Com. v. Louisville & N.R. Co.

• Decision Date: 25 September 1919
• Docket Number: 622-624.,547-549
• Citation: 186 Ky. 1,215 S.W. 938
• Parties: COMMONWEALTH v. LOUISVILLE & N. R. CO. (SIX CASES).
• Court: Kentucky Court of Appeals

215 S.W. 938

186 Ky. 1

COMMONWEALTH v. LOUISVILLE & N. R. CO. (SIX CASES).

Nos. 547-549, 622-624.

Court of Appeals of Kentucky.

Sept 25, 1919

Rehearing Denied Dec. 19, 1919.

Appeals from Circuit Court, Barren County.

Indictments and petitions on behalf of the Commonwealth, returned and filed against the Louisville & Nashville Railroad for the illegal transportation of intoxicating liquors, were dismissed, and the Commonwealth appeals. Judgments dismissing the indictments affirmed, judgments dismissing the petitions reversed, and actions remanded.

C. H Morris, Atty. Gen., D. O. Myatt, Asst. Atty. Gen., and J Lewis Williams, Com. Atty., of Glasgow, for the Commonwealth.

B. D Warfield, of Louisville, J. C. Sims, of Bowling Green, and W. L. Porter, of Glasgow, for appellee.

HURT J.

The above-styled six actions were prosecutions in the name of the commonwealth of Kentucky against the Louisville & Nashville Railroad Company, for alleged violations of subsection 2 of section 2569b of Kentucky Statutes, and are heard and decided together. The first three named were indictments returned against appellee on the 21st day of March, 1918, and the remaining three were penal actions, filed on the 25th day of October, 1918. The offenses charged in the indictments were alleged to have been committed on December 4, 1917, December 29, 1917, and January 16, 1918, respectively, and the offenses, charged in the penal actions were alleged to have been committed on the same dates, respectively. To each of the indictments, and to the petition in each of the penal actions, a general demurrer was interposed, which being sustained in each instance, the actions were dismissed, and the commonwealth of Kentucky has appealed from the judgment in each action.

(a) The particular violation of the statute, of which the appellee was accused in each of the indictments, was the unlawful transportation and delivery to a consignee, in a territory wherein the sale of intoxicating liquors was prohibited by law, of such liquors in a package whereon was the statement that the liquors were for the personal and family use of the consignee, when the statement was false and known to be so by the appellee. The violation by appellee of the statute, alleged in each of the penal actions, was the transportation and delivery of intoxicating liquors to a consignee, who was neither a distiller, brewer, nor wholesale dealer, when the package containing the liquors did not have thereon the name and address of the consignor, the name and address of the consignee, and the statement that such liquors were for the personal and family use of the consignee, or for medicinal, mechanical, chemical, scientific, or sacramental purposes. After the time of the alleged commission of these offenses, on the 5th day of March, 1918, the General Assembly enacted, without an emergency clause, the act of that date which is subsections, 1, 2, 3, 4, 5, and 6 of section 2569a of Kentucky Statutes, vol. 3, and which worked a repeal of subsection 2 of section 2569b, except as its provisions related to licensed druggists, and it is now earnestly insisted that, the statute which created the offenses and denounced the penalties for violations of it, having been repealed, that there is no law now in force upon which the court could base a judgment against appellee, and that the repeal of the statute carried with it a repeal of the penalties incurred for its violation, and hence the demurrers were properly sustained.

This contention is sound, if the common-law rule was in force in this state. According to the common law, the repeal of a statute repealed also the power and authority of a court to enforce a penalty incurred under the statute, and no penalty could be imposed or enforced for a violation of a statute which occurred before its repeal. The reason given for this doctrine is that, the statute which imposed the penalty having been repealed, there is no authority existing for its imposition.

This rule of the common law has been modified by section 465, Kentucky Statutes, and the construction heretofore placed upon it by this court. Of course, that statute is only a legislative act, and can be repealed by the Legislature at any time; but so long as it is unrepealed, according to the well-known rule of statutory interpretation, it must be construed along with any repealing statute, and full force and effect given to its provisions, where they are not contradictory of the provisions of a repealing statute. The statute (section 465, supra), has been in force for many years, and is as follows:

"No new law shall be construed to repeal a former law as to any offense committed against the former law, nor as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect."

When the General Assembly enacts a statute, which repeals one which makes its violation an offense, with a penalty therefor, it must be presumed that the repealing sta...