The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-10-03

| but under the circumstances attaching
| the emergency clause would do great in
| justice. ,.
A committee was selected to solicit
| funds to defray the expenses of dele
gates. Governor Gibbs and nine others
departed for Austin tonight. The other
members of the committee will go tomor'
row. There is intense feeling here ovel
the situation.
LETTERS TO THE GOVERNOR.
Governor Culberson was yesterday in
receipt of the following letter from ex-
Governor o. M. Roberts:
Marble Falls, Tex, Sept. 25, 1895.
To His Excellency, G. A. Culberson:
Dear Sir-My admiration for your
course as governor induces me to aid
you, if my views will do it any degree,
upon any difficult subject that requires
your action. do not propose to make
an argument against that opinion of
Judge Hurt, for whom L entertain great
respect as strict, conscientious Judge,
but rather to make some suggestions
relating to the statements and conclu-
sions in that opinion.
| will presume, first, that the decision
of court of last resort, even in con-
STRUNG law in the adjudication of a
case before it, is decisive as to the law
in that case, and legally and cOnstitu-
tionally not decisive in a similar case
afterwards, that comes before the same
court, with the same judges, or with
different judges of the same court. 9th
erwise, decision upon the meaning of
a law could not be reversed by a subse-
quent decision upon the same law. Both
in the supreme court of the United States
and of the several States, including Tex
as, hundreds, if not thousands, of de-
cisions upon similar cases, to that in
which the first decision was made
Therefore it is not correct to say that
the decision of court of last resort
which holds one law in the statutes to
be declared to be repealed by a subse-
quent law by implication, has the effect
to annul the first law, the same as if it
was erased out of the statute book, or
the same as if the legislature had ex-
pressly repealed it. The reason is OBJ
vious. Because both statutes at i'll
standing in the statute book, the same
court the next year in similar case
may decide that the first law is not re-
pealed by implication by the effect of
the last law and reverse the first de-
cision. Any other view would make
the decision of such q court of binding
force, equal to law passed by the leg
islature, which is simply absurd.
View this subject in another aspect.
Surprising tax law is passed and at a
subsequent legislature a penal law is
passed, which apparently repeats the law
by implication, and a still subsequent
legislature finding the laws standing in
the statute book prefers to retain the tax
law, but without mentioning it, passes
an act repeating the penal law; would
court say that the tax law was not
in force, because it was annulled by
the mere existence of the penal law
for year after it was passed, although
the penal law was repealed by the legis-
lature? Judge Hurts opinion holds that
"a decision of the court, even" holding
that the tax law was repealed by impli-
cation, by the contemporaneous exist
ence of the penal law, would have the
effect to repeal the tax law the same as
if the legislature had repealed it, al
though both laws till stood in the statute
book. This leads to two considerations.
First, if the Twenty-fourth legislature
had desired to have the tax law in force,
it still standing in the statute book, and
to effect that object had repealed the
penal law, by an act passed expressly
for the purpose, without mentioning the
tax law, there would then according to
this opinion of Judge Hurts, be no tax
law i'll existence, as the decision of the
supreme court had annulled it. the same
as though the tax law had been repealed
by an act of the legislature, as the very
day that the court of appeals made the
decision. The court by that can re-
peal law. New doctrine, that! Sec
ondly, then to bring the tax law into re-
viyed existence. after it was defunct by
the courts act, it is introduced as an orig
inal clause (the same as if no such tax
law had ever been passed., by the re-
vising commissioners. 1t being a mere
clause in the tax law, that related to
prize fights, was nevertheless intro
duced in effect the same as if it had
been a separate new bill presented to
who, under the constitution, presents
bills to the legislature? The opinion holds
that the revising commissioners could
introduce this as new provis.
ion, and that it was a new pro.
vision, although it was still in the tax
law as one of it's clauses, because the
court had annulled it. Now if this is
so the revising commissioners must dc
their work of revision not in reference
to the statutes alone that have been
passed and those that have been re-
pealed by the legislature, but also IN
reference to and with full recognition
of the 10000 (more or less) decisions of
our courts of last resort, as well as
some DECISIONS of the supreme court of
the United States upon Texas laws; and
if they find in said courts one decision
declaring any law of the State or any
clause in said law in the statute book
that has been declared imperative, oil
repealed by implication or obsolete, they
must exclude it from the revised codes
the same as though they should find q
separate act of the legislature repeating
it. That would simply be an unreason'
bic and ridiculous RECRUITMENT of them
Again, suppose you find in the statute
book two laws passed by the legislature
at different sessions, and the last act by
implication, and not in express term'
impairs the effect of the former act il
it should be attempted to be enforced il
n court. Does that supposed implication
of the repeal of the first act ipso factc
repeal it as effectually as though it were
repealed by the legislature. although II,
court has ever declared the first act to be
imperative by the effect of the second
act? If so the revising commissioners
must leave out of the revised codes