dissenting.
I respectfully dissent.
Sec. 39-1901, T.C.A. is a general statute covering false pretenses. As pertinent to the instant case, it proscribes the obtaining of “any personal property” by means of any “false token . . with intent to defraud another . . . (Emphasis supplied.)
Sec. 43-925, T.C.A., a part of the Tennessee Seed law, reads in pertinent part as follows:
(a) It is unlawful for any person to sell, offer for sale, expose for sale, or transport for sale any agricultural or vegetable seed within this state:
* * * * * *
(2) Not labeled in accordance with the provisions of §§ 43-921 — 43-934 or having a false or misleading labeling. (Emphasis supplied.)
It is obvious that a false label would be a false token and a false token would include a false label. The offense, charged in the indictment, therefore, could come within the scope of either statute, from a standpoint of the descriptive terminology. The sale of falsely labelled seeds is, of course, a fraudulent act. The question is whether the specific nature of the Tennessee Seed Law preempts indictment under the false pretense statute by impliedly repealing or superseding overlapping portions of the general law. In my view, it does. The Tennessee Seed Law was obviously adopted, in part, to suppress the corrupt and fraudulent practice of selling falsely labelled seeds. I disagree with the majority’s implicit conclusion that fraudulent intent or scienter are not involved in the Seed Law because it makes no reference to these elements. To follow the majority’s reasoning is to hold that it is made a criminal offense in Tennessee to sell seeds that are merely incorrectly labelled, irrespective of intent and scienter. False and misleading label-ling to my mind connotes affirmative, knowledgeable, false and deceptive action as opposed to passive conduct in failing to insure that seeds are labelled correctly.
We have a general statute under which the selling of falsely labelled seeds is punishable as larceny and a subsequent specific statute making such action a misdemeanor.
I recognize and reiterate the oft-repeated rule that repeals by implication are not favored in the law. Reams v. Trostel Mechanical Industries, Inc., 522 S.W.2d 170 (Tenn.1975). Neither are they foreign to it. Moreover, we do not deal precisely with a repeal by implication, but with a question of which of two valid statutory enactments applies in the context of a prosecution for selling falsely labelled seeds.
In Haley v. State, 156 Tenn. 85, 299 S.W. 799 (1927), the defendant had obtained money by means of worthless checks, but was indicted and convicted under the statute making it a felony to obtain personal property under false pretenses. (Shannon’s Annotated Code, Sec. 6568; Sec. 39-1901, *740T.C.A.) Chapter 178 of the Acts of 1915 (see Sec. 39-1959, T.C.A., for substantially similar present law), in substance, made it unlawful to obtain money or other property or credit by means of a worthless check and provided a punishment based upon the amount or value. In Haley, the value was within the misdemeanor classification. The Haley court was thus presented with precisely the same situation we face — a felony conviction under a general law versus a misdemeanor conviction under a later and specific law.
After noting that legislative intent is the controlling consideration, the Court said:
No principle of law is better settled than that a statute purporting to cover an entire subject repeals all former statutes upon the same subject, either with or without a repealing clause, and notwithstanding it may omit material provisions of the earlier statutes.
There can be no doubt but that the Legislature intended that one who procured less than $30 [thirty dollars] by use of a cheek, which was not paid, should be guilty of a misdemeanor only
The two acts are, therefore, repugnant, and the former must give way to the latter. There cannot exist at the same time two statutes prohibiting the same wrong where they prescribe different degrees of punishment. The accused cannot be convicted of a felony where the Legislature, by its latest expression, has said specifically that for such offense he shall only be convicted of a misdemeanor. (Emphasis supplied) 156 Tenn. at 89-90, 299 S.W. at 800.
This Court in Hart v. Pierce, 169 Tenn. 411, 88 S.W.2d 798 (1935) followed Haley and stated:
While, as insisted, repeal by implication is not favored, our many cases so announcing all agree that a later statute will operate as a repeal of an earlier statute, if the repugnance and conflict between them is such that they cannot stand together. 169 Tenn. at 418, 88 S.W.2d at 800.
In Woodroof v. City of Nashville et al., 183 Tenn. 483, 192 S.W.2d 1013 (1946) the Court commented thusly:
Another rule of statutory interpretation is that a special statute or a special provision of a particular statute controls a general provision in another statute or a general provision in the same statute
the reason and philosophy of the rule is that where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be considered as intended to affect the more particular provision.
The rule . . . in its usual application is employed when the general provision is sequent to the special provision. It has even clearer application where the special provision follows the general provision. 183 Tenn. at 488-89, 192 S.W .2d at 1015.
A most significant case is State v. Lewis, 198 Tenn. 91, 278 S.W.2d 81 (1955) where the Court was confronted with two penal statutes relating to the removal of timber from the land of another. The first Code section made the removal a felony; the second and newer, a misdemeanor. The Court held the conflict to be irreconcilable, saying:
The result of that situation would be to have the same Act [sic] under one statute punishable as a misdemeanor, but punishable under the other statute as a felony. That cannot be. (Emphasis supplied.) 198 Tenn. at 95, 278 S.W.2d at 82.
This is precisely the situation in the instant case.
This Court, in Mowery v. State, 209 Tenn. 250, 352 S.W.2d 435 (1961), in an excellent and exhaustive opinion by the late Justice Weldon White, further amplified and clarified these rules of construction. There the defendant, armed with a pistol, went to a voting precinct and forcibly took and re*741moved the ballot box, in violation of Sec. 2-2201, T.C.A., which makes it a misdemeanor to break up an election. He was indicted and convicted for armed robbery.
The Court relied upon Lewis and Haley, supra, as well as other authorities, in reversing the conviction and dismissing the case. The Court reasoned that Sec. 2-2201, T.C.A., “covers the entire subject-matter of the penal provisions relating to the holding of elections and Sec. 2-2201 T.C.A. is a particular statute of the election laws relating to and providing for the penalty for breaking up an election,” whereas Sec. 39-3901, T.C.A., “relates to the general subject of robbery and, of course, has no particular application to nominations, primary or general elections.” 209 Tenn. at 259-60, 352 S.W.2d at 440.
Paraphrasing other cases the Court said: [Wjhere there are two provisions, one of which is special and particular and certainly includes the matter in question and the other is general, which if standing alone would include the same matter and thus conflict with the special Act or provision, the special Act must be taken as intended to constitute an exception to the general provision. 209 Tenn. at 260, 352 S.W.2d at 440.
I accept the reasoning of these cases and would hold that Sec. 43-925, T.C.A., as a special enactment purporting to cover the entire subject of the offense of selling mis-labelled seeds, preempts or supersedes Sec. 39-1901, T.C.A., the general statute relating to false pretenses. This conclusion is mandated by the fact that the Tennessee Seed Law is a comprehensive enactment intended to encompass virtually all fraudulent transactions involving the sale of seed.
This dissent is not out of harmony with Wright v. State, 549 S.W.2d 682 (Tenn.1977) wherein we held that shoplifting was a lesser included offense under a charge of petit larceny. In my view, we would have reached the same result in Wright as I reach today, but for the fact that the shoplifting statute (Sec. 39-4236) contains phraseology to the effect that prosecution under Sec. 39-4235 “shall not be exclusive and shall be in addition to previously existing offense.” The Seed Law contains no such phraseology.
I would reverse the Court of Criminal Appeals, accept the views of the dissenting member of that court and affirm the trial judge.