Elkins law alleged to have been committed before the passage of the Hepburn law. The contention, as I understand it, is this: That by section 10 of the Hepburn law section 1 of the Elkins law was repealed, and that by inserting after the words of repeal in section 10 the clause, "but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law," Congress by necessary implication evinced its clear intention to save only such criminal prosecutions under section 1 of the Elkins law as were then pending in the courts of the United States, and to release from prosecution all those who had violated that section, but against whom prosecutions were not then pending.

I do not think it necessary to consider the question so fully and elaborately discussed by counsel for the defendants in their briefs and at the oral argument, citing many cases, as to whether or not the first section of the Elkins law has been repealed and superseded by the Hepburn law. It was conceded on the argument by the counsel for the government that not only was the said section of the Elkins law expressly repealed by section 10 of the Hepburn law, by the words "that all laws and parts of laws in conflict with the provisions of this act are hereby repealed," but that, even in the absence of those words, it must be held to have been repealed under the rule laid down in the case of U. S. v. Tynen, 11 Wall. 88, 20 L. Ed. 153, wherein the court declares:

"When there are two acts on the same subject, the rule is to give effect to both, if possible; but, if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy, as a repeal of the first. And even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject-matter of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."

The only question here to be considered is whether or not the clause after the repealing words in section 10 above set forth has the effect by necessary implication, when used in connection with said. repealing words, notwithstanding the provision of section 13 above set forth, to release from criminal prosecution under the first section of the Elkins law those who had violated that law prior to the passage of the Hepburn law, but who had not been indicted prior to the passage of the Hepburn law.

Among the numerous cases cited by counsel I find only one which bears upon the exact question now under consideration, and that is the case of Lang et al. v. U. S., 133 Fed. 201, 66 C. C. A. 255. In the case of U. S. v. Hague (C. C.) 22 Fed. 706, it does not appear that section 13 was called to the attention of the court or was considered by the court. If it was, the decision is exactly contrary to that in U. S. v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480. In the latter case section 13 was considered by the Supreme Court of the United States, and they there held that the words "penalty," "liability," and "forfeiture," used in section 13, apply to crimes and the punishments therefor, and that that section abrogated the rule of the common law that the repeal of a statute operates as a remission of all penalties for

violation of it, committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution, and that that section contained such a provision. This case is not, I think, in point, except as above indicated, because of the difference in the language of the repealing sections there and here.

In the case of State v. Showers, 34 Kan. 269, 8 Pac. 474, cited with approval by Judge Jenkins in the Lang Case, and declared by him to be on all fours with that case, the Kansas statute then being considered, was as follows:

"Section 1. In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the Legislature, or repugnant to the context of the statute: First. The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment." Comp. Laws 1879, c. 104.

The repealing clause there being considered was as follows:

"Sec. 19. Original sections 2, 3, 4, 7, 8, 9, 12, 13 and 21 of the said act, to which this act is amendatory and supplemental, are hereby repealed. All prosecutions pending at the time of the taking effect of this act shall be continued the same as if this act had not been passed."

It will be noted that the words of the Kansas statutes above quoted are far from identical with those of the federal statutes now being considered. The Kansas statute of construction contains the words "unless such construction would be inconsistent with the manifest intent of the Legislature, or repugnant to the context of the statute," and thus leaves open to the courts the application of the recognized canons of construction to ascertain from the language of the repealing statute and the context of the statute the intent of the Legislature. There are no such words in section 13, and the Kansas statute does not provide, as does section 13, that the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability under the repealed statute, unless the repealing act shall so expressly provide. Under the Kansas statute it was not necessary to expressly provide in the repealing act that a certain class of offenders shall be released from prosecution, but under the federal statute it is imperative that there should be such an express provision. The words "unless the repealing act shall so expressly provide" differentiates the two statutes, and in my opinion make the Kansas case of little, if any, value in determining the question now under consideration.

The case of Lang et al. v. U. S., supra, is, I think, on all fours with the one at bar, and is the only one in all the cases cited that bears on the exact question now being discussed. In that case section 3 of the act of March 3, 1875 (18 Stat. 477, c. 141 [U. S. Comp. St. 1901, p. 1286]), under which plaintiffs in error were indicted, was amended, repealed, and superseded by section 3 of the act of March

3, 1903 (32 Stat. 1214, c. 1012 [U. S. Comp. St. Supp. 1905, p. 276]). Section 28 of the latter act reads as follows:

"Sec. 28. That nothing contained in this act shall be construed to affect any prosecution or other proceeding, criminal or civil, begun under any existing act or any acts hereby amended, but such prosecutions and other proceedings, criminal or civil, shall proceed as if this act had not been passed." 32 Stat. 1220. c. 1012 [U. S. Comp. St. Supp. 1903, p. 268].

And the thirty-sixth section of the latter act was as follows:

“Sec. 36. That all acts and parts of acts inconsistent with this act are hereby repealed: Provided, that this act shall not be construed to repeal, alter, or amend existing laws relating to the immigration, or exclusion of, Chinese persons or persons of Chinese descent." 32 Stat. 1221, c. 1012 [U. S. Comp. St. Supp. 1905, p. 290].

The prosecution under review in that case was, as is the case here, commenced after the passage of the latter act, and was for an offense under the former act. The plaintiffs in error were sentenced to the penitentiary at hard labor, Lang for the period of three years, and Lewis for the period of two years, and each to pay a fine of $100 and costs of suit; and the petition in error was to reverse those judgments. The contention was the same there as here, and the judgments were affirmed. The judges sitting in the Court of Appeals, however, were divided, two of them, Judges Grosscup and Baker, concurring in the affirmance of the judgments, but on different grounds, and the other, Judge Jenkins, dissenting and differing with both of the other judges. Judge Grosscup based his opinion upon what his associate Judge Jenkins was pleased to term "a subtlety of grammar," holding that the word "begun" there used meant "which have already been begun or which may hereafter be begun." Thus construing the word "begun," it was not necessary for him to consider section 13, and he refers to it in his opinion only inferentially, if at all.

It is contended by counsel for the defendants here that the language used by Judge Grosscup indicated that, if he had found it necessary to consider section 13, he would have concurred with Judge Jenkins. To my mind some of that language would seem to indicate the contrary. Certainly it might have been said there, as is contended here, that the proviso contained in section 28 might have been left out altogether, because all prosecutions under the old law would have been saved by section 13. So that, I think, we may throw out of consideration the opinion of Judge Grosscup as not in any way enlightening us upon the question here under consideration. As I have heretofore said, Judge. Jenkins cited the case of State v. Showers, supra, and declares that it is on all fours with the case then being considered. The learned judge holds that the word "begun," there used, meant "already begun." He quotes section 13, and then he pursues exactly the same argument as that made by counsel for the defendants in the case at bar. I quote a portion of what he says:

"This [referring to section 13] without doubt prescribes a rule of construction to be applied to every subsequent act, in the absence of an expression of a different intent in such subsequent act. U. S. v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480. But as one Legislature cannot bind a subsequent Legislature to a particular mode of repeal, where the subsequent act contains a

provision with reference to a prior act superseded by the new act, we must apply the recognized canons of construction to the language employed to ascertain the intent of the Congress. * We are compelled to assume that the Congress understood this. We are compelled to assume that they spoke to a purpose. The natural import of the language used, as with deference I think, can bear no other construction than that the Congress intended to say what it expressly said should be saved, and nothing else. It is not permitted to the court to say that the Congress spoke unadvisedly or unwisely, nor should violence be done to recognized rules of construction to avoid supposed mischievous results, or supposed careless legislation. Ita lex scripta est.' The law has so spoken. The courts should follow and obey. If injury results the responsibility is upon the Legislature, not upon the court."

In this language, as with deference I think, he in effect adds to that section, and to section 28 of the act there being considered, words which they do not contain, and avoids and begs the whole question. If we should follow his reasoning, we would, by an application of the rule of construction which Congress has by section 13, as to the matter now under consideration, to wit, releases from prosecution, forbidden to the courts, add to that section and to section 10, by implication from words which they do contain, words which they do not contain. It seems to me, as to releases from prosecution, that it may be said of section 10: "Ita lex non scripta est." The law is not so written. And that it may be said of section 13: "Ita lex scripta est." The law is so written. The courts should follow and obey. And, if they fail to follow and obey, the responsibility is on the courts, and not on the Legislature.

Black's Law Dictionary defines the word "express" as follows:

"Made known distinctly and explicitly, and not left to inference or implication; declared in terms; set forth in words; manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. The word is usually contrasted with 'implied.'"

Bouvier's definition of the word "express" is as follows:

"Stated or declared, as opposed to implied. That which is made known and not left to implication. It is a rule that, when a matter or thing is expressed, it ceases to be implied by law. 'Expressum facit cessare tacitum.'"

The American & English Encyclopedia of Law says:

"Express' is defined as directly stated; not implied or left to inference; distinctly and pointedly given; made unambiguous by special intention; clear; plain,"

Webster's Dictionary defines the word "express" as follows:

"Directly stated; not implied or left to inference."

Worcester defines the word "express" as follows:

"Given in direct terms; not implied; not dubious; clear; definite; explicit; plain; manifest."

The Century Dictionary defines the word "express" as follows:

"Clearly made known; distinctly expressed or indicated; unambiguous; explicit; direct; plain. In law, commonly used in contradistinction to 'implied.'"

Section 13 is, I think, as declared by Judge Deady, in the case of U. S. v. Barr, 24 Fed. Cas. 1016, a wise and salutary provision. The learned judge says:

"Section 13 is a salutary provision, and if it, or something like it, had always been incorporated in the statutes of the states or United States, it would have prevented many a lame and impotent conclusion in criminal cases in which the defendant escaped punishment because the Legislature, in the hurry and confusion of amending and enacting statues, had forgotten to insert a clause to save offenses and liabilities already committed or incurred from the effect of express or implied repeals."

It seems to me that it is wide of the mark to say that one Legislature cannot tie the hands of subsequent Legislatures. It is more to the purpose to say that the Legislature can bind the hands of the courts as to rules of construction. Section 13, to my mind, evinces no attempt on the part of the Congress of 1871 to bind the hands of subsequent Congresses. If that argument were pursued to its ultimate conclusion, it would mean that section 13 would only apply to the acts of the Congress that passed it, and that, whenever any subsequent Congress in express terms repealed a penal statute, it by that means did away with section 13, and clearly evinced an intention that section 13 should not apply thereto. In the Reisinger Case the Supreme Court of the United States holds exactly the contrary of this. The title of the act in which section 13 was enacted (which I have heretofore given) shows clearly and beyond doubt the purpose of that section, and that it was to prescribe a rule of construction to the courts, and not an attempt to tie the hands of future Congresses. By section 13 Congress, in words so plain that they do not need any construction, says to the courts, as it has a right to say: "When we repeal a penal statute, you shall not release those who have violated the act repealed from punishments for violations thereof, unless the repealing act so expressly provides. Unless we say expressly, not by implication, that such persons shall be released, you shall treat the repealed statute as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement thereof. If we do not say so expressly—that is, in so many words-you shall not, by applying the accepted or common-law rules of construction, imply that we have intended to release such persons. If we intend to do that, we will say so in express terms."

If this be true, the ancient maxim or rule of construction, "Expressio unius est exclusio alterius," cannot be invoked here. Section 13 was a general provision of law addressed to the courts. It became a part of the general body of the law. It has been so treated ever since its passage. It was carried into the Revised Statutes of the United States of 1878, and into the United States Compiled Statutes of 1901. It is a part of the general body of the statutes of the United States now. As I have said, it was not intended to bind the hands of subsequent Congresses, and could not bind them. But every subsequent Congress that has not repealed it has recognized it as a part of the general body of the law and as a rule of construction to be applied by the courts to acts passed by it, as much as if it had ben re-enacted by such Congress. The Congress of 1906 so recognized it. They knew that in the hurry