UNITED STATES v. VAN ·vL1E’1‘. 35
Unrrnn Srums v. VAN Vnmr.
p (District Court, E. D. Michigan. February 23, 1885.)
1. Cmmiur. Lsw-Tsxmo EXCEBSIVE PENSION FEE-U. B. v. VAN Vum, 22 FED.
REP 641, REVERSED.
The right to prosecute for a violation of Rev. St. ; 5485, in demanding and re-
ceiving a greater compensation for services in procuring a pension than is al-
lowed by law, when the offense was committed prior to the act of July 4, 1884,
is saved by section 13 of the Revised Statutes. The case of U. 8. v. an Vhet,
22 FED. REP 641, reversed.
2. SAME-Dnmunnna ro lmronuurion-Mrsrnxn or Lsw.
If a demurrer to a valid information be sustained under a mistaken view of
the law, and the judgment is afterwards reversed, the defendant may be rear-
rested, and put upon his plea to the merits.
On Rehearing of Demurrer to Information.
Defendant was prosecuted by information of the district attorney
for a violation of Rev. St. § 5485, in demanding and receiving a
greater compensation for his services and instrumentality in prose-
cuting certain claims for pensions than was allowed by law. A de-
murrer was interposed, upon the ground that the law fixing the com-
pensation for such services had been repealed, and hence that there
could be no conviction. This demurrer was sustained, and the dis-
trict attorney moved for a rehearing.
S. M. Outcheon, Dist. Atty., for the United States.
I . T. Cowles, for defendant.
Baown, J. Upon the original argument I sustained this demurrer,
upon the ground that the act of 1878, fixing the amount which pen-
sion agents were entitled to charge for their services, had been repealed
by the act of July 4, 1884, without saving the right to prosecute for
oifenses committed prior to the repealing act. U. S. v. Van Vtiet, 22
FED. REP. 641. Since then my attention has been called to section
13 of the Revised Statutes, which enacts that "the repeal of any stat-
ute shall not have the effect to release or extinguish any penalty, for-
feiture, 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 ac-
tion or prosecution for the enforcement of such penalty, forfeiture, or
liability." This section escaped the notice both of court and counsel.
I consider it a complete answer to the demurrer. It was at one time
doubted whether it applied to criminal prosecutions, but the case of
U. S. v. Ulrici, 3 Dill. 532, and U. S. v. Barr, 4 Sawy. 254, have ap-
parently put the question at rest. The case of U. S. v. Tynen, 11
Wall. 88, was decided in view of the law in force before the act of
February 25, 1871, which first contained this section, was passed.
There is no legal objection to the rearrest of the defendant. The
constitutional provision, that no person shall "be subject for the sam•
offense to be twice put in jeopardy," has no application until a jury