36 Colo. 418 | Colo. | 1906
Lead Opinion
delivered the opinion of the court:
The controlling question, and the only one argued by counsel is, whether a prosecution for a violation of the provisions of the law of 1894 can be maintained notwithstanding the enactment of 1905 above referred to. It is manifest from a comparison of thqse acts that the latter is not amendatory of the former, but is within itself a complete and original act designed to create a new and distinct and different system of registration independent of, and clearly intended by the legislature to be a substitute for, all prior acts upon the subject. The rule of construction that applies in such cases is well settled, and, as stated by Mr. Justice Field in the case of United States v. Tynen, 11 Wall. 88, is this: “When there are two acts on the same subject, the rule is to give effect to both, if possible. But, if the two are .repugnant in any of their provisions, the later act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet, if the later act covers the whole subject of the first and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act. ’ ’
Keese v. City, 10 Colo. 112; Edwards v. D. & R. G. R. R. Co., 13 Colo. 59; People v. Ames, 27 Colo. 126; City of Mt. Vernon v. Evans Brick Co., 204 Ill. 32; 28 Am. & Eng. Enc. Law (2d ed.) 731, and cases cited in Note 4.
In People v. Ames, supra, this court, in considering the question whether the act of 1899, prescribing the duties of the state board of equalization, repealed section 5 of the act of 1891 which appertained to the same subject, used this language:
“Section 5 of the earlier, and section 2 of the later act, both refer to the same subject. The last covers the whole subject-matter of the first; does not purport to amend it-; invests the board with new powers; plainly shows that it was intended as a substitute for the earlier section, and expressly provides that all parts of acts in conflict with it are repealed. For these reasons, we are of opinion that section 2 of the act of 1899 operates as a repeal of section 5 of the act of 1891.”
It follows, therefore, that the act of 1894 went out of existence for any and all purposes upon the approval of the act of 1905, unless the right to prosecute for penalties incurred thereunder is preserved by the statute, approved March 17, 1891, section 4189a, 3 Mills’ (Rev.) Stats., known as the general saving clause, which provides, inter alia, that “The repeal, revision * * * of any statute or part of a statute, or section or part of a section of any statute, shall not have the effect to release, extinguish, alter, modify or change in whole or in part,- any penalty # *' * either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising * * * act shall so expressly provide, and such statute * * * shall be treated
It has been universally held that this law provides a rule. of construction applicable to future statutes when not inconsistent with the object, language, or manifest intent of the latter. In other words, if any language be employed in the repealing statute which evidences an intention on the part of the legislature to abolish or extinguish the penalties provided by and incurred under the statute repealed, such intention will prevail, notwithstanding the saving clause statute, because one legislature has no power' to limit or control a succeeding one in the exercise of its constitutional functions. Only when the repealing statute is silent does the general saving statute operate. — State v. Showers, 34 Kan. 269; Davidson v. Witthaus, 94 N. Y. S. 428; McCann v. City, 65 N. Y. S. 308; Files v. Fuller, 44 Ark. 273 ; Endlich on Int. of Stats., § 365; 2 Lewis Sutherland on Stat. Const., § 355; 1 Ibid., § 287; Pannell et al. v. Louisville, etc., Co., 113 Ky. 630.
In Files v. Fuller, supra, the court, referring to a general saving statute, of that state, said:
‘ ‘ This statute has very little importance', save in hermeneutics, and has been rarely invoked,, for no legislature has power to prescribe to the courts rules of interpretation, or to fix for future legislatures any limits of power as. to the effect of their actions. Any subsequent legislature might make its repealing action operate in pending suits, as effectually as if no such statute existed, and the courts are quite free yet to consider what the subsequent legislature did in fact intend, or had power to do. ’ ’
In McCann v. City, supra, the effect to be given to a saving clause statute passed by the legislature of New York in 1892, which is substantially the same
■ ‘ ‘ This • is in the nature of a general saving clause. • * * * It is suggested that the legislature of 1892 had no power to trammel or impair the action of subsequent legislatures; but as was said in the case of People v. England, 91 Hun. 155, in considering the effect of this very section of the statutory construction act upon acts passed at sessions of the legislature in subsequent years:
‘ ‘ ‘ The legislature, by the act of 1892, laid down a rule of statutory construction applicable to all future statutes. The act did not attempt to interfere in any manner with future legislation, but simply .prescribed a rule of construction applicable when not inconsistent with the general object of the subsequent statute, or the context of the language construed, or other provision of the repealing law indicating a different intent.’ ”
In Davidson v. Witthaus, supra, in commenting upon the same statute, the court used this language:
“The legislature of 1892 could not fetter the legislature of 1901 (Cooley Const. Lim., 7th Ed., p. 174 et seq.), and I think that the statutory construction law is not an attempt at so vain a thing. This statute is a rule of construction, applicable when not'inconsistent with the general object of a subsequent statute, or the context of the language construed, or other provision of a repealing law indicating a different intent. ’ ’
In Pannell et al. v. Louisville, etc., Co., supra, several actions to recover penalties for violations of the provisions of the Kentucky statute regulating the sale of leaf tobacco were consolidated. Pending the consolidated action, this statute was repealed, and in the repealing act it was provided: ‘ ‘ That no penalty provided in said act (act repealed) shall hereafter
“But what one legislature provides, another may repeal; and the act of March 29,- 1902, not only repeals the former statute under which these proceedings were instituted, but, in terms, provides that no penalty under that act shall hereafter be recovered in any court of the state, It is settled that, in order to enter judgment for a penalty, there must be a statute in force at the time authorizing the court to enter the judgment, and that if the act is repealed pending the action the court is without power to give judgment, and the action must be dismissed. * * * We are therefore without authority to proceed further.”
These decisions, and we have found none holding otherwise, clearly establish the rule that the intention of the legislature, in whatever form 'of language- it may be expressed in a subsequent repealing statute, must prevail notwithstanding the rule of construction declared by a previous saving act. Counsel for appellee insist that the words “as well as all penalties thereunder are hereby repealed” are not sufficient to indicate an intention of the legislature to abolish or destroy the right to prosecute for penalties incurred under the repealed act; and, furthermore, if held sufficient to indicate such an intention, they are unconstitutional and void because no reference is made thereto in the title of the act. It is a well settled canon of construction that every word in a
It is therefore incumbent upon us to ascertain and give effect to the purpose sought to be accomplished by the legislature by the use of the words employed in the repealing section of the act of 1905. If only the repeal of the prior statute was intended, the words “as well as all penalties thereunder” are mere surplusage, and must be treated as a formula-signifying nothing. We are not permitted h> so treat them. As we have already seen, effect must be given, if possible, to each word and clause of the statute, and we are not at liberty to desregard any of the language unless “it be impossible to attribute7 a rational purpose to it when considered in connection with the context.” — County Court v. Schwarz, 13 Colo. 291.
What, then, is the force and significance of the word ‘ ‘ repealed ’ ’ when used in reference to the penalties incurred under the act repealed? The Century dictionary defines the word “repeal”: “To revoke, abrogate as a law or statute. It usually implies a recalling of the act by the power that made or enacted it. To give up, dismiss. To call back, recall, revoke, retract. ’ ’ Among the definitions given to the word by Webster is “To revoke, to rescind or abrogate by authority, as by act of the legislature, ’ ’ and as synonyms of the word “repeal” he gives the following: “To abolish, to revoke, rescind, recall, annul, abrogate, cancel.” The plain purpose of the word,
The further objection that if the phrase under consideration is held sufficient to indicate an intention to take the same out from under the provisions of the “General Saving Statute,” it is unconstitutional because no reference is made thereto in the title, is, we think, untenable. In considering a similar objection in Trackman v. The People, 22 Colo. 83, 85, the following language is used: “It is not necessary, in order to conform to this constitutional requirement, to state in the title the effect of the subject-matter of the act in repealing some prior law, since the repeal of a prior law is necessarily connected with the subject-matter of the new law on the same subject,- and a repealing section in the new statute is valid, notwithstanding the title is silent as to such repeal.”
Our conclusion is that the Booth act, which took effect and was in force from and after its passage, superseded all prior acts upon the subject of regis- • tration, and extinguished.the right to prosecute the plaintiff in error for the offenses charged in the indictment. It follows that the trial in the court below was without authority of law. The sentence and judgment of the court is therefore reversed, and the cause remanded with directions to dismiss the action.
Reversed.
Decision en banc.
Mr. Justice Steele and Mr. Justice Guntee dissent.
Dissenting Opinion
dissenting:
January, 1905, plaintiff in error was indicted under the Election Law of 1894. April 5th, 1905, the Booth Registration Law went into effect. May, 1905, plaintiff in error was tried upon the indictment, convicted and sentenced to the penitentiary. The case is here for review.
The sole contention of . plaintiff in error is, that " the enactment of the Booth law repealed the law of 1894, and all penalties thereunder, and therefore worked his discharge. The facts pertinent are: The indictment charged plaintiff in error with corruptly and feloniously making false answer, under oath, for the purpose of securing the registration of an unqualified elector. The indictment was drawn under section 17 of the act of 1894, which section reads as follows:
“Except as otherwise provided in this act, any person who shall make false answer, either for himself or another, or who shall violate or attempt to violate any of the provisions of this act, or knowingly permit another to violate the same, or any public officer or officers upon whom any duty is imposed by this act or any of its provisions, who, shall wilfully neglect such duty, or who shall wilfully perform it in such a way as to hinder the objects and purposes of this act, shall be deemed guilty of a felony, and on conviction thereof shall be punished by imprisonment in the penitentiary not less than one year nor more than five years, and if he be a public officer shall forfeit his office. ”
Section 18 of the Booth act reads as follows: •
“Any person who shall make false answer, either for himself or another, or who shall violate or attempt to violate any of the provisions of this a.ct, and knowingly permit or encourage another to violate the same, or any public officer or officers or other per*428 sons upon whom any duty is imposed by this act or any of its provisions, who shall wilfully neglect such duty, or who shall wilfully perform it in such a way as to hinder the objects.and purposes of this act, shall, excepting where some penalty is provided by the terms of this act, be deemed guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary' not less than one year, nor more than five years, and if he be a public officer, shall also forfeit his office. ’ ’
It seems to us the simple reading of the two- sections is convincing that section 18 does not in substance change section 17. There is no provision in the Booth act which has such effect. The Booth act, section 25, reads:
“All acts or parts of acts inconsistent with the provisions of this act, as well as all penalties thereunder, are hereby repealed.”
Plaintiff in error was convicted under section 17, act 1894. It is in effect conceded that this conviction should stand unless section 17 was repealed by the Booth act. The Booth act only repeals “acts and parts of acts inconsistent with” its provisions, and the penalties- under such inconsistent provisions. Section 17 is not inconsistent with section 18, or any other part of the Booth act, it has in effect, and almost literally, been re-enacted in section 18 of that act. Pertinent is the following from Holden v. Minn., 137 U. S. 483, 490, 491:
‘ ‘ These provisions were not repealed by the act of April 24, 1889. 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 eleven and twelve 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*429 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. ’ ’
In Lewis v. Stout, 22 Wis. 225, 227, the court in an opinion by Dixon, chief justice, said:
“It is a general rule in the construction of statutes, that a statute that revises the subject-matter of a former statute, works a repeal of such former statute without express words to that effect. . The act of March 31, 1860, to provide for letting the public printing by contract, seems to be a substitute for the previous act on the same subject; and this rule would no' doubt govern in its construction but for the language of the fifteenth section. That section provides that ‘All acts and parts of acts, inconsistent with the provisions of this act, are hereby repealed. ’ This language seems to indicate very clearly that if there were any parts of the former act not ‘inconsistent, ’ the same were not to be repealed. ’ ’
^See, also, People v. Durick, 20 Cal. 94, 96.
To sum up, it seems to us the law under which' this plaintiff in error was convicted is not inconsistent with, therefore, not repealed by, the Booth act of 1905. If this be true, his conviction should stand. This conclusion we believe to be supported by principle and authority, and further, it avoids implying to a co-ordinate branch of the government — the legislative — either negligence or corrupt motives in the passage of the Booth act.
We think the judgment of the lower court should be affirmed.
Mr. Justice Steele concurring.
