certain fine and a minimum term of imprisonment, it was held not repealed by a subsequent statute which gave the court a discretion on proof to mitigate this punishment. The court say: "It does not change any previously prescribed penalty, nor does it substitute a new or different kind of punishment in the place of that which the former statutes had affixed to certain classes of offenses. The effect of the statute was merely to vest in the court a discretion by the exercise of which they were authorized to mitigate the sentence to which the offender was liable, by dispensing with a portion of the prescribed punishment. The extent of the repeal of previous statutes is then only this: That, in a certain class of cases, instead of a fixed or inflexible rule of punishment which could not be modified or varied, the court has authority to substitute a milder sentence. Clearly such a statute is not a violation of any right or privilege of an accused party, nor does it render the class of offenses to which it relates, and which were committed prior to its enactment, dispunishable. It does not inflict any greater punishment than was before prescribed; it is not, therefore, ex post facto; it only authorizes a mitigation of a penalty; it is therefore an act of clemency which violates no right, but grants a privilege to a convicted party."" § 253 (144). It has been held that a subsequent act may provide an alternative punishment in mitigation of that previously prescribed without being ex post facto. A statute imposing for an offense the penalty of imprisonment in the house of correction in the county where the offense was committed was held not repealed by a subsequent statute providing that the court in its discretion may commit ten pounds, or, if the defendant is unable to pay, then whipping; held, that the punishment, after whipping was abolished, was the fine. State v. Hamblin, 4 Rich. (N. S.) 1. 5 Dolan v. Thomas, 12 Allen, 421; Commonwealth V. Wyman, 12 Cush. 237; Commonwealth v. Gardner, 11 Gray, 445; Commonwealth v. McKenney, 14 id. 1; Calder v. Bull, 3 Dall. 386; Walker v. State, 7 Tex. App. 245. 6 Turner v. State, 40 Ala. 21; Greer v. State, 22 Tex. 588. But see post, § 671. the person under sentence to the house of correction in any county in the state in the same manner as he might be to the county where the court is holden, and that all inconsist ent statutes are repealed. The court said: "The change is not in the nature of the penalty or its degree, but only in the locality where it may be inflicted. The essential rights of a person convicted are not materially affected, nor is the punishment aggravated, by an imprisonment in one county rather than another. There would be great force in the argument [that there is an implied repeal] if the new statute had authorized the imprisonment to be inflicted in a penal institution designed or appropriated for the punishment of offenses of a higher or more aggravated nature than those punishable in the house of correction, although the term of imprisonment had remained unchanged. . . . But under the statutes of this commonwealth the several houses of correction in the different counties of the commonwealth are places designated and used for the punishment of offenses of the same grade and degree; they are all subject to the same rule of government; the persons committed to them are under substantially the same discipline, and are entitled to the same rights and privileges. In legal contemplation, a commitment to a house of correction in one county for a specific term cannot be regarded as a higher or lesser punishment than a commitment to a house of correction in another county for the same period of time. The essential elements of the penalty are the same in either case." A change of procedure sometimes has been emphasized as aiding the inference of repeal. Where a statute prohibited an act under a penalty to be enforced by indictment, and a subsequent statute gave a qui tam action for such penalty, the latter was held merely cumulative, and did not repeal the remedy given by the former act.9 A statute authorizing the prosecution of all misdemeanors by 7 Carter v. Burt, 12 Allen, 424. 8 Michell v. Brown, 1 E. & E. 267; Nusser v. Commonwealth, 25 Pa. 9 Bush v. Republic, 1 Tex. 455. 10 information was held to repeal a prior statute which provided that the violation of certain sections against gambling should be prosecuted by indictment. A statute made it a misdemeanor to injure or remove any fence or wall surrounding any yard, garden, field, or pasture. A later statute, making it a misdemeanor to injure or destroy any part of a wire fence situated on the land of another, was held not to repeal the former." A law making it unlawful to keep open on Sunday any store, shop, or place for the purpose of trade was held not to repeal a prior law to punish any one who should keep open a saloon on Sunday.12 An act providing for the deposit in banks of public funds does not repeal or affect the criminal code as to the embezzlement of public money. An indeterminate sentence act was held not to repeal prior provisions of the code requiring the jury to fix the penalty, but merely to suspend such provisions, and when crimes were excepted from the former act the provisions of the code at once applied. A statute providing that no person indicted for an offense shall be convicted thereof unless by confession of his guilt in open court or by the verdict of a jury accepted and recorded in open court. was held not to repeal, by implication, a former statute that judgment may be rendered against the defendant in a criminal case if he fails to plead on the overruling of a demurrer to the indictment or information.15 § 254 (145). Statutes granting larger or different power or right. A new statute which affirmatively grants a larger jurisdiction or power, or right, repeals any prior statute by which a power, jurisdiction or right less ample or absolute had been granted.16 If the exercise of a power 10 Territory v. Cutinola, 4 N. M. 305, 14 Pac. 809. 11 State v. Biggers, 108 N. C. 760, 12 S. E. 1024. 12 State v. Binnard, 21 Wash. 349, 53 Pac. 210. 14 People v. Murphy, 202 Ill. 493, 67 N. E. 226. 15 State v. Harding, 20 Wash. 556, 56 Pac. 399, 929. 16 Farley v. De Waters, 2 Daly, 192; Regina v. Harden, 2 Ellis & B. 13 Whitney v. State, 53 Neb. 287, 188; Schneider v. Staples, 66 Wis. 72 N. W. 270. 167, 28 N. W. 145; Board of Com granted by a legislative act may include going beyond limits fixed by a prior statute, such limitation is impliedly removed, at least so far as it conflicts with the doing of that which is subsequently authorized. Thus, a power given to a municipal corporation to create a debt and provide for its payment empowered it to provide for the payment by taxation according to the exigency of the contract, though taxation for that purpose would exceed a limitation in the general law in force as to the annual rate of taxation." An English statute authorized the removal of poor persons likely to become chargeable. The power was given to two justices, one to be of the quorum. A later statute recited that act and repealed the provision for removal on the probability of their becoming chargeable, and enacted that a removal might be made of such persons after they had become chargeable to the parish, by two justices of the peace, without mention of the quorum. It was held that the requirement that one of the justices be of the quorum, contained in the previous act, was repealed by implication.19 Where the later statute merely extends the power or right to new subjects, though without mentioning the limitations applicable to the subjects to which the early law referred, they may, by construction, be held to attach to the new subjects, when found consonant to the manifest intention of the legislature, or when such construction accords with its uniform policy.19 By the Revised Statutes of New York, an incorporated academy could take and hold by gift, grant or devise real and personal property, the clear yearly income or revenue of which did not exceed the value of $4,000. missioners v. Potts, Sheriff, 10 Ind. 286; Mayor, etc. of Jersey City v. Jersey City, etc. R. R. Co., 20 N. J. Eq. 360; Commissioners of Knox Co. v. McComb, 19 Ohio St. 320; McRoberts v. Washburne, 10 Minn. 23; State v. Burton, 33 Neb. 823, 51 N. W. 140. 17 Commonwealth v. Commissioners of Allegheny Co., 40 Pa. St. 348. 18 Regina v. Llangian, 4 B. & S. 249. 19 Chamberlain v. Chamberlain, 43 N. Y. 424; State v. Tolly, 37 S. C. 551, 16 S. E. 195; Frazier v. Railway Co., 88 Tenn. 138, 12 S. W. 537. 20 1 R. S. 462, § 42. By subsequent acts trusts were authorized to be created by grants, devises and bequests of property to any incorporated college or other literary incorporated institution for specific purposes of support of liberal education. By the terms of these acts no limit in amount or value of property which can thus be given in trust is prescribed. The court say: "But these statutes are in no sense repugnant to the general law of the state, limiting and restricting the amount and value of property which can be taken and held by literary and educational corporations, and the general laws are in harmony with the general policy of the state, which has been uniform and consistent so far as such policy is indicated by legislation in relation to gifts in mortmain and the power of corporations to take and hold property. Special trusts were authorized to be created by the acts of 1840 and 1841, in furtherance of the general objects of the institutions named; but such trusts can be created and full effect given to the acts within the limits imposed by the general laws upon the power of the corporations to acquire and hold property. The general laws of restraint and those particular acts permitting special trusts may stand together. There being no express repeal of the general provision of the law, or repudiation of the uniform policy of the state, the intent of the legislature to do either cannot be implied. Unlimited trusts of this character might be come an unmitigated evil, and no contingent good could compensate for the actual evil attendant upon withdrawing property from general use and placing it in dead hands. Judges have given the widest possible scope to statutes in restraint of the disposal of property in mortmain, and have been astute in their arguments for the application of such statutes to cases as they arose.21 The courts ought not to impute an intent to the legislature not clearly expressed, in direct hostility to the traditions and policy of the past. The institute can 'take and hold' property within the limits prescribed, but can neither take nor hold in excess of 21 Per Gibson, Ch. J., Hillyard v. Miller, 10 Pa. St. 326. |