I agree with the statement in the prevailing opinion, taken from the quotation in Weller v. Von Hoven, 42 La.Ann. 600, 7 So. 702: "Laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject". For that reason the effect of the saving clause in Section 5 of Act 147 of 1942, and the general saving clause enacted as Act 35 of the Session of 1942, were not destroyed or neutralized by Act 323 of 1942. I refer particularly to that part of the saving clause in Section 5 of Act 147 of 1942 which declares that all crimes committed before such effective date (the date on which all of the acts of 1942 would go into effect) shall be prosecuted under such rules of criminal procedure as were in effect at the time of the commission of such crimes. The title and the text of Act 35 are as follows:
"An Act "Prescribing the effect of the repeal or expiration of statutes in relation to any penalty, forfeiture or liability, civil or criminal, incurred thereunder. *Page 441
"Section 1. Be it enacted by the Legislature of Louisiana, That the repeal of any statute shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such statute unless the repealing act shall expressly so provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.
"Section 2. That all laws or parts of laws in conflict with the provisions of this Act be, and the same are hereby, repealed."
There is nothing doubtful about the declaration in Act 35 of 1942 that the repeal of any statute shall not have the effect of releasing or extinguishing a criminal liability incurred under such statute unless the repealing act shall expressly so provide; nor is there anything ambiguous or doubtful about the further statement that the repealed statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. The word "liability", as the statute says, means liability for a criminal prosecution, as well as liability for a civil obligation. The effect of this general saving statute, Act 35 of 1942, was recognized in the recent case of State v. Dreaux, 205 La. 387, 17 So.2d 559, thus:
"The defendant filed a motion to set aside the alleged illegal sentence imposed upon him by the district judge as a second offender, under the provisions of Act 15 of 1928, on the ground that at the time he was sentenced Act 45 of 1942, which expressly *Page 442 repealed Act 15 of 1928, was in effect and governed the case. * * *
"In Interpretation of Laws — Statutory Construction — (Earl T. Crawford, 1940), Chapter 26, Section 300, page 612, we find:
"Saving Clauses. "`* * * If the saving clause is a general one, that is, applicable to all repealing acts, it is considered as merely declaratory of a rule of construction. But whether they are general or not, they are regarded as much a part of every repealing act as if written therein. Nevertheless, they are subject to repeal by subsequent acts; that is, they will not save from repeal any provision whose repeal is clearly intended by the legislature by the later act. To hold otherwise would abridge or limit the legislative power of the various later legislatures, by the enactment of its irrepealable legislation.'
"In Sutherland Statutory Construction, 3d Ed., Horack, Vol. 1 (1943), Chapter 20 — Repeals and Repealing Acts — Section 2042, page 522, it is stated:
"`Effect of Repeal — Retroactivity — In General. The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed. * * *'
"It is our opinion that the defendant became a second offender on the date that he *Page 443 committed the criminal acts which constitute the second felony and was subject to the punishment provided for by the law, as it existed on that date, in view of the saving clause in Act 35 of 1942."
In even a later case, State v. Gros, 205 La. 935, 18 So.2d 507, 508, the court again recognized the effect of Act 35 of 1942 as a general saving statute. In that case it was argued for the defendant that the indeterminate-sentence law, Act 98 of 1936, had amended by implication Act 44 of 1890, under which the defendant was convicted, and that Act 46 of 1942, which repealed the act of 1936, and which did not contain a saving clause, was violative of the constitutional prohibition against the enacting of ex post facto laws. The court said that, conceding for the sake of argument that the two statutes, Act 98 of 1936 and Act 44 of 1890, were to be read together, as contended by the defendant, nevertheless Act 46 of 1942 was "not without a saving clause," because a saving clause was supplied by Act 35 of 1942. After quoting the latter act in full, the author of the opinion said: "Though this saving clause [Act 35 of 1942] is general in scope, it is regarded as much a part of its contemporary statute, Act No. 46 of 1942, as if written therein. Interpretation of Laws — Statutory Construction — (Earl T. Crawford, 1940) Chapter 26, Section 300; State v. Lucien Dreaux [205 La. 387], 17 So.2d 559."
There is no reason why the three statutes enacted on this subject in the session of the Legislature of 1942, namely, Act 35, Act 147, and Act 323, together with the act *Page 444 adopting the Criminal Code, being Act 43 of 1942, should not be given full effect. Acts 147 and 323 are both amendments and re-enactments of Article 8 of the Code of Criminal Procedure, and are exactly alike as far as any issue in this case is concerned. The first section of each of the acts declares that no person shall be prosecuted, tried or punished for any offense (except for certain crimes not now pertinent) unless the indictment or information or affidavit be filed within one year after the offense shall have been made known to the judge, district attorney, or grand jury having jurisdiction.
In Act 147, which was prepared by and introduced on the recommendation and report of the Louisiana State Law Institute, the crimes which were excepted were given the names which they bear in the Criminal Code; whereas, in Act 323 the crimes which were excepted were given the same names which they bore in Article 8 of the Code of Criminal Procedure, as amended by Act 21 of the Second Extra Session of 1935.
The second paragraph of Article 8 is reproduced exactly the same in both acts, Act 147 and Act 323 of 1942. The third paragraph of Article 8 of the Code of Criminal Procedure, as amended in 1942, is reproduced exactly the same in Act 147 as in Act 323, except that in Act 323 it is said to be themandatory duty of the district attorney, and in Act 147 it is said to be merely the duty of the district attorney, to enter a nolle prosequi. And in Act 147 it is said that the court may cause a nolle prosequi to be entered; whereas, in this *Page 445 paragraph in the Act No. 323 the words "to be" are omitted. These differences between Act 147 and Act 323 are of no importance in this case.
The reason why the Legislature did not deem it necessary to insert a saving clause in Act 323 of 1942 is, first, that the general saving statute, Act 35, adopted at the same session, served the purpose, and, second, that the saving clause in the corresponding act, Act 147 of the same session, also served the purpose. Either one of these saving clauses would have been sufficient. Certainly it was not necessary to have three saving clauses in order to save the State's right to continue with a prosecution under the law prevailing before the acts of the session of 1942 went into effect, that is to say, under the provisions of Article 8 of the Code of Criminal Procedure, as amended by Act 21 of the Second Extra Session of 1935.
There is no provision in Act 323 of 1942 that conflicts with the provision in Section 5 of Act 147 of 1942, that this act, No. 147, shall apply only to prosecutions for crimes committed after the effective date of the Criminal Code, and that all crimes committed before that date shall be prosecuted under such rules of criminal procedure as were in effect at the time of the commission of any such crime. This has reference to Article 8 of the Code of Criminal Procedure, as amended by Act 21 of the Second Extra Session of 1935, which was in effect at the alleged time of the commission of the crime charged in the bill of information in this case. *Page 446
In this connection, it is stated near the beginning of the prevailing opinion in this case that three of the defendants filed a motion to have a nolle prosequi entered as provided by Act 323 of 1942, amending and re-enacting Article 8 of the Code of Criminal Procedure. In the rule prepared by the defendants and signed by the judge, ordering the State through its proper officers to show cause why the nolle prosequi should not be entered, Act 147 of 1942 was not ignored. On the contrary, the rule ordered the State through its proper officers to show cause "why the nolle prosequi should not be entered in conformity with Acts 147 and 323 of 1942 of the Legislature of the State of La."
The declaration in Section 5 of Act 147 of 1942 that the act should apply only to prosecutions for crimes committed after the date on which the acts of that session of the Legislature would go into effect was merely a declaration that Act 147 of 1942 should not have a retroactive effect, but only a prospective effect.
There is nothing in the phraseology in Act 323 of 1942 that indicates that the Legislature intended that that act should have a retroactive effect. On the contrary, the wording of the act indicates plainly that it was intended to have only a prospective effect. In enacting Act 323 of 1942, the Legislature knew very well that that act, as well as Act 43, adopting the Criminal Code, and Act 35 adopting a general saving clause, and Act 147, would all go into effect on the same day and at the same hour; and in fact all of these acts did go *Page 447 into effect at 12 o'clock m. on July 29, 1942.
On the thirteenth page of the prevailing opinion [19 So.2d 191] it is said that there is no reason why effect should not be given to "the clause in Act 323 of 1942, reducing to three years the prescriptive period for the trial of crimes committed before its effective date, July 29, 1942." As a matter of fact there is no clause in Act 323 of 1942 purporting to reduce to three years the prescriptive period for the trial of crimes committed before the date on which the act became effective, July 29, 1942. I concede, of course, and in fact it is well settled, that a statute of limitation or prescription may be so worded as to take into consideration time which has passed when the act goes into effect. There would have been no constitutional inhibition against making Act 323 of 1942 retroactive, so as to release from criminal liability all accused persons against whom an indictment or bill of information was not filed within one year after the offense was made known to the judge, district attorney or the grand jury having jurisdiction, — and so as to release from criminal liability all persons accused of a felony if three years had elapsed already from the date of the finding of an indictment or the filing of a bill of information, — and so as to release from criminal liability all persons accused of any crime less serious than a felony if two years had elapsed already from the date of the finding of an indictment or the filing of a bill of information. But, if the Legislature had intended that Act 323 of 1942 should have that retroactive effect, *Page 448 the intention would have been expressed so plainly as to leave no doubt about it. Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332, 337; Reynolds v. United States, 292 U.S. 443, 54 S.Ct. 800, 803, 78 L.Ed. 1353; Hurry v. Hurry, 141 La. 954, 76 So. 160, 162; State v. Alden Mills, 202 La. 416, 12 So.2d 204.
In the present case the bill of information was filed on January 19, 1940, and the proceeding by rule to compel the district attorney to enter a nolle prosequi was filed on April 27, 1943; that is, three years and more than three months after the bill of information was filed. But Acts 147 and 323 of 1942, amending Article 8 of the Code of Criminal Procedure so as to reduce the six-year period of prescription to a three-year period, did not go into effect until July 29, 1942, — which was less than nine months before the defendant claimed the benefit of the three years prescription.
It is said on the thirteenth page of the prevailing opinion in this case [19 So.2d 191], — if I understand it right, — that unless effect is given to the clause in Act 323 of 1942, reducing to three years the prescriptive period for the trial of crimes committed before the date on which the act became effective, July 29, 1942, a person committing an offense on July 30, 1942, would have his trial prescribed in three years under the provisions of Act 147, whereas a person committing an offense two days before, that is, on July 28, 1942, would not have his trial prescribed until six years elapsed from the filing of the indictment or information, as provided by Act 21 of the Second Extra Session of *Page 449 1935, notwithstanding the act was amended and reenacted by Act 323 of 1942. I respectfully submit that that is a mistake. In the first place, as I have said, there is no "clause in Act 323 of 1942, reducing to three years the prescriptive period for the trial of crimes committed before its effective date, July 29, 1942." In the second place, a crime committed on July 28, that is, on the day before Acts 147 and 323 of 1942 went into effect, would be subject to the prescription of three years commencing on July 29, 1942, under the provisions of Act 323 of the Session of 1942, because that act went into effect on that date. It is true that a crime committed before July 29, 1942, would be subject to the prescription of six years from the date of the filing of the indictment or bill of information as provided for in Article 8 of the Code of Criminal Procedure as amended by Act 21 of the Second Extra Session of 1935; but the period of prescription in such a case could not extend beyond July 29, 1945, or beyond three years from the date on which Act 323 of 1942 went into effect. There is no inconsistency in saying that a crime committed before July 29, 1942, is subject to the prescription of six years commencing from the date on which the indictment or bill of information is filed, and is subject also to the prescription of three years from July 29, 1942, under the provisions of Act 323 of 1942.
In such a case the prosecution is barred by whichever one of the two periods expires first, — the period of six years from the date on which the indictment or bill of information was filed, under the provisions of Act 21 of the Second Extra Session of *Page 450 1935, or the period of three years from July 29, 1942, under the provisions of Act 323 of that year.
This rule, that an action or a prosecution may be barred by the first-expiring one of two periods of prescription, commencing at different dates, is applicable also to civil cases. The rule is stated in Daniel Deal Co. v. Patterson, 12 La.Ann. 728, thus: "When a statutory change is made in regard to a particular term of prescription, the time anterior to the promulgation of the change is reckoned according to the old law, and the subsequent time according to the new enactment."
For these reasons I respectfully dissent from the prevailing opinion and decree rendered in this case.