In Re of Barry

Supreme Court of Rhode Island

In Re of Barry

12 R.I. 51, 1878 R.I. LEXIS 12

DecidedFebruary 4, 1878

StatusPublished

This text of 12 R.I. 51 (In Re of Barry) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re of Barry, 12 R.I. 51, 1878 R.I. LEXIS 12 (R.I. 1878).

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Opinion

Durfee, C. J.

This is a petition for a writ of habeas corpus to release the petitioner from imprisonment, under a sentence passed upon him in pursuance of Gen. Stat. R. I. cap. 73, § 2. This section 2 was repealed, or, at least, partly repealed, by Pub. Laws R. I. cap. 392, May 28, 1874 ; but subsequently, cap. 519, March 7, 1876, was passed, containing the following section, to wit: “Section 2 of chapter 73 of the General Statutes, is hereby reenacted and declared to be in full force.” The petitioner was indicted and sentenced after chapter 519 was passed.

The counsel for the petitioner contends that the section above recited is utterly void. His argument is that Gen. Stat. R. I. cap. 73, § 2, was completely obliterated by the repeal, and that being so obliterated it could not be reenacted by reference. The section was obliterated in one sense inasmuch as it ceased to exist as a statute; but it continued to exist on the statute-book as a printed paragraph, to which reference could be made so as to identify it, and, therefore, when being identified by reference, it was reenacted, it again became a statute, prospectively, as much as if it had been repeated verbatim in the section reenacting it. Legislation in this form may be obnoxious to criticism, but the counsel for the petitioner is mistaken in supposing it is unexampled. See, for a notable instance of it, Pub. Laws R. I. cap. 501, June 18, 1875. Petition dismissed.

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Durfee, C. J.

This is a petition for a writ of habeas corpus to release the petitioner from imprisonment, under a sentence passed upon him in pursuance of Gen. Stat. R. I. cap. 73, § 2. This section 2 was repealed, or, at least, partly repealed, by Pub. Laws R. I. cap. 392, May 28, 1874 ; but subsequently, cap. 519, March 7, 1876, was passed, containing the following section, to wit: “Section 2 of chapter 73 of the General Statutes, is hereby reenacted and declared to be in full force.” The petitioner was indicted and sentenced after chapter 519 was passed.

The counsel for the petitioner contends that the section above recited is utterly void. His argument is that Gen. Stat. R. I. cap. 73, § 2, was completely obliterated by the repeal, and that being so obliterated it could not be reenacted by reference. The section was obliterated in one sense inasmuch as it ceased to exist as a statute; but it continued to exist on the statute-book as a printed paragraph, to which reference could be made so as to identify it, and, therefore, when being identified by reference, it was reenacted, it again became a statute, prospectively, as much as if it had been repeated verbatim in the section reenacting it. Legislation in this form may be obnoxious to criticism, but the counsel for the petitioner is mistaken in supposing it is unexampled. See, for a notable instance of it, Pub. Laws R. I. cap. 501, June 18, 1875. Petition dismissed.

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Bluebook (online)

12 R.I. 51, 1878 R.I. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-of-barry-ri-1878.