(dissenting). — Since 1810 it has been the law of this State that the setting up or carrying on lotteries not authorized by the law of the State is an indictable offense. The first statute employs the expressions, unless *609authorized by law. Aik. Dig. 209, § 2. The penal Code of 1841 uses the words, without special permission from the legislature, Clay’s Dig. 434, § 20. The words of the Code of 1852, and of the present statute, are, without the legislative authority of this State. The difference of phraseology in the several statutes is not material — it does not indicate any change of legislative intent; the several phrases are equivalent in meaning. They refer to authority conferred by legislative enactment — an enactment having within the State the force and effect of law. Commonwealth v. Dana, 2 Metc. 329; Solomon v. State, 37 Ala. 26; Same v. State, 28 Ala. 83. Such was the practical construction of the several statutes; and since 1810 lottery schemes whenever existing in the State have been authorized by special legislative enactment, adopted in the mode and under the forms prescribed by the constitution for the exercise of legislative power.
Legislative authority, or authority of law, cannot be conferred without an observance of constitutional limitations. Whatever forms or modes the constitution has marked out and prescribed, to be observed by the law maker, narrow and limit his power, if not otherwise expressed in the enactment of private or special as well as in the enactment of public or general laws — in the grant of authority to individuals to do that which without such grant would not be lawful as in the repeal of the law which renders the grant necessary. The general constitutional limitation that “Each law shall contain but one subject which shall be clearly expressed in its title,” is of the same force in the grant of authority, which has the force and effect of law dispensing with the operation and affording immunity from a general penal statute, as in the enactment or repeal of such statute. The geneneral assembly cannot disregard it, in the one case or the other.
I freely concur with the majoifity of the court, that the act of the general assembly under which the appellant claims authority to set up and carry on a lottery, is an infraction of this constitutional limitation and cannot, therefore, be deemed legislative authority. I incline to the opinion, if the statute could be regarded as constitutional, it was competent for the legislature to repeal it, and that it was repealed by the act of March 8, 1871. (Pamph. Acts 1870-71, p. 271); Moore v. State, 48 Miss. 147, and authorities cited. I am nevertheless constrained to the conclusion that these questions have been finally adjudicated against the State, and in favor of the appellant in the three cases heretofore before this court. The first of these is the case of Brent v. State, *61043 Ala. 297, The appellant was indicted and convicted for setting up and carrying on a lottery. There were three counts in the indictment, but a demurrer was sustained to two of them and the trial and conviction was had under the first, which is identical in legal effect with the present indictment. The appellant justified as the agent of the present appellant and the other grantees named in the act of October 10th, 1868. The court below held the act violative of the first section of the thirteenth article of the constitution of 1868, forbidding the creation of other than municipal corporations by special act. This court without passing on that question, declared if the act was violative of that clause of the constitution, it could nevertheless operate as a legislative authority or license relieving from the penalty denounced by the statute, (R. C. § 3615), under which the indictment was found. It was further declared the language and plain intent of the act was to authorize the setting up and carrying on a lottery; that the State was estopped in a criminal prosecution from averring the invalidity or unconstitutionality of the act; and those acting under it were presumed to know only its existence and not whether it would be by the courts pronounced unconstitutional. Whatever may be said of the correctness of this decision, and I am far from expressing any concurrence in it, the fact is indisputable that it stands a solemn, deliberate adjudication, that the appellant, his associates, and their agents, had legislative authority protecting them from indictment for setting up and carrying on a lottery. The State was a party to, and the actor in, that prosecution. Every question whether of law or of fact involved in the present prosecution, was involved and necessarily adjudicated in that decision. The justification in that case was under the act of 1868, which, if legislative authority, is an authority for the term of twenty years from its enactment, embracing not only the time covered by that indictment, but also the time covered by the present indictment. That the acts for which the present appellant stands indicted are subsequent in point of time to those for which Brent was indicted is not material. The point in issue is the same — the existence of legislative authority to set up and carry on a lottery — the sufficiency of the act of October 10, 1868, as such authority, which if authority then to Brent, appellant’s agent, is of equal authority to the appellant now. If authority at all, it is a continuous authority, enduring for the term of twenty years, the parties acting under it performing the condition imposed of *611p„n annual payment into the treasury of two thousand dollars.
Brent’s case was succeeded by Boyd & Jackson v. State, 46 Ala. 329, an indictment identical with the present against the appellant and another. The decision in Brent’s case was approved, and it was expressly declared, “under authority of this act” (the act of October 10, 1868), the defendant had a right to set up and carry on a lottery such as the defen-' dants were engaged in.” The manner in which it was shown the defendant carried on the lottery, was the same in which the appellant was shown to have conducted it. The indictment was found after the passage of the repealing statute of March 8th, 1871, but before its enactment the appellants had made the annual payment into the treasury, required, and the term of a year had not elapsed when the indictment was found. The court held that the payment conferred a right or privilege the repealing statute could not impair or take away. This case was followed by that of W. W. Boyd, Jr. v. State, (in MSS. June Term, 1874), in which an indictment identical with the present had been found against the appellant, and on which he was convicted. The acts supposed'to render the appellant indictable, except as to the time of their occurrence, are the same now impotent. This court declared the act of October 10th, 1868, was to be regarded as a contract between the State and the grantees therein named, which no subsequent legislation could impair or take away, and reversed the judgment of conviction, rendering judgment here dismissing the prosecution.
It is apparent that though, in neither of these cases, this court rested its judgment on a constitutional correspondence of the title to the body of the act of October 10,. 1868, the sufficiency of that act as legislative authority to the privy indicted for setting up and carrying on a lottery in the manner this appellant is shown to have acted, was the material issue — was the controlling question adjudicated. • It is not necessary to inquire whether the appellant was a party to the judgment in Brent’s case, so as to rely on its conclusiveness. Whatever was involved in that adjudication, whatever was essential to the justification and acquittal of the defendant in that case, or to his conviction, was essential to the acquittal or conviction of the appellant in the subsequent eases to which he was a party. In all the cases, the material inquiry was of law, not of fact; for in none of them were the facts matter of dispute, but were admitted, and were the same found in this record. The inquiry — the point in issue — the point adjudged — was the sufficiency of *612the act of October 10, 1868, as legislative authority to set up and carry on lottery; and its sufficiency was affirmed.
The finality and inviolability of judgments of a court of competent jurisdiction, not assailed on error or appeal, rests on an inflexible and conservative principle of law. Whether the judgment is interposed by plea as a bar or as evidence between the same parties, or their privies, it is conclusive of the matter directly in question. It is beyond question, it is final and absolute, however erroneous, or whatever of injustice it may work; it is a conclusive determination of the particular controversy. Judge Cooley, pursuing the authorities, clearly and accurately expresses the principle : “A decision once made in a particular controversy, by the highest court empowered to pass upon it, is conclusive on the parties to the litigation and their privies, and they are not allowed afterwards to revive the controversy in a new proceeding, for the purpose of raising the same or any other question. The matter in dispute has become res adjudicata, a thing definitely settled by judicial decision; and the judgment of the court imports absolute verity. Whatever the question involved — whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment — the rule of finality is the same. The controversy has been adjudged, and once finally passed upon, is never to be renewed. It must frequently happen, therefore, that a question of constitutional law will be decided in a private litigation, and the parties to the controversy, and all others subsequently acquiring rights under them in the snbject-matter of the suit, will therefore become absolutely and forever precluded from renewing the question in respect to the matter then involved. The rule of conclusiveness, to this extent, is one of the most inflexible principles of the law, insomuch, that even if it were subsequently held by the courts that the decision in the particular case was erroneous, such holding would not authorize the re-opening of the old controversy in order that the final conclusion might be applied thereto.” Cooley’s Con. Lim. 47. Mr. Bigelow states the rule “that a point once adjudicated by a court of competent jurisdiction, however erroneous the adjudication, may be relied upon as an estoppel in any subsequent collateral suit, in the same or any other court, at law or in chancery, or in admiralty, when either party, or the privies of either party allege anything inconsistent with it; and this, too, whether the subsequent suit is upon the same or a different cause of action.” Bigelow on Estoppel, 45. The principle has been often recognized and enforced by this *613court, and lies at the foundation of numerous decisions. Bobe v. Stickney, 36 Ala. 482 ; Mervine v. Parker, 18 Ala. 241; Roberts v. Heirn, 27 Ala. 678; Derrett v. Alexander, 25 Ala. 265; Tarleton & Pollard v. Johnston, Ib. 300; Langdon v. Raiford, 20 Ala. 532; Rake’s Adm’r v. Pope, 7 Ala. 161; Trustees, &c., v. Kellar, 1 Ala. 406; Thomasson v. Odom, 31 Ala. 108; O’Neal v. Brown, 21 Ala. 482. The long line of decisions declaring that a decision of this court, however erroneous, was the law of the particular case, and could not be questioned in the primary court, or on a second appeal, was not the expression of a mere rule of practice, but Avas founded on the conclusiveness of judgments.
The principle is as applicable to judgments in criminal cases as to judgments in civil cases. “ An acquittal or a conviction, under an indictment for an offense, is a bar to any subsequent indictment substantially like the former.” Freeman on Judgments, § 318. Indeed, in criminal cases the principle rests not only on the general proposition that a matter which has fairly passed to final adjudication cannot be again the subject of litigation between the same parties, but also on the constitutional guaranty against double vexation for the same offense — a guaranty inviolable Avhether the accusation involves a felony or a misdemeanor only. McCauley v. State, 26 Ala. 135.
This prosecution is but a renewal of the former prosecutions which have passed into judgments of acquittal by the deliberate adjudications of this court. No new fact is introduced which can take the present case Avithout the control and conclusiveness of those adjudications. That the facts noAv relied on are subsequent in point of time to the facts relied on in the former cases, is not material. An adjudication noAv, that the act from Avhich legislative authority is derived confers it, would be an adjudication not only that the particular acts proved Avere legal when done, but an adjudication that the same acts, for the period prescribed by the act of the legislature, Avould be legal, the appellants observing the condition of an annual payment into the treasury, or a tender of such payment. The matter of controversy, the point to be decided, is the sufficiency of the legislative act as legislatÍA7e authority for an act continuous in its nature during the period of twenty years from its enactment. Such would be the effect and bperation of an’ adjudication in this case in favor of the appellant, and such is the effect and operation of the former adjudications.
The effect of the former adjudications, as a matter of authority merely, in controversies between strangers, is not-*614■now the subject of inquiry. In my judgment they are erroneous, and it will be the duty of the court, if such controversy arises, to overrule them. But they seem to me, as between the appellant and the State, definitive adjudications of all the matters in controvery, binding and conclusive, forever quieting and silencing litigation. The first, and •fourth charges requested by the appellant should have been given by the city court. They rest on the finality of the former judgments. I cannot, therefore, assent to the affirmance of the judgment.
Note by Reporter. — At a subsequent day of the term, appellant applied for a rehearing, to which the following response was made by :
STONE, J.Many of the authorities relied on for a rehearing and change of decision in this cause present only the question of the conclusiveness and finality of unreversed judgments. The rule is universal that whenever a contestation has been had before a court having jurisdiction of person and subject matter, the decision pronounced is conclusion, for all time, between the parties to suit and their privies, upon the same rights connected with the same subject-matter. See Cooley's Con. Lim. 47, et seq, and the numerous authorities cited by him.
The rule, however, to be applicable and binding, requires that the second contestation shall involve the indentical issue, either of law or fact, as the case may be, that was pronounced upon in the former suit; and it must arise between the identical parties litigant, or their privies in blood or estate. See authorities supra, and Van Alstine v. Indiana P. & C. Railroad Co. 34 Barb. 28 ; Taylor v. McCracken, 2 Black. 261; Cook v. Viriont, 6 T. B. Monroe, 284; Spencer v. Dearth, 43 Ver. 98 ; City of Davenport v. The C. R. I. & P. R. R. Co. 38 Iowa. 633-39-40.
This principle has been held to embrace successive suits for different breaches of the same contract, so far as there is a unity of subject-matter common to the several suits. It also governs the case of a single contract payable in installments, on which successive suits are brought. Rakes v. Pope, 7 Ala. 161; Gardner v. Buckbee 3 Cow, 120. The case of Beloit v. Morgan, 7 Wall. 621, carries the doctrine something further than case we have examined.
In the case of Gelpcke v. City of Dubuque, 1 Wall. 175, the sole question was whether supreme court of the United States was required to conform to a new and later decision *615of the supreme court of Iowa on a question arising under the constitution of that State — the said later decision of the Iowa court having departed from and overruled several former decisions of the same court, which affirmed the constitutionality of the Iowa statute in question. Under the former decisions of the Iowa supreme court, bonds of the city of Dubuque, in large amount, had been issued and disposed of. The United States supreme court refused to follow the later ruling of the Iowa court, and held the Iowa statute constitutional.
The case of The State of Missouri v. Miller, 50 Missouri, 129, rests on the case of State of Missouri v. Hawthorn, 9 Mo. 385. It was neither ruled nor claimed in argument that the Missouri statute was unconstitutional.
It will be seen by an examination of the cases above that none of them present the question we are considering; and we do not consider that they shake, in the least, the foundation on which our decision rests. In none of them was it decided or contended that any right existed, or could be maintained, which rested alone on a statute which the court pronounced unconstitutional.
In the present case, we must affirm or reverse the judgment of the court below. If we affirm, we concede that a seeming hardship is imposed on the appellant. The remedy, if any, is not with us. If we reverse, the inevitable result is that the “associate partners ” enjoy an irrevocable license and monopoly to set up and carry on a lottery in this State for the term of twenty years, to end in October, 1888; and that in disregard of our present constitution, and claimed only under the forms of an enactment which every member of this court considers to be clearly unconstitutional.
Application for a rehearing overruled.