Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1865-02-04
Important Case under the ENROLL
ment Law.
In the Circuit Court, for the Northern Distric
of Ohi0.

In the Circuit Court, for the Northern District
Of Ohio.
The United States VS.. Asa Freeman-In-
dictment for resisting an enrolling officer.
The defendant was Indicted under the 25tA
section of the act of Congress, passed March
Sd, 1868, for resisting and obstructing an en-
rolling officer. He now moved to quash
the Indictment on the following grounds:
First. The 25th sec. of the act of March Sd,
1868, does not relate to an enrolment under
the act or make resistance to an enrolling
officer criminal.
Second. If said section does relate to an
enrolment, or make resistance to an enroll
ing officer criminal, it has, to that extent,
been repealed by the act OF February "a,
1854.
The motion was argued by Judge Hurd
for the defendant, and by the District At
torney for the United States. The authori-
ties cited, are referred to in the opinions of
the Court.
WILSON, J. Different opinions have been
held as to the true construction of the 25th
section of the act OF March 3D., 1868. The
draft is undoubtedly the leading object OF
the act, but the enrolment, provided for in
the same act, is an indispensable prere-
quisite OF the draft, and it has seemed to
some that resisting the enrolment, without
which no draft can be made, was resisting
a service in relation to" the draft, and
therefore within the words as we'll as the
evident spirit of the act.
1t is unnecessary, however, to reconsider
now the views heretofore expressed by this
Court on this question, for, assuming that
this section does relate to the enrolment
and makes resistance to an enrolling officer
criminal, it has been so repealed by the act
of February oath, 1854, that this prOsecu-
ton cannot, according to well settled prin-y
ciples, be further maintained. On the above
presumption, the offense of which the
defendant stands charged, is by the act of
March 3D., 1868, punishable by fine not ex-
ceeding five hundred dollars, or by impris-
onment not exceeding two years, or by
BOTH.
BY the 18th section of the act of February
"a, 1854, the offense is expressly provided for,
and made punishable by fine not exceeding
five thousand dollars, or imprisonment not
exceeding five years, or by both. This
change in the grade of punishment creates
an unquestionable inconsistency between
the two acts so far as this offense is con-
cerned, and, by implication, repeals SO much
of the act Of March 3, 1868, as relates to the
offense in question.
Rex VS.. Gator, 5 Burrows 20 N. c.; Rex
VS.. Davis, l Leach, Cas-. 306; Nichol VS..
Squires, Pick. r. 1853; Commonwealth VS..
Kimball, 81 Pick. r. 375.
But the matter is not left to implication
merely. BY the 9th section of the act OF
February "a, 1864, SO much of the act of
March 8, 1854, as is inconsistent with its pro-
visions, Is expressly repealed, ioitbom any e1-
ception or sduing clause achdtever. The effect
ofthisrepeal is to leave the act OF the defend
ant, committed on the 9th of June, 1868, as
charged in the Indictment, without any law
to punish it; and, consequently, to put an
end to this prosecutions, for 1t is general
rule, that the repeal of a law creating an
offense, whether 1t be felony or misdemean-
or, sweeps away all prosecutions against it,
without q saving clause for that purpose.
Wash. G. G. Rep. 81.
The reason of this rule Is, that there can
be no legal conviction for an offense unless
the act be contrary to law at the time 1t ia
committed; nor can there ebejudgmentunless
the law is In force at the time Of the indict-
ment and judgment. II the law cease TO OPP
crate by its own limitation, or by repeal
at any time before judgment, no judgment can
be gipen. This rule always prevails as 1t re-
CARDS penalties, either civil or criminal
unless the repeating clause makes 1t operate
prospectively, only preventing the opera