dissenting:
I agree with the majority in its rejection of the State’s theory that the proviso in question is an incomplete felony sentencing provision and not a procedural provision. Having found the proviso a procedural provision, the majority then goes on to hold the proviso as merely directory and not mandatory. In this I must part company with the majority and therefore I respectfully dissent.
In finding the proviso to be a procedural provision the majority relies both on the language used in the statute and on its past history. Clearly these considerations equally apply in determining whether the legislature intended the proviso to be mandatory or directory. It is well established that courts will generally construe the word “shall” to be mandatory particularly when the word is addressed to a public official. (People v. Nicholls, 45 Ill. App. 3d 312, 359 N.E.2d 1095; Schmidt v. Powell, 4 Ill. App. 3d 34, 280 N.E.2d 236.) Courts however, will sometimes construe the word to be only directory where such a construction is required from the context or the intent of the drafters, (Village of Park Forest v. Fagan, 64 Ill. 2d 264, 356 N.E.2d 59), or to reach a result which the court feels needs to be reached. In construing the word “shall” as only directory in the instant cause, the majority states that the legislature, when it enacted the proviso, intended it only “for the sake of judicial economy.” I find such reasoning to be unpersuasive.
As recognized by the trial court, the offense of deceptive practices is somewhat unique in that when one commits this crime he has usually committed multiple violations of the statute during the course of a short period. It is much more reasonable to conclude that the legislature too recognized the usual pattern of this criminal conduct and intended by the proviso in question to mandatorily require the compulsory joinder of such multiple offenses in an area not ordinarily covered by the compulsory joinder section of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3—3(b)). Such a conclusion becomes more apparent when a view is taken of the past history of the statute. Prior to 1973, section 17—1 of the Criminal Code of 1961 encompassed in addition to the offenses now proscribed, credit card offenses, among which were subsections (e) and (f) of the statute. (Ill. Rev. Stat. 1971, ch. 38, par. 17—1(e) and (f).) The “penalty” provision of the section stated in part:
“e e ” A person convicted of deceptive practices under subsection (e) or subsection (f) of this section shall, when the value of any property, labor or services obtained, or attempted to be obtained in a single transaction, or in separate transactions, within any 90 day period, exceed $150 be imprisoned in the penitentiary from one to ten years. In the case of a prosecution for separate transactions totalling more than *150 within a 90 day period, such separate transactions shall be alleged in a single charge and provided in a single prosecution. °
A reading of these two quoted sentences makes the intention of the legislature, in enacting the proviso in question, manifest. The second sentence was not enacted to lessen the backlog of our judicial system, although such may have been an incidental result, but to give effect to the first sentence which required the imposition of a felony sanction where separate transactions violating the enumerated subsections in a 90-day period exceeded *150 in value. Clearly, in the quoted provision the legislature gave due recognition to the nature of the criminal conduct proscribed and intended to mete out an appropriate felony penalty for the commission of such multiple offenses. That the legislature intended the word “shall” in the second sentence to mandatorily require compulsory joinder of such offenses, as the use of the word “shall” in the first sentence also was mandatory in requiring the imposition of a felony sanction, cannot be doubted.
In the present statute the first of the quoted sentences has been deleted, while the second sentence, the proviso here in question, has been retained. When the legislature amends a statute and makes no change to a part of it, that part will be regarded as a continuation of the existing law and not as the enactment of a new law upon the subject. (People ex rel. Martin v. Village of Oak Park, 372 Ill. 488, 24 N.E.2d 571; Lemme v. Drainage District No. 5, 380 Ill. 221, 43 N.E.2d 966.) It is also to be presumed that in using the same wording as that contained in a former statute, the legislature intended the same construction of those words in the new statute. (Morandi v. Heiman, 23 Ill. 2d 365, 178 N.E.2d 314.) In the proviso in question the legislature enacted the same words as those contained in the former statute including the demarcation of an excess of *150 during a period of 90 days. Thus the legislature could only have intended the same construction of those words in the new statute. While the proviso no longer requires compulsory joinder for the purpose of imposing a felony sanction, it nonetheless still mandatorily requires compulsory joinder when certain conditions are met. Like a limb severed from a tree, although its construction has not changed, its function has. The proviso is now applicable to the remaining subsections of the statute. In light of the unique nature of the offense of deceptive practices, this has benefit for the State by allowing it to present to a jury a complete picture of the defendant’s alleged multiple acts of deceptive practices while for a defendant the proviso prevents the potential expense in time and money and the potential harassment which would otherwise result by multiple prosecutions. The proviso likewise discourages use of the prosecutor’s office as a collection agency.
Under the circumstances of the case at bar, the State should be held to have failed to comply with the mandatory requirements of the proviso. Accordingly, I would affirm the order of the circuit court of Montgomery County dismissing the remaining charges.