Opinion
November 14, 1906.
C.B. Miller and Philip Elting, for the appellant.
Frederick Klein and Edmund Bittiner, for the respondents.
The original enactment of the Legislature in regard to penalties for unlawful use of milk cans is found in chapter 295 of the Laws of 1865. The material part of said act is as follows: "Any person offending against the provisions hereof shall be liable to a penalty of twenty-five dollars for each and every milk can so taken, used, sold, disposed of, bought or trafficked in for the first offense, and fifty dollars for each and every milk can so used, sold, disposed of, bought or trafficked in for every subsequent offense; to be sued for and collected in the name of the people of this State, by any party aggrieved." In 1887 chapter 401 was passed, so far as material to this discussion, in the following form: "Any person or persons who shall, in violation of this act, either use, sell, dispose of, buy, traffic in or have in his, her or their possession, any such can or cans, * * * shall be liable to a penalty of ten dollars for any such can either so used, sold, disposed of, bought, trafficked in or found in his, her or their possession for the first offense, and twenty dollars for each and every can either so used, sold, disposed of, bought, trafficked in, or found in his, her or their possession for every subsequent offense, to be recovered by proceedings as herein provided and set forth, together with all costs and disbursements of said proceedings." Chapter 25 of the Laws of 1890 purported to amend section 4 of chapter 401 of the Laws of 1887 so as to read as follows: "Any person or persons who shall in violation of this act either use, sell, dispose of, buy, traffic in, or have in his, her or their possession, any such can or cans, * * * shall be liable to a penalty of fifty dollars for any such can either so used, sold, disposed of, bought, trafficked in, or found in his, her or their possession. Such penalties may be recovered by action in the Supreme Court of this State, with costs and disbursements, and the place of trial of such actions may be in the county in which the owner or owners, dealer or dealers, shipper or shippers of such can or cans may reside at the commencement of such action." In 1896 chapter 34 of the General Laws was passed. This was the Domestic Commerce Law, and was chapter 376 of the laws of that year. In section 29 of that act was found the following provision: "A person violating any provision of this section shall forfeit to such owner, or dealer or shipper, or his agent, the sum of fifty dollars for every such violation." Sections 110 and 111 of this chapter expressly repeal chapter 295 of the Laws of 1865, chapter 401 of the Laws of 1887, and chapter 25 of the Laws of 1890, to take effect on October 1, 1896. Later in 1896 chapter 977 was passed as an amendment to chapter 401 of the Laws of 1887, to take effect on May 28, 1896. In section 4 of the act of 1887, as thus amended, it is provided: "Any person or persons who shall, in violation of this act, either use, sell, dispose of, buy, traffic in or have in his, her or their possession any such can or cans, * * * shall be liable to a penalty of fifty dollars for each and every offense, and each and any of such can or cans either so used, so disposed of, bought, trafficked in or found in his, her or their possession; such penalty may be recovered in an action in the Supreme Court of this State, or any other court of record in this State, with costs and disbursements." In section 13 of that act, as thus amended, it is provided that "All acts or parts of acts inconsistent with the provisions of this act are hereby repealed." By chapter 482 of the Laws of 1902, section 29 of the Domestic Commerce Law was amended. The amendment is not material to this question except as the provision is there retained that "Any person violating any provision of this section shall forfeit to such owner or dealer or shipper or his agent the sum of fifty dollars for every such violation." Section 33 of the Statutory Construction Law (Laws of 1892, chap. 677) provides: "No provision of any chapter of the revision of the General Laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the Legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect shall not be deemed repealed unless specifically designated in the repealing schedule of such chapter."
Section 32 of the same act (as amd. by Laws of 1894, chap. 448) provides in effect that the provisions of a law repealing a prior law which are substantial re-enactments of the prior law shall be construed as a continuation of the prior law and not as new enactments. Under this statute the rule has been broadly stated, "That a mere change in the phraseology or in the arrangement or division of the sections of an antecedent law will not be construed as a change in the law unless the alteration is such as evidently purports a legislative intent to work such a change." (RUMSEY, J., in McAvoy v. City of New York, 52 App. Div. 488. )
If this then were not a penalty statute the rule of construction would seem to be plain that in the later statute there is no sufficient indication of an intention to change the rule specifically declared in the former statute that a penalty was incurred for each and every can which was thus improperly used. In Griffin v. Interurban Street R. Co. ( 179 N.Y. 438), where an action was brought to recover penalties for refusing to give transfers which the law required, it was held that the defendant was liable but that the penalties were not cumulative, and that but one penalty could be recovered. Judge BARTLETT in writing for a unanimous court said: "It is quite obvious that the legislative intention to permit the recovery of cumulative penalties for refusals of the defendant to comply with the provisions of the Railroad Law in regard to the transfer of passengers is as clearly manifested as in any of the cases cited.
"Notwithstanding this fact a majority of my brethren are of opinion that while the rule for the recovery of cumulative penalties, as already adverted to, is firmly established by the earlier decisions of this court, yet the changed conditions in the modern life of great cities render its modification imperative.
"There have been presented at the bar of this court civil and criminal cases where the aggregate penalties sought to be recovered have amounted to enormous and well-nigh appalling sums by reason of plaintiffs permitting a long period to elapse before beginning actions. Actions of this nature have become highly speculative and present a phase of litigation that ought not to be encouraged.
"The court is of opinion that if cumulative recoveries are to be permitted the Legislature should state its intention in so many words; that a more definite form of statement be substituted for the words hitherto deemed sufficient."
That case was discussed upon reargument in 180 New York, at page 538. If "the changed conditions in the modern life of great cities" render imperative a modification of the former rule and a reversal of rulings heretofore made, and if in actions for penalties the Legislature is required if it be intended to allow cumulative penalties to state "in so many words," the same underlying principle would require us in construing a penalty statute to be astute to find in a change of phraseology a change of intention on the part of the Legislature as to the allowance of cumulative penalties. The act of 1902 is the last expression of the Legislature upon this question. That provides a penalty for every violation of the act. The possession of one can or of more than one can might well be held a single violation of the statute. Were it not for the previous legislation upon the subject we would have no difficulty in arriving at the conclusion that a single penalty only had been incurred in the present case. Notwithstanding the previous legislation, however, in view of the strict construction which the law requires to be given to a penalty statute, and especially of a statute which is claimed to authorize cumulative penalties, we think that we are following the direction of the Court of Appeals when we declare that one penalty only is recoverable in the case at bar.
The judgment should, therefore, be affirmed, with costs.
All concurred; CHESTER and KELLOGG, JJ., in result.
Judgment unanimously affirmed, with costs.