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under a statute which, after the date of the offense, was expressly repealed and at the same time re-enacted with such changes in its phraseology that the maximum imprisonment was reduced from 15 years to 10 and the minimum from 3 years to 1. After referring to the rule that upon the unconditional repeal of a criminal statute the power to punish violations thereof is taken away, the court said:
“But does this rule apply when in fact the statute has not been repealed? There would seem to be a material difference between repealing a statute and leaving nothing in its place, and simply repealing it so far as to avoid an apparent conflict between the original and amended sections of the act. In the one case the power would be entirely gone, while in the other no instant of time had passed between the repeal of the old and the taking effect of the
The repealing act re-enacts the provisions of the old statute in its very language in all respects, except in reducing the imprisonment. We hold, therefore, that where the re-enactment is in the words of the old statute, and was evidently intended to continue in force the uninterrupted operation of such statute, the new act or amendment is a mere continuation of the former act, and is not in a proper sense a repeal.”
State v. Miller was a prosecution for grand larceny; the property taken being a watch of the value of $23. Under section 19 of the act of 1852, in force at the date of the offense, grand larceny consisted in the stealing of personal goods of another of the value of $5 or upwards, and pending the prosecution the statute was by an amendatory act repeated in its original terms, save that the element of value was changed from $5 or upwards to $15 or upwards. The court held that the original section was not wholly repealed, saying:
"The amended statute in question is not inconsistent with the statute as it was before amendment, so far as it is applicable to the case under consideration. The only change made by the amendment was to fix the amount constituting grand larceny at $15, instead of $5. The law under both statutes made the stealing of $20 and upwards grand larceny. There has not been a moment, since the coming into force of the act of 1852, that the statute law of this state has not made the stealing of the amount charged in the indictment in this case grand larceny, and contained the same provisions as to the punishment thereof. It is clear to us that the lawmaking power never intended the repeal of the entire section 19, above mentioned, and that no rule of construction of statutes requires this court to hold that it is repealed.”
In Sage v. State the accused was convicted as an accessory before the fact to the crime of murder in the first degree. At the date of the offense the statute read:
"Every person who shall aid or abet in the commission of any felony, or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed, shall be deemed an accessory before the fact, and may be tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted, and charged or indicted, and upon such conviction shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.”
It was thereafter re-enacted in an amendatory act with such changes in its phraseology that, while the elements of the crime and the punishment remained the same, the name given to the offense in the original statute was omitted, and some changes were made in the matter of the procedure or remedy. In sustaining the conviction, it was held that, though in a sense such an amendatory act supersedes the act which it
amends, it does not completely repeal or destroy it for all purposes; and it was added :
"Principle forbids the conclusion that an amendatory statute, defining an offense in substantially the same language as that employed in the statute it amends, takes away the right of the state to prosecute the offender and requires his unconditional discharge. It cannot be logically affirmed, where the same offense is defined in the same way by both the earlier and the later statute, that there is an interregnum in which there was no law defining the offense. The two acts interfuse and blend so fully and compactly that it is impossible that there can be an interval when there was no law. Between the two acts there is no period of intervening time in which no offense existed."
State v. Herzog was a prosecution under the following statute:
“If any officer, agent, clerk or servant of any incorporated company, or if any clerk, agent, or servant of any private person, or of any copartnership, except apprentices and other persons under the age of sixteen years, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle and convert to his own use, without consent of his employer or master, any money or property of another which has come to his possession or is under his care by virtue of such employment, he shall be deemed to have committed larceny."
After the date of the offense the statute was amended so as to read as follows:
"If any officer, agent, clerk or servant of any incorporated company, or if any clerk, agent or servant of any private person, or of any copartnership, except apprentices and other persons under the age of sixteen years, or if any attorney at law, collector or other person who in any manner receives or collects money or any other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle and convert to his own use, without the consent of his employer, master, or the owner of the money or goods collected or receivcd, any money or property of another, or which is partly the property of another and partly the property of such officer, agent, clerk, servant, attorney at law, collector, or other person, which has come to bis possession or under his care in any manner whatsoever, he shall be deemed to have committed larceny; and in a prosecution for such crime, it shall be no defence that such officer, agent, clerk, servant, attorney at law or other person was entitled to a commission out of such money or property, as commission for collecting or receiving the same for and on behalf of the owner thereof : provided, that it shall be no embezzlement on the part of such agent, clerk, servant, attorney at law, collector, or other person to retain his reasonable collection fee on the collection."
For the purpose of showing in what respects the amended statute differed from the original, we have italicized those words of each not found in the other. In affirming the conviction of the accused, notwithstanding the changes in the law, it was pointed out that, save where the accused was entitled to a commission out of the money or property embezzled, etc., the amended statute covered in exactly the same way the offenses described in the original, and it was said that:
"With regard to the offenses described in the latter, in a case in which the defense spoken of does not exist, the law is wholly unaffected by the changes made by the former, and continues to be exactly what it was before the changes were made. As respects such offenses, the original section is not re pealed, abrogated, changed, or amended, but simply preserved and continued ; for there never has been a moment of time since its adoption when the rule of law announced by it did not exist. So long as this rule, which is applicable to a certain class of cases, remains unchanged, it is not at all important that the amendment effected by the amended section provides for and adds other classes of cases. The law as to the original offenses, save when the defense mentioned exists, is the same in every respect.".
Territory v. Ruval was a prosecution for grand larceny under a statute which, after the date of the offense, was re-enacted in an amendatory act so as to enlarge the enumeration of property subject to that offense. The amendatory act also contained a clause in terms repealing all acts and parts of acts inconsistent with it. The property stolen, a gelding, was within the enumeration in both the original and the amendatory act, and the prosecution was sustained, because the original was neither inconsistent with nor repealed by the amendatory act, but was merely enlarged to include a class of cases not before within its operation.
In support of the contention that by its re-enactment, with modifications, section 1 of the Elkins act was entirely repealed, and hence no prosecution for prior violations of its inhibitions respecting rebates, concessions, and discriminations could be instituted thereafter "against either an individual or a corporation,” counsel for the railway company rely upon such cases as Norris v. Crocker, 13 How. 429, 14 L. Ed. 210, United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153, Murdock v. Memphis, 20 Wall
. 590, 22 L. Ed. 429, United States v. Claflin, 97 U. S. 546, 24 L. Ed. 1082, 1085, Pana v. Bowler, 107 U. S. 529, 538, 2 Sup. Ct. 704, 27 L. Ed. 424, Tracy v. Tuffly, 134 U. S. 206, 229, 10 Sup. Ct. 527, 33 L. Ed. 879, and Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct. 776, 46 L. Ed. 1070, from which they deduce the conclusion that where a later act covers the whole subject of a prior one, and embraces new provisions plainly showing that it was intended as a substitute, it operates by implication, and without any repealing clause, as an unqualified repeal of the whole of the prior act. In our opinion there are two insuperable objections to this position: First, the repealing clause in the Hepburn act, “All laws and parts of laws in conAlict with the provisions of this act are hereby repealed,” expresses the extent to which it was intended to repeal prior laws, and excludes any implication of a more extended repeal. Henderson's Tobacco, 11 Wall. 652, 656, 20 L. Ed. 235; Holden v. Minnesota, 137 U. S. 483, 491, 11 Sup. Ct. 143, 34 L. Ed. 734; Patterson v. Tatum, 18 Fed. Cas. No. 10,830; Gaston v. Merriam, 33 Minn. 271, 283, 22 N. W. 614 ; Lewis v. Stout, 22 Wis. 234; People v. Huntley, 112 Mich. 569, 578, 71 N. W. 178. And, next, the cases relied upon do not hold that a revisory or substituted act, which literally or substantially re-enacts or repeats portions of the original, is, in respect of them, new legislation, rather than an affirmation and continuation of existing law; nor is there any reason to believe that they restrain or qualify the ruling in Steamship Co. v. Joliffe, Bear Lake Irrigation Co. v. Garland, and Holden v. Minnesota, supra. What they do hold-general expressions being read in the light of the questions necessary to be determined—is that a later act covering the whole subject of a prior one, and embracing new provisions plainly showing that it was intended as a substitute, supersedes the prior act, in the sense of embracing all thereof that was intended to be preserved, omitting what was not so intended, and changing what was intended to be changed, and so prevents the two from being regarded as in any respect coexistent or cumulative enactments. In this there is nothing at all inconsistent with what otherwise is clear; that is, that the intention in such a case is to make a new law only in so far as the substituted act differs from the original. And such is plainly the necessary conclusion from what was said in Murdock v. Memphis, 20 Wall. 590, 617, 22 L. Ed. 429, one of the cases relied upon. The question there presented was one of the effect upon the twenty-fifth section of the judiciary act of September 24, 1789 (1 Stat. 85, C. 20), produced by the second section of the amendatory act of February 5, 1867 (14 Stat. 386, c. 28), which re-enacted or repeated the former, with some changes and omissions, but contained no repealing clause. Of this it was said:
"A careful comparison of these two sections can leave no doubt that it was the intention of Congress, by the latter statute, to revise the entire matter to which they both had reference, to make ich changes in the law as it stood as they thought best, and to substitute their will in that regard entirely for the old law upon the subject. We are of opinion that it was their intention to make a new law so far as the present law differed from the former, and that the new law, embracing all that was intended to be preserved of the old, omitting what was not so intended, became complete in itself, and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniform. The result of this reasoning is that the twenty-fifth section of the act of 1789 is technically repealed, and that the second section of the act of 1867 has taken its place. What of the statute of 1789 is embraced in that of 1867 is, of course, the law now, and has been ever since it was first made so. What is changed or modified is the law as thus changed or modified. That which is omitted ceased to have any effect from the day that the substituted statute was approved."
Norris v. Crocker turned entirely upon the question whether, in the absence of a repealing clause, an amendatory and supplementary act covering the whole subject of the original, adding new offenses and prescribing penalties, which were altogether new and more severe, for the offenses enumerated in the original, as well as for the new ones, repealed the original so far as related to the penalty. Of course, it was held that the provisions of the amendatory and supplementary act were repugnant to those of the original in respect of the penalty, and hence there was a repeal to that extent. United States v. Tynen was in principle much the same. An amendatory act, covering the whole subject of the original, and adding many new offenses, prescribed for each offense named therein as well those which were old as those which were new, a punishment which was different and more severe, in that its minimum was less, and its maximum greater, than that prescribed in the original. It was held that the two acts were repugnant in this respect, and that the amendatory one operated, without any repealing clause, to repeal the other. United States v. Claflin is so nearly like the two cases last mentioned that what has been said of them is also applicable to it. In each the amendatory act failed to re-enact or repeat enough of the original to cover the penalty or punishment for any prior offense, and so there was no occasion to consider or decide whether such portions of the original as were re-enacted or repeated should be regarded as new legislation or as an affirmation and continuance of the prior law. Pana v. Bowler and Tracy v. Tuffly decided
nothing having application here, other than that a later act, plainly intended to prescribe the only rules that are to govern in respect of the subject covered by a prior one, operates, without any repealing clause, to repeal any provision in that act omitted from the other. And Murphy v. Utter is also distinguishable from the cases which we regard as applicable and controlling, as well as from the one now before us. The situation presented in that case was, that a territorial legislature, whose acts were subject to approval, disapproval, or change by Congress, had attempted to repeal one of its prior acts, which in the meantime, had been re-enacted, with some changes, by Congress. No question was presented as to whether, as respected matters transpiring between the original enactment and the re-enactment, such provisions of the former as were repeated in the latter should be regarded as entirely new legislation or as speaking from the date of their original enactment, and the real controversy was as to whether the act of Congress, being paramount as well as later, superseded and took the place of the original territorial act in the sense of disenabling the territorial Legislature from subsequently repealing it. It was held that the original was thus superseded and supplanted, and that the office of loan commissioners, created by it and "continued by the act" of Congress, was not terminated by the subsequent territorial repealing act. When the entire opinion is carefully examined, it does not sustain the extensive repeal here claimed.
From this review of adjudged cases, as also from what is deemed the better reasoning, we think the conclusion necessarily follows that statute law is not abrogated or annulled by mere re-enactment or repetition, and that when, for purposes of enlargement, contraction, or otherwise, a statute is re-enacted or repeated with amendments, the amendatory act is to be regarded as an affirmation and continuation of the prior law, in so far as in substance and operation it is the same, and is to be regarded as new legislation only in so far as in substance or operation it differs from the prior law.
As much of section 1 of the Elkins act was re-enacted or repeated by the Hepburn act without any change in substance or operation, we hold that the section was not wholly repealed. And so it becomes necessary to consider whether there was any substantial change in that part of it upon which the prosecution and punishment of the offense here charged depend. For the purpose of illustrating such changes as were made the section is here reproduced, the omitted portions of the original being italicized, the new matter being shown in brackets, and the balance being common to both:
"That anything done or omitted to be done by a corporation common carrier, subject to the act to regulate commerce and the acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said acts or under this ct, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said acts or by this act with reference to such persons, except as such penalties are herein changed. The willful failure upon the part of any carrier subject to said acts to file and publish the tariffs or rates and charges as required by said acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corpora