CONSTRUCTION (Lat. construere, to put together).
In Praotice. Determining the meaning and application as to the case in question of the provisions of a constitution, statute, will, or other instrument, or of an oral agreement.
Drawing conclusions respecting subjects that lie beyond the direct expressions of the term. Lieber, Leg. & Pol. Iferm. 20.
Construction and interpretation are generally used by writers on legal subjects, and by the courts, as synonymous, sometimes one term being employed and sometimes the other. Lieber, in his Legal and Political Hermeneutics, distinguishes between the two, considering the province of in terpretation as limited to the written text, while construction goes beyond, and includes cases where texts interpreted and to be construed are to be reconciled with rules of law or with compacts or constitutions of superior authority, or where we reason from the aim or object of an instrument or determine its application to cases unpravided for.
C. 1, 8; c. 3, 2 ; c. 4; q. 5. This distinction needs no higher authority for its accuracy; but it is convenient to adopt the common usage, and con sider some common rules and examples on these attempting to distinguish exactly eases of construction Out those of interpretation.
A strict construction is one which limits the application of the provisions of the instrument or agreement to cases clearly described by the words nsed. It is called, also, literal.
A liberal construction is one by which the letter is enlarged or restrained so as more effectually to accomplish the end in view. It is called, also, equitable.
The terms strict and liberal are applied mainly In the construction of statutes; and the question of striotnese or liberality is considered always with reference to the statute itself, a000rding to whether its application is confined to those eases clearly within the legitimate import of the words used, or is Wended beyond though net in violation of (ultra sed non contra) the strict letter. In contracts, a strict construction as to one party would be liberal as to the other.
Ope leading principle of construction is to i carry out the intention of the authors of or parties to the instrument or agreement, so far as it can be done without infringing upon any law of superior binding force.
In regard to cases where this intention is clearly expreseed, there is little room for variety of con atruction; and it'is mainly in cases where the in tention is indistinctly diSclosed, though fairly pre •amed to exist in the minds of the parties, that any liberty of construction exists.
Words, if of common use, are to be taken' in their natural, plain, obvious, and ordinary significations ; but if technical words are used, they are to be taken in a technical 'sense, unless a contrary intention clearly appear, in either case, from the context.
All instruments and agreements are to be so construed as to give effect to the whole or as large a portion as possible of the instru ment or agreement.
Statutes, if penal, are to be strictly, and, if liberally, construed. Dwarris, Stat., •615 et seq. The apparent object of the legis-. lature is to be sought for as disclosed by the act itself, the preamble in some cases, similar statutes relating to the same subject, the con sideration of the Mischiefs of the old law,, and perhaps some other circumstances. , All statutes are to be construed with refer .ence to the provisions of the common law, and provisions in derogation of the common law are held strictly.
In construing statutes. of the various. states .or of foreign countries, the supreme court of the United States adopts the construction put ,upon them by the courts of the state or country by whose 'legislature the statute was 'enacted; but this does not necessarily include subsequent variations of construction by such ,courts. 5 Pet. 280. See CONFLICT or LAws.
In contracts, Nords may be understood in • a technical or peculiar sense when such meaning has been stamped upon them by the 'usage of the trade or place in which the con -tract occurs. When words are Manifestly in consistent with the declared purpose . arid _object of the contract, they may be rejected. .2 Atk. 32. When words are omitted so as to defeat the effect of the contract, they will be •supplied by the obvious sense and inference from the context. When words admit of two senses, that which gives effect to the design of the parties is preferred to that I which destroys it. 'Cowp. 714.
Usages of the trade or place of making contract are presumed to be incorporated, unless a contrary stipulation occurs. See