Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 388
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388 ' GOLDSTICKER V. FORD. [Tyler Term,
Opinion of the court.
age of twenty-one years, or to students of any institution of learning,
or to any habitual drunkard or to any person after being notified
in writing by the wife or daughter of the person not to sell to
such person, and that he or they will not knowingly permit any
games prohibited by the laws of this state to be played, dealt or exhibited
in or about such place of business, and that he or they will
not knowingly permit any minor under the age of twenty-one years
to enter upon or remain in such establishment."
It is evident from the provision of the act of April 4, 1881, that
the legislature intended the penal statute before referred to to remain
in full force, and the liability of a party who violated its provisions
in no manner to be affected by that act.
It was held in the case of Bush v. The Republic, 1 Tex., 455, if a
statute prohibits an act under a penalty to be enforced by indictment,
and a subsequent statute gives a qui tarn action for a like
penalty, that the latter is merely cumulative of and does not repeal
the criminal statute or interpose any obstacle to the action by
indictment.
This seems to be in accordance with the weight of authority.
Simpson v. State, 10 Yerg., 525; Jennings v. Commonwealth, 17
Pick., 80; Regina v. White, 20 Eng. L. & Eq., 587; Blatchley v.
Moser, 15 Wend., 216; People v. Stevens, 13 Wend., 341; Bishop
on Statutory Crimes, 170; 1 Bishop's Criminal Law, 264. The case
before us is not one, however, in which a penalty to be recovered by
a civil action is given absolutely and without reference to a contract;
and if there was doubt whether a penalty imposed solely by statute
could be enforced by a civil action, and at the same time the party
be punished for the same act through a criminal prosecution, we
think there can be no doubt that a person may be prosecuted and
punished under the provisions of art. 376, Penal Code, for knowingly
selling or giving, or causing to be sold or given, any spirituous, vinous
or intoxicating liquors to a minor without the consent in writing
of the parent or guardian; and at the same time, under the
contract evidenced by his bond, voluntarily executed, be held liable
in the civil action for the sum which thereby he has agreed to pay
to the county on breach of the conditions of the bond. This question
becomes important only in view of the fact that it is assumed,
if one-of the conditions in the bond is void, therefore all the conditions
are void--a question which it is unnecessary in the viewr
taken of the case to pass upon.
The only apparent conflict of intention between the criminal
statute and the condition in the bond, as provided by the law, rc
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/410/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .