Spears v. Cty. of Modoc

Harrison, J. The plaintiff was convicted in a justice’s court, January 27, 1890, of violating an ordinance of the county of Modoc, forbidding the keeping of a saloon where spirituous liquors were sold, and on the same day judgment was entered against him, by which he was sentenced to “pay a fine of five hundred dollars, and, in default of payment thereof, be imprisoned in the county jail of said county of Modoc for the period of one day for each dollar of said fine, or until such fine be satisfied.” From this judgment he appealed to the superior court. On the 19th of February, 1891, that court affirmed the judgment of the justice’s court. Before the hearing of the appeal the ordinance under which the conviction was had was repealed, the repeal taking effect January 24,1891. June 3, 1891, an execution upon this judgment was issued out of the justice’s court, under which the sheriff levied upon certain property of the plaintiff herein, and was proceeding to sell the same when this action was brought to restrain the enforcement of the execution. A demurrer to the complaint was sustained by the court, and from the judgment entered thereon the plaintiff has appealed.

By the appeal to the superior court the enforcement of the judgment appealed from was stayed until after the determination of the appeal. (Pen. Code, sec. 1470.) As no undertaking on appeal was required, the appeal itself operated as a supersedeas. (McGarrahan v. Maxwell, 28 Cal. 91.) The effect of the appeal was therefore to preserve the rights of the parties in the same condition as they were prior to the entry of the judgment (Dulin v. Pacific Wood & Coal Co., 98 Cal. 304); and until the determination of the appeal the proceeding was a pending action in which the rights of neither party had been conclusively determined. In People v. Frisbie, 26 Cal. 135, an appeal had been taken from a judgment for delinquent taxes, rendered in favor of the plaintiff, and the judgment of the district court was affirmed. Pending the appeal, and before decision thereon, the legislature passed an act authorizing an [305]additional defense to be interposed by the defendant in pending suits, and it was held that the appeal had suspended the operation of the judgment so that the action was still pending and that the plaintiff did not have a vested right to the judgment, but that its rights were limited to its cause of action. (See also People v. Tread-Well, 66 Cal. 400.) .

In Kay v. Goodwin, 6 Bing. 576,4 Moore & P. 341, it was said by Tindal, C. J., that the effect of repealing a statute is “ to obliterate it as completely from the records of the parliament as if it had never passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.” This principle has been applied more frequently to penal statutes, and it may be regarded as an established rule that the repeal of a penal statute without any saving clause has the effect to deprive the court in which any prosecution under the statute is pending of all power to proceed further in the matter. “ The repeal of a statute puts an end to all prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal.” (Sedgwick’s Statutory and Constitutional Law, 130. See also Endlich on Interpretation of Statutes, sec. 479.) “ If a penal statute is repealed pending an appeal, and before the final action of the appellate court, it will prevent an affirmance of a conviction, and the prosecution must be dismissed, or judgment reversed.” (Sutherland on Statutory Construction, sec. 166.) The proceeding is arrested at the very point where it is at the date of the repeal; if before indictment no indictment can be found; if after indictment, and before trial, no conviction can be had; if after conviction and before judgment, no judgment can be rendered. If the judgment is appealed from, and its enforcement is suspended until the determination of the appeal, the power to enforce the judgment falls with the repeal of the statute, and the appellate court will direct a dismissal of the proceedings. Until the determina-