Case Information

*1 IEATTORNEYGENERAI.

PRICE DANIEL ATTORNEY GENERAL

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BowrubLe Williun II. Henslsy - Pa&a 2

whoever fires the grass outside o? any lnolomre with the intent to destre the grass therein by the comnuhioat I on of said fire rined to the grass, shall be oon- in the penitentiary not lees than two nor more thah five years* ktiole 1328b-1 provides, insofar as pexti- nent to your ~questlon:

*seotion 1. ALV person who.wlll- ruliy’ bets fire to woods, forests, re11008, &r&se or rubbish of any kind, on lands or whloh he is hot in poaseeslon or oontrol at the time of setting out suoh fire, or who willfully causes fires to be comsumi- oeted to suoh woods, forests, fences, gram or rubbish, or who w’lllfullg and mal;~olously seta on fire or,,causee to be set on fire any tiDh0r, w0ede., or uahee, 80 a8 to cause loss or Injury to.ahother, still be guilty of a miedemeamr, and on oonviotion must be Yined not Lees t~han Ten ‘, (#lO.OO) Dollare, nor rots tbn ‘hro plu- d$ed (#P30,00) Dollati~. a,) .

‘s00. 4. Sv0lr.iiuliaiui~l al! 06rp- oration who rriimily or neg3ig0ntly~aets or owmunloatee firs to tuber leads, woods, brush, .graer,, or etubble, on lamls not their own, shall be guUty of a ds- demanor.m

The elements or the two of%&?Ws defined are hot identiaal, Artiole 1327 contemplates the fir- ing of grass wIthin any inclosure, while Article 1386b- 1 does hot limit the offense there Dresolibed to the of gram wlthin ah inclosure: &tic10 1927 only firI= prohibits the firing of grass not his wn; abile under Seotion’ 1 of Article 136t3b-1, the culprit, though he wns the land, map yet be ohar~able dth the offeaae preaoribed if he be not in poelcosdon ox oentrol at. tha ‘Rati ow~~~rehip at k time of, setting of such flxe.. difttingpished from poriseaslon or control Is indicated in Phillips vs, State, .17 Cr. B0, 169, ~ofi#tru.ing Art.

1227 e Under JW. 1327, one is ‘@ilty who fires .the grass aa therein prohibited, thou& no dam&e my be

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Hen, William H. Hens1.y i &age3 ',~

done, while Art, 1388b-1 @mtemplahs t&i&t loss or ir- jury to another shall hare' beeti Qaused b+the fires.

In Barker vs, State,,140 CrO,EZ. 550, 146~8. W. (26) 761, construing Art,. 13g%b~l,.itwas~held nooessary that the indiotaent allegethat datendant set fire to a Sence-Wo as ta caaim less 6r injuzlf to anether" where an indictment under Art. 13&W-1 u&e prebrnted.

Article 1388b-1 ders not ccntain a repeal- ing provision0 Since the two Artiales define ofSenwn, the elements of which are clearly disti@gu.$shable, they do not contain provisions a0 repugnant as'%0 justify a oonstruction efreeoting a repeal of thetearlikr law by implication because of~repugnancj.

~A,more troublesome question inraised by

the language of gee. 4 of Art? 1388b-1; especially in view of the faot thatthe emergenep clause;~which is 3ec. 5 of the ori~giaal Act, recites tha# the factthat there is no law on%uPstatutes now protroting l&&da and timber against fires creates an emergehcy,W etc.

.Tlite fact~that-the::Legislature proilesssd to ktmw of' no. laIF.$roteQEi,ng la+ds,and timber a rim negative’s any implicatio* &at the

intended to repeal~~~.~former law covering the same subject netter, Yet.$ec,~ 4 might be construed to de- olare as a po1ioy.a.t &,h~,~~llfully setting or the aommuhicating of fires to .t&kber lands, woods, brush, grass, or stubbleon thb l&G ei another shall be~gu$ltl af a misdemeanor thereby superseding the older felony statuts8. If Set, 4 is to be 50 construed, it,<is re- pugnant to the app,arent Mom .,':, $bs of Art. 1327, It might also.be construed as rep&. &‘cto Penal Code Articles 1321, 1328, 1330 and part&of Article 1388a, at least inaofak 'as they.applY to annindividual or corporationW These latter bta%utes also deal with willfully or nag: l%gently setting orcommunicating of firs to timber lands,.woods, brush, grass and stubb)e, but each d~al,s pith distinguishable oircumstances and methods, or ; with the particular/-- intent-involved in the commissi,on; of-G&h offense’ defined. ih that xegard, Some of them .2

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Hono Williem N, Heasley * Page 4

the purposes for whloh this parOioular Act, hrticle 1388b-1, was passed, and also ,to give efreet to thie Article as against corporations as well as individe uals, As stated in St. Louis B & NRailway, et al, f. Marcofioh, 221 5. W. 582, by the OoPriasioa of Ap- peals and approved by the Supreme Court, speaking sf apparently inooasistant or repugnant enaotuata:

nThough they may seem to be ropug- aant; if it is possible to fairly~reaoaolla them, it is the duty of the court. A,oon- struotion will be sought whioh harmonizes them and leaves both in surreat bpmatiom, rather than destroys one of them. If tha later statute reasonably admits of a ooa- structioa which will allow effort to the older law aad still leaves an ample 11ald for its own operation, a total repugaaac8 oamot be said to exist, and, therefore, an illplied repeal dees not result, sinoe ia sush oaae both my staad ahd perform a dls- tincC off10e.~

While it is true that it is orten neeo8- sary to conalude that the Legislature in passing a new law covering the whole subjeot matter of ah old law i&ended to repea$ the old law as was done ipl the situationa involved in suoh eaaea as Meekw vsr, Wkoelar Couaty,, 125 3,~W. (21) 331b affimaad 144 3. W. (%a) 885; Fleeka vs. State, 83 S. W., 381; and Robextsoa vsr State, 159 5. W0 713, such coaclusloar were arrived at oily where an intention to repeal all lnconsiate~nt laws was oontained in the later act or the l&or sot

inoonsiatent tith ahd repugnant to ram- be neted that Frt, 1388b-l deos a& oover the entire field of cri*ieal Law dealiagdth tb set tin& of--BiG. See Title 17, Chapter 1 (Ar8oa) a.ad Chapter 2 (Other Willful Bum&w),

While Article 1327 is closely akln to Arti- ele 1388b-1 and covers similar offease and is gadoubt-~ __ l aly difficult to dlstla&uish, yet the maadateto ham-, onizo and gire~effemt to both laws where possible &eul& it is belierad, be given pawoqnt efrert in theoem-, struotion or these aatts of the Lag&elatore, and we riel~ oompe&Led to so construe thear Artioles in this instance, l sReoially sin00 it is Obvious rrom the language or the later set that no iatentioa aould hsve existed to ro- peal the formera

This department, therefami: a@Brrr w&b This department, therefami: a@Brrr w&b

JOUT oonolu~ion contained.in your brief a&a& held8 JOUT oonoluaion contained.in your brief a&a& held8 that Article 1388b-1~i.s not lrraooncilablo that Article 1388b-lis not lrraooncilablo .asid F~DUK- .a& rapug- naat to llrtiole 1327, and themforam'the fox&r deee naat to llrtiole 1327, and themforam'the fox&r deie- not repeal the latter by'lmplloation: not repeal the latter by'lmplloation.

Held, Penal Cod. Artiolo 13MIb-1, ,mklag a rtsdaraur the act of *4.per- aon whp ~illfullj! se)6 firs to wooda* roremta, fencaa, mar6 or rubbish o$ a4 kind, OQ lands of whioh he la net in psm- sesrien or control at the time of sottIn& of su$h ihi, 0e aa to oause lema br in- jury to an&her, dors mot ropsal by %P pl&t;., a qricr ouotamt, belpg &k. IwT~d Ag that whoever ulllrlally~ 6rta t re to a4 gram tit&&r an rnaler- urea set his bwA with iatrnt to (.Wt~Oy the grass therein is gutltr of a feleaj,, W:WB

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