The provisions of § 13, Rev.Stat. that the repeal of any statute
shall not have the effect to release or extinguish any penalty
incurred under the statute repealed are to be treated as if
incorporated in, and as a part of, subsequent enactment of
Congress, and, under the general principle of construction
requiring effect to be given to all parts of a law, that section
must be enforced as forming part of such subsequent enactment
except in those instance where, either by express declaration or
necessary implication, such enforcement would nullify the
legislative intent.
The Act of Congress of June 29, 1906, c. 359, 34 Stat. 584,
known as the Hepburn Law, as construed in the light of § 13,
Rev.Stat., as it must be construed, did not repeal the Act of
February 19, 1903, c. 708, 32 Stat. 847, known as the Elkins Law,
so as to deprive the government of the right to prosecute for
violation of the Elkins Law committed prior to the enactment of the
Hepburn Law, nor, when so construed, does the Hepburn Law, under
the doctrine of
inclusio unius exclusio alterius, exclude
the right of the government to prosecute for past offense not then
pending in the court because pending causes are enumerated in, and
saved by, § 10 of the Hepburn Law.
In citing approvingly, as to the particular point involved in
this case, cases recently decided in the lower federal courts, this
Court expresses no opinion upon any other subject involved in such
cases, and does not even indirectly leave room for any implication
that any opinion has been expressed as to such other issues which
may 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 contention was disclaimed and was not urged in
the trial court and in the circuit court of appeals, and was not
referred to in any of the opinions below or in the petition for
certiorari or the brief in support thereof, this Court will,
without intimating any opinion in regard to its merits, decline to
consider it.
155 F. 945 affirmed.
The facts are stated in the opinion.
Page 208 U. S. 459
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. 584, c. 3591. In November, 1906, in
the District Court of the United States for Minnesota, the Great
Northern Railway Company and several of its officials were indicted
for violations of the act of 1903, commonly known as the Elkins
Act. 32 Stat. 847, c. 708. There were fifteen counts, all relating
to acts done in May, June, July, and August, 1905. Except as to
varying 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 indictment 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 Minneapolis, Minnesota, to
Seattle, Washington, for account of the W. P. Devereux Company, a
corporation. It was then alleged that, by the tariff and schedule
of rates as established, published, and filed in conformity to the
Act to Regulate Commerce, 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 and charge that, . . . within the jurisdiction of this
Court, . . . the said Great Northern Railway [and the officers and
agents named] did unlawfully grant and give to the said W. P.
Devereux Company . . . a concession of twenty cents (20�) 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 corporation common carrier, transported in
said interstate commerce . . . at a less compensation and rate than
that named therefor in said tariff and schedules so as
aforesaid
Page 208 U. S. 460
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."
"2. That the statute of the United States creating the offense
or offenses pretended to be charged in the said indictment, and
under which said indictment was found, was duly repealed, and was
not in force at the time when the said indictment 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 other
cases. 151 F. 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 taking of testimony was about
to begin, the bill of exceptions states that the counsel for the
company declared that he desired, on behalf of the defendant,
"in order to save our rights under the law questions involved,
to make objection to the introduction of any evidence. And I desire
to have it understood and agreed between the government and the
defendant that I may now enter this objection with the same force
and effect as if a witness 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 of any evidence based upon the two grounds
which had been previously urged to support the demurrer. The
following occurred:
"The Court: I understand that last ground. Let us see the first
ground. "
Page 208 U. S. 461
"Mr. Brown: The first ground is the general ground of the
insufficiency of the indictment. The second is the same thing, only
more specific."
"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
admission as to the facts alleged in the indictment, 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
indictment 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 indictment, 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
instruction
Page 208 U. S. 462
in its favor, based on the grounds upon which it had demurred,
for which it had objected to any evidence, and upon the additional
ground
"that the facts shown by the evidence 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 and
the counsel occurred:
"The Court: 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 understand
they are the facts of the indictment."
"The Court: For the purposes of this case, we will say that you
admit those facts."
The motion will be denied, and an exception allowed the
defendant.
The court then instructed the jury as follows:
"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 find 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 guilty. The
following then occurred:
"The Court: That is equivalent to saying that the indictment
itself is insufficient."
"Mr. Brown: Might I have that exception?"
"The Court: You may."
"Mr. Brown: May I have it appear on the record that the
Page 208 U. S. 463
grounds of my exception are the same three grounds named as the
basis of my motion to instruct a verdict, to-wit:"
"1. That neither the indictment on which this prosecution is
based nor any count in the said indictment states sufficient facts
or grounds to constitute against the defendant an offense against
the laws of the United States, nor any offense."
"2. That the statute or statutes of the United States creating
the offense or offenses pretended to be charged in the indictment,
and in each count thereof, and upon which statutes 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 and excepted to. From the
verdict and sentence thereon, the case was taken to the Circuit
Court of Appeals for the Eighth Circuit, where the judgment was
affirmed (155 F. 945), and the case is here because of the
allowance of a writ of certiorari.
There is a contention in the brief of counsel for the petitioner
that the demurrer to the indictment should have been sustained 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
insufficient 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:
Page 208 U. S. 464
1. Did the Hepburn Law repeal the Elkins Act so as to deprive
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 reenacted by § 2 of the Hepburn Law, and that thereby a repeal
of the Elkins Act was accomplished, and that the express terms of
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 repealed
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 enactment 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 interpreted 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 reenactment
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 disembarrass the analysis from what may
be an irrelevant and certainly a confusing consideration, we
concede, for the sake of argument only, that the effect of the
amendment and reenactment of the Elkins Act by § 2 of the Hepburn
Law was to repeal the Elkins Act, and, in the light of this
concession, we
Page 208 U. S. 465
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 of the Revised
Statutes, which provides as follows:
"SEC. 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 February 25,
1871, 16 Stat. 431, c. 71, which was entitled, "An Act Prescribing
the Form of the Enacting and Resolving Clauses of Acts and
Resolutions of Congress, and Rules for the Construction 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 enactment. But, while this
is true, the provisions of § 13 are to be treated as if
incorporated in and as a part of subsequent enactments, and
therefore under the general principles of construction 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.
United States
v. Reisinger, 128 U. S. 398.
The Hepburn Law is entitled
"An Act to Amend an Act Entitled 'An Act to Regulate Commerce,'
Approved February
Page 208 U. S. 466
Fourth, Eighteen Hundred and Eighty-Seven, and All Acts
Amendatory Thereof, and to Enlarge the Powers of the Interstate
Commerce Commission."
The law is comprehensive. It undoubtedly, as we have said, in
the second section, amends and reenacts the Elkins Act, and
enlarges in important particulars the powers of the Interstate
Commerce Commission, and changes the procedure in various ways
essential to the conduct of controversies before the Commission.
Besides, the act, in some respects, modifies the means 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 inquiry, 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 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 Revised Statutes, and
therefore standing alone, leaves no room for contending that the
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 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 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 because, if it were to be held that the intent
and object of the
Page 208 U. S. 467
lawmaker in dealing with cases "pending in the courts of the
United States" was solely to depart as to all but such pending
cases from the general rule of Rev.Stat. § 13, then the provision
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 intended to deal. In other
words, when the object 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 manifests 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
controversies not at the time of the passage of the act pending in
the courts. And all the arguments relied upon to sustain the 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 pending in the courts, and disregards the fact that the
provision as to pending causes was solely addressed to the remedies
to
Page 208 U. S. 468
be applied in the future carrying on of such cases. Again, the
contention that, unless the provision as to pending causes in § 10
be construed as relating to the 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 question.
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 consideration of the context of the
Hepburn Law. Thus, conceding for the sake of argument that the
words, "pending cases," as used in § 10, embrace criminal
prosecutions, they clearly also relate to civil controversies. Now
§ 16 of the prior Act to Regulate Commerce, as amended and
reenacted by § 5 of the Hepburn Law, prescribes a limitation 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 be filed within one year.
If it were true that § 10 abrogated, 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 specifically 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
Page 208 U. S. 469
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 inclusion 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 and 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 proceedings to be carried to a finality,
in accordance with the remedies existing at the time of their
initiation. There are various other provisions of the Hepburn Law
which we think additionally irresistibly demonstrate the
correctness of the 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 the Revised Statutes, § 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 F. 719;
United States v.
Chicago, St.P., M. & O. R. Co., 151 F. 84;
United
States v. Delaware, Lackawanna & Western Railway Company,
152 F. 269;
United States v. New York Central & Hudson
River Railroad Company, 153 F. 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
Page 208 U. S. 470
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
evidence on the part of the government, the counsel for the accused
restated both grounds, as 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 repeal of the Elkins Act). "Let
us see the first ground." 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 understood 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
Page 208 U. S. 471
here, no matter what the evidence is, because of the repeal of
the Elkins Act by the Hepburn Act."
To which counsel answered: "That is right." True also is it that
the general language of the exception subsequently taken is 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 consistently 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 given . . . by the direction and with the
consent of the said defendant, the Great Northern Railway
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 urged. On the contrary, that opinion contains
affirmative statements by the court concerning concessions made by
counsel for both parties in argument which exclude the possibility
that the contention we are considering was ever directly urged or
even indirectly called to the attention of that court. Finally, in
the petition filed for certiorari, counsel, after stating the
bringing of the indictment, the demurrer, the admissions, and the
exceptions made at the trial, summed up and precisely stated all
the contentions which arose from the demurrer and the exceptions
without a single reference to the point now relied upon, and that
point was not referred to or noticed in the brief submitted in
support of the petition for certiorari. Certain is it that the
proposition now urged, in view of the admission made below, is of a
purely
Page 208 U. S. 472
technical character. Because we decline to consider the
contention under the circumstances stated, we must not be
understood as intimating any opinion whatever upon it. Into that
question we have not deemed that we are called upon to enter.
Affirmed.