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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 5759

August 26, 1980


Effect of repeal of statute on prosecution for violation

Criminal prosecution for violation of 1925 PA 62 may be continued even though the Legislature has repealed the statute after the prosecution was brought.

Prosecutions for violations of 1925 PA 62 committed prior to its repeal may be brought after the effective date of the appeal.

C. Patrick Babcock


Michigan Department of Labor

309 N. Washington, Box 30015

Lansing, Michigan 48909

You have requested my opinion on the following questions:

1. May cases under 1925 PA 62 filed prior to and pending on the effective date of repeal be continued and prosecuted after the date of repeal?

2. May cases occurring before 1925 PA 62 was repealed but filed after the repealer date be continued and prosecuted to final conclusion?

1925 PA 62; MCLA 408.521 et seq; MSA 17.271 et seq; regulated the time and manner of the payment of wages to employees and provided for penalties for violating the provisions of the act. In 1978 PA 390, MCLA 408.471, et seq; MSA 17.277(1) et seq, the legislature adopted a new statute regulating the time and manner of payment of wages and fringe benefits to employees, to prescribe penalties and remedies, and to repeal 1925 PA 62, supra. 1978 PA 390, supra, was given immediate effect and took effect on August 1, 1978.

1925 PA 62, supra, Sec. 5, provided as follows:

'Any employer, unless prevented by act of God, proceedings in bankruptcy, or orders of processes of any court of competent jurisdiction, or circumstances over which such employer has no control, who shall fail to make payment of the wages due any employee as provided in this act, shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine of not to exceed $100.00.'

1925 PA 62, supra, was repealed by 1978 PA 390, supra, Sec. 20.

The common law is well settled that in the absence of a general or specific savings clause, the repeal of a criminal statute operates from the moment it takes effect, to defeat all pending prosecutions under the repealed statute. People v Lowell, 250 Mich 349, 353; 230 NW 202 (1930). It should be noted that in repealing 1925 PA 62, supra, 1978 PA 390, supra, does not contain a specific savings clause.

In the case of People v Lowell, supra, motions to quash the complaints and motions for discharge were granted because defendants were charged under a statute which was repealed. In rendering its decision, the Court stated:

'We suggest to the legislature that, if this ruling does not accord with its actual intention, a similar situation may be avoided in the future by the enactment of a general saving statute, . . .' 250 Mich 349, 361; 230 NW 202, 206.

The Legislature responded to the Lowell Court's suggestion at its next session by enacting 1931 PA 25 to amend RS 1846, ch 1, to add Sec. 4a; MCLA 8.4a; MSA 2.214. People v McDonald, 13 Mich App 226, 229; 163 NW2d 796 (1968).

RS 1846, ch 1, Sec. 4a, supra, provides:

'The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.' (Emphasis added.)

The effect of RS 1846, ch 1, Sec. 4a, supra, was examined in People v Ulysee Gibson, 71 Mich App 220, 225; 247 NW2d 357 (1976), and the Court found that it was the legislative intent to allow prosecution for violations of repealed statutes where the acts complained of occurred during the life of that statute.

It is obvious that RS 1846, ch 1, Sec. 4a, supra, is a general savings statute which expresses legislative intent to save criminal prosecutions when enactments such as 1978 PA 390, supra, do not specifically provide for the saving of all prosecutions under the statute repealed. OAG, 1947-1948, No 631, p 506 (November 4, 1947).

It is, therefore, my opinion that prosecutions filed prior to August 1, 1978 for violation of the provisions of 1925 PA 62, Sec. 5, supra, may be prosecuted to final conclusion.

Turning to your second question, in People v Ulysee Gibson, supra, a defendant was convicted of a crime defined by a statute which went into effect on April 1, 1975, for conduct which occurred on March 22, 1975. The court concluded that the prosecution based on a statute not yet in effect was entirely void and of no effect. However, the Court also stated:

'The question thus becomes whether defendant could have been tried on the 'old' offense by virtue of the savings provision in the new statute.' 71 Mich App 220, 223; 247 NW2d 357, 358-359.

It was concluded that the savings clause did permit prosectutions to be brought after the repeal date for crimes committed prior to the repeal date of the statute. In drawing this conclusion, the Court observed:

'. . . There is no unfairness in this. Defendant was on notice that his acts were criminal and revision and updating of the criminal laws should not be grounds for a voidance of such incurred criminal liability. We rule that the Legislature has adequately preserved criminal liability for these acts.' 71 Mich App 220, 225; 247 NW2d 357, 359.

Although the new statute examined in People v Gibson, supra, contained its own savings clause, it was of the same type as the general savings clause in question, RS 1846, ch 1, Sec. 4a, supra, and therefore, the reasoning of the Gibson Court is appropriately applicable to your second question.

It is, therefore, my opinion, in answer to your second question, that prosecutions may be brought after August 1, 1978 for violations of 1925 PA 62, supra, which occurred prior to August 1, 1978.

Frank J. Kelley

Attorney General

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