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SUPREME COURT RECORDS PAGE
15
File contributed by Lisa Lach and
proofed/formated by Dena Stripling Unless the supreme court is fully satisfied from
the evidence that the trial court erred in the exercise of its discretion in
admitting parol proof of the existence of a lost or destroyed record, it will not
interfere. Where a witness testified that he had seen a
certain order on the records of the probate court, and that the records were
carelessly kept, and he believed the record of said order had been destroyed, and the
clerk testified that the records were carelessly kept, and some of them
mutilated, but that they were not mutilated for the time when said order should have been
recorded, the evidence of the destruction of the records was not made out, and
oral evidence that such order had been made of record was not admissible. The discretion of a court in allowing parol
proof of the existence of a lost or destroyed record must rest upon a reasonable
conclusion drawn from all the evidence on the matter. It is a matter within the discretion of the
court to determine whether a proper basis has been laid by proving the loss or
destruction of a record to let in parol proof that the record once existed. *1 Appeal from Bastrop. Hamilton & Walton, for appellants. It is
believed that the second assignment is well taken. That the appellants had the right to introduce
testimony proving the former existence and contents of the records or papers, and their
loss or destruction, of the County Court of Bastrop county, see 3 Phil. Ev., 1067,
note 723, with authorities cited; 1 Greenl. Ev., 581, with authorities cited. A sufficient basis was laid by appellants for
the introduction of the secondary evidence offered. The Court will not hold appellants to
the strictest proof in laying proper foundation for the introduction of such
evidence, because Courts show great liberality where no suspicion hangs over the party seeking
to establish the contents of lost papers or records. It is not intimated that appellants
are chargeable with the loss of the records and papers. We have in the testimony positive evidence of
the former existence of the records and papers upon which the validity of appellants'
title depends. We have the further evidence that those records and papers do not
exist or cannot be found in their proper place of deposit. This is, then, certainly
sufficient to admit the secondary evidence to the jury sought to be introduced as
establishing the contents of the records and papers, &c. The Probate Court is not strictly a Court of
record. It is, therefore, contended that any paper on file in such Court would be as good
evidence of the action of the Court as a record made of these papers would be. It is contended that all the papers as they are
on file are, in fact, the record of the Court. This position has been sustained by one
or more of the District Judges. We know not with what favor it will meet in this Court.
If, then, the Court papers are in fact the record, proof of the loss of such papers
will admit parol evidence as to their contents, although they had never been recorded
in a bound book, &c. This seems to be a rule which may well be adopted where so great
a necessity exists for it as in our State, in view of the careless and negligent
manner in which our records and Court papers were kept years since. Should a different rule than this obtain it
would be the source of interminable litigation. But we are not forced to rely upon
this rule, because the testimony of James Smith is positive and emphatic as to the
former existence of such orders and papers. William Dunbar's testimony is equally
positive as to the non-existence of such orders and papers in their proper deposit. There is no positive rule as to the amount and
character of evidence to be introduced as a sufficient basis for the introduction of
parol testimony proving the contents of lost papers or records, but each case must stand
upon the circumstances surrounding it, &c. Poage and Marshall, for appellees. LIPSCOMB, J. This suit was brought by the heirs of Garretson
to recover from the defendants one-third of a league of land. The defendants set up in
defense a purchase from one Smith, the administrator of Garretson. The first evidence
offered by them is a covenant as follows , i. e.: *2 "Know all men by these presents that I,
James Smith, administrator of Jas. Garretson, deceased, by virtue of an order of the Probate
Court in and for the county aforesaid, (Bastrop,) did expose the within claim at public
sale in the town of Bastrop, on the 28th May, 1838, to the highest bidder, on a credit of
six months, and Thomas H. Mays being the highest and best bidder, at the sum of four
hundred and fifty dollars, and it was struck down to him at that sum, for which I bind
myself, my assigns, and the heirs and assigns of Thomas Garretson, so far as the ability in me
exists as administrator, to make a good and sufficient title to the said land, if the
said bidder should not receive the patent in his own name, so soon as title is obtained
for the same. Given under my hand in the town of Bastrop this 28th May, 1838. JAMES SMITH. [L. S.]" The defendant offered to prove by oral testimony
that there had been an order of sale, that the return of the sale had been made to the
Court, and that the same had been approved by the said Court; which evidence was
rejected by the Court, and there was a verdict and judgment for the plaintiffs; a
motion for a new trial made and overruled, from which the defendants appealed. The first assignment of error, that the Court
compelled the defendants to read the whole transcript in evidence of all the matters and
things of record in relation to the succession of the said Thomas Garretson, when
they only offered to read two pages of the same, is not supported by the record. It
appears that the whole transcript was read by the defendants without any ruling of the
Court that it should be done, or offer on their part to read only a part of it. The second one is, that the Court erred in
rejecting the evidence offered to prove that the order for sale had been made by the Probate
Court, the return of the sale by the administrator, and the approval and confirmation
thereof by the Probate Court. It appears from the record that Smith, the
administrator, was called by the defendants. He testified that he had sold the certificate
under an order of the Probate Court, and returned to the Court an account thereof,
which was approved and confirmed by the Court; that he had looked for the order of the
Court for the sale and for the confirmation, and could not find them on the
records, though he had seen them there; that the records have been carelessly kept and
much mutilated, and he believes that the record has been destroyed. Dunbar, the
keeper of the records and Clerk of the Court, swears that the order and confirmation
cannot be found of record, and confirms the evidence of Smith, that they had been
carelessly kept and some of them mutilated; but he swears "that he had examined the
minute-book of the Court for 1837 and 1838; that he could find no mutilation in said
minutebook between the period of granting letters of administration upon the estate of
Thomas Garretson and the date of transfer by James Smith, administrator of said Garretson,
indorsed on the certificate aforesaid, and that there was a continuation in said book
from page to page connecting the orders." The minute- book was inspected by the Court, and
it was ruled that the evidence of the destruction of the records was not made out, and
the Court rejected the oral evidence that such orders had been of record. *3 It is always a question addressed to the
discretion of the Court to determine whether the basis has been laid by proving the loss or
destruction of a record, to let in proof that such record once did exist. This discretion
is not an arbitrary, capricious discretion, but must be a reasonable conclusion
from the evidence. But unless we were fully satisfied from the evidence that the Court
below erred in the exercise of its discretion, we would not be authorized to
reverse its decision. Parol evidence to supply record testimony should be received with
great caution. In such cases the temptation to fraud and perjury would be very
great, and the difficulty, if not the impossibility, of a conviction for perjury, and
of rebutting such evidence, would be an encouragement to an unscrupulous witness. It
is a rule of law that affirmative evidence is entitled to more weight than
negative. So one witness might swear to the contents of a record, and two swear they had
never seen such record; the affirmative witness would prevail against the two negative
witnesses, and it would be almost an impossibility to convict that witness of
perjury, if it had been a perjury, fabricated and perpetrated for the particular
occasion. Hence the necessity that the most satisfactory evidence of the
destruction of the record should be required before parol evidence can be admitted to supply
the contents of the record. The evidence of such mutilation and loss was
rebutted by the evidence of Dunbar, the Clerk of the Court, and the inspection of the book
itself, that should have contained such record, if it had existed. We believe that the
Judge did not err in his decision rejecting the evidence offered. The record presents nothing else for our
consideration, and the judgment is affirmed. Judgment affirmed. Tex. 1854. MAYS AND ANOTHER v. MOORE AND OTHERS. 13 Tex. 85, 1854 WL 4468 (Tex.) END OF DOCUMENT ===== Unless the supreme court is fully satisfied from
the evidence that the trial court erred in the exercise of its discretion in
admitting parol proof of the existence of a lost or destroyed record, it will not
interfere. Where a witness testified that he had seen a
certain order on the records of the probate court, and that the records were carelessly
kept, and he believed the record of said order had been destroyed, and the clerk
testified that the records were carelessly kept, and some of them mutilated, but that they were
not mutilated for the time when said order should have been recorded, the evidence of
the destruction of the records was not made out, and oral evidence that such order had
been made of record was not admissible. The discretion of a court in allowing parol
proof of the existence of a lost or destroyed record must rest upon a reasonable conclusion
drawn from all the evidence on the matter. It is a matter within the discretion of the
court to determine whether a proper basis has been laid by proving the loss or destruction of
a record to let in parol proof that the record once existed. *1 Appeal from Bastrop. Hamilton & Walton, for appellants. It is
believed that the second assignment is well taken. That the appellants had the right to introduce
testimony proving the former existence and contents of the records or papers, and their
loss or destruction, of the County Court of Bastrop county, see 3 Phil. Ev., 1067, note 723,
with authorities cited; 1 Greenl. Ev., 581, with authorities cited. A sufficient basis was laid by appellants for
the introduction of the secondary evidence offered. The Court will not hold appellants to
the strictest proof in laying proper foundation for the introduction of such
evidence, because Courts show great liberality where no suspicion hangs over the party seeking
to establish the contents of lost papers or records. It is not intimated that appellants
are chargeable with the loss of the records and papers. We have in the testimony positive evidence of
the former existence of the records and papers upon which the validity of appellants'
title depends. We have the further evidence that those records and papers do not exist or
cannot be found in their proper place of deposit. This is, then, certainly sufficient to
admit the secondary evidence to the jury sought to be introduced as establishing the
contents of the records and papers, &c. The Probate Court is not strictly a Court of
record. It is, therefore, contended that any paper on file in such Court would be as good
evidence of the action of the Court as a record made of these papers would be. It is contended that all the papers as they are
on file are, in fact, the record of th e Court. This position has been sustained by one
or more of the District Judges. We know not with what favor it will meet in this Court.
If, then, the Court papers are in fact the record, proof of the loss of such papers
will admit parol evidence as to their contents, although they had never been recorded
in a bound book, &c. This seems to be a rule which may well be adopted where so great
a necessity exists for it as in our State, in view of the careless and negligent
manner in which our records and Court papers were kept years since. Should a different rule than this obtain it
would be the source of interminable litigation. But we are not forced to rely upon this rule,
because the testimony of James Smith is positive and emphatic as to the former existence
of such orders and papers. William Dunbar's testimony is equally positive as to the
non-existence of such orders and papers in their proper deposit. There is no positive rule as to the amount and
character of evidence to be introduced as a sufficient basis for the introduction of parol
testimony proving the contents of lost papers or records, but each case must stand upon
the circumstances surrounding it, &c. Poage and Marshall, for appellees. LIPSCOMB, J. This suit was brought by the heirs of Garretson
to recover from the defendants one-third of a league of land. The defendants set up in
defense a purchase from one Smith, the administrator of Garretson. The first evidence
offered by them is a covenant as follows, i. e.: *2 "Know all men by these presents that I,
James Smith, administrator of Jas. Garretson, deceased, by virtue of an order of the Probate
Court in and for the county aforesaid, (Bastrop,) did expose the within claim at public
sale in the town of Bastrop, on the 28th May, 1838, to the highest bidder, on a
credit of six months, and Thomas H. Mays being the highest and best bidder, at the sum of
four hundred and fifty dollars, and it was struck down to him at that sum, for which
I bind myself, my assigns, and the heirs and assigns of Thomas Garretson, so far as
the ability in me exists as administrator, to make a good and sufficient title to the said
land, if the said bidder should not receive the patent in his own name, so soon as
title is obtained for the same. Given under my hand in the town of Bastrop this 28th
May, 1838. JAMES SMITH. [L. S.]" The defendant offered to prove by oral testimony
that there had been an order of sale, that the return of the sale had been made to the
Court, and that the same had been approved by the said Court; which evidence was
rejected by the Court, and there was a verdict and judgment for the plaintiffs; a
motion for a new trial made and overruled, from which the defendants appealed. The first assignment of error, that the Court
compelled the defendants to read the whole transcript in evidence of all the matters and
things of record in relation to the succession of the said Thomas Garretson, when
they only offered to read two pages of the same, is not supported by the record. It
appears that the whole transcript was read by the defendants without any ruling of the
Court that it should be done, or offer on their part to read only a part of it. The second one is, that the Court erred in
rejecting the evidence offered to prove that the order for sale had been made by the
Probate Court, the return of the sale by the administrator, and the approval and
confirmation thereof by the Probate Court. It appears from the record that Smith,
the administrator, was called by the defendants. He testified that he had sold the
certificate under an order of the Probate Court, and returned to the Court an
account thereof, which was approved and confirmed by the Court; that he had looked for
the order of the Court for the sale and for the confirmation, and could not find
them on the records, though he had seen them there; that the records have been
carelessly kept and much mutilated, and he believes that the record has been destroyed.
Dunbar, the keeper of the records and Clerk of the Court, swears that the order and
confirmation cannot be found of record, and confirms the evidence of Smith, that they
had been carelessly kept and some of them mutilated; but he swears "that he had
examined the minute-book of the Court for 1837 and 1838; that he could find no mutilation
in said minutebook between the period of granting letters of administration upon the
estate of Thomas Garretson and the date of transfer by James Smith, administrator of
said Garretson, indorsed on the certificate aforesaid, and that there was a continuation in
said book from page to page connecting the orders." The minute- book was inspected
by the Court, and it was ruled that the evidence of the destruction of the records was
not made out, and the Court rejected the oral evidence that such orders had been of
record. *3 It is always a question addressed to the
discretion of the Court to determine whether the basis has been laid by proving the loss or
destruction of a record, to let in proof that such record once did exist. This discretion
is not an arbitrary, capricious discretion, but must be a reasonable conclusion
from the evidence. But unless we were fully satisfied from the evidence that the Court
below erred in the exercise of its discretion, we would not be authorized to
reverse its decision. Parol evidence to supply record testimony should be received with
great caution. In such cases the temptation to fraud and perjury would be very
great, and the difficulty, if not the impossibility, of a conviction for perjury, and
of rebutting such evidence, would be an encouragement to an unscrupulous witness. It
is a rule of law that affirmative evidence is entitled to more weight than
negative. So one witness might swear to the contents of a record, and two swear they had
never seen such record; the affirmative witness would prevail against the two negative
witnesses, and it would be almost an impossibility to convict that witness of
perjury, if it had been a perjury, fabricated and perpetrated for the particular
occasion. Hence the necessity that the most satisfactory evidence of the destruction of
the record should be required before parol evidence can be admitted to supply the
contents of the record. The evidence of such mutilation and loss was rebutted by the
evidence of Dunbar, the Clerk of the Court, and the inspection of the book itself, that
should have contained such record, if it had existed. We believe that the Judge did not err
in his decision rejecting the evidence offered. The record presents nothing else for our
consideration, and the judgment is affirmed. Judgment affirmed. Tex. 1854. MAYS AND ANOTHER v. MOORE AND OTHERS. 13 Tex. 85, 1854 WL 4468 (Tex.) END OF DOCUMENT ==== Supreme Court of Texas. THE STATE v. EDWARD TONEY. 1854. An indictment against "Edward Toney Joseph
Scott," laborers, intended for Edward Toney and Joseph Scott, is bad. *1 Appeal from Bastrop. This was an indictment
against Edward Toney Joseph Scott, late of Bastrop county, laborers, for permitting
gambling in a house kept for the retailing of spirituous liquors. Edward Toney pleaded in abatement that his real
name is Edward Toney, and that he was never known or called Edward Toney Joseph Scott.
The plea was sustained, the indictment quashed, and the State appealed. Attorney General, for appellant. The indictment,
as the body of it shows, was jointly against Edward Toney and Joseph Scott, described
in the indictment as """Edward Toney Joseph Scott, late of Bastrop county,
laborers." It would be difficult, if not altogether
impracticable, to adduce any standard authority for holding that the trifling omission
of the conjunction "and" between two several names of different defendants
jointly indicted, while clearly distinguished by after-words in the same
instrument, (as here by the word "laborers" in the plural number,) amounts to misnomer as a
ground for abatement. HEMPHILL, CH. J. We are of opinion that there was no error in the
judgment. If Edward Toney Joseph Scott be in fact two persons, it should have
appeared with such certainty on the face of the indictment as not to be mistaken. We
may infer that more than one person was intended from the addition
"laborers" being in the plural number, and from their being described as "possessors
and occupiers of a house," &c. But this should have been made certain, and not left to
inference. If Edward Toney Joseph Scott be two persons, there is no certainty upon
the indictment as to their names. They might be Edward and Toney Joseph Scott--or
Edward Toney Joseph and Toney Joseph Scott--or other changes might be rung on the
name. Judgment affirmed. Tex. 1854. THE STATE v. EDWARD TONEY. 13 Tex. 74, 1854 WL 4463 (Tex.) END OF DOCUMENT *1 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. Defendants jointly indicted, "whom the jury
found guilty and assessed the fine at $50." must pay jointly, and not $50 each. One act will not be construed as repealing by
implication another act passed at the same session, unless they are repugnant. The Criminal Code repealed all acts relating to
crimes and punishments, but did not repeal the liquor license law passed at the same
session, to which no reference was made in the Code, and which was expressly
recognized by a subsequent act. 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." *2 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. *3 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 provisions 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. *4 In Bacon's Abridgement 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 Bac. Abr. 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.' 'DD' 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. 33. *5 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 act
of one 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.) 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. Id. 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, C. 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. *6 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. Abr. Statutes (J), p.
240. This doctrine was applied by the court in the case of The State v. Delesdenier, 7 Tex.
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." Id.
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. Ch.
167, sec. 1, of Acts, etc. 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
Bac. Abr. 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. *7 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 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. No 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. 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 re-examination, orderly arrangement, and
embodiment in a new form of the former laws, or laws in force prior to the revision. *8 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. No 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. ROBERTS, J., dissenting. Not being able to satisfy myself of the
correctness of the rule of construction upon which the very able and elaborate opinion of the
majority is based, I respectfully present my separate views leading to a different
conclusion; and will only say enough to develop the principles upon which they rest. The act
making it a criminal offense to retail intoxicating liquors in quantities less than a
quart was passed on the 2d day of February, 1856, to take effect on the 1st Monday of April
thereafter. The penal code was passed on the 28th day of August, 1856, to take effect
on the first day of February, 1857; and contains no such provision as the liquor law.
The question is whether the latter repealed the former. The code contains a repealing clause
which, after enumerating a great many criminal laws of former sessions, concludes,
"and all other laws and parts of laws relating to crimes and punishments, are hereby
repealed." The word crime, as used in the code, signifies every grade of offense. The
liquor law then being a law then in force, and relating to crimes and punishments, is
literally embraced in this repeal. This expression is unambiguous, and if it be not
enforced as expressive of the legislative will, it must be upon some good reason showing
that they did not mean what they have so plainly expressed. That reason is said to be
found in the rule of construction, that the liquor law, the penal code, and all other acts
on the subject of crime passed during the same session, must be considered and compared
together and construed as one act. This would cause the liquor law to be read into the
code as one of its chapters, and would of course evade the force of the repealing clause
in the code. *9 Before noticing the recognized limitations and
restrictions on this rule, it is proper to examine the foundation and principle of the
rule itself. It follows very naturally from some of the principles and practice which
formerly obtained in England in the enactment of laws by parliament. Lord Bacon says that
"an act cannot be altered or repealed in the same session in which it passed, unless there be
a clause inserted expressly reserving a power to do so." 9 Bac. 225. Originally all acts of parliament took effect
from the first day of the session, although passed at different times, weeks and months
afterwards. There was no date of approval by the king indorsed on the bill, and it could not
be known which one of two acts first received its final completion. The King v.
Justices of Middlesex, 2 Barn. & Ad. 344. Under such regulations for enacting laws as
these, this rule, in their construction, was forced on the courts as a necessity. To such
an extent was this carried that in Attorney-General v. Chelsea Water-Works Company,
Fitzgibbon, 195, it was held that "when the proviso of an act of parliament
is directly repugnant to the purview of it, the proviso shall stand and be held a repeal of
the purview, as it speaks the last intention of the makers." The rule makes
the incident tear down the principal. But this case illustrates that the unity of
legislative will was held only because its divisibility was not entirely practicable; and
so far as it was practicable the court acted on it. In more modern times the doctrine
of Lord Coke has given way before the acknowledged sovereignty of parliament, and
their right to change their will, even in the same session, without adopting the previous
precaution of reserving the power so to do; and an act takes effect from the date of
approval by the king, which is indorsed thereon. Under these changes it has been held in
England that "where two acts of parliament, passed during the same session and
to come in operation the same day, are repugnant to each other, that which last
received the royal assent must prevail, and be considered pro tanto a repeal of the
other." This does not maintain, as does the case of Peyton v. Moseley, 3 Monroe, 78, in
Kentucky, that the two acts shall be read together as one act, and allow the repugnant
part of the one to stand as an exception; but it admits the divisibility, and possibility
of a change of the legislative will, and adopts as the law its last manifestation.
What does the rule thus modified amount to, and in what does it differ from the ordinary
and familiar rule, that two statutes relating to the same matter are to be considered
and construed with reference to each other (not read as one act, for the reason of
that has passed away) and both be made to stand in force, if there be no intentional
repeal, inconsistency, or repugnancy manifested? In nothing but this, that the force
of the rule is increased by the greater proximity of time between the two acts, passed
at the same session. And this is based upon the reason that "the presumption of so
sudden a change or revolution in the minds of the legislature ought not to be
indulged." Peyton v. Moseley, 3 Monroe, 78. Or, in other words, the presumption is much stronger in
favor of the unity of the legislative will, in the acts of the same session, than in
the acts of different sessions. Still the court is left free to determine whether or
not there is a change of intention manifested in the separate acts of the same
session, considering all the parts of both acts. The mere fact, then, that these two acts
were passed at the same session is not of itself a sufficient reason, as it is
believed, for holding that the repealing clause of the penal code is to be totally
disregarded. *10 Did the legislature, by the adoption of the
penal code, intend to repeal the liquor law; or did they do that which is irreconcilably
inconsistent with its remaining in force as a law? In either event the repeal was
consummated. An examination of the subject, it is thought,
will show this, both expressly and by implication. The constitution of the state
requires that "within five years after the adoption of this constitution, the laws, civil
and criminal, shall be revised, digested, arranged and published in such manner as the
legislature shall direct, and a like revision, digest and publication shall be made
every ten years thereafter." By an act of 10th February, 1854, it was provided
"that it shall be the duty of the governor, by and with the advice and consent of the
senate, to appoint three commissioners, whose duty it shall be to prepare a code,
amending, supplying, revising, digesting and arranging the laws, civil and criminal, of
the state, to be submitted to the legislature for their future action." This
law was enacted in pursuance to the above provision of the constitution. Most probably the
words "the laws, civil and criminal, of the state," as used in the constitution
and statute, mean the written, and not the unwritten laws of the state. For this purpose,
as expressed in the law, the commissioners were appointed and entered upon
their work. They did not present one code of the laws, but three, to wit: a penal
code, a code of criminal procedure, a code of civil procedure, and a volume of revised
statutes. It was evidently the design of all these to embrace all the written
laws of the state in a complete system, and that they should altogether stand in the
place of the code which the legislature had directed them to prepare. It could not fail to attract their attention, in
the perform ance of their duty, that the constitution provided that "every law
enacted by the legislature shall embrace but one object, and that shall be expressed in the
title." They prepared the penal code in the shape of a single act, entitled "An
act to adopt and establish a penal code for the state of Texas." This is divided into
numerous titles relating to the various branches of the criminal law. And so it was
adopted by the legislature. Its design is to comprehend the whole of the criminal law in
these various titles. That is evidenced by the very effort made to comply with this
provision of the constitution as to the mode of enacting laws. For the "one
object" here is "the penal code for the state of Texas;" that is, a system of written penal
laws for the state. By the use of the word ""code," the idea is precluded
that it was intended to adopt a part of a system. That would distort and abridge the meaning of the
word. *11 This however is not left to presumption from
the use of particular words, but is plainly expressed in the first article of the
code itself, which reads, "Article 1. The design of enacting this code is to define in
plain language every offense against the laws of this state, and to affix to each
offense its proper punishment." This does not say some, many or most of the offenses, but
every offense against the laws. If we admit for a moment the hypothesis that the
legislature intended to make this code exclusively complete within itself, at the
moment of its adoption, thereby excluding every other law, written and unwritten, how
could they have expressed that intention more directly and explicitly than they have here
done? In prescribing a rule of construction, the 9th
article reads: "This code and every other law upon the subject of crime, that may be
enacted, shall be construed according to the plain import of the language in which it
is written," etc. It is hardly reasonable to infer that the legislature
intended to prescribe a rule of construction for the code and subsequent penal laws,
different from that which would apply to prior laws. We must conclude, then, that they
did not contemplate that there would be any laws left in force to be construed, which
were prior to the code. Again, in part II, it reads as follows, to wit: "TITLE I. DEFINITION AND DIVISION OF OFFENSES. Art. 54. An offense is an act or omission
forbidden by positive law, and to which is annexed, on conviction, any punishment
prescribed in this code." Here we are presented with a studied effort at
accuracy and precision in giving the definition of an offense in the state of Texas,
and one of the prominent and necessary elements of that definition is, that there must
be a punishment prescribed in "this code." This would necessarily exclude all
penal laws in force prior to the adoption of the code. It is no answer to this to say that
the definition would equally exclude offenses, subsequently made; for the legislature
have not the power to limit or control subsequent legislation, either at the same or
subsequent sessions, as they have former legislation. So, too, in declaring to what
persons the criminal law applies, it is provided in title III, and art. 36, that "No act
done within the uninhabited portions of the state, by individuals belonging to the several Indian
tribes, in their intercourse with each other or with other tribes, and affecting no other
person, is considered as an offense against this code," etc. To finish fully the exclusive
completeness of this code, as the system of penal laws for the state, the section next to the last
reads: "Section 2. The following acts and parts of acts, to wit:" (here fifty acts
and parts of acts are enumerated) "together with all other laws and parts of laws, relating to crimes
and punishments, are hereby repealed." *12 If then the legislature intended that this
code should be a complete system of penal laws within itself, they could not have intended
otherwise than that any previous enactment, not embraced in it, should not be a penal law. It may be presented in another point of view
equally favorable to its repeal, not expressly, but by implication. It is well established upon
authority, that "a subsequent statute, revising the whole subject-matter of a former
one, and evidently intended as a substitute for it, although it contains no express words to
that effect, must, on the principles of law as well as in reason and common sense,
operate to repeal the former." And this is the case, too, when distinct provisions of the
former act are omitted in the latter. Bartlett and others v. King, 12 Mass. 537; Sedgwick on
Con. & Stat. Law, 126. If the correct view of the scope and object of
the code has been taken, it certainly is a revision of the entire penal laws of the state;
and there are various considerations indicating that it was intended to be a
substitute for all former penal laws. For years past, prior to the adoption of the code, acts of
the legislature have been passed, amended, and changed with reference to the common law, as
the fundamental basis of our system of penal laws. And this process continued during
the session which adopted the code down to the time of its adoption, and even afterwards by
inadvertence as may be supposed. Not a single act, passed that session, either at the
first part of it or at the adjourned session as it is called, makes the least reference
directly or indirectly to the penal code, except alone the code of criminal procedure.
Even the acts relating to crimes, which were approved after the approval of the code, make no
reference to it, but on the contrary make reference, either by the enacting or
repealing clause, to the former acts. For instance, on the 1st September, 1856, two days
after the approval of the code, an act was approved concerning public weighers of
cotton, and making a penal offense relating thereto; when the code had made the same thing,
substantially, a penal offense; but there is such a difference in the language as to
rebut the idea that one was passed with any reference to the other. Code, art. 469;
Acts, 90. On the same day an act was approved prohibiting the sale of liquor in
Jamestown and Starrville, and imposing the penalty prescribed in the liquor law of 2d
February, 1856. From which it may be inferred that the legislature regarded the latter act
still in force. But this will not hold good; for on the 30th August, 1856, after the approval
of the code, an act is approved preventing slaves from carrying guns, etc., and
the same act repeals the sixth section of the act of 1840, which had been expressly
enumerated and repealed by the repealing clause of the code. The same day the liquor law
was passed, 2d February, 1856, another act was passed, making it a penal offense to
forge, alter, etc., any instrument to get a patent, etc. The latter is substantially
inserted in the code, and the former is entirely omitted. The liquor law, although it
was introduced into the legislature after the code was, as it is stated by the
attorney general, still it makes no reference thereto, but on the contrary repeals the act of
1854. Thus it is obvious that the legislature had in view the amendment of the old
system, in the passage of these various acts, except the two criminal codes;
they constituting a new system, that might or might not be adopted. The minds of the
legislators were necessarily led to regard the old and the new systems in contrast, as to
which of the two should be the future rule. Both were being perfected at the same
time, not in harmony, but in antagonism; not for joining them together in unison, but for
adopting one and rejecting the other. *13 Two bodies cannot occupy the same space at
the same time, so the code being adopted, became a substitute for the common law and all
its perfecting and amending statutes, which were passed prior to the code; and the
liquor law of 2d February, 1856, being one of them, was repealed by the code. Those passed
after the code must stand, though not in harmony with it, because they are the last
expression of legislative will, and cannot therefore be disregarded by force of what is
intended in the code, which is as to them the anterior law. If it be said on the one side,
that there is no precedent for this, it may be answered on the other, that there is
perhaps no similar case to be found, where a criminal code has been adopted, assuming
to embrace all the law on the subject. And, therefore, the question must be resolved on
principle. Penal laws should not only be plain, but they should be plainly not
repealed when they are enforced; especially if they belong to the class of offenses mala
prohibita. Other considerations might be presented, conducing to the conclusion here
arrived at, but sufficient has been said to develop the basis of the opinion. Tex. 1857. BARNEY CAIN AND ANOTHER v. THE STATE. 20 Tex. 355, 1857 WL 5252 (Tex.) END OF DOCUMENT |
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