People v. England

Section 11 of the Penal Code as in force prior to September 1, 1895, provided that “Any person who, * * * by bribery, menace or other corrupt means, directly or indirectly attempts to influence the vote of any person entitled to vote at such caucus or convention, * * * is guilty of a misdemeanor.”

By chapter 721, Laws of 1895, which took effect September first of that year, it was enacted that “ section 11 of title 5 of the Penal Code is hereby amended so as to read as follows: ” The amendment was by adding after the words “ is guilty of a misdemeanor,” the words “ punishable by imprisonment for not more than one year.”

The defendants were indicted on October 8, 1895, under the provisions of section 11 (sujora), for the alleged offense of bribery committed on the 23d day of August, 1895.

Under the law in force when the alleged offenses were committed they were punishable under the provisions of section 15 of the Penal Code by fine or imprisonment or by both. Under the amendment of 1895, in force when the indictments were found, the punishment for the alleged offenses was by imprisonment only.

It has been held that where a statute has been amended, as in this case, the portions omitted or altered are abrogated and cease to form a part of the statute from the time tire new act takes effect. (Moore v. Mausert, 49 N. Y. 332 ; Matter of the Estate of Prime, 136 id. 317.)

The case of Mongeon v. The People ( 55 N. Y. 613 ), cited by the appellant’s counsel, cannot be held to sustain his contention. The effect of that decision was not to change the rule established in Hartwig v. The People {supra), but rather to reaffirm the same doctrine. In the Mongeon case the'repealing statute referred to was, by its terms, applicable only to those who should thereafter commit the prohibited offense. In his opinion Allen, J., states that if the repealing act had been general in its terms, and had not been restricted to offenses thereafter eommittecl, it might have operated as a repeal of the old law as applicable to offenses committed prior to the repealing act, and he notices the distinction between a repeal by an amendment to a prior law, as in the Ilartung case and also in this case, and a repeal effected by a new statute applicable by its terms to future offenses.

"We pre. called upon to determine wherher, in this case, the repealing act in question had the effect of abrogating section II of the Penal Code, as far as it is applicable to offenses committed before such' act took effect, or whether the amended section should be deemed to relate only to future offenses, leaving section II, as before the amendment, to apply to acts done before the repealing law took effect. The question is as to the intent of the Legislature in enacting the amendment in question. (Smith v. The People, 47 N. Y. 330 -338.)

Chapter 121 of the Laws of 1895, which amended section II of the Penal Code, was enacted by the Legislature May 23, 1895, and, as we have seen, went into effect on September first of that year. It is. difficult to believe that the Legislature in fact intended by that act to relieve all persons from punishment doing acts in violation of the provisions of section 11, as then in force, both before and after the passage of the amendatory act, unless indicted and tried before

It is held in Smith v. The People (supra, 339) that on the question of the intent of the Legislature in enacting a statute,- acts in pari materia passed before or after, and contemporaneous legislation, although not precisely in pari materia, may be considered. So I think, in this case, the fact that the repeal in question was effected by an amendment of a Code containing the above provision may be properly considered. Chapter 721 (supra) had the effect of repealing to a certain extent section 41 (supra). The amended section created by the new statute of 1895 was incorporated into a Code which provided that “ nothing contained in any provision of this Code applies to an offense committed * * * before this Code takes effect.” Can the Legislature, in 1895, be deemed to have intended to apply this provision to the new section incorporated into and made a part of the Penal Code by chapter 7-21 (si/pra)?

Our attention is called to the provisions of chapter 677, Laws of 1892, known as “ the Statutory Construction Law.” Section 1 is as follows: “ This chapter shall he known as the statutory construction law, and is applicable to every statute, unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” Section 31 of the same act provides that “ the repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if. such repeal had not been effected.”

The Legislature, therefore, by the act of 1892, laid down a rule of statutory constraction applicable to all future statutes. The act

It was held in the Matter of Howe ( 48 Hun, 235 ; 112 N. Y. 100 ) that the act of 1828, which provides that a law passed by the Legislature, unless a different time is prescribed therein, shall take effect on and not before twenty days after its final passage, as certified by the Secretary of State, controls future legislation. In that case the act considered provided “ after the passage of this act all property which shall pass by will,” etc. The act was passed June 10, 1885. It was held that it did not take effect until June thirtieth. Had it not been for the statute of 1828, the act considered in the case cited would have taken effect on the .date of its passage. (1 Kent’s Com. 451, 454.)

The question in the case cited was as to the intent of the Legislature, in 1885, in enacting the law under consideration. It was held that the court would not presume an intent to change the rule adopted by the Legislature in 1828, unless the legislative intent to do so was expressed in unambiguous language.

The above authority shows that a Legislature may adopt a rule that will affect future legislation. So, I see no reason to doubt that it may provide as to when a repealing statute shall take effect, when such statute does not indicate a contrary intent. The Legislature in 1892 adopted a rule of construction yet in force. In 1895 it passed

The learned counsel for the respondents calls our attention to the remark of Allen, J., in Mongeon v. The People (supra), that the Legislature could not declare in advance the intent of subsequent Legislatures or the effect of subsequent legislation upon existing statutes. The remark quoted was entirely ohiter. The court held in that case that the act of December 10, 1828, related solely to the acts repealed by it and the effect of the Revised Statutes then adopted upon the proceedings under the statute so repealed. In other words, that the language of the act of 1828 did. not apply to the statute under consideration in that case. It was also held in Wiles Laundering Co. v. Hahlo & Others ( 105 N. Y. 234 -245) that the provisions of the act of 1828 relate only to the acts repealed by that statute and have no effect on subsequent legislation. Hence, as the act of 1828 did not relate to the statute construed in the Mongeon case, the remark above referred to of the distinguished judge who delivered the opinion of the court above quoted merely expressed his opinion. An examination of the act of 1828 will show the distinction between that statute and the one under consideration. The act of 1892, by its terms, is made applicable to all future statutes.

It will be seen from the opinion of Andrews, J., in Lazarus v. M. E. R. Co. ( 145 N. Y. 581 ) that, while holding that the general rule prescribed in the “ Statutory Construction Law ” was not applicable to a law changing the practice in an action, he assumed that such rule in a proper case would operate upon legislation which would otherwise be retrospective.

I conclude, therefore (although with some doubt), that the Legislature, in enacting chapter 721 of the Laws of 1895 acted with reference to the act of 1892, in which it had laid down a rule for the construction of statutes, and cannot be deemed to have intended that the amendment of section 41 of the Penal Code should apply to offenses committed before the act took effect.

The judgments should be reversed and the demurrers overruled.

Herrick, J., concurred; Mayham, P. J., concurred in result.

Judgments reversed and the demurrers overruled.