Wilson v. Ohio & Mississippi Railway Co.

64 Ill. 542

• Court: Illinois Supreme Court
• Decided: September 15, 1872
• Status: Published

Opinion

Mr. Justice McAllister

delivered the opinion of the Court:

This action was brought to recover divers penalties alleged to have been incurred under the 38th section of the act entitled'“An act to provide for a general system of railroad in-corporations,” approved November 5. 1849.

Pending the action, and before trial, another act was passed upon the same subject, which went into force February 27, 1869.

Two questions are presented by this record for consideration: 1. Was the former of these statutes repealed by the latter? 2. If so, what was the effect of such repeal upon this action pending at the time?

First, then, as to the repeal. The statute of 1849 affixes to each violation the absolute and imperative ■ penalty of $50, while that of 1869 allows a latitude of discretion. The language is, “ under a penalty of not exceeding $100.” And by this latitude of discretion the penalty under the latter may be double that under the former.

It is a familiar rule, that every statute, is, by implication, a repeal of all prior statutes, so far as it is contrary and repugnant thereto, and that without any repealing clause.

In Rex v. Cator, 4 Burrows, 2026, the defendant was convicted for enticing artificers into foreign service. There were two statutes upon the same subject. That of 5 George I. c. 27, directed a fine not exceeding £100 and three months imprisonment, while the subsequent act, 23 George II. e. 13, inflicted a penalty of £500 and twelve months' imprisonment. Lord Mansfield held the former act to have been repealed by' the latter.

So, where an act prohibited an unlicensed person from selling rum, under a penalty of $20 for each offense, and a subsequent statute prohibited the same act on pain of forfeiting not more than $20 nor less than $10 for each offense, the former statute being absolute and imperative, and the latter allowing a latitude of discretion, it was Reid the two statutes were essentially and substantially inconsistent and that the former was repealed by the latter act. Commonwealth v. Kimball, 21 Pick. 373.

It is a general rule that, where a statute imposes a new penalty for an offense, it repeals, by implication, so much of the. former statute as established a different penalty. Sedgwick on Stat. and Const. Law, 125.

But the second section of the act of 1869 repeals the penalty of the act of 1849, so far as related to existing suits, by express language, thus: “ This act shall not apply to suits now pending under the section hereby amended, except that the penalty recoverable in such suits shall be not exceeding $100, instead of $50, as therein provided.”

These words leave no room for doubt that the intention of the law-maker was to repeal the 38th section of the act of 1849.

But, inasmuch as the act of 1869, allowing a latitude of discretion in respect to the penalty from one cent to $100, is inconsistent with and repugnant to that of 1849, directing a peremptory penalty of $50, it necessarily follows that the act of 1849 is repealed by that of 1869, except so far as saved by the second section of the latter act, but that such second section, which expressly purports to substitute a new punishment for violations of the act of 1849 already committed, and for which suits were then pending, must be regarded as an expost facto law, and void.

An ex post facto law is one which renders an act punishable in a manner-in whieh it was not punishable when it was committed, whether by personal or pecuniary penalties. Sedg. on Stat. and Const. L. 599; Fletcher v. Peck, 6 Cranch, 138

In only remains to consider the effect of the repeal of the 38th section of the act of 1849 under which this suit was brought, after its commencement and before judgment. That question is settled by the case of Van Inwagen v. The City of Chicago, 61 Ill. 31. There this court said: “The effect of a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.” Ray v. Goodwin, 4 Moore & Payne, 341; Dwarris on Stat. 676.

Upon this principle, the repeal of a statute puts an end to all prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal. Sedg. 130, and cases in notes.

We are of opinion the case was properly disposed of in the court below, and its judgment is therefore affirmed.

Judgment affirmed.

Mr. Justice Walker, Mr. Justice Scott, and Mr. Justice Craig : We do not concur in this opinion.