State v. Ingersoll

By the Court, Cole, J.

This is a prosecution, under chap. 35, R. S., for selling spirituous liquors without a license. The defendant admitted in open court that on the 20th day of July, 1861, in the town of Wheatland, in Bad Ax (now Vernon) county, he sold, as a druggist, a pint of alchohol, not having a license to sell spirituous liquors in any quantity. At the April term of the circuit court for that county, 1863, he was found guilty of the offense charged, and was sentenced to pay a fine of ten dollars, and costs of prosecution, and stand committed until such fine and costs were paid. The case comes to this court on exceptions under the statute. The view which we have taken of the effect of chap. 147, Laws of 1862, upon this case, will render it unnecessary for us to notice many *634 of the questions raised and discussed by counsel on tbe argument.

Tbe act complained of was committed in 1861, and it is very obvious that tbe defendant was tried and sentenced, in 1863, upon tbe supposition that section 5, cbap. 35, applied to tbe case and prescribed tbe manner of punishment. We are satisfied, however, that this is a mistake, and that that section bad been repealed by chapter 147 above referred to. Eor that chapter provides that “ section 5, chapter 35 of tbe revised statutes, entitled 1 of excise,’ is hereby amended so as to read as follows,” &c. Now tbe conclusion is irresistible that any provision of section 5 not found in this chapter, is repealed. This must-be so, since tbe legislature says expressly that that section shall thereafter read and be to the effect following; then going on to enact a complete substitute for the former provision. In what clearer manner could the legislature indicate its intention to supersede, change and repeal section 5, than by the one adopted ? It is amended so as to read and be to the effect therein prescribed, and quite different from what it was as it formerly existed. An examination of our statutes will show that this method of superseding and changing the existing law is frequently resorted to, and it certainly leaves no room to doubt as to what the legislature intended. The legislature in effect says, that such a provision of law shall be read and construed to be as therein declared, and shall have no other meaning or effect given to it. See case of The State vs. Andrews, 20 Texas, 230 . Section 5, therefore, being superseded, changed and repealed by chapter 147, was not in force when the trial was had in this case, and furnished no authority to the court to give judgment upon it. It can no more be said to exist for the purpose of regulating the punishment applicable to the offense here complained of, than one committed since the law of 1862 went into operation.

The attorney general contends that the act of 1862 was not intended to apply to any offense already committed. Howev *635 er that may be, still if tbe effect of that act was, as we have supposed, to supersede and repeal the former law, then it is manifest that there was no law which authorized the court to give judgment. So far as the act complained of here is concerned, it was as though the legislature had directly repealed section 5, chap. 35, and stopped there. In that case it is apparent no prosecution could be maintained and no conviction had. This is a very familiar principle. The same result must now follow when the legislature repeals that section in the manner it did. Of course it will not be contended that it was incompetent for the legislature to repeal that provision of law. The only question is, has it done so ? If it has, there must be an end to this prosecution, inasmuch as there was no saving clause in the repealing statute, and the latter statute not applying to this offense. That the statute of 1862 could not apply to this offense, was conceded on the argument, since it makes the act of selling liquor without a license punishable in a manner different from what it was when committed. It imposes a severer penalty than was .■ provided by the law in force in 1861, and would therefore be obnoxious to the objection of being an ex post facto law, if intended to apply to any offense committed before its passage.

For these reasons we think the conviction must be set aside, and the cause remanded with directions to dismiss the complaint.