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it were a constitutional provision; but, as it is not, the contention is made untenable by these well-settled propositions: First, Congress cannot thus limit or restrict the manner in which its power shall be exerted, or its intention manifested, in the future (Cooley's Const. Lim. [7th Ed.] 174; Bishop St. Cr. [3d Ed.] § 147; 2 Sutherland, St. Con. [2d Ed.] § 355; Bloomer v. Stolley, 3 Fed. Cas. 729, No. 1,559; Manigault v. Springs, 199 U. S. 473, 487, 26 Sup. Ct. 127, 50 L. Ed. 274; Kellogg v. Oshkosh, 14 Wis. 623, 628; Brightman v. Kirner, 22 Wis. 54, 60; Friend v. Levy [Ohio] 80 N. E. 1036; Wall v. State, 23 Ind. 150, 153; Davidson v. Witthaus, 106 App. Div. N. Y. 182, 185, 94 N. Y. Supp. 428; State v. County Court, 37 W. Va. 808, 811, 17 S. E. 379; Gilleland v. Schuyler, 9 Kan. 569, 580); second, the intention of the Legislature constitutes the law, and may be as effectually manifested by what is necessarily implied as by what is expressed (Telegraph Co. v. Eyser, 19 Wall. 419, 127, 22 L. Ed. 43; Ex parte Yarbrough, 110 U. S. 651, 658, 4 Sup. Ct. 152, 28 L. Ed. 274; McHenry v. Alford, 168 U. S. 651, 672, 18 Sup. Ct. 242, 42 L. Ed. 614); and, third, where there are conflicting manifestations of the legislative will, the last is controlling, even though it rests in necessary implication.
But it is said that, if the general statute be not effective as a limitation or restriction upon Congress, it is at least obligatory upon the courts as a rule of construction binding them to construe every subsequent repealing act, no matter what its necessary implication, as leaving penalties for prior offenses unaffected, unless it expressly provides that it shall have the effect of releasing or extinguishing them. This, however, is but saying that, though Congress is not bound by the general statute in the enactment of later repealing acts, the courts are bound to construe and give effect to them as if Congress were thus bound; in other words, that general statutory rules of construction may be so framed as to defeat the manifest intention of after legislation. We think that the statement of the proposition is its refutation. The intention of the Legislature, as before said, constitutes the law, and necessarily a later act, whatever its form, if only it be unaffected by any constitutional restriction and its meaning be plain, supersedes prior acts in conflict with it. Of course, the Legislature may prescribe rules affecting the construction of after-legislation, which does not, in terms or by necessary implication, show that it is to be unaffected by them; but they cannot be so framed as to defeat •the plain intention of such legislation, and, like other statutes, they cease to be obligatory upon the courts when superseded by a later and conflicting manifestation of the legislative will. In short, our conclusion respecting the general statute is this: As applied to subsequent repealing acts, which do not, expressly or by necessary implication, contravene its provisions, it is effective and obligatory upon the courts, but beyond this it is without effect and not obligatory upon any one. Notwithstanding its enactment, Congress remained at liberty to legislate respecting its subjectmatter in any manner they might choose. They could change or repeal it, or supersede it, in whole or in part, as to any particular repealing act
. They could do any of these things expressly or by necessary implication; and any such change, repeal, or supersession, however made,
would be as obligatory upon the courts as would be the general statute, if it were unaffected by after legislation.
If, therefore, section 10 of the Hepburn act does not expressly or by necessary implication manifest an intention to release or extinguish penalties for prior offenses falling within the repeal, the general statute is very plainly applicable to their enforcement, and requires that the repealed law be treated as continuing in force for that purpose. United States v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 398, 32 L. Ed. 480. Section 10 does not expressly mention penalties for prior offenses, or their remission or enforcement. Does it by necessary implication manifest an intention to release or extinguish them, or any of them? The argument advanced in support of an affirmative answer is this: That section contains both a repealing clause and a saving clause. Some purpose must be ascribed to the latter. It can have no other purpose than to prescribe the effect of the repealing portions of the act upon penalties for prior offenses. It declares that penalties for offenses for which prosecutions were then pending in the courts of the United States shall be saved; and by necessary implication, equally effectual, it declares that other penalties shall not be saved, but released or extinguished. If all of this were true of that section, doubtless the conclusion would follow that it impliedly supersedes or repeals, pro tanto, the general statute, which was presumptively in the mind of Congress. State v. Showers, 34 Kan. 269, 8 Pac. 474. The argument, however, treats section 10 as if it read literally or substantially as follows:
“All laws and parts of laws in conflict with the provisions of this act are hereby repealed, but such repeal shall not release or extinguish any penalty for any offense heretofore committed against such law for which a criminal prosecution is now pending in any court of the United States, and what is repealed shall be treated as still remaining in force for the purpose of sustaining any such pending prosecution for the enforcement of such a penalty."
In fact, it reads in this way:
"Sec. 10. That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner beretofore provided by law.”
Thus the special saving clause, although immediately following a repealing clause, does not in terms refer to a repeal, to penalties for prior offenses, to the remission or enforcement of any of them, or to pending causes for their enforcement, but to "the amendments herein provided for,” to “causes now pending in courts of the United States," and to their continued prosecution "in the manner heretofore provided by law.” Of course, “amendments” is broad enough to cover the partial repeal of section 1 of the Elkins act, for that was effected through an amendment; and what is said about “causes now pending in courts of the United States” and their continued prosecution is also broad enough to cover the enforcement of penalties for prior offenses embraced in criminal causes then pending in those courts. But does this language plainly or necessarily refer to the effect of the repeal upon the enforcement of penalties for prior offenses? We say plainly or necessarily, because, to establish a supersession or repeal of a statute Wood v.
by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of the first, employs language broad enough to cover some part or all of it; for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the first expresses a settled policy in legislation. United States, 16 Pet. 342, 362, 10 L. Ed. 987; United States v. Gear, 3 How. 120, 131, 11 L. Ed. 523, 538; Frost v. Wenie, 157 U. S. 46, 58, 15 Sup. Ct. 532, 39 L. Ed. 614; United States v. Healey, 160 U. S. 136, 146, 16 Sup. Ct. 247, 40 L. Ed. 369; Rosecrans v. United States, 165 U. S. 257, 17 Sup. Ct. 302, 41 L. Ed. 708; United States v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130; McChord v. Louisville & Nashville R. R. Co., 183 U. S. 483, 500, 22 Sup. Ct. 165, 46 L. Ed. 289. Or, as the same thing is at times differently expressed, a statute couched in clear and explicit terms is not overthrown by possible, but not necessary, implications flowing from after legislation. We shall refer briefly to two of the cases just cited, each dealing with a conflict literally more pronounced than that now be
United States v. Gear arose under the public land laws. The policy of Congress to reserve from disposition under other laws public lands containing lead mines had long been expressed in Act March 3, 1807, c. 49, § 5, 2 Stat. 449, when Act June 26, 1834, c. 76, § 4, 44 Stat. 687, establishing new land districts, directed the President to cause to be offered for sale “all the lands lying in said land districts.” Thus there was presented the question whether or not the later act superseded the other, there being lands of both classes in those districts; and of this the court said:
"The rule is that a perpetual statute (which all statutes are unless limited to a particular time), until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon. Thus, in this case, all lands within the district mean lands in which there are, and in which there are not, minerals or lead mines; but a power to sell all lands, given in a law subsequent to another law expressly reserving lead-mine lands from sale, cannot be said to be a power to sell the reserved lands when they are not named, or to repeal the reservation. In this case there are two acts before us, in no way connected, except in both being parts of the public land system. Both can be acted upon without any interference of the provisions of the last with those of the first; each performing its distinct functions within the sphere as Congress designed they should do."
United States v. Greathouse arose under the laws relating to the prosecution of claims against the United States. Section 1069 of the Revised Statutes [U. S. Comp. St. 1901, p. 740] provided that such claims should be barred unless the petition was filed within six years after the claim first accrued, but contained an excepting clause in favor of married women and others, including persons beyond the seas, who were permitted to sue within three years after the disability ceased. In 1887 Congress passed an act (Act March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. Š. 1901, p. 753]) relating to the prosecution of such claims, which, in a proviso to its first section, declared that "no suit against the government of the United States shall be allowed under this act unless the same shall be brought within six years after the right accrued for which the claim is made,” but contained no excepting clause in favor of married women or others. That act also declared all acts and parts of acts in conflict with it repealed. Greathouse was beyond the seas from 1886 to 1889, when his claim accrued, and until 1894, when his suit was commenced. In answer to the government's contention that the excepting clause in section 1069 was displaced by the later act the court held:
"The act of 1887 only superseded such previous legislation as was inconsistent with its provisions. It is true that, if that act be literally construed, there is some ground for holding that Congress intended by the proviso of section 1 to cover the whole subject of the limitation of suits against the government, in whatever court instituted. But we cannot suppose that it was intended to strike down the exceptions made in section 1069 of the Revised Statutes in favor of the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued.' Those exceptions were not expressly abrogated by the act of 1887, and they could be held to be repaled only by implication. But repeals by implication are not favored, and when two statutes cover in whole or in part the same matter, and are not absolutely irreconcilable, effect should be given, if possible, to both of them. Frost v. Wenie, 157 U. S. 46, 58, 15 Sup. Ct. 532, 39 L. Ed. 614; United States v. Healey, 160 U. S. 136, 147, 16 Sup. Ct. 247, 40 L. Ed. 369. In conformity with this principle we must adjudge that the above proviso of section 1069 of the Revised Statutes is still in force, because not absolutely inconsistent with the last proviso of the act of 1887; consequently, that the claim of a person who was beyond the seas at the time the claim accrued is not barred until three years shall have expired after such disability is removed without suit against the government. Although the act of 1887 prescribes the limitation for suits 'under this [that] act' without making any exception in favor of persons under disability, it should be interpreted as if the proviso in section 1069 of the Revised Statutes were added to section 1 of that act. We could not hold otherwise without deciding, in effect, that the limitation of six years applied to claims accruing to married women and infants during their respective disabilities, as well as to the claims of idiots, lunatics, and insane persons. We are unwilling to hold that Congress intended any such result."
Can reasonable purpose and operation be accorded to the special saving clause without impinging upon the purpose and operation of the general statute? If so, it is quite plain that the broad language of the former does not necessarily relate to the particular subject of the latter, and, therefore does not by necessary implication manifest an intention to supersede or repeal it. When we consider that the special saving clause was part of the Hepburn bill from the time of its introduction in the House of Representatives, and that the provision amending section 1 of the Elkins act did not become part of the bill until after it had passed the House of Representatives and was pending in the Senate, it is difficult to believe that the former has particular reference to the effect of the partial repeal wrought by the latter. And, when we consider that any ground which could have been reasonably advanced for enforcing the repealed law against offenders who were then indicted would have been equally applicable to others who, within the period prescribed by the statute of limitations, had offended in like manner, but were as yet unindicted, and also the marked contrast between the explicit and appropriate terms of the general statute, which was presumptively in the mind of Congress, and the altogether different terms of the special saving clause, it is difficult to believe that the latter has any reference to the particular subject of the former, namely, the effect of a repealing act upon the enforcement of penalties, forfeitures, and liabilities incurred under the law repealed.
We turn, therefore, to the other provisions of the Hepburn act, in the light of which the special saving clause must be read, to ascertain whether or not they indicate that it has another purpose and field of operation, more consonant with reason and with its different language. That act fills 12 pages of the Statutes at Large and comprises 11 sections. Its purpose is that of perfecting the existing law regulatory of interstate commerce, and this is done by eliminating or changing old provisions deemed unsatisfactory, and by adding supplementary or auxiliary provisions intended to give greater strength and efficiency to the law. These changes all fall within the general category of amendments, but they differ widely in subject and operation. Some operate to repeal portions of the prior law imposing penalties, forfeitures, or liabilities, and therefore come within the explicit terms of the general saving clause (Rev. St. § 13). Others have more immediate relation to proceedings in the courts of the United States; and still others have immediate relation to proceedings before the Interstate Commerce Commission. Within the first class is the partial repeal of section 1 of the Elkins act, resulting from the insertion of the word “knowingly”; within the second are several of the changes in section 16 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]), notably those relating to the procedure in the Circuit Courts upon petitions for the enforcement of orders of the Interstate Commerce Commission and that removing the pecuniary limitation upon the right of appeal to the Supreme Court in such cases; and within the third are the change in section 14, some of the changes in section 15, and the change in the opening paragraph of section 16. If proper regard be had to the subject and operation of these varied changes, and also to the settled operation of the general saving clause, with which Congress was presumptively familiar, it is reasonably plain, as we think, that the special saving clause, although speaking of the amendments collectively, is directed against such of them only as, in its absence, would affect causes then pending in the courts of the United States, and is intended merely to secure the continued prosecution, in the manner theretofore provided, of such pending causes as otherwise would be affected. In the presence of the general saving clause, pending causes for the enforcement of penalties, forfeitures, or liabilities would not be affected by the repeal of portions of the prior law imposing them; nor would pending causes in the courts be affected by the changes having immediate relation to proceedings before the Interstate Commerce Commission. Thus far, therefore, there was no occasion for a special saving clause in favor of causes then pending in the courts of the United States. But the changes having immediate relation to proceedings in those courts altered the situation; for they, if not restrained, would affect both pending and future causes. 2 Sutherland, St. Con. (2d Ed.) § 674; Railway Company v. Grant, 98 U. S.