I regret that I am unable to concur in the foregoing opinion and judgment. I concur in that portion thereof which holds that the effect of the amendments of 1891 is to make such a change in the punishment prescribed for murders committed prior to their enactment as to bring them within the definition of an ex post facto law, and, therefore, that the punishment therein prescribed cannot be inflicted upon the defendant. I do not, however, concur in the conclusion deduced therefrom that we must, for this reason, conclude that the legislature did not intend that such result should follow, or that, if it had known that such would have been the result, it would not have enacted the amendments. Neither do I concur in the construction given to the amendments that the punishment for offenses committed while the former law was in force is so connected with that prescribed for future offenses that we must hold that the legislature did not intend that offenses thereafter committed should be punished in the mode prescribed by the amendments, unless prior offenses could be also punished in the same manner. The rule which generally obtains in the construction of statutes is that when a statute is re-enacted with certain additions, then for the first time made a part of the law, the provisions of the new act which are reproduced from the old and reenacted are deemed to be mere continuations of the former law, rather than a repeal and a re-enactment thereof, and that the portions of the former statute which are omitted from the new are repealed, and are from that time to be regarded as never having been a part of the law, while the new portions are to be regarded as then for the first time presenting the rule of conduct, and are limited in their operation and effect
*460to acts thereafter to he done. It was held in Billings v. Harvey, 6 Cal. 381, that section 24, article 4, of the constitution of this state, providing that “no law shall be revised or amended by reference to its title, but in such case the act revised or section amended shall be re-enacted and published at length,” prescribed a different rule of construction, and that by virtue of this constitutional provision “the re-enactment creates anew the rule of action, and, even if there was not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law, and the former stands to all intents as if absolutely and expressly repealed.” This rule of construction was afterward reaffirmed by the court in Billings v. Hall, 7 Cal. 3; Morton v. Folger, 15 Cal. 284; Clarke v. Huber, 25 Cal. 594; Bensley v. Ellis, 39 Cal. 313; People v. Tisdale, 57 Cal. 104. A similar ruling was made in Texas (State v. Andrews, 20 Tex. 230) and in Alabama (Wilkinson v. Ketler, 59 Ala. 306).
Section 325 of the Political Code provides: “Where a section or part of a section is amended it is not to be considered as having been repealed and re-enacted in the amended form, but the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment.” If the rule of construction applied in the foregoing cases is derived from the constitution, as was held in Billings v. Harvey, it would seem that the legislature could not by statute change this rule. In Central Pac. R. R. Co. v. Shackelford, 63 Cal. 268, the decision appears to have been made in accordance with the rule laid down in this section of the Political Code, although it is not referred to in the opinion, nor is there any reference to the above decisions, with which it is apparently in conflict. It is, however, unnecessary for the purposes of this case to determine whether the rule laid down in Billings v. Harvey or that prescribed by the Political Code is to prevail, inasmuch as the portions of the statute which are retained in the amended sections do not call for so much consideration as does the effect of those portions then first enacted, compared with the portions of the sections omitted from the re-enactment. Under well-established rules of construction the portions of the original sections which are omitted from the amendments are *461deemed to have been thereby repealed, and the portions then for the first time enacted are held to constitute the rule of action in reference to the subject matter therein expressed. All laws are prospective in their operation unless they contain express provision for making them retroactive; and laws prescribing punishment for crimes are essentially limited to future violations of the law creating the offense. Section 3 of the Penal Code declares that “no part of this code is retroactive, unless expressly so declared.”
The proposition contended for by the appellant is that by these amendments the punishment imposed for the offense has been changed to his disadvantage, „as well as increased, and that, as the legislature provided no saving clause in the statute for offenses committed prior to its passage, as was done in the statute under consideration in People v. Gill, 7 Cal. 356, and as was provided in section 6 of the Penal Code at the time of the enactment of that code, there can be no punishment inflicted upon him for his offense, either under the old statute, for the reason that the punishment thereby prescribed has been repealed, or under the new, as that prescribes a punishment different from and greater than was provided when the offense was committed, and, being ex post facto, is therefore unconstitutional and void. The effect of the repeal of a criminal law is to prevent any further action thereunder. By its removal from the statute-book the court is devested of all authority to try the accused, or, if tried, to pronounce judgment against him. It is immaterial at what stage of the proceeding the repeal takes place. If before trial, the defendant cannot be tried; if after conviction, and before judgment, he cannot be sentenced; if after judgment, and before sentence, he cannot be punished. Unless the proceedings have passed into final judgment, and beyond the necessity of any further action by the court, a repeal of the statute which makes the act an offense, or which defines the punishment for the offense, deprives the court of all further jurisdiction. Whenever the court is called upon to take any step or do any act which directly or in its consequences will have the effect to punish the defendant for any act done by him, it must find its authority therefor in a statute then existing and in force; and if, subsequent to the commission of the offense, the punishment prescribed therefor has been changed, without any saving clause *462for previous offenses, the court is devested of all authority to impose such punishment, and must punish the offender in conformity with the amended statute, unless restricted therefrom by constitutional provisions. “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. There can be no legal conviction unless the act is contrary to law at the time it is committed, nor can there be a judgment unless the law is in force at the time of the indictment and of the judgment”: Sedg. St. & Const. Law, p. 130. Mr. Bishop says: “No proceedings can be carried on under a law which, being repealed, is not existing to give authority to the court; consequently, if the common or statutory law which authorized a prosecution and conviction for a specific offense is repealed, or expired before final judgment, the court can go no further with the case. Even if a verdict has been rendered against the prisoner, sentence cannot be pronounced, and he must be discharged”: Bish. St. Crimes, sec. 177. “When an act of parliament is repealed it must be considered, except as to transactions past and closed, as if it had never existed”: Dwar. St. 160. The repeal of a penal statute takes away all right of action for the recovery of the penalty therefor: Norris v. Crocker, 13 How. 429, 14 L. Ed. 210; Breitung v. Lindauer, 37 Mich. 230. “The repeal obliterates the statute as if it had never been passed, and obliterates the penalties as if they had never existed”: Rood v. Railroad Co., 43 Wis. 153. “The repeal of the law imposing the penalty is of itself a remission”: Per Taney, C. J., in Maryland v. Railroad Co., 3 How. 552, 11 L. Ed. 722. In Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101, Chief Justice Marshall said: “After the expiration or repeal of a law no penalty can be enforced or punishment inflicted for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.”
In 1860 the legislature of New York passed an act changing the punishment for murder, and repealing the prior law for the punishment of that offense, by virtue of which it was held by the court of appeals of that state that the legislature had so interfered with the laws for the punishment of the crime of murder that a particular class of offenders, embracing the prisoner, could not be punished at all. The effect of this was *463that all murders which had been committed prior to the passage of that act, and for which the trial, conviction, and sentence had not taken place, escaped all punishment: Hartung v. People, 22 N. Y. 95, 26 N. Y. 167. In State v. Daley, 29 Conn. 272, the defendant was convicted in July, 1860, of manslaughter committed in May of that year. By an act passed by the legislature which took effect after the commission of the offense, and prior to the trial and conviction of the defendant, a change was made in the punishment of manslaughter from imprisonment in the state prison for a term not less than two nor more than ten years, to imprisonment in the state prison or county jail for a term not exceeding ten years. The court held that, as the statute was prospective only, without any saving clause, the defendant could not be punished, for the reason that the effect of the repeal without any saving clause was to leave no sanction or punishment for that crime applicable to previous offenders. “The effect of such repeal was, for the most obvious reason, that the law as to any proceedings under it which were not past and closed must be considered as if it had never existed, and therefore furnishes no authority after its repeal for the commencement of any proceedings, or for the further prosecution of any which had been before commenced. Hence it has been often decided that, if a provision of either the statutory or common law, which authorizes a prosecution and conviction for a specific offense, is repealed before final judgment, the court can proceed no further with the case, and that sentence cannot be pronounced, even although a verdict has been rendered against the prisoner, and he must therefore be discharged.” In State v. Campbell, 44 Wis. 529, the defendant was charged with the embezzlement of public funds committed in 1876. Before his trial under the charge the legislature revised the law of the state relative to embezzlement by an act which went into effect January 1, 1878. Upon a motion in arrest of judgment the court held that, inasmuch as the revising act contained no saving clause, authorizing a prosecution for offenses already committed, there is no law which would authorize or sustain a judgment on the verdict saying: “It is true, by this construction all offenses committed by public officers under the Revised Statutes of 1858, which were not prosecuted to judgment prior to the new law taking effect, will go unpunished, but this con*464sequence must rest upon the legislature, and not the courts. The legislature could easily have avoided such a result by enacting a proper saving clause in chapter 340. As the law now stands, we must hold that there is no statute under which it can be punished. We may deplore this, but it is beyond our power to help it without a violation of well-settled principles of law.”
In United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153, the defendant had been indicted for an offense committed against the naturalization laws, and while the matter was pending on appeal to the supreme court Congress passed an act embracing the whole subject of frauds against the naturalization laws. The supreme court, in disposing of the question, held that, although there was no express repeal of the law under which the defendant was indicted, yet as the provisions of the subsequent act were repugnant to those of the former, it operated as a repeal, saying: “There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offense be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed.” In Flaherty v. Thomas, 12 Allen, 428, the statute imposing the penalty for an offense was changed after the commission of the act to such an extent that it was held by the court to be a repeal of the former statute, and that the defendant could not be punished, saying: “All criminal statutes are limited in effect, and usually in terms, to future offenses. The establishment of a new rule of punishment is of itself a legislative declaration that the previous rule is not fit to exist, and therefore shall not be applied to any case unless the legislature, in order to prevent offenses already committed from going unpunished, provides that such offenses shall continue to be punished according to the previous laws. It is clearly settled by authority that, in the absence of any such provision, the old law cannot be resorted to after the new law has taken effect for the punishment of an offense committed before the passage of the latter, even if the defendant has been already convicted by the verdict of a jury.” In People v. Tisdale, 57 Cal. 104, it was held that an amendment in 1880 to section 607 of the Penal Code, by which the punishment for an offense was changed from a “fine not exceeding one thousand dollars, or imprisonment in the state prison not *465exceeding two years,” to a fine “not less' than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail not exceeding two years, or by both,” operated as a repeal of the former statute, and that, as the defendant was not charged with a violation of the statute as it stood after the amendment, he could not be punished under an information filed for a violation of the law before it was repealed: See, also, Commonwealth v. Kimball, 21 Pick. 373; Commonwealth v. McDonough, 13 Allen, 581; Kring v. Missouri, 107 U. S. 221, 27 L. Ed. 506, 2 Sup. Ct. Rep. 443; Garvey v. People, 6 Colo. 559, 45 Am. Rep. 531; In re Petty, 22 Kan. 477; Lindzey v. State, 65 Miss. 544, 7 Am. St. Rep. 674, 5 South. 99; Shepherd v. People, 25 N. Y. 406; Ratzky v. People, 29 N. Y. 124.
By omitting from the sections as amended the provisions authorizing the judgment to be executed by the sheriff, and within the county where the conviction was had, the legislature deprived the court of all power to authorize such execution by the sheriff, or within the county jail, and also took from the sheriff all capacity to execute the judgment. The amendments had the effect to obliterate from the statute all the provisions that were not re-enacted, as completely as if they had never formed a part thereof. The omitted portions became as if they had never existed, and the new portions are to be construed as if none had preceded them.
It is urged by the attorney general that, in case it shall be held that the sections as amended provided for a greater punishment than the original sections, such provision would be unconstitutional and void, and that, therefore, the amended sections are themselves unconstitutional and inoperative to effect a repeal of the former sections; and it is held in the prevailing opinion that, because it is unconstitutional to apply the punishment prescribed by the amendments to one convicted of an offense committed prior thereto, the amendments are thereby affected with such an unconstitutional element that it defeats their operation in reference to offenses subsequently committed. It is undoubtedly a correct proposition, that the provisions of a statute will not be affected by a subsequent unconstitutional act of the legislature, and that a clause in such act, repealing all other acts which are inconsistent therewith, will not affect the prior statute. The uncon*466stitutional act is to be regarded as wholly void, and inoperative, even for the purpose of displacing or overruling that for which it is sought to be made a substitute: Ex parte Davis, 21 Fed. 396; Tims v. State, 26 Ala. 165; State v. Crozier, 12 Nev. 300; State v. Hallock, 14 Nev. 202, 33 Am. Rep. 559; In re Petty, 22 Kan. 489; Campau v. Detroit, 14 Mich. 276. It is also a fundamental rule of construction that a statute is not to be declared unconstitutional unless it be clearly so, and also that, “if the statute is susceptible of two constructions, one of which is consistent and the other inconsistent with the restrictions of the constitution, it is the plain duty of the court to give it that construction which will make it harmonize with the constitution, and comport with the legitimate powers of the legislature”: People v. Frisbie, 26 Cal. 139. The legislature is not presumed to have intended to pass an unconstitutional act, and, unless the act clearly falls within some express prohibition of the constitution, or is beyond the power of the legislature, it is the duty of the courts to uphold, rather than to set it aside. All laws are presumed to have been passed with deliberation, and with a knowledge on the part of the legislature of the existing laws, and any statute, purporting either expressly or impliedly to repeal an existing law, is deemed to have been passed with the intent on the part of the legislature to make such change.
There is nothing in the terms of the sections as amended in 1891 which is repugnant to any provision of the constitution or beyond the powers of the legislature to adopt. It will not be disputed that it was entirely competent for the legislature, when originally defining crimes and their punishment, to provide that judgment of death should in all cases be carried into effect by the warden of a state prison and within its walls. Its power in this respect was not exhausted by its first exercise. It has the same power to-day to prescribe a different punishment for any crime that it originally had to fix the punishment therefor. It was within the power of the legislature to abolish capital punishment. It could even grant an amnesty for all murderers by simply repealing the section providing for their punishment; and, however much we may conjecture that the legislature would not purposely free a criminal from punishment, or however much we may think that it did not in the present case intend to grant an amnesty *467for any offense, we can only determine its intent by what it has said. “The result may or may not be conformable to the actual intent of those who passed the latter statute. We can only ascertain the legal intent of the legislature by the language which they have used, applied, and expounded conformably to the settled and well-known rules of construction”: Commonwealth v. Kimball, 21 Pick. 376. “If the legislature by the act of 1860 carelessly or unintentionally repealed the law punishing the prisoner’s crime, that is no reason why reasonable and well-settled principles of construction should be disregarded for the purpose of punishing it under that act”: Shepherd v. People, 25 N. Y. 411. “It is not a sufficient answer to the difficulty to say that the members of the legislature did not probably intend to grant impunity to offenders in the situation of the prisoner. They did intend to abrogate as to her and as to all persons in the same situation the former punishment, and that design they effectually carried out. They intended also that such offenders should be punished in another way, but this they could not effect on account of the constitutional inhibition”: Hartung v. People, 26 N. Y. 170. “The legislature might have inserted in the repealing act a saving clause, which would have prevented the defendant’s escape, if they had seen fit to do so. If they omitted it through mistake, the court cannot correct the mistake. Nor have we a right to decide that the omission was by mistake”: Commonwealth v. McDonough, 13 Allen, 585. The legislature has done no act, nor has it given utterance to any expression, which authorizes the inference that it did not intend the amendments to be operative unless they applied to all offenders; and I know of no other mode of ascertaining the intention of the legislature in reference to what it has enacted than the language of its act. The rules for the construction of statutes are simple, and do not vary with the subjects to which the statutes are directed. While the statement of the attorney general respecting the number of persons charged with murder who will be affected by the statute would have been properly presented to the legislature when that body had the act under consideration, it can have no weight with this court in construing the effect of the statute. If we should assume that the legislature knew that those persons would be affected by its action, and passed the amendments with such knowledge, or *468that it enacted them in the belief that they would not affect such previous offenders, we must still concede that such legislation was within the powers of the legislature, and that we are not at liberty to set it aside because its effect is different from what we may infer that that body anticipated. If, on the other hand, we assume that the legislature enacted the amendments in the opinion or belief that there were no previous offenders to whom they could be made applicable, it merely results that the amendments were enacted without sufficient consideration or examination; and such has never been held a sufficient ground for disregarding the plain language of a statute. Whether we are to assume that the legislature acted advisedly or without consideration, I know of no rule of construction by which we are at liberty to investigate the extent of its knowledge, or the want of consideration it gave to its action, and therefore, in applying the well-settled rules of construction to the amendments under consideration, we are simply to determine whether the amendments themselves are by their terms inconsistent with the constitution. If an attempt is made to apply- the law as found in these amendments to cases which are not within their terms, it results that in the instance in which such attempt is made there is but the not unusual case of an offense against society, for the punishment of which the law has not made adequate provision. It cannot be questioned that it was the intention of the legislature by the amendments under consideration to provide that all judgments of death should thereafter be executed within the walls of a state prison. It has specifically declared this intent in express language, and, if there had been no murder committed in this state prior to the passage of the act of 1891, the intent of the legislature as to the place of punishment would have been undoubted. By thus amending these sections of the Penal Code, it has as effectually shown its intent to repeal the former provisions for the place in which the punishment of death should be executed, as if it had shown its intention by abrogating those provisions in express language.
It is conceded in the argument on behalf of the people that, if the amendatory statute had contained a saving clause for the punishment of crimes committed prior to its passage, there would have been no constitutional objection to its validity. The omission of such saving clause cannot, however, make in*469valid a law which would otherwise he valid. The constitutionality of its provisions is to he determined by their own harmony with the constitution, and not by the effect which additional provisions would have had upon the subject matter to which the act is applied. The statute, as amended, is not in its terms unconstitutional. Its unconstitutionality does not spring from any provision which is contained therein, but arises only when it is sought to apply its provisions to cases which are not within its terms. This is not, however, a defect which is inherent in the statute, but is a want of power to apply the statute to cases for which it makes no provision, and results from the application of other principles of the constitution which are intended for the protection of individual rights, and which are equally sacred and potent as those which are made for maintaining government or for the punishment of crime. A law which it is within the power of the legislature to pass is constitutional, although it may be unconstitutional to apply it to acts or prosecutions had prior to its passage.
In the same clause of the constitution which prohibits the passage of ex post facto laws is the prohibition of laws impairing the obligation of contracts. The statute-books of the several states, as well as of this state, contain many laws of a general nature which violate this latter provision, and which have been held constitutional in their application- to future transactions, although inoperative as to prior ones. Under the rule for amendment provided by the constitution, any section of the codes is to be amended by its re-enactment as amended. In civil matters no saving clause is required. The former law is held to have entered into the contract to such an extent as to be beyond the power of the legislature to deprive the parties to the contract of the rights thereby acquired; but in matters of criminal legislation, unless the saving clause is contained in the amended section, the state, as represented by the legislature, is deemed to have remitted the penalty incurred in the commission of the offense. The amended section is not unconstitutional, but it is unconstitutional to apply it to transactions had prior to its passage. “A legislative act may be entirely valid as to some classes of cases, and clearly void as to others. A general law for the punishment of offenses, which should endeavor to reach, by its retroactive operation, acts before committed, as well as to prescribe a rule of conduct *470for the citizen in future, would be void, as far as it was retrospective, but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control”: Cooley Const. Lim., p. 213; Jaehne v. New York, 128 U. S. 189, 32 L. Ed. 398, 9 Sup. Ct. Rep. 70; State v. Amery, 12 R. I. 64; United States v. Hall, 2 Wash. C. C. 373, Fed. Cas. No. 15,285.
The principle contained in the prevailing opinion in this case leads necessarily to this result: either that any amendment to that portion of the Penal Code defining crimes and punishments which the legislature may enact without a saving clause for prior offenders is ipso facto unconstitutional, and without its power to enact, or that its validity is to depend upon the conjecture of the individuals who may be the members of this court respecting the intention of the individuals who may have been members of the legislature at the time the amendment was enacted. If the doctrine be correct that because a law which is prospective in its operation, and which in terms is consistent with the constitution, is unconstitutional as to future offenses because it cannot be applied to past offenses, it must follow that the court has imposed a restriction upon the legislature which is not found in the constitution. If, on the other hand, such law is to be declared unconstitutional whenever the members of this court shall be of the opinion that the legislature did not intend what it has expressly and unqualifiedly declared, the certainty of law is substituted by the conjecture or will of the court. “Misera est servitus ubi jus est vagum aut incertum. ’ ’ In none of the instances wherein similar legislation has been construed by the courts of other states has it been even suggested that such legislation was unconstitutional for the reason that its effect could not have been anticipated by the legislature; and, although the decisions of those courts have no binding authority upon us, yet, in a matter which involves only the determination of the proper rules of construction in criminal law, the unanimity of decision in other states is an authority of the most persuasive character. And the rule of construction is the same whether the statute to be construed has reference to the punishment of the highest crime defined in the law or to the slightest misdemeanor. These rules are as uniform for *471all laws as is the constitutional prohibition against an ex post facto law.
The rule that a statute which is in part unconstitutional will be declared wholly so is applicable only when it can be seen from the act itself that the unconstitutional part is the “condition or consideration” upon which the other part was enacted, or that the two parts are so interdependent that one cannot exist without the other. If the different parts are separable, or if the subjects to which the act may have a constitutional application are separable from the others, it will not be declared unconstitutional. This rule was laid down with his usual clearness by Chief Justice Shaw in Warren v. Mayor, 2 Gray, 99, where he limits such result to a case where the parts of the statute “are so mutually connected with and dependent on each other as conditions and considerations or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently.” In the case of Fisher v. McGirr, 1 Gray, 21, 61 Am. Dec. 381, that able jurist had said “that, where a statute has been passed by the legislature under all the forms and sanctions requisite to the making of laws, some part of which is not within the competency of legislative power, or is repugnant to any provision of the constitution, such part thereof will be adjudged void and of no avail, whilst all other parts of the act not obnoxious to the same objection will be held valid, and have the force of law.” There is nothing in the statute under consideration indicating that the punishment of previous offenders according to its terms was a condition or consideration for providing that subsequent offenders should be so punished, nor is the punishment of these classes in any respect so interdependent that the one cannot exist without the other. The statute presents the not infrequent case of a law applicable to certain acts, but inapplicable to others by reason of the paramount law. The intention of the legislature, as expressed in its language, is that it shall be applicable to all cases, but this intention cannot be carried out as to certain cases by reason of a constitutional inhibition.
In Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, a statute of the state of Texas provided for a tax upon every telegraphic message sent by any company doing business *472within the state. The court held that the act was unconstitutional, in so far as it was applicable to messages sent out of the state, but valid as to those sent within the state, applying the same principles which had previously been held by it in the case of State Freight Tax, 15 Wall. 232, 21 L. Ed. 146: See, also, Steamship Co. v. Pennsylvania, 122 U. S. 339, 30 L. Ed. 1202, 7 Sup. Ct. Rep. 1118. In a similar case (Fargo v. Michigan, 121 U. S. 241, 30 L. Ed. 893, 7 Sup. Ct. Rep. 857) the court said: “The taxing law of the state was, therefore, valid as to the latter class of transportation, but with regard to the others it was invalid, because it was interstate commerce, and the state could lay no tax upon it.”
In 1880 various acts were passed amending the sections of the Penal Code for the purpose of adapting them to the new constitution, many of which affected the punishment previously prescribed for offenses, but none of these acts contained any saving clause for prior offenses. In 1874 section 190 of the Penal Code was amended by giving to the jury the discretion to award punishment in the state prison for life instead of death, as the penalty for murder in the first degree: Amend. Code, 1873-74, p. 457. In 1889 section 261 of the Penal Code, defining rape, was amended by making the age of consent fourteen years, instead of ten: Stats. 1889, p. 223. In neither of these statutes was there any saving clause for prior offenses. Very many other sections of the Penal Code have been amended by the legislature without making provision for the effect of such amendments upon previous offenders. If I correctly apprehend the principles maintained in the prevailing opinion herein, any of these amendments to the Penal Code is unconstitutional if it can be shown that at the time of its enactment there were cases pending in court in which individuals charged with crime might have gone unpunished by reason of the statute in force when the crime was committed having been repealed by the amendment. The invalidity of the statute cannot depend upon the fact that the person then charged with the crime did not avail himself of such defense. The statute is to be tested by the conditions existing when it was passed; and, if it would at that time have been declared unconstitutional for that reason, it is equally so to-day, and its unconstitutionality can be invoked by anyone against whom it is sought to be enforced. If the amendments of 1891 *473are unconstitutional for the reasons given in the prevailing opinion, they could not be enforced against one who committed murder after their enactment, even though those whose crimes were committed prior thereto did not assert such unconstitutionality. If at the time of the amendment of section 190 in 1874, there were persons charged with murder prior to that date, that act, as it now stands upon the statute-book, must be construed unconstitutional, for the reason that it provided such a possible change for the punishment of an offender as to be within the inhibition of an ex post facto law. I do not think that such a conclusion can be maintained, and for that reason I cannot concur in the conclusion reached by the majority of the court in the present case.
In reaching the conclusion that the amendments to the Penal Code in 1891 have so changed the punishment for the offense of which the defendant was convicted that it cannot be imposed upon him, and that there is no existing law for the punishment of his offense, I have not failed to consider that the crime committed by him must go unpunished, but, however much this result may be regretted, it is not for this court to prevent it. The criminal, as well as the upright, is entitled to be protected in the rights guaranteed to him by the constitution. That instrument has been framed as the basis and limit of all legislation, and the lowest, as well as the highest, is entitled to its protection. It is one of the functions of this tribunal to prevent hasty or ill-considered legislation from infringing upon the limitations therein prescribed; and, however great might be our desire, we cannot avoid the responsibility of declaring such legislation inoperative, even though the effect of our decision be that crimes will go unwhipped of justice, or criminals be restored to society. “It is better that any criminal shall go unpunished than that any provision of the constitution shall be disregarded, or that the foundations of the criminal law shall be unsettled”: Lindzey v. State, supra. ‘ ‘ Though it is desirable that all offenders against our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated”: Commonwealth v. McDonough, supra. In my opinion, the judgment of the court below should be affirmed; but inasmuch as, since it was pronounced, the legislature has so changed the law as to deprive *474the court of the power to enforce its judgment, that court should be directed, upon the filing of the remittitur therein, to enter an order discharging the defendant from custody.
I concur in the foregoing opinion of Mr. Justice Harrison: De Haven, J.
I concur: Garoutte, J.