7. SAME-INTENTION IS CONTROLLING, THOUGH RESTING ONLY IN NECESSARY IMPLICATION.

The intention of the Legislature constitutes the law, and may be as effectually manifested by what is necessarily implied as by what is expressed; and, where there are conflicting manifestations of the legislative will, the last is controlling, even though it rests in necessary implication. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 264.] 8. SAME REPEAL BY IMPLICATION.

To establish a supersession or repeal of a statute by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of a prior one, employs language broad enough to cover some part or all of it; for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the prior statute expresses a settled policy in legislation.

[Ed. Note.

For cases in point, see Cent. Dig. vol. 44, Statutes, § 230.] 9. CARRIERS-REBATES-DISCRIMINATION-REV. ST. § 13, NOT SUPERSEDED BY SPECIAL SAVING CLAUSE IN HEPBURN ACT (34 STAt. 584).

The special saving clause in section 10 of the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 595), does not mention the particular subject of the general saving clause in Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], namely, the effect upon existing penalties, forfeitures, and liabilities of a repealing act, and can be accorded reasonable operation, consistently with the true intendment of its language and with the undisturbed operation of the general saving clause, by treating it as saving causes then pending in the courts of the United States from what, in its absence, and in the presence of the general saving clause, would be the effect upon them of the amendments provided for in that act. Consequently it does not by necessary implication supersede the general saving clause or impinge upon its field of operation.

(Syllabus by the Court.)

In Error to the District Court of the United States for the District of Minnesota.

William R. Begg and Rome G. Brown (Charles S. Albert, on the brief), for plaintiff in error.

Charles C. Houpt, U. S. Atty. (Paul A. Ewart, Asst. U. S. Atty., on the brief), for defendant in error.

Thomas Wilson, H. S. Priest, and F. W. Lehmann, amici curiæ. Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District Judge.

VAN DEVANTER, Circuit Judge. This writ of error challenges a judgment of conviction in a criminal case whereby the Great Northern Railway Company, a Minnesota corporation engaged as a common carrier in the transportation of property wholly by railroad from points in Minnesota to points in the state of Washington, was sentenced to pay a fine of $1,000 for each of 15 violations of section 1 of the act of February 19, 1903 (32 Stat. 847, c. 708 [U. S. Comp. St. Supp. 1905, p. 599]), known as the "Elkins Act," which declared, inter

alia:

"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 of the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate com

merce and the acts amendatory thereto 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, or whereby any other advantage is given or discrimination is practiced. Every person or corporation who shall offer, graut, 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."

These violations were charged in an indictment returned November 8, 1906, and, as was alleged therein and admitted upon the trial, were committed in the months of May, June, July, and August, 1905, and consisted in granting and giving to the W. P. Devereux Company, a shipper of oats and corn in car load shipments from Minneapolis, Minn., to points in the state of Washington, over the defendant's railroad, concessions of 15, 18, and 20 cents per 100 pounds from the legal rate of 50 cents per 100 pounds named in the tariffs applicable to such shipments, as published and filed with the Interstate Commerce Commission by the defendant. Intermediate the commission of the offense and the returning of the indictment, Congress passed Act June 29, 1906, c. 3591, 34 Stat. pp. 584, 838, known as the "Hepburn Act," and the chief objection interposed by the defendant to its prosecution and punishment was that section 1 of the Elkins act, against which it had offended, was repealed by the Hepburn act in a manner which left no provision of law for the prosecution and punishment of offenses against the repealed statute, save where prosecutions therefor were pending in the courts of the United States at the time of the repeal. The district court overruled the objection (151 Fed. 84), and it is now very earnestly and forcefully pressed upon our consideration.

Does the Hepburn act repeal the whole or any part of section 1 of the Elkins act?

The title of the Hepburn act, "An act to amend an act entitled 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, and all acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission," is so general that it gives no support to the claim of a repeal. Nor does that claim have any support in the general repealing clause in section 10, "All laws and parts of laws in conflict with the provisions of this act are hereby repealed," for it repeals nothing which would not be repealed equally without it. State v. Drexel (Neb.) 105 N. W. 174; State v. Yardley, 95 Tenn. 546, 558, 32 S. W. 481, 34 L. R. A. 656; Struthers v. People, 116 Ill. App. 481; Pierce v. Commercial Investment Co., 30 Wash. 272, 70 Pac. 496; District of Columbia v. Sisters of Visitation, 15 App. D. C. 300, 308. As said by Sutherland, Stat. Con. (2d Ed.) § 247:

"Subsequent legislation repeals previous inconsistent legislation, whether it expressly declares such repeal or not. In the nature of things it would be so, not only on the theory of intention, but because contradictions cannot stand together."

If there be a repeal, it is solely because section 2 of the Hepburn act declares that section 1 of the Elkins act "be amended so as to read as follows," and then reproduces it with some omissions and additions,

which is the same thing, in legal effect, as saying that the section is amended by striking out what is omitted and by inserting at designated places what is added. In the absence of a constitutional restriction— and there is none in the Constitution of the United States—the amendment of existing statutes may be effectually accomplished in either of these ways, and they have been employed interchangeably by Congress.

Generally speaking, where a statute is amended "so as to read as follows," or is re-enacted with changes, or is in terms repealed and simultaneously re-enacted with changes, the amendatory or re-enacting act becomes a substitute for the original, which then ceases to have the force and effect of an independent enactment; but this does not mean that the original is abrogated for all purposes, or that everything in the later statute is to be regarded as if first enacted therein. On the contrary, the better and prevailing rule is that so much of the original as is repeated in the later statute without substantial change is affirmed and continued in force without interruption, that so much as is omitted is repealed, and that any substantial change in other portions, as also any matter which is entirely new, is operative as new legislation. In Sutherland on Statutory Construction (2d Ed.) § 237, it is said of an amendment "so as to read as follows":"

"The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended section which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule."

And in the succeeding section it is said of a simultaneous repeal and re-enactment:

"Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time. The intention manifested is the same as in an amendment enacted in the form noticed in the preceding section. Offices are not lost, corporate existence is not ended, inchoate statutory rights are not defeated, a statutory power is not taken away, nor pending proceedings or criminal charges affected by such repeal and re-enactment of the law on which they respectively depend."

The subject has been considered several times by the Supreme Court, and always with the same result. Steamship v. Joliffe, 2 Wall. 450, 458, 17 L. Ed. 805, involved the right of a port pilot to collect half pilotage fees for services proffered and declined, and during the pendency of the action the statute giving the right was in terms repealed and at the same time substantially re-enacted; the new act allowing half pilotage fees in the same circumstances as the original. The court held that the new act did not impair the right to fees which had arisen under the original, saying:

"The new act took effect simultaneously with the repeal of the first act. Its provisions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them."

Murdock v. Memphis, 20 Wall. 590, 617, 22 L. Ed. 429, to which we will refer again, related to a revisory and substituted act, which, it was said, was a new law in so far as it differed from the original, and in so far as it embraced portions of the original was a preservation of them. Bear Lake Irrigation Co. v. Garland, 164 U. S. 1, 11, 17 Sup. Ct. 7, 9, 41 L. Ed. 327, related to an act which expressly repealed and at the same time substantially re-enacted a prior one, and of this it was said:

"Upon comparing the two acts of 1888 and 1890 together, it is seen that they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar and almost identical. Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act. This is the same principle that is recognized and asserted in Steamship Co. v. Joliffe."

Holden v. Minnesota, 137 U. S. 483, 490, 494, 11 Sup. Ct. 143, 146, 147, 34 L. Ed. 734, was a criminal case involving the infliction of the death penalty. After the commission of the offense and before the indictment of the offender a statute was adopted which substantially re-enacted or repeated the provisions of the previous law relating to the mode of inflicting that penalty and to the issuing of the governor's warrant therefor. It also contained new provisions imposing solitary confinement after the issuance of the warrant and regulating the details of the execution, and in terms repealed all acts and parts of acts inconsistent with it. Responding to the contention that the previous law was thereby repealed, and that the new act could not be applied to prior offenses, the court, in addition to holding that the new provision for solitary confinement, although not in terms so written, was applicable only to future offenses, held that the previous law was not repealed, and in that connection said:

"These provisions were not repealed by the act of April 24, 1889 (Gen. Laws Minn. 1889, p. 66, c. 20). In respect to the first and second sections of that act, it is clear that they contain nothing of substance that was not in sections 11 and 12 of chapter 118 of the General Statutes of 1878. And it is equally clear that the provisions of an existing statute cannot be regarded as inconsistent with a subsequent act merely because the latter re-enacts or repeats those provisions. As the act of 1889 repealed only such previous acts and parts of acts as were inconsistent with its provisions, it is inaccurate to say that that statute contained no saving clause whatever. By necessary implication, previous statutes that were consistent with its provisions were unaffected."

And again:

"The provisions of the previous law, as to the nature of the sentence, the particular mode of inflicting death, and the issuing by the Governor of the warrant of execution before the convict was hung, were, therefore, not repealed, although some of them were re-enacted or repeated in the statute of 1889, and other provisions relating merely to the time and mode of executing the warrant, but not affecting the substantial rights of the convict, were added."

The rule announced in these cases was again recognized by the Supreme Court in Campbell v. California, 200 U. S. 87, 92, 26 Sup. Ct. 182, 50 L. Ed. 382, and was recently applied by us in Lamb v. Pow84 C.C.A.-7

der River Live Stock Co., 65 C. C. A. 570, 132 Fed. 434, 67 L. R. A. 558. It has also been quite generally recognized and applied in the state courts. Instances of its application to civil statutes are shown in the following cases: Wright v. Oakley, 5 Metc. (Mass.) 400, 406; United Hebrew Benevolent Ass'n v. Benshimol, 130 Mass. 325; St. Louis v. Alexander, 23 Mo. 483, 509; Ely v. Holton, 15 N. Y. 595; Anding v. Levy, 57 Miss. 51, 59, 34 Am. Rep. 435; Fullerton v. Spring, 3 Wis. 667, 671; Glentz v. State, 38 Wis. 549; Burwell v. Tullis, 12 Minn. 572, 575 (Gil. 486); Gaston v. Merriam, 33 Minn. 271, 283, 22 N. W. 614; State ex rel. v. Baldwin, 45 Conn. 134, 144; People v. Board of Equalization, 20 Colo. 220, 231, 37 Pac. 964; Moore v. Kenockee Tp., 75 Mich. 332, 42 N. W. 944, 4 L. R. A. 555; Capron v. Strout, 11 Nev. 304, 310; McMullen v. Guest, 6 Tex. 275. Ând instances of its application to criminal statutes are shown in the following: Commonwealth v. Herrick, 6 Cush. (Mass.) 465; State v. Gumber, 37 Wis. 298; State v. Wish, 15 Neb. 448, 19 N. W. 686; State v. Miller, 58 Ind. 399; Sage v. State, 127 Ind. 15, 26 N. E. 667; State v. Kates, 149 Ind. 46, 48 N. E. 365; State v. Herzog, 25 Minn. 490; State v. Prouty, 115 Iowa, 657, 662-665, 84 N. W. 670; State v. Williams, 117 N. C. 753, 23 S. E. 250; State v. Brewer, 22 La. Ann. 273; Territory v. Ruval (Ariz.) 84 Pac. 1096; Junction City v. Webb, 44 Kan. 71, 23 Pac. 1073. See, also, Bishop Stat. Cr. (3d Ed.) §§ 152a,

181.

Reference to the point in judgment in some of these cases will illustrate the extent of the rule which they recognize and apply. Commonwealth v. Herrick was a prosecution for the sale of spirituous liquor by retail, in violation of a statute which was amended, after the date of the offense, by striking out the word "spirituous" and inserting "intoxicating" in its stead. It was held, Chief Justice Shaw delivering the opinion, that, as the substituted word included all that was covered by the other, and more, the intent manifestly was, not to affect cases theretofore within the statute, but to bring another class within its operation, and that as to the latter it was a new law, but as to the former its continuity was not broken. State v. Gumber was a prosecution under a statute declaring that all "places of public resort, where intoxicating liquors are sold in violation of law, shall be shut up and abated as public nuisances upon conviction of the keeper thereof, who shall be punished" by a fine and imprisonment. Pending the prosecution the statute was expressly repealed, and at the same time was re-enacted without any provision for a fine or imprisonment. The court, after referring to the rule that the effect of the repeal of a statute and its re-enactment at the same time is to continue it in uninterrupted operation, and after observing, “And we cannot perceive that it makes any difference whether the statute be a civil or a penal one, for it is wholly a question of legislative intent, which is as manifest and clear in the one case as the other," held that upon the defendant's conviction his saloon could be closed up and abated as a public nuisance and the costs of the prosecution imposed upon him, but that no fine or imprisonment could be imposed, because the provision for that. part of the original punishment had not been re-enacted, and therefore was repealed. State v. Wish was a prosecution for horse stealing