New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-05-14
SUPREME COUNT.
Eject OF Kevlsory Laws,


The following is the concurring opinion OF
Chief Justice Ludeling in the case of the
State Va. Brewer, alluded to in the REPuB-
L1cAN of Thursday, when publishing the
decision of the court as rendered by Mr.
Justice Howe. Every opinion of high au'
thority on this important question is q
matter of public interest and concern, and
we deem the exposition OF the law by the
Chief Justice as an authority of weight in
the position assumed by the REPUBLICAN,
and subsequently decided by the court:
The State VS.. Brewer. Ludelin8 T. j.
Judge Martin correctly states the law
in the case of the State VS.. johnson az La.
552) thus: When an act creating an offense
is repealed, even after judgment in the in
ferior court, the Judgment must be reversed
if it has not been affirmed before the repeal.
The reason is that legislative pardon is
presumed to have been intended
In the cases of the State vs. King. and the
State vs. Kitty, this principle of jurispru-
dence was recognized, and in these cases
the court held that the repeal OF penal
statute, pending prosecution under 1t,
without q saving clause, puts an end to the
prosecution, although the penal statute may
in the same act be substantially re-eLacteu.
To the latter proposition can not give my
assent. The reason of the rule is stated by
Judge Martin. Il is because legislative
pardon is presumed 10 have been intended.
When the intention of the Legislature Is
manifested to the contrary, by the express
terms ofthe statute, there Can be no room TOR
presumptious. Aud this is admitted by all
to be true, when this intention is shown by
ga saving clause" in the act.
think If the intention Of the law makers
not to abrogate the Old law be clearly
manifested in the act, in whatever mode it
may be done, it will be equally efficacious
in preserving the life or vitality OF the law.
In this case that intention is clearly mani.
tested bv the re- enactment of the whole
law. 1t is the same now that 1t was when
the accused was tried and convicted in the
District Court, and at no time since the
commission of the Offense has 1t been diff.
ferent.
The repeating clause was not intended,
and can not fairly or reasonably be held to
apply to laws re-enacted in the statute of
1870. All laws, not contained IN the statute,
on the same subject matter are abrogated; ;
but nothing contained in the body of the
statute Itself is destroyed. In the case
of Stafford versus his creditors, Mr..
Justice Lea, as the organ of the court,
said: "In the case of the State eX. rel.
Holmes VS.. Wilt We lately held "that the
repeating clause appended to the revising
acts of 1855 did not repeal such pre-existing
statutory provisions as were re-enacted in
the revisory statute" Ql An. 47O; II An.
439; IA An. s4O).
And in Wright VS.. Oakley, Mitcalf. p.
4O6, Mr.. Chief Justice Shaw said: In con-
STRUNG the revised statutes and the con-
nected acts Of amendment and repeal, it is
necessary 20 observe great caution to avoid
giving an effect to these acts which WAS
terms, the whole body of the statute law
was repealed; but these repeats went into
operation simultaneously with the revised
statutes, which were substituted for them