People v. Lowell, No. 148.

CourtSupreme Court of Michigan
Writing for the CourtFEAD
Citation250 Mich. 349,230 N.W. 202
PartiesPEOPLE v. LOWELL et al.
Decision Date07 April 1930
Docket NumberNo. 148.

250 Mich. 349
230 N.W. 202

PEOPLE
v.
LOWELL et al.

No. 148.

Supreme Court of Michigan.

April 7, 1930.


Error to Circuit Court, Kent County; Major L. Dunham, Judge.

Mary Lowell and Floyd Lowell were charged with violating the prohibition law, and to review a judgment quashing the complaint, the People bring error.

Affirmed.

Argued before the Entire Bench, except McDONALD, J.

BUTZEL and SHARPE, JJ., dissenting.

[230 N.W. 202]

Wilber M. Brucker, Atty. Gen., and Bartel J. Jonkman, Pros. Atty., and Arthur R. Sherk,

[230 N.W. 203]

Asst. Pros. Atty., both of Grand Rapids, for the People.

Wetmore & Bagley, of Hart, for appellees.


FEAD, J.

Act No. 114, Public Acts 1929, amends sections 2 and 51 of the Prohibition Law, Act 338, Public Acts 1917, and amendments, and adds section 51-a, ‘Said amended sections and added section to read as follows.’

Section 2 of Act No. 114 defines the offenses. In identical language it includes those defined in section 2 of Act No. 338, and makes no change in the section except to add four new offenses, ‘manufacture for sale,’ ‘import for sale,’ ‘transport for sale,’ and ‘possess for sale.’

Section 51 of Act No. 114 amends penal section 51 of Act No. 338 by increasing the maximum penalties from $1,000 fine and one year imprisonment to $2,000 fine and two years imprisonment, in the discretion of the court.

Section 51-a is new and provides a specific penalty for sales, before punishable under section 51, and for the new offenses created by Act No. 114, of a maximum fine of $2,000 and imprisonment of not less than one year nor more than four years.

Act No. 114 took effect August 28, 1929. It contains no repealing clause nor saving clause.

After August 28, the examining magistrate made return binding defendants over for trial in the circuit court on charges of violation of the prohibition law committed prior to that date. They moved to quash the complaint and for discharge on the ground that Act No. 114 had repealed section 51 of Act No. 338, and that there was no penal provision under which they could be punished. The court held with defendants, and the people have appealed.

The ruling of the circuit court is sustained by People v. Hiller, 113 Mich. 209, 71 N. W. 630, 631, in point, where this court said: ‘We understand the rule to be, in criminal cases, in the absence of a saving clause, that where the penalty is altered in degree, but not in kind, by increasing the punishment which may be imposed, the effect of enacting the increased penalty is to repeal the earlier provision.’

The rule is supported by authority in this country and England, unanimously in amendatory acts like that at bar so far as we can discover, except in State v. Broadway, 157 N. C. 598, 72 S. E. 987. So unequivocally and completely established in the jurisprudence of this country is the rule that, to avoid its operation through inadvertence, the federal government and many of the states have deemed it necessary to enact general saving clauses by Constitution or statute. The adoption of these clauses has resulted in a paucity of late authorities, but where they have not been enacted the rule still obtains. Some of the authorities declaring it are: Lewis' Sutherland Statutory Construction, § 252; Maxwell on Interpretation of Statutes (6th Ed. Eng.) 332; Brill Cyclopedia Criminal Law, § 78; Smith's Commentaries on Statutory and Constitutional Construction, § 776; 36 Cyc. 1096, 1230; 25 R. C. L. 930, 931; 88 Am. St. Rep. 292, note; United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153;In re Medley, 134 U. S. 160, 10 S. Ct. 384, 33 L. Ed. 835; United States v. Yuginovich, 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed: 1043;State v. McDonald, 20 Minn. 136 (Gil. 119); State v. Smith, 56 Or. 21, 107 P. 980;Flaherty v. Thomas, 12 Allen (Mass.) 428;Commonwealth v. Kimball, 38 Mass. (21 Pick.) 373;Nichols v. Squire, 5 Pick. (Mass.) 168;State v. Smith, 44 Tex. 443;Sugg v. Smith (Tex. Civ. App. May 1918) 205 S. W. 363;State v. Dixie Finance Co., 152 Tenn. 306, 278 S. W. 59;State v. McClellan (1923) 155 La. 37, 98 So. 748, 31 A. L. R. 527;Gorman v. Hammond, 28 Ga. 85;Garvey v. People, 6 Colo. 559,45 Am. Rep. 531; Carter v. Hawley, Wright (Ohio) 74; State v. Campbell, 44 Wis. 529;United States v. One Bay State Roadster (D. C.) 2 F.(2d) 616. See also Engle v. Shurts, 1 Mich. 150;Leighton v. Walker, 9 N. H. 59; Buckallew v. Ackerman, 8 N. J. Law, 48.

In the absence of a saving clause, the repeal of a criminal statute operates from the moment it takes effect, to defeat all pending prosecutions under the repealed statute. People v. Hiller, supra; Lewis' Sutherland Statutory Construction, 286; 36 Cyc. 1230; 23 L. R. A. (N. S.) 243, note; Aaron v. State, 40 Ala. 307;State v. Daley, 29 Conn. 272;Hartung v. People, 22 N. Y. 95;Higginbotham v. State, 19 Fla. 557;Keller v. State, 12 Md. 322, 71 Am. Dec. 596.

Mr. Justice BUTZEL recognizes the practical unanimity of authority, but advances reasons for disregarding the settled rule. We will pursue the subject further.

It must be appreciated and kept in mind that we are here concerned with an act which specifically amends a designated section of a general act ‘to read as follows.’ We are not dealing with independent and distinct statutes, as in Re Lambrecht, 137 Mich. 450, 100 N. W. 606, in which the rule of implied repeal is such irreconcilable repugnance that both cannot stand. In such case, if the new statute is given a purely prospective effect and the former is made retrospective, they are not irreconcilable. The rule governing such cases is well recognized. 16 C. J. 69; Lewis' Sutherland Statutory Construction, § 252; People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505;Porter v. Edwards, 114 Mich. 640, 72 N. W. 614;People v. Hobson, 48 Mich. 27, 11 N. W. 771.

[230 N.W. 204]

An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is: ‘Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there.’ 25 R. C. L. 907.

The new section takes the place of the old section in the original act. Webster v. Auditor General, 121 Mich. 668, 80 N. W. 705. It obliterates from the law not merely what is repugnant in the old section, but everything in such section which does not appear in the new act.

The rule settled in this state, and upon which People v. Hiller rested, is, as quoted in City of Mason v. Lansing Railway Co., 157 Mich. 1, 13, 14, 121 N. W. 466, 471: “Where an act or portion of an act is amended so as to read ‘in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby.’ It is perfectly clear that, as to all matters contained in the original enactment and not incorporated in the amendment, the latter must be held to have the effect of a repeal.”

In that case, and also in Detroit United Railway v. Barnes Paper Co., 172 Mich. 586, 138 N. W. 211, to the same effect, People v. Hiller was cited with approval. See also People v. Treasurer, 32 Mich. 260;Breitung v. Lindauer, 37 Mich. 217;Boughner v. City of Bay City, 156 Mich. 193, 120 N. W. 597; 36 Cyc. 1083; Brill Cyclopedia Criminal Law, § 29; Black Interpretation of Laws, 359; Lewis' Sutherland Statutory Construction, § 237, 238; 11 Ann. Cas. 472, note; City of Chicago v. Foley, 335 Ill. 584, 167 N. E. 779;Forbes v. Board of Health, 27 Fla. 189, 9 So. 446,26 Am. St. Rep. 63;Continental Oil Co. v. Montana Concrete Co., 63 Mont. 223, 207 P. 116;State v. District Court, 134 Minn. 131, 158 N. W. 798;Gibson v. Commonwealth, 209 Ky. 101, 272 S. W. 43.

There is no inconsistency between the rule in the Hiller Case and that in People v. Schoenberg, 161 Mich. 88, 125 N. W. 779, and Sage v. State, 127 Ind. 15, 26 N. E. 667, which involved amendatory acts. In those cases the offenses and penalties as stated in the amended statutes were incorporated unchanged in the amendatory acts. It is an established rule of amendatory acts that former provisions incorporated in the new act are deemed continued rather than repealed and enacted anew. 1 Lewis' Sutherland Statutory Construction, § 251; 11 Ann. Cas., note page 472; Merkle v. Bennington, 68 Mich. 133, 35 N. W. 846. This is because the Constitution requires the amendatory act to set up the whole section as amended. Matters carried over are not new legislation. Nevertheless, the old section is deemed stricken from the law, and the provisions carried over have their force from the new act, not from the former. Lewis' Sutherland Statutory Construction, 237.

It is plain from the authorities in this state and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely, and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment ‘to read as follows.’ It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the Legislature.

From a legal standpoint, the argument against the rule is that used in State v. Broadway, supra, and repeated in Cisson v. United States (South Carolina, C. C. A. 4th Circuit, January 14, 1930) 37 F.(2d) 330, to the effect that the question of implied repeal rests upon the intention of the Legislature and that increase in punishment provided in the new act indicates an intention of the Legislature not to grant amnesty to prior offenders, but rather to apply the new act to subsequent offenses and to continue the former law in force to cover violations committed before the new act took effect. The identical argument was made in People v. Hiller, supra,...

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  • Kalamazoo City Ed. Ass'n v. Kalamazoo Public Schools, AFL-CI
    • United States
    • Supreme Court of Michigan
    • 24 d2 Julho d2 1979
    ...the plain language of the legislature." Lahti v. Fosterling, 357 Mich. 578, 587-588, 99 N.W.2d 490, 494 (1959), quoting People v. Lowell, 250 Mich. 349, 354-356, 230 N.W. 202 Further, we note in regard to language specifying an appeal as of right that this Court had previously adopted the p......
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 d5 Setembro d5 1990
    ...the interplay between the common law abatement doctrine and the constitutional Ex Post Facto Clause. This Court held in People v. Lowell, 250 Mich. 349, 230 N.W. 202 (1930), that at common law the repeal 12 of a criminal statute barred the prosecution of all pending and subsequent cases aut......
  • People v. Kevorkian, Docket Nos. 99591
    • United States
    • Supreme Court of Michigan
    • 13 d2 Dezembro d2 1994
    ...former provisions. As we explained in Lahti v. Fosterling, 357 Mich. 578, 587-588, 99 N.W.2d 490 (1959): This Court in People v. Lowell, 250 Mich 349, 354-356 [230 N.W. 202] (1930), "An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independ......
  • Noble v. McNerney, Docket No. 86634
    • United States
    • Court of Appeal of Michigan (US)
    • 26 d5 Fevereiro d5 1988
    ...would not be changed. "We are controlled by our quotation from Black on Interpretation of Laws (1st Ed.), p. 36, in People v Lowell, 250 Mich 349, 359 [230 N.W. " 'Even though the court should be convinced that some other meaning was really intended by the lawmaking power, and even though t......
  • Request a trial to view additional results
53 cases
  • Kalamazoo City Ed. Ass'n v. Kalamazoo Public Schools, AFL-CI
    • United States
    • Supreme Court of Michigan
    • 24 d2 Julho d2 1979
    ...the plain language of the legislature." Lahti v. Fosterling, 357 Mich. 578, 587-588, 99 N.W.2d 490, 494 (1959), quoting People v. Lowell, 250 Mich. 349, 354-356, 230 N.W. 202 Further, we note in regard to language specifying an appeal as of right that this Court had previously adopted the p......
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 d5 Setembro d5 1990
    ...the interplay between the common law abatement doctrine and the constitutional Ex Post Facto Clause. This Court held in People v. Lowell, 250 Mich. 349, 230 N.W. 202 (1930), that at common law the repeal 12 of a criminal statute barred the prosecution of all pending and subsequent cases aut......
  • People v. Kevorkian, Docket Nos. 99591
    • United States
    • Supreme Court of Michigan
    • 13 d2 Dezembro d2 1994
    ...former provisions. As we explained in Lahti v. Fosterling, 357 Mich. 578, 587-588, 99 N.W.2d 490 (1959): This Court in People v. Lowell, 250 Mich 349, 354-356 [230 N.W. 202] (1930), "An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independ......
  • Noble v. McNerney, Docket No. 86634
    • United States
    • Court of Appeal of Michigan (US)
    • 26 d5 Fevereiro d5 1988
    ...would not be changed. "We are controlled by our quotation from Black on Interpretation of Laws (1st Ed.), p. 36, in People v Lowell, 250 Mich 349, 359 [230 N.W. " 'Even though the court should be convinced that some other meaning was really intended by the lawmaking power, and even though t......
  • Request a trial to view additional results

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