I dissent from the conclusions arrived at by my brethren in this case; and, without entering into an argument to sustain my conclusions, shall content myself with stating the same, and citing a few well considered cases which I believe sustain such conclusions.
I agree that ch. 340, Laws of 1876, does define what shall constitute embezzlement of public moneys by a public officer after the first Monday of January, 1878; and that the crime of embezzlement by a public officer committed after that date can only be punished as prescribed in said ch. 340; but I disagree with the other members of this court as to the effect which the act of 1876 has upon offenses committed previous to the time when said chapter 340 took effect, and as to the power of the courts to punish offenders guilty of embezzlement under the provisions of sec. 30, ch. 165, E. S. 1858, committed previous to the first Monday of January, 1878.
Upon these questions my conclusions are as follows:
1. Oh. 340, Laws of 1876, does not pretend to interfere with the offense of embezzlement as defined in said sec. 30, ch. 165, E. S. 1858, nor with its punishment under the existing laws, until after the first Monday of January, 1878.
*5382. That the legislature intended to and did declare, that after the first Monday of January, 1878, public officers dealing with the public moneys in their hands as such officers in the way specified in said act, should be deemed guilty of the crime of embezzlement, and be punished as prescribed therein.
3. That this act, which relates to the future only, and declares what shall constitute embezzlement by a public officer from and after a certain date in the future, and prescribes its punishment, and which does not deal with the offense of embezzlement previous to that date, or pretend to do so, does not conflict with or repeal the existing law which defines the same crime and its punishment previous to the day fixed in the new statute. Mongeon v. The People, 55 N. Y., 613; Commonwealth v. Herrick, 6 Cush., 465-468.
4. That the two acts can consistently stand together after the later act takes effect, and persons guilty of embezzlement under the existing law, prior to the first Monday of January, 1878, may be prosecuted and punished under that law; and those guilty of the offense after that date may be prosecuted and convicted under the law of 1876. See cases above cited.
5. That it is a well settled rule in the construction of statutes, that a new and affirmative statute does not repeal an existing statute upon the same subject, unless the two statutes are clearly repugnant and cannot stand together. Snell v. The Bridgewater Manufacturing Co., 24 Pick., 296, and cases there cited; Goodrich v. The City of Milwaukee, 24 Wis., 422, 437-8; Attorney General ex rel. Taylor v. Brown, 1 id., 514; City of Janesville v. Markoe, 18 id., 350; Goddard v. Boston, 20 Pick., 407-410; Bowen v. Lease, 5 Hill, 221.
6. That in considering the question as to the effect which a later statute has upon a former statute upon the same subject, by way of repealing the same, the intent of the legislature is to be followed when it is apparent, unless such intent is inconsistent with the express language of the new statute. Peo*539ple v. Lambier, 5 Denio, 9; Smith v. The People, 47 N. Y., 336; 55 N. Y., supra.
7. That a new statute should in no case be construed to work a repeal of the existing law, when such construction will necessarily prevent the punishment of crime, or work a public mischief, unless no other reasonable construction can be given to it. See cases last above cited.
Holding these views, I am of the ojdnion that the defendant was legally convicted under the provisions of sec. 30, ch. 165, B. S. 1858, and that he should be sentenced and punished under the provisions of sec. 31 of said chapter.
By the Court. — The cause is remanded to the circuit court with the first and second questions answered in the affirmative, and the third in the negative.
ByaN, O. J., took no part.