The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-09-26

the leSlSidluIe, III pdSSllg upon the WORK
of the codifers, could not add thereto;
that any amendments, such as taking
from or adding to the work of the COM
missioners, would be new and original leg
islation, which could only be enacted in
the manner prescribed by sections 35 and
81, article 3, of the constitution.
4. That the manifest intention of the
legislature in passing the Penal Code
and the Revised Civil Statutes was not
to pass new system of laws, but only
to rearrange, collate and continue the
old system.
In adopting the Revised Civil Statutes
the legislature has declared what parts
thereof shall be combinations. Section
10 of the final title is as follows: "The
provisions of the Revised Statutes, so
far as they are substantially the same
as the statutes of this State in force at
the time when the Revised Statutes go
into effect, or of the common law in force
in this State at said time, shall be con-
strued as combinations thereof, and not
as new enactments of the same"
In view of this plain statutory provis-
ion it would seem that in order to deter
mine whether the act of 1889 making
fights between man and man Ii
censed occupation. and the law
should be construed as combinations of
the old laws, it is only necessary to ascer-
tain whether or not said acts were in
force when the Revised Civil Statutes
went into effect September 1, 1895. AS
before stated, the act of 1891 prohibiting
prize fights, in section 4, repeats all laws
and parts of laws in conflict with said
act. In 1893 John l.. Sullivan was
prosecuted by information for ''unlaw-
fully engaging in performance of prize
fighting, an occupation taxable by law
TACT of 1880 without first having pro-
cured license therefor" He was con-
victed and his punishment assessed at
a fine of $500. From this conviction
he appealed. April 10, 1898. the case
was decided Judge Simkins, in deliver
ing the opinion of the court, said: "The
prosecution is under the act of 1893,
which declares that an occupation tax
of $500 shall be imposed as State tax
upon every performance where there is
q fight between man and man. w
This law, however, has been changed by
the act of 1891, which directly prohibits
prize fighting and declares same felony,
punishable by a fine of not less than $500
nor more than $1,000 and by confine-
ment in the county jail not less than 60
days nor more than one year. The eff
feet of this act was to repeal so much OF
the act of 1891 as permitted an occupa-
ton tax to be charged on fights between
man and man and this conviction
being upon repealed law, the Judgment
is reversed and the cause dismissed"
Sullivan VS.. The State, 80 Tex. Grim.
Rep, 50)
Here was an effort in 1898 to enforce
the act of 1889. The court of last re-
sort in such cases decided more than two
years before the Revised Statutes were
enacted that the act of 1889 had been
repealed by the act of 1891 and would
not enforce it. If this be so, and about
its correctness there can be no question,
so much of the act of 1889 as imposes
an occupation tax upon prize fights was
not in force when the Revised Civil Stat
utes went into effect, and consequently
under the plain provisions of section III
above recited, can not be construed as a
continuation of the act of 1889, but must
be regarded as new legislation. The
fourth section of the act of 1891 repeats
all laws and parts of laws in conflict with
the act. Mr.. Sutherland says: when
there is inserted in n statute provision
declaring q repeal of all inconsistent acts
and parts of acts there is an assumption
that the new rule to some extent is re-
pugnant to some law enacted before.
There is a repeal to the extent of any
repugnancy, but no further. This IS some
times classed with express repeats.
| Sutherland Stat. Con-, section l4)
But the effect of repeal is the same
| whether it is accomplished by express
terms or results from necessary lmphca'
ton. (23 Am. and Eng. Enc. of Law
page 1897 What, then, is the , effect OF
the report of the act of 1888? The eff
feet of repealing statute is to obliterate
the repealed statute as completely as ii
il had never been passed. 1t must be
considered as a law that never existed,
except for the purpose of those actions,
which were commenced prosecuted and
| concluded while it was an existing law:
| CMusgroye VS.. V. and M. railway. 3o
| Miss. 677: Calkins VS.. State, IA ONO
| st. Rep, 231) ...
TT such is the effect of the repeal OF
such of the act of 1889 as levied an occu-
nation tax upon fights between man and
man, is it not perfectly understood that
this part of the act of 1889 was not IN
force when the Revised Civil Statutes
went into effect and therefore can not
be construed as a continuation OF the act
of 1899? But that part of the act OF 1853
now under discussion is in the Revised
Statutes: after having been declared re-
Dpdlpu lOT lllOIC tHdh WV y S"iS ~ ~ 49,
acted by the legislature and can be re-
garded in no other light than new legis-
lation. Mr.. Sutherland says: When
two statutes in pari materia originally
enacted at different periods of time are
subsequently, re-enacted in substantially
the same language, with the design to
accomplish the purpose they were origin
ally intended to produce, the times when
they first took effect will be ascertained
by the courts and effect will be given to
that which was the latest declaration
of the will of the legislature if they are
not harmonious. An existing statute is
not to be considered as original because
it is embodied in a revision and there
fore it is not to be construed on the theo-
nv that none of it's provisions have been
in effect prior thereto. The appearance
of such a statute in the form and body of
revision has no other effect than to con-
tinue it in force" Sutherland Oh Stat,
Con-, sec. 1911
1t is manifest that this author is speak
ing of statutes in force at the time of the
revision, for he says in section 134 of his
work on statutory construction: "a re-
peal is not rendered imperative by re-
enactment when they are not simultane-
Gus. where there is an interval of time
after the repeal takes effect before the
re-enactment goes into operation"
TT-o,, 4b;e e,,hiant Tudpa White nuotnS