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tion offending shall be subject to a fine [of] not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto (thereof) whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereto [thereof), or whereby any other advantage is given or discrimination is practiced. Every person or corporation (whether carrier or shipper) who shall [knowingly) offer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars. In all convictions occurring after the passage of this act for offenses under said acts to regulate commerce, whether committed before or after the passage of this act, or for offenses under this section, no penalty shall be imposed on the convicted party, other than the fine prescribed by law, imprisonment, wherever now prescribed as part of the penalty being hereby abolished: (Provided, that any person, or any officer or director of any corporation subject to the provisions of this act, or the act to regulate commerce and the acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court.] Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inqui of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein.

“In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier (or shipper) acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier (or shipper) as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the act to regulate commerce or acts amendatory thereto (there of], or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this act.

“[.Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee, any such carrier shall transport property from one state, territory, or the District of Columbia to any other state, territory, or the District of Columbia, or foreign country, who shall knowingly by employé, agent, officer, or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a re. bate or offset against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this act, shall in addition to any penalty provided by this act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and the Attorney General of the United States is authorized and directed, whenever he has reasonable grounds to believe that any such person, corporation, or company has knowingly received or accepted from any such common carrier any sum of money or other valuable con

sideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction, a civil action to collect the said sum or sums so forfeited as aforesaid ; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action, may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be.]”.

Having regard to so much of the section as defines, and prescribes the punishment for, the offense charged in the present indictment, it is seen that the literal changes therein are four in number: First, the insertion of the words "whether carrier or shipper" in the clause specifying those against whom it is directed; second, the insertion of the word "knowingly" in the clause specifying the acts made punishable; third, the omission of the provision that no punishment other than the prescribed fine shall be imposed; and, fourth, the addition, by way of a proviso, of a provision that, when the offender is a person, he shall be liable to imprisonment, or both fine and imprisonment, in the discretion of the court. The first change is an immaterial one, because the language "every corporation or person who shall offer, grant or give, or solicit, accept or receive, any such rebates, concession or discrimination,” as certainly includes both carriers and shippers without the inserted words as with them. As to the second change, we shall assume, but without so deciding, that the contention of counsel for the railway company, acceded to by counsel for the government, that the original definition of the offense included acts not knowingly done, and that the insertion of the word “knowingly” contracts the definition and excludes therefrom acts originally included, is correct. If so, the prior law is repealed in so far as the definition is contracted, and prior offenses falling within the repeal cannot now be prosecuted and punished, save as there may be some general or special saving clause applicable to them. The third and fourth changes are also immaterial here, because the punishment prescribed for corporate offenders, which was only a fine, is not affected by either. And another reason why the third change is immaterial here is that the omitted provision had reference to offenses the original punishment for which, where the offender was a person, included imprisonment, which was not true of the offense charged in this indictment. As to it the only punishment prescribed was a fine, the provision for which is repeated literally. The fourth change is, of course, inapplicable to prior offenses, punishable only by fine at the time of their commission; but whether the provision for imprisonment which it introduces, by way of a proviso, is so far separable from, and independent of, what is re-enacted or repeated, as to have no effect upon the punishment, by fine, of such prior offenses, where committed by persons (see Holden v. Minnesota, 137 U. S. 483, 494, 11 Sup. Ct. 143, 34 L. Ed. 734), need not be considered now, because, however that may be, it does not affect the punishment of corporate offenders.

The situation, therefore, is this: Acts of corporate carriers in knowingly offering, granting, or giving, as also acts of corporate shippers in knowingly soliciting, accepting, or receiving, rebates, concessions, or discriminations, are within both the original and the amended definition of the offense, and the punishment therefor is unchanged. As to them the prior law is not abrogated or repealed, but preserved and continued; and the liability of the offender to prosecution and punishment, whether the offense was committed before or after the amendatory act, is unaffected. But in so far as the original section embraces such acts, when not knowingly done, it is undoubtedly repealed. It is at this point that a question lying within narrow compass, but of more difficulty, is encountered. The indictment, unlike that set forth in the opinion delivered in the District Court, does not, in charging the granting and giving of concessions to the W. P. Devereux Company, use the word “knowingly," or any other term of equivalent import, and so does not state a case falling within the contracted definition of the offense and without the repeal. True, upon the trial it was admitted on behalf of the railway company that these concessions were granted and given by its direction and with its consent; but as the sufficiency of the indictment was challenged by a demurrer and by a motion in arrest of judgment, and as the admission just stated was made under a stipulation that it should not prejudice the right of the railway company to question the sufficiency of the indictment, the correctness of the rulings upon the demurrer and the motion in arrest of judgment must be determined independently of what occurred upon the trial. It therefore becomes necessary to inquire whether there is any general or special saving clause applicable to prior offenses falling without the contracted definition of the offense and within the repeal. This is the more difficult question.

That section 13 of the Revised Statutes [U. S. Comp. St. 1901, p. 6] is such a general saving clause, if not superseded by something in the Hepburn act, is not only plain, but fully conceded. It reads:

"Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."

But it is urged on behalf of the railway company that this general saving clause is superseded, so far as concerns the Hepburn act, by section 10 of that act, which reads:

“Sec. 10. That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.”

It will be observed that the earlier and general statute seems to declare that it shall apply to all cases of repeal, unless the repealing act "expressly” provides that it shall have the effect of releasing or extinguishing penalties for prior offenses, and also that the later and special statute does not contain any such express provision. Because of this it is insisted on behalf of the government that the later act does not come within the qualifying clause of the general statute, and that it is not admissible to inquire whether the later act by necessary implication manifests an intention to release or extinguish penalties for prior offenses. Such would doubtless be the effect of the general statute, if

it were a constitutional provision; but, as it is not, the contention is made untenable by these well-settled propositions: First, Congress cannot thus limit or restrict the manner in which its power shall be exerted, or its intention manifested, in the future (Cooley's Const. Lim. [7th Ed.] 174; Bishop St. Cr. [3d Ed.] $ 147; 2 Sutherland, St. Con. |2d Ed.] $ 355; Bloomer v. Stolley, 3 Fed. Cas. 729, No. 1,559 ; Manigault v. Springs, 199 U. S. 473, 487, 26 Sup. Ct. 127, 50 L. Ed. 274; Kellogg v. Oshkosh, 14 Wis. 623, 628; Brightman v. Kirner, 22 Wis. 54, 60; Friend v. Levy (Ohio) 80 N. E. 1036; Wall v. State, 23 Ind. 150, 153; Davidson v. Witthaus, 106 App. Div. N. Y. 182, 185, 94 N. Y. Supp. 428; State v. County Court, 37 W. Va. 808, 811, 17 S. E. 379; Gilleland v. Schuyler, 9 Kan. 569, 580); second, the intention of the Legislature constitutes the law, and may be as effectually manifested by what is necessarily implied as by what is expressed (Telegraph Co. v. Eyser, 19 Wall. 419, 127, 22 L. Ed. 43; Ex parte Yarbrough, 110 U. S. 651, 658, 4 Sup. Ct. 152, 28 L. Ed. 274; McHenry v. Alford, 168 U. S. 651, 672, 18 Sup. Ct. 242, 42 L. Ed. 614); and, third, where there are conflicting manifestations of the legislative will, the last is controlling, even though it rests in necessary implication.

But it is said that, if the general statute be not effective as a limitation or restriction upon Congress, it is at least obligatory upon the courts as a rule of construction binding them to construe' every subsequent repealing act, no matter what its necessary implication, as leaving penalties for prior offenses unaffected, unless it expressly provides that it shall have the effect of releasing or extinguishing them. This, however, is but saying that, though Congress is not bound by the general statute in the enactment of later repealing acts, the courts are bound to construe and give effect to them as if Congress were thus bound; in other words, that general statutory rules of construction may be so framed as to defeat the manifest intention of after legislation. We think that the statement of the proposition is its refutation. The intention of the Legislature, as before said, constitutes the law, and necessarily a later act, whatever its form, if only it be unaffected by any constitutional restriction and its meaning be plain, supersedes prior acts in conflict with it. Of course, the Legislature may prescribe rules affecting the construction of after-legislation, which does not, in terms or by necessary implication, show that it is to be unaffected by them; but they cannot be so framed as to defeat the plain intention of such legislation, and, like other statutes, they cease to be obligatory upon the courts when superseded by a later and conflicting manifestation of the legislative will. In short, our conclusion respecting the general statute is this: As applied to subsequent repealing acts, which do not, expressly or by necessary implication, contravene its provisions, it is effective and obligatory upon the courts, but beyond this it is without effect and not obligatory upon any one. Notwithstanding its enactment, Congress remained at liberty to legislate respecting its subjectmatter in any manner they might choose. They could change or repeal it, or supersede it, in whole or in part, as to any particular repealing act. They could do any of these things expressly or by necessary implication; and any such change, repeal, or supersession, however made,

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would be as obligatory upon the courts as would be the general statute, if it were unaffected by after legislation.

If, therefore, section 10 of the Hepburn act does not expressly or by necessary implication manifest an intention to release or extinguish penalties for prior offenses falling within the repeal, the general statute is very plainly applicable to their enforcement, and requires that the repealed law be treated as continuing in force for that purpose. United States v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 398, 32 L. Ed. 480. Section 10 does not expressly mention penalties for prior offenses, or their remission or enforcement. Does it by necessary implication manifest an intention to release or extinguish them, or any of them? The argument advanced in support of an affirmative answer is this: That section contains both a repealing clause and a saving clause. Some purpose must be ascribed to the latter. It can have no other purpose than to prescribe the effect of the repealing portions of the act upon penalties for prior offenses. It declares that penalties for offenses for which prosecutions were then pending in the courts of the United States shall be saved; and by necessary implication, equally effectual, it declares that other penalties shall not be saved, but released or extinguished. If all of this were true of that section, doubtless the conclusion would follow that it impliedly supersedes or repeals, pro tanto, the general statute, which was presumptively in the mind of Congress. State v. Showers, 34 Kan. 269, 8 Pac. 474. The argument, however, treats section 10 as if it read literally or substantially as follows:

"All laws and parts of laws in conflict with the provisions of this act are hereby repealed, but such repeal shall not release or extinguish any penalty for any offense heretofore committed against such law for which a criminal prosecution is now pending in any court of the United States, and what is repealed shall be treated as still remaining in force for the purpose of sustaining any such pending prosecution for the enforcement of such a penalty.”

In fact, it reads in this way:

“Sec. 10. That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law."

Thus the special saving clause, although immediately following a repealing clause, does not in terms refer to a repeal, to penalties for prior offenses, to the remission or enforcement of any of them, or to pending causes for their enforcement, but to “the amendments herein provided for,” to “causes now pending in courts of the United States," and to their continued prosecution in the manner heretofore provided by law.” Of course, “amendments” is broad enough to cover the partial repeal of section 1 of the Elkins act, for that was effected through an amendment; and what is said about "causes now pending in courts of the United States” and their continued prosecution is also broad enough to cover the enforcement of penalties for prior offenses embraced in criminal causes then pending in those courts. But does this language plainly or necessarily refer to the effect of the repeal upon the enforcement of penalties for prior offenses? We say plainly or necessarily, because, to establish a supersession or repeal of a statute

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