The Hawaiian gazette., 1893-04-25

| OPINION OF THE COURT BY JUDD, c. j.
On the 18th of July, 1892, the de-
PENDANT was convicted in the Police
Court of Honolulu of violating Sec
ton 3, Chapter Al, Laws of 1856, by
managing or conducting or assisting
in the managing or conducting of a
lottery known as Che Fa, on the 10th
of Jul last. He appealed, and on
the 23d of February last he moved
the Circuit Court, First Circuit,
to dismiss the charge made against
him on the ground that there is 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 1856 was in full force and
effect. But while this motion was
before the Circuit Court, and before
It's decision, the Act of 1856 had been
specifically repealed by Act q of the
Executive and Advisory Councils of
the Provisional Government, ap.
proved on the 7th March last.
There being no question that the
Act of 1856 is now repealed by Act
81" it is unnecessary to discuss the
question whether it was previously
repealed by implication by the Act
of January 18th, 1898, entitled IAN
Act granting a franchise to establish
and maintain lottery, the socalled
Lottery bill"
Act q is entitled Gan Act to pro
hibit gambling and gaming" and
has saving clause in section II as
follows: No suit or prosecution
pending for any offense 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 90 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 offense committed,
or for the recovery Of any penalty or
forfeiture incurred under the law so
repealed, shall in any case be affected
by such repeal" Both of these last
above quoted sections are in effect
the same; the former being specific
and the latter general.
1t is commended by defendants
counsel that the provisions of neither
of these two sections are sufficient to
now authorize trial and conviction
under the repealed law. of 1886.
We hold, following the case of the
United States vs.. Reisinger, 128 q. s..
Rep, 4O1, that under the general
principles of the common law, the
repeal of a penal statute operates as
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 be
either a clause in the repeating sta
tute, or a provision of some other
statute, expressly authorizing such
prosecution"
But without doubt if the repeating
Act discloses the manifest intention
of the Legislature, that notwithstand-
ing a general saving statute, all pro-
secutions under the repealed Act
should thereafter be at an end, the
particular intention must prevail. 1t
is objected to thus giving effect to
general statutes of this character
that one Legislature has not the
power to bind subsequent one; but
a general saving statute is regarded
as sort of Legislative y.law "
which the Legislature is supposed to
keep in mind when repeating penal
laws. Many or most of the saving
statutes of other jurisdictions have
in addition to words like the Hawai-
ian statute, the further declaration
that the prosecution in pending cases
may continue under the repealed law
as if it were not repealed. Therefore
constructions of courts upon such
statutes dissimilar to ours will not
be instructive.
What was the intention of the
Legislature in enacting Section % of
the Civil Code and Section II of
"Act q 2" These statutes mean
that no prosecution for any offense
committed in violation of the law
then in force which prosecution was
pending when the law was repealed
shall be affected by the repeal,
i. e., the prosecution shall not be
affected by the repeal. If not
affected by the repeal why
should it not proceedi This must
necessarily follow. A similar con-
struction was put upon the Mass.
Stat. by Gray, G. j., in Com
monwealth VS.. Desmond, 1913
Mass, 407. The Court said
the general statutes of Mass.
established certain rules for the con-
struction of repeating statutes and
- khoea rr,a. kknk Kha Gu1-ao1 ~