Green v. United States, 7215.

• Decision Date: 14 December 1933
• Docket Number: No. 7215.,7215.
• Citation: 67 F.2d 846
• Parties: GREEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F.2d 846 (1933)

GREEN v. UNITED STATES.

No. 7215.

Circuit Court of Appeals, Ninth Circuit.

December 14, 1933.

Clarence M. Jeffery, of Pocatello, Idaho, for appellant.

John A. Carver, U. S. Atty., and E. H. Casterlin and Frank Griffin, Asst. U. S. Attys., all of Boise, Idaho.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

While this case has been pending on appeal, the Eighteenth Amendment to the Constitution of the United States has been repealed by the adoption of the Twenty-First Amendment thereto. In our opinion, the adoption of the Twenty-First Amendment requires the reversal of the judgment for the reasons which will now be stated.

We take judicial notice of the President's proclamation that the thirty-sixth state at its constitutional convention held December 5th ratified the Twenty-First Amendment which by its terms repealed the Eighteenth Amendment to the Constitution. Dillon v. Gloss, 256 U. S. 368, 41 S. Ct. 510, 65 L. Ed. 994.

It is the universally recognized rule of American and English jurisprudence that the repeal of a criminal law before final judgment has been rendered deprives courts of power to proceed to judgment in pending criminal cases, unless there is a saving clause in the law. 1 Lewis' Sutherland, Statutory Const. (2d. Ed.) p. 285; 36 Cyc. 1228; 59 C. J. 1188, 1189, §§ 726, 727; Landen v. U. S. (C. C. A.) 299 F. 75; see People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L. R. A. (N. S.) 934, Ann. Cas. 1912B, 1148. This is true whether or not the matter is pending in the trial court or on appeal in a higher court. Cooley on Constitutional Limitations (4th Ed.) 477. Congress, because of this rule, has adopted section 13, Rev. St. (1 USCA § 29), as follows:

"§ 29. Repeal of statutes as affecting existing liabilities. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."

This section, of course, is controlling as to legislation by Congress, and, in the absence of conflicting provisions in the repealing law, is a general saving clause applicable to all legislation. In U. S. v. Reisinger, 128 U. S. 398, 9 S. Ct. 99, 32 L. Ed. 480, the Supreme Court held that the repealing statute should be construed as though section 13, Rev. St. (1 USCA § 29), were incorporated therein. This same principle is applied in Great Northern Ry. v. U. S., 208 U. S. 452, 28 S. Ct. 313, 316, 52 L. Ed. 567, where it is said: "* * * The provisions of § 13 are to be treated as if incorporated in and as a part of subsequent enactments, and therefore under the general principles of construction requiring, if possible, that effect be given to all the parts of a law, the section must be enforced unless, either by express declaration or necessary implication, arising from the terms of the law as a whole, it results that the legislative mind will be set at naught by giving effect to the provisions of § 13." See, also, Hertz v. Woodman, 218 U. S. 205, 30 S. Ct. 621, 54 L. Ed. 1001.

On this basis offenses committed before the repeal of a criminal law have been punished under the law existing at the time the crime was committed, but in the case at bar we are confronted with an entirely different situation. Congress has not repealed the law. The repeal of the Eighteenth Amendment has taken away the power of Congress to legislate on the subject of prohibition in so far as that authority was derived solely and exclusively from the Eighteenth Amendment. There is no saving clause in the repealing provision of the Twenty-First Amendment to the Constitution. The saving clause contained in the Revised Statutes (section 13 Rev. St.) is not applicable, and does not purport to be applicable, to the situation which is presented here, where the validity of the legislation is destroyed, not by repeal of the legislation by a legislative body having authority to enact the legislation and to continue it in force and effect so long as it chooses, but by withdrawing the authority to legislate at all. A similar situation was presented to the Supreme Court of California in City of Sonora v. Curtin, 137 Cal. 583, 70 P. 674, 677. In that case the trustees of a municipal corporation of the sixth class were authorized by the act of March 3, 1883, to license business of every kind for purposes of revenue and to impose penalties for nonpayment of such license fees. The Legislature of the state of California on March 23, 1901, amended section 3366 of the Political Code of California so as to limit the power of such legislative bodies of incorporated cities and towns to impose license fees on business "in the exercise of their police powers * * * and not otherwise." It was held that the effect of this legislation was to deprive the municipal authorities of power to exact license fees for revenue purposes or to exact penalties for the nonpayment thereof. This amendment was treated by the court as the equivalent of a repeal of the municipal ordinance, but, as a matter of fact, it was a repeal, not of the ordinance, but of the power to enact it, just as we have here a repeal of the constitutional provision authorizing Congress to enact prohibition legislation and not a repeal of the legislation enacted thereunder. The California Supreme Court in that case applied the general rule that repeal without a saving clause terminated the right to further prosecute past violations of the ordinance. The court said:

"The authority under which the ordinance for revenue purposes was passed being repealed, the ordinance is repealed as to all such purposes, and must be regarded as if it never existed, except for the purposes of those actions, which were commenced, prosecuted, and concluded while it was an existing law. * * *

"The right given the plaintiff in this case being penal in its nature, and the remedy created solely by statute, its enforcement is dependent upon the statute alone. It is still inchoate, and not reduced to possession nor perfected by final judgment. In such case the repeal of the statute destroys the remedy, unless the repealing statute contains a saving clause."

In Flanigan v. Sierra County, 196 U. S. 553, 25 S. Ct. 314, 316, 49 L. Ed. 597, the Supreme Court had under consideration a similar case involving the enforcement of a county ordinance enacted by the supervisors of Sierra county, Cal. The Supreme Court applied the principles announced in City of Sonora v. Curtin, 137 Cal. 583, 70 P. 674, supra, and Santa Monica v. Guidinger, 137 Cal. 658, 70 P. 732, and, with reference to the former case, said: "It is clear that the decision was not based alone on the penal character of the ordinance, but on the broader principle that, the power to enact it having been taken away, the power to enforce it was also taken away."

There are numerous decisions by the Supreme Court upon somewhat analogous situations. Chief Justice Marshall in U. S. v. The Peggy, 1 Cranch, 103, 110, 2 L. Ed. 49, December, 1801, had under consideration the judgment of the forfeiture of the schooner Peggy. The trial court had declined to adjudge the schooner to be a lawful prize, and the government had appealed from the decision. An appeal was taken to the Circuit Court. The latter court reversed the District Court and pronounced a judgment declaring the schooner Peggy and her cargo to be a lawful prize, and adjudged that she be condemned as forfeited to the use of the United States, etc. From this decision pronounced on the 23d of September, 1800, writ of error was taken to the Supreme Court. During the pendency of this appeal, a treaty was entered into between France and the United States with reference to the disposition of "property captured and not yet definitely condemned." The Supreme Court, speaking through Chief Justice Marshall, held that the vessel was not definitely condemned within the meaning of the treaty, and set aside the judgment. This decision was based on the proposition that the treaty became a part of the law of the land to be administered by the courts. In that connection Chief Justice Marshall said:

"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation."

In the case of The General Pinkney (Yeaton v. U. S.) 5 Cranch, 281, 282, 3 L. Ed. 101, a schooner which had been condemned by the Circuit Court of the District of Maryland for breach of an act of Congress prohibiting intercourse with certain parts of the Island of Santa Domingo, passed February 28, 1806 (2 U. S. Stat. 351), the act expired April 26, 1808, the ship was seized November 17, 1806, libeled January 5, 1807, and condemned in the District Court July 23, 1807. This condemnation was affirmed in the Circuit Court November 7, 1807, and appeal was taken to the Supreme Court of the United States. The court stated the problem presented by the record as follows: "The only question now argued was, whether this court could now affirm the sentence of condemnation, inasmuch as the law which created the forfeiture, and authorized the condemnation, had expired?"

Chief Justice Marshall stated the rule with reference to admiralty cases that the cases were to be heard in the appellate court de novo as if no sentence had passed, and said: "The court is, therefore, of opinion, that this cause is to be...