Appellant was convicted under article 426 of the old Penal Code, being article 514 of the new Penal Code, for the unlawful killing of wild deer between the 20th of January and the 1st of August. This case was affirmed at the Austin term, 1897, but appellant filed a motion for rehearing.
The grounds of the motion for rehearing are to the effect that, in 1879, Nacogdoches County, together with other counties, was exempted by virtue of article 430a of the Penal Code (which was an article amendatory of said Code, and passed at the same session of the Legislature that the Penal Code was adopted), the contention of appellant being that article 430a has never been repealed. We quote from appellant's own language on this subject, as follows: "In deciding this case, the court seems to have overlooked article 430a entirely. This article exempts Nacogdoches County from the provisions of article 426 of the Penal Code, which makes it a misdemeanor to kill wild deer; and it has never been repealed, modified, or changed by any act of the Legislature. See Acts 1879, p. 63, where that article was originally adopted." The Act of 1893 (page 45), on which this court bases its opinion, amended article 430, Penal Code, and did not pretend to amend or repeal article 430a. The Act of 1881, while proposing in its enacting clause to amend article 430a, never did so at all. It was not repealed, amended, or re-enacted, and the declaration in the enacting clause that article 430a was amended could not have that *Page 481 effect, because the Constitution prohibits it. See section 36, article 3, of the Constitution, which provides that no law shall be revised or amended by reference to its title, but that in such case the act revised and section or sections amended shall be published at length. Now, as stated in the original opinion, article 430a was passed by the Legislature in 1879, and was an amendment to the Penal Code, which was adopted at that session of the Legislature. By reference to the Penal Code passed in 1879, it appears that article 430 relates to aquatic fowls, and is as follows: "Art. 430. Aquatic fowls, wild turkeys, and wild pigeons are not included within the provisions of the preceding article." Then follows article 430a, which is the article exempting certain counties from the operation of certain of the preceding articles of said chapter 5. In 1881 this entire chapter came before the Legislature for revision. The act is entitled "An Act to amend articles 423, 424, 425, 426, 427, 428, 429, and 430a, and to create article 426 1/2, and to repeal article 430, of chapter 5, title 13, of the Penal Code of the Revised Statutes, for the protection of fish and game." It will be noted that every section or article of said chapter in the Penal Code is re-enacted, some of them with amendments, except article 430, relating to aquatic fowls, etc., which is entirely omitted, effectually repealing said article 430; and article 426 1/2 is added to the act, as suggested by the caption. The entire subject matter of article 430a is re-enacted, but said article finds its way into the act as article 430, and not 430a. The original article 430 having been repealed, its number, 430, is given to the revised article which was formerly 430a. As we understand it, the complaint is not that the Legislature failed to re-enact the subject matter, and publish it at length as revised, but that they failed to retain the number 430a of said article in its revision. Now, we are not aware of any requirement of the Constitution that would constrain the Legislature to retain the number of said article so revised. The mandate of the Constitution in this regard is simply that "no law shall be revived or amended by reference to its title, but in such case the act revived or the section or sections amended shall be re-enacted and published at length." The amendment in this case was not by its title alone, but the subject matter proposed to be revived and amended, contained in article 430a, was all brought forward and re-enacted and published at length. When this was done the Legislature appears to have given the number of the article 430, and not 430a, as originally contained in the act as amended. The Legislature had at the same time repealed article 430; and said article, with reference to aquatic fowls, no longer existing, it was entirely competent for them to bring said article forward, and give it the number of the former repealed article. This article 430 in the Act of 1881, thus being made the article exempting counties from the operation of certain provisions of the Code in question, instead of the former number, 430a, is treated as the exempting article in all subsequent legislation on the subject. See Act 1883, p. 115; Act 1887, p. 117; Act 1889, p. 34; *Page 482 Act 1893, p. 45. In all these acts, except the last, Nacogdoches County is mentioned in article 430 as one of the counties exempted from the operation of article 426; thus further manifesting the legislative intent and purpose to treat this article as the clause exempting counties therein named from the provisions of said act. In 1893 this article 430, covering the same subject matter — that is, naming the counties exempted from certain provisions of the act — is amended and re-enacted; and from this re-enactment Nacogdoches County is omitted from the list of those exempted from the provisions of article 426 of the act, thus leaving it subject to the provisions of said article as effectually as if it had been placed subject to said article by affirmative or positive enactment.
In the view insisted on by appellant's counsel, the clause of the Constitution should read that every amended law should not only contain the act revived or section amended but should retain its numbering. We do not believe such contention to be a sound construction of the section of the article in question. On the contrary, we believe it to be entirely legitimate and proper for the Legislature, in amending an article or section of a law, to bring it forward, and publish it at length as amended, and then to give it such numbering as it may choose. Of course, it would be best to follow the numbering contained in the particular chapter; and in this instance, as there no longer existed article 430, because this was repealed, article 430a was amended and given the sequent number 430. Nor do we deem it at all necessary that the Legislature should in the act itself, or in the caption thereof, have set forth that this amendment was to repeal article 430, and to amend article 430a, and then, after such amendment and repeal, to change the numbering of the article 430a to article 430; yet such seems to be the contention of appellant. In our opinion, such contention is without either reason or authority to support it.
There being no other ground for a rehearing presented, the motion is accordingly overruled.
Motion overruled.