they prohibit a crime. The imposition of a penalty does not render the transaction criminal; a penal action is civil. And it is familiar doctrine that both a civil and criminal proceeding are maintainable for the same wrong. So that, where the by-law simply provides a penalty for the wrong, not constituting it a crime, and it is a crime by the general law, the familiar principles permit a double prosecution on both. Again, the thing declared criminal by the one may not be identical with that so declared by the other; and then neither prosecution will be an impediment to the other, though there is but one transaction. But where precisely the same act is a crime under both the general law and the by-law, there are authorities which hold that a conviction or acquittal under the one will bar proceedings under the other. The result of which is, that the by-law repeals the general law for the cases wherein the prosecution is first had under it. The better doctrine, therefore, is believed to be the contrary; namely, that, just as the same act may be an offense against both the United States and a state, and punished by both,' so also it may be against a municipal corporation and a state. It might not be judicious or merciful to resort to both proceedings; but some of our courts, it is believed the greater number, maintain the right. "The powers which are exercised by a city government," observed Perkins, J., in an Indiana case, "are, it thus appears, superadded to those exercised by the state in the same locality."

1 Post, §§ 403, 404; Rex v. Sharples, 4 T. R. 777; Davenport v. Bird, 34 Iowa, 524; Hoyer v. Mascoutah, 59 Ill. 137; Cooper v. P., 41 Mich. 403; S. v. Decker,. 46 Conn. 241; Platteville v. Bell, 43 Wis. 488; Jenkins v. Cheyenne, 1 Wyo. 287; P. v. Manistee, 26 Mich. 422; Schmeider v. McLane, 4 Abb. Ap. 154; Greensburgh v. Corwin, 58 Ind. 518.

2 Crim. Law, I, § 32 and notes. 3 Id., § 264 et seq., 990.

4 Id., § 1076; S. v. Crummey, 17 Minn. 72; Shafer v. Mumma, 17 Md. 331, [79 Am. D. 656;] Berry v. P., 36 Ill. 423; [Plattsburg v. Trimble, 46 Mo. Ap. 459.]

5 McRea v. Americus, 59 Ga. 168, [27 Am. R. 390;] Mayo v. James, 12

Grat. 17; S. v. Sly, 4 Oreg. 277; Lewis v. S., 21 Ark. 209; [Ex parte Taylor, 87 Cal. 91, 21 Pac. R. 258.]

6 S. v. Thornton, 37 Mo. 360; Maher v. S., 53 Ga. 448, [21 Am. R. 269;] S. v. Cowan, 29 Mo.330; [Ex parte Burgeois, 60 Miss. 663, 45 Am. R. 420.]

7 Crim. Law, I, §§ 987–989.

8 Levy v. S., 6 Ind. 281; Waldo v. Wallace, 12 Ind. 569, 584; Greenwood v. S., 6 Bax. 567, [32 Am. R. 539;] Hamilton v. S., 3 Tex. Ap. 643; S. v. Bergman, 6 Oreg. 341; S. v. Williams, 11 S. C. 288; [Desoto v. Brown, 44 Mo. Ap. 148; McInerney v. Denver, 17 Colo. 302, 29 Pac. R. 516.]

9 Waldo v. Wallace, supra, p. 584. See also Gardner v. P., 20 Ill. 430; Robbins v. P., 95 Ill. 175.

CHAPTER IV.

AT WHAT TIME STATUTES TAKE EFFECT.

§ 27. Doctrine defined.—In the absence of any express provision, a statute has effect through the entire country from the first moment of the day on which it is enacted, reckoning from twelve o'clock of the preceding night; except that, when a constitutional or other like right would thereby be impaired, the actual hour and minute of its receiving the executive approval may be inquired into, and it will date from the instant thus ascertained. To particularize and explain:

§ 28. Ancient rule (changed in England).- Formerly, in England, the rolls of parliament were made up by the judges after its adjournment; no dates were given to the several acts, but all, says Dwarris, were "strung together" as one statute. The only date appearing in the rolls was that of the assembling of parliament; therefore, the record being the sole guide to the courts, they held every statute to have gone into operation on that day. Nor was it otherwise with an act which itself provided that it should take effect "from and after its passage." Upon this, the statute of 33 Geo. 3, c. 13, provided that, after 1793, the parliamentary clerk should indorse on every act, immediately after its title, the day on which it received the royal assent; "and such indorsement shall be taken to be a part of such act, and to be the date of its commencement where no other commencement shall be therein provided." And, by construction, the act takes effect from the first moment of such day.

With us. In North Carolina the majority of the court fol lowed the letter of the old English rule, and held that acts of assembly go into operation from the first day of the session." Hamlet v. Taylor, 5 Jones (N. C.), 36. See P. v. Clark, 1 Cal. 406.

Dwar. Stat. (2d ed.) 16, 31, 34, 36,

37, 460.

The Ann, 1 Gallis. 62; Panter v. Attorney-General, 6 Bro. P. C. 553. 'Latless v. Holmes, 4 T. R. 660;

♦ Tomlinson v. Bullock, 4 Q. B. D. 230, 232.

5 Smith v. Smith, Mart. (N. C.) 26; Hamlet v. Taylor, supra.

be void.' But a by-law may be good in part, and void as to the rest. We have seen that if a by-law is, for example, unreasonable, it is void; and the question whether it is reasonable or not is to be decided, not by the jury, but by the court."

24

CHAPTER IV.

AT WHAT TIME STATUTES TAKE EFFECT.

§ 27. Doctrine defined.—In the absence of any express provision, a statute has effect through the entire country from the first moment of the day on which it is enacted, reckoning from twelve o'clock of the preceding night; except that, when a constitutional or other like right would thereby be impaired, the actual hour and minute of its receiving the executive approval may be inquired into, and it will date from the instant thus ascertained. To particularize and explain:—

§ 28. Ancient rule (changed in England).—Formerly, in England, the rolls of parliament were made up by the judges after its adjournment; no dates were given to the several acts, but all, says Dwarris, were "strung together" as one statute. The only date appearing in the rolls was that of the assembling of parliament; therefore, the record being the sole guide to the courts, they held every statute to have gone into operation on that day. Nor was it otherwise with an act which itself provided that it should take effect "from and after its passage. ." Upon this, the statute of 33 Geo. 3, c. 13, provided that, after 1793, the parliamentary clerk should indorse on every act, immediately after its title, the day on which it received the royal assent; "and such indorsement shall be taken to be a part of such act, and to be the date of its commencement where no other commencement shall be therein provided." And, by construction, the act takes effect from the first moment of such day.

With us. In North Carolina the majority of the court followed the letter of the old English rule, and held that acts of assembly go into operation from the first day of the session."

'Dwar. Stat. (2d ed.) 16, 31, 34, 36, 37, 460.

2 The Ann, 1 Gallis. 62; Panter v. Attorney-General, 6 Bro. P. C. 553. 'Latless v. Holmes, 4 T. R. 660;

Hamlet v. Taylor, 5 Jones (N. C.), 36.
See P. v. Clark, 1 Cal. 406.

4 Tomlinson v. Bullock, 4 Q. B. D. 230, 232.

5 Smith v. Smith, Mart. (N. C.) 26; Hamlet v. Taylor, supra.

But generally in our states the day-not the hour-on which was taken the last step in the making of a statute appears in the record thereof; and the rule, subject to exceptions to be presently considered, is that no divisions of a day are allowable, and it goes into operation from the first moment of the day on which it receives the executive sanction.1

§ 29. Fractions of day.- Doubtless if the record showed the hour and minute at which a statute was enacted, the courts would give it effect only from such minute. sion would in some cases be open to question. widely, that the law does not regard fractions of a day. And