State v. Shepherd
| Decision Date | 19 October 1926 |
| Docket Number | No. 37719.,37719. |
| Citation | 210 N.W. 476,202 Iowa 437 |
| Parties | STATE, ON COMPLAINT OF ACKERLY, v. SHEPHERD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Decatur County; H. H. Carter, Judge.
This is an action to charge upon the defendant the paternity of an illegitimate child, and to charge him with the support thereof. The defendant presented a demurrer to the petition, which was overruled. From this ruling, the defendant has appealed. Affirmed.M. R. Stansell, of Osceola, and McGinnis & McGinnis, of Leon, for appellant.
R. B. Hawkins, of Leon, for appellee.
[1] The child was born May 19, 1923. This action was begun September 10, 1925. The ground of the demurrer is that at the time the action was brought there was no existing law under which the same could be prosecuted, and that therefore the court was without jurisdiction to entertain the same. This is the sole question presented for our consideration.
Prior to July 4, 1925, chapter 544 of the Code of 1924, including sections 12658 to 12667, inclusive, was in force. This chapter was repealed and a substitute enacted therefor by chapter 81 of Acts 41st Gen. Assem. This new act contains the following provisions:
“Sec. 37. Operation. This act applies to all cases of birth out of wedlock where birth occurs after this act takes effect, except that section 35 applies to all cases occurring after this act takes effect.
Sec. 38. Repeal. That sections twelve thousand six hundred fifty-eight (12658) to twelve thousand six hundred sixty-seven (12667), both inclusive, Code of 1924, be and the same are hereby repealed.”
The contention of appellant is that, because the repealing section of the new act contained no saving clause, it thereby obliterated chapter 544 of the Code of 1924, and rendered it as though it had never been. Reliance is had in the main upon a general rule, which has been often applied in many jurisdictions, to the effect that, where a statute creates a penalty, a repeal of the statute repeals all penalties which had accrued thereunder, but remained unenforced. Such rule has little, if any, application to the case before us. Though the new statute does purport to be a substitute for the old, it purports to be such only in futuro. Its application is specifically confined to children born after the new act goes into effect. It is clearly not retrospective. The appellant concedes that the former statute could have been preserved and enforced in cases arising prior to July 4, 1925, if a proper saving clause had been attached to the repealing statute.
[2] Section 63 of the Code of 1924 provides as follows:
“63. Rules. In the construction of the statutes, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the general assembly, or repugnant to the context of the statute:
1. Repeal--Effect of. The repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed.”
The foregoing purports to be a rule of construction to be applied to repealing statutes. It amounts to a saving clause applicable to all repealing statutes, and has precisely the same effect as though it had been appended as such to each of them. Its very purpose was to save the necessity of the burdensome formality of attaching an identical saving clause to all repealing legislation. This repealing statute, therefore, is not wanting in a saving clause. The only question is, therefore,whether the case before us comes within the saving terms of section 63. If, prior to July 4, 1925, any right had accrued to any person under chapter 544 of the Code of 1924 (), then such right was fully preserved by section 63, notwithstanding that the statute was repealed as to all cases arising after July 4, 1925. Appellan...
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State v. Railroad and Warehouse Commission
...respect to pending actions, these clauses apply as much as if specifically incorporated into the repealing law. State ex rel. Ackerly v. Shepherd, 202 Iowa 437, 210 N.W. 476; Lakeman v. Moore, 32 N.H. 410; Files v. Fuller, 44 Ark. When it said that repeal of a statute shall not "affect any ......
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State v. Whiting
...formality of attaching an identical saving [s] clause to all repealing legislation.” Id. (quoting State ex rel. Ackerly v. Shepherd, 202 Iowa 437, 210 N.W. 476, 476 (1926) ). While we have recognized that certain ameliorative statutes may be applied retroactively, such retroactive applicati......
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... ... Michael J. Quinn and William J. McKenna, both of New Haven, ... for plaintiff ... Samuel ... E. Hoyt, State's Atty., and Abraham S. Ullman, Asst ... State's Atty., both of New Haven, for defendants ... Argued ... before MALTBIE, C.J., and ... 452, 465, 28 S.Ct. 313, 52 L.Ed. 567; De Four v. United ... States (C. C. A.) 260 F. 596, 599; State ... ex rel. Ackerly v. Shepherd, 202 Iowa, 437, 210 N.W ... 476; and see the following cases in which a similar ... conclusion was reached as regard crimes punishable by death: ... ...
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...attaching an identical saving clause to all repealing legislation." See Lewis, 91 R.I. at 115, 161 A.2d at 212 (quoting Ackerly v. Shepherd, 210 N.W. 476, 476 (1926)). As this Court noted in "[A] legislature is presumed to know of prior legislation on the same subject matter. * * * Conseque......