
    The State of Kansas v. Robert Guiney.
    Raileoad Property, Offenses Against — Void Statute. Sections 1 and 2 of chapter 121, Laws of 1871, entitled “An act to prescribe the punishment for certain offenses against railroad property and in railroad cars and buildings,” are in contravention of the second clause of § 16 of article 2 of the constitution, and therefore void.
    
      Appeal from Marion District Court.
    
    At March term’, 1894, the defendant was tried upon a charge of feloniously breaking and entering a certain freight-car, the property of the Atchison, Topeka & Santa Fe Railroad Company, with the intent then and there to feloniously steal, take and carry away property of the said railroad company, and that, having so entered said car, he did then and there feloniously steal, take and carry away two pairs of shoes, six hams, one 50-pound can of lard, and one pair of gloves, of the value of $25, and being the property of said railroad company. lie was convicted of burglary and larceny as charged in the information. Upon his motion, however, judgment was arrested on said verdict as to the charge of burglary, but he was sentenced to two years’ imprisonment in the penitentiary on the verdict of conviction for larceny, and the state appealed from the order arresting judgment on the verdict of conviction for burglary.
    
      F. B. Dcmes, attorney general, and G. M. Clark, county attorney, for The State.
    
      W. H. Carpenter, for appellee.
   The opinion of the court was delivered by

Martin, C. J. :

The question in this case is whether the’court erred or not in arresting judgment upon the conviction for burglary, and this depends upon the constitutionality of §§ 1 and 2 of chapter 121, Laws of 1871, entitled “An act to prescribe the punishment for certain offenses against railroad property and in railroad-cars and buildings.” (¶’¶’2196, 2197, Gen. Stat. of 1889.) The defendant claims that these sections are in contravention of both clauses of § 16 of article 2 of the constitution, the latter of which provides that, “No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” In Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600, this court held that the first clause of this section is mandatory, and we see no reason why the second clause should receive a different construction and be treated as merely directory. One purpose of the clause was to discontinue the practice of amendments by striking out and inserting, and another was to call specific attention to the old statute in the enactment of the new, although, when the new is properly enacted with refer-' erence to the old, the latter is repealed by the very force of the constitutional provision, without any legislative declaration to that effect. (Comm’rs of Jefferson Co. v. Hudson, 20 Kas. 71, 75 ; Case v. Bartholow, 21 id. 301, 308.) The constitutional clause in question was not intended to abolish the doctrine of repeals by implication; (Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 78 ; The State, ex rel., v. Cross, 38 id. 700) ; nor to forbid the enactment of supplemental laws ; (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kas. 759, 768, 769, 770,) and we recognize the rule that before an act of tlie legislature can be declared unconstitutional, its repugnance to the fundamental law must clearly appear. (Comm’rs of Cherokee Co. v. The State, ex rel., 36 Kas. 337.)

Are §§ 1 and 2 of the act in question intended to be amendatory of §§ 68 and 69 of the crimes act, or are they supplemental thereto, or are they intended to repeal them wholly or in part by implication? If these sections of the act of 1871 had only provided penalties for breaking into any "passenger-coach, baggage-, freight- . or express-car or other railway-carriage . with intent to commit therein a felony or misdemeanor,” they could be upheld as supplemental legislation, for prior thereto no adequate penalties were denounced against those who committed such depredations. But station-houses, depots, ticket-offices and other railway buildings were already under the protection of §§ 68 and 69 of the crimes act as warehouses and other buildings ; and if these sections, and also §§ 1 and 2 of the act of 1871, are still in force, then we have two laws on the same subject, and these inconsistent with each other ; for by the crimes act the breaking and entering of such structures would be burglary in the second degree only when committed in the night time and with intent to steal or to commit any felony therein, while by the the act of 1871, the offence "would be of that degree, although committed in the daytime and with intent to commit therein a felony or misdemeanor. Under § 69 of the crimes act, the breaking and entering of such a structure in the daytime is burglary in the third degree only. The punishment for burglary in the second degree is confinement and hard labor in the penitentiary not less than five nor more than 10 years, while for burglary in the third degree the term is not less than one nor more than five years. Again, under § 2 of the act of 1871, burglary in the third degree consists of a mere attempt to break and enter, while under § 69 of the crimes act there must be an actual breaking and entry; besides, § 417 of the crimes act makes special provision for the punishment of an attempt to commit a crime. It is impossible for a trial judge to instruct a jury correctly or properly administer the law of burglary in such cases on the assumption that §§68 and 69 of the crimes act and §§ 1 and 2 of the act of 1871 are in force. One or the other must be disregarded. And we cannot hold that said §§ 68 and 69 of the crimes act are wholly or in part repealed by implication, for they are much broader in their scope than §§ 1 and 2 of the act of 1871. If we are to accord to the latter legislation any force or effect, we must treat it as amendatory, and §§68 and 69 of the crimes act as repealed at least in part. On the whole we think that legislation like §§ 1 and 2 of said act of 1871 was inhibited by the second clause of § 16 of article 2 of the constitution ; that they are inoperative and void ; and that §§68 and 69 of the crimes act are not affected thereby.

It is suggested by counsel for the state that the constitutionality of the act of .1871 has stood unchallenged for many years, and that such long acquiescence is a strong argument in favor of its validity, and they cite Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kas. 62, 74; Philpin v. McCarty, 24 id. 393, 405, and The State, ex rel., v. Cross, 38 id. 696, 700. But in all those cases important rights and property interests had accrued under the several acts in question, and a decision adverse to their validity would disturb these rights and interests, and this was a consideration not lightly to be esteemed ; but it has no application here.

Entertaining these views, we hold that the district court did not err in arresting judgment on the conviction for burglary. Judgment affirmed.

All the Justices concurring.  