Great Northern Railway Co. v. United States

Argument for the Petitioner.

No. 491. Argued January 7, 190.-Decided February 24, 1906.

The provisions of 113, Rev. Stat., that the repeal of any statute shall not have the effect- to release or extinguish any penalty. incumed under the statute repealed, are to be treated as if incorporated in, and as a part of, subsequent enactments of Congress, and, under. the general principle of construction requiring effect to be given to all parts of a law, that section must be eiforced as forming part of such subsequent enactments. except in those instances where, either by express declaration or necessary impli- cation such enforcement would nullify the legislative intent.

The act of Congress of June 29, 1906, c. 359, 34 Stat. 584, known as the Hep- burn law, as construed in the light. of 1 13, Rdv. Stat., as it must be con-

c. 708, 32 Stat. 847.

A6trued, did not repeal the act of February 10, 10. known as the Elkins law; .so as to deprive the Government of the right to prosecute for- violations of the Elkins law committed prior to the enact- ment of the Hepburn law; nor when so construed does the Hepburn law under the doctrine of incluaio .unius exduaio alteriua exclude the right of the Government to prosecute for past offenses not then pending in the courts because pending causes are enumerated in, and saved by, §'1oof the Hepburn law.

In citing approvingly, an to the particular point involved in this case, cases recently decided in the 'lower Federal courts, this court exprsses no. .opinion upon any other subjects involved in such cases, and does not even indirectly leave room for any implication that any. opinion has been ex- pressed'as to such other issues which 'niy hereafter come before'it. for. decision.

Although a- ground for demurrer to indictment may be sufficiently broad to embrace a contention raised before this court, if it appears that such con- tention was disclaimed, and was not urged, in the'trial court, and in the Circuit Court of Appels, and was not referred to in any of: the opinions below or in the petition for certiorari or the brief id support thereof, this couit, will, without intimating any opinion in regard to its merits, de-. chine to consider it.

150 Fed. Rep. 945, affirmed.

THE facts are stated in the opinion.

(1) The indictment herein does not charge.an offenseunder

GREAT NORTHERN RY CO. v. UNITED STATES. 453

Argument for Petitioner.

§ 1 of the act of February 19, 1.903 (the Elkins law), because it fails to allege that the concessions from tariff were either willfully or knowingly granted.

The indictment charges petitioner and the individual de- fendants jointly, with one and the same offense. The indi- vidual defendants could be guilty only of the offense defined in the third sentence of § 1.

The indictment charges only that petitioner and the- other defendants unlawfully granted the concessions. Concessions - from tariff granted under mistake are unlawful. Railway Co. v..

Mugg, 202 U. S. 242; Railway Co. v. Hefy, 158 U. S. 98; Rail- way Co. v. Harris n,.119 Alabama, 539; S. C., 24 So. Rep. 552.

The last half of the second sentence of § 1 makes any con- cession, however made, unlawful. Criminal intent must be necessary to convert this unlawful act into a crime. The con- cession, to be a crime, must be either knowingly or willfully granted. If a criminal intent is necessary to the crime, it must be charged in the indictment. United States v. Carl, i05 U. S.

611, 612; Eva' v.UniWd States, 153 U. S. 584, 587; Armour PackW Co. v. United States, 153 Fed. Rep. 1, 23, 24.

It is only by virtue of the Elkins law that the corporation may be guilty of the crime. CommissiM' v. Railway Co., 145 U. S. 263, 281;. United States v. Hanley,. 71 Fed. Rep. 672, 674, 676.

(2) That part of § 1 of the Elkins law, which defined the

crimes charged in the indictment and prescribed punishment. therefor, had been before the indictment was returned, re- pealed by § 2 of the act of June 29, 1906, commonly known as the Hepburn act.

The prosecution claims that under the Elkibs law it was not necessary that to be a crime the. concession from tariff be knowingly granted,.and the indictment here involved does not .charge a.concession knowingly granted. Under the amendment made by the Hepburn act the departure, 'tO be criminal, must be knowingly made, and the indictmentmust so allege:. The element of scienter is injected.

The pu ishment is changed. Under the Elkins law the only

Argument for Petitioner.

.punishment prescribed was a fine. Under the amendment the punishment is a fine and also imprisonment for not to exceed two years, of other than corporate offenders.

Such radical changes in the ingredients 'of the crime and in the punishment therefor necessarily under the decisions, of this and other courts, work the repeal .of the part of the Elkins law-above quoted. Norris v. Crocker, 13 How. 429, 439; Uni- ted States v. Tynen , 11 Wall. 88, 92; United States v. Claflin, 97

U. S. 546, 550, 552; United States v. Fisher, 109,U. S. 143, 145;

Bank v. United States, 107 U. S."445; District of Col. v. Hdton, 143 U.' S. 18, 26; People v. Tisdale, 57 California, 104, 106; * Telegraph'Co. v. Brown, 8 N. E. Rep. 171; 172; Lindsey v.

State, 5 So. Rep. 99, 100; State v. Allen, 44 Pac. Rep. 121, 122; ,'State v. Ingersoll, 17 Wisconsin, 651, 655; Mulen v. People, 31 Illinois , 444,- 445; Mongeon v. People, 55 N. Y. 613, 615; State v. Massey (N. C.), 4 L. R. A. 308, 311;. Wharton v. State, 5 Coldw. I;S.C., 94 Am. Dec. 214; State v. Smith, 62 Minnesota, 540; 2 Lewis' Sutherlan'd Stat. Constr. 482.

Th@ rule that'-the, repeal and simultaneous reenactment, literally orsubstantially, of a statute, continues it, has no ap- plication to the case at bar. This court, as well ab others, has rejected the rule where thereenactment is a complete revision of and substitute for the-earlier statute. Murdock v. Memphis, 20 Wall. 590, 616; Paia'v: Bowler, 107'U. S. 529, 538 Murphy 95, 10. 105; Tracy v. Tuffly, 134 U. S' 206, 223; Baitk v. United States, 107 U. S. 445; 'Red Rock v. Henry, 106 U. S. 596; The Paquete Habana* 175 U. S. 677, 685; State

v. King, 12 La. An. 593, 594; Coffin v. Rich, 45 Maine, 507,"

512, 513; Goodno v. Oshkosh, 31 Wisconsin, 127, 129; Wilson

v. Railway Co., 29 Pa. Rep.. 869.

tter; 186 U. tv.

The rle, cannot apply to the case at bar because there is no substantial reenactmentof the earlier law.

The Circuit Court of Appeals applied the'rule on the authority .of Steamship Co. v. Joliffe, 2 Wall. 450, 458; Irrigation Co. v.

Garland, 164 U. S. 1; Campbell V. California, 200 U. S. 87;.

Lamb v. Power Co., 65 C. C. A.. 570; Wright v. Oakley, 5 Mete.

GREAT NORTHERN RY. CO. v. UNITED STATES. 455

Argument for Petitioner.

(Mass.) 400; Association v. Benshimol, 130 Massachusetts, 325;

t. Louiv v. Alexander, 23 Missouri, 483; Ely v. Holton, 15 N. Y.

595; Anding v. Levy, 57 Mississippi, 51; Fullerton v. Spring, 3 Wisconsiu, 588; Glntz v. State, 38 Wisconsin, 549; Burwell v.

Tullis, .12 Minnesota, 572; Gaston v. Merriam, 33 Minnesota, 271; State v. Baldwin, 45 Connecticut, 134; People v. Board, 20 Colorado, 220; Moore v. Kenockee, 75 Michigan, 332; Ca- pron v. Strout, 11 Nevada, 304; McMullen v. Guest, 6 Texas, 275; Holden v. State, 137.U. S. 483; Comlmonwealth v. Herrick, 6 Cush. 465; State v. Gumber, 37 Wisconsin, 298; State v. Wish, 15 Nebraska, 448; State v. Miller, 58 Indiana, 399; Sage

v. State, 127 Indiana, 15; State v. Kates, 149 Indiana, 46; State

v. Herzog, 25 Minnesota, 490; State v. Prouty, 115 Iowa, 657;

State v; Williams, 117 N. Car. 753; State v. Brewer, 22 La. Ann.

273; Territory v. Ruval, 84 Pac. Rep. (Ariz.) 1096; Junction Ciy v. Webb, 44 Kansas, 71;

Of the cases cited the first eighteen in..the .list involved -private rights, and the remaining thirteen liability to punish- ments under stat..es claimed to have been repealed. Al' the cases, except St. Louis v. Alexander; Moore v. Kenockee; Ca:- pron %i. Strout, and McMullen v. Guest, support the abstract rule.

It seems to us that none of them support the court's application of it.

The part of the Elkins law, applicable to this case, nec- essarily ceased to exist at the instant the Hepburn act took effect, because two repugnant laws covering the same subject matter cannot, coexist; and also because that part of the Elkins law was omitted from the reenactment and a new and different provision substituted.

The repeal of the part of.the Elkins law quoted was complete.

The Elkins law was repealed at least as to all concessions -from tariff granted or received, whether knowingly or not, by others than corporations. The act or crime of the officer or agent alone constitutes an act or crime of the corporation.

To hold that the Elkins laW remains in force only as to the corporation is to penalize it, and through it. innocent. stock-

406

Argument'for Petitioner.

holders, while permitting the guilty officer to escape. Congress •eannot have intended this.

The repeal cannot be severed. The part of the Hepburn act quoted in connection with § 10, repealed in toto the part of the Elkins law quoted. Goodno v. Oshkcosh, 31 Wisconsin, 127, 130.

Congress,* by' § 10, of the Hepburn act, has manifested its intent that only penalties and forfeitures incurred under the repealed parts of the Elkins law for which prosecutions were pending at, the date of the passage of the Hepburn act should be saved,, and that, penalties and forfeitures for which prosecu- tions had not at that date been instituted should be remitted.

By § 13, Rev. Stat., in the absence of a special saving clause in the repealing act all penalties previously incurred under the act repealed are saved. United States v. Reisinger, 128 U. S.

398; Lang v. United States, 133 Fed. Rep. 204; People v. Eng- land, 91 Hun, 152; State v, Smith, 62 MinnesotA, 540, 543; Kleckner V. Turk, 63 N. W. Rep. 469.

In the absence of a statute to the contrary, where the re- pealing act saves. rights accrued and penalties incurred-under .the previous law 4nd at the sarme time modifies the procedure by whic"l the right is to be en forced or the penalty recovered, the procedure in. an action or prosecution to enforce the right or recover the penalty must be in accordance with the later act. .Railway Co v. Grant, 98 U. S. 398; Railroad Co. v. Oglesby; 76

N. E. Rep. 165, 166; Taylor v. Strayer, 78 N. E. Rep. 236, 238;

Palmer v. City of Danville, 46 N. E. Rep.,629; Holcomb v. Boyn- to.', 37 N. E. Rep. 1031.

Section 10 can have no effect other than to save penalties, forfitures -and liabilities incurred under the repealed laws, because a statute affecting substantial rights is usually con- strued to have only a prospective operation.

The word "causes " as used in the- section .includes criminal cases.- Blyew v. United States, .13 Wall. 58, 591; Erwin v.

United Statei, 3.7 Fed. Rep. 471,. 479; Taylor v. United States, 45 Fed. Rep. 531, 539; State v. Hancock (N. J.), 24 Ati. Rep. •726, 728.,

GREAT NORTHERN RY. CO. v. UNITED STATES. 457

Argument for Respondent.

Section 13 is ineffectual to prevent the courts from giving effect by their decrees to the intent of a subsequent Congress, as that intent may be discovered from the subsequent enactment.

The judiciary is an independent department. To construe the law is of the essence of its duty. Cases cited supra and Ableman v. Booth, 21 How. 506, 520; Gordon v. Unih d States, 117 U. S. 697; United States v. Klein, 13 Wall. 128, 147; Mar- bury v. Madison, I Cranch, 137, 176;'District o1 Columbia v.

Hutton, 143 U. S. 18, 27; United States v. Claflin, 97 U. S. 546, 548; Powell v. Pennsylvania, 127 U. S. 678, 697.

The Attorney General and Mr. Milton D. Purdy, Assistant

The concluding portion of § 10 of the Hepburn act. was in- tended by Congress 4o preserve existing methods of procedure with respect -to causes pending in courts of the United States at the time of the passage of the act, and it should not be con- strued as exthiguishing penalties, forfeitures and liabilities which had accrued under the old law but were not then before the courts for judicial determination.

Section 10. of the Hepburn act must be read in connection with § 13 of the Revised Statutes, which is'" a law prescribing

.United States v. Reisinger, 128 U. S. 398; United States v. Bdrr, 4 Sawyer, 254; 'United States v. Ulrici, 3 Dillon, 532; United States v. Four Cases of Lastings, 10 Benedict,, 371; Sims v.

United states, 121 Fed. Rep. 515. Combining the two the result would be as follows: "That all laws and parts of laws in conflict with the provisions of this 'act are hereby repealed, but this repeal shall not have the effect torelease or extinguish any penalty,, forfeiture, o" liability incurred under said laws, and such laws shall be treated as still remaining in force for the purpose of' sustaining any proper action or prosecution for ,the -enforcement of such -penalty, forfeiture, or liability, but the armendments herein provi led for shall not affect causes now

'pending in courts of the United States, but such causes shall

Argument for Respondent.

be prosecuted to a conclusion in the manner heretofore pro- vided by law."

The only. implication to' be drawn froi.

the language em- ployed is that all causes then pending before the Interstate Commerce Commission,, together with all rights of action not then initiated under the old law, shall be proceeded with in accordance with the modified procedure provided for by the new law. This is shown by the histury of the enactment of the causes which led to its adoption and a consideration of the law itself in its .entirety.

The debates in Congress while this law was under considera- tion were perhaps the most notable in recent years, especially. in the Senate, and it is worthy of note that at no time was the idea expressed or even' suggested that penalties, forfeitures and liabilities which had accrued under the old law, but which were not pending before the courts for. determination, should be extinguished. Neither was it intimated that the old law forbidding rebating was considered or thought to be harsh oi unjust in any particular. On the contrary, the one dominat- ing idea seems to have been that the old law should be strength- ened,'and that at'leaqt, with respect to individuals offending against that law, the court should .be empowered. to punish. by imprisonment in addition to the imposition of a fine' *-In fact, there is abundant reason for claiming that the Con- gress considered the old law .as -not sufficiently "drastic" to ut a'stop to those practices which. apparently had been going

-on in utter defiance of the Elkins act.

To sustain the petitioners! contention the doctrine of re- peal by implication must be invoked and applied. The rule of law that repeals by implication are. not favored is so well recognized by the courts as to render a citation of authorities uinecessary.

If, therefore, it is possible to construe the lan-. -gage employed in § 10 of the'Hepburn law. in such a manner as to avoid the implication that § 13, Rev. Stat., has been re- pealed in so far as it would operate to save penalties, for- feitures, and liabilities which had accrued at the time this lawj

GREAT NORTHERN RY. CO. v. UNITED STATES. 459

208U. a.

Opinion of the Court.

was passed, it would certainly be the duty of the courts to adopt such a construction.

MR. JUSTICE WHITE delivered the opinion of the court.

The act of Congress, commonly referred to as the Hepburn law, was enacted June 29, 1906. 34 Stat,, chap. 3591, p. 584.

In November, 1906, In a District Court of the United States the Great Northern Railway Company and for Minnesota, several of its officials were indicted for violations of the act of February 19, 1903, commonly known as the Elkins act.

32 Stat., chap. 708, p. 847. There were fifteen counts, all re. lating to acts done in May, June, July and August, 1905.

Except as to vaxying dates of shipment and the sum of the concessions, the counts were alike. A reference to the first count will therefore make clear all the charges which the, in- dictment embraced. After alleging the corporate existence of the railway company, the capacity of its named officials and agents and the fixing and publishing of rates, there was set out the, carriage of certain grain by the railway company from Mir ieapolis, Minnesota, to Seattle, Washington, for account It was then of the W.'P. Devereux Company, a corporation. alleged that by the tariff and schedule of rates as established, published and filed in conforniity to the act to regulate. com- merce the legal charge was fifty cents for each one hundred pounds of grain carried from Minneapolis to Seattle, "but the grand jurors aforesaid, on their oath aforesaid, do present this and charge that (and the court, officers and agents named) "did'unlawfully grant and give to a concession of the said W. P. Devereux Company twenty cents (20c.) of the said rate as aforesaid upon every one hundred pounds of the property so transported.

as aforesaid, whereby. the said property was by. said corpora- in., said interstate* com- tion common krrier transported at a less compensation .and rate than that merce named therefor in. said tariff and schedules so as aforesaid

within' the 'the said Great Northern Railway" jurisdiction of ...

.

.

.

.

40

' Opinion'of the Couit.

published and filed by the said common carrier and in force at the- time upon its said route."

The indictment, was demurred .to-by all the accused upon the following grounds:.''

"1.. That neither the said indictment nor any count in the said indictment stated sufficient facts or grounds to constitute against the said'defendants, or either of them, an offense against the'laws of the United States, nor any offense.

That the. statute of. the Unted- States creating the offense, or offenses.pretended to be charged in the said indict- ment, and undIer 'which- said indictment Was found,. was duly repealed and was' not ini force. at the time when the said in-. dictment was .found."

The demurrer. in. this. case. was -evidently heard along with demurrers in .cases against others presumed to present like questions.. The demurrer was overruled for reasons stated -in an opinion, deemed controlling not only of this but also of the otlier cases. Sub noinine United States v. Chicago; St. P., M. & 0.,Ry. Co., 151 Fed. 'Rep. 84. By consent there was a severance between the railway company and the individual defendants.

On- the-trial, after the jury had been'sworn and when the"tak-, ing of ,testimo.n'y was about to begin, the bill of e'ce'ptions'. states. that the counsel for the company declared that he desired, on behalf of the defendant, "in order to save our rights uuder the law questions involved, to fhake objection to the introduction of any evidence. And .1 desire to have it under-, stood and agreed between, the Government and the' defendant that I may now enter this objection with the same force and * ffect, as if- a witiess had been already called and sworn to

testify on behalf of the 'Government,".,. On:this being assented to -by the Government, objection was made to* the introduction f any evidece based -upon the two grodnds which had been:. previously urged to support;fthe demurrer. The following

"TheCouIT:. I understand that last- ground. Let-us see the first ground.

GREAT NORTHERN RY. CO. v. UNITED STATES. 461

Opinion of the Court.

"Mr. BROWN: The first ground is the general ground of the insufficiency of the indictment. The second is the same thing, only more ppecific.

"I think the objection. will be sufficient if confined to the first one.

"The COuRT: The point that you wish to make is that there can be no prosecution here, no matter what the evidence is, because of the repeal of this Elkins act by the Hepburn act.

"Mr. BROWN: That is right.

"The COURT: The objection will be overruled.

"Mr. BROWN: I would ask an exception to the ruling of the court.

"The COURT: An exception is allowed."

Thereupon the counsel for, the company stated that there was an agreement with the Government that the company should make an admisz.'on as to the facts alleged in the in- dictment, subject to the right of the company to make "such objections and motions and to take such action, either in this court or upon appeal, as shall be deemed necessary and proper to have determined the question of the sufficiency of .the in- dictment to state an offense, and the sufficiency of the facts admitted to state an- offense; and it -is further agreed that neither such admissions, nor the fact that they had been made in this trial, shall be used as evidence or otherwise upon any other trial of this case, or upon the trial of any case." To this the prosecution assented. The establishment and publication of the tariff rates, the shipments of grain as alleged in the in- dictment, etc., were then admitted by the accused, and it was further admitted as follows:.

"That in case of the several shipments specified in the several .counts of the indictment herein the concessions stated in the several counts respectively in the said indictment were given to W. P. Devereux Company by the direction and with the consent of the said defendant, the, Great Northern Railroad Company."

Both parties then rested. The company requested an in-

462

Opinion of the Court.

strubtion in its favor, -based on the grounds upon which it had demurred, for whichit'had objected to any. evidence, and upon "the 'additional 'ground "that the facts shown by the eidencel are not sufficient -to constitute against the defendant any offense against the laws of the United States, nor any offense.'!

Upon this request the following colloquy between the court

"The Coui r: You admit all the material facts alleged in the.

indictment?.

"Mr. BROWN: We do.

"The CouRT: And practically admit that they are proved?

"Mr. BRowN: We can't say that. We admit the facts that are stated here-the Government has gone over-and.I under- stand they are the facts of the indictment.

"The COURT: For the purposes of this case, we will say that you admitthose facts.

"The motion will be denied, and an exception allowed-the- defendant."'

.."The defendant has admitted by its 'counsel that all the material allegations of the several.counts-are true, and if -you do not believe these allegations are proven you are obliged to 1fid the defendant not guilty. I suppose it is proper for the court to say that it can hardly see how you can find any other verdict than that of guilty, 'but that is for you to say. If you do not believe these allegations are proven you can find, the defendant not guilty."

An exception was allowed the defendant to that part. Of the charge instructing that if the facts stated in the indictment were believed to be true, that the defendant should be found

"The CouRT:. That is equivalent to saying that the indict- ment.itself is insufficient.

"MR. BROWN: Might I have that exceptioh?

"The .COURT: You may..

"Mr. BRoWN: May I have it appear on the, record that the

Opinion of theCourt.

grounds of my exception are the same three grounds named

"1. That neither the indictment, on which this piosecution is based, nor any count- in the said indictment, states suffi- cient facts or grounds to constitute against the defendant an offense against the laws of the United. States, nor any of- fense;

"2. That the statute, or statutes, of the United States creat- ing the offense or offenses, pretended. to be charged in the indictment, and in each ciount' thereof, and upon which stat- utes the said indictment and each count thereof is based, had been duly repealed and were not in force, as to any of the offenses in the said indictment'pretended to be charged, at the time when the said indictment was found;

"3. On the ground that the. facts shown by the evidence are not sufficient to constitute against the defendant an offense against the laws of the United States, nor any offense.

"The COURT: You may."

There was a verdict of guilty, and the grounds upon which the exceptions previously taken had been rested'were made the basis for a motion in arrest, which was overruled andex- cepted to. From the verdict and sentence thereon the ease was taken to the Circuit Court of Appeals for the Eighth Cir- cuit, where the judgment was affirmed (155 Fed. Rep. 945), and the case is here because of the allowance of a writ of certiorari.

There is a contention in the bri ef of counsel for the petitioner, that the'demurrer to the indictment should have been sus- tained and that the motion.to arrest as well as the exceptions to the charge should have prevailed, because the indictment in all its counts was insuficient to state an offense Under the Elkins act, even if that act. had not been repealed or modified' by the Hepburn law.

We postpone presently determining whether this contention is open on the record, or', .if open, is meritorious," in order to come at once to.the important question for decision, .which is:

Opinion of the Court.

1. Did the Hepburn law repeal the Elkins act so as to de-

prive the Government of the right to prosecute for violations of' the Elkins act committed before the Hepburn law was passed? The conflicting contentions -on these subjects are these: It is insisted on behalf of the railway company that the Elkins act was amended and re nacted by § 2 of -the Hepburn law, and that thereby a repeal of the Elkins act was. accomplished, and that the express terms bf the Hepburn law manifest the intention of Congress that no 'offense theretofore committed against the Elkins act should be prosecuted, unless a prosecution was then pending. The Government whilst not challenging the doctrine that where a criminal statute is re- pealed and a right to prosecute for a prior offense is not saved, such right is extinguished, yet insists that the principle has no .application to this case, because the reenactment of the Elkins act by § 2 of the Hepburn law did not amount to a repeal of the Elkins act to the extent of preventing prosecutions for offenses against that act committed prior to the adoption of the Hepburn law. And it is urged that this result is demonstrated not only by the clause of the Hepburn law reenacting the Elkins act, but also by other provisions of the Hepburn law inter- preted in the light of the principles of construction. which are made applicable by operation of the general law, that is, Rev.

Stat. § 13.

In considering these contentions in their ultimate aspect it .is clear that to dispose of them requires us, in any event, to interpret the Hepburn law and to determine how far the re- enactment by that law'of the -provisions of the Elkins act operates to prevent prosecutions for offenses committed prior to the date when the..Hepburn law was enacted. We come therefore at once to that question. . In doing so,' to disem- barrass the analysis from what may'be an irrelevant and cer- tainly a confusing consideration, we concede for the sake of argument only that the effect of the amendment and re- enactment of the Elkins act by § 2 of the Hepburn law was to repeal the Elkins act, and in .the light of this concession we

GREAT NORTHERN RY. CO.. v. UNITED STATES. 465

Opinion of the Court.

propose to determine whether,the right to prosecute for any prior offense committed ,before the going. into effect of the Hepburn law was lost by reason of the adoption Of that'law.

We must read the Hepburn'law in, the light of § 13 ofthe

"S.Ec. 13. 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 *provide, and'such statute shall be treated.as.still remaining in force. for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty,, forfeiture, or liability."

This provision but embodies' § 4 of, the act approved Feb- ruary 25, 1871, c. 71, 16 Stat.'431, which was entitled "An Act prescribing the -Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and rules for the 'con- struction thereof." As the section of the Revised Statutes in question has only the force of a statute, its provisions cannot justify a disregard ' of the will of Congress as manifested either expressly or by''necessary implication in a subsequent enact- ment. But. while this is true the provisions of §.13 are to be treated as if incorporated in and' as a part of subsequent enact- ments, and therefore under the'general principles of construc- tion requiring, if possible, that effect be given to all the parts of a law the section 'must be enforced'unless either by express declaration or necessary implication, arising from the terms of the law, as a whole, it results that the legislative mind will be set at naught by giving effect to the provisions of § -13. For the' sake of brevity we do not stop to refer to the many'cases from state courts of last resort dealing with the operation of general state statutes like unto § 13, Rev. Stat., because we think the views just stated are -obvious and their correctness is established by a prior decision of this court concerning that -section. Uted States v. Reisinger, 128 U. S. 398.

Tie Hepburn law is entitled "An Act to amend an Act 'An Act to regulate commerce,' approved Febru-

entitled

jv' 111-30

Opinion of the Court.

ary fourth, eighteen hundred and eighty-seven, and all Acts amehdatory thereof and to enlarge the powers of the Inter- state- Commerce Commission." The law is comprehensive.

It undoubtedly, as we have said, in the second section, amends and r'enacts the Elkins act and enlarges in important.particu- lars the powers of the Interstate Commerce Commission,. and changes the procedure in various ways essential to the con- duct of controversies before the commission. Besides,. the act in some respects modifies the meaas of enforcing the orders of the commission in the courts of the United States, the right of appeal, the judgment as to costs, attorneys' fees, etc. The crucial portion of the act, for the purposes of the present in- quiry, is § 10, which provides: "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 the courts of the United States, but such causes shall, be prosecuted to a conclusion in the manner heretofore provided by law."

Clearly, the mere repeal of conflicting laws is in -no way repugnant to the provisions of § 13 of the levised Statutes, and,. therefore, standing alone, leaves no room for contending that tA enactment of the Hepburn law destroyed the effect of § 13. The difficulty of construction, if any, arises from the words following the general repealing clause- "but the amend- ments herein provided for shall not affect causes now pending in the courts of the United States, but such causes shall be prosecuted to conclusion in the manner heretofore provided by law." These words, we think, do not, expressly or by fair implication, conflict with- the general rule established by § 13, Rev. Stat., since by their very terms they are concerned with the application to proceedings pending in the courts of the United States of the new methods of procedure created by the Hepburn law. Any other. construction would necessitate expunging the words "shall be prosecuted to a conclusion in the manner heretofore provided by' law." This follows; be- cause if it were to be held that the intent :aad object of the

GREAT NORTHERN RY. CO. v. UNITED STATES.. 467

Opinion of te Couf.

lawmaker in dealing with cases "pending in the courts of the United States," was solely to depait as to all but such pending cases from, the general rule of Rev. Stat. § 13, then the pro- vision as to future proceedings would be unnecessary, because the old and unrepealed as well as the newly enacted remedies would be applicable, as far as pertinent, to such pending-causes.

The provision'commanding that the new remedies should not be applicable to causes then pending in the courts of- the United States gives significance to the whole clause and serves, to. make, clear the fact that the legislative mind was concerned with the confusion and uncertainty which might be begotten from applying the new remedies to causes then pending in the courts, and demonstrates 'therefore that this subject, and this' subject alone, was the matter with which the provision in question was intenled to deal.. In other words, when the ob- ject contemplated by the provision is accurately fixed the subject is freed from difficulty, and not only the letter but the spirit of the provision becomes clear; that is to say, it but mnanifests the purpose of Congress to leave cases pending in the courts to be prosecuted. under. the prior remedies, thus causing the new remedies created to be applicable to all con- troversies not at the time of the passage of the act pending in the courts. And. all the arguments relied upon to sustain thq theory- that the power to prosecute for past offenses not then pending in the courts was abrogated by the Hepburn law rest in substance upon the disregard of the true significance of the provision of § 10. Thus the argument that by the application of the .elementary rule by which the inclusion of one must be considered as the exclusion of the other, it follows that the power to further prosecute all but cases then pending in the courts was destroyed by the Hepburn law, because pending' causes are enumerated in. § 10,. and are hence not saved by Rev. Stat. § 13, simply assumes that the provision of.§ 10 was intended to save the right to further prosecute the cases then pendirg in the courts, and disregards the fact that the provision as to pendi ng causes was solely addressed to the remedies to

Opinion of the Court.

be applied in the future carrying on of such cases. Again, the contention that un!es5 the provision as to pending causes in § 10 be construed as relating tothe further right to prosecute such cases, it becomes meaningless, but overlooks the fact that• the purpose of the provision was, by express enactment, to prevent the application of the new remedies to the causes then pending in the courts of the United States, a result which would not necessarily have followed without the direction in ques- tion.

it clearly also relates

The purpose of Congress in enacting § 10 is aptly illustrated by previous legislation Concerning the reenactment of the Interstate Commerce Law, and may well have been deemed to be advisable in consequence of the decision of this court in Missouri Pacific Railway v. United States, 189 U. S. 274. The construction which we have given § 10, resulting from its plain language, is fortified by a considerati6n of the context of the Hepburn law. Thus conceding for the sake of argument that the word "pending cases," as used in § 10, embraces criminal to civil controversies. prosecutions, Now, § 16 of the prior act to regulate commerce, as amended and reenacted by § 5 of th Hepburn law, prescribes a limita- tion of two years "from the time the cause of action accrues" as to "all complaints for the recovery of damages" before the commission, and establishes a limitation of one year for the filing of a petition in the Circuit Court for the enforcement of an order of the commission for the payment of money. But the section contains a proviso saving the right to present claims accrued prior to the passage of the act, provided the petition If it were true that § 10 abrogated, be filed within otie year.

as asserted, the right to prosecute all claims not pending in the courts at the time of the passage of the Hepburn law, it-would follow that that law destroyed the very rights which it specifi- cally provides should be. saved if prosecuted within a year.

Moreover, as the clause of § 10 which is relied upon in terms embraces only cases pending in the courts of the United States, it would follow, if the contention here made were true, that the

GREAT NORTHERN RY. CO. v. UNITED STATES. 469

Opinion of the Court.

Hepburn law, while saving pending cases in the "courts, yet destroyed all claims pending at the time of the passage of that act before the commission. As no reason is suggested why, if the purpose of § 10 was to save pending causes, that section should have destroyed the right to further prosecute all causes pending before the commission, it would seem that the in- clusion in § 10, only of causes pending in courts of the United States, could only have been. the result of a purpose on the part of Congress not to distinguish without reason between pending. causes by saving one class arid destroying the other, but was solely based on the desire of Congress not to interfere with proceedings then pending in the courts, but to leave such pro- ceedings to be carried to a finality, in accordance with the remedies existing at the time of their initiation.' There are various other provisions of tl, Hepburn law which we think the correctness of the additionally irresistibly demonstrate construction which we affix to § 10, but we do not, for the sake of brevity, refer to them, as we think the reasoning hitherto stated adequately shows the unsoundness of the proposition that that section manifests in any respect the intention of Congress to depart from the general principle expressed in Rev' Stat. § 13. We say, however, that the view we. have taken has in various forms of statement been upheld by a line of decisions in the lower Federal courts. United States v.

Standard Oil Company, 148 Fed. Rep. 719; United States v.

Chicago, St. P., M. & 0. Railway Company et al., 151 Fed.

Rep. 84; United States v. Delaware, Lackawanna. & Western Railway Company, 152 Fed. Rep. 269; United States v. New York Central & Hudson River Railroad Company, 153 Fed.

Rep. 630. In citing the cases in question we do not wish to be considered as implying that we express any opinion as to the doctrines which they may announce upon other subjects than the one now before us. We say this, because it may be that some of the other subjects with which some .of the cited cases deal may hereafter come before us for decision, and therefore we prefer not prematurely, even by indirection, to leave room

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* for the slightest implication that we express an opinion as to such other issues.

2. This brings us to the contention which we at the- outset

.passed over, which is that the indictment was insufficient to state an offense under the Elkins act,: although that 'act was not repealed. The proposition is, that as the indictment only charged that the concessions on the- established rate were unlawfully given, it was insufficient because in order to cause a concession to be a crime under the' Elkins act, as it stood before the Hepburn law, such concession must have been "either knowingly or willfully. granted.

If a criminal intent is necessary to the crime, it must be charged in the indictment."

It is undoubted that the first ground of the demurrer filed to 'the indictment was broad' enough to embrace this contention if it had been urged. That it was not urged on the hearing of the demurrer persuasively results from the fact that it was not. noticed in the elaborate opinion filed by the court in disposing of the demurrer. It moreover results from the proceedings had at the trial after the jury was sworn. The judge who presided at that trial was the same judge before whom the demurrer was heard. When in stating the objection to the admissibility of any ev'idence on the part of the Government, the counsel for the accused restated both" grounds, a. expressed..in the demurrer, the only contention which the court understood to be urged was the repeal of the Elkins act, since the court said: "I understand that last ground" (the one referring to the re- peal of the Elkins act).

It is clear that. the counsel did not then consider that the first ground embraced the proposition now made, since in answer to the question of the court he said: "The first ground is the general ground of the insufficiency of the. indictment. The second is the same thing, only more specific." That the court under. stood this declaration as indicating that the. only question raised was the repeal of the Elkins act, beyond controversy appears from the statement then made by the court: "The point-you wish to make is that there can be no prosecution

"Let us see the first ground."

GREAT NORTHERN RY. CO. v. UNITED STATES. 471

Opinion of the Court.

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here, no matter what the evidence is, because of the repeal of the Elkins act by the Hepburn act." To. which counsel, an- swered: "That is right." True also is it that the general language of the exceptions subsequently taken are also broad enough to embrace the point now made, but consistently with that candor and directness of conduct which we should attribute to counsel, and which we do attribute, we cannot consider that the subsequent exceptions were intended by counsel, without notice to the court, to embrace a contention which had been expressly disclaimed and which could not be in the case con- sistently with the previous statement of counsel as to the one .and sole point which they desired to raise. And this conclusion is moreover rendered necessary by the nature of the admission made, which expressly conceded that "the concessions stated in the several counts respectively in the said indictment were . by the direction and withi the consent of the given said defendant, the Great Northern Raihway Company." And particularly is this so in view of the express declaration made by counsel to the court after his admission as to the facts of the case, viz.: "I understand that they [the admissions] are the facts of the indictment' In addition to this not a syllable in the elaborate opinion of the Circuit Court of Appeals refers to the question now tirged. On the contrary, that opinion con- tains affirmative statements by the court concerning conces- sions made by counsel for both parties in argument which ex- clude the possibility that the contention we are considering was ever directly urged or even indirectly called to the atten- tion of that court. Finally, in the petition filed for certiorari, counsel, after stating the bringing of the indictment, the de- murrer, the admissions and the exceptions made at the trial, summed up and precisely stated all the contentions which arose from the dediurrer and the exceptioni without a single refer- to the point now relied upon, and that point was not ence referred to or rioticed in the brief submitted in support of the petition for certiorari. Certain is it that the proposition now urged, in vie* of the admission made below, is of a purely

Statement of the' Case.

technical character. Because we decline to consider the con- tention under the circumstances stated, we must not be Under- stood as intimating any opinion whatever upon it.

Into that question we-have not deemed that we are called upon to enter.

Affin-ed.

No. 113. Argued January 17, 1J08.-Decided February 24, 1908.

An ordinance imposing a license on persons selling beer by the barrel is an exercise of the police power of the State, and as such is authorized by the Wilson Act, 26 Stat. 313, notwithstanding such liquors were introduced into the State in original packages.

The police power of the State is very extensive and is frequently exercised where it also results in. raising revenue, and in this case an ordinance imposing a license tax on a class of dealers in intoxicating liquor was held to be a police regulation notwithstanding it also produced a revenue.

Where a license tax on dealers in a particular article is exacted without reference as to whether the article was manufactured within or without the State, the ordinance imposing it' creates no discrimination against manufacturers outside of the State within the meaning of the equal pro- tection clause of the Fourteenth Amendment.

146 Alabama, 158, affirmed.

THE plaintiff in error herein seeks to reverse a judgment of the Supreme Court of Alabama which reversed a judg- ment in his favor given by the City Court of Mobile.

The action was brought in the City Court by the city of Mobile, by'a written complaint, wherein the city sought to recover from the plaintiff in error (defendant ii that court) the sum of fifteen dollars, the amount of the fine imposed upon him by the recorder for -the violation of what is termed the license ordinance of the city, approved March 14, 1904, by failing to obtain and pay for a license under the twenty-eighth subdivision of the second section of that ordinance, relating to the selling of beer in that city. The defendant filed a plea,. setting up.what he alleged was a defense.