and confusion of amending and enacting statutes, in the pressure upon members of Congress, not only by reason of their having to consider all the various matters of legislation for a great nation, but also by reason of the exactions upon their time and attention as to many things not really pertaining to their legislative duties (and of this few who have not themselves been members of Congress can have any adequate appreciation), words and phrases might inadvertently, or by mistake, or possibly by design of those in and out of Congress having an interest in the particular matter legislated upon, find their way into acts repealing penal statutes which might by the application of the accepted and common-law rules of construction release from penalty those who had violated repealed acts; and it was for this reason they originally passed and have ever since recognized and kept upon the statute books section 13 as a part of the general body of the law binding upon the courts. They showed their wisdom in recognizing that they might make mistakes, or be careless or inadvertent, and thus produce mischievous results. And this section 13 was placed by them, and has ever since its enactment been kept by them, as a sentinel on guard to prevent such mischievous results. They said to the courts, as plainly as words could say: "You shall not, by implying from words that we do use words that we do not use, remove that sentinel." They said, as plainly as they could say, to the courts: "When you come to a repealing statute of this kind, you need not-indeed, you shall not-use those keys you have been accustomed to use to unlock the doors of our minds and ascertain our intention as to the release from penalty of those who have violated a repealed law. It will not be necessary for you to consider the niceties of grammatical construction as to whether a word is in the preterit or past tense, a participle, a connective, or a verbal adjective, in order to ascertain whether or not we intend to release violators of the repealed law. If we wish or intend to release such violators, we will say so in express words, and not leave it to be implied or inferred. If we insert clauses which we might have left out, or which we should have left out, you shall not from that infer that we intended to put in clauses that we did not put in, and thus release violators of the law."

In other words, all that is left to the courts is to say whether or not they find in the repealing act an express provision releasing offenders, or any class of offenders from prosecution under the repealed act. If no such express provision is found they are not released. I do not find any such provision in the repealing act now under consideration.

Judge Baker bases his opinion squarely upon section 13. In his opinion the result would be the same if the word "begun" meant only "already begun," as held by Judge Jenkins. Concurring fully, as I do, in his opinion, I quote it, because it is perhaps expressed in better language than I have myself been able to command. He says:

"Of course, one legislative body cannot tie the hands of its successors with respect to either subject-matter or method of subsequent legislation. But section 13, as I view it, evinces no such attempt. The Congress of 1871 was not addressing itself particularly to succeeding Congresses, but particularly to the courts. The courts are commanded by section 13 to treat a repealed

statute as still remaining in force for punishment of violations thereof, unless the court shall find that the repealing act expressly provides' that such repealed act shall not sustain any prosecution for its violation. The case of U. S. v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480, readily distinguishable from the present case in its facts, is useful here only as showing the Supreme Court's recognition (1) of what the common-law rule of construction was; (2) of the right of Congress to legislate upon the subject-matter of rules of construction; and (3) of the fact that Congress by the enactment of section 13 abrogated the common-law canon of interpretation, hereinabove stated, respecting the effect of a repeal. If section 13 is in force in its entirety, it is the court's duty to apply the rule of interpretation therein laid down, and to treat the penal statute of 1875 as being alive for the purpose of sustaining every proper prosecution for the enforcement of its penalties, unless the amendatory and enlarging act of 1903 be found to contain an express provision for the forgiveness of the unconvicted. There is no pretense. that the act of 1993 expressly so provides. If section 13 is in force in its entirety an argument along this line: The act of 1875 was superseded by the act of 1903. The effect of the supersession was to exempt all unconvicted violators of the act of 1875 from punishment, unless Congress has provided for their prosecution. Congress in the act of 1903 has only provided that unconvicted violators against whom prosecutions were begun before March 3, 1903, may be punished. Therefore unconvicted violators against whom prosecutions were begun after March 3, 1903, shall go free-is false. I think, because its keynote is the abrogated common-law rule of construction."

The contention, if it is so contended, that section 13 was partially repealed, by implication, by section 10, but only in so far as it related to prosecutions under the Elkins law of those who had not already been indicted, is, I think, fully met by what I have already said, and by Judge Baker, where he says:

"Has section 13 been repealed in whole or in part? That section furnished a complete enactment respecting one method of interpretation. Subsequent Congresses were left at liberty to legislate on that subject, as on every other within their constitutional right, and in any manner they might choose. They could amend or repeal the previous legislation. They could repeal it expressly or by implication, in whole or in part. No claim is made of an express repeal. No claim is made of a general repeal by implication. An argument is advanced, as I understand it, that section 13 has been partially repealed by implication (but only in its relation to the penal acts of 1875 and 1903), in this way: Section 13, in its application to the acts in question, provides that unconvicted violators of the act of 1875 against whom prosecutions were begun before March 3. 1903, may be punished, and also that unconvicted violators of the act of 1875 against whom prosecutions were begun since March 3, 1903. may be punished. The act of 1903 provides that unconvicted violators of the act of 1875 against whom prosecutions were begun before March 3, 1903, may be punished, but is silent respecting the fate of those unconvicted violators of the act of 1875 against whom prosecutions had not been begun by March 3, 1903. Therefore that part of the general law embodied in section 13 which by its terms would be applicable to the unconvicted violators of the act of 1875 against whom indictments were returned after March 3, 1903. has been impliedly repealed. And the maxim, 'Expressio unius est exclusio alterius,' is evoked as clinching the argument. It strikes me as a queer doctrine that silence should accomplish a repeal. It seems to me that, instead of adverting to the maxim quoted, which may properly be applied where one must choose between alternatives, attention should be given to those principles which declare that repeals by implication are not favored, that new legislation does not supersede the old by implication unless the new covers the whole subject of the old, and that the new may reaffirm (though reaffirmation is a needless work), amend, or supplant parts of the old without affecting the force and validity of those parts concerning which the new is silent."

I can only add that it seems to me queer that Congress should intend to accomplish such a repeal in such a manner. It is equivalent to saying that, although this rule of construction contained in section 13, and addressed to the courts, directs that the repeal of a statute shall not have the effect to release from prosecution unless the repealing act shall so expressly provide, still the courts can, although there is no such express provision in the repealing act, avoid that rule and accomplish what it was intended to prevent by construing by implication that rule out of existence. It is equivalent to saying that, if we cannot avoid the rule by implication or inference from the language contained in the repealing act, we can by implication or inference from that language get rid of the rule. It is equivalent to saying that, although Congress has placed this sentinel on guard to prevent just such releases, the courts can use the key therein forbidden to be used to knock down and put out of the way the sentinel. This, as with deference, I think, would be little less than a kind of judicial legerdemain. I cannot think that the courts can thus obviate a plain, positive, and unambiguous statute prescribing a rule of construction. Besides, I think that the contention is fully met by the Supreme Court of the United States in the case of Rosecrans v. U. S., 165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708, wherein the court says:

"Where Congress has expressly legislated in respect to a given matter, that express legislation must control in the absence of subsequent legislation equally express, and is not overthrown by any mere inferences or implications to be found in such subsequent legislation."

I have not been impressed by the argument drawn from the history of the legislation in reference to rates, rebates, and concessions. In that argument it was asserted that those laws were an evolution and that the Hepburn law was the final result of that evolution. It was asserted that the laws prior to the Hepburn law had been permitted to remain a dead letter upon the statute book. It was asserted that the Elkins law was a harsh and stringent law, subjecting those who had given or accepted rebates or concessions, not knowing that they were giving or accepting such rebates or concessions, to its penalties, and that Congress, recognizing this, amended and superseded that law by the Hepburn law; that by inserting the word "knowingly" in the Hepburn law it evinced its recognition of the harshness of the Elkins law; and that this throws light upon the repealing section of the Hepburn law, and strengthens the contention that it was the intention of Congress to release from prosecution under the former law those against whom prosecutions had not already been begun. In answer to this it might be said that it may well be questioned whether those laws had been permitted to remain a dead letter, but that, on the contrary, numerous efforts had been made and were being made to enforce them; and it might also be said that Congress did not recognize the harshness of the Elkins law by inserting in the amendment thereto the word "knowingly," but inserted that word for another and a very good reason. The punishment prescribed by the Hepburn law, amending and superseding it, is fine or imprisonment in the penitentiary for a term not exceeding two years, or both such fine and im

prisonment, in the discretion of the court. Does it not strike one with much greater force that the word "knowingly" was inserted because the offense had thus been made an infamous one? In view of what I have already said, if I am correct in the conclusion reached, this argument is without force, because it proceeds upon the assumption that we may by interpretation or inference ascertain the intention of Congress. in reference to the release from prosecution of those who had violated the repealed law.

But if we were permitted, in the face of section 13, to ascertain the intention of Congress by interpretation or inference, and for that purpose could look, if necessary, to the history of the legislation and of the times in which it was passed, as in that case I think we could (U. S. v. Union Pac. R. R. Co., 91 U. S. 72, 23 L. Ed. 224), it might be well for us, while we are considering, in the light of that history, what Congress intended to do, also to consider, in the light of that history, what Congress did not intend to do. I think that to any one at all familiar with that history it is well known that Congress at the time of the passage of the Hepburn law was seeking to enlarge and make more effective the powers of the Interstate Commerce Commission, and was seeking, not to make the laws in reference to rates and rebates and concessions less stringent, but more stringent, and was seeking, above all things, to prevent the Interstate Commerce Commission from being sheared of its powers, and the objects of the law nullified, by proceedings in court and the necessary delays incident thereto. I think that to any one at all familiar with the condition of the public mind or with the temper of Congress at that time it must be evident that Congress did not wish to release any one from the penalties of the laws theretofore in force, but, on the contrary, intended that all offenders against those laws should be prosecuted, and that no guilty person or corporation should escape. And I can conceive of no reason why Congress should wish or intend that those whose violations had been discovered and against whom prosecutions had already been commenced, even though they might be few in number, should be prosecuted to a conclusion and should suffer the penalties incurred, and that that much larger class of offenders, whose violations of the law had not been discovered and against whom prosecutions had not been begun, should be allowed to go free.

But, even if we are permitted, in the face of section 13, as to releases from prosecution by a repealing act, to ascertain by interpretation or inference the intention of Congress, we can, by following and applying an accepted rule of construction, as binding as that contained in the maxim, "Expressio unius est exclusio alterius," ascertain the intention of Congress and reconcile section 10 and section 13, and make them both stand together. Sections 15 and 16 of the interstate commerce act (24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]), as the same had been amended prior to the passage of the Hepburn act, prescribe the mode of procedure before the Interstate Commerce Commission and in the courts to enforce the provisions of that law. By the Hepburn act these sections are amended and superseded. It is contended by counsel for the government that the amendments to these sections refer only to civil procedure, and by counsel for the defendants that

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they refer in express terms to both civil and criminal procedure. But I think the result is the same if they refer to either or both. By a comparison of the provisions of the Hepburn act amending and superseding these sections of the former law, it is found that changes are made in the procedure therein provided for. Without following through every detail the amendments made in these sections by the Hepburn law, it will be sufficient to refer to only one.

The expediting act of February 11, 1903 (32 Stat. 823, c. 544 [U. S. Comp. St. Supp. 1905, p. 622]), entitled "An act to expedite the hearing and determination of suits in equity, and so forth," applied only to causes wherein the United States is complainant. By the Hepburn act its provisions are made applicable to all suits, no matter who is complainant, brought in any of the Circuit Courts of the United States against the Interstate Commerce Commission to enjoin, set aside, annul, or suspend any order or requirement of the commission, including the hearing on an application for a preliminary injunction, and are also made applicable to any proceeding in equity to enforce any order or requirement of the commission, or any of the provisions of the act to regulate commerce, approved February 4, 1887, and all acts amendatory thereof or supplemental thereto.

It is admitted by both sides-and, indeed, it is stated by counsel for the defendants to be the A B C of the law-that it is competent for Congress to make changes in the mode of procedure, and that the changes thus made would be applicable to and govern the procedure in all causes pending as well as in those thereafter commenced. This being the case, the amendments to the mode of procedure made by the Hepburn law would affect causes pending at the time of its passage as well as those thereafter brought. So that, if Congress wished, as to causes then pending, to continue in force the former provisions in reference to the procedure, it was necessary that they should make provision therefor. This, I think, furnishes us a key by which we can ascertain the intention of Congress when they inserted the words, "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," and it gives us a complete answer to the contention that, unless those words are construed as counsel for the defendants would have us construe them they are wholly meaningless and superfluous. Let us read section 10, in which these words occur, in connection with section 13, as the Supreme Court of the United States did in the Reisinger Case. The two, thus read together, would be as follows:

"That all laws and parts of laws in conflict with the provisions of this act are hereby repealed: Provided, that said repeal shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred thereunder, unless this act shall so expressly provide, and the same shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability; 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."

And let us remember always in this connection that it is the intention of Congress to release from prosecution that we are considering.