(concurring).
Upon the original disposition of this case I filed a dissenting opinion in which I expressed the view, now entertained by a majority of this court, that Sec. (A) of Art. *599801, P.C., Vernon’s Ann.P.C. art. 801(A), under which this prosecution was brought and maintained, was not a valid law but had been repealed and superseded by Art. 6701d, Vernon’s R.C.S.
My dissenting opinion is now withdrawn and, in lieu thereof, I file this concurring opinion setting forth reasons why I think the majority opinion is correct.
It takes no legal reasoning to demonstrate that, if at the time the offense here charged was committed, Sec. (A) of Art. 801, P.C., no longer existed but had been repealed, superseded, and nullified, no offense was denounced thereby and the allegations of the indictment charging- a violation of that statute did not charge an offense against any law of this state.
The question, then is this: Was Sec. (A) of Art. 801, P.C., a valid existing statute of this state on December 27, 19SS, the date on which the offense for which the appellant stands convicted was alleged to have been committed?
Sec. (A) of Art. 801, P.C., was passed by the legislature of this state in 1917.
That section will hereafter in this opinion be referred to merely as Sec. (A).
Some thirty years after its passage, the legislature, in 1947, passed what was denominated the “Uniform Act Regulating Traffic on Highways,” appearing as Art. 6701d, Vernon’s R.C.S.
That statute will hereafter in this opinion be referred to as Art. 6701d.
Sec. (A) and Art. 6701d each deal with and make unlawful the driving of vehicles upon the left side of the highway. The penalty authorized to be assessed for a violation of Sec. (A) is a fine of not exceeding one hundred dollars. The punishment for a violation of Art. 6701d is authorized to be assessed at not less than one dollar and not more than two hundred dollars, which is double that authorized to be assessed for' a violation of Sec. (A).
Has Art. 6701d repealed, superseded, and nullified Sec. (A) ?
Certain legal propositions stand out in a determination of that question:
The rule is well established, in law as well as by common sense, that there cannot .exist two statutes which make unlawful the same act, each assessing a different penalty for a violation thereof.
The latest expression from this court attesting that rule will be found in Ex parte Sanford, Tex.Cr.App., 289 S.W.2d 776. In that case there were two statutes involved: one passed in 1919, Vernon’s Ann.P.C. art. 265 and the other in 1951, V.A.T.S. Election Code, art. 1404, each having for its purpose the limiting of campaign expenditures and each denouncing the same unlawful act — which is the expenditure in aid of the candidate by any person other than the candidate or his campaign manager an amount in excess of twenty-five dollars. The penalty provided in the one statute for that unlawful act was different from that provided in the other. The statute of 1951, the junior statute in point of time of passage, did not repeal the prior statute; each statute was therefore in force and effect, and each directly conflicted with the other. It was held that under such circumstances both statutes were invalid.
The application of that rule, here, is that inasmuch as Sec. (A) and Art. 6701d both relate to and denounce as a crime the driving of a vehicle on the left-hand side of the highway and authorize the infliction of different penalties for a violation thereof, each cannot exist as a valid statute. One must stand, and the other fall. If both statutes stand, then we have no statute in this state making it unlawful to drive a vehicle upon the left side of the highway.
Another rule of law which is deemed here applicable is that which provides that where two statutes cover the same subject matter, the one general and the other special, the special statute will control not upon any theory of implied repeal but *600upon the broad rule that all parts of the acts or statutes must stand, if possible, and that the intention of the legislature is more clearly reflected by the special statute than by the general one. Both are permitted to stand, each having application in its proper place, the special statute being treated as though it were a proviso excepting something from the general one. Fortinberry v. State, Tex.Com.App., 283 S.W. 146; Hunt v. Atkinson, Tex.Civ.App., 300 S.W. 656; Id., Tex.Com.App., 12 S.W.2d 142, and Id., Tex.Com.App., 17 S.W.2d 780; City of Marshall v. State Bank of Marshall, 60 Tex.Civ.App. 508, 127 S.W. 1083; Ex parte Townsend, 64 Tex.Cr.R. 350, 144 S.W. 628.
That rule was cited, also, in the recent case of Sheffield v. State, Tex.Cr.App., 307 S.W.2d 100. In that case, two statutes covered the same unlawful act: one, covering a general and the other a special state of facts. The special statute was junior in point of time of passage. It was held that the special statute controlled and that a prosecution could be brought thereunder.
The instant case is an exact counterpart of the Sheffield case, for Sec. (A) is the general statute, while Art. 6701d is the special statute. If the Sheffield case is right, then Sec. (A) must yield to Art. 670Id.
Yet another rule of law is that the express repealing clause of Art. 6701d operated to directly repeal Sec. (A).
Now to demonstrate the applicability, here, of the rules of law stated:
Sec. (A) contains two directives: The first requires that the driver of a vehicle shall wherever practicable travel upon the right side of the highway; the other requires that “On all occasions the driver or operator of any vehicle upon any public highway shall travel upon the right hand side of such highway unless the road on the left side of such highway is clear and unobstructed for a distance of at least fifty yards ahead.”
The act here charged against appellant as being unlawful and that upon which this conviction , rests is in violation of that part of Sec. (A) above quoted. This is demonstrated by the allegation in the state’s pleading that appellant did drive an automobile upon a public highway “on the left side of said road of said public highway, when the said left side of said road of said public highway was not then and there clear and unobstructed for a distance of fifty yards ahead of the said automobile then and there being driven and operated by him, the said defendant.”
It is apparent, therefore, that Sec. (A) is; a general statute and one which makes unlawful the driving on the left side of the highway at all times and under all conditions when the highway is not clear and! unobstructed for at least fifty yards.
The validity of Sec. (A) was by this-court attested in Garrett v. State, 161 Tex.Cr.R. 556, 279 S.W.2d 366, as against the-contention that Art. 6701d repealed Sec.. (A). The validity of Sec. (A) was noir there attested as against the rules of law heretofore stated — which are that the two. statutes covered the same unlawful act,, with different penalties affixed for a violation of the same act, or that Art. 6701d was. a special statute covering a special state of' facts and Sec. (A) was only a generall statute. The Garrett case made no mention: of such matters and cannot therefore be-considered as having determined the same..
It appears, therefore, that Sec. (A) must be construed as a general statute as distinguished from a special statute touching; driving on the left side of the highway.
Now let us analyze Art. 6701d: That; article is, upon its face, a comprehensive-treatment of the regulation of traffic on. the highways of this state. Art. VI thereof, which is composed of some thirteen; different sections, numbered 52 to. 64, has. *601direct reference to driving on the left side of the highway.
Sec. 52 reads as follows:
“Drive on right side of roadway; exceptions”
“Upon all roadways the driver of a vehicle shall drive upon the right half of the roadway, except as follows:
“1. When overtaking and passing another vehicle proceeding in the same direction, under the rules governing such movement;
“2. When the right half of a roadway is closed to traffic while under construction or repair;
“3. Upon a roadway divided into three (3) marked lanes for traffic under the rules applicable thereon; or
“4. Upon a roadway designated and signposted for one-way traffic.”
The similarity between that section and Sec. (A) is apparent, for both require driving on the right side of the highway except under certain conditions.
Sec. 52 was before this court in Martinez v. State, TexUr.App., 288 S.W.2d 787, and was upheld as a valid statute prohibiting left-side driving on the highway. The Martinez case was subsequent to the Garrett case, supra.
Sec. 53 reads as follows:
“Passing vehicles proceeding in opposite directions”
“Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half (½) of the main-traveled portion of the roadway as nearly as possible.”
The practical and working effect of that statute, as applicable here, is that where two vehicles are approaching each other in opposite directions each must remain upon its right side of the highway and pass the oncoming vehicle to the right. So then when the operator of one of those vehicles crosses into the left side of the highway and into the path of the oncoming vehicle proceeding on its right side of the highway, Sec. 53 has been violated.
It will be noted that this section makes no reference to passing or overtaking other vehicles proceeding in the same direction on the highway. It simply, in plain and direct language, says that vehicles approaching each other from opposite directions must remain on their right side of the highway.
That is exactly what the facts, here, show, i.e., that appellant drove his automobile from his right side across and into the left side of the highway in front of the oncoming automobile in which the deceased persons were riding, as a result of which the collision occurred.
There is no escape, then, from the conclusion that in Sec. 53 we have a special statute covering and having direct application to the facts of the instant case.
If the rule announced in the Sheffield case is the law, then there is no escape from the conclusion that Sec. 53 is a special statute upon the subject of left-side driving on the highway, with specific application to the instant facts, and that it therefore controls over Sec. (A).
The instant prosecution could have been properly brought under Sec. 53, but this the state elected not to do.
The legislature, in Art. 6701d, did not stop with Sec. 53 to make unlawful the driving on the left side of the highway; other sections were passed: Secs. 54 and 56 deal with and have direct and special reference to the operation of vehicles overtaking and passing other vehicles proceeding in the same direction. As is there pointed out, such operation is authorized only under certain conditions, and when not so operated the law is violated. Sec. 57 expressly pro*602Hibits left-side 'driving under certain conditions which are not in any manner associated with vehicles approaching in opposite directions or in overtaking a vehicle proceeding in the same direction.
So then if the facts show that a violation of the law occurred by the driving to the left and in front of an oncoming car, the legislature has provided a special and specific statute making that act unlawful (Sec. 53). If the violation occurred while passing another vehicle proceeding in the same direction, the legislature has provided special and specific statutes making that act unlawful (Secs. 54 and 56).
To make sure that left-side driving was unlawful, the legislature expressly so provided by Sec. 57 — and this, without reference to meeting, passing, or overtaking other vehicles.
Surely it cannot be said that the legislature has not treated, by special legislation, the subject of left-side driving. To the contrary, it has set forth certain fact situations which are expressly covered by statute.
Sec. 156 of Art. 6701d is the repealing clause and provides that “All laws or parts of laws inconsistent or conflicting with the provisions of this Act are hereby repealed * *
Now let us examine Art. 6701d and Sec. (A) for conflicts and inconsistencies:
If Sec. (A) be a valid statute which makes unlawful the driving on the left side of the highway when the left side is not clear and unobstructed for a distance of fifty yards, then it is not unlawful, under Sec. (A), to drive on the left side of the highway so long as the left side is clear and unobstructed for at least one hundred fifty feet.
Now what does Sec. 56 say upon this subject: By that section it is made unlawful for a vehicle to be driven on the left side of the highway within one hundred feet of a vehicle approaching from the opposite direction. Sec. (A) and Sec. 56 both make unlawful the same act, but Sec. 56 makes unlawful the driving of a .vehicle on the left side of the highway within one hundred twenty-five feet of an approaching vehicle, while such act is not made unlawful under Sec. (A). So then, Sec. 56 prohibits that which Sec. (A) authorizes by not making the act unlawful.
Sec. 57 makes it unlawful to drive an automobile upon the left side of the highway at any time under certain conditions therein set forth. Sec. (A) authorizes, because it does not prohibit, the doing of the things which Sec. 57 expressly makes unlawful.
Thus is it demonstrated that there are conflicts and inconsistencies as well as compatibilities and consistencies between the two statutes touching left-side driving. Both of those statutes cannot stand; one must fall. It is apparent, therefore, that Sec. (A) has been superseded, repealed, and nullified by Art. 6701d.
If the repealing clause of Art. 6701d is to-be given effect, then Sec. (A) has been directly repealed. If the two statutes, Sec. (A) and Art. 6701d, are valid, then neither can stand because of the variance of the punishment. If Sec. (A) is a valid statute covering the general subject of left-side driving, it must yield to the junior statute, Art. 670Id, which has special application to and controls over the particular fact situation here presented.
For any or all of those reasons, Art. 6701d is the applicable statute covering this prosecution.
On Appellant’s Motion for Rehearing