The relator was adjudged guilty of a criminal contempt because he refused to answer certain questions put to him by the foreman of the grand jury of the county of New York. By writ of certiorari he asks this court to review, and if error were committed to reverse, the action of the court below. The grand jury,, at the time the-. *208questions were asked, was investigating a charge which had been made against one Canfield, to the effect that between the 1st day of January, 1901, and the 1st day of December,, 1902, he had violated •section 344 of the Penal Code, which provides, among other things, that a person who is the owner, agent or superintendent of a place or, of any device or apparatus for gambling, or who hires on allows to be u'sed a.rootii, table, establishment or apparatus for such a purpose is a common gambler, and punishable by imprisonment for not more than two years or by a fine not exceeding $1,000, or both. The questions which were asked the relator were whether he had •ever .b.een in premises No. 5 East Forty-fourth street .in the city of New York; whether he had ever seen Canfield in said premises, or whether he had played roulette there. His refusal to answer' was placed upon the ground that his answer might tend to incriminate him or subject him to a penalty or forfeiture. Some months before the relator had been before another grand jury, when similar questions were asked, which he refused to answer and for which he was then adjudged guilty of a criminal contempt; but on appeal to this court it was held that lie was justified in refusing to answer, inasmuch as section 342 of the Penal Code (See Laws of 1881, chap. 676, § 342) under which it was sought to obtain the evidence did not give him complete immunity (People ex rel. Lewisohn v. O'Brien, 81 App. Div. 51), which decision was subsequently affirmed by the Court of Appeals (176 N. Y. 253). After the decision of the Court of Appeals the section of the Penal Code referred to was aménded by chapter 649 of the Laws of 1904, by which, it seems, complete immunity is now granted to a witness who is compelled to testify or furnish evidence in pursuance of "it. (Brown v. Walker, 161 U. S. 591.)
The court below held, and a majority of this court is about to affirm the decision, that the relator—complete immunity having been given by the .section of the Penal .Code as amended — was guilty of a criminal contempt in refusing to answer, notwithstanding the fact that the amendatory act was passed subsequent to the ¡alleged commission by Canfield of the crime which was the subject-matter of the investigation.
.I am unable to concur in this view. To do so requires us to hold that .the act of 1904 has a retroactive effect, when there are no words *209in it from which even an inference can be drawn that the Legislature ever intended it to apply to past transactions. A cardinal rule relating to the construction of statutes is that they are not to have a retroactive effect unless the Legislature so intended and such intent is expressed in clear and unambiguous words. This rule was tersely stated in O'Reilly v. U., N. & C. S. Co. (87 Hun, 406), where the court, quoting from New York & Oswego M. R. R. Co. v. Van Horn (57 N. Y. 473), said: “ A law is never to have retroactive effect, unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it. should have such operation only.” This case was recently cited with approval by the Appellate Division in the second department in Bottjer v. Supreme Council (78 App. Div. 546), the court saying: “The general rule is that all enactments are to be considered prospective in their operation unless the contrary intention is either declared or clearly manifested.” Indeed, this rule is of universal application, and applies to all statutes except, possibly, those of a remedial character or those relating, exclusively to a method of procedure or a rule of evidence, and the one under consideration cannot be said to fall within any of those classes. Statutes designed to affect past transactions usually have their origin in an improper motive, and rarely accomplish a public good. It is for this reason that they are mentioned with disfavor by text writers, and are quite generally condemned by the courts when brought under judicial review. Thus it was held that a statute which provided that all highways which had ceased to be traveled or used as such for six years should cease to be highways for any purpose applied only to highways that had ceased to be traveled for six years after the passage of the act (Amsbry v. Hinds, 48 N. Y. 57); that a constitutional provision to the effect that the amount recovered in actions to recover damages for injuries resulting in death should not be subject to any statutory limitation did not apply to causes of action which accrued before the Constitution went into effect (Isola v. Weber, 147 N. Y. 329); that a statute prescribing new penalties for defaulting taxpayers only applied to defaults which accrued subsequent to the statute taking effect (Bartruff v. Remey, 15 Iowa, 257); one taking away the *210• defense of usury in an action brought by the indorsee of a promissory note to whom the same was indorsed before maturity for value, with out notice, applied only to notes made subsequent to the passage of the act. (North Bridgewater Bank v. Copelaud, 7 Allen, 139); one requiring a new promise to be in writing to take a case out of the Statute of Limitations, did not affect a promise made prior to the time thei statute became a law (Richardson v. Cook, 37 Vt. 599); so a statute exempting a bank from the payment of interest on deposits was held not to apply to deposits made prior to the time the statute became a law (Hannum v. Bank of Tennessee, 1 Cold. 398); and a statute regulating the execution of wills was held not to apply to wills made prior to its passage. (Taylor v. Mitchell, 57 Penn. St. 209. See, also, Sedg. Stat. & Const. Law [2d ed.], 160; Suth. Stat. Const. 601; Endl. Interp. Stat. § 271 et seq.; Potter’s Dwarris Stat. 162.) But is is unnecessary to multiply authorities because the rule is general. It is well understood and universally recognized in this country and in England.
It is'suggested in the prevailing opinion that the application of section 342 of the Penal Code, as amended by. the act of 1904, to a proceeding commenced after its passage is not giving it a retroactive effect. I think it is. 16 Every statute,” says Mr. Justice Story in Society, etc., v. Wheeler (2 Gall. 139), “ which * * * creates a new obligation, imposes a hew duty or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective.” (See, also, Dash v. Van Kleeck, 7 Johns. 477; Calder v. Bull, 3 Dall. 386.) That the act of 1904. creates a new obligation and imposes a new duty upon the relator, if it be held to apply' to past transactions, cannot, as it seems to ,me, be seriously questioned. Prior to its passage he was under no obligation to answer the questions propounded to him, and the courts, have so decided. Not only this, but the statute is in one sense penal in character, inasmuch as it makes him guilty of a crime for refusing to do that which previous to its enactment was justifiable. (Penal Code, § 143, subd. 6.) , Full effect can be given to this act of 1904 by holding it prospective and not 'retrospective. A statute will never be so construed as to give it a retroactive effect when it is capable of any other construction. (New York & Oswego M. R. R. Co. v. Van Horn, 57 N. Y. 473; United States v. Heth, 3 Cranch, 399; *211Chew Heung v. United States, 112 U. S. 559; Matter of Tuller, 79 Ill. 99.) There certainly’is nothing in the act itself, as already said, to indicate an intent on the part of the Legislature that it was to be retroactive in its operation, and when it is read in connection with section 719 of the Penal Code a contrary intent must at least be inferred. That section provides that “ nothing contained in any provision of this Code applies to an offense committed or other act done at any time before the day when this Code takes effect. Such an offense must be punished according to, and .such act must be governed by the provisions of law existing when it is done or committed in the same manner as if this Code had not been passed.” If it be said that it relates to' a method of procedure, then it must be read in connection with section 954 of the Code of Criminal Procedure (People v. Rugg, 98 N. Y. 537), which provides that no part of that Code “ is retroactive unless expressly so declared.”
If I am right in the conclusion that the statute of 1904 does not have a retroactive effect, then the relator was justified in refusing to answer the questions which were put to him.
For these reasons I think the writ should be sustained and the relator discharged.