Berry v. State , 69 Tex. Crim. 602 ( 1913 )

Appellant was prosecuted and convicted of hunting in inclosed lands of another, said inclosure being posted and containing more than 2000 acres. Appellant admitted that the pasture was inclosed, posted and contained more than 2000 acres of land in the inclosure, his whole contention being that no law of this State made it an offense to hunt in such an inclosure.

His first contention is that the Act of the Legislature of 1899, repealed Article 804 of the Penal Code, Acts of 1895, and that the Act of the Legislature of 1903, repealed the Act of 1899. By reference to the Acts it will be seen that Article 804 of the Code of 1895, did not apply to inclosures of 2000 acres or more (Art. 805). The Act of 1899 specifically states in Sec. 4 that it does not repeal Articles 804 and 805 of the Code of 1895, and Sec. 2 of the Act of 1903, specifically provides that it does not apply to inclosures containing 2000 acres or more. So the first contention can not be sustained, and we find that the laws of this State in 1903, provided that one who shall hunt within the inclosed lands of another, containing less than 2000 acres, without the consent of the owner, shall be punished by a fine not less than $10 nor more than $100; while one who shall hunt within the inclosed lands of another, containing more than 2000 acres, without the consent of the owner, which land has been posted, shall be punished by a fine not exceeding $200. The distinction in the two acts being that in inclosed lands of less than 2000 acres the lands need not be posted, while in inclosures of 2000 acres or more, at each entrance, the owner must conspicuously notify the public that it is "posted," — the punishment varying. This is a proper distinction and classification, and neither Act repealed the other.

The other question raised may be said to be one of more difficulty. In 1909 the Legislature provided for a codification of the laws, but no one, we think, can contend that the Legislature conferred on this codifying board or commission power or authority to enact or repeal any law, and, it did not attempt to do so. The only question in this case is, whether the Legislature in adopting the report of this codifying board, or commission, did repeal any law theretofore legally adopted by the Legislature. The codifying commission brought forward in the Code, arranged by them, the Act of 1903, and numbered it Article 1255 and entirely omitted from this Code, so prepared, the Act of the Legislature of 1899, which applied to inclosures containing 2000 acres or more.

In 1911, the Legislature enacted this Code by bill, providing: "Sec. 1 — That the following titles, chapters, and articles, shall hereafter, constitute the Penal Code of the State of Texas. Sec. 4 — Nothing in this Act shall be construed or held to repeal, or in anywise effect the validity of any law or Act passed by this Legislature at its regular session." Thus it is seen that the laws passed by the Legislature, assembling in January, 1911, were specifically exempted from repeal, but no other Acts were so specifically exempted. The Act punishing hunting or for fishing on the inclosed posted lands of another, containing 2000 acres or more, was passed in 1899, and the Code prepared by the codifiers and adopted by the Legislature in 1911, did not in any provision thereof, deal with hunting on inclosed lands of another of 2000 acres or more. The code or bill as enacted did not specifically repeal this law, but it did provide that the "titles, chapters, and articles shall hereafter constitute the Penal Code." Thus it is seen that if the Act of 1899 is repealed, it is repealed by implication, and by no specific provision of the Code or act of the Legislature. No one had the authority to repeal except the legislative body of this State. In that excellent work, 36 Cyclopedia of Law, page 1071, it is said:

"A legislature may express its will in any form — affirmative or negative — that it pleases, so long as it does not transgress constitutional prohibitions. It is under no obligation to use words of express repeal. But the repeal of statutes by implication is not favored by the courts. The presumption is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal one statute by another, either the two statutes must be irreconcilable, or the intent to effect a repeal must be otherwise clearly expressed. It follows that where the intention not to repeal is apparent or manifest from an Act there is no room for repeal by implication, or the application of rules regarding implied repeal," citing authorities from Alabama, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Virginia, Washington, Wisconsin, and other States, showing that the great weight of authority favors the rule as thus announced.

In 26 American English Encyclopedia of Law, pp. 717 et seq., it is said:

"An express repeal of a statute may be accomplished, as the term implies, only by positive enactment. Therefore, a recital in the title of an Act that its purpose is to repeal a previous Act is not of itself sufficient for that purpose, because the title is not an operative part of the Act. There must be a repealing clause in the body of the statute. But, inasmuch as the question of repeal is always one of legislative intent, an express declaration that a particular statute is repealed will not be given effect where it is apparent that the Legislature did not so intend.

"Where an Act is passed covering the whole of a particular subject or field of legislation, it is customary to insert a general clause repealing `all Acts or parts of Acts inconsistent therewith,' and such a clause is effective in repealing inconsistent enactments, in the absence of any constitutional prohibition against such method of repeal; but the repeal extends only to those Acts on the same subject or parts of such Acts clearly inconsistent and irreconcilable with the provisions of the repealing Act, and only to the extent of the conflicting provisions.

"A statute is repealed by implication whenever it becomes apparent from subsequent legislation that the Legislature does not intend the earlier Act to remain in force, and the converse of this proposition is that no statute will operate as an implied repeal of an earlier statute, if it appears that the Legislature did not intend it so to operate. Though repeal by implication is not favored, it necessarily results in any case of repugnancy or inconsistency between two successive statutes, or in any case where the intention of the Legislature is manifest that a later statute should supersede an earlier one.

"Repeals by implication are not favored, and will not be indulged unless it is manifest that the Legislature so intended. As laws are presumed to be passed with deliberation and with full knowledge of all existing laws on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to the same matter, unless the later Act is either repugnant to the earlier one, or fully embraces the subject-matter thereof, or unless the reason for the earlier Act is beyond peradventure removed," citing authorities from almost every State in the Union. There being in the Code of 1911, no express repeal of the Act of the Legislature of 1899, and no provision of the Code of 1911 dealing with the subject of the Act of the Legislature of 1899, we are of the opinion that the Act of the Legislature adopting the codification of the laws as prepared by the commission, did not repeal the Act of 1899, and it is still in full force and effect.

Had the Act of the Legislature in adopting the codification contained an express repealing clause, or had the Code as thus adopted dealt with the subject of hunting in inclosures containing 2000 acres or more, a more difficult question might have been presented. But as the Code prepared by the codifiers, does not deal with this subject, and there is no express repealing clause contained in the Act adopting this code, we are of the opinion that the Act of 1899, punishing persons for hunting in the inclosed posted lands of another, containing 2000 acres or more, has not been repealed and the Act of 1899 is in full force and effect, and being of this opinion, the judgment is affirmed.

Excellent briefs have been filed in this case by Denman, Franklin McGown, and Searcy Browne, and they have been of very material aid to us, and they will be published in connection with this opinion.

Affirmed.

[Rehearing denied April 16, 1913. — Reporter.]