I have been unable to agree with my brethren and dissent, and in doing so have substantially *Page 326 followed the motion for rehearing filed by Messrs. Williams Williams, attorneys far appellant.
Appellant was convicted under article 388b, being article 559, Penal Code of 1911, which for the sake of brevity I will hereafter refer to as the present Code. This article is as follows:
"If any person shall rent to another, or shall keep or be in any manner interested in keeping, any premises, building, room, or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice, dominoes, or to keep or exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatsoever, or shall knowingly permit property or premises of which he is owner, or which is under his control, to be so used, shall be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two, nor more than four years, regardless of whether any of the above mentioned games, tables, bank, alleys, machine, wheels or devices, or things, are licensed by law or not; and any place or device shall be considered as used for gaming or to gamble with, or for betting or wagering, if any fees, money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."
Old article 389 being article 572 of the present Code, is as follows:
First. "If any person shall permit any game prohibited by the provisions of this chapter (being the same games mentioned above) to be played in his house; second, or a house under his control, the said house being a public place, or the said premises being appurtenances to a public place, he shall be fined not less than twenty-five nor more than one hundred dollars."
Appellant urges the proposition that these two articles are, in effect, the same, and that the same acts which constitute a violation of one would constitute a violation of the other, and that the acts for which he stands convicted would constitute a violation of each article. The majority opinion agrees that this contention is correct. Appellant, however, further contends that, therefore, said articles being in such conflict, the one prescribed a misdemeanor penalty and the other a felony for the same acts, both articles are nugatory, in so far as they conflict, and must fall.
In support of his position, he relies upon articles 1, 3 and 6 of the Penal Code.
Article 1 is as follows: "The design of enacting this Code is to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment."
Article 3 is as follows: "In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the *Page 327 same is made a penal offense, and a penalty is affixed thereto by the written law of this State."
Article 6 is as follows: "Whenever it appears that a provision of the penal law is so indefinitely framed, or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative."
My brethren hold that article 559 of the present Code, which was passed in 1907 by necessary implication, repealed article 572, which was passed in 1881, and that for this reason the codifiers only being directed by the Act of 1909 to bring forward such statutes as had not been "amended or repealed," that article 572, having been so repealed by implication, was improperly brought forward and is therefore improperly in the present Code.
In this connection, in view of the fact that this court having held in Simons v. State, 56 Tex.Crim. Rep., that article 572 of the present Code (being as stated old article 389) was not repealed by article 559, and that the decision being the construction given the statute by the court of last resort and not having been overruled at the time the codifiers acted, it occurs to me that the codifiers would have been going beyond the scope of their authority to substitute their opinion, if such they had, that article 572 had been repealed by implication in the face of the direct ruling of this court that it had not been repealed. The codifiers were required to bring forward all unrepealed laws. They, therefore, were correct in bringing forward article 572 under the Simons case. But suppose the Legislature had directly repealed it? That body had the authority to re-enact it in the Code, and not only so, but did in fact make it a part of the Penal Code. That body may enact, repeal and re-enact at their pleasure, and this court is powerless to interfere. By bringing it forward in the Penal Code, it had the effect to re-enact or to continue it in force (Sutherland Statutory Construction, 134-161), if article 389, now 572, had been repealed by old article 388b, as contended by my brethren. It will not be questioned that the Legislature has the authority to re-enact a repealed article. That this authority could be exercised by re-enacting that article in the Revised Code is legally unquestionable. That it was made a part of the Code is conceded. The majority opinion holds the Legislature powerless to place said article in the Code because said article had once been repealed. This is sui generis as a rule of construction. The majority opinion, in effect, admits that if articles 559 and 572, together with other articles prohibiting gambling, etc., had been introduced in a separate bill and regularly passed by the Legislature that the position of appellant would be sound, and that neither of the two statutes would stand and appellant would, therefore, be entitled to have his case reversed and dismissed. In this contention I concur, but I go further and say that in view of this construction under the present Code, article 572 is of equal dignity with article 559, that one is as much the law *Page 328 of this State as the other, both having been passed as separate articles in the same bill, and that being in conflict, as the majority hold, both must fall, they both being of the same bill enacted and passed by the Legislature in due and proper form, as I shall attempt to show. In my opinion, it is wholly immaterial whether article 559, when passed in 1907, repealed article 572, or as to what the status of the statutory law upon this subject was prior to the Act of 1911, by which our present Penal Code was adopted.
Nor do I think it material to inquire into the scope of authority of the Board of Codifiers, for the reason that their work, whatever it was and under whatsoever authority it may have been done, was reported to the Legislature and that body, by a solemn enactment from that work, enacted the present Penal Code of this State, which includes article 572 (being old article 389) as well as article 559 (being old article 388b). The Act makes and constitutes every article in the Penal Code a part thereof and each article of the Constitution of this State provides that no bill shall contain more than one subject, which shall be expressed in its title; section 36 provides that no law shall be amended, or revised by reference to its title. Section 43 of the same article provides: "The first session of the Legislature under this Constitution shall provide for revising, digesting and publishing the laws, civil and criminal, and a like revision, digest and publication may be made every ten years thereafter; provided, that in the adoption and giving effect to any such digest or revision, the Legislature shall not be limited by sections 35 and 36 of this article."
It is thus seen that there is not only direct constitutional authority for the passage in one bill of the Penal Code and Code of Criminal Procedure, but it is expressly commanded to be done.
The Thirty-second Legislature, Acts of 1911, introduced and regularly passed the following bill:
A BILL To be entitled "An Act to adopt and establish a `Penal Code' and a `Code of Criminal Procedure' for the State of Texas. Section 1. Be it enacted by the Legislature of the State ofTexas: That the following titles, chapters and articles shall hereafter constitute the Penal Code of the State of Texas." Then follows the present Penal Code, enacted by the Legislature and published by authority of the State of Texas and circulated by the Secretary of State.
At the beginning of the Code of Criminal Procedure appears the second section of this bill, as follows:
"Sec. 2. Be it further enacted, that the following titles, chapters and articles shall hereafter constitute the Code of Criminal Procedure of the State of Texas, towit:" *Page 329
Then follows the entire Code of Criminal Procedure, and this bill includes not only the entire Penal Code, but also the Code of Criminal Procedure, and is duly certified by the Secretary of State in the manner and form required by law, as being a bill duly and legally passed by the Legislature. In the Penal Code, as so passed, occur both articles 559 and 572.
Under our decisions, it is conclusively presumed that when the codifiers made their report, the same was duly referred to appropriate committees of the Legislature; that these committees presented a bill, which was duly reported to that body, embodying such of said work as was approved, and that said bill was, in due time, as provided by the Constitution, referred again to the committee, who reported it back to the house in which it originated, and that said bill, with such amendments as the Legislature saw fit to make, was duly and legally passed by regular procedure and became a law of this State, as is so certified by the Secretary of State. The records show that this was in fact done by Senate and House Journal, 1911.
This being true, in my opinion, the limitations upon the authority of the Board of Codifiers, or whether in fact there was or was not any limitation on the Board of Codifiers, is wholly immaterial to the issue involved. The two articles of the Code, referred to, were both incorporated in a valid bill passed by the Legislature in the same Act, at the same time, and therefore are of equal dignity, and must so stand in the courts regardless of what their past status was or may have been. To hold otherwise would be to say that the repeal of a statute by one Legislature would preclude its re-enactment by a subsequent Legislature. No court would venture to announce such a rule.
Concede, if desired, that the majority of the members of the Legislature did not know that these two inconsistent articles were in the bill. This does not cure the fact that they were. Nor does it clothe the courts with authority to say that the one is there by mistake and the other is not. This court would have the same identical authority to uphold the misdemeanor statute and denounce the felony statute as a mistake as it has (as the majority opinion has done) to uphold the felony statute and denounce the misdemeanor statute as a mistake. In other words, if the Legislature put the two conflicting statutes in the bill and thereby made nugatory both and left no law upon the subject, it is not for this court, in effect, by its decisions to pass a law upon the subject. The law-making power is vested in the Legislature by our Constitution, and its assumption by the courts is inhibited by the Constitution. Art. 2, sec. 1, Const.
In this connection, it should be borne in mind that there is no saving clause in the Act by which the Penal Code and Code of Criminal Procedure of 1911 was adopted similar to the one by which previous codifications were adopted, and that decisions under those former Acts are not, therefore, necessarily in point under this one. The present Act was not a mere naked codification, but was an explicit re-enactment of *Page 330 the criminal laws of this State. Its language explicitly made it such, and the legislative mandate is imperative upon the courts so long as its acts are within the constitutional limits. The language of the statute is plain and there is no room left for construction. The rule is both fundamental and elementary and has long been recognized in this State, that where a law is plain and unambiguous, Legislature should be understood to mean what they have plainly expressed. The Board of Land Commissioners v. Weedy, Dallam, 361; Engelking v. Von Wamel, 26 Tex. 470.
It is clear and unambiguous, according to the construction given by the majority opinion, that the Legislature did pass two conflicting articles in the same bill upon this subject, and that being true, there is no higher authority for us to cite than article 6 of that same bill, which provides as before quoted, that "whenever it appears that the provisions of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative." Art. 6, Penal Code, 1911.
This court held in the Parshall case, 62 Tex.Crim. Rep., 138 S.W. Rep., 759, that the conclusive presumption was, that the Legislature had complied with all constitutional requirements, and that the courts were not permitted to go behind the Acts of the Legislature and inquire into whether they had done so or not. I dissented from the majority opinion in that case, upon the ground that there were certain constitutional requirements, that, in my opinion, were mandatory upon the Legislature, and that the courts could inquire into whether those mandates had been obeyed.
In this, the present case, however, there is no question raised or to be raised but what all constitutional requirements were complied with in the introduction and passage of our present Penal Code and Code of Criminal Procedure as a bill. Those codes were enacted as entireties.
The majority opinion goes even further back, before the Legislature of 1911 was in session, and inquires into whether or not the Board of Codifiers had properly performed their work. This, in my opinion, can not be done. The Board of Codifiers were not part of the Legislature. It is immaterial from what source the Legislature secured the data, or contents, from which the bill, embodying our present Penal Code and Code of Criminal Procedure, was drawn. It is sufficient that it was in fact drawn and properly and regularly introduced and passed by the Legislature in regular and legal manner, as is certified by the Secretary of State, under the authority of section 43, article 3 of the Constitution.
If I could lead myself away from the opinion and conclusions herein expressed, I would still find difficulty in agreeing to the majority opinion, for the reason that the re-enactment of the Penal Code now under consideration and the two articles thereof occurred after the rendition *Page 331 of the Simons case, reported in 56 Tex.Crim. Rep.. That case was the latest expression from this court on article 389 at the time the Code of 1911 was adopted, and that opinion held that article 389 was not repealed by article 388b, or any of its subdivisions. It would follow then that even if article 389 was in law repealed by implication, as my brethren hold for the first time in the majority opinion in this case, yet it was re-enacted by a subsequent Legislature with full knowledge of the Simons decision, holding that said article 389 was not repealed. Adams v. State, 66 Tex.Crim. Rep., 145 S.W. Rep., 940.
The Adams case cites and follows many cases which support the proposition herein announced. These cases also support the further proposition that the Legislature understood the construction placed on this article laid down by the court construing it.
It was said by Judge Gaines in Cargill and Dennis v. Kountze,86 Tex. 386, page 400, that "When the Legislature which re-enacts a statute which has been construed by the courts, the presumption is that it intended that the new enactment should receive the same construction as the old. The rule is universal and is conclusive of the question under consideration." The same conclusion was reached and announced by our Supreme Court in Duke v. State, 104 Tex. 355, 137 S.W. Rep., 654, where numerous cases are cited and reviewed by Judge Ramsey writing the opinion for the court. See also Ex parte Woods, 52 Tex.Crim. Rep.. This court has also in many cases laid down and held to the same rule, the last being Adams v. State, 66 Tex.Crim. Rep., 145 S.W. Rep., 940, in an exhaustive opinion by Judge Harper. In that case Judge Harper quotes approvingly from the case of the Supreme Council A.L.H. v. Anderson, as follows in which he says it is an "apt statement of the rule." The quotation from the decision is as follows: "And it is a familiar rule that when the Legislature adopts a statute in force in another State, or re-enacts a statute formerly in force in the particular State, it will be presumed that the construction formerly placed upon the statute by the court of last resort was known to the Legislature, and that in re-enacting the statute it was the legislative intent that it should have the meaning so placed upon it by the courts." 36 Texas Civ. App. 615[36 Tex. Civ. App. 615]. The same rule was announced in Ollre v. State, 57 Tex.Crim. Rep.; Munson v. Hallowell, 26 Tex. 474; Morgan v. Davenport, 60 Tex. 230; Brothers v. Mundell,60 Tex. 240; Sanders v. Bridges, 67 Tex. 93 [67 Tex. 93]. These cases cite the familiar and well known rule, and as Judge Gaines said, "the universal rule." If, however, article 389 was repealed by article 388b prior to 1911, and article 388b remained in force all the time as held by the majority, then the re-enactment of article 389 by the Act of the Legislature of 1911 would be but the re-enactment of both articles; therefore, both would be of equal force and dignity. Any view of these articles, therefore, would be fatal to the conclusion of my brethren that appellant should be held responsible under article 388b. *Page 332 As before stated taking the majority opinion, appellant could have been held as well under article 389 as under article 388b; therefore, from the standpoint of the conflict appellant should have been discharged because these articles are irreconcilable, covering the same acts and subject matter. Under our statute with reference to interpretation of the codes this conflict would make both articles inoperative. Penal Code, arts. 1, 3 and 6.
The leading case upon this point, and one which more than covers every detail of the issue here presented, is the case from the Georgia Supreme Court, entitled Central Georgia Railway Company v. The State of Georgia, reported in 42 Lawyers' Reports Annotated, 518. That was an important case, involving, as it did, a material order made by the Railway Commission of the State of Georgia, and is referred to by the author of L.R.A. as the chief authority on the question of procedure in the enactment of the code of laws. It was thoroughly well presented by some of the ablest lawyers in Georgia. At the end of the opinion, Judge Lewis, an able jurist, who delivered the opinion for the court, makes the following note: "Knowing that the Hon. Joseph R. Lamar was one of the codifiers of 1895 and had doubtless given some of the matters involved in this case consideration, we requested of him his views touching the constitutional questions raised. To this he generously responded by furnishing us with an able and thorough brief, which has been of great assistance to us in this case." The fact that the Hon. Joseph R. Lamar, referred to, is at present a member of the Supreme Court of the United States is not only an evidence of the character and ability of the lawyers engaged in this case, but he, having advised the decision as rendered, lends weight to it as authority, if further weight needs to be given an important decision of the Supreme Court of Georgia. This decision is quite lengthy, but so fully does it cover this case and my views, that I shall quote from it without stint, adopting the views expressed as my own, which they are.
The litigation, as stated by the court, arose as follows: "The latter part of section 2189 of the Civil Code gives the Railroad Commissioners power to require the location of such depots, and the establishment of such freight buildings, as the condition of the road, the safety of freight, and the public comfort and convenience require. This provision is contained in the Act of October 29, 1889 (Acts of 1889, p. 132). Under section 2196 of the Civil Code a penalty is prescribed against any railroad company doing business in this State for a violation of the rules and regulations fixed by the Railroad Commissioners. This section is a codification of section 9 of the Act of October 14, 1879 (Acts of 1878-79, p. 129). If appears from the record that on January 28, 1896, the Railroad Commissioners of this State passed an order requiring the Central of Georgia Railway Company to erect a suitable depot building at Forsyth, in Monroe County. The company refused to comply with this order, and suit was instituted by the State, through the Attorney General, in Monroe Superior Court, to recover the penalty provided for *Page 333 in the above section 2196 of the Civil Code. . . . It is contended by counsel for plaintiff in error that there is no law in this State which confers upon the Railroad Commissioners the powers and authority to require a railroad company to erect depot buildings; that the Act which undertakes to confer this power, towit: the Act approved October 29, 1889, amendatory of the Act of 1879, is unconstitutional, because it contains matter different from what is expressed in the title thereof; and that the Act approved August 31, 1891, which undertook to remove the defect in the title in the Act of 1879 is itself unconstitutional, because its title does not indicate the matter contained in the body of the Act. On the other hand, it is contended by counsel for the State that the Act of 1889 being codified as section 2189 of the new Code, the Act of 1895 adopting and making of force that Code cured all of thosedefects, if any, which had existed in the Act of 1889. Counsel for plaintiff in error insists, however, that by the adopting Act of 1895, the Legislature never intended to make anything in the code law which was not the law before its adoption; and that, even if such was its intention, it did not have the power, under the Constitution, to enact in this way new statutes, or any changes or modifications in the existing laws of the State. We will not pause to consider or pass upon the questions raised in reference to the constitutionality of the Acts of 1889 and 1891 as originally passed by the Legislature, but we will pass over these to consider the more important question as to what validity or force the adopting Act of the Legislature gave to the provisions in the present Code of 1895. Upon this issue was fought the great legal battle between counsel for the contending parties in this case; and the view we take of this question, which can scarcely be measured in its importance and interest to the profession and the people generally, renders it unnecessary to consider the other constitutional questions touching defects in the titles of the original acts. It is insisted that by the Act approved December 19, 1893, providing for the appointment of three commissioners to codify the laws of Georgia, these commissioners were simply empowered to codify and arrange in systematic and condensed form the laws then in force in the State, and had no authority whatever to embody in the code any new law, or any provision which modified any existing law of the State. No one could hardly pretend that any new matter in the Code derives force or efficacy by virtue of the act of the commissioners alone. Even if the Legislature had attempted to confer upon the commissioners the power to make changes in the law, and to embody in the Code such new matter as they saw proper, such an Act of the Legislature, in so far as its purpose was to thus create new legislation for the State, would have been an absolute nullity. Enacting and changing laws for a State devolves by the Constitution upon the legislative branch of its government, and that branch can not delegate the power to another. A consideration, therefore, of the duties and powers imposed upon the code commissioners, can throw no light upon what construction should be given an Act of the Legislature adopting *Page 334 their work. If the codifiers introduced any new matter in the code, it, of course, amounted to nothing unless it afterwards was enacted into statute by legislative sanction. Where such matter is not inherently unconstitutional, — that is, where it embraces nothing that is not a proper subject matter of legislative enactment, — there can be no question but that the Legislature has the power to enact it into law or not, as it sees proper.
When the work of the commissioners was completed it was laid before the Legislature. It had the power to reject that work, or to accept it, and in its acceptance it had the power simply to provide for the pay of the commissioners, and the publication of their work for the use of the public; and if nothing more was done, there would have been a want of legislative sanction to any new matter embodied in the code, and hence such new matter would never have had any validity. The vital question, then, in this case, is not what the commissioners had the power to do, but what the Legislature intended to do with their work. That intention can only be gathered from what the Legislature itself has deliberately declared when it finally passed upon the work reported to it by the commissioners. This final action of the Legislature is embodied in what is known as the "adopting act" of the code approved December 16, 1895. Section 1 of that Act declares: "That the code of laws prepared under its authority by John L. Hopkins, Clifford Anderson, and Joseph R. Lamar, and revised, fully examined, and identified by the certificate of its joint committee, and recommended and reported for adoption, and with the Acts passed by the General Assembly of 1895, added thereto by the codifiers, be, and the same is hereby adopted and made of force as the Code of Georgia." This portion of the body of the Act is by these words in the title "An Act to approve, adopt, and make of force the code of laws prepared under the direction and by authority of the General Assembly," etc. A legislative body should always be presumed to mean something by the passage of an Act. If, as contended by plaintiff in error, the Legislature by this Act intended to adopt such provisions in this code as were law anyway, without any further legislative sanction whatever, then the Act in question is absolutely meaningless. It would give no more force or effect to the Code of 1895 than such a work would have carried with it emanating from a private source, and without any legislative warrant or authority whatever. The code of law designated and identified in the Act was adopted and made of force in the Code of Georgia. Not a part of the code was then of force, but the entire code, as compiled by the commissioners. It would be difficult to conceive how language could more clearly or forcibly express the real intent of the Legislature in this matter than the words used in the title and the body of this Act. If it means anything, it means a purpose of the Legislature to adopt and make of force a code of laws, and hence to breathe into every provision in that code the vitality of a legislative enactment. Any other construction would ascribe to the Legislature the folly of declaring, in *Page 335 effect, "We adopt as law in this code everything which would be law anyway without further sanction." It would be just as reasonable for that body to re-enact verbatim et literatim a statute which it recognized and knew to be already of force. Had such been the legislative will, that body would, doubtless, have pursued the same course with reference to the Code of 1895 that its predecessors followed in regard to the Codes of 1868, 1873 and 1882. The Code of 1868, known as "Irwin's Code," and also the Code of 1873, were both the work of private enterprise, their compilation not even having been previously authorized by any Act of the Legislature. The Code of 1882 was compiled in pursuance of an Act of the Legislature, but neither this edition nor the other two named received the sanction of an adopting Act. After each of these works was completed, it was, by resolution of the General Assembly, submitted, the first to a committee of three, and the last two to the Attorney General of the State, and each received favorable reports. This was a completion of the work, and all the Legislature afterwards did was to order a publication of a given number of volumes, and make appropriation therefor. When, however, the Code of 1895 was reported by the commissioners, and was examined, approved and favorably reported by a joint committee of both houses of the Legislature, that body went a step further, and passed the "Adopting Act" of 1895. Instead of treating the work as it did the three preceding editions, it pursued the same course followed by the Legislature when it passed the Act of December 19, 1860, adopting and making of force what has ever since been known as the "Code of 1863." There is a remarkable similarity between the words used in the title and body of that Act and those employed in the Act of December 16, 1895, the title of the former was, "An Act to approve, adopt and make of force, in the State of Georgia, a Revised Code of Laws prepared under the direction and by authority of the General Assembly thereof, and for other purposes therewith connected."
The title to the latter was "An Act to adopt, approve and make of force the code of laws prepared under the direction and by authority of the General Assembly, to provide for the printing and publication of the same, and for making indices thereto, and for other purposes." In the body of the former Act it was declared that the code designated "is hereby adopted as the Code of Georgia; to be of force and take effect on the 1st of January, 1862." By a subsequent Act of the Legislature this time was extended to January 1, 1863. In the body of the Act of 1895 it was declared that the code mentioned, "be, and the same is hereby adopted and made of force as the Code of Georgia." In the light of the numerous decisions of this court, some of which are hereinafter referred to, there can be no question as to what was the intent of such language in the Act of 1860; the legislative purpose being to enact into law every provision contained in the code, including such new matter as was introduced, as well as such changes and modifications as were clearly made in existing laws. The power conferred upon *Page 336 the first code commissioners by the Act of December 9, 1858, was no greater than that conferred by the Act of December 19, 1893, providing for the present code. In the former Act it was provided that the commissioners should "prepare for the people of Georgia a code which should, as near as practicable, embrace, in a condensed form, the laws of Georgia, whether derived from the common law, the Constitutions, the statutes of the State, the decisions of the Supreme Court, or the statutes of England of force in this State."
"In the Act of 1893 power was conferred upon the commissioners `to codify and arrange in systematic and condensed form the laws now in force in Georgia, from whatever source derived.' The commissioners had no more authority to make changes in the law in one instance than they had in the other. It, therefore, follows, that the effect of an adopting Act can not be measured by the powers with which the codifiers were clothed in the original Act of the Legislature, which was the first step towards providing a code. Even if the position taken by counsel for plaintiff in error be correct, that it was the Constitution of 1865 that first gave the Code of 1863 vitality and force as a legislative enactment, this will not help them out of the difficulty of their position. That Constitution, so far as it bears upon the subject, simply declares of force in this State `all laws declared of force by an Act of the General Assembly of this State, assented to December 19, A.D. 1860, entitled "An Act to approve, adopt and make of force in this State of Georgia, a Revised Code of Laws,"' etc. The Constitution itself, therefore, refers only to such provisions in the code as were declared to be of force by the adopting Act of 1860. This necessarily carries us back to the terms of that Act, and involves the question as to what laws it intended to declare of force. There is quite a difference between a code of laws for a State and a compilation in revised form of its purposes. Its general object is to embody as near as practicable all the law of a State, from whatever source derived. When properly adopted by the law making power of a State, it has the same effect as one general Act of the Legislature containing all the provisions embraced in the volume that is thus adopted. It is more than evidentiary of the law. It is the law itself. In 6 Am. Eng. Ency. of Law, 2d ed., p. 173, it is declared: `The word (code) is used frequently in the United States to signify a concise, comprehensive, systematic re-enactment of the law, deduced from both its principal sources, — the preexisting statutes and the adjudications of courts, — as distinguished from compilations of statute law only.' We quote the following from Black on Interpretation of Law (p. 363): `Although a code of revision may be made up of many provisions drawn from various sources, though it may include the whole or parts of many previous laws and reject many others in whole or in part, though it may change or modify the existing law previously in force many new provisions, yet it is to be considered as one homogeneous whole, established "uno flatu." All its various parts or sections are to be considered and interpreted as if they were parts *Page 337 of a single statute. And hence, according to the well known rule, the various provisions, if apparently conflicting must, if possible, be brought into harmony and agreement. In order to bring about this harmony and agreement, the court which is called upon to interpret the code will look through the whole work, and gather such assistance as may be afforded by a complete survey of it.' Whenever the Legislature, therefore, employs such words as `adopting a code,' no other legitimate or reasonable construction can be given the language itself than an intention to enact and make of force as a statute every provision in the entire work which it has under consideration. Such being the intention, then, of the Legislature by the adopting Act of 1895, it remains to be considered whether or not this purpose has been legally and constitutionally declared."
The question also arose in that case as to the reading of a bill on three several days, as also the question that no one bill shall contain more than one subject matter, which shall be expressed in its title, and the court said that the last question, above referred to, "presents the only question in the case, which, to our minds, is at all difficult of solution." That question, however, is not presented in the case now before us, because under our Constitution special provision is made by the articles referred to in the early part of this dissent for a codification of our law.
In the case of Ex parte Thomas, 113 Alabama, 1, it is declared: "A code or body or system of law adopted, or enacted by a single Act of the General Assembly, though it may contain inconsistent or repugnant provisions, or one section or part may be modified, and, to the extent of the modification, controlled by another, is not within the letter or spirit of the mandate of the Constitution. It is not within the legislative evil it is designed to remove, nor can it be supposed that it was within the contemplation of the framers of the Constitution. Though, for convenience, the code is published in two volumes, the one pertaining entirely to that which may be termed civil, and the other to that which may be termed criminal, legislation, was adopted by a single Act, entitled `An Act to adopt a code of laws for the State of Alabama.'" It is true the Constitution of Alabama authorizes the adoption of the code by the Legislature, but the Constitution, nevertheless, required that the subject should be described in the title, and Brickell, Ch. J., in that case, quoted the following from Walker, Ch. J., in Ex parte Pollard, 40 Ala. 77: "The Constitution requires that only one subject shall be embraced, and that it should be described in the title. `Subject' is a very indefinite word. A phrase may state the subject in a very general or indefinite manner, or with minute particularity. The subject of laws with such titles as the following: `To adopt a Penal Code,' `To adopt the common law of England in part,' `To adopt a code of laws,' `To ratify the by-laws of a corporation,' — would be expressed in a very general way, and very little knowledge of the specific provisions of the *Page 338 laws could be gleaned from the title; yet it would nevertheless be true that the subject was described in the title." See Bales v. State, 63 Ala. 30; Dew v. Cunningham, 28 Ala. 466, 65 Am. Dec., 362; Hoover v. State, 59 Ala. 57. The Constitution of the State of Washington provides: "No bill shall embrace more than one subject, and that shall be expressed in the title." Art. 2, sec. 19.
In the case of Marston v. Humes, 3 Wash. 267, it was held that the Code of 1881 of that State was a valid and binding body of laws, arranged and consequently sectionized under authority of the Legislature of 1881 from laws revised and re-enacted by that body, and ratified by subsequent Legislatures by constant reference thereto as the Code of 1881. On page 276, 3 Wn., the court says: "If the Legislature can thus, by a name sufficiently comprehensive, embrace all the subjects properly relating to civil procedure, it must follow that by adopting a subject sufficiently general it can embrace in one Act all the statute law of the State. In other words, the Legislature may adopt just as comprehensive a title as it sees fit, and if such title, when taken by itself, relates to a unified subject or object, it is good, however much such unified subject is capable of division." There is a like restriction in the Constitution of West Virginia against the passage of laws containing more than one subject, and containing matter different from what is expressed in the title.
The last paragraph, which is also taken from the Georgia case first referred to, is here used for the purpose of showing that prejudicial construction has always been in favor of upholding an entire code passed in one Act, as one bill of the Legislature, even without special constitutional sanction, and giving to each article all the solemnity and force that would be given it, if included in an ordinary bill. The enacting clause to the Revised Penal Code provides and says the "titles, chapters and articles shall hereafter constitute the Penal Code of the State of Texas." This necessarily includes every article contained in the Penal Code as passed by the Legislature of 1911.
In The State v. Mines, 38 W. Va. 125, it was held: "It can not be doubted that under the title of an Act passed in 1868, establishing a code of laws, it was valid to insert in that code a named section." It is thus seen that laws entirely new, or laws that were unconstitutional by reason of some defect in the caption, as well as laws that had been repealed, may be re-enacted and given force in one bill, including the entire code. To hold otherwise would deprive the Legislature of its expressly granted constitutional authority to enact laws.
I quote further from the Georgia case: "It is further contended by plaintiff in error that the embodiment in the code of an unconstitutional law is an error which the Legislature did not intend to sanction by its act adopting the code. If the infirmity of the Act relates to matter upon which the Constitution prohibits any legislation at all, of course the Act would be void, it matters not where found, nor how often adopted. Where, however, the defect is not inherent in the subject *Page 339 matter itself, but relates simply to its manner of passage under a defective title, it is, of course, permissible for the Legislature to re-enact the measure under a proper title. If the Act of 1889 in question, empowering Railroad Commissioners to require railroad companies to erect depots, was unconstitutional, as originally passed, because its title did not indicate what was in its body, it simply amounted to no law, and was just as if there had never been any attempt to legislate upon the subject. Such matter afterwards embraced in the code duly adopted is like any other matter contained therein, and has force and effect from the time of the adoption of the code. The changes made in the Code of 1863 are, perhaps, much more numerous than was at first supposed. Many of these modify previous statutes by omitting a portion of their provisions, others alter the statute by adding more thereto, while others contain entirely new matter emanating from the brains of the codifiers, and not found either in the common or statute law. Yet all these alterations and additions have been treated by this court in its numerous decisions relating thereto as valid law. See Mason W.R. Co. v. Johnson,38 Ga. 409; Phillips v. Solomon, 42 Ga. 192; Gardner v. Moore,51 Ga. 269; Miller v. Southwestern R. Co., 55 Ga. 143; Georgia R. Bkg. Co. v. Kirkpatrick, 35 Ga. 144; Georgia R. Co. v. Ivey, 73 Ga. 499; Wason v. Swann, 83 Ga. 198; Verdery v. Dotterer, 69 Ga. 194; Adams v. Barlow, 69 Ga. 302; Banks v. Sloat, 69 Ga. 330; Freeman v. Cherry, 46 Ga. 14; Ewing v. Shropshire, 80 Ga. 374; Ellis v. Darden, 86 Ga. 368, L.R.A., 61; McVicker v. Conkle, 96 Ga. 584."
In concluding the opinion and referring to the adoption of the different codes of Georgia, the court further said: "They have been handed down from code to code, and still live in the present code, a monument to the legal learning and ability of their author, and to the genius of his masterly intellect. Yet these changes were never vitalized into life and power until the Legislature, in its wisdom, adopted them as a part of the statute law of the State. What changes have occurred in the new Code of 1895 have likewise been thus adopted, and they should receive at the hands of the judiciary the same respect and consideration as any other Act of the legislative department of the State."
This is not the first code of laws which has been adopted by this State and recognized by the courts of this State. In 1856, as in 1879, and again in 1895, a code of laws was adopted for this State, and it had never heretofore been doubted that each section of these various codes became and was after adoption thereof, statutory law of this State, regardless of whether the same had previously existed, was an entirely new matter, or was repealed matter that had been re-enacted. As said by the Court of Civil Appeals in McLane v. Paschal, 8 Texas Civ. App. 398[8 Tex. Civ. App. 398], in passing upon the Civil Code of the State of Texas, adopted in 1879: "The court, for the purpose of informing itself of the existence, or terms of law, can not look beyond the enrolled Act certified to by those officers who are charged by the Constitution with the duty of *Page 340 certifying and with the duty of deciding what laws have been enacted." Citing Usener v. State, 8 Texas Civ. App. 177[8 Tex. Civ. App. 177]; The State v. Swift, 10 Nev. 176; In Re Dick Duncan, 139 U.S. 453; Sherman v. Story, 30 Cal. 253; Day Co. v. The State, 68 Tex. 526; Ex parte Tipton, 28 Texas Crim. App., 438; Pangborn v. Young, 32 N.J. Law, 29; Leeper v. Texas, 139 U.S. 462; Blessing v. Galveston,42 Tex. 641; Miller v. The State, 3 Ohio St. 483; Duncan v. McCall, 139 U.S. 462; Field v. Clark, 143 U.S. 649.
As before stated in this opinion, I do not agree with some of the cases holding that the courts may be precluded from going behind the action of the Legislature and inquiring into the question of whether or not certain mandatory sections of the Constitution had been complied with in the passage of the bill, and prefer to follow that line of authorities in this and other States holding to the contrary. Yet, I do fully agree that you may not go behind the Act itself to inquire into the terms, or the language, or the purposes of the measure, as plainly expressed in its text. The adoption, however, referred to by me, does not arise, or need discussion in this case, for the reason that there is no question raised of the regularity by which the Act of 1911, including the two articles of the Penal Code under consideration, was passed. Being of the opinion that articles 559 and 572 of section 1 of the Act of the Thirty-second Legislature (said section 1 being the present Penal Code of the State of Texas) are in direct conflict, and that by the terms of said articles, the same acts are, in one instance, made a misdemeanor, while by the other they are made a felony; that both of said Acts are in violation of articles 1, 3 and 6 of the Penal Code, and are, therefore, of no effect and void, I am therefore of the opinion that the judgment of the trial court should be reversed and the prosecution dismissed.
I regard the questions involved in the majority opinion in this case of such fundamental character as to make it my duty, holding the views I do, to file my dissent. For further discussion of this same question, see dissenting opinion in Stephens v. State, filed June 28, 1913, but not yet officially reported.