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

after the act took effect" (Rice VS.. Rud-
diman, 10 Mich, 1861
The Penal Code went into effect Aug
ust 2, the Civil Statutes September l,
1895. The Revised Civil Statutes passed
the final stage of legislative enactment
after the Penal Code, and went into eff
feet month after the Penal Code had
been in operation, and tested by every
legitimate rule of construction must con-
troll the Penal Code wherever the two
laws conflict. That there is a conflict
between article 1905 of the Penal Code,
which prohibits prize fights, and so much
Of article 5O49 as imposes an occupation
tax upon such fights, can not be doubted
and will not be questioned. That the
statutes are repugnant was decided in
the Sullivan case, supra. In 1876 the
court of appeals said: 1T is not to be
supposed that the legislature intended to
punish criminally any of the sources from
which the revenues are derived" (Chiles
", vs.; State: I Court App: 2Sl
III the revision of 1919 the Penal Code
went into effect July "a and the Civil
Statutes September l of that year. Ar
to keep for the purpose of gaming any
pigeon hole table Jenny Lind table, etc.
Article 1865 of the Revised Statutes i'm
posed an occupation tax of $50 upon the
tables named in article 1853 of the Penal
Code when kept for profit. In Deem
Der, 1879, an indictment was found
against Harris, charging that he sDid
then and there unlawfully keep and ex-
hibit and was interested in keeping and
exhibiting for the purpose of gaming, a
certain gaming table contrary to law"
On the trial defendant offered testimony
to show that he had paid the tax i'm
posed by law for keeping and exhibiting
the table in question. The State admit
ted that the defendant had the collectors
license. Defendant was convicted and
appealed. In reversing the case, the
court said: "The table described in the
testimony is within the provisions of the
law and of the kind of tables mentioned
by name, and the legislature must have
deliberately intended by imposing the tax
to relieve against the penalties imposed
for pursuing the taxed or licensed occu-
patton" Harris VS.. State, 8 Court of
App, 30S.)
In Tennessee by statute it was made
a misdemeanor to deal in futures. AM
other act passed at the same session made
dealing in futures licensed occupation.
Held, that a licensed dealer could not
be punished. (State VS.. Duncan, 10Th
Lea, 79)
the State that the relator had rendered
to- the tax collector the full amount of
the occupation tax imposed by article
5049, Revised Civil Statutes, and that
the collector refused to receive the tax
and issue the license. The case is on
all tours with the Harris case supra, and
it's determination might be rested upon
the authority of that case.
The State insists that the act of 1891
creating the commissioners to revise the
laws limited their authority; that they
could only collect and rearrange the then
Revised statutes and session laws; that
they had no authority to add new laws,
and that if the re-enactment of so much
of the act of 1870 as imposed an occupa-
ton tax upon prize fights as part of arti-
Gle 5049, Revised Civil Statutes, was new
legislation, the legislature was without
constitutional power to include that, OF
any other new act in the revision, but
that such legislation must be passed as
separate bills, under the limitation i'm
posed by sections 80 and 36, article B,
of the constitution. l can not agree to
this. Section 80 provides that no bill
Except general appropriation bills) shall
contain more than one subject, which
shall be expressed in it's title. Section
SO: "No law shall be revised or amended
by reference to its title, but in such case
the act revised or the section amended
shall be re-enacted and published at
length"
Why is it that the legislature can only
include one subject in bill, and that sub
ject to be expressed in its title; or why
may not the legislature revive or amend
law by reference to its title? Simply
because the legislature is prohibited from
4 L. s,Nff hn nnta-
stitution above referred to. Remove
these constitutional limitations and the
legislature could lawfully pass one bill
containing many subjects without any
of them being expressed in the title; or a
law might be revised or amended by
reference to it's title, or in any other man.
ner which the Legislature might adopt
Mr.. Cooley says: In creating a legisla-
tive department and comforting upon il
the legislative power the people must be
understood to have conferred the full and
complete power as it rests in and may be
exercised by the sovereign power of any
country, subject only to such restrictions
as they may have seen fit to impose and
to the limitations which are contained in
the constitution of the United States.
The legislative department is not made
a special agency for the exercise of spe-
officially defined legislative powers, but
is intrusted with the general authority
to make laws at discretion. Quoting
from the supreme court of New York,
the author continues: "The people, in
framing the constitution, committed to
the legislature the whole law making
power of the State, which they did not
expressly or implied withhold. Plenary
power in the legislature for all purposes
of civil government is the rule. A prohi-
bition to exercise a particular power is
an exception" Cooley, Con. Linn, 104-
1867 Section 43, article 3, of the consti-
tuition is as follows: 1.-THE first session
of the legislature under this constitu-
ton shall provide for revising, digesting
and publishing the laws. civil and crimi-
nal, and like revision, digest and publ
cation may be made every 10 years there
after; provided, that in the adoption of
and giving effect to any such digest or
revision the legislature shall not be linn
tied by sections 80 and SO of this arti-
cle." From this it is plain that the leg
islature may digest and revise the laws
just as though sections 35 and 36 were
not in the constitution. But 1t is con-
tended that the Twenty-fourth legisla-
ture must accept or reject the work, Of
the reviser. 1t is a familiar rule that
every legislative body, unless restrained
by the constitution, may modify or abol-
ish the acts of its predecessor. Cooley,
Con. Linn, 147)