Statutory Construction Canons with SC Citations – IX

This is the ninth post that annotates with South Carolina law the statutory construction canons described in the book, Reading Law: The Interpretation of Legal Texts. This post quotes the six stabilizing canons from page xvi of the book, followed by the South Carolina citations.

Presumption against change in the common law – A statute will be construed to alter the common law only when that disposition is clear.”

Jade Street, LLC v. R. Design Const. Co., 398 S.C. 338, 343, 728 S.E.2d 448, 450 (2012)(“Therefore, a statute is not to be construed in derogation of common law rights if another interpretation is reasonable.”).

Imputed common-law meaning – A statute that uses a common-law term, without defining it, adopts its common-law meaning.”

Grier v. Amisub of South Carolina, Inc., 397 S.C. 532, 536, 725 S.E.2d 693, 696 (2012)(“In ascertaining the meaning of language used in a statute, we presume that the General Assembly is ‘aware of the common law, and where a statute uses a term that has a well-recognized meaning in that law, the presumption is that the General Assembly intended to use the term in that sense.'”).

Prior-construction – If a statute uses words or phrases that have already received authoritative construction by the jurisdiction’s court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction.”

McLeod v. Starnes, 396 S.C. 647, 660, 723 S.E.2d 198, 205 (2012)(“The Legislature is presumed to be aware of this Court’s interpretation of its statutes,” and “its inaction is evidence [it] agrees with this Court’s interpretation.”); CFRE, LLC v. Greenville County Assessor, 395 S.C. 67, 77, 716 S.E.2d 877, 882 (2011)(“The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.”).

Presumption against implied repeal – Repeals by implication are disfavored — “very much disfavored.” But a provision that flatly contradicts an earlier-enacted provision repeals it.”

Aakjer v. City of Myrtle Beach, 388 S.C. 129, 135, 694 S.E.2d 213, 216 (2010)(“In general, repeal by implication is disfavored, and it found only when two statutes are incapable of any reasonable reconcilement. . .. When two statutes ‘are incapable of reasonable reconcilement, the last statute passed will prevail, so as to impliedly repeal the earlier statute to the extent of the repugnancy.””)

“Repeal of repealer – The repeal or expiration of a repealing statute does not reinstate the original statute.”

S.C. Code Ann. § 2-7-20 (1976)(“The repeal of an act or joint resolution shall not revive any law theretofore repealed or superseded, nor any office theretofore abolished.”).

Desuetude – A statute is not repealed by nonuse or desuetude.”

Cain v. Daily, 74 S.C. 480, 55 S.E. 110, 112 (1906)(“Courts should hesitate long to declare an act on our statute books obsolete through desuetude [citation omitted]. The better view is that a state is in force until repealed by the proper authority, either expressly or by clear implication . . ..”).

Has anyone used any of these canons effectively? Please let us hear from you through the comment box or here.


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