
    Court of Oyer and Terminer—New York County.
    
      May, 1892.
    PEOPLE v. MEAKIM.
    Eepeal of Statute—Effect on Prosecution then Pending.
    Defendants, excise commissioners in the city of New York, were indicted for a willful neglect (Penal Code, § 117) to perform the duty imposed upon them by L. 1873, ch. S49, § 8, as amended by L. 1875, ch. 449, § 4, of determining and deciding within a reasonable time a complaint of a violation of the excise law made to them, and upon which hearings had been had before them, and which had been thereupon submitted to them for their official action. Pending the prosecution of the criminal charge against the commissioners, there was passed “ An act to revise and consolidate .the laws regulating the sale of intoxicating liquors ” (L. 1892, ch. 401), which among other things contained a complete revision of the laws relating to boards of excise commissioners and their duties. Section 42 of that act regulated the hearing of complaints before the commissioners* By this section there was a change of the method of procedure, of the duty of the commissioners, as to the time within which •they must act, and the form of their decision, and the Act for the first time specifically defined what punishment should be inflicted upon the commissioners of excise for a failure on their part to perform their duty in regard to complaints. By the act of 1892 the prior statute, L. 1873. ch. 549, and acts amendatory thereto, were repealed.—Held, upon demurrer to the indictment, that, as the act of 1892 repealed the older acts, the commissioners could not be punished for an offense committed under the latter.
    Demurrer by defendants, Alexander Meakim, Joseph Koch and Edward T. Fitzpatrick, to an indictment for willful neglect of duty as excise commissioners of the city of New York.
    After the decision of the general term of the supreme court, in the first department (reported 8 N. Y. Grim. Hep. 308), reversing an order arresting judgment, an appeal was taken by defendants from the order of the general term to the court of appeals where that order was affirmed. (8 N. Y. Grim. Hep., 404.)
    Shortly subsequent to this decision of the court of appeals the act commonly known as the excise law of 1892 was passed. The defendants claimed that the passage of the act of 1892 repealed the older excise law, prevented any punishment thereunder, and they demurred to the indictment.
    The facts sufficiently appear in the opinion.
    
      A. J. Dittenhoefer and Edgar Johnson, for defendants.
    
      De Lancey Nicoll, district attorney ; Henry B. B. Stapler, assistant, for the people.
   Ingraham, J.

The defendants were indicted for a willful neglect to perform the duties imposed upon them as the board of excise in the city of New York, by section 8, of chapter 549, of the Laws of 1873, as amended by section 4, of chapter 449, of the Laws of 1875, the indictment having been filed on the 8th day of April, 1891. The duty thus imposed upon the defendants as the board of excise in the city of New York was that, upon the complaint of any, resident of the said city, the board should summon before them any person or persons licensed under the provisions of the act, and if they should become satisfied that any such person or persons had violated any of the provisions of the act, they should revoke, cancel and annul the license of such person or persons, and the indictment alleges that such a complaint was made and was duly presented to the defendants by a resident of the city of New York, alleging that one Harry Ahrens, to whom a license had been granted under the provisions of the act, had violated the act by keeping his place open for the transaction of business between the hours of 6 a.m. and 4 p.m. on the 5th day of November, 1889, being a day designated by law for the holding of a general election throughout the state of New York; that the said Ahrens was summoned before the board, and a hearing and inquiry upon and into the truth of the allegations and charges duly had by and before the board; that said board did willfully omit and neglect to act upon, determine and decide the said complaint and the questions arising thereon within a reasonable space of time after the same had been so finally submitted to and was so before them as such board of excise as aforesaid, and such willful neglect to perform a duty was made a misdemeanor by section 117 of the Penal Code.

On the thirteenth day of April, 1892, an act (L. 1892, ch. 401) was passed by the legislature whereby section 8 of the Laws of 1873 was amended, there being no provision in the act excepting from its operation crimes committed or indictments found prior to the date of its passage.

It is clear that by this act of 1892 the legislature intended to substitute a new system for the revocation of licenses, to sell liquor where the license had violated the law regulating sales thereof under the license. The method of procedure is changed; the duty of the commissioners as to the time within which the board of excise must act is changed; the form in which their decision must be rendered is changed, and the act for the first time specifically defines what punishment shall foe inflicted upon the commissioners of excise for a violation of their duty.

What might be a defense under the old act would not be under the new. Thus, it might be that a failure to decide within twenty-nine days after the case had been submitted to the commissioners would be an unreasonable time under the provisions of the old act, but would not be a violation of the provisions of the new act, and a refusal to act upon a verbal charge might be a violation of a duty under the old act, but would not foe under the new act, and also an act which would not be a violation of the old act might be a violation of the new act. Thus, the board might decide orally under the old act, but under the new act the decision must be in writing, and circumstances might exist that would justify a failure to decide for a longer period than thirty days, which would not be a violation of the old act, but which would be a distinct violation of the new act.

It seems, therefore, that by the passage of the new act, there was an express repeal of the old act within the rule that “ a later statute, covering the same subject matter and embracing new provisions, operates to real the prior act, although the two acts are not in express terms repugnant ” (People v. Jaehne, 103 N. Y. 195).

It follows that the act in force at the time this indictment was found is now repealed, and there is no law now in existence which made it the duty of the defendants to entertain and determine the charge specified in the indictment in January and February, 1890.

If this indictment should be now tried, what act would be necessary to prove an offense ? - Would it be necessary to prove the charge that the complaint to the board of excise was in writing, or that the board had failed to file its decision within thirty days, and could the defendants be found guilty upon the failure to prove these two facts ? Clearly not, as the law, as it stands, to-day, would require such proof; yet, but for the act of 1892, such proof would not have been necessary. In other words, it is clear that before there could be a conviction, a violation of the provisions of the act of 1892 must he proved.

But the defendants cannot be convicted under the provisions of the act of 1892, because that act as to offenses committed prior to its passage is e® jjostfacto, and it is thus beyond the power of the legislature to provide that it should include offenses committed prior to its passage. Upon a conviction, under what act could the defendants be punished ? Clearly not under section 117 of the Penal Code, because by the express provision of the act of 1892 special provisions are provided for the punishment to follow from the violation of that act.

I see no escape from the conclusion that, by the repeal of the act of 1873, this indictment must fall. I regret to be compelled to come to this conclusion, as it is extremely unfortunate that these defendants can escape the responsibility for their acts without trial, and this case well illustrates the danger of amendments of laws by the legislature at the request of particular individuals to meet particular cases, but where the object sought to be accomplished is so concealed that the real effect of the passage of the law was never considered by the legislature ; for it can hardly be supposed that the legislature would have intentionally enacted that a person under an indictment for a crime against the state should, by legislative act, be relieved from all responsibility without a trial.

I am constrained, however, for' the reasons stated, to sustain the demurrer and order judgment for defendants.

Note.—Where the statute under which defendant has been indicted has been repealed before the trial the prosecution fails (People v. Page, 7 N. Y. Crim. Rep. 5 ; Wheeler v. State, 64 Miss. 462. S. P. Where the repeal is after trial and before judgment (State v. Williams, 97 N. C. 455).  