State v. Harvey , 11 Tex. Civ. App. 691 ( 1895 )

Appellee Harvey, doing business as a retail liquor dealer at Seymour, Texas, executed, March 26, 1894, with the other appellees as sureties, the bond declared upon in this case. The breaches alleged consisted of several sales of liquor to minors. The case was tried upon an agreed statement of facts, without a jury, and a recovery denied upon the ground that the local option law was in force in the Seymour precinct of Baylor County when the bond was made and approved.

The correctness of this decision depends upon the effect to be given certain local option elections previously held in that precinct and county. The election held in 1885 for the entire county was regular, and resulted in the adoption of the law. About this there is no dispute. In 1889, and while this law of 1885 was still in force, an election was held in and for the Seymour precinct, which was regular and resulted in the adoption of the law in that precinct, provided such an election was authorized by the statute.

If the amendment of 1887 was applicable to a county in which prohibition already existed, the precinct election in question was expressly forbidden. Acts of 1887, p. 98. If it was not so applicable, how stood the case under prior legislation?

In answer to this question we adopt the view expressed in the dissenting opinion of Judge Hurt in the Whisenhunt case, 18 Crim. App. Texas, 491. The interpretation given by that opinion to the law as it then existed on this subject was plain and easily understood, and did not lead to that interminable confusion of mind which the elaboration of the opposite view tends so strongly to produce. It seems also to have received subsequent legislative and judicial approval. Kimberly v. Morris, 31 S.W. Rep., 809; Kerr v. Riddle, id., 328.

It is common sense to hold that the Legislature never intended that a precinct should be harrassed with an election at public expense to adopt a law already in force in such precinct, as well as throughout the county. Our conclusion is, therefore, that the 1889 precinct election was unauthorized and void.

This brings us to the validity and effect of the election held March 3, 1894, for the entire county, which gave a majority against the law; the result of which was duly declared eleven days thereafter, but before the bond sued on was executed. The order declaring the result of the election failed to expressly declare the abrogation of the law adopted in 1885, and no publication was made of the order entered declaring the result of the election. In other respects the proceeding was admitted to be regular.

The contention is, that without a full compliance with all requirements subsequent to the election, the law remained in force. This is clearly untenable. The legal election, the result of which was duly declared, put an end to the previous law, and no order of the commissioners court to that effect was requisite. Ex Parte Burge, 32 Crim. App. Texas, 462. In terms, as originally declared, it was only to remain in force "until such time as the qualified voters therein may at a legal election held for the purpose by a majority vote decide otherwise." R.S., art. 3233. Besides, the statute nowhere requires the order declaring such result to be published.

It follows from these conclusions that the judgment must be reversed and here rendered, upon the agreed statement, in favor of appellant against appellees in the sum of $2500, with costs.

Reversed and rendered.

TARLTON, Chief Justice, did not sit in this case.

Writ of error refused.