People v Zito

• Decision Date: 05 February 1909
• Citation: 86 N.E. 1041,237 Ill. 434
• Parties: PEOPLE, to Use of STATE BOARD OF PHARMACY, v ZITO et al.
• Court: Illinois Supreme Court

237 Ill. 434

86 N.E. 1041

PEOPLE, to Use of STATE BOARD OF PHARMACY,vZITO et al.

Supreme Court of Illinois.

Dec. 15, 1908.

Petition for Rehearing Stricken Feb. 5, 1909.

Appeal from Appellate Court, First District, on Writ of Error to Municipal Court of Chicago; Arnold Heap, Judge.

Action by the People, to use of the State Board of Pharmacy, against Paul Zito and another, to recover a fine for selling cocaine. From a judgment of the Appellate Court (140 Ill. App. 611), affirming a judgment in favor of relator, respondents appeal. Affirmed.William Schreider, for appellants.

E. I. Frankhauser, for appellee.

CARTWRIGHT, C. J.

The municipal court of the city of Chicago rendered judgment against Paul Zito and Frank Zito, the appellants, in an action of debt in the name of the people, for the use of the State Board of Pharmacy, on the verdict of a jury finding them guilty of selling cocaine, and ordered that they stand committed to the county jail of Cook county until the fine and costs should be paid. The record was removed to the Appellate Court for the First District by writ of error, and, the Appellate Court having affirmed the judgment, this appeal was taken.

The suit was begun and prosecuted to final judgment under sections 14a and 14b, which were added in 1903 (Laws 1903, p. 248), to the act of 1901 (Laws 1901, p. 238), regulating the practice of pharmacy. After the cause had been argued and submitted to the Appellate Court for decision, the Legislature amended said sections by an act approved and in force January 17, 1908 (Laws [237 Ill. 436]1907-08, p. 88). No mention of that amendment was made in the brief or argument for the appellants in this court, but before the submission of the cause they entered their motion to have the judgment reversed and the suit abated on the ground that the amendatory act of 1908 operated as a repeal of the sections under which they were prosecuted without and provision saving pending prosecutions.

The amendatory act does not purport to repeal the sections as they previously existed or any provision contained therein, but only provides that they shall be amended to read as therein stated, by which the provisions against the sale of cocaine are made more stringent. In the absence of any constitutional or legislative provision on the subject, an amending act may operate as a repeal of the statute amended; but the general rule is that an amendment is only a repeal as to the portions of the original act left out of the amendment, and as to the portion unchanged, in form or substance, the amendatory act is a mere continuation of the original act. 26 Am. & Eng. Ency. of Law (2d Ed.) 713. However, we have a general act to the same effect, which constitutes chapter 131 of the Revised Statutes of 1874. That act provides that in the construction of all statutes certain rules shall be observed, unless such construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the same statute. Section 2 establishes the rule that the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions and not as a new enactment. Section 14a, as it existed when the offense was committed and when the prosecution was carried on, made it unlawful for any druggist or other person to retail or sell or give away cocaine except upon the written prescription of a licensed physician or dentist. The amendatory act of 1908 declared it to be unlawful for any druggist or other person to retail, sell, or give away cocaine except upon the written prescription of a duly registered physician, and so far as its provisions are the same as those of the act of 1903 (Laws 1903, p. 248), it is to be construed as a continuation of the prior provisions and not as a new enactment. A section was added increasing the penalty for the offense by allowing imprisonment as well as a fine, but the penalty recovered against the defendants is within the provisions of both acts. The sale of cocaine did not cease to be an offense under the amendatory act, which, in that respect, was but a continuation of the act of 1903.

Section 4 of said chapter 131 also relates to the subject under consideration, and is as follows: ‘No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or 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 of 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 shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject, or in any other act.’ This court has given full force to the provisions of section 4 whenever occasion required. In the case of Farmer v. People, 77 Ill. 322, the statute was applied to a prosecution for selling intoxicating liquor to a minor, and it was held that a repealed statute furnished the right of action of prosecution, but not the practice or mode of procedure, which would be governed by the practice under a later act. In Roth v. Eppy, 80 Ill. 283, the construction required by the statute was adopted in a suit brought under an act to provide against the evils resulting from the sale of intoxicating liquors, in force July 1, 1872, which had been revised by an act covering the whole subject, in force July 1, 1874. Again, in Hyslop v. Finch, 99 Ill. 171, it was held that what had been done prior to the repeal of an act was valid, and what remained to be done must conform to the requirements of the subsequent act.

It is urged that the statute was merely designed to save prosecutions and suits under pre-existing statutes, and that it has no relation to legislative acts subsequent to its passage; but to adopt such a construction would not only do violence to all rules, but to the language of the statute itself, which declares that the rules shall be observed as to all statutes in force at the time of its enactment or which might thereafter be enacted. There has been no inconsistency between the decisions as to the effect of the act. It provides that certain rules shall be observed unless the construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the same statute, and there have been some cases where it could not be applied. The case of Mix v. Illinois Central Railroad Co., 116 Ill. 502, 6 N. E. 42, was an action in debt by Mix to recover penalties from the Illinois Central Railroad Company for failing to bring trains to a full stop before crossing...