Mahoney v. State
| Decision Date | 25 October 1895 |
| Parties | MAHONEY v. STATE |
| Court | Wyoming Supreme Court |
Information filed in District Court November 22, 1893.
ERROR to District Court for Johnson County, HON. WILLIAM S. METZ Judge.
John Mahoney was convicted in the district court for unlawfully removing scabby sheep. He prosecuted error. Pending proceedings in error the statute under which the conviction was had was repealed. Thereupon a motion was made for the discharge of the said Mahoney, and the dismissal of all proceedings in the case for the reason that the statute under which defendant was being prosecuted had been repealed, and that, therefore, no jurisdiction, warrant or authority of law now rests in either the district or Supreme Court to take any further steps in the matter The motion was sustained. The facts are further stated in the opinion.
Charles H. Burritt, and C. H. Parmelee, for plaintiff in error contended that the Supreme Court had no power to affirm the judgment, or to do anything else than order the plaintiff in error discharged. That the repeal of the statute did away with it completely, and cited the following authorities
The plaintiff in error was convicted in the district court of Johnson County under an information in two counts, one for the unlawful removal of scabby sheep from one place to another in Johnson County and one for the removal of such diseased sheep from Natrona County to Johnson County. He was fined in the sum of two hundred and fifty dollars, and prosecuted proceedings in error in this court, the petition in error, transcript and bill of exceptions having been filed in this court November 30, 1894. The statute under which the criminal proceedings were instituted in the court below, Chap. 31, Laws 1890-91, was repealed in express terms, without a saving clause, by Chapter 125 of the Laws of 1895, which also repealed all acts and parts of acts inconsistent with it, and which took immediate effect upon its approval, March 2, 1895. The plaintiff in error moves for a dismissal of the case and all proceedings thereunder and for the discharge of the defendant because the act under which the defendant was convicted was repealed, without keeping in force pending past prosecutions under such repealed statute. This motion was submitted upon the brief of counsel for the plaintiff in error, the attorney-general not desiring to file any brief on the part of the State. So far as the case at bar is concerned, the statute under which the defendant below was convicted, made unlawful the removal of scabby sheep from one county to another, or from one place to another within any county, without a written certificate of the sheep inspector, except to a dipping corral with the consent of all sheep owners on the route traveled. The punishment provided for a violation of the provisions of the section of the act under consideration was a fine not less than $ 250 nor more than $ 1,000. Chap. 31, Laws 1890-91, Sec. 8. The repealing statute creates a new law on the subject, and in relation to the matter of the moving of diseased sheep, provides that the owner of unsound sheep or sheep infected or affected with scab or any infectious or contagious disease, shall obtain from the inspector, a traveling permit, which shall be granted only for the purpose of moving said sheep to some place where they may be treated for disease; and that "no such sheep shall be moved until such permit shall have been obtained." The penalty provided for the violation of these provisions is a fine of not less than $ 500 nor more than $ 1,000, and the recovery in a civil action of thrice the amount of damages direct and consequential sustained by any party injured by reason of the moving of the diseased sheep. Chap. 125, Laws 1895, Sec. 15. The statutes are essentially different, the new one permitting no removal of diseased sheep at all, except upon the permission of the sheep inspector, and then only for the purpose of treatment for the disease, and providing a greater minimum penalty than the former act, while the former statute provided that scabby sheep may in effect be removed from place to place in the county or from one county to another, with the permission or "certificate" of the inspector, or without obtaining his certificate, to a dipping corral, with the written consent of all sheep owners along the route. This statute repealing the former one does not, then, contain a substantial re-enactment of the provisions of the old act, so that a suit or prosecution brought under the old statute may be finished under the new act. The new statute does not reenact the old one either as to the affirmance of the former law in its main provisions defining the offense under consideration, or in the quantum of punishment, but repeals in express terms the former law and every part of it, and enacts, so far as defining an offense is concerned, substantially a new provision, with an enlarged minimum of punishment, and nowhere saves prosecutions under the former statutes. The statute in relation to the offense of unlawfully removing diseased sheep from point to point, being a penal statute and relating to the punishment of a misdemeanor defined by its terms, and not to methods of procedure, must be held to act prospectively, and can not have a retroactive effect, as the punishment is increased by enlarging the minimum of the fine provided from $ 250 to $ 500, and as a new and different offense is created.
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