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$ 225. A saving clause is, like a proviso, an exemption of a special thing out of the general things mentioned in the stattute.' Its name implies such exemption to preserve from loss or destruction, and such is its use. It is generally employed to restrict repealing acts; to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute.? An absolute repeal puts an end to such rights, powers and proceedings, and discharges such penalties. To preserve them to any extent or for any purpose requires a special provision in the repealing act or existing statute having a saving effect. When such saving is included in the repealing statute it usually follows the repealing clause. The same reasons which exist for a strict construction of a proviso apply to a saving clause where there is an express repeal, and the saving clause is intended to restrict it. The special intent in the saving clause prevails over the general intent in the repeal; but the repugnance will be reduced to a minimum in civil cases by construction of the former. The saving clause, however, is to have a reasonable construction to carry out the just and obvious purpose of the law-maker.' In an act repealing a temporary trator or guardian, no party to the Governor v. Howard, 1 Murphy (N. C.), action can testify against the other as 465; Commonwealth v. Kimball, 21 to any transaction with, or statement Pick. 373; Smith v. Banker, 3 How. by, the testator, intestate or ward, Pr. 142; United States v. Helen, 6 unless called to testify thereto by the Cranch, 203; People v. Gill, 7 Cal. opposite party, or required to testify 356; Commonwealth v. Bennett, 108 by the court. The proviso of section Mass. 30; Rex v. Justices, 3 Burr. 858 excludes only one of the classes 1456; Cochran v. Taylor, 13 Ohio St. described in the first clause, – those 382; United States v. Kohnstamm, 5 who are technically parties to the Blatchf. 222; Commonwealth v. Edissue to be tried, - and we are not at wards, 4 Gray, 1; Files v. Fuller, 44 liberty to suppose that congress in- Ark. 273; Gilleland v. Schuyler, 9 tended the word “party,' as used in Kan. 569; Beatty v. People, 6 Colo. that proviso, to include both those 538; Harris v. Townshend, 56 Vt. who, according to the established 716. rules of pleading and evidence, are 3 Ante, SS 162-166; and see Bish. parties to the issue, and those who, W. L. SS 163, 168, 176, 177, 180. not being parties, have an interest in 4 Toutill v. Douglas, 33 L. J. Q. B. the result of that issue.”
66; Linton v. Blakeney Joint Co-op. 1 Dwar. Stat. (2d ed.) 513.
Society, 3 H. & C. 853: State v. Doug? Commonwealth v. Marshall, 11 lass, 33 N. J. L. 363; State v. Kelley, Pick. 350; Taylor v. State, 7 Blackf. 31 N. J. L. 75; McGavisk v. State, id. 93; The Irresistible, 7 Wheat. 551; 509; State v. Trenton, 38 id. 61; Com
statute, a saving will only restrict the repeal so that persons who had offended against the act repealed can be prosecuted, convicted and punished as though there were no repeal. The mere saving does not create any power to punish, but only to preserve that which before existed. A territorial act of 1839 in Iowa defined the crime of murder and prescribed the penalty. An act of 1843 repealed that of 1839, with a proviso that any person who had committed any crime punishable by it should be prosecuted and punished according to it, the same as if the repealing act had not been passed. The code of 1851 repealed all prior acts with the saving that crimes committed under any act repealed by it should not be affected by it. It was held that there was thereafter no law in force for punishing the offense of murder committed in 1840; that the code of 1851 only repealed the act of 1843, and did not repeal the act of 1839, for it had been repealed before; hence the saving in the code authorized no punishment for crimes committed against the act of 1839.2
In Downs v. The Town of Huntington, the court said it would give a saving clause a very liberal construction to save a meritorious verdict which depended on a statute, and had not been reported when the repeal of the statute took effect. “A suit or proceeding” in a saving clause has been held to in
monwealth v. Pointer, 5 Bush, 301; cause it was in violation of the law
For such offenses it was just as much 1 The Irresistible, 7 Wheat. 551. the law of the land as was the law of
2 Jones v. State, 1 Iowa, 395, 1843 for all subsequent offenses. Our Wright, C. J., thus expressed his dis- courts, in the administration of it, sent: “I admit that but for the sav- and in punishing offenses committed ing clause contained in section 48 of thereunder, must necessarily have so the act of 1843, there would have re- treated it. .. The power to mained no power to punish for this prosecute, convict and punish offendoffense. The provision there made ers against the act repealed, remains as to past offenses, however, I think, as perfect as if the repealing act had was substantially to that extent a never been passed. There was no re-enactment of the law of 1839. power to punish created by the reThus, up to the adoption of the code, pealing act of 1813, but an express it is conceded that this offense could preservation of a power that before have been punished. I ask by what existed.” authority, and why? Clearly, be- 3 35 Conn. 588.
clude an execution, because it is the final step in a suit.' An appropriation by a city council to meet the current expenses of the city was held to be "a proceeding" within the saving of a subsequent amendment of the charter, taking effect before the appropriation was expended, fixing a limit transcended by that appropriation. But in Gordon v. The State, the court in expounding the general provision that “the repeal of a statute does not
proceeding commenced under and by virtue of the statute repealed,” held that the word proceeding is a technical word; that therefore the holding of an election for permanently locating a county seat was not a proceeding within that provision. A statute authorized a release to the widow by the state of lands escheated from the deceased husband in consequence of his death without heirs capable of inheriting. A saving clause provided that nothing therein contained “shall affect any right which any other person may lawfully have to said property.” One having no lawful right thereto could not invoke the aid of that provision to protect a possession wrongfully acquired. The provision in a general repealing act that “no offense committed or penalty incurred previous to the time when any statutory provision shall be repealed shall be affected by such repeal,” was held to have reference solely to the laws repealed by the act, and to have no reference to future legislation."
$ 226. The legislature have the power to pass a general saving statute which shall have the force and effect to save rights and remedies, except where the repealing statute itself shows that it was not the intention of the legislature that such rights and remedies should be saved. Though one legislature cannot bind future legislatures, and each can make its laws prevail against any that exist, and its intention in that regard
1 Dobbins v. First Nat. Bank, 112 10 id. 113; Grace v. Donoran, 12 III. 553.
Minn. 580; Wilson v. Herbert, 41 N. 2 Beatty v. People, 6 Colo. 538. J. L 454; Brisbin V. Farmer, 16 34 Kan. 489.
Minn. 215; Sanders v. State, 77 Ind. 1 White v. White. 2 Met. (Ky.) 185. 227; State v. Shaffer, 21 Iowa, 486 ; 5 Mongeon v. People, 55 N. Y. 613. State v. Ross, 49 Mo. 416; Tipton v.
6 Willetts v. Jeffries, 5 Kan. 473; Carrigan, 10 Ill. App. 318; Farmer v. Gilleland v. Schuyler, 9 id. 569; State People, 77 III. 322. v. Crawford, 11 id. 32; State v. Boyle,
will be law, yet, as all legislatures are presumed to proceed with a knowledge of existing laws, they may properly be deemed to legislate with general provisions of such a nature in view. When a repeal is enacted accompanied by no provision specially for existing rights which would be affected by it, it should be assumed that they are to have, and were intended to have, such protection as other statutes will give them. In such cases the repealing act is to be considered as limited in its effect and operation in the same manner and to the same extent as if it contained the saving provided by the general law. Thus, where a general provision existed that the repeal of an act shall not affect “a right accruing, accrued, acquired or established,” the subsequent repeal of an act allowing damages for injuries on the highway did not affect an existing cause of action. Such a saving has reference to rights, not to procedure. Forms and proceedings are not contemplated further than they may be necessary to the preservation of rights."
$ 227. In penal acts provisos or exemptions in favor of the accused are liberally construed on the same considerations that penal laws are strictly construed. As stated by Mr. Bishop, the doctrine is: “ That in favor of the accused person criminal statutes may be either, according to the form of the provision, contracted or expanded by interpretation in their meanings, so as to exempt from punishment those who are not within their spirit and purpose, while at the same time
they can never be expanded against the accused so as to bring
1 Townsend v. Little, 109 U. S. 504. isted, and the courts are quite free to
2 Lakeman v. Moore, 32 N. H. 410, consider what the subsequent legisla413. In Files v. Fuller, 44 Ark. 273, ture did in fact intend, or had power the court thus remark upon such a to do. Still it has kept its place on general provision: “This statute has the statute books, and it is persuasive very little importance save in herme- at least that subsequent legislatures neutics, and has been rarely invoked; meant to keep in harmony with it, for no legislature has power to pre- and in their legislation supposed it scribe to the courts rules of inter- would go without saying, that, when pretation, or to fix for future legisla- a repeal was made, all rights in suits tures any limits of power as to the pending under the old statute would effect of their action. Any subsequent be preserved." legislature might make its repealing 3 Harris v. Townshend, 56 Vt. 716. action operate in pending suits as 4 Brotherton Brotherton, 41 effectually as if no such statute ex- Iowa, 112.
within their penalties any person who is not within their letter.” 1
A statute creating an offense was repealed with this saving clause: that nothing contained in the repealing act “shall affect any prosecution now pending or which may be hereafter commenced for any public offense heretofore committed," etc. Prior to the repeal a prisoner had been convicted under the statute and sentenced to be executed, but the execution did not take place at the time appointed. In such cases, by the general law, the convict might be brought before the court at any subsequent time to be resentenced, and then before resentencing the court is to make inquiry whether any legal reason exists against it. It was held that a repeal of the statute defining the offense was a legal reason, and not within the saving. Some additional cases bearing upon the subject of saving in penal statutes are collected in a note below.
$ 228. The effect of a total conflict between different parts of the same act has been discussed. Apparently this rule applies to a proviso;s but it has been held not to apply to a saving clause. Chancellor Kent says the reason of the distinction is not very apparent, and that it is difficult to see why the act should be destroyed by the one and not by the other.? Textwriters must take the law as they find it; so must the courts; but where an unmeaning distinction has found its way into the law for reasons which may have existed and have ceased, then the distinction ought to cease. Cessante ratione legis, cessat et ipsa lex. It is obviously to be the aim in the construction of the purview and saving clause not to frustrate and destroy either but to give them severally effect.8
$ 229. Interpretation clauses.- The legislature cannot authoritatively declare what the law is or has been; that is a I Bish. W. L. S 230.
road Co. 7 Heisk, 518; Attorney-Gen2 Aaron v. State, 40 Ala. 307.
eral v. The Chelsea Water-works, 3 Sanders v. State, 77 Ind. 227; Peo- Fitzgib. 195. See Jackson v. Moye, 33 ple v. Gill, 7 Cal. 356; Reg. v. Smith, Ga. 296. 1 L. & C. 131; Commonwealth v. 6 Walsingham's Case, 2 Plowd. 565 ; Standard Oil Co. 101 Pa. St. 119; Hew- Wood's Case, 1 Co. 40a, 47a; 1 Kent, ard v. State, 13 Sm. & M. 261; Dull Com. 462; Mitford v. Elliott, 8 Taunt. v. People, 4 Denio, 91 ; Sneed v. Com- 13, 18. monwealth, 6 Dana, 338.
11 Kent, Com. 463; Bish. W. L 4 Ante, $ 311.
5 Townsend v. Brown, 24 N. J. L 8 Scott v. State, 22 Ark. 369. 80; 5 Hill, 225, note a; White v. Rail