The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1907-01-04
Judge Landis Makes Ruling Q
Demurrer in ] Chicago Case.
DEFEATED ON EVERY POINT
Eight Indictments Sustained and Two
Dismissed on Technicalities.

might operate to suspend the act for a
period of time (and as to this I ex-
press no opinion) the questions pre-
sented by the demurrers to these in
dlctments are to be determined as if
postponement or suspension of the act
had not been attempted
After observing that the Elkins law
was repealed by the rate law and that,
unless there was a statute keeping
alive for future prosecution offenses
which had been committed against the
Elkins law prior to its repeal, the
court quoted section 13 of the revised
statutes of the United States, enact
ed in 1871.
'The repeal of any statute shall not
have the effect to release or extin-
guish any penalty, forfeiture or liabil-
ity incurred under such statute, un-
less the repeating act shall so ex-
pressly provide and for the purpose of
sustaining any proper action or prose-
cution for the enforcement of such a
penalty forfeiture or liability.
This law said the court, "has
been attacked here as an unwarrant-
ed attempt by the congress that enact
ed it to curtail the authority of sue
ceeding congresses by limiting in ad-
vance the effect to be given to their
enactments. Now, under our constitu-
ton, each congress is the equal in
point of power, of any predecessor or
successor. Therefore, no congress has
authority to draw in the boundaries of
the legislative domain to the embar-
rassment Of any other congress. But,
as I read section Is, this is not at
tempted. It is rather the substitution
of a new rule to be observed by the
courts in the construction Of statutes
thereafter to be enacted. 1t seems to
me that such new rule is no more an
impairment Of the legislative power of
succeeding congresses than was the
previously existing common law rule
an impairment of the power of preced.
ing congresses, and that congress had
the constitutional power to make the
change is plain. That any succeeding
congress may abrogate the new rule
and restore the old rule is equally
plain That, until such old rule is re-
stored, each succeeding congress in
tends that the courts shall be guided
by the new rule in giving effect to
other enactments, seems to me beyond
question.
"It is the duty of the court" said
Judge Lands, ito enforce the will
of congress as expressed in the writ
ten enactment. In the entertainment
Of that will, am not at liberty to ig-
more the ultimate object Of the law.
That object was the establishment of
uniform railroad rates, reasonable in
amount. The former law had failed to
achieve this and was therefore
strengthened. Instead of being wiped
off the books as having served its pur-
pose, additional and severe liabilities
were created and more drastic RENE
dies and penalties authorized. For the
offense with which defendant stands,
charged, the preceding Ellkins law pre-
scribed punishment only by fines. The
view entertained by the present con-
gress respecting this offense finds ex-
preston in the provision authorizing
the additional penalty Of imprison-.
nent. in the penitentiary. And the
court is asked to hold that this same
congress deliberately intended to par
don all indicted offenders, whose con-
duct it was, more than other causes
combined, that moved congress to en-
act the rigid and far reaching meas
ure of June 20.
"My opinion is that, whereas at COM
mon law, the repeal of penal stat
ute extinguished all penalties for Of
fenses against its provisions in the alb
sence OF an express saving clause, un-
der section IS the repeal OF penal
statute extinguishes no such penal
ties In the absence of any express ex-
tinguisaing clause, which the rate law
does not contain, and that the so-called
saving clause in section 10 was insert
ed for the sole purpose Of differently
prescribing the rule OF procedure that