Commonwealth v. Porter , 113 Ky. 575 ( 1902 )

Opinion of tiie court ijy

JUDGE BURNAM

Reversing.

On the 5th of April, 1901, an indictment was returned against the appellee, L. E. Porter, by the grand jury of Warren county, charging that on or about the 1st day of February, 1899, whilst cashier of the Warren Deposit Bank, of Bowling Green, be feloniously embezzled and converted to his own use and the use of C. J. Porter and E. A. Porter the sum of $1,01-5 in money, which belonged to the bank, and which came into his hands as cashier thereof. The indictment charges that the Warren Deposit Bank was organized under an act of the General Assembly appioved March 15, 1809, and amended March 13, 1871, on the 15th day of June,' 1871, and was to run until the 15th of June, 1901, and that the charter was in full force and effect at the time of the alleged embezzlement. At the January term, 1902, the appellee, Porter, filed a general-demurrer to the indictment, which was sustained, and the indictment dismissed, and defendant discharged from custody. From that judgment, the Commonwealth prosecutes tin's appeal.

The ground of the demurrer was that, if the offense charged was in fact committed, it was a violation of section 7 of the bank charter, which was in full force when the alleged embezzlement occurred, and when the indictment was returned by the grand1 jury, and was therefore exclusively punishable under section 7 of the charter, and not under the general statute against embezzlement by bank officers, found in section 1202 of the Kentucky Statutes; and, second, that when the case was (‘ailed for trial and the demurrer interposed at the January term, 1902, of the Warren circuit court, the charter of the bank bad expired by limitation, and section 7 was dead, and that there'was no statute then in existence under which embezzlement of funds of the Warren Deposit Bank by its-cashier could be punished. The section of the bank charter'' referred to is as follows: “If any officer, agent, or servant of such bank shall appropriate any of the funds to his own use, or shall willfully fail to make correct entries, or knowingly make false ones, on the books with the intent to cheat or defraud the corporation or any person, or to conceal any improper appropriation of funds, the officer, agent or servant so offending shall be deemed guilty of a felony, and 'shall, upon conviction thereof, be sentenced to confinement in the jail and penitentiary for a period of not less than one nor more than twenty years.” Section 1202 of the Kentucky Statutes reads as'follows: “If any officer, agent, clerk or servant of any bank or corporation shall embezzle or fraudulently convert to his own use, or to the use of another, bullion, money, bank notes, or any effects or property belonging to such bank or corporation or other corporation or any person, which shall have come to his possession or been placed in his care or under his management as such officer, agent, clerk or servant, he and the person to whose use1 the same was fraudulently converted, if he assented thereto, shall be confined in the penitentiary not less than one nor more than ten years.”

Jt is the contention for the Commonwealth that section 7 of the bank charter'was repealed by the. enactment by the General Assembly on the 10th of April, 1803, of section 1202 of the Kentucky Statutes, and that the indictment was drawn under the general law, and the offense is properly punishable thereunder. Wo fully concur in the contention of counsel for appellee that the law is well settled that, after the expiration or repeal of a statute, no penalty can be enforced or punishment inflicted for a -violation thereof committed whilst it was in force. And it is also conceded that it is a general rule of construction that a local or special law is not repealed by the enactment of a general one covering the same subject, unless it expressly so declares, or it follows by necessary implication that the law-making department of the government so intended. By subsection 4 of section 59 of the Constitution, the General Assembly is expressly prohibited from passing local or special acts to regulate the punishment of crimes and misdemeanors, and the schedule provides: “The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions as require legislation to enforce them, shall remain in force until such legislation is had, but not longer than six years after the adoption of this Constitution, unless sooner amended or repealed by the General Assembly.” In the case of Buchanan v. Com., 95 Ky., 334 (15 R., 738) (25 S. W., 265), it was said that: “The act of April 10, 1893, was intended to be a complete system of statutory law relating to crimes and punishments, and, as a consequence, to supersede or repeal all existing statutes on that subject. For, under the comprehensive title of ‘crimes and punishments,’ every offense mentioned in chapter 29 of the General Statutes, having the same title, as well as all others, provided, against by special acts are considered and treated of in that act, which is formally divided into articles, relating to different classes of crimes, and subdivisions of each class.” In the more recent cases of Richardson v. Boske (111 Ky., 893) (23 R., 1210) (64 S. W., 919), and Campbell Co. v. Newport & C. Bridge Co. (112 Ky., 659) (23 R., 2060) (06 S. W., 526), it was decided that numerous special laws relating to the fiscal affairs of Kenton and Campbell counties were repealed by the adoption of the general law with reference thereto. When the case of Com. v. Cain, 77 Ky., 525, was decided, the Constitution did not prohibit special legislation like that embodied in the charter of the gas company and the Warren Deposit Bank, and, as a result, innumerable special laws were enacted, prescribing different penalties for the same offense when committed in different counties of the State. And the constitutional convention intended by the enactment of section 59 and the schedule of the Constitution to prohibit this character of legislation, and that they should be superseded by the adoption of general laws uniform in punishment and application throughout the Commonwealth. As was well said in McTigue v. Com. (14 R., 1418) (35 S. W.. 121):‘‘Within the spirit of the Constitution, if not within its very letter, the law must inflict like penalties for like offenses. . . . We may well denounce as a delusion the crowning boast of the Constitution that systematic uniformity in the administration of the law had been provided for with proximate perfection, if this monument of local inconsistencies shall continue to mar the symmetry of our statutes. . . Even without legislation, all laws not consistent with its spirit, which are not in terms repealed or made consistent in the meantime, stand- repealed at the expiration cf six years after the adoption of the Constitution.”

No reason can be suggested why embezzlement of the funds of the Warren Deposit Bank should be punished by eonfiinement in the penitentiary from 1 to 20 years, when, if the same offense had been committed against any other hank, the punishment is limited by the General Statutes to 10 years.

Counsel for appellee suggest that section 1202 of the Kentucky Statutes is also obnoxious to the Constitution, as special legislation, for the reason that it punishes the crime of embezzlement when committed by the employe of a corporation, but makes no provision for the punishment of the same offense when committed by the servants of a private firm transacting the same character of business, —in other words, that the classification made by the statute is not of the business, but of the owmers of the business. We are aware that in Barclay v. Breckinridge, 61 Ky., 374, it was held that a clerk of a private banker, who had converted to his own use money belonging to his employer, could not be convicted; that the statute applied only to the agents of a corporation. The language of the present statute, however, is materially different from the one considered by the court in that case. Section 1202 punishes the offense of embezzlement by a servant of any bank, whether incorporated or not; and, without passing upon the merits of the suggestion if made in a case which fairly presented the question, we are of the opinion that it has no application here, and that section 7 of the bank charter was repealed by the general act of 1S93, and that the offense charged is covered by section 1202 of the Kentucky Statutes, and that the special judge erred in sustaining the general demurrer.

(June 3, 1902.)

For reasons indicated, the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.

Whole court sitting.