State v. Benjamin P. Wilbor

This court derives its power to carry an indictment or other common law criminal proceeding from the presentation of the bill or information to final judgment, not from particular statutes for making certain acts offences against the State or for establishing certain municipal regulations, but from the act which constitutes and organizes it as a court. A repeal or alteration in any such municipal regulation or statute touches not the power of the court, however it may change its object or mode of action. Hence, when a statute is in part repealed or altered, it becomes not a question of power but of interpretation. In other words, the court is to enquire how the original and amendatory acts taken together are to be understood, according to the common law rule for interpreting statutes, and having thus ascertained their true intent, it is bound to carry that intent to its final effect, if those forms of law through which it must act will admit of it.

Now the act in amendment of an act, authorizing town councils to grant licenses and for other purposes, does not affect the power of the court; it calls upon the court to construe the two acts together and give them such a construction as shall render them, if practicable, consistent with each other and with our common law forms of proceeding by indictment.

In as far as any question arises in considering this motion, the two acts are in no sense inconsistent with each other, except in relation to the distribution of the penalty. In every other respect, whether we consider the penalty itself, the proceedings by which it is recovered, or the act by which it is incurred, the two statutes are perfectly consistent with each other and nothing is changed. But then in considering these statutes in the case of the State v. Fletcher, the court did find that the new distribution of the penalty did effect certain rights of the town, (which before the passage of the amendatory act was entitled to half the penalty in all cases,) by transferring those rights except where convictions had already been obtained, to the complainants. But this did not change the offence or repeal the penalty — it only repealed the mode of distribution given by the 10th section of the amended act. Yet, though it only affected the mode of distribution, the court was and still is of opinion that the offence, created by that section, and the penalty there given, remain unchanged, and that the only difficulty in recovering it lies in the fact that the amending act has left the court no mode, so long as it pursues the common law course of adjudication, whereby it can distribute any penalty incurred prior to the day on which the amending act went into effect, except in those cases where convictions had already been obtained. To have taken a penalty which had been already incurred, and to the one half of which the town was entitled under the statute before it was amended, and to have given it to the complainant, would have been to have given the amending act a retroactive effect, and to have invested the complainant with rights to which, up to the day on which the amending act went into effect, he was a stranger; and that in derogation of the rights of the town and against the language of the statute.

It will here be perceived, that this opinion did not touch the penalty itself, nor did it touch in any respect the rights or liabilities of the respondent. It was an incident of that opinion, rather than its direct effect, that operated his discharge. The court could not give the half of the penalty to the town, because the amendment provided for a sentence that should give it to the complainant, if a conviction had not been obtained, and it could not give it to the complainant, because the act, which was amended, gave it to the town, from which it could not be taken without giving the amending act a retroactive effect.

If this opinion be correct, and if the amendatory act does not touch the offence or the penalty, but only relates to the form of the judgment by which it is to be distributed, the court cannot comprehend how it is to operate a repeal of that penalty, or how it is to take from the court the power of rendering judgment in any case in which the penalty can be distributed consistently with the intent of both acts considered together, and with the rights of the parties entitled to it. The defendant is indicted for an offence committed subsequently to the passage of the amendatory act; but the questions which the former opinion decided grew out of offences committed prior to its passage — none of the questions, therefore, decided by the former opinion necessarily arise here, nor do any of the principles on which that decision was grounded properly belong to a consideration of the present question.

It is said the penalty is made by the amending act greater, inasmuch as it is provided that for a repetition of the offence it may be doubled. This is a possible contingency, but not an incident of the sentence. The respondent may again violate the law, but this depends wholly upon his own will. It is not aright of which the sentence will deprive him, nor any result which the court can anticipate, or which it can take into consideration as a part of its sentence. It cannot consider the penalty, by such possible contingency, as increased. To do so would be to presume that the breach of law would be repeated, and to be solicitous, not for the preservation of the rights of the respondent, but to guaranty to him impunity in wrong-doing. This is not the proper business of the court. At any rate, the double penalty is a penalty imposed by the amending, and is in no sense inconsistent with the amended statute. It is a new penalty, and just as distinct from the old as if it were to be imposed upon any contingency other than the sentence now to be passed.

It is said that the State cannot rely upon both statutes, since the indictment concludes by alleging that the sale was "against the form of the statute" and not "statutes" "in such case made and provided." But it has been decided — and we are not aware that the correctness of the decision has heretofore been questioned — that under such an indictment, an offence may be proved and the indictment sustained, although the offence may be the creation of a number of statutes. All the statutes in relation to the same offence must be taken and construed together as if they were one statute.

With these views of the question, which the counsel for the respondent have presented for the consideration of the court, we are under the necessity of overruling the motion in arrest of judgment.