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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 Ct. 7, 9, 41 L. Ed. 327, related to an act which expressly repealed and at the same time substantially re-enacted a prior one, and of this.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solitary confinement after the issuance of the warrant and regulating the details of the execution, and in terms repealed all acts and parts of acts inconsistent with it. Responding to the contention that the previous law was thereby repealed, and that the new act could not be applied to prior offenses, the court, in addition to holding that the new provision for solitary confinement, although not in terms so written, was applicable only to future offenses, held that the previous law was not repealed, and in that connection said:

"These provisions were not repealed by the act of April 24, 1889 (Gen.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. Powe

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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. And 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 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 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 thé 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, enbezzles 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 received, 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 repealed, 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, sare 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 conHict 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,

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