will of the deceased, the usufructuary interest of the widow attached. Considering this subject, and looking at the contract, we think there can be no doubt that the word "remainder as used in the contract must in the very nature of things, in the absence of an express stipulation to the contrary, be held not to have transferred to the widow a usufructuary interest in property which her deceased husband did not own, and which the very terms of the contract show was owned by other parties. The reasoning of the court below, in our opinion, so adequately disposes of the contention that the word "remainder" should be considered as having transferred to the widow a usufructuary interest in property to which that interest did not attach, that we excerpt a portion thereof, as follows: "The court below was of opinion that the language of the third section of the foregoing agreement leaves no room for interpretation or construction, and that the word 'remainder' as used therein refers necessarily to the balance remaining after deducting from the whole amount received from the Escolta property the amount of the debts and legacies mentioned in the second section. We are of opinion, however, that the court erred in its construction of this section of the agreement, and we think that the word 'remainder' must be limited to the inheritance which it was the intention and object of the parties to divide, for the preamble expressly states that the parties, as heirs of Francisco Gonzalez de la Fuente, agree upon a division of the inheritance, and it is admitted that one-half of the property on the Escolta was the property of the defendants, and formed no part whatever of said inheritance.

"Article 1283 of the Civil Code provides that 'however general may be the terms of a contract, there shall not be understood as included therein other subjects or things and cases different from those regarding which the interested parties proposed to contract;' and we are of opinion that although the word 'remainder,' as used in the third section of the said agreement, might, in the broadest acceptation of the term, refer to the total balance resulting from the sale of the Escolta

property, nevertheless, under the provisions of the foregoing article it should be limited to the subject-matter of the agreement, and thus limited, it must be taken to refer to the remainder of the share of the inheritance in which Doña Concepcion Calvo had a usufructuary life interest."

There is a conflicting contention in the argument for the appellant that if there be doubt as to the meaning of the word remainder" that doubt should be resolved in favor of the right of the widow to a usufruct in the portion of the property not belonging to her husband and as to which, therefore, she was not his usufructuary heir. We do not stop to analyze the matters thus relied upon, as we think it suffices to say that after an examination of the whole contract we find nothing in it which would justify the construction of the word "remainder" which is asserted. In other words, we can discover nothing in any part of the agreement which would authorize, without express language to that effect, the transferring to one party to the contract of valuable property belonging to the other, especially when the contract itself was concerned only, as aptly pointed out by the lower court, with settling the rights of the parties to the property left by the deceased.

Affirmed.

Argument for the Petitioner.

208 U. S.

GREAT NORTHERN RAILWAY COMPANY v. UNITED STATES.

ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 491. Argued January 7, 1908.-Decided February 24, 1908.

The provisions of § 13, Rev. Stat., that the repeal of any statute shall not have the effect to release or extinguish any penalty incurred under the statute repealed, are to be treated as if incorporated in, and as a part of, subsequent enactments of Congress, and, under the general principle of construction requiring effect to be given to all parts of a law, that section must be enforced as forming part of such subsequent enactments except in those instances where, either by express declaration or necessary implication such enforcement would nullify the legislative intent.

The act of Congress of June 29, 1906, c. 359, 34 Stat. 584, known as the Hepburn law, as construed in the light of § 13, Rev. Stat., as it must be construed, did not repeal the act of February 19, 1903, c. 708, 32 Stat. 847. known as the Elkins law, so as to deprive the Government of the right to prosecute for violations of the Elkins law committed prior to the enactment of the Hepburn law; nor when so construed does the Hepburn law under the doctrine of inclusio unius exclusio alterius exclude the right of the Government to prosecute for past offenses not then pending in the courts because pending causes are enumerated in, and saved by, § 10 of the Hepburn law.

In citing approvingly, as to the particular point involved in this case, cases recently decided in the lower Federal courts, this court expresses no opinion upon any other subjects involved in such cases, and does not even indirectly leave room for any implication that any opinion has been expressed as to such other issues which may hereafter come before it for decision.

Although a ground for demurrer to indictment may be sufficiently broad to embrace a contention raised before this court, if it appears that such contention was disclaimed, and was not urged, in the trial court and in the Circuit Court of Appeals, and was not referred to in any of the opinions below or in the petition for certiorari or the brief in support thereof, this court, will, without intimating any opinion in regard to its merits, decline to consider it.

155 Fed. Rep. 945, affirmed.

THE facts are stated in the opinion.

Mr. William R. Begg for petitioner:

(1) The indictment herein does not charge an offense under

§ 1 of the act of February 19, 1903 (the Elkins law), because it fails to allege that the concessions from tariff were either willfully or knowingly granted.

The indictment charges petitioner and the individual defendants jointly, with one and the same offense. The individual defendants could be guilty only of the offense defined in the third sentence of § 1.

The indictment charges only that petitioner and the other defendants unlawfully granted the concessions. Concessions - from tariff granted under mistake are unlawful. Railway Co. v. Mugg, 202 U. S. 242; Railway Co. v. Hefley, 158 U. S. 98; Railway Co. v. Harrison, 119 Alabama, 539; S. C., 24 So. Rep. 552. The last half of the second sentence of § 1 makes any concession, however made, unlawful. Criminal intent must be necessary to convert this unlawful act into a crime. The concession, to be a crime, must be either knowingly or willfully granted. If a criminal intent is necessary to the crime, it must be charged in the indictment. United States v. Carll, 105 U. S. 611, 612; Evans v. United States, 153 U. S. 584, 587; Armour Packing Co. v. United States, 153 Fed. Rep. 1, 23, 24.

It is only by virtue of the Elkins law that the corporation may be guilty of the crime. Commission v. Railway Co., 145 U. S. 263, 281; United States v. Hanley, 71 Fed. Rep. 672, 674, 676.

(2) That part of § 1 of the Elkins law, which defined the crimes charged in the indictment and prescribed punishment therefor, had been before the indictment was returned, repealed by § 2 of the act of June 29, 1906, commonly known as the Hepburn act.

The prosecution claims that under the Elkins law it was not necessary that to be a crime the concession from tariff be knowingly granted, and the indictment here involved does not charge a concession knowingly granted. Under the amendment made by the Hepburn act the departure, to be criminal, must be knowingly made, and the indictment must so allege. The element of scienter is injected.

The punishment is changed. Under the Elkins law the only

Argument for Petitioner.

208 U. S.

punishment prescribed was a fine. Under the amendment the punishment is a fine and also imprisonment for not to exceed two years, of other than corporate offenders.

Such radical changes in the ingredients of the crime and in the punishment therefor necessarily under the decisions of this and other courts, work the repeal of the part of the Elkins law above quoted. Norris v. Crocker, 13 How. 429, 439; United States v. Tynen, 11 Wall. 88, 92; United States v. Claflin, 97 U. S. 546, 550, 552; United States v. Fisher, 109 U. S. 143, 145; Bank v. United States, 107 U. S. 445; District of Col. v. Hutton, 143 U. S. 18, 26; People v. Tisdale, 57 California, 104, 106; Telegraph Co. v. Brown, 8 N. E. Rep. 171, 172; Lindsey v. State, 5 So. Rep. 99, 100; State v. Allen, 44 Pac. Rep. 121, 122; State v. Ingersoll, 17 Wisconsin, 651, 655; Mullen v. People, 31 Illinois, 444, 445; Mongeon v. People, 55 N. Y. 613, 615; State v. Massey (N. C.), 4 L. R. A. 308, 311; Wharton v. State, 5 Coldw. 1; S. C., 94 Am. Dec. 214; State v. Smith, 62 Minnesota, 540; 2 Lewis' Sutherland Stat. Constr. 482.

The rule that the repeal and simultaneous reënactment, literally or substantially, of a statute, continues it, has no application to the case at bar. This court, as well as others, has rejected the rule where the reënactment is a complete revision of and substitute for the earlier statute. Murdock v. Memphis, 20 Wall. 590, 616; Pana v. Bowler, 107 U. S. 529, 538; Murphy v. Utter, 186 U. S. 95, 104, 105; Tracy v. Tuffly, 134 U. S. 206, 223; Bank v. United States, 107 U. S. 445; Red Rock v. Henry, 106 U. S. 596; The Paquete Habana, 175 U. S. 677, 685; State v. King, 12 La. Ann. 593, 594; Coffin v. Rich, 45 Maine, 507, 512, 513; Goodno v. Oshkosh, 31 Wisconsin, 127, 129; Wilson v. Railway Co., 29 Pac. Rep. 869.

The rule cannot apply to the case at bar because there is no substantial reënactment of the earlier law.

The Circuit Court of Appeals applied the rule on the authority of Steamship Co. v. Joliffe, 2 Wall. 450, 458; Irrigation Co. v. Garland, 164 U. S. 1; Campbell v. California, 200 U. S. 87; Lamb v. Powler Co., 65 C. C. A. 570; Wright v. Oakley, 5 Metc.