COLE v. STATE ex rel. COBOLINI, 170 S.W. 1036

PHILLIPS, J. This is a quo warranto proceeding in the name of the state, upon the relation of Louis Cobolini, to oust the plaintiff in error, Cole, from the office of mayor of the city of Brownsville, a case of a “contested election,” of which the jurisdiction of the Court of Civil Appeals is final under

article 1591, R. S. 1911, if that

article is now in force. State v. Thompson, 88 Tex. 228, 30 S. W. 1046. There has been no express repeal of the article, and it accordingly is now in effect, unless the act of the Thirty-Third Legislature (Laws 1913, p. 107 [Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 1521, 1522, 1526, 1543, 1544]) amending the statute defining the jurisdiction of the Supreme Court worked its repeal by necessary implication. Whether such was the result of the act is the question which arises upon the motion to dismiss the petition, filed by the defendant in error.

Article 1591 provides that: “The judgments of the Courts of Civil Appeals shall be conclusive on the law and fact, nor shall a writ of error be allowed thereto from the Supreme Court in the following cases, to wit: “1. Any civil case appealed from a county court or from a district court, when, under the Constitution, a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving -he revenue laws of the state or the validity of a statute. “2. All cases of boundary. “3. All cases of slander. “4. All cases of divorce. “5.

All cases of contested elections of every character, other than for state officers, exce.pt where the validity of the statute is attacked by the decision. “6. The judgments of said Courts of Civil Appeals shall be final in all appeals from interlocutory orders appointing receivers or trustees or such other interlocutory appeals as may be allowed by law. “7.

The judgment of said court shall be final in all other cases as to law and facts, except where appellate jurisdiction is given . to the Supreme Court and not made final in said Courts of Civil Appeals.” ’ The caption of the act of 1913 is in the following language: “An act to amend articles 1521, 1522, 1543, 1544, and 1526 of the Revised Civil Statutes of 1911 defining the original and appellate jurisdiction of the Supreme Court, and regulating practice therein.” The articles as amended which have any bearing upon the question read:

Article 1521: “The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following eases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts: “

(1) Those in which the judges of the Courts of Civil Appeals may disagree, upon any question of law material to the decision. “

(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law. “

(3) Those involving the validity of statutes. “

(4) Those involving the revenue laws of the state. “

(5) Those in which the Railroad Commission is a party. “

(6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case,, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.”

Article 1544: “If, upon examination of the petition for writ of error, the Supreme Court shall find the case to he one of which it may take jurisdiction, and that there is such a difference of opinion among the judges of the court from which the cause shall come, or such a difference between the decision brought in question and a decision of another court, as is specified in

article 1521, or that the question involving the validity of a statute was erroneously decided, or that, in- a case involving the revenue laws of a state, or to which the Railroad Commission is a party, any question of law material to its correct decision was erroneously decided, or that such an error is shown as is contemplated by subdivision 6 of

article 1521, the court shall grant the writ for the purpose of deciding the question as to which the difference exists, or of correcting the erroneous decision and rendering the judgment in which a correct decision thereof shall result.” Repeals by Implication are never favored. Laws are enacted with a view to their permanence, and it is to be supposed that a purpose on the part of the lawmaking body to abrogate them will be given unequivocal expression.

Knowledge of an existing law relating to the same subject is likewise attributed to the Legislature in the enactment of a subsequent statute; and when the later act is silent as to the older law, the presumption is that its continued operation was intended, unless they present a contradiction so positive that the purpose to repeal is manifest. To avoid a state of conflict an implied repeal results where the two acts are in such opposition. But the antagonism must be absolute — so pronounced that both cannot stand.

Though they may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and therefore an implied repeal does not result, since in such case both may stand and perform a distinct office.

Especially will this construction be adopted where the older law is particular and expressed in negative terms, and the later statute is general in its nature. In such instances that to which the older law distinctly applied its negative provisions will be regarded as excepted from the operation of the more general statute. These are but the familiar rules of constructiofi to be applied where the implied repeal of a law is involved. They are so well understood as not to require the citation of authority, but reference may be made to the following: Lewis’ Sutherland, Stat.

Cons. vol. 1, § 247; Endlich, Interp. of Stat. §§ 210, 216, pp. 288, 289; Hanrick v. Hanrick, 54 Tex. 101; Brown v. Chancellor, 61 Tex. 437; Herndon v. Reed, 82 Tex. 647, 18 S. W. 665; Wilmot v. Mudge, 103 U. S. 217, 26 L. Ed. 536; Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614. It may be well doubted whether any question of an implied repeal of

article 1591 really arises upon the act of 1913. One statute is not repugnant to another unless they relate to the same subject. It is not sufficient that there be a discrepancy between different parts of a system of legislation upon the same general subject; there must be a conflict between different statutes upon the same specific subject. 1 Suth. Stat. Cons. § 247. The sub'ject-matter of the act of 1913 is the original and appellate jurisdiction of the Supreme Court and the regulation of its practice. It does not propose to deal with or affect the jurisdiction of the Courts of Civil Appeals.

It contains no reference to that subject or any existing provision o£ law upon it. It distinctly takes no note of

article 1591, in the caption or elsewhere. As not without some bearing on the question of its intended scope and effect upon any law relating to the jurisdiction of those courts, it may be remarked that it is even without a general repealing clause. The subject-matter of

article 1591 is the final jurisdiction of the Courts of Civil Appeals, recognized in our judiciary articles as a different subject from that of the appellate jurisdiction of the Supreme Court. In those articles, as they stood at the time of the adoption of this act, the definition of the appellate jurisdiction of the Supreme Court did not include' that of the final jurisdiction of the Courts of Civil Appeals, nor was the former declared in the terms of the latter. They constitute distinct subjects in that legislation, and this act must be regarded as having been proposed and passed under that recognition.

An act limited in its scope to the revision of the jurisdiction of one court evidences no general intention to revise, as well, important features of the jurisdiction of another independent court, or that its provisions shall operate as a new system for the government of both. It will be presumed, on the contrary, that the impairment of the other jurisdiction was no part of its purpose. A seeming conflict between two statutes dealing, as do these, with different specific subjects is a very narrow basis upon which to construct an implied repeal.

But, leaving this phase of the question, and assuming that the statutes relate to the same subject, an absolute and total conflict between them is not disclosed. Taken in pari materia, as they may be if regarded as relating to the same subject, they are to be construed as one act; but, whether construed as one act or as distinct acts, it is possible to fairly reconcile them and give each its in-ténded operation. Whatever inconsistency exists between them arises from the jurisdiction conferred upon the Supreme Court by

section 6 of amended

article 1521, wherein it is given authority to review questions of law arising in civil causes in which, in its opinion, “the Court of Civil Appeals has * * * erroneously declared the substantive law of the case.” This

section presents an apparent conflict with

article 1591, but not such a total repugnance that the latter

article cannot stand, if the

section be given effect, or as to render the

section inoperative if the

article be held as still in force. It may have its appropriate sphere of operation, though

article 1591 be allowed full effect. It is in certain “cases” that the jurisdiction of the Courts of Civil Appeals is made final under

article 1591, and clearly because of the nature of such cases. It is a particular statute, and is expressed in negative terms, ,the language being: “Nor shall a writ of error be allowed thereto from the Supreme Court.” This is a very clear and emphatic declaration. It is a definite exemption frbm the appellate jurisdiction of the Supreme Court of all cases of the classes named, as applicable to any subsequent adjustment of that jurisdiction which did not distinctly remove it, as to the law by. which such jurisdiction was then defined.

Having regard for its character as an exemption provision, it would seem to necessarily provide an exception to a revision of that jurisdiction which is silent as to it and is expressed in such general terms as to include, if taken literally, all classes of cases of which the Courts of Civil Appeals have appellate jurisdiction. In making the jurisdiction of the Courts of Civil Appeals final as to cases of the classes named,

article 1591 presents no interference with the exercise of the jurisdiction of the Supreme Court, as conferred by -section 6 of the amended

article 1521, over all other cases to which the appellate jurisdiction of the Courts of Civil Appeals extends. The terms of that

section are not such as to positively include any of the classes of cases named in

article 1591, and are therefore not inconsistent with their exclusion. No violence is done its language by restraining its operation to cases not by law declared exempt from the jurisdiction of the Supreme Court. With one statute negative in character, and relating to particular classes of cases over which a certain jurisdiction is directly denied, and another' statute affirmative, and defining that jurisdiction in general terms, no doubt can be indulged as to the construction to be applied. In such a case the question of an implied repeal of the particular statute is not to be seriously considered.

It will be construed as constituting an exception to the general statute, under the settled rule, though the language of the latter is, literally, broad enough to include that to which its negative provisions apply. In this manner both statutes will be given effect, and each allowed its appropriate field of operation. We accordingly hold that the act of 1913 did not by implication repeal

article 1591, and that

article is now in force, It should be said that during the last term, in applying the act of 1913, we acted under the view that its effect was to confer, upon this court jurisdiction over questions of substantive law in eases made final in the Courts of Civil Appeals by the terms of this article; and in a few instances, doubtless, writs of error have been granted in such cases, which under this ruling will be dismissed. This is a consideration of no. weight, however, as opposed to a correct decision. A full examination of the question had not then been undertaken.

It has since received a careful consideration, with the conclusion here announced as the result. The motion to dismiss is granted. HAWKINS, J., absent, and will later announce his position. BROWN, C. J. Upon a full and thorough examination of the questions involved in the foregoing opinion, I fully concur with the reasoning and the conclusions expressed therein.