Cain v. State

• Decision Date: 01 January 1857
• Citation: 20 Tex. 355
• Parties: BARNEY CAIN AND ANOTHER v. THE STATE.
• Court: Texas Supreme Court

20 Tex. 355

BARNEY CAIN AND ANOTHER

v.THE STATE.

Supreme Court of Texas.

1857.

In the construction of acts of the same session, the rule is that the whole must be taken 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. 5 Tex. 418;7 Tex. 76;8 Tex. 62;17 Tex. 596;26 Tex. 178;27 Tex. 68.

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.

The act to authorize the county courts of the 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in quantities less than a quart, and imposing a license tax for such privilege, approved February 2d, 1856, was not repealed by the penal code and code of criminal procedure enacted at a subsequent period of the same session.

Where two defendants were jointly indicted for the violation of a license law, and the jury “found them guilty and assessed the fine at fifty dollars,” upon which the court below rendered judgment against each defendant for fifty dollars, it was held, on appeal, that the judgment should have been rendered against the defendants jointly for fifty dollars only, and it was reformed accordingly.

Appeal from Bastrop. Tried below before the Hon. A. W. Terrell.

Indictment charging Barney Cain and John Persons with selling intoxicating liquors, on the first day of July, 1857, in quantities less than a quart. Motion to quash the indictment on the ground that there was no such offense known to the laws of the state. Motion overruled. Verdict as follows: “We, the jury, find the defendants guilty, and assess the fine at fifty dollars.” Judgment against each defendant for fifty dollars.

C. C. & A. D. McGinnis, for appellants. I. The penal code and code of criminal procedure, adopted at the adjourned session of the last legislature, and approved on the 26th August, A. D. 1856, repealed the statute of 2d February, 1856; and there is not and was not at the time appellants sold intoxicating liquors in quantities less than a quart, any law in force prohibiting them from doing so. See Penal Code, articles 1, 12, 15, and 54, and latter part of page 167. Also see the Code of Criminal Procedure, preamble and section 1st. Also final title, sections 2, 3, and 4. It may be contended by the attorney for the state, that the statute of February, 1856, and the one adopting the codes, being passed by the same legislature, must be construed together; but we hardly deem it necessary to cite authority to this court, to sustain the position, that the legislature can repeal a statute the same session it was passed. But we will refer the court to a decision at Tyler, April term, 1857, The State v. Robinson, where the court held “it would be difficult to maintain that it (the law in question) was not virtually and impliedly, though not expressly repealed by the institution of an entirely new system of laws on the subject, upon the change of government;” and in the subsequent part of the same decision the court held the repeal would nevertheless be sustained, though it were not expressly intended in the repealing statute. See the Southern Intelligencer, vol. 2, No. 10. In the case now before the court we hardly deem it necessary to discuss the question of repeal of statutes by implication; for on the latter part of the 167th page of the penal code, the legislature, after repealing by enumeration various acts, use the following language: “Together with all other laws and parts of laws relating to crimes and punishments, are hereby repealed.”

II. It was error to render judgment against the defendants for fifty dollars each, upon a verdict finding a fine of fifty dollars against the defendants jointly.

Attorney-General, for appellee. I. The code was passed at the same session with the act of February 2, 1856, and a liberal construction will be adopted in order to sustain both enactments. 9 Bac. Abr. 225; Sedg. Con. and Stat. Law, 122, 127; Foster's Case, 11 Co. R. 63; 3 Mon. 80; Const. of this state, art. 3, sec. 22.

II. The code, a statutory act, is a general law upon crimes and punishments. The license act is special. Its leading object was to regulate the business of retailing liquors, and to raise a revenue for special purposes. To enforce its provisions it is made penal to violate the act. The penal clauses then refer particularly to the single offense of selling without license. Sedg. Con. & Stat. Law, 123.

III. There is no repugnancy between the two acts. The first article of the code is in the nature of a preamble. Neither this or any other provision indicates that it was intended to embrace all and every offense, without regard to laws passed at the same session upon the same subject. To constitute a repugnancy, it is necessary that two acts shall relate to the same subject, and shall make contradictory or inconsistent provisions upon that subject. The code does not profess to make any provision whatever for the offense of retailing liquor without license. Id. 127; Bowen v. Lease, 5 Hill, 221; Canal Co. v. R. R. Co. 4 Gill & Johns. 1; Street v. Comm. 6 W. & S. 209;Comm. v. Bank, 10 Barr, 442;Brown v. County Com. 21 Penn. 37; Williams v. Potter, 2 Barb. (S. C.) 316; Comm. v. Herring, 6 Cush. 465.

IV. It was manifestly not intended to repeal the act of February 2, 1856, as appears from the history of the legislation on the subject. The codes were reported by the commissioners, and action had been taken upon them in the legislature before the passage, or even the introduction of the license law. Of course then the repealing clauses, which were part of the original bill, could have no reference to a statute not in existence, and indeed not introduced. This part of the subject is well discussed in the case of Delesdenier v. The State, 7 Tex., which though the decision of a special court, and therefore in strictness not authority, is yet entitled to all the weight which clear, lucid, sound and forcible reasoning can give to any case.

V. Upon the whole case it seems to be beyond controversy that both acts or rather the three acts may stand. Indeed, if the rule invoked in aid of the notion that the license law is repealed, were caried out in strictness, we might, with equal propriety, conclude that the penal code, which was approved the 28th of August, had repealed the code of procedure passed two days before. If the three acts be regarded as laws upon the same subject, the rule laid down in the Kentucky case (3 Mon. 80) would well apply, and they would all be held to be one act, or rather construed as if embodied in one. When we come to recollect that for various causes incident to legislation, an act introduced very early in the session may be delayed, and another subsequently brought forward may be first passed into a law, the propriety of the principles to which I have alluded, as governing the question, will be strikingly apparent.

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...