The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-07-18
Attorney Generals Office,
Austin, Tex, July IS, 1895.

Attorney Generals Office,
Austin, Tex, July IS, 1895.
Hon. John 2. Gillespie, County Attorney.
Dallas, Tex.
Dear Sir-I received yours recently writ
len, in reference to the proposed COrbett-
Fitzsimmons fight, 1t came by due course
tion?
/ have not sought to quote your Ian
guage, but only what | conceive to be its
effect. From your letter of course /
gather THE fact which l know you recog-
nize, that the legislature, by the act of
1891, sought to prohibit prize fighting
and that the provisions of that act were,
with verbal notifications carried forward
into the Penal Code adopted by the
Twenty-fourth Legislature, which will be
in effect October next.
After l received your letter l was asked
to withhold my answer thereto until such
tlrne as those who bel-vel that he pro-
visions of the statute above referred to
were invalid co, Id be he ,rd. | waited and
have received from the hands of the attOr-
neys of the gentleman who is seeking to
have the fight take place at Dallas most
elaborate and ingenious arguments on the
subject. Briefly stated, they make
(though in many different forms) the fol
lowing propositions:
First-That The law of 1891, by which
it was sought to prohibit prize fighting,
is invalid for two reasons: a. Because it
denomces the offense as "a felony and
affiXes thereto the punishment of mis-
demeanor; and (2) because the act was
so indefinite, framed, and is of such
doubtful construction, considered either
by itself or in connection with the other
provisions of the written law, that it can
not be understood.
Second Because the Twenty-fOurth
lnc ,l i,,ro 1n IN N
carried into the Civil Code the act of
1889, which licenses prize fighting; and
that the Civil Code with the provision in
it was finally passed at q time subsequent
to the adoption of the Penal Code in
which is incorporated the statute prohibit
ing prize fighting; and that therefore the
statute licensing prize fighting by impli-
cation repealed the penal law on the same
subject which had been previously passed.
i am unable to agree with those who
insist that the laws of Texas permit prize
fights. On the contrary. | think they are
plainly prohibited by the statute. That
the law of 1891, by which the legislature
sought to prohibit such contests, was and
is imperative, is not now an open ques"
ton. The court of criminal appeals has
held it to be valid. Sullivan's case, 81
App. 80. Sullivan had been convicted in
Dallas county for giving an exhibition OF
the kind in question without having paid
the occupation tax levied thereon by the
act of 1889 From 1.-THE Judgment of con-
victiOn he appealed, insisting that he had
been wrongfu.ly convicted because the
act levying the occupation tax had been
repealed by the act of 1891, which in eX-
press terms, prohibited prize fighting.
That question alone was considered by the
court of criminal appeals in disposlng of
that case. In determining the question,
the court said: This law (meaning the
act of 1889 licensing prize fights, how
ever, has been changed by the act of
March %, 1891, which practically pro-
hibits prize fighting and pugilism, and de-
clareS that pugilistic encounter between
nan and man or q fight between man and
bull or other animal for money or other
thing of value, or upon which money is
bet, or to see which admission fees are
charged, shall be deemed guilty of a fell
ony and punished by a fine of not less
than $400 nor more than $1,000 and by
confinement in the county Jail for not less
than 60 days nor more than one year.
| know that it is insisted that the court
of criminal appeals did not consider the
question of the validity of the act of 1891.
That suggestion does no credit to the
Learned court deciding the case. To say
that there was but one question in the
case, and that the court failed to consider
THAT, is "a reflection | am not willing to-
indulge in reference to the three learned
judges who composed that court. The re-
port of the case shows that they We're all
present and concurring in the decision.
The act itself is quOted--not literally, but
tially-in the opinion rendered. 1t
was impossible for the trained lawyers,
not to say trained specialists, who com
posed that court ITO have read that stat
ute without discovering the fact that it
denounced the Offense as a miSdeamor
The validity of the act was necessary
to be considered in determining whether
it repealed the act of 1889. An invalid
act repeats nothing; it is as imperative
as if never passed. Morton VS.. Shelby
County, 11S U. s., 426,
The decision of the count of criminal APP
peals in the Sullivan case, inl
which the validity of the act in
question was maintained, announced
no new doctrine. 1t but conformed to es-
tablished precedents and followed a well
beaten track 1t only recognized the rules
of statutory construction firmly imbedded
in our system of laws and made part
thereof.
1t must be remembered that our code
expressly provides that the distinction
usually made between the construction of
penal laws and laws upon other subjects
shall not obtain in Texas. Penal Code,
Art. 8. In other words, penal laws will
be no more strictly construed than laws
upon other subjects. To ascertain the
legislative intent is the purpose of courts
in the construction of all statutes, wheth-
err in reference to civil or criminal cases.
When % statute is so indefinite as to be
incapable of being understood, Art. of
the Penal Code says it shall be inopera- |
tive That would be the rule without
reference to Art. of the Penal Code.
If the court would not ascertain the
legislative intention from the language
used, nor from the context, it would not
declare it. Art 6 therefore becomes I'M
material.
The rules of statutory construction nave
been frequently reviewed by our court OF
criminal appeals. AS therefore stated,
the Sullivan case was decided in street
conformity thereto. That court. found
il necessary to state these principles ID
the Walker case & CT. App. $50; the
first among them is what is therein de-
nominated ''the corner stone of statutory
construction" 1t is as follows I'm IN
terpreting a law, the main object to be |
arrived at is the intention of the law
making power; an the Interpretation to
he given to the language used to express |
the intention should be such as to make