United States v. Mathews

• Decision Date: 26 February 1885
• Citation: 23 F. 74
• Parties: UNITED STATES v. MATHEWS. [1]
• Court: U.S. District Court — Southern District of Ohio

23 F. 74

UNITED STATES v. MATHEWS. ^[1]

United States Circuit Court, S.D. Ohio, Western Division.

February 26, 1885

Channing Richards, U.S. Atty., and Henry Hooper, Asst. U.S. Atty., for United States.

Alfred Yaple, for defendant.

SAGE J.

The defendant was indicted March 8, 1884, under section 5485 Rev. St., for receiving for his services in prosecuting a pension claim a greater compensation than the $10 allowed by the act of July 20, 1878; the provisions of section 5485 having been, by a clause of the general appropriation act of March 3, 1881, made applicable to any person who should violate the provisions of said act of July 20, 1878. The defendant was tried and convicted before the repeal, July 4 1884, of the clause of the act of March 3, 1881, above referred to. The repeal of the act of 1881 is without any saving clause as to offenses already committed, or prosecutions already begun. That upon the repeal of a penal statute without such saving clause, judgment will be arrested even after conviction, is so well settled as not to require verification. But section 13 of the Revised Statutes of the United States provides that 'the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provides; and such statute shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. ' This general provision, in the chapter of the Revised Statutes relating to the form of statutes and effect of repeals, made the insertion of a saving clause in the repealing enactment of July 4, 1884, unnecessary.

It is urged that, inasmuch as the punishment for violation for section 5485 is a fine or imprisonment at hard labor, or both, section 13 is not broad enough to cover this case; that here is neither 'forfeiture' nor 'liability,' and that 'penalty' cannot be properly construed to include imprisonment, even if it could be held to include a fine, which counsel for defendant denies. Penalty is the punishment inflicted by law for its violation. The term is mostly applied to a pecuniary punishment, (2 Bouv.Law Dict. 399,) but it is not exclusively so. The case of U.S. v. Ulrici, 3 Dill. 532, is in point upon all the propositions urged on behalf of the defendant. In that case Mr. Justice MILLER, sitting as circuit justice with TREAT, J., held that the thirteenth section of the Revised Statutes contains a general provision changing the rule of the common law invoked in favor of the defendant in this case; and he says that the section was intended to repeal the rule. It is only necessary, in passing upon the motion, to quote the language of Justice MILLER from page 534:

'Now, the counsel for the defendant argues that neither the word 'penalty,' 'forfeiture,' nor 'liability,' is equivalent to the word 'pun

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