question, however, the learned judge of the circuit court declined