exempt a class from its operation, violations by such exempted class before such modification took effect cannot be prosecuted afterwards." If a penal statute is repealed pending an appeal and before the final action of the appellate court, it will prevent an affirmance of a conviction, and the prose-cution must be dismissed or the judgment reversed.12 A final judgment before repeal is not affected by it. The repeal operates as a pardon of all offenses against it 1 and a bar to any subsequent prosecution.15 There can be no legal con Div. 215, 48 N. Y. S. 953; State v. 13 14 79 Am. Dec. 236; Heald v. State, 36Me. 62; Broughton v. Branch Bank, 17 Ala. 828; Taylor v. State, 7 Blackf. 93; State v. Loyd, 2 Ind. 659; Thompson v. Bassett, 5 id. 535; State v. O'Conner, 13 La. Ann. 486; State v. Cress, 4 Jones (N. C.), 421; State v. Van Stralen, 45 Wis. 437; State v. Campbell, 44 id. 529; State v. Ingersoll, 17 Wis. 631; Fisher v. 11 Commonwealth v. Welch, 2 N. Y. etc. R. R. Co., 46 N. Y. 644; Dana, 330. 12 State v. King, 12 La. Ann. 593; Mouras v. The A. C. Brewer, 17 id. 82; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Lewis v. Foster, 1 N. H. 61; Speckert v. Louisville, 78 Ky. 287; Commonwealth v. Sherman, 85 id. 686; Union Pac. Ry. Co. v. Proctor, 12 Colo. 194, 20 Pac. 615; State v. Allen, 14 Wash. 103, 44 Pac. 121; Mahoney v. State, 5 Wyo. 520, 42 Pac. 12, 63 Am. St. Rep. 64. 13 People v. Hobson, 48 Mich. 27, 27 N. W. 771; State v. Addington, 2 Bailey, 516. See Aaron v. State, 40 Ala. 307; Rex v. Davis, 1 Leach, C. C. 271; Rex v. Heath, 2 East P. C. 609; Rex v. McKenzie, R. & R. C. C. 429: Leschi v. Territory, 1 Wash. Ty. 13; Saco v. Gurney, 34 Me. 14; Gaul v. Brown, 53 Me. 496; Welch v. Wadsworth, 30 Conn. 149, Calkins v. State, 14 Ohio St. 222;Wood v. Kennedy, 19 Ind. 68; State v. Fletcher, 1 R. I. 193; Greer v. State, 22 Tex. 588; Town of Belvidere v. Warren R. R. Co., 34 N. J. L. 193; S. C. in error, 35 id. 584; Snell v. Campbell, 24 Fed. 880; Mulkey v. State, 16 Tex. App. 53; State v. Long, 78 N. C. 571; Hubbard v. State, 2 Tex. App. 506; Montgomery v. State, id. 618; Rood v. Chicago, etc. Ry. Co., 43 Wis. 146; State v. Gumber, 37 Wis. 298; Union Iron Co. v. Pierce, 4 Biss. 327; State v. Brewer, 22 La. Ann. 273. 14 Wharton v. State, 5 Cold. 1. 15 Howard v. State, 5 Ind. 183, 94 Am. Dec. 214; Griffin v. State, 39 Ala. 541; Genkinger v. Common-wealth, 32 Pa. St. 99; Wall v. State, 18 Tex. 632, 70 Am. Dec. 302. viction for an offense unless the act be contrary to law at the time it is committed; nor can there be judgment unless the law is in force at the time of the indictment and judg ment.16 Where a statute imposes a penalty for an injurious act done to the rights of others, such penalty to be recovered by the party aggrieved, it is in the nature of a satisfaction to him, as well as a punishment of the offender. In such a case the plaintiff is said to have acquired a vested right to the penalty as soon as the offense is committed, and a general repeal of the statute after action accrued does not affect that right." An ordinance passed pursuant to a power in a city charter is not invalidated by repeal of the provision granting the power.18 While a convict in the state prison was liable to additional punishment under a statute in force at the time of sentence and commitment, in consequence of having been twice convicted and sentenced to confinement, a statute was passed so modifying the previous statute that a convict would be liable to additional punishment only in case he had been twice discharged from imprisonment. Before the prisoner was released from confinement under his second sentence the modifying statute was repealed. It was held that such statute operated to suspend, so long as it remained in force, but not to discharge, the prisoner's liability to additional punishment.19 The repeal of a statute allowing the 16 Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. McDonough, 13 Allen, 581; Commonwealth v. Kimball, 21 Pick. 373; Hartung v. People, 22 N. Y. 95; Pitman v. Commonwealth, 2 Rob. (Va.) 813; State v. Daley, 29 Conn. 272. 17 President, etc. of L. v. Harrison, 9 B. & C. 524; Company of Cutlers v. Ruslin, Skinner, 363; Palmer v. Conly, 4 Denio, 374, 2 N. Y. 182; Thompson v. Howe, 46 Barb. 287; Harris v. Townshend, 56 Vt. 716; Graham v. Chicago, etc. R. R. Co., 53 Wis. 473, 10 N. W. 609; Grey v. Mobile Trade Co., 55 Ala. 287, 28 Am. Rep. 729. See Union Iron Co. v. Pierce, 4 Biss. 327; Bay City, etc. R. R. Co. v. Austin, 21 Mich. 390; Hibbard v. Parmenter, etc. Co., 70 N. H. 156, 46 Atl. 683. 18 Chamberlain v. Evansville, 77 Ind. 542. 19 Commonwealth v. Getchell, 16 Pick. 452. See Commonwealth v. Mott, 21 Pick. 492. defendant to give bail in a criminal case pending an appeal annuls the right as to past offenses or pending cases.20 § 287 (167). Saving clauses and general saving statutes. The effect of repeal upon inchoate rights, upon offenses and upon incomplete proceedings may be avoided by a saving clause providing that it shall not affect such rights, prosecutions for such offenses, or such proceedings," or by a general statute for that purpose. Such general statutes. have been enacted in nearly all of the states as well as by congress.2 The provision in the Iowa statute may be regarded as a typical one of this sort. "The repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, any pen 23 20 In re Shoemaker, 2 Okl. 606, 522, 6 So. 245; Gassert v. Bogk, 7 39 Pac. 284. 21 People v. Gill, 7 Cal. 356; People v. Maxwell, 73 Hun, 157, 31 N. Y. S. 564. 22 See United States v. Reisinger, 128 U. S. 398, 9 S. C. Rep. 99, 32 L. Ed. 480. In the following cases general saving statutes were construed and applied: Peltier v. Bradley, 67 Conn. 42, 34 Atl. 712, 32 L. R. A. 651; State v. Helms, 136 Ind. 122, 35 N. E. 893; Starr v. State, 149 Ind. 592, 49 N. E. 591; Meagher v. Drury, 89 Iowa, 366, 56 N. W. 531; Denning v. Yount, 62 Kan. 217, 61 Pac. 803, 50 L. R. A. 103; Denning v. Yount, 9 Kan. App. 708, 59 Pac. 1092; Commonwealth v. Duff, 87 Ky. 586, 9 S. W. 816; Commonwealth v. Selby, 87 Ky. 594, 9 S. W. 819; Miles v. Commonwealth, 16 Ky. L. R. 92; Commonwealth v. Sullivan, 150 Mass. 315, 23 N. E. 47; State v. Smith, 62 Minn. 540, 64 N. W. 1022; State v. Reads, 76 Minn. 69, 78 N. W. 883; Sigman v. Lundy, 66 Miss. Mont. 585, 19 Pac. 281, 1 L. R. A. 240; Bookwalter v. Conrad, 15 Mont. 464, 29 Pac. 573, 851; Chicago Title & T. Co. v. O'Marr, 18 Mont. 568, 46 Pac. 809, 47 Pac. 4; State v. Crusius, 57 N. J. L. 279, 31 Atl. 235; Barnaby v. Bradley & Currier Co., 60 N. J. L. 158, 37 Atl. 764; People v. New York Central,. etc. R. R. Co., 156 N. Y. 570, 51 N. E. 312; Empire State Savings Bank v. Beard, 81 Hun, 184, 30 N. Y. S. 756; Wirt v. Supervisors, 90 Hun, 205, 35 N. Y. S. 887; Lancaster v. Knight, 74 App. Div. 255, 77 N. Y. S. 488; People v. Bremer, 69 App. Div. 14, 74 N. Y. S. 570; McCann v. Mortgage Bank & Invest. Co., 3 N. D. 172, 54 N. W. 1026; Wallace v. Goodlett, 104 Tenn. 670, 58 S. W. 343; Bratton v. Johnson, 76 Wis. 430, 45 N. W. 412; Crocker v. Huntzicker, 113 Wis. 181, 88 N. W. 232; United States v. Keokuk & H.. Bridge Co., 45 Fed. 178. 23 Iowa Code (1888), § 49, par. 1. 21 alty incurred, or any proceeding commenced, under and by virtue of the statute repealed." A tax voted and levied was held to be saved by that provision, though the statute under which the tax was so levied was repealed before the collection of the tax. Such a general provision has the same effect as a saving clause in the repealing statute." These general statutes do not bind the legislature, but in the absence of anything showing the contrary, it is presumed that it was intended that they should apply. These general saving statutes are held not to apply to the repeal of city ordinances.27 A saving clause is intended to save something which would otherwise be lost.28 An act granting review after judgment was repealed "saving all actions pending;" this saving was held to mean a saving of something out of that which was repealed, and therefore to save pending petitions for review. It may embrace an inchoate 26 24 Tobin v. Hartshorn, 69 Iowa, v. Gadsden, 79 Ala. 495; Grace v. 648, 29 N. W. 764. 25 Cedar Rapids, etc. Ry. Co. v. Carroll Co., 41 Iowa, 153; Dillon v. Linder, 36 Wis. 341; Burlington v. Burlington, etc. Ry. Co., 41 Iowa, 134; Bartruff v. Remey, 15 id. 257; Chicago, etc. R. R. Co. v. Hartshorn, 30 Fed. Rep. 541; United States v. Barr, 4 Sawy. 254. Fed. Cas. No. 14,527; Garland v. Hickey, 75 Wis. 178, 43 N. W. 832; Harris v. Townshend, 56 Vt. 716; Jones v. State, 1 Iowa, 395; Volmer v. State, 34 Ark. 487; Sanders v. State, 77 Ind. 227; Tempe v. State, 40 Ala. 350; State v. Ross, 49 Mo. 416; Treat v. Strickland, 23 Me. 234; Hine v. Pomeroy, 39 Vt. 211; State v. Boyle, 10 Kan. 113; State v. Crawford, 11 id. 32; Ballin v. Ferst, 55 Ga. 546; McCuen v. State, 19 Ark. 634; People v. Sloan, 2 Utah, 326; McCaliment v. State, 77 Ind. 250; Fowle v. Kirkland, 18 Pick. 299; Barton Donovan, 12 Minn. 580; Pacific, 26 People v. England, 91 Hun, 152, 36 N. Y. S. 1130; McCann v. New York, 52 App. Div. 358, 65 N. Y. S. 308. 27 Rutherford v. Swink, 96 Tenn. 564, 35 S. W. 554. 28 Colby v. Dennis, 36 Me. 9, 12, 29 Id. When a real action was commenced a statute was in force which provided that if either of the demandants should die during the pendency of a real action his death should be suggested on the record, and that the survivor might amend his declaration by describing his interest in the premises and proceed in the cause to final judgment. During the pendency of the action the statutes were revised so as to 32 right as well as the remedy for its enforcement when it matures.30 A saving, that actions pending at the time of the repeal or passage of an act shall not be affected thereby, does not include proceedings in insolvency," nor a petition pending before county commissioners for the location of a highway. A municipal appropriation within the restrictions of the charter, when made, is not affected by a subsequent statute so changing the limit that such appropriation would exceed it, where the new statute contains a provision that "nothing in this act shall in any measure affect or impair any proceeding had and done under the acts to which this is an amendment, or any rights or privileges acquired under said acts." 33 A general law for the incorporation of cities provided that any city under a special charter might adopt any chap repeal that provision, but the revision contained these saving clauses: That all real actions which shall be pending "shall proceed and be conducted to final judgment, or other final disposal, în like manner as if this chapter had never been enacted;" in another section a saving to all persons of "all actions and causes of action which shall have accrued in virtue of or founded on any of said repealed acts, in the same manner as if such acts had never been repealed." It was contended that that action did not accrue in virtue of the repealed act, nor was founded on it. Shepley, J., said: "When the language is considered in connection with [the other saving clause] and with the recollection that the general purpose of the revision was to embody in a more systematic form the existing laws, with certain modifications and new provisions, without destroying existing rights, there can be little doubt that it was the intention of the legislature to preserve not only actions which, technically and properly speaking, accrued or had been founded on the statute. but those also which were preserved and secured to a party by the repealed act." Treat v. Strickland, 23 Me. 234. 30 Cochran v. Taylor, 13 Ohio St. 382. 31 Belfast v. Fogler, 71 Me. 403. Provisions saving pending proceedings are construed in the following cases: Rice v. McCaully, 7 Houst. 226, 31 Atl. 240; Nelson v. Sykes, 44 Minn. 68, 46 N. W. 207; Hopkins v Jamieson-Dixon Mill Co., 11 Wash. 308, 39 Pac. 815. 32 Webster v. County Commis sioners, 63 Me. 27; Downs v. Town of Huntington, 35 Conn. 588. And see Burlington v. Burlington Traction Co., 70 Vt. 491, 41 Atl. 514. 33 Beatty, Auditor, v. People, 6 Colo. 538. |