Pitman v. Commonwealth

delivered the opinion of the majority of the court.—These cases present judgments under the gaming laws, for offences committed before the passage of the act of March 26. 1842.

It is contended that the judgments are erroneous, because the laws existing previous to the said act were repealed by it, and of consequence all previous offences were thereby remitted or discharged.

The question depends, therefore, on the true construction of the act of the 26th of March 1842. The act is in these words : “ That in all recoveries hereafter had for violations of the gaming laws, the fee recovered shall be ten dollars for the commonwealth’s attorney, and the sum of thirty dollars shall be paid to the literary fund in lieu of the sum as at present provided.”

*804These are brief words, and, we must confess, not free from difficulty. What construction shall we give them ? Do they repeal the previous offences ?

There is no repealing clause; and the words do not jfflport any repeal. So far from it, they imply the continuance of the previous laws. “In all recoveries hereafter had for violations of the gaming laws” &c. What recoveries can be had, or violations occur, under laws that have no existence ? The act manifestly contemplates that the previous laws shall continue in force, and recoveries continue to be had under them.

It is said, however, that though there is no express repeal of the previous laws, there is an implied one: that the act prescribes a new punishment for past offences,— an aggravated punishment,—by increasing the fine from twenty to thirty dollars : that it is inconsistent with the former laws, and, being the last expression of the legislative will, must abrogate them, upon the principle, leges posteriores priores contrarias ábrogant.

The authorities cited at the bar shew, that implied repeals are not favoured; that two affirmative statutes shall coexist if they can, and this notwithstanding the use of general words, whose grammatical construction might imply the contrary. 6 Bac. Abr. 439.*

*805Let us then enquire why we are obliged to imply a repeal of the previous laws, and discharge of previous offences ? Did the legislature intend such repeal and discharge ? For we admit that in this act, as in all others, we must enquire into the legislative intent, and give effect to it if we can.

Admitting, then, (though some of the judges deny it) that the act varied and increased the punishment prescribed by former laws, the question occurs, to what offences does it apply ? Does it apply to violations committed before its passage, or only to those committed afterwards ? If it applies only to offences committed after its passage, it does not conflict with the former law, and consequently both will stand. If it applies, or can be legally applied, to previous offences, then the conflict will arise, and the last law only will have effect.

Before pursuing this question, we advert to a few general rules of construction.

1. The laws against gaming are to be construed as remedial laws. 2. Such construction shall be made as will give effect to the legislative intent, and not defeat it. Magis valeat quam pereat. S. The construction shall be, as nearly as possible, in conformity with the principles of the common law. 4. If it be possible, a reasonable construction shall be made, and a reasonable and lawful intent imputed, rather than one unreasonable and unlawful. 5. All laws are, or ought to be, prospective in their action. Retrospective laws are odious, and never presumed to be intended, unless by inevitable construction. And ex post facto laws are void. 6. All laws in pari materia should be considered together.

Let us pursue the enquiry with the aid of these principles.

Does the law mean to embrace violations before its passage, and to vary and enlarge the punishment ?

*806To suppose that the legislature so intended is to suppose, first, that it intended what was unjust in design, and vain and idle in effect. It is to suppose the legislature intended what was wrong in itself, and what it had no power to inflict. Shall we impute this unrighteous and idle purpose to it ? And to what end ? In order that we may give effect to it ? By no means—the plaintiffs in error contend not for that—but in order that we may both deny effect to this new purpose of the assembly, and, whilst we refuse to give it effect, make it abrogate the former law, which it was intended to supply: in other words, that we may make it something, and nothing; give it the power to kill, but only, like the insect, to lose its life in the wound. If the legislature intended to apply the law to former cases, then it cannot take effect; it is a dead letter. If such was not the legislative intent, the question is at an end. And in either case there is no conflict with the old law, and that law remains in full force.

Secondly, to apply the law to former cases makes it ex post facto. It imputes an unreasonable and unlawful purpose to the legislature. It defeats the purpose itself; or, worse than useless, as the plaintiffs contend, abolishes the former punishment, while it fails to inflict the new. It violates the principle that the laws should be prospective. It fails (contrary to the declaration that the laws shall be deemed remedial) to advance the remedy and suppress the mischief contemplated by the laws against gaming, by giving impunity to offenders against them.

For the foregoing reasons, we think the legislature did not intend to apply their enactment to previous of-fences ; and if general words are used that admit of such construction, we are bound to limit their application, and to give them a reasonable and constitutional interpretation. We may even interpolate words for such purpose. Abundant cases, we believe, may be *807found to this effect. (See cases cited in preceding note.) And to illustrate the subject by an example, suppose the legislature should enact “that in all convictions hereafter had for any violations of the laws against larceny, the party shall be hangedwhat construction would we give it? Would we not say it applied to future violations only, and was even so intended by the legislature, notwithstanding the general words used ? And if we even supposed they intended to apply it to past offences, would we turn such abortive intent into an implied legislative pardon for all such offenders ?

If we limit the act of March 26. 1842 to future offences, then it is to be construed as if it read thus— “ That in all recoveries hereafter had for violations of the gaming laws hereafter committed,” See. Supply these words, or apply the act to future offences only, and the cases before us fall precisely within the principle of Pegram’s case, 1 Leigh 569. In 1825, Pegram had been presented for keeping a faro bank table. At this time, the offence was punishable by imprisonment in the common jail, and by stripes at the discretion of the court. By the act of 1827-8 it was enacted, that whoever should thereafter he guilty of any of the offences &c. should be punished by imprisonment and fine, &c.—changing the punishment. Pegram, who was not arrested until after this act went into effect, insisted that he was entitled to be discharged. But the court said: “In the Case of Attoo v. The Commonwealth, 2 Virg. Ca. p. 382. it was decided, that where a new statute prescribes a new punishment for an offence which had been previously punishable otherwise, and the new statute repeals all laws which come within its purview, but does not provide that offences committed before the operation of the new law, shall be punished under the old, such repeal operates as a discharge of all such offenders. But that case is very different from *808this. There the law repealed and annulled the punishment enacted before that time against the offenders: here the act of 1827-8 does not, either expressly or impliedly, repeal the previous punishment prescribed ky act 0f 1822-3, except in the case of future offences. There is no repealing clause in the act of 1827-8; and although the principle is correct that leges posteriores priores abrogant, yet they only abrogate them from the time that the latter law is passed, or goes into effect. The principle on which this rule prevails is, that the latter statute being incompatible with the former, they cannot exist together, and the latest expression of the will of the legislature is the law. But there is no incompatibility in the statutes now under consideration. A punishment affixed to an offence prior to the 1st May 1828, is not incompatible with a different punishment, either lighter or more severe; affixed to the same offence subsequent to that date. They may both well stand together.”

The reasoning in the above case of Pegram, under the construction which we give to the act of 1842, answers all the cases which have been cited before us on the effect of the repeal of statutes.

We think the conclusion we have come to, best effects the intention of the legislature. It puts a reasonable and just construction upon the act, by making it provide punishment for future cases only, without attempting to provide one for past offences. If the legislature intended to apply it to past offences, and to punish them higher than before, the attempt is abortive ; and an abortive attempt to punish more severely, should not be converted into an implied or intended dispensation from all punishment whatsoever. We thihk that we best subserve the legislative intent to punish, by leaving in force the punishment lawfully inflicted, though we deny that unlawfully devised.

*809The judges are not unanimous in this opinion. Some of them think that the court below committed no error, because the act does not vary or increase the punishment. Some of them are for reversing the judgments and discharging the offenders altogether: and one of them thinks that the act was intended to apply to former cases, but is void as to the fine, and can affect only the taxation of costs.

As to the question arising on the process in one of the cases, a majority of the judges think there is no error which should affect the judgment of the court. Some of the judges think it was competent to the court to award the process; some, that if any error was committed in that respect, it is not now material; while two of them think there was error in that respect, and that, for such error, the judgment should be reversed, and the cause remanded for a summons to issue, &c.

I concur with the majority of the court in the judgment to be given; but as I take a view of the subject entirely different from that of the other judges, I will in a few words state my own reasons. In construing the laws of Virginia to suppress unlawful gaming, the statute requires that they should be construed remedially, so as to advance the object and intention of the legislature. The act of the 26th March 1842 was intended by the legislature to apply to all cases of unlawful gaming, in which the attorney’s fee and fine together amounted to 40 dollars. It was not their intention to repeal any existing law, nor did they suppose that they were about to increase the penalty. Their idea was, that there would be an apportionment of the attorney’s fee in part for the benefit of the commonwealth ; that so far as the defendant was concerned, the amount to be paid by him being the same, the punishment by fine would be the same. But this *810view cannot be sustained. Costs and charges of prosecution áre never regarded as a part of the penalty or punishment for the offence. ■ The law of costs may at any time be changed and modified. Costs may be increasec[ or diminished at the will and pleasure of the legislature, and applied to all prosecutions, whether they be for offences committed before or after the passage of the act. It was competent for the legislature, after the 26th of March 1842, to pass another law raising the attorney’s fee to 20 dollars, 30 dollars, or any other sum that they might deem reasonable and proper. If such law had been passed, how would the act of the 26th March 1842, as to the 30 dollars for the commonwealth, be then regarded ? Could it be then said that the penalty had not been increased ? Whatever may have been the understanding of the legislature upon this point, it is very clear to my mind, that when they took 10 dollars from the attorney’s fee and added it to the penalty, which was 20 dollars, they did thereby increase the penalty to 30 dollars. This law, therefore, so far as it was intended to apply to offences which had been committed before its passage, was void; and being void, it cannot have the effect of repealing by implication any previously existing law, with which it would have been in conflict if it had been a valid law. It is not in conflict with any law against unlawful gaming, as to offences theretofore committed, because it is void, and as a piece of blank paper. But as to offences committed after the passage of the act, it is in conflict with the old law, because it increases the penalty from 20 dollars to 30 dollars. From this view of the case it follows, that as to the offences of which the defendants have been convicted (both of which were committed before the 1st of March 1842), the old law was in force, and is yet in force, and judgments should be rendered against them for the fine of 20 dollars only, and costs. In the taxation of costs, *811the attorney’s fee of 10 dollars only should be taxed. J . . . . The law of the 26lh March 1842, not being void in that respect, repeals the old law as to the attorney’s fee, by implication.

As to the objection taken by Wright to the process, I do not regard that as a matter about which error can be assigned in this record, though I am clearly of opinion that the proper process was a summons, and not a capias. Upon habeas corpus, I would have discharged the defendant. But as it was competent for the court in such a case, by express law, to have issued the summons returnable instantly, and to give judgment instantly against the defendant if he failed to plead, it was certainly unnecessary to go through the ridiculous absurdity of issuing process to bring a man before the court, who was then there in his proper person, not as a casual bystander, but as a party to the record. Being then present judicially as party upon the record, the court might have quashed the capias, and at the same time made an order in his presence requiring him to plead forthwith; and, if he failed to plead, might have entered judgment against him according to law.

I dissent entirely from the opinion and judgment pronounced in these cases by the majority of the court, and from the whole course of reasoning so ably and ingeniously urged in support of them. And so confident do I feel that the view I have taken of the law is the correct one, that nothing less than the great respect I entertain for the ability and legal learning of my brethren who differ with me, could induce me even to doubt. I beg leave to state, as briefly as I can, the grounds and reasons for my opinion. I regard these cases as important, not on account of the interest to the parties concerned, but as regards the principle which I consider involved in and settled by the judgment of the court.

*812These cases depend upon the proper construction to be given to the act of the 26th March 1842. The defendants were indicted for offences against the gaming laws. These offences were committed prior to the passage 0f the act 0f 20th March 1842. At the time they were committed, the punishment for them was a pecuniary fine of 20 dollars. .The act of 26th March 1842 is in these words: [Here the judge recited it.] Can any judgment for a fine be rendered against the defendants ? and if any, what, and under what law ? I maintain that no judgment can be rendered. None can be rendered for the fine of thirty dollars, as directed by the act of 26th March 1842, because that act, having passed since the offences were committed, is, as to all such cases, ex post facto, and hence to apply it to such cases would be contrary to the constitution. Nor can any judgment be rendered for the fine of twenty dollars'; because the act in force at the time the offences were committed, which imposed the fine of twenty dollars, is repealed by the act of 26lh March 1842. For although the act of March 1842 contains no clause of express repeal, it nevertheless operates an implied repeal of all previous laws relating to the same subject, so far as it conflicts or is inconsistent with them ; the principle being, that where there are two inconsistent statutes upon the same subject, the last statute repeals the former by implication, to the extent of such inconsistency. If authority should be required to sustain a principle so obviously just and right, I refer to Dvvarris on Statutes 672, 3. 6 Bac. Abr. 372, 3. 11 Rep. 63a. 8 East 580. 4 Burr. 2026. Leach’s Cr. Cas. 228.

The only remaining question, then, is whether the act of 26th March 1842 be inconsistent with the previous laws on the same subject. Can that act stand in harmony with the former statute, which for these offences imposed a fine of twenty dollars ? I humbly insist, that so far from being harmonious, the two statutes are di*813rectly inconsistent and hostile. The act of the 26th J • . j March is so short, so plain, so simple, so direct, and the meaning of the legislative body so obvious, that argument cannot render it more clear, nor can melaphysics obscure it. It declares that “ in all recoveries hereafter had” &c. the fine imposed shall be thirty dollars, in lieu of the fine now imposed by law. These cases, it seems to my mind, are stated, argued, and concluded by answering two questions; 1st. when were the of-fences committed ? and 2. when were the recoveries had ? If the offences were committed before the act of March 1842, and the recoveries were after, the court can render no judgment for the fine. I have already shewn that where two statutes relating to the same subject are in hostility to each other, the last statute gives the law of the case, and, to the extent of the incompatibility, is regarded as impliedly repealing the first. So far as consequences are concerned, can it make any difference whether the repeal is express or implied ? I apprehend not. I can see no difference on principle, and if there be any authority, I beg to see it; I have never seen or heard of such. To prove, then, that if there had been-in the act of 26th March 1842 a clause repealing all acts coming within its purview, no judgment could have been rendered in these cases, I will refer to the following cases decided by the general court: Scutt's case, 2 Virg. Cas. 54. Attoo's case, 2 Virg. Cas. 382. and Leftwich’s case, 5 Rand. 657.—in all and each of which the proposition is distinctly announced and clearly settled, that where a new statute prescribes a new punishment for an offence previously punishable otherwise, and the new statute repeals all laws coming within its purview, but does not provide that offences committed before the operation of the new law shall be punished under the old, such repeal operates as a discharge of all such offenders. In Leflwich's case, the defendant was indicted for marrying his deceased wife’s sister. At the time of *814the offence committed, the punishment prescribed by statute was separation of the parties. Before the trial, the legislature, by a new act, provided a different punishment, to wit, fine and imprisonment; and the new act contained a clause of repeal of all acts within its purview. The general court unanimously decided that no judgment could be rendered, either under the old act or the new. Scutt's case is still stronger. The defendant was indicted for malicious stabbing; the act being charged and proved to have been committed on the 29th of March 1817, at which time such offences were punishable under the act of 1803. The trial was had on the 17th of April 1817. On the 20th of February 1817, the legislature pa.ssed another act upon the subject of stabbing, commencing from and after the first day of April 1817, which, however, provided the same punishment for malicious stabbing as was prescribed by the act of 1S03. But the act of February 1817 contained a clause repealing all acts within its purview. The general court, with the able judge White at its head, unanimously decided that no judgment could be rendered against the accused. In Attoo's case, the accused, a free man of colour, was indicted on the 15tb of September 1823, for forgery. The offence was charged and proved to have been committed on the 10th May 1823, at which time it was punishable under the act of 1819, by confinement in the penitentiary. By an act passed the 21st of February 1823, which went into operation after the offence was committed, but before the indictment and trial, the punishment for the offence was changed to sale and transportation, and the act contained a clause of repeal, without making any provision for the prosecution of offences before committed. The court unanimously decided that no judgment could be rendered against the accused, and that he be acquitted and discharged.

*815But the majority of this court rely upon Pegram's case, 1 Leigh 569. as authority against the views I take of the cases at bar, and as answering all the cases which have been cited before us on the effect of the repeal of statutes. Pegram’s case, properly understood, furnishes, as I humbly think, no authority whatever that militates against any principle for which I contend, or against any principle properly involved in the cases before us. What is that case? Pegram was indicted for keeping and exhibiting a faro bank table. The offence, at the time it was committed, was punishable under the act of 1822-3, by confinement in the common jail and by stripes. Pegram was not arrested and put upon his trial until December 1829. In the mean time, to wit, at the session of 1827-8, the legislature passed an act in which they declared, that whoever should thereafter he guilty of the said offence, should be punished by confinement in the county jail, and by fine of not less than 200 nor more than 800 dollars. This act contained no repealing clause. Pegram insisted that the act of 1822-3, which was in operation at the time his offence was charged to have been committed, was repealed by the act of 1827-8, because the latter act prescribed a new punishment. But the court decided that the act of 1822-3 was not repealed by the act of 1827-8, either expressly or impliedly. And why did they so decide ? Because the act of 1827-8, by its very letter, provided only for the case of those who should thereafter he guilty, leaving entirely intact the case of previous offenders. There was no express repeal, and no inconsistency to work an implied one. But suppose the legislature, instead of using the language “ whoever shall hereafter he guilty” &c. had said that in all judgments hereafter rendered against any person found guilty of keeping and exhibiting a faro bank table, the sentence shall be that the accused be hanged, in lieu of the punishment now prescribed; the case would be in principle precisely *816like the cases at bar, and in such case, upon- the authorities cited, no judgment could be rendered: not the judgment of hanging, because it would be ex post facto; and by the plain terms of the supposed act, no other judgment could be rendered.

The majority of the court have also relied upon a decision made in England upon the statute of 29 Car. 2. ch. 3. I have not examined that case, but I see enough in the statute itself to satisfy me that the decision ought not to be regarded as of any authority or weight in cases like those now before us. That statute is one affecting contracts. To give here to such an act a construction depriving the party of his remedy, would be plainly in violation of the constitution of the United States, which declares that “ no state shall pass any law impairing the obligation of contracts.” And in this the constitution but affirms that great principle of the common law, under the influence of which the court, in the case referred to, very properly decided as it did.

Much has been said about the intention of the legislature, and it is insisted by the majority of the court, that the legislature could never have intended that offenders such as Wright and Pitman should go unpunished. It is sufficient to reply, ita lex scripta est. Where the language of the legislature is neither equivocal nor ambiguous, but short, plain, simple and positive, we are bound to give effect to it according to the obvious meaning, without looking to the consequences. This is both the proper and the only safe rule. If it be departed from, every thing is left in doubt and uncertainty ; men are set to guessing at the legislative meaning, and we may have as many different interpretations of an act, as there are judges whose duty it is to expound it. Suppose that in the cases of Scutt, Attoo and Leftwich, heretofore cited, the general court had resorted to such a mode of ascertaining the intention of the legislature; all must see at once that their judg*817ment in each of those cases must have been the reverse of what it was. For they must have known that it was not the intention of the legislature, in enacting the several laws under which those cases were decided, to pass acts of amnesty and pardon for all who had previously been guilty of similar crimes, though that was the consequence of the court’s decision. It is the duty of the court to expound the statute as it is written, and if mischievous consequences follow, the fault is not theirs. The legislature will in all cases do as they have done in the present instance,—guard against the mischief by subsequent legislation. At the late session, they passed an act (Sess. Acts of 1842-3, p. 57. ch. 84.) remedying, as far as practicable, the mischief resulting from the act of the 26th March 1842, and thereby giving to the lastmentioned act a legislative construction very different from that given by this court; plainly shewing that they themselves did not understand the act as this court construed it. And I maintain, that admitting the fact that some mischief, or even very great mischief, may sometimes result from adhering strictly to the rule which I insist is the true one, such mischief is only as dust in the balance, compared to the evil that may result from the adoption of the principle which I think involved in the judgment of the court in the cases before us,—a principle by which the citizen is to be held amenable to laws that are ex post facto, and which weakens, if it does not cut asunder, the tenure by which we hold our property, our liberties, and our very lives.

The majority of the court, speaking of the act of 26th March 1842, have said, “ These are brief words, and not free from difficulty.” I think that if the difficulty were such as to create even doubt in the mind of the court as to the true construction of the act, the decision should have been in favour of the defendants.

*818Upon the other question, I concur with the majority r . or the court.

In the foregoing opinion, judges Brown and Clopton COllCUr.

In Pitman’s case, judgment of circuit court reversed, and that of the court of hustings affirmed, with costs to the commonw’ealth of her defence in the circuit court.

In Wright’s case, judgment of circuit court reversed. “And this court proceeding to enter such judgment in the premises as the said circuit superior court ought to have rendered, it is farther considered that the said judgment of the court of hustings for the town of Fredericksburg be also reversed and annulled, and that the said Thomas Wright forfeit and pay to the commonwealth, instead of the fine of thirty dollars thereby imposed, a fine of twenty dollars only, and that he pay the costs of the prosecution in the said court of hustings, including a fee of twenty dollars to the attorney prosecuting in that court on behalf of the commonwealth.”