I dissent from the majority opinion, in so far as it holds that appellant could have been indicted under either section 17-502, I. C. A., or section 17-1019, I. C. A.
Section 17-502, supra, originally enacted in 1864 (revised as appears in R. S., sec. 6381), provides:
"Every executive officer or person elected or appointed to an executive office who asks, receives or agrees to receive, any bribe upon any agreement or understanding that his vote, opinion or action upon any matter then pending, or *Page 658 which may be brought before him in his official capacity, shall be influenced thereby, is guilty of a felony and forfeits his office."
Section 17-1019, supra, also originally enacted in 1864 (revised as appears in R. S., sec. 6528), provided:
"Every person who gives or offers a bribe to any member of any common council, board of commissioners, or board of trustees of any county, city or corporation, with intent to corruptly influence such member in his action on any matter or subject pending before the body of which he is a member, and every member of either of the bodies mentioned in this section, who receives or offers to receive any such bribe, is punishable by imprisonment in the territorial prison for a term of not less than one nor more than fourteen years."
In 1919, section 17-1019, supra, was amended (the amendatory provisions being italicized) to provide as follows:
"Every person who gives or offers a bribe to any member of any common council, board of county commissioners or board of trustees of any county, city or corporation, with intent to corruptly influence such member in his action on any matter or subject pending before a body of which he is a member and every member of either of the bodies mentioned in this section who receives or offers to receive any such bribe and every personwho gives or offers a bribe to any sheriff, deputy sheriff,policeman, constable, prosecuting attorney, or other officercharged with the enforcement of the laws of this state toreceive or secure immunity from arrest, prosecution orpunishment for a violation or contemplated violation of thelaws of this state or any such officer who receives or offersto receive any such bribe is punishable by imprisonment in the state prison for a term not less than one year nor more than 14 years.''
It appears to be clear that section 17-502, supra, is directed against an executive officer or person who asks, receives or agrees to receive, a bribe, upon an agreement orunderstanding that his vote, opinion or action upon a *Page 659 matter pending, or which may be brought before him, in his official capacity, shall be influenced thereby, for example, a Governor, Secretary of State, or a commissioner, or head of one of the departments of the state government, and it appears equally clear that the pertinent provisions of section 17-1019,supra, as amended, apply to any policeman, or other peaceofficer, who receives, or offers to receive, a bribe, toprotect one from arrest, prosecution, or punishment for the violation, or contemplated violation, of the laws of the state, and not to an executive officer.
The executive officer, intended by the legislature to be, and actually was, included within the provisions of section 17-502,supra, is one who, by virtue of his office, is required to express an opinion, or to vote, or to take action upon, some matter, either pending before him in his official capacity, orwhich may be brought before him, which must necessarily exclude a peace officer, such as a policeman, a sheriff, or a deputy sheriff, because no "matter," as that word is used in section 17-502, supra, could possibly pend before any peaceofficer, on which he could, within the meaning of that statute, take action, or vote, or determine, or pass an opinion. And further, no statute has been cited, and none can be found, clothing a police officer with power or authority to hear anymatter, or to vote upon any matter, or to take action on anymatter, or to express an opinion, either orally or in writing, upon any "matter," as that word is used in said statute. While it is true, in a very narrow sense, that an executive officer is one in whom resides the power to execute and enforce the laws, and that a policeman has the power, and that it is his duty to enforce the laws, still and nevertheless, it is apparent from a cursory reading of section 17-502, supra, that the legislature did not use the term "executive officer," in that narrow sense.
And conceding, for the purpose of discussion, that a policeman is included within the term "executive officer," as used in section 17-502, supra, the enactment of the 1919 amendment, above quoted, expressly excepted policemen, *Page 660 and other peace officers, out of said section 17-502, and section 17-1019, supra, as amended, being more minute and particular, prevails. In Herrick v. Gallet, 35 Idaho 13,204 P. 477, this court held that: "When two acts of the legislature deal with the same subject matter, that one which is more minute and particular prevails."
Section 17-502, supra, is a general statute, while section 17-1019, as amended, is a special statute, enacted for the primary purpose of dealing with the asking for, or the receipt of, bribes by peace officers.
In Mitchell v. Brown, 1 E. E. 267, 102 E. C. L. 267, 120 Reprint, 909, Lord Campbell, C.J., said: "If a later statute again describes an offense created by a former statute, and affixes a different punishment to it, varying the procedure, etc., giving an appeal where there was no appeal before, we think that the prosecutor must proceed for the offense under the later statute. If the later statute expressly altered the quality of the offense, as would make it a misdemeanor instead of a felony, or a felony instead of a misdemeanor, the offense could not be proceeded for under the earlier statute, and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution, and not cumulatively giving an option to the prosecutor or magistrate."
In United States v. Lapp, (6 C.C.A.) 244 Fed. 377, it was held that: "General legislation must give way to special legislation upon the same subject, whether the provisions are found in the same statute or in different statutes, and generally the provisions must be so interpreted as to embrace only cases to which the special provisions are not applicable."
In Nettles v. Carson et al., 77 Okl. 219, 187 P. 799, it was held that: "A statute which is enacted for the primary purpose of dealing with particular subjects and which prescribes by specific designation the terms and conditions of that particular subject matter, supersedes a general statute which does not specifically refer to the particular subject-matter, *Page 661 but does contain language broad enough to cover the subject-matter if the specific statute was not in existence." (See, also, Rich v. State, 46 Okl. 242, 284 P. 903; People v.Breyer, 139 Cal. App. 547, 34 P.2d 1065.)
In State Ex Inf. Barrett v. Imhoff, 291 Mo. 603,238 S.W. 122, it is said: "Where there are two acts and the provisions of one has special application to a particular subject, and the other is general in its terms, and, if standing alone, would include the same matter and thus conflict with the special act, then the latter must be construed as excepted out of the provisions of the general act and is not affected thereby."
In State ex rel. Morck v. White, 41 Utah, 480, 126 P. 330, it is stated: "It is an elementary doctrine that where there is a general and also a special provision relating to the same subject matter, the special provision controls the general."
By the enactment of the amendment of 1919, supra, the legislature clearly and unmistakably expressed its intention to change the pre-existing law, and to require, as it had an unquestioned right to do, that thereafter peace officers must be prosecuted for asking for, or receiving, bribes under that amendment, and not under the general, pre-existing statute, to wit, section 17-502, supra.
In People v. Weitzel, 201 Cal. 116, 255 P. 792, 52 A.L.R. 811, it is said:
"Before the amendment of 1905, any member of a common council who offered to receive a bribe was within the statute, and the amendment of the language in the particular noted signifies an intention to change the pre-existing law. In United States v.Bashaw, (C.C.A.) 50 Fed. 749, it was said:
" 'The very fact that the prior act is amended demonstrates the intent to change the pre-existing law, and the presumption must be that it was intended to change the statute in all the particulars touching which we find a material change in the language of the act.' *Page 662
" 'Where changes have been introduced by amendment, it is not to be assumed that they were without design; usually an intent to change the law is inferred.' In re Segregation of SchoolDistrict No. 58, 34 Idaho 222, 200 P. 138.
"In Rieger v. Harrington, 102 Or. 603, 203 P. 576, 580, it was said:
" 'By amending that statute, the legislature demonstrated an intent to change the pre-existing law, and the presumption must be that it was intended to change the meaning of the statute in all the particulars wherein there is a material change in the language of the amended act.' "
See, also, State v. Wharfield, 41 Idaho 14, 18, 236 P. 862.
To hold a policeman may be indicted under either section 17-502, supra, or section 17-1019, supra, defeats the clearly expressed purpose and intention of the legislature to require (by excepting policemen out of said section 17-502), that from and after the effective date of its 1919 amendment, a policeman, charged with the commission of the offense defined by that amendment, must be indicted and prosecuted under the amendment, and not under said section 17-502.
It is my view that the judgment ought to be reversed, and the cause remanded for a new trial under section 17-1019,supra. *Page 663