State v. Robinson

• Decision Date: 01 January 1857
• Citation: 19 Tex. 478
• Parties: THE STATE v. ARCHIBALD ROBINSON.
• Court: Texas Supreme Court

19 Tex. 478

THE STATE

v.ARCHIBALD ROBINSON.

Supreme Court of Texas.

1857.

There was no statute in this state on the 1st day of November, 1854, under which an indictment could be sustained for selling spirituous liquors in less quantity than one quart without license.

Appeal from Tarrant. Tried below before the Hon. John H. Reagan.

Indictment found November 1, 1854, charging that the defendant, on etc., at etc., did then and there keep a storehouse for the sale of spirituous liquors by retail, and did then and there deliver whisky to Levi Franklin in smaller quantities than one quart, without having first obtained license therefor, a majority of the qualified electors of said Tarrant county not having, at an election held for that purpose on the seventh day of August, in the year of our Lord one thousand eight hundred and fifty-four, cast their votes in favor of the granting of such license, contrary to the form of the statute in such cases made and provided, etc.

Indictment quashed on motion.

Attorney General, for appellant.

WHEELER, J.

The indictment was found under and with express reference to the act of 1854, declared unconstitutional in the case of the State v. Swisher, decided at Austin, October term, 1856. There was in that case an intimation of opinion (in which, at the time, I concurred) that the indictment might be maintained under former laws. On a review of the legislation on the subject, however, it seems clear that the act of the 3d of February, 1845 (Hart. Dig. art. 3073), was repealed when this indictment was found. It would be difficult to maintain that it was virtually and impliedly, though not expressly, repealed by the substitution of an entirely new system of laws on that subject, upon the change of government. Be that as it may, it certainly was repealed by the 38th section of the act of the 11th of February, 1850, which expressly repeals “all laws and parts of laws heretofore passed in relation to the mode of assessing and collecting taxes, except so far as they relate to the collection of taxes heretofore assessed.” Hart. Dig. art. 3204. The provision under which it has been supposed the indictment might be maintained is the 3d section of the act of the 3d of February, 1845, which enacts that “any person who shall violate any law or laws requiring the payment of license taxes, shall be deemed guilty of a misdemeanor,” etc. Hart. Dig. art. 3073. The repeal of the laws requiring the payment of taxes must...