State v. Berry

• Decision Date: 22 March 1927
• Docket Number: 1430
• Citation: 254 P. 488,36 Wyo. 257
• Parties: STATE v. BERRY [*]
• Court: Wyoming Supreme Court

254 P. 488

36 Wyo. 257

STATE v. BERRY ^[*]

No. 1430

Supreme Court of Wyoming

March 22, 1927

George Berry was convicted of an offense. On reserved constitutional questions from the district court. Questions returned unanswered, with directions.

F. B Sheldon, Jr., County and Prosecuting Attorney, for plaintiff filed no brief.

F. A Michels, for defendant.

Defendant demurred to the information and the District Court reserved certain constitutional questions for answer by the Supreme Court; the information was filed under Section 3112 C. S. which was repealed, by Chapter 56, Laws 1921, without a saving clause; the repeal of the statute defeated the pending prosecution against defendant; 36 Cyc. 1230. The right to prosecute ended with the unconditional repeal of said statute; the rule was clear and no authorities may be found to the contrary; the order of the lower court should be vacated with directions to discharge the defendant.

POTTER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

POTTER, Justice.

This case is here upon reserved constitutional questions involving the validity of a statute under which the defendant, George Berry, stands charged with the commission of a felony, upon an information filed by the prosecuting attorney in the district court of Fremont County. He demurred to the information on certain stated grounds: 1. That the facts stated do not constitute an offense punishable by the laws of this state. 2. That the section and chapter of the statute (Ch. 55, L. 1921 and Sec. 3112, Comp. Stat. 1920 thereby amended) are unconstitutional. 3. That the enactment of said statute by the legislature is in excess of its powers as limited by the Constitution of the United States and the Constitution of this state.

Upon a hearing of that demurrer the district court made an order reciting that the facts and allegations of the information constitute an offense punishable by and under the provisions of Chapter 55 of the laws of 1921 and Section 3112, Comp. Stat. 1920 as amended by Section 1 of that chapter, provided that said chapter 55 and said section 3112 are not unconstitutional; and that there is involved in and arises under said action upon said demurrer, important and difficult constitutional questions upon which the decision of the Supreme Court is desired. And the questions are stated in said order in substance as follows: 1. Is the statute aforesaid not unconstitutional under the constitution of the United States as well as the constitution of this State? 2. Is Chapter 55, Laws of 1921, and Section 3112 aforesaid, thereby amended, in excess of the powers of the legislature of this state as limited by said constitutions? 3. Is said chapter and said section of the statutes in violation of Section 6 of Article I of the Constitution of this state, which provides that no person shall be deprived of life, liberty or property without due process of law?

The case upon the reservation of said constitutional questions was filed in this court on January 10, 1927. On February 18, a motion was filed by the attorney for the defendant in said cause, asking that this court enter an order vacating the said order of the district court reserving said questions to this court "with the direction to the said lower court that said action be dismissed and the defendant discharged," upon the grounds and for the reason that the whole of Chapter 55 of the Session Laws of 1921 has been and now is repealed. And our attention has been called by the brief of the defendant in support of the motion to an act of the 19th state legislature recently in session, which in terms expressly repeals section 3112, Wyo. Comp. Stat. 1920 as amended and re-enacted by Chapter 55, S. L. 1921, and also the said chapter 55 (See Chapter 27, Laws 1927, Section 5) following Sections 1 to 4 inclusive relating to the subject embraced within Section 3112 aforesaid, and without, as contended, any saving clause which would keep alive prosecutions thereunder.

The original statute was part of Chapter 191, Comp. Stat. 1920, relating to the ownership, branding and ranging of live stock, providing for commissioners, inspectors, inspection of horses, mules and cattle and other animals, and providing certain offenses in connection therewith. Section 3112 of that compilation, found in said Chapter 191, provided as follows:

"Any person who may kill cattle for beef must produce on demand (of any person) either the hide of such animal or animals so killed for beef, or a certificate of inspection of the hide issued by the live stock inspector or his agent, or the sheriff or deputy sheriff. Any person convicted of violating the provisions of this section shall be guilty of a felony and shall be punished by a fine of not less than twenty-five dollars ($ 25.00) or more than five hundred dollars ($ 500.00)."

The new statute provides, in Section 1, that it shall be unlawful for any person to sell or offer for sale the carcass or any part thereof of any cattle without having the hide thereof inspected and tagged and the carcass or part thereof stamped as thereinafter provided by a county live stock inspector, a sheriff or deputy sheriff, or a constable or justice of the peace of the county wherein said animals were killed. And it is further provided in said section that any person who shall violate the provisions thereof shall be deemed guilty of a felony and upon conviction thereof shall be imprisoned in the state penitentiary, for not less than one year or more than ten years, provided, however, that the provisions of the section shall not apply to carcasses or parts of carcasses of any cattle sold or offered for sale which bear the inspected and passed stamp of the United States department of agriculture. Section 2 provides certain duties of the person presenting the carcass for inspection and for stamping the carcass by the officer to whom the carcass or part thereof has been presented for inspection. Section 3 provides for the furnishing of stamps to be used by the officers and live stock inspectors whose duty it shall be to inspect hides, and certain other duties to be performed by them, and also for a fee for the inspection to be paid by the one presenting the hide or carcass for inspection.

Section 3111, Comp. Stat. 1920, contained a provision requiring a peddler of beef to have the hide of each beef tagged by the inspector or his deputy or the sheriff or his deputy before the same is peddled or offered for sale, and upon demand to produce said hide or the inspector's certificate of inspection. And there are other provisions in that section which do not seem to coincide even substantially with the provisions made in the new act, when considered in connection with Section 3112 providing the penalty and under which the defendant was prosecuted, and providing also that such a defendant might produce on demand either the hide of the animal or a certificate of inspection, and a limitation of the punishment for a violation thereof to a fine of not less than $ 25 nor more than $ 500. In none of the sections of the new statute does there appear any provision in the nature of a saving clause.

In Mahoney v. State, 5 Wyo. 520, 42 P. 13, 63 Am. St. Rep. 64, the general rule was stated that after a statute is repealed, without a saving clause, or without an affirmance in substantial terms of the enactment of the former law, the former repealed statute, in regard to its operative effect, is considered as if it had never existed, except as to matters and transactions passed and closed. And that if a statute defining and punishing an offense is repealed, without a saving clause, before the final action of the appellate court, it will prevent an affirmance of conviction and the prosecution must be dismissed or the judgment reversed; where it appears also that the repealing statute does not contain a substantial re-enactment of the provisions of the old statute, so that a prosecution brought under the old might be finished under the new act. In that case it was said, in the opinion by Groesbeck, Chief Justice, considering the old and new statutes then under consideration, as follows:

"The statutes are essentially different, the new one permitting no removal of diseased sheep at all, except upon the permission of a 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 fact 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. * * * * The new statute does not re-enact the old one, either as to the affirmance of the former law in its many 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 statute. The statute * * * * being a penal statute, and relating to the punishment * * * * and not to methods of procedure, must be held to act prospectively and cannot 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."

That case is fairly applicable here, and we think the difference between the two statutes now being considered is much greater than appeared in the case of the statutes considered in the Mahoney case. The former statute, under which the...