Ex parte Cox , 28 Tex. Ct. App. 537 ( 1890 )

White, Presiding Judge.

On May 13, 1890, appellant was indicted for a violation of the local option law which had theretofore been adopted for precinct Mo. 1 of Camp County. He was arrested on a capias issued upon this indictment, declined to give bail, sued out a writ of habeascorpus before the district judge, was adjudged to be legally restrained and remanded to custody, and from that judgment he prosecutes this appeal.

His contention is that “local option” does not prevail as a subsisting valid law in precinct Mo. 1 of Camp County for two reasons: “First, because after its adoption legally at an original election held on the 24th of August, 1887, a second election was held in the precinct on the 27th of August, 1889, which second election resulted in favor of local option, but was void because the election was ordered by the Commissioners Court in less than two years from the date of the adoption of the law originally; and, second, because “ local option ” in precinct Mo. 1 was repealed absosolutely by an election legally held on March 1, 1890, throughout the county of Camp, and for the entire county, at which said election local option was defeated for the entire county.

As to the first proposition, we are cited to article 3236 of the Revised Statutes (Willson's Crim. Stats., p. 120), with regard to subsequent elections after local option has once been adopted, which provides that “ no election under the preceding articles shall be held within the same prescribed limits in less than two years after an election under this title has been held therein; but at the expiration of that time the Commissioners. Court, whenever they deem it expedient, may order another election,” etc.

The contention is that the statute prohibits the court from ordering a. second election until the expiration of two years from the date of the first, election. The first election for precinct Mo. 1 was held the 24th of August, 1887. The order for the second was made by the Commissioners Court before the expiration of two years, and the election was held on the 27th of August, 1889, just three days after the expiration of the two years. It is insisted that the order being contrary to and prohibited by law was a nullity, and that the election held under and by virtue of it was void.

Suppose we concede this position to be correct. What then? If the last election was void, then it did not affect the first in any manner, bnt left local option existing in the precinct under and by virtue of the first election. In either aspect of the case local option, in our opinion, was still a valid subsisting law in said precinct when the election for the entire county was held on March 1, 1890.

Did this election on March 1, 1890, for the entire county, and which resulted in the defeat of local option as to the entire county, repeal the law which was existing at the date of said election in precinct Ho. 1 of said county?

We think not. And such was the construction given by us to the old law. Whisenhunt v. The State, 18 Texas Ct. App., 491; Woodlief v. The State, 21 Texas Ct. App., 412.

Under the law as it now is since the amendment of April 1,1887, such construction is, if possible, made more clearly to appear as in harmony with the legislative intention. It is evident to our minds from the reading of article 3238 of Sayles’s Civil Statutes that the Legislature intended that the failure to carry prohibition in an entire county should in no wise affect the rights and interests of the people residing in the justice precincts, cities, or towns in the county. The failure to carry it in the entire county would leave the status of any of these subdivisions of the county just as it was before the county election was held. If local option already existed, it would still remain in force; if it did not exist, the subdivisions could immediately claim another election for their locality without waiting for the expiration of two years. It is only when local option has leen carried for the entire county at an election for the entire county that such a law takes the place of and supersedes the law of any of the subdivisions of the county. Rev. Stats., art. 3238; Dawson v. The State, 25 Texas Ct. App., 670.

Our conclusion is that local option was legally adopted in precinct Ho. 1 of Camp County, Texas; that it has never been repealed, but is still in. force, and that the appellant is amenable for any violation of the same.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.