Statutory Construction Canons with SC Citations – III

This post continues annotating with South Carolina law the semantic canons of construction that Justice Antonin Scalia and Bryan Garner identified in Reading the Law: The Interpretation of Legal Texts.The canons are quoted from page xii of the book, followed by the annotations —

Mandatory/Permissive — mandatory words impose a duty; permissive words grant discretion.”

Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d 739, 743 (2002)(“under the rules of statutory interpretation, use of the words ‘shall’ or ‘must’ indicates the legislature’s intent to enact a mandatory requirement.”); T.W. Morgan Builders, Inc. v. Buedingen, 316 S.C. 388, 402, 450 S.E.2d 87, 95 (Ct.App. 1994)(“Ordinarily, the use of the word ‘may’ in a statute signifies permission and generally means the action spoken of is optional or discretionary . . . [but] the use of the word ‘may’ in a statute can be interpreted to mean ‘shall.'”).

Conjunctive/DisjunctiveAnd joins a conjunctive list, or a disjunctive list — but with negatives, plurals, and various specific wordings there are nuances.”

Michau v. Georgetown County, 396 S.C. 589, 595, 723 S.E.2d 805, 808 (2012)(“As this Court has recognized, the use of the word ‘or’ in a statute is a disjunctive that marks an alternative.”); but see Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, 32 (1935)(“This Court has held, in order to effectuate legislative intention, that ‘and’ should be read ‘or’; that ‘may’ is often construed ‘must’ or ‘shall’; that ‘hereinafter’ should be read ‘hereinbefore’; and that the word ‘of’ should be construed to mean ‘or'”.).

Subordinating/Superordinating — Subordinating language (signaled by subject to) or superordinating language (signaled by notwithstanding or despite) merely shows which provision prevails in the event of a clash — but does not necessarily denote a clash of provisions.”

Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36, 44 (1939)(“The office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some ground of misinterpretation of it. . . .. The main provision of a statute and the proviso are to be read together with a view to carry into effect the whole purpose of the law.”).

Gender/Number — In the absence of a contrary indication, the masculine includes the feminine (and vice versa) and the singular includes the plural (and vice versa).”

S.C. Code Ann. § 2-7-30(A)(2012) provides, “All words in an act or joint resolution importing the masculine gender shall apply to females also and words in the feminine gender shall apply to males.” The statute also provides, “[A]ny other words importing the singular number used in any act or joint resolution shall be held to include the plural . . ..”

Presumption of Nonexclusive “Include”  — The verb to include introduces examples, not an exhaustive list.”

There is no South Carolina example, perhaps because the term “include” is by definition nonexclusive.

Unintelligibility — An unintelligible text is inoperative.”

This is the flip side of the presumption against ineffectiveness. Under that presumption, the reader should favor a textually permissible interpretation that furthers the document’s purpose. See Florence County Democratic Party v. Florence County Republican Party, 398 S.C. 124, 128, 727 S.E.2d 418, 420 (2012)(“The statutory language must be constructed in light of the intended purpose of the statute [citation omitted]. This Court will not construe a statute in a way which leads to an absurd result or renders it meaningless.”).

In the unintelligibility canon, Scalia and Garner states that the reader may not give the text meaning if its words are truly undecipherable:  “To give meaning to what is meaningless is to create a text rather than to interpret one.”

Has anyone been able to use any of these canons? Please let us hear from you. You may reach me through the comment box below or here.




Leave a Reply