Page:Railway Company v. B'Shears 01.pdf/8

244 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.

B, J., dissenting. I do not concur with the court in the interpretation of the statute in question.