State v. Perkins

• Decision Date: 03 April 1906
• Parties: STATE v. PERKINS.
• Court: North Carolina Supreme Court

53 S.E. 735

141 N.C. 797

STATE v. PERKINS.

Supreme Court of North Carolina

April 3, 1906

Appeal from Superior Court, Union County; Ferguson, Judge.

Richard Perkins was indicted in one count for selling and in the other for keeping for sale liquor without having a license as provided by law, and was convicted. The offense was committed in the year 1904, and the indictment was found at July term 1905. The defendant requested the court to charge the jury that, as the offense was committed, if at all, prior to June 1, 1905, the defendant should be acquitted, and he moved to quash the bill and to arrest the judgment upon the same ground. The instruction and the motions were all refused, and the defendant excepted. There was a judgment upon the verdict, and the defendant appealed. Affirmed.

Where a later statute was clearly intended to be prospective in its operation, it will not effect a repeal of a prior statute relating to the same subject.

A. M Stack, for appellant.

The Attorney General, for the State.

WALKER J. (after stating the case).

The ruling of the court was in all respects correct. The indictment was drawn under chapter 434, p. 749, of the Laws of 1903, prohibiting the sale of liquor in Union county, or the keeping it for sale, without a license. By chapter 497 p. 492 of the Laws of 1905, it is enacted that the sale of liquor and the keeping it for sale "shall be" prohibited, with certain exceptions not necessary to be stated. There is no clause in the latter act unqualifiedly repealing prior enactments upon the same subject, but by sections 26 and 27 it is provided that all laws and clauses of laws in conflict with the act are repealed and that the act shall be in force and take effect from and after the 1st day of June, 1905. The decision of this case must therefore turn upon the question whether the act of 1903 is repealed by the act of 1905 to the extent of defeating this prosecution against the defendant.

Where a statute prescribing the punishment for a crime is repealed after such crime has been committed but before final judgment, though after conviction no punishment can be imposed because the act must be punishable when judgment is demanded, and authority to pass sentence must then reside in the court. This is the well-settled principle, and it is essential in order to give effect to the clear intention of the Legislature and to require that the decision and judgment of the courts shall be based upon existing law. State v. Cress, 49 N.C. 421; State v. Nutt, 61 N.C. 20; State v. Long, 78 N.C. 571; State v. Massey, 103 N.C. 356, 9 S.E. 632, 4 L. R. A. 308; State v. Biggers, 108 N.C. 760, 12 S.E. 1024; 26 Am. & Eng. Enc. (2d Ed.) 755. The rule is so familiar and well grounded in reason that we need not stop to discuss it further, except to say that it necessarily relates to an unqualified and express repeal, in the view we take of it as to its effect upon pending prosecutions, for offenses committed under the prior statute, before the repeal or upon prosecutions for such offenses afterwards instituted. As thus considered, it has no application to the facts of this case, for the act of 1905 does not expressly and unqualifiedly repeal the act of 1903, but repeals only to the extent that it conflicts with it. If the Legislature had intended to repeal the act of 1903 absolutely, it was easy to have expressed that intention in words of unmistakable meaning, but it preferred not to do so but to repeal it only so far as it is repugnant to the provisions of the later statute. The act of 1905 is by its very language prospective in its operation. It refers to sales made after the 1st of June, 1905, when it became effective, and could not, under our Constitution, apply to antecedent acts, so as to make them criminal or punishable if not so at the time they were committed. If it does not affect prior acts which are covered only by the earlier statute, how can it be said to conflict with the latter as to those acts. There can be no repugnancy except as to offenses which are punishable under the later statute, and as to these the earlier act is repealed and has no further operation. Repeals by implication or construction are not favored, and they should not be extended so as to include cases not within the intention of the Legislature.

The act of 1905 forbids the sale of liquor and prescribes a much greater punishment than that fixed by the act of 1903 for selling liquor without a license, and its general features clearly indicate a purpose on the part of the Legislature to adopt more drastic measures for the suppression of the liquor traffic. Can it be reasonably supposed that with this object inview and in its then frame of mind, it designed to extend pardon and forgiveness to those who had violated the provisions of the former act? Why should we come to such a conclusion and give to the repealing clause of the act of 1905 the same meaning we would to words of unqualified repeal, which is so much at variance with the declared will of that body? Will it not be more reasonable and more likely to effectuate the intention of the Legislature if we hold that the act of 1903 is still in force as to offenses already committed when the act of 1905 took effect, and to confine the latter act to its proper and legitimate sphere by applying it to offenses thereafter committed? This brings the two acts into harmonious operation by repealing the former act so far as it conflicts and leaving it in full effect where it does not interfere with the full operation of the other act? There is abundant authority, we think, for this construction. Coke says: "It must be known that for as much as acts of Parliament are established with gravity, wisdom, and universal consent of the whole realm for the advancement of the commonwealth, they ought not, by any constrained construction out of the general and ambiguous words of a subsequent act, to be abrogated, but ought to be maintained and supported with a benign and favorable construction." Dr. Foster's Case, 11 Rep. 63. Sedgwick thus expresses the same idea: "In this country it has been said that laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject; and it is therefore but reasonable to conclude that the Legislature in passing a statute did not intend to interfere with or abrogate any prior law relating to the same matter, unless the repugnancy between the two is irreconcilable, and hence a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law if the two acts may well subsist together." Sedg. Stat. & Const. Law, 127. "It is a general rule that subsequent statutes, which add accumulated penalties and institute new methods of proceeding do not repeal former penalties and methods of proceeding ordained by preceding statutes, without negative words. Nor hath a latter act of Parliament ever been construed to repeal a prior act, unless there be a contrariety or repugnance in them, or at least some notice taken of the former act, so as to indicate an intention in the law giver to repeal it. Neither is a bare recital in a statute, without a clause of repeal, sufficient to repeal the positive provisions of a former statute. The law does not favor a repeal by implication unless the repugnance be quite plain; and such repeal carrying with it a reflection on the wisdom of former Parliaments, it has ever been confined to repealing as little as possible of the preceding statutes. Although, then, two acts of Parliament are seemingly repugnant, yet if there be not a clause of non obstante in the latter, they shall, if possible, have such construction that the latter may not be a repeal of the former by implication." Potter's Dwarris on Statutes, 156, 157. "Every effort must be made to make all acts stand, and the later act will not operate as a repeal of the earlier one if by any reasonable construction they can be reconciled. The repeal in any case will be measured by the extent of the conflict or the inconsistency between the acts, and if any part of the earlier act can stand as not superseded or affected by the later one, it will not be repealed." 26 Am. & Eng. Enc. (2d Ed.) 726, 727. "Where a provision of law is thus modified or cut short, it is not in any proper sense repealed. And we may lay down the doctrine broadly that no repeal takes place if the earlier provision can stand, to any extent consistently with the later. Yet this proposition must not be misapplied. For if the later statute conflicts in any particular with the earlier, then the earlier is so far abrogated; though we do not say, speaking of the earlier as a whole, that it is repealed." Bishop, Stat. Crimes (1873) § 165.

The quotations we have made from Lord Coke and the text-writers are but forceful statements of the universal rule applicable to such cases. We find, though, that these general principles of statutory construction have been extended and applied to just such a case as we have presented in this record. This court, in State v. Putney, 61 N.C. 543, in passing upon a similar question, the punishment for the offense having been increased, said by Reade, J.: "It is true that the defendant cannot be punished under a law which was not in existence at the time when the offense was committed because that law would be ex post facto, unless where it lessens the punishment. It is equally true that, where a new law expressly or impliedly repeals the old law, there can be no conviction under the old law. But the act of 1866-67 has no application to the case before us because it does not repeal the old law, but is only prospective in its character and is to be read thus: If any person shall hereafter steal a mule, etc., he shall suffer...