Roger M. Sherman, for the People. [128 U.S. 189, 190] McKenzie Semple, for appellant.
FULLER, C. J.
This is an appeal from an order of the circuit court of the United States for the Southern district of New York denying appellant's petition for the writs of habeas corpus and certiorari. The petition alleges that petitioner was convicted in the court of oyer and terminer of the city and county of New York, in May, 1886, of the crime of bribery, committed as a member of the common council of the city of New York, and was sentenced May 20, 1886, to be imprisoned in the state prison for the term of nine years and ten months, and entered upon such imprisonment May 21st; that 'the only authority of law for said sentence upon said conviction is a statute of the state of New York, passed July 1, 1882, and known as the 'Consolidation Act,' and especially the 2143d section thereof, by force of which the 'Penal Code,' otherwise inapplicable, is made to apply to said offense, and thereby the offense is made punishable, although committed before the 'Consolidation Act' took effect, as well as when committed after, indifferently and indistinguishably, by a maximum imprisonment of ten years in [128 U.S. 189, 191] state prison; whereas, before that act took effect, said offense was punishable by a maximum imprisonment in the penitentiary of two years;' that said law is ex post facto; and that petitioner, having served the full term of imprisonment which could lawfully be imposed, is entitled to be discharged.
The Penal Code of the state of New York took effect as a law December 1, 1882; and, under its seventy-second section, the maximum punishment for the crime of bribery committed by any person who executes any of the functions of a public office was fixed at 10 years' imprisonment, of $5, 000 fine, or both. The city consolidation act was passed July 1, 1882, to take effect March 1, 1883; and by section 2143 it was provided that the Penal Code should have the same effect as if passed after 'this act.' By section 100 of the New York City charter of 1873, (chapter 335, Laws [128 U.S. 189, 192] 1873,) the crime of bribery committed by a member of the common council subjected him upon conviction to imprisonment not exceeding two years, or fine, or both. By section 58 of the consolidation act this section 100 of the act of 1873 was re-enacted. By section 725 of the Penal Code 'all acts incorporating municipal corporations, and acts amending acts of incorporation or charters of such corporation,' were, inter alia, declared not to be affected by it, and recognized as continuing in force, [128 U.S. 189, 193] notwithstanding the Code, except so far as repealed by subsequent laws. It is claimed that section 100 of the act of 1873 was not repealed by the Penal Code, but was excepted from its operation by section 725, and continued in force for the four months between December 1, 1882, when the Penal Code went into operation, and March 1, 1883, when the consolidation act took effect, and that section 58 of the latter act then replaced it, and was not superseded by section 72 of the Penal Code, under section 2143 of the consolidation act, but kept in force by section 725 of the Penal Code; or, in other words, it is argued that section 100, being a section of the city charter, was saved from repeal by the Penal Code by section 725 of the latter, and was not repealed until by the subsequent law, known as the 'City Consolidation Act,' which took effect March 1, 1883, and was even then continued in force as section 58 of the consolidation act, which is identical with said section 100; and that, at all events, the measure of punishment from December 1, 1882, to March 1, 1883, is that prescribed by section 100 of the old charter, and repeated in section 58 of the new. And it is insisted that section 72 of the Penal Code, with the force and effect given it by section 2143 of the consolidation act, under the decisions of the New York court of appeals, is ex post facto, and therefore void, in that thereby the maximum punishment by imprisonment of the crime of bribery committed before as well as after the consolidation act went into effect was changed from two to ten years.
In People v. O'Neill, 109 N. Y. 261, 16 N. E. Rep. 68, and People v. Jaehne, 103 N.Y. 182, 8 N. E. Rep. 374, it was held by the court of appeals that section 100 of chapter 335 of the act of 1873 was not within the saving clause of section 725 of the Penal Code, but, on the contrary, was repealed by that Code as soon as it went into operation, December 1, 1882; and that section 58 of the consolidation act, which is but a transcript of said section 100, was not kept in force by said section 725, and was superseded by section 72 of the Penal Code, which latter section was prospective merely, and could only operate upon the crime of bribery committed by a member of the common coun- [128 U.S. 189, 194] cil after the Penal Code took effect. Accepting the conclusions of the highest court of the state of New York as to the operation of the acts in question in substituting, under section 72, a longer term of imprisonment for that which had theretofore existed, it is clear that section 72 governed future cases only; but, even if, taken in connection with all the other statutory provisions referred to, it could be construed as also retroactive, as it was admitted upon the argument that the crime, upon conviction of which the petitioner was sentenced to the imprisonment he is now undergoing, was charged to have been committed in 1884, long after the Penal Code and the consolidation act went into effect, we perceive no reason for the discharge of the prisoner upon the ground that section 72 might be held invalid in respect to a crime committed between December 1, 1882, and April 1, 1883, if drawn in question in a proper case. The rule upon this subject which we consider applicable is that 'a legislative act may be entirely valid as to some classes of cases and clearly vold as to others. A general law for the punishment of offenses, which should endeavor to reach by its retroactive operation acts before committed, as well as to prescribe a rule of conduct for the citizen in future, would be void so far as it was retrospective; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control.' Cooley, Const. Lim. (5th Ed.) 215.
The order of the circuit court refusing the writs was right, and it is affirmed.
[ Footnote 1 ] Affirming 35 Fed. Rep. 357.