People v. Lowell , 250 Mich. 349 ( 1930 )

Act No. 114, Pub. Acts 1929, amends sections 2 and 51 of the prohibition law, Act No. 338, Pub. Acts 1917, and amendments, and adds section 51a, "Said amended sections and added section to read as follows:"

Section 2 of Act No. 114 defines the offenses. In identical language it includes those defined in section 2 of Act No. 338, and makes no change in the section except to add four new offenses, "manufacture for sale," "import for sale," "transport for sale," and "possess for sale."

Section 51 of Act No. 114 amends penal section 51 of Act No. 338 by increasing the maximum penalties from $1,000 fine and one year imprisonment to $2,000 fine and two years imprisonment, in the discretion of the court. Section 51a is new and provides a specific penalty for sales, before punishable under section 51, and for the new offenses created by Act No. 114, of a maximum fine of $2,000 and imprisonment of not less than one year nor more than four years. Act No. 114 took effect August 28, 1929. It contains no repealing clause nor saving clause.

After August 28th, the examining magistrate made return binding defendants over for trial in the circuit court on charges of violation of the prohibition law committed prior to that date. They moved to quash the complaint and for discharge on the ground that Act No. 114 had repealed section 51 of Act No. 338, and that there was no penal provision under which they could be punished. The court held with defendants, and the people have appealed.

The ruling of the circuit court is sustained byPeople v. Hiller, 113 Mich. 209, in point, where this court said:

"We understand the rule to be, in criminal cases, in the absence of a saving clause, that where the penalty is altered in degree, but not in kind, by increasing the punishment which may be imposed, the effect of enacting the increased penalty is to repeal the earlier provision."

The rule is supported by authority in this country and England, unanimously in amendatory acts like that at bar so far as we can discover, except in State v. Broadway, 157 N.C. 598 (72 S.E. 987). So unequivocally and completely established in the jurisprudence of this country is the rule that, to avoid its operation through inadvertence, the Federal government and many of the States have deemed it necessary to enact general saving clauses by constitution or statute. The adoption of these clauses has resulted in a paucity of late authorities, but where they have not been enacted the rule still obtains. Some of the authorities declaring it are: 1 Lewis' Sutherland Statutory Construction (2d Ed.), § 252; Maxwell on Interpretation of Statutes (6th Ed. Eng.), p. 332; Brill Cyclopedia Criminal Law, § 78; Smith's Commentaries on Statutory and Constitutional Construction, § 776; 36 Cyc. pp. 1096, 1230; 25 R. C. L. pp. 930, 931; 88 Am. St. Rep. 292, note; United States v. Tynen, 11 Wall. (U.S.) 88; In re Medley,134 U.S. 160 (10 Sup. Ct. 384); United States v. Yuginovich, 256 U.S. 450 (41 Sup. Ct. 551);State v. McDonald, 20 Minn. 136 (Gil. 119); State v. Smith,56 Ore. 21 (107 P. 980); Flaherty v. Thomas, 12 Allen (Mass.), 428; Commonwealth v. Kimball, 38 Mass. (21 Pick.) 373; Nichols v. Squire, 5 Pick. (22 Mass.) 168; State v.Smith, 44 Tex. 443; Sugg v. Smith (Tex.Civ.App. [May 1918]), 205 S.W. 363; State v. Dixie Finance Co., 152 Tenn. 306 (278 S.W. 59); State v. McClellan (1923), 155 La. 37 (98 So. 748, 31 A.L.R. 527); Gorman v. Hammond, 28 Ga. 85;Garvey v. People, 6 Col. 559 (45 Am. Rep. 531); Carter v.Hawley (Ohio), Wright (2d Ed.), 74; State v. Campbell,44 Wis. 529; United States v. One Bay State Roadster (D.C.), 2 Fed. (2d) 616. See, also, Engle v. Shurts, 1 Mich. 150;Leighton v. Walker, 9 N.H. 59; Buckallew v.Ackerman, 8 N.J.L. (3 Halst.) 48.

In the absence of a saving clause, the repeal of a criminal statute operates from the moment it takes effect, to defeat all pending prosecutions under the repealed statute.People v. Hiller, supra; 1 Lewis' Sutherland Statutory Construction (2d Ed.), § 286; 36 Cyc. p. 1230; 23 L.R.A. (N.S.) 243, note; Aaron v. State, 40 Ala. 307; State v. Daley,29 Conn. 272; Hartung v. People, 22 N.Y. 95;Higginbotham v. State, 19 Fla. 557; Keller v. State, 12 Md. 322 (71 Am. Dec. 596).

Mr. Justice BUTZEL recognizes the practical unanimity of authority but advances reasons for disregarding the settled rule. We will pursue the subject further.

It must be appreciated and kept in mind that we are here concerned with an act which specifically amends a designated section of a general act "to read as follows." We are not dealing with independent and distinct statutes, as in Re Lambrecht, 137 Mich. 450, in which the rule of implied repeal is such irreconcilable repugnance that both cannot stand. In such case, if the new statute is given a purely prospective effect and the former is made retrospective, they are not irreconcilable. The rule governing such cases is well recognized. 16 C. J. p. 69; 1 Lewis' Sutherland Statutory Construction (2d Ed.), § 252;People v. Marxhausen, 204 Mich. 559 (3 A.L.R. 1505); Porter v. Edwards, 114 Mich. 640; People v. Hobson, 48 Mich. 27.

An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is:

"Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there." 25 R. C. L. p. 907.

The new section takes the place of the old section in the original act. Webster v. Auditor General, 121 Mich. 668. It obliterates from the law not merely what is repugnant in the old section, but everything in such section which does not appear in the new act.

The rule settled in this State, and upon whichPeople v. Hiller rested, is, as quoted in City of Mason v.Railway Co., 157 Mich. 1, 13, 14:

" 'Where an act or portion of an act is amended so as to read" in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. It is perfectly clear that, as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal.' "

In that case, and also in Detroit United Railway v. BarnesPaper Co., 172 Mich. 586, to the same effect, People v. Hiller was cited with approval. See, also, People, ex rel. Flint,etc., R. Co. v. County Treasurer of Saginaw, 32 Mich. 260;Breitung v. Lindauer, 37 Mich. 217; Boughner v. City of BayCity, 156 Mich. 193; 36 Cyc. p. 1083; Brill Cyclopedia Criminal Law, § 29; Black Interpretation of Laws, p. 359; 1 Lewis' Sutherland Statutory Construction (2d Ed.), §§ 237, 238; 11 Ann. Cases, 472, note; City of Chicago v. Foley, 335 Ill. 584 (167 N.E. 779); Forbes v. Board of Health, 27 Fla. 189 (9 So. 446, 26 Am. St. Rep. 63); Continental Oil Co. v. MontanaConcrete Co., 63 Mont. 223 (207 P. 116); State v. DistrictCourt, 134 Minn. 131 (158 N.W. 798); Gibson v.Commonwealth, 209 Ky. 101 (272 S.W. 43).

There is no inconsistency between the rule in the Hiller Case and that in People v. Schoenberg, 161 Mich. 88, and Sage v.State, 127 Ind. 15 (26 N.E. 667), which involved amendatory acts. In those cases the offenses and penalties as stated in the amended statutes were incorporated unchanged in the amendatory acts. It is an established rule of amendatory acts that former provisions incorporated in the new act are deemed continued rather than repealed and enacted anew. 1 Lewis' Sutherland Statutory Construction, § 251; 11 Ann. Cases, 472, note; Merkle v. Bennington, 68 Mich. 133. This is because the Constitution requires the amendatory act to set up the whole section as amended. Matters carried over are not new legislation. Nevertheless, the old section is deemed stricken from the law, and the provisions carried over have their force from the new act, not from the former. 1 Lewis' Sutherland Statutory Construction (2d Ed.), § 237.

It is plain from the authorities in this State and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment "to read as follows." It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the legislature.

From a legal standpoint, the argument against the rule is that used in State v. Broadway, supra, and repeated in Cisson v. United States (South Carolina), C.C.A., 4th Circuit, January 14, 1930, 37 Fed. (2d) 330, to the effect that the question of implied repeal rests upon the intention of the legislature and that increase in punishment provided in the new act indicates an intention of the legislature not to grant amnesty to prior offenders, but rather to apply the new act to subsequent offenses and to continue the former law in force to cover violations committed before the new act took effect. The identical argument was made in People v. Hiller, supra, and rejected by this court. In State v. Broadway, supra, the court cited State v. Massey, 97 N.C. 465 (2 S.E. 445), in which it was held that, by virtue of a general statute of the State, an amendatory law did not repeal an amended section in the absence of an express repealing clause. In this respect that court had the virtue of consistency with its own statute law in reaching its conclusion. As we have seen, the rule is contrary to the established law of this State.

Cisson v. United States involved the Jones act, 45 U.S. Statutes at Large, p. 1446, chap. 473 (27 USCA §§ 91, 92), which it was contended had repealed the penalty clause of the National prohibition act as to second offenses, by increasing the punishment. The court held the Jones act prospective in operation, and adopted the reasoning of and cited State v. Broadway, supra. Aside from the effect of the Federal general saving clause, which the court failed to mention, 1 USCA § 29, the case is not authority here because:

1. The Jones act did not amend any specific section of the National prohibition act. In effect, it was a separate statute from the general penalty clause, as section 51a at bar is from former section 51, and repugnancy was the test of an implied repeal properly applicable to it. The instant case would be amenable to much different considerations if section 51 had not been amended.

2. The Jones act specifically provided that it did not repeal or eliminate any minimum penalty already established in the National prohibition act, thereby expressing in the law itself an intention to continue the former clause in effect except as to repugnancy.

In holding that implied repeal may be avoided by giving Act No. 114 a prospective effect, Mr. Justice BUTZEL applies the rule of independent statutes to amendatory acts. The distinction has been pointed out herein and was recognized inMongeon v. People, 55 N.Y. 613, 618, which he cites:

"Hartung v. People (22 N.Y. 95), was still fresh in the recollection of legislators, in which it was held that by a change in the law defining the crime and providing for the punishment of murder — effected by an amendment of the prior law instead of, as in this case, by a new statute applicable only to future offenses — the prior law had been abrogated, and persons although convicted under it could not be punished."

The people have somewhat stressed the absence of a repealing clause. An express repeal has no more force than an implied repeal, and their contentions would be as applicable to one as the other.

This brings us to the crux of the whole argument against repeal, the claimed intention of the legislature.

"A legislative intention not expressed in some appropriate manner has no legal existence." 2 Lewis' Sutherland Statutory Construction (2d Ed.), p. 745.

"The legislature is also presumed to know the principles of statutory construction." Ibid, 929.

"There are acknowledged rules for ascertaining that intention" of the legislature. United States v. Claflin,97 U.S. 546, 551.

Nowhere in the act did the legislature, by words or in the manner provided by any rule of construction, express an intention to save the prosecution of former offenses. On the contrary, both by the natural meaning of the language used and in accordance with acknowledged and long-established rules with which it was presumably familiar, it affirmatively and appropriately expressed an intention to obliterate the amended section. A contrary conclusion is private speculation, not judicial construction.

"The result may or may not be conformable to the actual intent of those who passed the latter statute. We can only ascertain the legal intent of the legislature, by the language which they have used, applied and expounded conformably to the settled and well-known rules of construction."Commonwealth v. Kimball, 21 Pick. (38 Mass.) 373.

"Even though the court should be convinced that some other meaning was really intended by the lawmaking power, and even though the literal interpretation should defeat the very purposes of the enactment, still the explicit declaration of the legislature is the law, and the courts must not depart from it." Black on Interpretation of Laws, p. 36.

If we disregard the rules of construction and the language of the act to enter the field of pure speculation, we find, not merely as a presumption but as a demonstrable fact, that the legislature of 1929 knew the necessity and understood the effect of a saving clause. Not only did it insert such clause in several criminal laws adopted at the same session, but it also appears that after both houses had passed a capital punishment bill for murder and sent it to the governor for approval, the legislature had it returned for the sole and express purpose of inserting a saving clause in it. House Journal 1929, p. 1261.

At bottom, the argument against repeal is sociological rather than legal, that the effect of repeal will be injurious to the public welfare, in excusing offenders from punishment, and that such "mischievous and absurd consequences" justify this court in saving the prior penalties by construction. The argument is temptingly forceful, and if Act No. 114 were ambiguous, its meaning being sought, and more than one construction of its language reasonable, it would be persuasive. However Act No. 114 is construed, whether prospective, retroactive, or both, its effect of repeal on amended sections is the same, because, on a day certain, by the language of the law, they were abrogated and new sections "to read as follows" were substituted for them.

No reason can be urged against the rule itself. If observed in making laws, it certainly and accurately expresses the will of the legislature according to the natural meaning of the words used. No principle of sociology would warrant the abrogation of a rule upon which legislation has been enacted and construed since the establishment of the State, because, in a single or a few instances, misfortune follows, not its observance, but its disregard. Nor can it confer upon the court legislative power to correct mistakes in unambiguous laws. Two familiar and recent examples of such mistakes, which the court could not remedy, were the repeal (by Act No. 319, Pub. Acts 1927) of the teachers' pension law (Act No. 174, Pub. Acts 1915, 2 Comp. Laws 1915, §§ 5767-5780) and the want of enacting clause in the act to repeal obsolete laws (Act No. 211), in 1927.

Nor, upon the grounds of ultimate public good, as distinguished from the immediate consequences, is the sociological argument entirely without answer. There are such offsetting considerations as the overruling of a long line of decisions of this court, upon which personal and property rights have been established; the abrogation of a certain and reasonable rule of statutory construction which accurately mirrors the language of the legislature; the substitution for it of an uncertain or no rule, with confusing effect; the encouragement of carelessness in lawmaking, with the idea that this court will legislate virtue into or evil out of the law as enacted by the legislature; and, of the first importance, the departure of the court from its constitutional judicial function to usurp legislative power by supplying a saving clause which the legislature has purposely or inadvertently omitted.

In my opinion, both authority and reason require us to hold that section 51 of Act No. 338 was repealed by Act No. 114, and there exists no penal statute under which defendants can be punished.

We suggest to the legislature that, if this ruling does not accord with its actual intention, a similar situation may be avoided in the future by the enactment of a general saving statute, covering such cases and with such provisions as the legislature may determine.

Judgment is affirmed.

WIEST, C.J., and CLARK, POTTER, and NORTH, JJ., concurred with FEAD, J.