Grant v. Baltimore & O.R. Co.
| Decision Date | 19 November 1909 |
| Parties | GRANT v. BALTIMORE & O. R. CO. |
| Court | West Virginia Supreme Court |
Submitted February 16, 1909.
Rehearing Denied Jan. 11, 1910.
Syllabus by the Court.
A later statute, covering the whole subject-matter of an earlier one not purporting to amend it, and plainly showing it was intended to be a substitute for the earlier act, works a repeal of such earlier act by implication, even though the two are not repugnant in the usual sense of the term.
In such case, inconsistent intent is disclosed by the two acts considered as entireties, but there may be no repugnancy between words, phrases, or clauses considered as such.
A statute, prescribing a new penalty for an old offense, does not destroy the latter nor create a new offense, but in providing a new penalty it impliedly repeals the old penalty and, to that extent, modifies the antecedent law of the subject-matter.
A later statute, imposing a fine in favor of the state for violation of provisions of an earlier one, which imposed a penal pecuniary liability in favor of the aggrieved party, but none in favor of the state, for the same unlawful act, and disclosing, by its title and provisions, intent to deal fully, comprehensively, and exclusively with the subject of punishment for such offense, and not merely by way of amendment, repeals the penal clause of such earlier statute by implication.
As none of the several editions of the Code of this state, other than that of 1868, constitute revisions or re-enactments of the statutes, publication in them of a statute, repealed by implication or otherwise, does not revive it, nor give it force and effect in any way.
Error from Circuit Court, Wetzel County.
Action by Arthur Grant against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
J. W. Davis and Thos. P. Jacobs, for plaintiff in error.
John Ross, Jr., and J. Edward Law, for defendant in error.
The complaint of the Baltimore & Ohio Railroad Company, on a writ of error to a judgment against it in favor of Arthur Grant rendered by the circuit court of Wetzel county, in an action of debt, for the recovery of three $500 statutory penalties, for passenger fares, exacted or taken in excess of the rate prescribed by law, raises, among others, the following questions, as the case is disclosed by the briefs filed: (1) Whether a certain portion of chapter 54 of the Code of 1899, namely, section 82cV, constituting section 2475 of the Code of 1906, is repealed by chapter 41, p. 226, of the Acts of 1907; (2) if so, whether the right of action given by said section 82cV was destroyed by the repeal of said section, there being no saving clause in the act of 1907; and (3) whether section 9 of chapter 13 of the Code of 1899 (section 285 of the Code of 1906), is a general saving clause, applicable to civil actions or rights of recovery, accrued under penal statutes before repeal thereof.
The sections of chapter 54, constituting the subject-matter of the act of 1907, first appeared in chapter 227, p. 710, of the Acts of 1872-73. The act of 1907 is a general independent act, not one amending the then existing law by sections, nor referring, in express terms, to the act of 1872-73. It is entitled "An act relating to and regulating passenger rates upon railroads in the state of West Virginia, and prescribing penalties for the violation thereof." It prescribes the uniform rate of two cents a mile on all railroads 50 miles long and over, operating in the state. It then provides as follows: "Any railroad company which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by this act, shall be fined for each offense not less than fifty dollars nor more than five hundred dollars." The repealing clause reads as follows: "All acts or parts of acts inconsistent herewith are hereby repealed." The old law classified railroads according to their gross annual earnings per mile, making four classes, and prescribed the rates which might be charged by railroads of each class. Section 82cV contained this provision: "Any railroad corporation which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by this act, shall be liable to the party aggrieved in the sum of five hundred dollars, and the same may be recovered, together with all costs of suit and a reasonable attorney's fee, to be taxed by the court in an action of debt in any court having competent jurisdiction."
Of course, the provisions of the act of 1872-73, fixing rates, were repealed by the act of 1907, for the rates prescribed in the two acts are entirely different and inconsistent. N. & W. Ry. Co. v. Pinnacle Coal Co., 44 W.Va. 574, 30 S.E. 196, 41 L.R.A. 414. But the question raised here is whether the penal provision of that act has been repealed by implication. Observance of another statute-- chapter 67, p. 96, of the Acts of 1879, constituting section 82cXVa of chapter 54 of the Code of 1899 (Code 1906, § 2484)--suggests that the penal section of the Acts of 1872-73 was repealed by it at a date much earlier than that mentioned in the briefs filed. If so, it is unnecessary to consider any of the argument relating to the effect of section 9 of chapter 13 of the Code, for the repeal of that provision took place long before the occurrence of the matters complained of in the declaration. As, in this view of the case, no right of action ever accrued to the plaintiff, a saving clause would avail him nothing. The act of 1879 is entitled, "An act prescribing penalties for charging, demanding or receiving unlawful charges for the transportation of passengers and freight upon railroads," and it makes every such act a misdemeanor, inflicting a penalty of not less than $100 nor more than $500. Prior to its passage, charging, demanding, or receiving compensation in excess of the rates fixed by law did not impose liability to the state in any sum of money. The sole money penalty inflicted was in favor of the injured party; the act of 1872-73 giving to the passenger and to the injured shipper separate rights of action for penalties. That these penalties were not intended, primarily, for compensation, is entirely clear, because they were disproportionate to the injury in almost every case. Compensation for loss of money, according to the standard recognized by courts everywhere, is measured by the money unlawfully taken and the interest thereon. The sums so authorized to be recovered were, in fact and in law, penalties, and were intended as punishment, to be inflicted at the option or instance of the party aggrieved, as a means of compelling obedience to the law prescribing rates; the Legislature deeming this an ample provision for that purpose. The act of 1879 deals with the same subject. Tested by its title, as well as its provisions, it is full, comprehensive, and complete, and must be deemed to have been intended by the Legislature as a substitute for all other statutes covering that precise subject. There is nothing in the act which imports an intention to supplement the provisions of the act of 1872-73. There is no reference to it, either in the title or elsewhere. It is an independent general provision, covering the subject fully and completely. Intent to give it such effect is indicated by the last clause, saying: "Nothing in this act shall be so construed as in any manner to interfere with or protect such company or corporation against any proceedings for a forfeiture of its charter or chartered rights." This provision saves the benefit of section 15 of the act of 1872-73, providing for forfeiture of the charter of any railroad corporation for willful violation of the provisions of that act, which related almost exclusively to charges for carrying passengers and freight. This saving of one penal clause in the old law signifies knowledge and belief on the part of the Legislature that, without it, the act would be construed as having repealed all such provisions. The act of 1879 affected nothing in the act of 1872-73 except the penal provision thereof, for nothing other than the creation of a public offense and the imposition of punishment therefor is included in its title or its provisions. The rates prescribed by the old act were left unaffected. The repeal extended only to the matter of penalties, just as in the case of the statute involved in Commonwealth v. Pegram, 1 Leigh (Va.) 569, and Commonwealth v. Wyatt, 6 Rand. (Va.) 694.
The principle applied here has been stated by the Supreme Court of the United States in the following terms: "Where the later of two acts covers the whole subject-matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act such later act will operate as a repeal of the earlier one, though the two are not repugnant." District of Columbia v. Hutton, 143 U.S. 18, 12 S.Ct. 369, 36 L.Ed. 60. This court in Herron v. Carson, 26 W.Va. 62, has stated it in these terms: "A subsequent statute revising the whole subject-matter of a former one and evidently intended as a substitute for it, though it contains no express words to that effect, must, on principles of law as well as in reason and common sense, operate a repeal of the former law." It has been applied by this court in other cases. State v. Harden, 62 W.Va. 313, 58 S.E. 715, 60 S.E. 394; State v. Mines, 38 W.Va. 125, 18 S.E. 470. Scores of additional cases of the same class could be enumerated. See United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; Eckloff v. District of Columbia, 135 U.S. 240, 10 S.Ct. 752, 34 L.Ed. 120; Norris v. Crocker, 13...
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