Stewart v. State , 35 Tex. Crim. 391 ( 1896 )

The appellant was convicted for violating the local option law. The information charges that the appellant, "on the 7th of October, 1895, and within the following described subdivision of Collin County, to-wit: [giving a description, by metes and bounds, of a certain portion of Collin County], did then and there unlawfully sell to Charley Wrenn intoxicating liquors; the sale of intoxicating liquors having theretofore, and being then and there, prohibited in said subdivision under and by the laws of said State." This constitutes the entire charging part of the information. A motion to quash the information was made by the appellant, on the ground that it was insufficient, as it did not charge any offense against the laws of the State of Texas. Before the local option law can be put into operation in a given territory, an election for that purpose must be held in accordance with the laws of this State. It is thus made a part of the description and definition of the offense that the election declaring prohibition shall have been held in accordance with the laws of the State of Texas; and in order, therefore, to convict a person of this offense, it must be alleged and proved that the election was so held. It must further be alleged that the order was made for that purpose, and due publication made as required by the statute. It is just as essential to allege and prove these constituent elements of this offense as it is to allege and prove the sale of the intoxicating liquors. While the act under which local option is authorized to be voted on is general yet it is so voted on in localities, and put into operation by special acts of legislation in the particular localities; and it is a general rule that courts do not take cognizance of such special acts of legislation, and in such cases such special acts must be alleged. In the case before us this was not done. The indictment does not inform us that local option was ever voted on in the metes and bounds, as alleged, in Collin County, nor that the result was ever declared by the Commissioners' Court, nor that the further step or publication was ever made, in order to put it in force. This should have been done, and because it was not done the court below should have quashed the indictment. See Sedberry v. State, 14 Tex.Crim. App., 233; Prather v. State, 12 Tex.Crim. App., 401. The judgment is reversed, and the prosecution ordered dismissed.

Reversed and Dismissed.