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ject-matter of pension fees, the excess of charges, the withholding of pension money, and the liability of pension agents. It enacted different provisions, retaining some of the previous regulations, omitting others, and making contradictory provisions respecting still others. It enacted a new tariff of fees. It prescribed a different punishment from that before existing for the offenses retained, and it omitted one class of the cases which constituted an offense under the former acts. This, upon principle, operates as a repeal of the former act, and annuls those portions of it which are not found in the new act.1 In Bartlet v. King, a statute passed in 1754 concerning bequests and donations to pious and charitable uses, was held to be repealed by the passage of an act, in 1785, upon the same subject, and which act did not contain the provisions of the former act. In Dash v. Van Kleeck,3 the court say that a subsequent statute, making a different provision on the same subject, is not to be construed as an explanatory act, but as a repeal of the former act. In Daviess v. Fairbairn, it is laid down that, though a subsequent statute be not repugnant in all its provisions to a prior one, yet if it is clear that the latter was intended to prescribe the only rule which should govern in the case provided for, it repeals the prior one.5 By the statute of 1864, the offense of taking excessive fees, and the offense of withholding pension money, are each punishable by a fine not exceeding $300, or by imprisonment for two years. By the statute of 1870, the offense of taking excessive fees may be punished by a fine of $500, or by imprisonment for five years. There is no other repeal of the former statute as to the offense of taking excessive fees than that arising from the repugnancy of the provisions of the two statutes. It is not contended, however, that the former statute remains in force as to that offense. It is impossible that there should be in force, at the same time, a statute punishing the offense of taking excessive fees by a fine not exceeding the sum of $300, and an imprisonment not exceeding two years, for each offense, and a statute punishing the same offense by a fine of $500 and an imprisonment for five years. The latter stat

ute, in such case, operates as a repeal of the former statute.

I have said, and I place my decision upon the ground that the statute of 1870 was intended to embrace the whole subject-matter of the duty of pension agents, including excessive charges and withholding pension moneys. It was intended as a revision or a codification of the existing laws on those subjects, Thus, the act of 1862 is entitled "An

1 Norris v. Crocker, 13 How. 429; United

States.

Tynen, 11 Wall. 88.

2 12 Mass. 537.

27 Johns. 477.

13 How. 636.

See, also, Stewart v. Kahn, 11 Wall. 502; United States v. Tynen, 11 Wall. 92; Ellis v. Paige, 1 Pick. 43; Nichols v. Squire, 5 Pick. 168.

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act to grant pensions," and is devoted chiefly to enacting who shall have pensions. The sixth and seventh sections, already cited, referring to the fees of pension agents, and making excessive charges of agents, or the withholding of pension money by agents, a criminal offense, are the only ones referring to any other subject. The act of 1864 is entitled "An act supplementary" to the act of 1862, and as might be expected, is devoted mainly to the same subject. Sections 12 and 13 are the only exceptions, these sections being substituted for sections 6 and 7 in the former act. Then comes the act of 1870, which is entitled "An act to define the duties of the pension agents, to prescribe the manner of paying pensions, and for other purposes. This act is made up of provisions touching the duties of agents, their liabilities, their rights and their exclusions, and the manner of conducting business with them by the departments. When, under such circumstances, it is enacted that one act described in the former statute shall remain an offense punishable by a larger fine and a longer imprisonment, and when all reference to another act on the same subject, described and made punishable in the former statute, is omitted in the latter statute, it is a reasonable conclusion that such omission was intended as a repeal of the offense thus omitted. In 1873 the offense of withholding was again created and its punishment declared, but, from the passage of the act of 1870 until the passage of the act of 1873, there was a hiatus, a space of time when the offense did not exist.

This view is sustained, also, by the course of legislation respecting the right of attorneys or agents of this class to receive the money allowed to claimants. By the statutes of April 10, 1806,1 and of July 4, 1866,2 on the subject of pensions, as well as by the statutes of 1862 and 1864, above quoted, the employment of agents and attorneys was recognized, their relation to the claimants was regulated, their fees were fixed, and the manner in which payment should be made to or through them was pointed out. This so continued until the passage of the law of 1870. By the third section of that act, payment to the claimant alone was authorized, and it was expressly declared that no power of attorney should be recognized, nor should any pension be paid thereon. It was quite in accordance with this idea, and a part of the same scheme of legislation, that the offense of withholding a pension should at the same time be dropped from the category of offenses. While Congress permitted and authorized attorneys to receive the money due to pensioners, it was well to make the withholding of such money an offense. When it declared that the money should be paid directly to the claimant, and no power of attorney should be recognized,

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it was natural to drop the offense of withholding. Indeed, if the statute was complied with, the offense could not exist. The attorney not being allowed under any circumstances to receive the money, a statute prohibiting his withholding it is not to be expected. In pursuance of the same scheme, when, in 1873, Congress again authorized the action of agents and attorneys, and the payment of pension money to them, it was to be expected that the offense of illegally withholding such money would be renewed, and, accordingly, we find such offense renewed and recreated by section 31 of that act.

The statute of February 25, 1871,1 has been cited in support of the indictment. That statute provides "that the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability." In the case before us, there was no "liability incurred under such statute." When the act was committed, the statute forbidding it did not exist. The act of 1871 contemplates the case of an offense committed while a statute forbidding it is in force, and provides that the repeal of such statute shall not prevent a prosecution for the offense. It does not meet the case of an act unforbidden by statute at the time of its commission.

The district attorney contends that the prisoner was lawfully convicted under the third count of the indictment, which charges a receipt of the money on the 23d of September, 1872, and a wrongful withholding thereof on the 31st of March, 1873. He insists that section 31 of the act of March 3, 1873, covers the case. The jury convicted the prisoner on the first and second counts, which charged the withholding to have been on the 23d of September, 1872, as well as upon the third count. It is conceded that but one offense was committed, and punishment is only asked as upon the commission of one offense. The transaction, in fact, occurred in September, 1872, and the withholding is transferred to March, 1873, only upon the principle that the offense is continuous; that it continues as long as the money is retained by the prisoner. The money was actually received in September, 1872. At that time, as the record shows and the jury have found, in convicting upon the first and second counts, the prisoner illegally withheld $405 thereof. He then put it into his pocket, and refused to deliver it to the claimant. His offense was then complete. He could have been indicted at once under the United States statute, for illegally withholding the money, if forbidden by such statute. He could have been sued

1 16 U. S. Stat. at Large 432, sec. 4.

at once in a civil action for the amount so withheld.

The offense and the liability being complete, the statute of limitations at once commenced to run. The offense charged is the act and fact of withholding. What the prisoner afterwards does with the money can not create, alter, or continue the offense. He, surely, could not set up as a defence that, after the 23d of September, 1872, he had returned the money to the pensioner. It was never heard that a larceny could be purged by a return of the stolen property. It would not mitigate the offense that he should bestow the money in pious uses. Nor, in my judgment, does it create a new, a subsequent and a perpetual offense, unbarred by all the statutes of limitation, that the prisoner should retain the money. He stands or falls upon the act as when it was committed. It is provided by the statutes of certain States that, when stolen property is transferred into a county different from that from which it was taken, the thief may be indicted for larceny in the latter county. So, in some States, it is held that, when stolen property is brought into another State, the taker may be indicted in the latter State. The rule on this point varies in the different States. In all these cases there is a subsequent and additional act besides the one constituting the original offense. Thus, a thief steals property in the county of Albany. That is of itself an offense. Stopping there the offense is limited to the original taking, and the thief can be indicted in the county of Albany only. When the thief also carries the property into the adjoining county of Rensselaer, he adds another fact to the case. He transports stolen property to another jurisdiction, and the sin of the original taking accompanies such transportation. But I know of no principle upon which the original act itself, nothing additional being said or done, can be converted into a new offense or carried on indefinitely; that is, can be made perpetually continuous.

The judgment must be arrested, and as the objection goes to the foundation of the indictment, the indictment must be quashed and the prisoner discharged.

PENSION LAWS - RETAINING PENSION MONEY BY AGENT.

UNITED STATES v. SNOW.

[2 Flippin, 5.]

In the United States Circuit Court, District of Tennessee, 1877.

Retaining Pension Money by Agent - When Lawful. Where a pension agent, in pursuance of a contract entered into between himself and a soldier's widow, retained out of a pension procured by him for her his legal fees, and a certain sum in addition

for removing the imputation of desertion resting upon her late husband upon the rolls of the War Department, and his costs and expenses, held, that such retention was lawful, and not an offense under the law relating to the retention of pensions by pension agents.

Indictment for charging more than is allowed by law for obtaining a pension for a soldier's widow. The defence was that the husband of the applicant was charged on the records of the War Department with being a deserter, and that the extra charge was for services in having that charge removed. There was a demurrer to the plea.

BROWN, J. By the Revised Statutes,' it is provided that "any agent or attorney, or any other person, instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirectly contract for, demand or receive, or retain, a greater compensation for his services" than is elsewhere provided "shall be deemed guilty of a high misdemeanor."

This compensation is such as the commissioner of pensions shall direct to be paid to him, not exceeding $25.2 And in case no agreement is made with the applicant, and filed with and approved by the commissioner, the fee shall be $10, and no more.3 The section first above quoted being not only penal in its character, but in derogation of the common-law right of every person to make his own bargain, should receive a strict construction. The design of the act was to prevent exorbitant charges being extorted by pension solicitors from a class of persons who are usually illy able to pay them, or to assert their rights against parties who hold the money in their hands. It was intended to fix a fair compensation for the labor usually and ordinarily necessary in obtaining a pension, but not for the extraordinary services performed in a different department for a different purpose, although the ultimate object of those services may be the obtaining of a pension. The labor involved in procuring a widow's pension is ordinarily very slight, consisting merely in filling out a blank petition and affidavits showing the enlistment and death of the soldier, his marriage to the petitioner, and the number and ages of her minor children. The records of the War Department are then referred to to confirm the fact of enlistment and death. For these services $10 was regarded as a fair compensation, although the parties may contract for the payment of $25, provided a prior agreement be made to that effect, and filed with and approved by the commissioner. Clearly the statute covers only services, and the attorney would still be entitled to charge for expenses incurred in procuring testimony.

But in the case under consideration, defendant was called upon to

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