IEATTORNEYGENERAI. 

PRICE DANIEL 

ATTORNEY GENERAL 

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BowrubLe Williun II. Henslsy - Pa&a 2 

whoever fires the grass outside o? any 

lnolomre with the intent to destre 

the grass therein by the comnuhioat I on 

of said fire to the grass, shall be oonrined in the penitentiary not lees than 

two nor more thah five years* 

ktiole 1328b-1 provides, insofar as pextinent to your ~questlon: 

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*seotion 1. ALV person who.wlllruliy’ bets fire to woods, forests, re11008, 

&r&se or rubbish of any kind, on lands or 

whloh he is hot in poaseeslon or oontrol 

at the time of setting out suoh fire, or 

who willfully causes fires to be comsumioeted to suoh woods, forests, fences, 

gram or rubbish, or who w’lllfullg and 

mal;~olously seta on fire or,,causee to be 

set on fire any tiDh0r, w0ede., or uahee, 

80 a8 to cause loss or Injury to.ahother, 

still be guilty of a miedemeamr, and on 

oonviotion must be Yined not Lees t~han Ten 

(#lO.OO) Dollare, nor rots tbn ‘hro plud$ed (#P30,00) Dollati~. a,) 

‘s00. 4. Sv0lr.iiuliaiui~l al! 06rporation who rriimily or neg3ig0ntly~aets 

or owmunloatee firs to tuber leads, 

woods, brush, .graer,, or etubble, on lamls 

not their own, shall be guUty of a dsdemanor.m 

The elements or the two of%&?Ws defined 

are hot identiaal, Artiole 1327 contemplates the firing of grass wIthin any inclosure, while Article 1386b1 does hot limit the offense there Dresolibed to the 

firI= of gram wlthin ah inclosure: &tic10 1927 only 

prohibits the firing of grass not his wn; abile under 

Seotion’ 1 of Article 136t3b-1, the culprit, though he 

wns the land, map yet be ohar~able dth the offeaae 

preaoribed if he be not in poelcosdon ox oentrol at. tha 

time of, setting of such flxe.. ‘Rati ow~~~rehip at k 

difttingpished from poriseaslon or control Is indicated 

in Phillips vs, State, .17 Cr. B0, 169, ~ofi#tru.ing Art. 

1227 e Under JW. 1327, one is ‘@ilty who fires .the 

grass aa therein prohibited, thou& no dam&e my be 

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Hen, William H. Hens1.y i &age3 ',~ 

done, while Art, 1388b-1 @mtemplahs t&i&t loss or irjury to another shall hare' beeti Qaused b+the fires. 

In Barker vs, State,,140 CrO,EZ. 550, 146~8. W. (26) 

761, construing Art,. 13g%b~l,.itwas~held nooessary 

that the indiotaent allegethat datendant set fire to 

a Sence-Wo as ta caaim less 6r injuzlf to anether" 

where an indictment under Art. 13&W-1 u&e prebrnted. 

Article 1388b-1 ders not ccntain a repealing provision0 Since the two Artiales define ofSenwn, 

the elements of which are clearly disti@gu.$shable, they 

do not contain provisions a0 repugnant as'%0 justify a 

oonstruction efreeoting a repeal of thetearlikr law by 

implication because of~repugnancj. 

~A,more troublesome question inraised by 

the language of gee. 4 of Art? 1388b-1; especially in 

view of the faot thatthe emergenep clause;~which is 

3ec. 5 of the ori~giaal Act, recites tha# the factthat 

there is no law on%uPstatutes now protroting l&&da 

and timber against fires creates an emergehcy,W etc. 

.Tlite fact~that-the::Legislature proilesssd to 

ktmw of' no. laIF.$roteQEi,ng la+ds,and timber a 

rim negative’s any implicatio* &at the 

intended to repeal~~~.~former law covering the same 

subject netter, Yet.$ec,~ 4 might be construed to deolare as a po1ioy.a.t &,h~,~~llfully setting or the 

aommuhicating of fires to .t&kber lands, woods, brush, 

grass, or stubbleon thb l&G ei another shall be~gu$ltl 

af a misdemeanor thereby superseding the older felony 

statuts8. If Set, 4 is to be 50 construed, it,<is repugnant to the app,arent Mom 

also.be construed as rep&. &‘cto Penal Code Articles 

.,':, $bs of Art. 1327, It might 

1321, 1328, 1330 and part&of Article 1388a, at least 

inaofak 'as they.applY to annindividual or corporationW 

These latter bta%utes also deal with willfully or nag: 

l%gently setting orcommunicating of firs to timber 

lands,.woods, brush, grass and stubb)e, but each d~al,s 

pith distinguishable oircumstances and methods, or ; 

with the particular/-- intent-involved in the commissi,on; 

of-G&h offense’ defined. ih that xegard, Some of them 

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Hono Williem N, Heasley * Page 4 

the purposes for whloh this parOioular Act, hrticle 

1388b-1, was passed, and also ,to give efreet to thie 

Article as against corporations as well as individe 

uals, As stated in St. Louis B & NRailway, et al, 

f. Marcofioh, 221 5. W. 582, by the OoPriasioa of Appeals and approved by the Supreme Court, speaking sf 

apparently inooasistant or repugnant enaotuata: 

nThough they may seem to be ropugaant; if it is possible to fairly~reaoaolla 

them, it is the duty of the court. A,oonstruotion will be sought whioh harmonizes 

them and leaves both in surreat bpmatiom, 

rather than destroys one of them. If tha 

later statute reasonably admits of a ooastructioa which will allow effort to the 

older law aad still leaves an ample 11ald 

for its own operation, a total repugaaac8 

oamot be said to exist, and, therefore, an 

illplied repeal dees not result, sinoe ia 

sush oaae both my staad ahd perform a dlstincC off10e.~ 

While it is true that it is orten neeo8- 

sary to conalude that the Legislature in passing a 

new law covering the whole subjeot matter of ah old 

law i&ended to repea$ the old law as was done ipl the 

situationa involved in suoh eaaea as Meekw vsr, Wkoelar 

Couaty,, 125 3,~W. (21) 331b affimaad 144 3. W. (%a) 

885; Fleeka vs. State, 83 S. W., 381; and Robextsoa vsr 

State, 159 5. W0 713, such coaclusloar were arrived at 

oily where an intention to repeal all lnconsiate~nt 

laws was oontained in the later act or the l&or sot 

inoonsiatent tith ahd repugnant to rambe neted that Frt, 1388b-l deos a& 

oover the entire field of cri*ieal Law dealiagdth tb 

set tin& of--BiG. See Title 17, Chapter 1 (Ar8oa) a.ad 

Chapter 2 (Other Willful Bum&w), 

While Article 1327 is closely akln to Artiele 1388b-1 and covers similar offease and is gadoubt-~ 

l aly difficult to dlstla&uish, yet the maadateto ham-, 

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onizo and gire~effemt to both laws where possible &eul& 

it is belierad, be given pawoqnt efrert in theoem-, 

struotion or these aatts of the Lag&elatore, and we riel~ 

oompe&Led to so construe thear Artioles in this instance, 

l sReoially sin00 it is Obvious rrom the language or the 

later set that no iatentioa aould hsve existed to ropeal the formera 
This department, therefami: a@Brrr w&b 

JOUT oonolu~ion oonoluaion contained.in contained.in your brief a&a& held8 

that Article Article 1388b-1~i.s 1388b-lis not lrraooncilablo lrraooncilablo .a&sid rapug- F~DUKnaat to llrtiole llrtiole 1327, and themforam'the themforam'the fox&r deee deienot repeal the latter by'lmplloation. by'lmplloation: 

W:WB 

Held, Penal Cod. Artiolo 13MIb-1, 

,mklag a rtsdaraur the act of *4.peraon whp ~illfullj! se)6 firs to wooda* 

roremta, fencaa, mar6 or rubbish o$ a4 

kind, OQ lands of whioh he la net in psmsesrien or control at the time of sottIn& 

of su$h ihi, 0e aa to oause lema br injury to an&her, dors mot ropsal by %P 

pl&t;., a qricr ouotamt, belpg &k. 

IwT~d Ag that whoever ulllrlally~ 

6rta t re to a4 gram tit&&r an rnalerurea set his bwA with iatrnt to (.Wt~Oy 

the grass therein is gutltr of a feleaj,, 

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