(91 Hun, 152.)

#### PEOPLE v. MADILL et al.

(Supreme Court, General Term, Third Department.

December 28, 1895.)

1. Statutes—Repeal by Implication—Omissions erom Amending Act.

Pen. Code, § 15, makes a misdemeanor punishable by fine or imprisonment. Section 41 declares persons who bribe voters at political caucuses or conventions “guilty of a misdemeanor.” Laws 1895, c. 721, amended section 41 by adding the words, “punishable by imprisonment for not more than one year.” *Held,*that said section 41 was repealed, in so far as it permitted a fine.

2. Criminal Law—Punishment—Amendment oe Law.

Statutory Construction Act (Laws 1892, c. 677), .§ 31, provides that the repeal of a statute shall not affect the punishment for a crime committed before the repeal goes into effect; and Pen. Code, §§ 2-17, 19, provide that nothing contained in the Code shall apply to offenses committed before it took effect. Pen. Code, § 41, made it a misdemeanor to bribe voters at certain caucuses or conventions, and section 15 makes a misdemeanor punishable with fine or imprisonment. Section 41, in so far as it permitted a fine, was impliedly repealed by an amendment (Laws 1895, c. 721) providing for imprisonment only. *Held,*that the amendment did not affect the punishment for bribery committed before it took effect, though the indictment was found after that time.

Appeal from court of sessions, St. Lawrence county. *535Thomas N. Madill and Oscar England were indicted for the crime of bribery. A demurrer to the indictment was sustained, and the people appeal.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Ledyard P. Hale, for the People.

C. A. Kellogg, for respondents.

PUTNAM, J.

Section 41 of the Penal Code, in force prior to September 1, 1895, provided that “any person who, * * (2) 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 1895, which took effect September 1st, it was enacted that “section 41 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.”

Defendants were indicted on October 8, 1895, under the provisions of section 41, supra, for the alleged offense of bribery, committed on the 21st day of August, 1895. Under the law in force when the offense was committed, he was punishable, under the provisions of section 15 of the Penal Code, by fine or imprisonment. Under the amendment of 1895, in force when the indictment was found, the punishment for the offense was imprisonment only. It has been held that where a statute has been amended, as in this casé, the portions omitted or altered are abrogated, and cease to form a part of the statute, from the time the new act takes effect. Moore v. Mausert, 49 N. Y. 332; In re Prime, 136 N. Y. 347, 34 N. E. 1019. The court below held that, as the statute in force when the indictment was found prescribed a different punishment from that fixed by the law at the time the offense was committed, the principle established in Hartung v. People, 22 N. Y. 95, applied; that the defendant could not be punished under the repealed statute in force when the crime was alleged to have been committed, nor under the new law existing when the indictment was found. The case of Mongeon v. People, 55 N. Y. 613, cited by appellants’ counsel, cannot be held to sustain his contention. The effect of that decision was not to change the rule established in Hartung v. People, but rather to reaffirm the same doctrine. In the Mongeon Case the repealed 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 committed, 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 Hartung Case, and also in this case, and a repeal effected by a new statute, applicable by its terms to future offenses.

*536We are called upon to determine whether, in this case, the repealing act in question had the effect of abrogating section 41 of the Penal Code as far as 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 41, 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. People, 47 N. Y. 330-338. Chapter 721 of the Laws of 1895, which amended section 41 of the Penal Code, was enacted by the legislature May 23, 1895, and, as we have seen, went into effect on September 1st, thereafter. It is difficult to believe that the legislature, in fact, intended to relieve, by the act, all persons from punishment doing acts in violation of the provisions of section 41 as then in force, both before and after the passage of the amendatory act, unless indicted and tried before September 1, 1895. It is proper to bear in mind that the amendment effected by chapter 721, supra, was of a section of a Code which provided that “nothing contained in any provision of this Code applies to an offence committed or other act done at any time before this Code takes effect. Such an offence must be punished according to and such act must be governed by the provisions of law existing when it is done or committed in the same manner as if this Code had not been passed.” Pen. Code, §§ 2-17, 19. It is held in Smith v. People, 47 N. Y. 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 the 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 offences 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 Code by chapter 721, supra?

Our attention is called to the provisions of chapter 677, Laws 1892, known as the “Statutory Construction Act.”

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.”

*537The legislature, therefore, by the act of 1892, laid down a rule of statutory construction applicable to all future statutes. The act did not attempt to interfere in any manner with future legislation, but simply prescribed a rule of construction applicable when not inconsistent with the general object of the subsequent statute, or the language construed or other provision of the repealing law indicating a different intent. I think the act of 1892 may be properly considered on the question of the intent of the legislature of 1895 in amending section 41 of the Penal Code. The predecessor of that legislature had in 1892 enacted that the repeal of a statute shall not affect the liability to punishment for a crime committed before the repealing act takes effect, but that such crimes may be punished as if the repeal had not been effected. The act of 1892 was not binding upon the legislature of 1895. That legislature could give any repealing act such force and effect as it desired. But, in the absence of anything in the statute indicating a contrary intent, I think the legislature, in the amendatory act of 1895, should be deemed to have intended that statute to have the force and effect as provided in the rule adopted by it in 1892.

It was held in Re Howe, 48 Hun, 235, and 112 N. Y. 100, 19 N. E. 513, that the act of 1830 (which provided that a law passed by the legislature, unless a different time is prescribed therein, shall take effect on, and not before, 20 days after its final passage, as certified by the secretary of state) controlled 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 30th. Had it not been for the statute of 1830, the act considered in the case cited would have taken effect on the date of its passage. 1 Kent, Comm. 454-457. 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 a rule adopted by the legislature in 1830, unless the legislative intent to do so is 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 a repealing statute. The question is as to the legislative intent. I think the legislature must be deemed to have intended the act of 1895 to be subject to the rule of construction it had enacted in 1892.

The learned counsel for respondents calls our attention to the remarks of Allen, J., in Mongeon v. 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 obiter. The court held in that case that the act of December 1Ó, 1828, related solely to the acts repealed by it, and the effect of the Revised Statutes then *538adopted upon the punishment and proceeding 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. So it was held in Laundering Co. v. Hahlo, 105 N. Y. 234-243, 11 E. E. 500, that the provisions of the act of 1828 related 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 remarks 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. Railway Co., 145 N. Y. 581, 40 N. E. 240, that, while holding that the general rule prescribed in the statutory construction act was not applicable to a law changing the practice in an action, he assumed that such rule, in a proper case, would operate upon retrospective legislation.

I conclude, therefore, although with some doubt, that the legislature, in enacting chapter 721, Laws 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 when the act took effect.

The judgment should be reversed, and demurrer overruled.

MAYHAM, P. J., concurs in result. HERRICK, J., concurs.