Commonwealth v. Kendall

Devens, J.

The contention of the defendant is, that, as the complaint in the case at bar was brought under the St. of 1885, c. 352, § 8, the penalty for the offences described in which was provided for by reference to the Pub. Sts. c. 57, § 5, and further, that, as at the time of the alleged offence § 5 of the Pub. Sts. c. 57 had been repealed, by substitution, by § 2 of the St. of 1886, o. 318, there was, therefore, no offence for which any legal penalty had been provided, and thus that no prosecution could be maintained. Commonwealth v. Kenneson, 143 Mass. 418 . Commonwealth v. Kelliher, 12 Allen, 480 .

If we give the defendant the full benefit of his contention, that § 5 of the Pub. Sts. c. 57, is repealed by necessary implication, the result that there is no legal offence under the St. of 1885, c. 352, § 8, for which any penalty has been provided, by no. means follows. When the St. of 1885, e. 352, § 8, enacts that “ whoever violates the provisions of this section shall be punished by the penalties provided in section five of chapter fifty-seven of the Public Statutes,” it describes the penalties by reference to that section. They are different, as the offence may be a first, second, or subsequent one, and, without recapitulating them in detail, they are thus imported into the St. of 1885. If different penalties are from time to time afterwards imposed *359 for the offences described in the Public Statutes, such penalties would not be imposed for the offence described in the St. of 1885, unless there was some legislation which applied them to it. The penalties which are imposed by the Public Statutes as they then existed are the penalties imposed by the St. of 1885, and, for the purpose of. defining them, the later statute incorporates with itself the earlier one, so far as it relates to them. Where a prior act, or, as in the case at bar, part of a prior act, is incorporated with a subsequent act, it is the same thing as if the words of the first act had been repeated in the second act, so that the repeal of the first act will not take away the effect of the words which are so repeated in the second act by means of this incorporation. Regina v. Stock, 8 A. & E. 405. Regina v. Merionethshire, 6 Q. B. 343. Regina v. Smith, L. R. 8 Q. B. 146. Regina v. Brecon, 15. Q. B. 813. Difficulty may sometimes be experienced in determining whether a former act or a portion of it is incorporated in the later one. Boden v. Smith, 18 L. J. (N. S.) C. P. 121. But it does not exist in this case.

We are of opinion that the penalties imposed by the Pub. Sts. c. 57, § 5, are made a part of the St. of 1885, e. 352, § 8, as clearly as if they were written out at length and in terms recited in it. Exceptions overruled. .