abroad in the land of the age of discretion, all have their own opinion, about these things.
Therefore, therefore, what good does the opinion do? We get back to the act every time. Under a construction of this law it is not admissible.
"The fundamental rule, says, Judge Cooper, speaking for the court in the case of Brown vs. Hamlet in 8th Lea 735, ‘of construction of all instruments is that the intention shall prevail, and for this purpose the whole of the instrument will be looked to. The real intention will always prevail over the literal use of terms. Legislative acts fall within the rule, and it has been well said that a thing which is within the letter of the statute is not within the statute unless it be within the intention of the law makers.'"
Many cases are cited but it is not necessary for me to read all of these, your honor is familiar with that principle, I know.
The Court—General as I understand your position, there are two set qualities—
Gen. Stewart—Yes, sir.
The Court—You say when you meet the requirements of the second clause and prove that it is violated that by necessity by implication of law, meets the first section.
Gen, Stewart—Yes, sir.
Mr. Hays—May I ask your honor to ask Gen. Stewart a question?
The Court—Ask him yourself.
Mr. Hays—You construe the statute to be just the same as if the first part were out, that it is only the second part that you have to prove, so the statute must be the same as if the first part were out. Am I right on that?
Gen. Stewart—So far as the evidence is concerned.
Mr. Hays—So far as the evidence is concerned. You also agree with me, do you not, that one rule of construction in Tennessee is that every word or phrase in the statute should be given some meaning?
Gen. Stewart—No, sir.
Mr. Hays—You do not.
Gen. Stewart—No, sir. The court has a right, under our rules of construction, to leave out the words that do not express the intention of the legislature.
Mr. Hays—And haven't you a presumption that the legislature intends that those words must mean something, when it puts words into the statute? Why do you leave out the words? Why not leave out the other words as well?
"Intention" of Legislature "Must" Prevail.
Gen. Stewart—The cardinal rules of construction is that the intention of the legislature must prevail, and it must prevail over everything else.
Mr. Hays—But, it must be gathered from the terms of the act.
Gen. Stewart—You cannot—
(A train whistle interrupts for a moment.)
You cannot change the rule of construction with reference to the intention of the legislature by requiring it to give a meaning to every word.
Mr. Hays—No, general, but I should like to know—you cannot ask the court to accept this statute by cutting out one clause.
Gen. Stewart—Which clause?
Mr. Hays—The first part, that any story contrary to the story of creation taught in the Bible, you construe the statute as if it were cut out?
Gen, Stewart—No, sir; only as to the evidence.
Mr. Hays—As to the evidence, yes.
Mr. Darrow—Doesn't the statute show?
Gen. Stewart—That shows the intention of the legislature as clearly as though they had talked for a month.
Mr. Darrow—They don't have to haye any intention if it is plain.
Gen. Stewart—There is an intention every time a man does an act. You have to show the intention whether it is plain or ambiguous. You must always show the intention, that is the first thing you come to.
Mr. Darrow—It shall be unlawful to teach that man descended from a lower order of animals and of course, that would follow your ar-
