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

piled to restatement of the law in a
corrected or improved form. The re-
statement may be with or without ma
terial change. A revision is intended to
take the place of the law as previously
formulated. By adopting, the legisla-
ture says the same thing in effect as
when particular section is amended by
the words, $50 as to read as follows"
itSutherland, Con. Stat, 154) The re-
vision of 1879 contained many provisions
not before included in any law of the
State. The right of the plaintiff to a
second suit in trespass to try title was
taken away. The act requiring parties
TO actions of trespass to try title to file
abstracts of their title for the first time
appeared in the revision. The law regu-
lating attachments was changed. Be-
fore the revision murder in the first de-
gree was punishable by death. The Pc
nal Code in 1879 made the offense punish
able by death or confinement in the peni-
Tertiary for life at the discretion of the
jury. Many other additions and alter
atoms were made in the Civil and Grim
mai Statutes. These alterations, addi-
tlons and amendments for 16 years have
been by the courts enforced as the law
of the State. The constitutional power
OF the legislature to make them in the
form of n revision has never been uues-
toned until now. They have been recog-
nized and acted upon as valid laws for 16
years by every department of the govern
ment as well as by the bench, the bar and
the people, and surely, if there had been
any constitutional objection to them,
some one would have found it out before
thn
been questioned, the contemporaneous
construction of the constitution and long
practice and acquiescence have nut the
question at rest. Stuart VS.. Laird, 1
Granch, U; .. Sup. CT, 200; Cooley Con.
Linn, PIP. S4-S5)
The power of congress to alter, amend
and add to the work of the revisers is
clearly recognized, notwithstanding the
fact the law creating the commission only
contemplated consolidation and revision
OF the statutes. The report of the house
committee stated that the work of the
revisers was found to embody all the
provisions of existing law in brief, clear
and precise language" bate Refriger-
ating 90. VS.. Sulzberger 157 u. 81
l have not had access to the Revised
statutes as passed. Certified comics of
such parts as We're deemed material were
used on the hearing of this cause. An
inspection of the journals, however,
SHOWS that the work of the revisers was
carefully examined by the journal com
mttee to which it was referred. A
great many amendments were made SEQ.
tions were stricken out and new sections
inserted, and as reported by the commit
tee the bills were passed, and constitute
Today the Penal Code and the Revised
Civil Statutes. The committee strucl,
out so much of article 3015, Revised Civil
statutes, as authorized the State to pre-
vent by injunction a violation of the
penal law. This plainly manifests the
legislative intent that the State shall moi
have the remedy by injunction to prevent
violations of the penal law. They did
not strike out so much of article 504G
as makes prize fighting a licensed occu.
patton. Does not this clearly manifest
| the legislative intent that under The Re
vised Civil Statutes such exhibitions
should be. asource of revenue to the
State. and therefore not punishable al
ofenses against the penal laws?
Are we to assume that the failure Of
the legislature to strike this provision
from article 5049 was the result of acct
dent or mistake? The courts can MOI
assume that a law was passed by mis-
take. clicks VS.. Jamison, Mo. App.
35.) ''
In the enactment of n statute we mus
suppose that the legislative intent il
directed as to what has been enacted ant
exists as part of the statutory law o.
the land on the same subject or related
to it. Estate VS.. Brewster, A Ohio st
250)
1t is familiar principle that where al
old act which has received judicial inter
probation has been repealed and after
ward re-enacted, it will be presumed tina
the legislature intended that the new ac
should receive the same construction
which the courts had placed upon the old
| Nearly twenty years ago the court o.
appeals decided that it was not to b,
supposed that the legislature intended {,
punish criminally any of the acts from
which its revenue was in part derived
(Childs VS.. State, supra)
The legislature must be held to know
this decision, and in passing upon the ac
to adopt the Revised Civil Statutes
which made prize fighting licensed occu
patton, and which by virtue of its term
went into effect after the adoption of til,
| Penal Code, which prohibited and pun
ished prize fighting, the legislature mus
have intended that these acts should re
ceive the same construction which SINH
lar acts had received in Childs VS.. Th,
State and Harris vs. The State.
AS | have shown, the Revised Civi
Statutes were passed and went into eff
feet after the Penal Code. By articl,
| 1908 of the Penal Code prize fighting /,
prohibited and punished. BY articl,
| 5049 of the Revised Civil Statutes il |,
made licensed occupation. In order {,
give effect and make operative article
1908 are we at liberty to strike bodil,
from the Revised Civil Statutes so mucl
thereof as makes prize fighting licensed
| occupation and source of revenue t.
the State? The ordinary rules of con
strtlction do not authorize it; our Pena
Code forbids it. Mr.. Sutherland says
I'VE are not at liberty to imagine M
| intent and bind the letter of the act tC
| that intent, much less can we indulge or
| the license of striking out, inserting and
remodeling an intent which in it's native
force does not evidence"
Certainly there is nothing in the stat
ute which indicates a purpose upon the
part of the legislature to hold as blank
| so much of article 5049 as makes prize
| fighting a licensed occupation. Whether
inserted by accident or inadvertence, il
is there. and the court must give effect
to it. It's effect is to repeal or suspend
so much of the Penal Code as makes