New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-12
Important Decision Of the Supreme Court
THE OLD LAWS NOT REPEilt0 BY REVISION
Criminals to be Prosecuted for Their Offenses
The Jail Delivery Checked

Mr.. Justice Howe. yesterday. delivered
the opinion of the Supreme Court III this
case, as follows:
The State VS.. William E. Brewer, appeal
from the District Court, parish OF Tensas.
The defendant was indicted in October,
1869. for mauslaughter. uuder the third sec.
,ion of the act OF March Is, 1855 relative to
crimes and offeDseS. On the twensy-nith
April. 1870 he moved 10 quash the lndct-
ment on the ground that the statute under
which he was indicted had been repealed,
and that this repeal operated hls discharge
and Legislative pardon" The motion was
oyerrued, the prisoner pleaded not guilty,
and was tried and convicted. BE then
moved in arrest of judgment, assigning the
same reasons as those on which the molten
to quash was based. This motion was de-
MED, and having been sentenced TO impris-
onment at hard labor, ne Las appealed to
this court.
The question presented for oar decision is
whether section third of the act of 1855,
relative 10 crimes ard offenses was, on the
| first day of April, 1870, repeated by the act
| OF the Legislature number hlnety-slI, OF the
| laws of 1870, which went Into effect on the
| day last named.
The revisory legislation which we are thus
called upon to interpret was initiated by the
act No. 81 of 1868, entitled AN act 10 pro-
| vide fer the revision of the statutes Of the
State, Of general character and the OBJ
| iects TO be attained are therein stated TO be
these:
That the public statutes of this State
| should be revised, their language simplified,
| their incongruities corrected, their delclen-
| cies supplied, and the whole arranged IN
order aud reduced to one connected text
| with the view to their adoption as the re-
yised statutes of this State, TO the emf that
| all may know the law"
The work thus provided for appears to
have been completed during the present
! wear, and was approved by the Legislature
| in the act No. SO, already referred TO, which
act contained the following repeating clause:
That all laws or parts OF laws contrary
to, or in conflict with the provisions OF this
act, and all laws or parts of laws on the
| same subject matter. except what may be
| contained in the Revised Civil Code and
Code of Practice OF the present session, be,
and the same are hereby repealed, except
the thirty-third section of an act entitled
| AN act for the punishment OF crimes and
misdemeanor approved Nav 4. 1885, and
that in so tar as there may be auy conflict
! between the provl.i rs OF this act and any
| provision of the said Revised Civil Code and
Code of Practice, that sad code shall oe
held and taken as the law governing, and
that this act take effect Oh the first day OF
April, A. D., 1870. 1t viii at once appear
that this reVisory legislation is so far as
ter with that which was set On foot Ill 1854
aud com pleted in 1855, and we natuIa ly ia
uuire what were the decisions OF this court
Ia reference 10 the peculiar repeaiir 2 clause
20 often repeated III the system of 1867
| Inthe case Of Holmes vs. Wiz, III An,
439, it was decided by majority OF the
court that an lnterpTet+l, OF a statute,
which must lead 10 consequences mis-.
chievuus and absurd, is n&dl1isslble, If the
statute is susceptible Of ano her lnterpreta-
ton, " here by such consequences may be
avoided, that the legi5 ative intention must
be honestly sought after and faithfully eX-
ecuted. il not III conflict with q paramount
law; and in cases like this, its meaning must
oe sought, not merely in the words OF the
statute itself, but in its subject matter. in
| the history Of the legislation thereupOn, in
the purpose of the law, the reason of Its
eDactm Mt, and the evil it sought to remedy.
| l. was further held that the statute under
| consideration in that case, containing the
| following repealiDg clause: THAT all laws
contrary to the provisions of this act and
| all laws on the same subject matter except
what is contained in the Civil Code and
Code of Practice, be repealed did not re-
peal the provisions contained in the statute
itself. but, on the contrary, continued the N
that the statute WAS, i'll fact, but groupln
together in one act OF parts OF processing
laws, and that by it the Legislature merely
said: "Here is a condensed statement Of all
the law now in force relative to the mode
of appointment, term OF service, amount
and condition of the bond, ETC., of the Re-
corder of Mortgages for the parish of Orleans,
all else upon these specified matters Is re.
pealed."
IL An. q. 47O, in which the opinion of the
court WAS delivered by the member who
had dissented in the case OF Holmes, the
question WAS more closely related to the
one at bar. for it concerned statute highly
penal, and the imprisonment OF the appel
liant. The court said: I'm the case OF the
State on the relation of Holmes vs.. Wiltz
we lately held that the repeating clause ap-
pended to the revisory acts OF 1855 did not
repeal such preexstlng statutory proVi.
| siCns rs were re-elacted il the revisory
statute"
In the case of the State vs. Clay, II An.
| o. 43I, criminal case, the court said: IAN
examination of the act Of 1855 on this SUBJ
iect (burning), and comparison of it with
the former laws, will show that it was the
intention OF the Legislature to arrange IN
der the head 'offcns-s to habitatiOns' all
the laws which 1t intended 10 continue IN
force on the subject Of setting fire TO build
lDgs' etc.
In the case Of Levois vs. Gerke IL An,
S32, MIR Justice Spofford, who cOncurred IN
| the opinion which fina ly prevailed, On re-
Wiltz, we held that the reppai G clause (oi
revlsory legislation of 1860, only swept
away such anterior legislation upon the
matter specifically treated of in the new leg
islatiOn as was not retained in the latter. In
Stafford vs His Creditors, the new law
trea ed specifically of the penalty for fraud
ulent bankruptcy, and we held that so much
of the old law concerning this penalty, rs
was not retained in the new, was repealed
AID Mr.. Justice Buchanan concurred in
thi- view of the effect of the repeating clause.
These decisions and opinions were matters
of record and publication, and formed an
important chapter in the jurisprudence OF
the State when the Legislature of 1870
adopted the revisory laws which we are now
nsidering. We must presume that the
Legislature had them in view when they
made use Of the repeating clause which had
been so fully interpreted; and even if we
doubt the correctness OF the Interpretation,
We can hardly imagine case in VIII ich the
interests of society more Jou6lv demand an
obedience to the rule stare decisis.
| There is DO doubt that il criminal
statute is repealed, the prisoner who is ne.
ing prosecuted under it must be DISCHARGED:
but we must decide upon precedent that the
statute now under view has not been re-
peaied, but only continued in force as por-
ton of revisory system. We may properly
quote in this connection the language OF
Chief Justice Shaw in the case OF Wright vs.
Oakley. Metcalf (Mass. }, page 406
In constituting the revised statutes and the
connected acts amendment and repeal, 1t
is necessary to observe great caution 10
avoid giving ap Effect to these acts which
was never contemplated by the Legislature.
lw