Ex Parte Keith , 47 Tex. Crim. 283 ( 1904 )

This is an original application for the writ of habeas corpus, which was granted by the presiding judge, and is now before us upon an agreed statement of facts for decision. Relator was arrested under proper complaint and information for violating the local option law in Erath County; and relies for his discharge from arrest on the invalidity of the local option law of Erath County.

Relator insists that the notice for the local option election was not published for twenty consecutive days, as provided by what is known as the "Terrell Election Law," passed by the 28th Legislature. (See Acts 28th Leg., p. 133, 1903.) The statement of facts shows that the notice of said local option election was posted in each of the twenty-seven precincts of said Erath County for twenty days next before the day of said election on June 11, 1904. In view of the agreement that 27 notices were posted at the respective voting boxes, the statement of facts containing no description of said notices, we will presume they were such as required by law. In our view of this case it is immaterial whether such notices were published for the twenty consecutive days required by the Terrell Election Law. We hold that, in order to make a valid local option election, it is only necessary to comply with the character of notice required under the local option election law, and that the Terrell Election Law does not repeal by implication any of the provisions of the local option law. This question was decided by us in Shields v. State,38 Tex. Crim. 252. Article 3387 of the local option law, provides: "The clerk of said court shall post or cause to be posted, at least five copies of said order at different places within the proposed limits, for at least twelve days prior to the day of the election, which election shall be held and return thereof made, in conformity with the provisions of the general laws of the State, and by the officers of election appointed and qualified under such laws." Article 3389, provides: "The officers holding said election shall in all respects not herein specified conform to the existing laws regulating elections, and after the polls are closed shall proceed to count the votes, and within ten days thereafter make due report of said election to the aforesaid court." An inspection of other clauses of the local option law shows that the time of counting the result of the local option election is different from the Terrell Election Law, and if the Legislature had intended any character of repeal, some direct expression would have been made in the Terrell Law with reference to local option law. As stated above, the only insistence that relator makes in reference to the validity of the local option law in Erath County is, that the notice was not published according to the Terrell Election Law. Prior to the Terrell Election Law, in passing upon whether or not the provisions of the general election law repealed or controlled the provisions of the local option law in reference to notices, etc., Judge Stephens, delivering the opinion of the court, in Voss v. Terrell, 34 S.W. Rep., 170 (Texas Civ. App.), held, that said general election law did not apply to the local option law; and among other things says, reviewing Art. 1685, Revised Civil Statues, in reference to the general election: "Where any election is ordered, at least twenty days' notice, etc., should be interpreted with reference to the various elections provided for in that chapter and under that title, and not to elections provided for and regulated under a different title." Then he cites Article 1759, which expressly provides, in substance, that this construction should prevail; but the whole tendency and trend of the decision shows that this clause would not have changed the construction of the law if the same had not been contained in said general election law. This decision has been approved in Roper v. Scurlock (Texas Civ. App.), 69 S.W. Rep., 456.

Relator insists that the Terrell Election Law repealed by implication the local option election law. We cannot agree with this construction of the law. It will be observed by an inspection of the Terrell Election Law that it does not propose or attempt in any of its provisions to change the general election law with reference to ordering the election for the various things and purposes involved in the general election law, prior to the time of the adoption of the Terrell Election Law. In other words the general election law contained in the Revised Statutes of 1895, provided for the election of certain State, county and municipal officers; and among other provisions stated that the notice of election should be posted twenty days. Now, the Terrell Election Law in this respect is but a bare enlargement of the old general election law as to the purpose for which the election could or should be ordered. The main insistence of relator, indicating a repeal, appears to be Section 41, which reads: "Twenty days' notice of every election ordered shall be given by notice posted up at the places of holding elections in each election precinct, which shall state the time of holding the election, the offices to be filled, and the question to be voted on, or both, as the case may be, except as herein otherwise provided." This section and Section 42 of the Terrell Election Law are almost literal copies of the general election law that existed prior to the Terrell Election Law. Then, relator cites Section 53 prescribing the oath of officers. This, in most of its salient features, is a re-enunciation of the old oath of office contained in the old election law. Section 59 of the Terrell Election Law is a bare enunciation by the Legislature that they did not intend to change the mode and manner of electing district or school officers of a city, town or village. Relator cites Section 73, which provides, that nothing stronger than coffee should be drunk by the officers holding the election. Then Section 76, which provides there shall be but one official ballot for each political party lawfully nominating a candidate for office to be voted for at each general or special election in each county, city or town. Certainly, these provisions cited could not militate against the former construction of the local option law, and especially the latter provision, since the question of "political party" has nothing whatever to do with the adoption of the local option law. Section 61 provides, that in holding elections the voters shall have paid a poll tax. The main insistence appears to be, as stated, upon Sections 41 and 144, which reads: "This act is cumulative as to penalties for violating the election laws of the State and as to the mode and manner of any law, except such laws as are inconsistent with it, or in conflict herewith; provided this act shall not apply to any election held prior to February 1, 1904."

"It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. (Hence it is, a rule founded in reason as well as in abundant authority, that, in order to give an act, not covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it; the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject.") Endlich on Inter. of Stat., Sec. 210. A general law does not abrogate an earlier special one by mere implication. The law does not allow the exposition to revoke or alter, by construction of general words, any particular statute, where the words of the two acts, as compared with each other, are not so glaringly repugnant and irreconcilable as to indicate a legislative intent to repeal, but may have their proper operation without it. Endlich on Inter. Stat., Secs. 223, 228. This author also supports the proposition that although an act contains a repealing clause of a previous law on the subject, this clause must give way to a rational interpretation of the legislation in order to give intent to the legislative mind. (Endlich In. Stat., Sec 43.)

The Terrell Election Law is a general statute; the local option election law is a special statute, relating to localities. In Laredo v. Martin, 52 Tex. 561, we find this language: "The act upon which appellees rely to revoke the power given the city, is the general act to regulate ferries; but there is no allusion to the act incorporating the city of Laredo, or to the power conferred by it upon the mayor and aldermen to establish ferries within its corporate limits. It is too well settled that the general law does not by implication repeal a special one, although both relate to the same subject matter." In Ellis v. Bates, 26 Tex. 703, Moore, J., uses this language: "The literal import of the statute is broad and unlimited, and if we can suppose that the Legislature intended that it should be strictly and technically construed, it would annul all titles when there had been a failure to return the field notes within the time prescribed, no matter what were the circumstances which prevented it, and any one might locate a certificate upon it. We do not believe that such was the object and purpose of the Legislature in enacting this statute. Surely they did not intend when they say, ``That the land shall be subject to location by any person holding a genuine land certificate,' to change the law which forbids the commissioner of the general land office, surveyors, etc., from locating public domain during their terms of office. Yet the literal meaning of the language used would lead to that conclusion. And it would be more reasonable to hold this than that it was the intention of the Legislature to deprive a party of his land for his failure to do an act which he was forbidden by law from doing. * * * It is a well settled rule for the construction of statutes that a general law will not be held to repeal a particular and special one upon the same subject. This rule would appear to be applicable to the section of the statute in question." (See also Ex parte Cross, 44 Tex.Crim. Rep..)

In Herndon v. Reed, 82 Tex. 647, 18 S.W. Rep., 665, Judge Gaines, delivering the opinion of the court, and quoting from Judge Storey, in Wood v. U.S., 16 Peters, who was passing upon repeals by implication, says: "We say ``necessary implication,' for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it; for they may be merely affirmative, cumulative, or auxiliary. There must be a positive repugnance between the provisions of the new law and those of the old; and even then, the old law is repealed by implication only pro tanto to the extent of the repugnancy. Mr. Bishop, in course of a discussion of the doctrine of repeal by implication, says: ``Hence in principle, and equally on the better American authorities and on the English, the just doctrine is that, without exception, a statute in affirmative terms, with no intimation of an intent to repeal prior laws, does not repeal them, unless the new and old are irreconcilably in conflict.'" See also Walker v. State, 7 Texas Crim. App., 257; Ex parte Creel, 29 Texas Crim. App., 439; Morales v. State, 36 Tex. Crim. 234; Braun v. State, 40 Tex.Crim. Rep.; Less v. Ghio, 92 Tex. 651, 51 S.W. Rep., 502; Steamboat Co. v. Collection, 11 Wall., 622; also U.S. v. Tyner, 11 Wall., 92.

As stated above, and as supported by the long array of authorities cited, repeals by implication are not only not favored, but there must be an irreconcilable conflict between the two laws. In fact, the latter authorities cited seem to hold without qualification that a subsequent general statute will not repeal a pre-existing special law. It can not be seriously insisted that the local option law is not a local or special law, since it only becomes a law by adoption in the respective counties and precincts. Prior to the adoption of the Terrell Election Law, there were apparent conflicts as stated above, between the general election law, with reference to the twenty days' notice, and the local option law. This court upheld the validity of a local option law where the notice had been posted twelve days, in the face of the very apparent contradiction between such law and the general election law. Now then, the mere fact that the Terrell Election Law changed the mode and manner of holding the election, does not operate to repeal the local option law, since said law, by two of its provisions above cited, says that an election for local option shall be held according to the provisions of the general election law. Certainly when said provisions are amended, the amendments would apply. Constitutional amendment provided for the payment of poll tax, and this is a provision of the Constitution disassociated from and disconnected from the Terrell Election Law. The mere fact that the same provides that persons voting should have paid their poll tax, does not conflict with the local option law, since the local option law itself says, that elections under the same shall be held according to the provisions of the general election law. It is a well known rule of statutory construction that where one statute refers to another, and such other statute is amended, such amendment would be included in the reference to such previous law. It is not necessary to cite authorities on this proposition.

Furthermore, we take it, in construing the legislative intent in the adoption of a statute, we can take into consideration contemporaneous legislative history of the act. (Endlich on Inter. of Stat., Secs. 30 and 33; Black Inter. Stat., Secs. 212, 214.) Smith v. Townsend, 148 U.S. 490. In recurring to said history, the writer finds, as disclosed by the legislative journals, that the only purpose, object and intent in the passage of the Terrell Election Law was to supersede the old general election law, and strengthen its provisions in reference to the manner of holding elections. There was no thought or intention of changing the whole election system of Texas, except in the manner of holding elections. This view is strengthened by further legislative history as disclosed by said Journals, in that there was an abortive attempt to change some of the provisions of the local option law at the same session at which the Terrell Election Law was passed — but this bill failed in the Legislature. It is true that the bill which was defeated did not attempt to change the time of holding the local option elections, but it did purport to change one of its most salient features. We take it, that the clear inference can be drawn from said fact, that the Legislature did not contemplate at said time that the Terrell Election Law should amend the local option law or in any manner or means interfere with the notices required under the local option law.

We have reviewed the authorities at length in deference to the insistence of relator, and are confident that his position is not in consonance with the previous decisions of this court, the Court of Civil Appeals, and the Supreme Court of this State; and is not supported by the elementary authorities on the construction of statutes. We hold that the Terrell Election Law did not by implication repeal the local option law in any of the provisions insisted upon. The relator is accordingly remanded to the custody of the officer.

Relator remanded to custody.

I agree to the conclusion reached, and will express my views. — Henderson, Judge.