This is an original application for a habeas corpus granted by the presiding judge of this court.
The facts in the case show that relator was engaged in the sale of spirituous, vinous and malt liquors by retail, in all things having complied with the law as it existed prior to the passage of what is known as the Baskin-McGregor law passed by an Act of the Thirtieth Legislature, approved April 18, 1907, to be found in said acts on page 258, et seq. of said laws. A prosecution was instituted against relator on
the 12th day of September by proper complaint and information being filed in the county court of Bexar County, charging him with selling said intoxicants without a license. Upon said complaint and information being filed, and relator being arrested, by virtue of a warrant issued thereon, relator applied for a writ of habeas corpus to the county judge of Bexar County, which being refused, he applied, as stated, to the presiding judge of this court.
By an agreed statement of facts accompanying the application, it appears that relator, as stated, had complied with all the laws regulating the retail sale of whisky prior to the act of the last Legislature. The State insists that said last act repealed the previous law. This relator denies, but both concede that if it does, then relator is guilty and ought to be remanded, but if it does not repeal said old law, then relator should be discharged. It is a well-known rule of statutory construction that repeals by implication of pre-existing law by a subsequent law are not favored by the courts. This tenet of construction of statutes is but another way of saying that the courts will not infer that a pre-existing law was repealed in the absence of some expressed declaration in the latter law repealing the previous law, or unless the clear legislative intent expressed in the latter law forces said repeal by implication. The State, however, insists that the Baskin-McGregor law not only repeals by implication, but by express terms the pre-existing law, and cites us to section 35 of the Baskin-McGregor law to support this insistence. Said section reads as follows: "All laws and parts of laws in conflict with this act are hereby expressly repealed." In passing upon a repealing clause in a subsequent statute however, same should not be given a literal construction and thereby operate a repeal of a former statute unless the clear import of the language of the Legislature in the latter act shows that it intended to repeal the former law. In passing upon this question, the Court of Appeals of the State of New York, in the case of Smith v. People, 47 N.Y., page 330, uses the following language: "A statute should not be so construed as to work a public mischief, unless required by words in the most explicit and unequivocal import. In the construction of statutes effect must be given to the intent of the Legislature whenever it can be discerned, though such construction seem contrary to the letter of the statute. Words absolute in themselves, and language the most broad and comprehensive may be qualified and restricted by reference to other parts of the statute, to other acts in pari materia, passed before or after, or to the existing circumstances and facts to which they relate. So also, contemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose. A clause in a statute purporting to repeal prior statutes is subject to the same rules of construction, and although general and unqualified, if the intent appear to give the language a qualified or limited sense, the intention must prevail over the literal interpretation."
Mr. Sutherland in his work on Statutory Construction, section 28,
in speaking of the method of interpreting a statute, lays down this natural, reasonable and salutary rule: "It is indespensable to a correct understanding of the law to inquire first what is the subject of it — what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all of its intricacies, general words may be restrained to it, and those of narrow import may be expanded to embrace it to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered or supplied so as to obviate any repugnance or inconsistencies with such intention. The intention of the Legislature is the aim of statutory construction, and where, though not expressed, it is clearly manifested by implication from the language used, we cannot say that it should not have effect. That which is not expressed in words may be plainly imported by implication."
And again, Chief-Justice Moore, in the case of Russell v. Faguhar, 55 Texas, page 359, lays down the rule for the construction of statutes very clearly, as follows: "If courts were in all cases to be controlled in their construction of statutes by the more literal meaning of the words in which they are couched, it might well be admitted that appellants' objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts in a blind effort to refrain from an interference with legislative authority by their failure to apply well regulated rules of construction to, in fact, abrogate their own power and usurp that of the Legislature, and cause the law to be held indirectly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to try out the right of intendment of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent."
Then the question under these very plain and rational rules of construction for our consideration is, does the Baskin-McGregor law, upon going into effect on the 12th day of July, 1907, immediately repeal all pre-existing liquor licenses in this State? To this question we say no. By an examination of the journals of the last Legislature we find that section 8 of the Baskin-McGregor law, as passed by the House, provided that upon taking effect of the act, all liquor dealers' licenses then in force in the State should be revoked, and that the pro rata amount due should be refunded by the State, and the pro rata amounts due by the counties and cities, if any, should also be refunded, but the Senate journal shows that this provision was stricken out, and the bill, as amended by the Senate, was subsequently concurred in and passed by the House. As stated above, we can examine the journals of the Legislature to find out this intent. Then it follows, as night follows day,
that where a clause expressly repealing the former law has been eliminated from a law before its final passage, the conclusion is irresistible that the Legislature did not at least intend an immediate repeal of the old law. This conclusion is fortified by reverting somewhat to the history of this State on the liquor question. No one seriously insists that the Legislature should pass a prohibition law applying to the whole State without first submitting to the people and having them adopt a constitutional amendment authorizing said act.
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This is an original application for a habeas corpus granted by the presiding judge of this court.
The facts in the case show that relator was engaged in the sale of spirituous, vinous and malt liquors by retail, in all things having complied with the law as it existed prior to the passage of what is known as the Baskin-McGregor law passed by an Act of the Thirtieth Legislature, approved April 18, 1907, to be found in said acts on page 258, et seq. of said laws. A prosecution was instituted against relator on
the 12th day of September by proper complaint and information being filed in the county court of Bexar County, charging him with selling said intoxicants without a license. Upon said complaint and information being filed, and relator being arrested, by virtue of a warrant issued thereon, relator applied for a writ of habeas corpus to the county judge of Bexar County, which being refused, he applied, as stated, to the presiding judge of this court.
By an agreed statement of facts accompanying the application, it appears that relator, as stated, had complied with all the laws regulating the retail sale of whisky prior to the act of the last Legislature. The State insists that said last act repealed the previous law. This relator denies, but both concede that if it does, then relator is guilty and ought to be remanded, but if it does not repeal said old law, then relator should be discharged. It is a well-known rule of statutory construction that repeals by implication of pre-existing law by a subsequent law are not favored by the courts. This tenet of construction of statutes is but another way of saying that the courts will not infer that a pre-existing law was repealed in the absence of some expressed declaration in the latter law repealing the previous law, or unless the clear legislative intent expressed in the latter law forces said repeal by implication. The State, however, insists that the Baskin-McGregor law not only repeals by implication, but by express terms the pre-existing law, and cites us to section 35 of the Baskin-McGregor law to support this insistence. Said section reads as follows: "All laws and parts of laws in conflict with this act are hereby expressly repealed." In passing upon a repealing clause in a subsequent statute however, same should not be given a literal construction and thereby operate a repeal of a former statute unless the clear import of the language of the Legislature in the latter act shows that it intended to repeal the former law. In passing upon this question, the Court of Appeals of the State of New York, in the case of Smith v. People, 47 N.Y., page 330, uses the following language: "A statute should not be so construed as to work a public mischief, unless required by words in the most explicit and unequivocal import. In the construction of statutes effect must be given to the intent of the Legislature whenever it can be discerned, though such construction seem contrary to the letter of the statute. Words absolute in themselves, and language the most broad and comprehensive may be qualified and restricted by reference to other parts of the statute, to other acts in pari materia, passed before or after, or to the existing circumstances and facts to which they relate. So also, contemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose. A clause in a statute purporting to repeal prior statutes is subject to the same rules of construction, and although general and unqualified, if the intent appear to give the language a qualified or limited sense, the intention must prevail over the literal interpretation."
Mr. Sutherland in his work on Statutory Construction, section 28,
in speaking of the method of interpreting a statute, lays down this natural, reasonable and salutary rule: "It is indespensable to a correct understanding of the law to inquire first what is the subject of it — what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all of its intricacies, general words may be restrained to it, and those of narrow import may be expanded to embrace it to effectuate that intent. When the intention can be collected from the statute, words may be modified, altered or supplied so as to obviate any repugnance or inconsistencies with such intention. The intention of the Legislature is the aim of statutory construction, and where, though not expressed, it is clearly manifested by implication from the language used, we cannot say that it should not have effect. That which is not expressed in words may be plainly imported by implication."
And again, Chief-Justice Moore, in the case of Russell v. Faguhar, 55 Texas, page 359, lays down the rule for the construction of statutes very clearly, as follows: "If courts were in all cases to be controlled in their construction of statutes by the more literal meaning of the words in which they are couched, it might well be admitted that appellants' objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts in a blind effort to refrain from an interference with legislative authority by their failure to apply well regulated rules of construction to, in fact, abrogate their own power and usurp that of the Legislature, and cause the law to be held indirectly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to try out the right of intendment of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent."
Then the question under these very plain and rational rules of construction for our consideration is, does the Baskin-McGregor law, upon going into effect on the 12th day of July, 1907, immediately repeal all pre-existing liquor licenses in this State? To this question we say no. By an examination of the journals of the last Legislature we find that section 8 of the Baskin-McGregor law, as passed by the House, provided that upon taking effect of the act, all liquor dealers' licenses then in force in the State should be revoked, and that the pro rata amount due should be refunded by the State, and the pro rata amounts due by the counties and cities, if any, should also be refunded, but the Senate journal shows that this provision was stricken out, and the bill, as amended by the Senate, was subsequently concurred in and passed by the House. As stated above, we can examine the journals of the Legislature to find out this intent. Then it follows, as night follows day,
that where a clause expressly repealing the former law has been eliminated from a law before its final passage, the conclusion is irresistible that the Legislature did not at least intend an immediate repeal of the old law. This conclusion is fortified by reverting somewhat to the history of this State on the liquor question. No one seriously insists that the Legislature should pass a prohibition law applying to the whole State without first submitting to the people and having them adopt a constitutional amendment authorizing said act. We are not here deciding whether this would be necessary or not; many lawyers in Texas have always maintained that it is; many equally learned maintained that a constitutional amendment is not necessary to pass State prohibition, but all agree that such a complete change in our policy of dealing with the liquor traffic is of such importance that no legislator or any number of legislators would have the temerity to attempt to pass State prohibition without first getting an expression of the majority of the people of Texas on this subject. Then if they would not pass State prohibition for two years without getting such expression, then the conclusion is irresistible that they would not pass a temporary prohibition law in Texas for twenty or thirty days. To say that the Baskin-McGregor law immediately repeals all pre-existing laws is but another way of saying that the Legislature intended to give to the people of Texas State prohibition for twenty or thirty days, or to place no character of restraint or license, pain or penalty upon the sale of whisky during said twenty or thirty days, according to the construction that each individual lawyer might give the condition thereby created. We are irresistibly driven from this conclusion.
Then the next question arises, did the Legislature intend that the old licenses should continue in force until their expiration, and that then each one who desired to renew said license would then have to avail himself of the conditions, pains and penalties and privileges of the Baskin-McGregor law. To this question we say no. This conclusion is arrived at after a very careful scrutiny and investigation into the provisions of the Baskin-McGregor law. It is provided by the terms thereof that the license upon a retail dealer in whisky should be $375 per year; for selling malt liquors $62.50 per year. This is a marked increase in license over the old law; that is to say, the license under the old law for a retail sale is $300; under the present law $375. Then the Legislature provides bond in the sum of $5,000, which bond may be forfeited for various things not made the basis for forfeiture under the bond as provided for under the old law. Furthermore, a man under the Baskin-McGregor law must get a permit from the comptroller, attach said permit to a petition to the county judge, wherein he applies for a license to sell whisky, which application to the county judge must be set down for a hearing, not less than ten nor more than twenty days from the date of the filing thereof, and after the trial upon the merits of the applicant, and his fitness for running a saloon, if a judgment is awarded him, granting said permit, then the applicant for
the license must take a certified copy of said judgment to the county collector, and from him get a receipt for the money paid for the license, present this receipt to the county clerk, and then execute bond in the sum, as stated, of $5,000, conditioned that various and sundry things shall operate a forfeiture of said bond and license. This, as above suggested, would take from twenty to thirty days in practical operation to enable one to comply with the provisions of the Baskin-McGregor law after it went into effect. Then, as the State insists, if the Baskin-McGregor law repeals the old law, then on the 12th day of July we would have no law in Texas regulating the sale of whisky, and under the terms of the Baskin-McGregor law it would take from twenty to thirty days, as stated, to get a license. During all this time the State would lose the revenue incident to said conditions, and society would have no protection against the unlicensed and unbridled sale of whisky during said period. Surely the Legislature did not intend to bring about any such condition under the Baskin-McGregor law. Nor would the fact of the repeal of the license militate against this proposition. It is not necessary to cite authorities on the proposition that a saloon license is a bare permit from the Legislature to sell whisky which can be revoked at any time in the discretion of the Legislature, even without provision in the repealing statute authorizing a refund of the unearned license. While this would not be perhaps common equity and justice on the part of the Legislature, still the right to do so has never been seriously questioned in this State. It also follows with equal force that they did not intend to place one man in Texas under a $300 license with certain pains, penalties and conditions attaching to his bond for the sale of whisky, and another man in the same town forced to pay $375 for license with many conditions to his bond more onerous than those applying to the first man. If they intended this, then we would have a unique and unparalleled precedent in Texas of one liquor man prosecuted and his bond forfeited for a certain act, and yet the man selling whisky by his side in the next store could do, with absolute liberty and perfect license, the very thing and the very acts that had wrecked and ruined the man having the license under the Baskin-McGregor law.
The provision of the Baskin-McGregor law that make things penal and unlawful that were not penal and unlawful before, are too numerous to be collated in this opinion, but suffice it to say that it provides, among other things, that the dealers' license may be revoked by the county attorney filing a complaint and petition before the county judge as provided in section 18 of the act. Section 18 in substance says that after filing the petition the county judge shall give the party having the license, against whom the county attorney has filed a complaint, a five days' notice, and after hearing the evidence on said complaint, if it appears that he did sell whisky on Sunday, that his license can be and shall be thereby forfeited. This is a condition attaching to a man under the Baskin-McGregor bill that does not attach to a man under the license laws existing in Texas at the time of the adoption of the said Baskin-McGregor
law. Then we are forced, as stated above, to give validity and effect to the clear legislative intent, to some extent at variance with the words of the Baskin-McGregor law. What is that intent? It simply is this, the Legislature merely designed that those having license under the old law should have a reasonable time in which to comply with the provisions and conditions of the Baskin-McGregor law, during which time they would have a right to continue in the sale of whisky according to conditions of the old law, and would merely be awarded a reasonable time in which to comply with the new law.
The facts in this case show that relator was selling in defiance of the Baskin-McGregor law on the 12th day of September. This being true, he has clearly violated its provisions and is subject to its pains and penalties, since the only right he had by virtue of said law was to have continued his business until he could have complied in a reasonable time with the provisions and conditions of the Baskin-McGregor law. This he could have done readily within thirty days, if not sooner, from the 12th day of July, the time when the Baskin-McGregor law went into effect. But the facts before us show no effort to do this, but he relies upon the proposition that he had a right to continue selling whisky from May of this year until May of next year under his old license. Having failed to comply with the law, and having violated its plain letter and spirit, we hold that he should be prosecuted according to the terms of the complaint and information before us, and that he is guilty as evidenced by the agreed statement of facts filed herein of a violation of every salient feature of the complaint and information.
Accordingly, relator is remanded to the custody of the sheriff of Bexar County, and it is further ordered that he pay all costs accrued by virtue of the issuance of this writ of habeas corpus.
Relator remanded to custody.
Davidson, Presiding Judge, absent.