The Pacific commercial advertiser., 1893-04-25

Act of 1896.
OPINION or THE COURT By JUDD, G. ).
On the 18th of July, 1892, the de-
fendaut was convicted IN the Police
Court Of Honolulu of violating Sec
ton 3, Chapter Al, Laws OF 1885, by
managing or conducting or assisting
in the managing or conducting OF q
lottery known as Che Fs, on the 10Th
of July last. He appealed, and on
the ed of February last be moved
the Circuit Court, First Circuit,
to dismiss the charge made against
him on the ground that there ls no
law IN force under which he can be
prosecuted. The motion was over
ruled by Judge Whiting, presiding,
and exceptions thereto are now
brought to this Court. at the time
of his conviction IN the Police Court
the Act of 1886 wss in full force and
effect. Bot while this motion was
before the Circuit Court, and before
it's decision, the Act of 1886 had been
specifically repealed by Act 21 of the
Executive and Advisory Councils of
the Provisional Government, ap.
Jroved on the 7th March last.
There being no question that the
Act Il 1886 is now repealed by "Act
81" il is unnecessary to discuss the
question whether it was previously
repealed by implication by the Act
of January 18th, 1898, entitled ''An
Act granting a franchise to establish
and maintain lottery" the so-cailed
Lottery bill"
Act 81 is entitled San Act to pro-
hibit gambling and gaming" and
has saving clause in section IL as
follows: mo suit or prosecution
pending for any offeDse committed
or for the recovery of any penalty or
forfeiture incurred under any law
heretofore enacted shall in any case
be affected by the passage of this
Act"
Section % of the Civil Code, under
the caption "Of the repeal Of laws,''
is as follows: mo suit or prosecution
pending at the time OF the repeal OF
any law, for any offenss committed,
OF for the recovery of any penalty or
forfeiture incurred under the law sc
repealed, shall IN any case be affected
by suck repeal" Both of these last
above quoted sections are in effect
the same; the former being specific
aud the latter general.
Tt is contended by defendant'E
counsel that the provisions of neither
of these two sections are sufficient tc
now authorize a trial and conviction
under the repealed law of 1886.
We hold, following the case of til,
United States vs. Reisinger, 12S q. s
Rep, 40l, that under the genera
principles of the common law, tin
repeal of a penal statute operates a
remission of all penalties for viola
ton of it committed before its repeal
and a release from prosecution there
for after said repeal, unless there b
either clause IN the repeating eta
tute, or provision of some othe
statute, expressly authorizing sue
prosecution"
But without doubt IL the repealin
Act disclosss the manifest intsntio
of the Legislature, that notwithstano
ing general saving statute, all PR
secutions under the repealed Ac
should thereafter be at an end, th
particular intention must prevail.
is objected TO thus giving effect t
general statutes of this characte
that one Legislature has not th
power TO bind a subsequent one: bJ
a general saving statute is regarde
az a sort of Legislative bylaw
which the Legislature is supposed
keep IN mind when repeating pen,
laws. Many or most of the savin
statutes of other Jurisdictions nav
IN addition to words like the Hawa
ian statute, the further deeIaratio
that the prosecution in pending cas-
may continue under the repealed la
as If it were not repealed. Therefor
constructions of courts upon sue
statutes dissimilar TO ours will n,
be instructive
What was the intention of IL
Legislature in enacting Section %
the Civil Code and Section u
Act q I? These statutes mes
that no prosecution for any often.
committed IN violation of the la
then IN force which prosecution VI
pending when the law was repeale
shall be affected by the repe,
l. e., the prosecution shall not
affected by the repeal. IF n
affected by the repeal wi
should it not proceed? This mu
necessarily follow. A similar co
structlon was put upon the Ma.
Stat. by Gray, G. J., in Co,
monwealth vs.. Desmond, /
Mass, 407. The Court ss
the general statutes of Ma
established certain rules for tho &c
struction of repeating statutes a
one of these was that the ''repsal
an Act shall not affect any prose,
ton pending az che time of the
peal for an offense committed upC
the Act repealed" and the statute
1876 which repealed the Act of /.
did not affect the prosecution of
defendant which was pending wi
the statute of 1876 was rassed. I
exceptions were overruled and
conviction sustained.
In California section 329 of
Political Code Is as follows. 81
repeal OF any law creating a CT
inal effense does not constitute .