The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-07-18

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In section 161 of Switzerland ON Sta
tutory Construction, the following doc
trine is announed: "Wbere two par
materia originally enacted at different
periods of time, are subsequently incor
porated in revision, and re-enacted in
substantially the same language, with the
design to accomplish the purpose they
were originally intended to produce, the
time when they first took effect will be
ascertained by the courts, and effect vii
be given to that which was the latest
declaration of the will of the legislature
if they are not harmonious"
In section 1876 of the same work the
following language is used: Though a
revision operates to repeal the laws re.
vised, wherein repungent or not. yet those
portions that are re-enacted are contin-
nations. The revision is, however. a re-
enactment and to be alone consulted to as
certain the law when its meaning is plain
but when there is irreconcilable conflict
of one part with another, the part last
enacted in the original form will govern. p"
To the same effect is Douglas VS.. Douglas,
D Hun, 14O, and many other authorities.
This precise question was determined by
the Federal court in the case of Mobile
Savings Bank VS.. Patty, 16 Fed. Rep'r..
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so as to repeal by implication another
article of their revised code previously
enacted. Thereafter, in 1876, the laws
were again revised. The repealed article
was carried into the new revision as well
as the article which had been held to repeal
it. The court held that evidently the re-
pealed statute was inserted through mis-
take. That in determining the legislative
intent. the dates of the enactments will
be hooked to, and the one last in time will
be held as the law. For that reason the
article which had been repealed by i'm
plication before its insertion in the code
was held to be imperative. To the same
effect is Posey VS.. Tripley, GO Ala: 249.
Indeed, the rule above stated is we'll seO-
tied.
Now let me ask, is not the intention OF
the legislature manifest in the act under
discussion? Is it not absolutely clear that
its intention was to prohibit prize fight
ing? Did it not clearly define the offense?
And did it not clearly affiX a penalty
thereto? All these questions must be an
swered in the affirmative. Then it is not
q case coming within the operation of Art.
G of the Penal Code. In other words, IL
is not so indefinitely framed, nor OF such
doubtful construction, that it can not be
understood. What then must be done
The duty is plain, to follow the rules OIL
construction laid down by our court OF last
resort. by all other courts OF last resort st1r
and by text writers: The fact Is, 10
give effect to the Legislative intention so
plainly manifest, and to so interpret t4 4t
stotute MS to make it consistent WlFu
reason. The second, to avoid that inter-
nretotion that leads to an absurdity. FOL
lowing this second rule would prevent any
ones insisting that the Legislature intend,
cd To create the offense OF felony ana
a fIix thereto the punishment OF mis-
dnnneonnr because that is manitestly
absurd, The third, That the LEGISLATIVE
;ntention. when accurately ascartallieu' us
in this instance, will always pre-
r-aiI over the literal sense OF OF
the terms; that the INTENTION VIII
control the express language IN tne con
struction of n statute; or, as our cOi WI
of criminal appeals has SO Often S"l.i'
"the intention ought to be lolloMeu' a. a.
+bnngh If may seem to be contrary tG tle
Iat+or of the Statute, and in the language
of tba court of last resort in New YORK
ssthn infention should be given effect TO-
ovnn though such construction seem con,
trorv to the letter of the statute; anu
~ + "snch construction ought to be place.ui
mon if as does not suffer 1t to be eludeu.
Or. as announced by an abe text Writer
that, "even in opposition to the stilGt ,u.,
ter. the clear purpose or the legislature
will be carried out" -,
Applying these rules the court OF crllll-
inal appeals could not have arrived at aInE
other conclusion than that the act of 1871
prize fighting is valid; ana
that if could not have been declared IN
operative without violating every RUE
of construction which the court nad pre-
yiously recognized and adopted. Ihe con
struction which seeks to invalldate the
statute is based upon the idea that courts;
in constituting a statute, undertake TO hllu
some means of avoiding it, when the con-
trorv is true. In the language of the su-
nrpme court of the United States, we
ourht rather, adopting the language ol
Lord Hale 'to be curious and subtle to
invent reasons and means to carry out
the clear intent of the lawmaking DOW
or" Oats VS.. National Bank. 100 Y.
s. 244. "The judiciary must respect fnn
expression of the legislative will. and not
nermit nj to be eluded by mere construc-
ton"
III. 1t is the duty of the courts to en-
force the law if possible, and only to re-
fuse TO declare them invalid when it is
imnossible from the language used, whetH'
or considered by itself or in connection
with other provisions of the written law,
70 ascertain what the legislature did in
tend to do. That is not true in this case;
therefore the statute must be declare
valid.
Believing, as l do, that the court of ap-
peals was right when it declared this
statnte valid. | of course insist that it
sbonId he enforced But whether | be-
iaved that the court of criminal appeals
we're right originally or not, it is not part
If nv duty, nor is it any part OF your
]uty, nor of the sheriff of Dallas, county,
10 sit down and determine that the court
Vt anueals was wrong. or that they did not
consider the case before deciding 1T. In
"a wing This much, do not mean to imp"
hat Won or the sheriff have any disDosi-
ion to do so; assume that the contrary
s true But I mean to emphasize the
;act that it is our duty to bow in unques-
Toned obedience to the decision, OF, that
1igh court on all questions of which the
constitution gives it jurisdiction. VI TINS
question it had jurisdiction.
The law being valid, it follows that it
sthe duty of your sheriff to enforce it.
40 is NOT authorized to permit the hight
. 90 ON and then arrest the parties. 1t
: made his plain duty by the statute to
,rayent the fight Art. 40 of the Code of
Yriminal Procedure is as follows: Each
iheriff shall be the CONSERVATION OF the
,eace in his own county, and snall arrest