Ex Parte Segars , 32 Tex. Crim. 553 ( 1894 )

Relator was charged, by information filed in the County Court of Brown County, on the 26th of December, 1893, with violating the local option law then in force in a certain subdivision of Brown County, by selling intoxicating liquor. He was arrested, under a capias issued out of the said court, on the said 26th of December, 1893, and on the same day filed his petition for a writ of habeas corpus before the Hon. Charles Rogan, the county judge, alleging simply that he was illegally restrained of his liberty, and setting up no grounds therefor. After the return of the sheriff, the cause was duly heard and the prayer of the relator denied, and he thereupon appealed. It will not be necessary to discuss the various questions raised in appellant's brief. We will only consider those mainly relied upon by him for reversing the judgment below.

1. The relator claims the local option district which embraces the city of Brownwood and a portion of the county lying around said city was not legally defined and designated by law. That the district or subdivision should first have been designated by the County Commissioners Court before an election was ordered. We think that the subdivision was clearly defined, as required by the statute. The record shows, that in the petition, signed by 230 names, the limits of the proposed subdivision were specifically set, out, as required by article 3227 of the local option statute of March 29, 1893, chapter 45. That the Commissioners Court, acting on the petition and entering the order of election, find that the petitioners are all voters of the county and State, and residing in the proposed subdivision, and in said order of election the metes and bounds of the proposed subdivision are fully set forth, and the time and places are also set forth as required by law. We think the law has been, in this respect, fully complied with. Tummins' case [ante, 117], relied upon by counsel, has no application to the case at bar. In that case no boundaries were fixed and the election was void for uncertainty. Here they were definitely and clearly fixed.

2. Relator insists that the local option law passed in 1893 is invalid, because it purports to be an amendment of the Revised Statutes title 63, when in fact the said title had been repealed by the local option law of April 1, 1887.

As a matter of fact, title 63 of the Revised Statutes of Texas was not repealed by the Act of April 1, 1887, but certain articles only were amended, and a new article, to-wit, 3239a, was added by said act. These amendments and addition then became a part of the Revised Statutes, made so by the very terms of the amending statute, by which it is declared, "that articles 3227, etc., of title 63 of the Revised Civil Statutes of the State of Texas, be so amended as to read as follows;" then follow the amended articles. Acts of 1887, sec. 1, p. 96. The contention here is, that the caption and first section of the Act of 1893 should have declared it to be "An act to amend title 63 of the Revised Statutes as amended by the Act of April 1, 1887." While it is true that the caption and first section should properly have so stated, we do not think its failure in that respect invalidates the law. For while the caption does not, in express terms, refer to the Act of 1887, it unquestionably means the Revised Statutes as amended by that law, because among the articles set forth in the caption, which the Act of 1893 seeks to amend, is article 3239a, which was added by the Act of 1887. But were it not so, we would presume that when the caption referred to "the Revised Statutes" it meant the Revised Statutes as amended by subsequent amendatory statutes. In Oshe v. The State, 37 Ohio State, 501, the court says, at the time of the passage of the amended section it took the place of the original section in the revision, and was thereafter the only section 6941 of the Revised Statutes in force, and the reference to the Revised Statutes must be understood as referring to the only statutes in force. See, also, State v. Brewster, 39 Ohio St. 653; McKibben v. Lester,9 Ohio St. 628; Blakemore v. Dolan, 50 Ind. 194.

The Act of 1893, chapter 45, is intended to be a revision of all the articles of title 63 of the Revised Statutes relating to local option. It is carelessly drawn in several particulars, arising from the fact that the amendments were made to Sayles' Revised Statutes, and not to the Revised Statutes themselves. Thus two articles, to-wit, 3239b and 3239c, which were added by the Act of 1893 itself, are stated in the caption and first section to be a part of title 63, which was then being amended by said act. But there is no question as to the intention of the Legislature in the matter. And if the mistake as to the two articles could be held to be material, it could not affect the rest of the statute. Titles to acts, especially criminal acts, should receive a liberal construction. Nichols' case, ante, p. 391.

3. But relator claims that the Act of 1893 is inoperative and invalid, in that it provides no penalty, and can not therefore be enforced. Article 3239 of said act declares, that any one violating the local option law shall be punished as prescribed in the Penal Code. The contention here is, that the penalty provided for by the Penal Code for a violation of the local option law, to-wit, article 378, has been repealed by the Act of 1887, chapter 90, page 70, which has prescribed different penalties for different violations, and repealed the old penalty. For the reasons above stated, "the Penal Code" referred to by article 3239 of the Act of 1893 is "the Penal Code" as it stands amended by the Act of 1887. By reference to said act, there is no difficulty in understanding what penalty has been prescribed for the offense of which appellant stands charged, to-wit, selling intoxicating liquors in violation of the local option law in the subdivision of Brown County in which it is declared to be in force.

4. We do not think the irregularities complained of in the election are sufficient to set it aside. It does not appear that there has not been a fair expression of the will of the people. The only irregularity presenting any seriousness is that the voting place in ward 2 was held on another street, two blocks away from the place designated in the order. Now if irregularities attending a local option election can be set up as a ground of avoiding the election after the expiration of the thirty days specified in article 3239a, we do not think the present showing sufficient to do so. It does not appear that any voter was deprived of his vote, nor was the change attributed to any fraudulent or improper motive; nor does it appear that the change was not known and concurred in by all the voters in ward 2. Indeed, by comparing the votes cast at the local option election in the several wards of the city of Brownwood, which is included in the subdivision, with the votes cast in the same wards at the general election in November, 1892, we find that a larger proportionate vote was cast in ward 2 than in the other wards, and the majority wasagainst prohibition. In Ex Parte Kennedy, 23 Texas Criminal Appeals, 77, the election was set aside because there were no election notices served as prescribed by the statute, and no election was held in one of the precincts on account of this failure; and it was shown that a sufficient number were thereby disfranchised as might have changed the result if they had voted. There is no such showing in the case at bar.

5. We have carefully considered the questions presented in the able brief of counsel, aided by his oral argument, but have reached conclusions variant therefrom.

The judgment of the county judge of Brown County is affirmed.

Affirmed.

Judges all present and concurring.