Barnet Cain and Another v. The State, 20 Tex. 355

Wheeler, J. This indictment was found under the 5th

Section of the Act of the 6th Legislature, entitled “An Act to authorize the County Courts of this State to grant a license for the retail of spirituous, vinous and other intoxicating liquors in quantities less than a quart, and imposing a license tax for such privilege,” approved February 2d, 1856. (Pamphlet Acts, p. 67.) The material question to be determined is whether this Act was repealed by Acts of a later date, passed by the same Legislature.

It is insisted for the appellants that it was ; and we are referred, in support of this opinion, to several provisions of the Penal Code and the Code of Criminal Procedure. Without dwelling to quote the several provisions referred to, it will suffice to observe, that in none of them is there, nor is it contended that there is, an express repeal of the Act in question, or any repugnancy to its provisions. If repealed, it must be by general words of repeal of former laws, or by implication.

In considering the question, it is important to observe, that both the Act supposed to be repealed, and the supposed repealing Act, are Acts of the same Legislature. This, it is conceived, renders inapplicable the ordinary rules of construction employed to determine whether former laws have been repealed by the enactments of a subsequent Legislature. By attending to this distinction, and applying the rule which governs the construction of Acts passed at the same Session, the question, we think, is freed from difficulty.

The rule is, that in the construction of Acts of the same Session, the whole must be taken and construed as one Act, and to make a latter provision repeal a former, there must be an express repeal, or an irreconcilable repugnancy between them; and then the latter will control. (3 Moore, 77; Sedg. on Stat. and Const. Law, 415.) The case of Peyton v.

Moseley, determined by the Court of Appeals of Kentucky, is a stronger case, it is conceived, of the apparent repeal, by the Legislature, of a prior Act, by one subsequently passed at the same Session, than the legislation in question affords; and yet the Court held there was no repeal.

An Act of the Legislature prescribed the form of a recognizance to be taken in certain cases, concluding with the words, “ witness my hand and seal.” A subsequent Act of the same Session abolished the use of seals, putting sealed and unsealed instruments on the same footing. It was insisted that the latter Act repealed the former. But the Court said: “ It is true, as observed by the Court below, the expressions of this latter Act are very broad, and if it had not passed at the same Session with the former, it might, by the ordinary rules of construction, be held to repeal the former pro tanto.

But with regard to Acts passed at the same Session, we apprehend that the rules of construction are somewhat different. When they are compared together, they ought to be construed as one Act on the same subject; and the presumption of so sudden a change or revolution in the minds of the Legislature, ought not to be indulged. There ought to be an express repeal, or an absolute inconsistency between the two provisions, to authorize a Court to say that the latter had repealed the former. If both these provision’s were in the same Act, both must have effect if possible.

Hence the conclusion would be, that the recognizance directed to be taken with a seal, in which the bail stipulated for the principal, ought to be held as an exception to the general provision which dispensed with a seal.” (3 Monroe, 80.) And thus the Court, instead of holding Acts of the same Session, apparently repugnant, the one to repeal the other, gave effect to both, although in order to do so, it became necessary to engraft the former upon, or incorporate it in the latter Act, as an exception to its provisions. In Bacon’s Abridgment it is laid down that

an Act cannot be altered or repealed in the same Session in which it is passed, unless there be a clause inserted expressly reserving a power to do so. (8 Bacon, Ab. 225.) This, however, is dependent on a rule of Parliament. Mr. Sedgwick, in his treatise on Statutory and Constitutional Law, states this, and refers, in the same connection, to the 22d

Section of the 3d

Article of the Constitution of this State; which, it is conceived, is confirmatory of the doctrine that it will not be intended, unless the action of the Legislature has been such as to render that conclusion unavoidable, that Acts passed at the same Session repeal one another. “ In the English Houses of Parliament, (says Mr. Sedgwick,) a rule prevails that no bill can be introduced in repeal of or in opposition to any law passed at the same Session. And in order to obviate this, it is there the practice to insert in every bill a clause providing that the Act may be amended or repealed at the same Session.

No general rule or practice of this kind (he adds) prevails in this country.

But the Constitution of the State of Texas contains this clause: ‘ After a bill or resolution has been rejected by either branch of the Legislature, no bill or resolution embracing the same substance shall be passed into a law during the same Session.’ ” The reason of this provision is, that when a subject has once been presented to the mind of the Legislature, and considered and acted on, it is to be presumed that they have acted intelligently, and according to their deliberate judgment, and that to permit their attention to be called to the same subject again, would be but a useless consumption and waste of time.

Hence the framers of the Constitution thought proper to forbid it, and thus preclude the presumption, which the Court in Peyton v. Moseley say ought not to be indulged, of so sudden a change or revolution in the mind of the Legislature. The same Legislature is supposed to be actuated, in all that it does, by the same mind, spirit, and intention, and to have, at all times, the same governing objects and policy.

The artificial being is supposed to have but one mind, and that a rational and intelligent mind; and hence the cogency of the presumption, affirmed by the Constitution, that it will not change from day to day during the same Session, and undo to day what was done with so much deliberation and solemnity yesterday.

It is not to be supposed, nothing short of expressions so plain and positive as to force upon the mind an irresistible conviction, or absolute necessity, will justify a Court in presuming, that it was the intention of the Legislature that their Acts passed at the same Session, should abrogate and annul one another. The decent respect due a co-ordinate department of the government, would seem to forbid that such a presumption be indulged by the Court. As we had occasion to say in Neill v.

Keese, “it would not be a reasonable mode of construing Acts of the Legislature, so to construe them as to make one Act repeal another passed at the same Session. It cannot be supposed .that it was their intention that Acts thus passed should abrogate and repeal one another.” (5 Tex.

R. 33.) Even in respect to Acts passed at different Sessions, although it is clearly settled that statutes may be repealed by implication, when their provisions are irreconcilable, “ still (says Sedgwick, p. 127,) the leaning of the Courts is against the doctrine, if it be possible to reconcile the two Acts of legislature together.” So, in Pennsylvania it has been declared that one Act of Assembly is held to repeal another by implication only in cases of very strong repugnancy,"or irreconcilable inconsistency.

And so in New York it is held that unless the latter statute is absolutely inconsistent with and repugnant to the former, both remain in force. So too in Massachusetts, the latter statute must be clearly repugnant to the former to effect a repeal by implication. (Id. 127-128; 6 Watts & Serg. 209; 10 Barr, 442; 21 Penn. 37; 2 Barb. S. C.

R 316 ; 6 Cush. 465.) This is the well settled doctrine; and the reason of it is said to be that laws are presumed to be passed with deliberation, and with a full knowledge of all existing ones on the same subject. (Ib.) The doctrine, of course, applies with additional force of reason to the Acts of the same Session. Treating of the rule that the statute last in point of time controls, Mr.

Sedgwick says : “ But it is only in cases of irreconcilable repugnancy, that this rule applies: it gives way to the fundamental principle, that the intention of the Legislature is to govern.” “ A subsequent statute,” says Parsons, 0. J., “ generally will control the provisions of former statutes, which are repugnant to it according to its strict letter.

But there are exceptions • to this rule, depending on the construction of the last statute agreeably to the intention of the Legislature.” “ The general rule is conceded to be,” it has been said in Pennsylvania, “ that where two statutes contain repugnant provisions, the one last signed by the Governor is a repeal of one previously signed. But this is so merely because it is presumed to be so intended by the law-making power.

Where the intention is otherwise, and that intention is manifest upon the face of either enactment, the plain meaning of the legislative power thus manifested, is the paramount rule of construction.

It is no part of the duty of the Judiciary to resort to technical subtleties to defeat the obvious purposes of the legislative power in a matter over which that power has a constitutional right to control.” (Sedgw. 415, 416.) These observations, in respect to the repealing effect of subsequent upon former enactments, have reference, of course, to cases where there is such absolute repugnancy, as that both provisions cannot stand together, and the Court is, of necessity, compelled to give effect to one as expressive of the legislative intention rather than another.

All the rules of construction must give way, as observed by Mr. Sedgwick, to the fundamental principle that the intention of the Legislature is to govern. Indeed, the design of those rules is to furnish guides to assist in arriving at the intention of the Legislature. “The object and the only object of judicial investigation in regard to the construction of doubtful provisions of statute law, is to ascertain the intention of the Legislature which framed the statute.” (Id. 231.) That intention, where it can be discovered, will prevail over the literal import of words.

For “if,” says Bacon, “from a view of the whole law, and from other laws in pari materia, the evident intention is different from the literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that, in fact, is the will of the Legislature.” (9 Bac. Ab. Statutes, (

J) p. 240.) This doctrine was applied by the Court in the case of The State v. Delesdenier, (7 Tex. R. 76,104,105,106,) where it was held that the repealing clause of the Act of the 14th of December, 1837, as broad and sweeping in its terms as the repealing clauses of the Codes, did not effect a repeal of a law of a former Session, reserving certain lands from location.

It is a well settled rule in the construction of statutes, and for the purpose of arriving at the legislative intention, that all laws in pari materia, or on the same subject-matter, are to be taken together and examined in order to arrive at the result. (Sedg. 247.) “All acts in pari materia,” said Lord Mansfield, “are to be taken together as if they were one law.” (Ib.) There is no doctrine in relation to the construction of statutes more certainly settled than this: that all Acts in relation to the same subject-matter are to be taken in pari materia and considered as one Act. (Id. 247-251; 6 Indiana, 83, 354.) Whether, indeed, of the same or former Sessions, all are to be looked to to arrive at the intention of the Legislature, and more especially those of the same Session.

If we look to the other Acts of the same Session,>we find that by

an Act passed subsequently to the Codes the Act here in question, of the 2d of February, 1856, is directly referred to and recognized as being still in force. (Chap. 167, Sec. 1, of Acts, &c., p. 93.) This certainly places it beyond a doubt that the Legislature did not, in fact, intend, by adopting the Codes, to repeal the Act in question, whatever may have been the language employed in the Codes.

The intention being thus manifest, upon no principle or rule of construction, it is conceived, can it be held that it is repealed; for it is the intention of the Legislature, constitutionally expressed, which makes the law; and having shown, by subsequent enactments, that it was not intended by adopting the Codes to repeal the Act in question, it is perfectly clear that their adoption cannot have that effect.' According to an authority before quoted, since, from other laws in pari materia, it thus evidently appears that the real intention was contrary to the “literal import of the terms employed to express it in a particular part of the law, that intention should prevail, for that, in fact, is the will of the Legislature.” (9 Bacon, Ab. 240.) It is, moreover, manifest, notwithstanding the apparent and expressed design and object of the Codes, that the Legislature did not intend—they cannot have intended—that these should absolutely and necessarily embrace all the laws of a penal nature; for they went on immediately thereafter and continued to enact various other penal laws, prescribing the penalty for a violation of their provisions in the laws themselves, passed after the adoption of the Codes.

The Codes were designed to form a system of criminal law complete in itself. That was the theory. But it was not supposed that they were already sufficiently perfected to meet all the exigencies and wants of society; and hence other laws upon the subject were enacted from time to time, as the occasion suggested. (Acts, same Session, Ch. 155, p. 84; Ch. 164, p. 90; Ch. 174, p. 101.) . . . '. . . .

If doubt remained as to the legislative intention, we might look to the history of the legislation upon this subject; “the old law, the mischief and the remedy;” to the fact that former legislation had proved ineffectual, the Act of the 11th of February, 1854, having been decided by this Court unconstitutional; and from the large share it will be admitted to have occupied in the public and legislative mind, it would appear quite impossible that the same Legislature which had so lately, and with so much deliberation, enacted the law, could have intended its repeal, or, indeed, that they would have adopted the Codes, as they finally did, if they had supposed any such effect would be claimed for them.

For it will be conceded that the enactment of a law upon the subject of the present, occupied as large a share of the public expectation, and assumed as much prominence and importance in the public and legislative mind, as any other measure of municipal law, affecting the public welfare, passed by that Legislature, the Codes not excepted. If the minds of the Legislature had really undergone so sudden a revolution, it seems impossible to doubt that they would have made it known, and removed all occasion for controversy on the subject by a direct, express repeal of the Act, in terms.

Ho one, I apprehend, has for a moment supposed that such really and in fact was their intention. If the law is thought to have been repealed, it must be supposed to have happened by some unaccountable oversight in adopting the Codes, without attending sufficiently to their provisions and effect; a kind of accidental repeal.

But, I apprehend, laws have never been held to have been thus repealed, contrary to the legislative intention, unless, indeed, the Legislature have been so unguarded and unfortunate in the use of language to express their intention, that it is impossible to hold otherwise than that one provision does repeal another, by necessary implication, because of an irreconcilable repugnancy.

It is only necessary to advert to the history of the legislation upon this subject, to bring home to every mind the conviction, that no one has been actually misled or deceived by any action of the Legislature, as to what their intention really, and in fact, was. If any have contravened the provisions of the law, and incurred its penalty, it has been done in known disregard of the legislative will.

It is a familiar and admitted rule in the construction of statutes, which this Court has adopted and enforced, that a subsequent statute, revising the subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former, to the extent to which its provisions are revised and supplied. And though a subsequent statute be not repugnant in its provisions to a former one, yet if it was clearly intended to prescribe the only rules which should govern, it repeals the prior statute. (Rogers v. Watrous, 8 Tex.

R. 62.) But this rule was not adopted, nor is it believed, ever to have been applied to aid in the construction of Acts passed at the same Session. It has no reference to the revising of Acts thus passed. It is not to be supposed that the mind of the Legislature will be occupied in making a revision of laws while enacting them. A revision implies the reexamination, orderly arrangement, and embodiment in a new form of the former laws, or laws in force prior to the revision.

In fine, we are not aware of any principle or precedent to warrant the Court in holding the Act in question repealed by the Codes adopted at the same Session. Ho case, it is believed, can be found where it has ever been held that

an Act of the Legislature has been thus repealed, either by the general repealing clauses, or the provisions of other laws passed at the same Session, where the latter were not repugnant to the former. Nothing short of a direct express repeal in terms, or such irreconcilable repugnancy as that both cannot stand together, and one consequently must give place to the other and operate its repeal by implication, has, it is believed, ever been held sufficient to justify a Court in holding one Act repealed by another passed at the same Session.

As there has been no such express repeal, and no such repugnancy is perceived between the provisions of the Act in question and the Codes, or any of their provisions, we are of opinion that the Act remains in force; and consequently that the prosecution and conviction in this case were warranted by law. The judgment, however, does not follow the verdict. That assessed a joint fine against both defendants; and it was error to adjudge and impose the entire amount of punishment, so found by the verdict against the defendants jointly, upon each severally.

The judgment must, therefore, be reversed, and such judgment be here rendered as the Court should have rendered upon the verdict. Judgment reformed.