Sasser v. State

Being unable to concur in that part of the opinion holding that prohibition is not in force in precinct No. 5 in Marion County, we will state our reasons for so holding. The record discloses that the Commissioners Court of the county on September 5, 1910, ordered an election to be held September 24, 1910; that in accordance with said order the election was held on that day, and thereafter the Commissioners Court met and tabulated the returns, and declared the result showing that the vote was unanimous for prohibiting the sale of intoxicating liquors, being 105 for and none against. The record further discloses that the following publication was had in the Jefferson Jimplecute:

"Order declaring result of local option election held in and for justice's precinct No. 5 of Marion County, Texas, on September 24, A.D. 1910.

"Whereas, an election was duly and legally petitioned for and ordered to determine whether or not the sale of intoxicating liquors should be prohibited in justice precinct No. 5 of Marion County, described and bounded as follows, towit: (See original boundary in Commissioners Court records.)

"And, whereas, said election was by the Honorable Commissioners Court of said county, on September 5, 1910, duly and legally ordered and held on Saturday, September 24, A.D. 1910; and, whereas, the result of said election were duly made to said Commissioners Court, and were duly opened and counted on the 8th day of October, 1910, and it appearing to the court that a majority of the votes cast at said election held in said precinct on the day aforesaid were for and in favor of prohibition, it is therefore now ordered by the court that the sale of intoxicating liquors within the limits of said justice precinct No. 5 of Marion County, Texas, as heretofore defined by metes and bounds, be and the same is hereby absolutely prohibited, except for the purposes and under the regulations specified by the law, title 69, art. 3385 of the Local Option Laws of Texas, until such time as the qualified voters of said precinct may by a majority vote, otherwise decide. The total number of votes cast at said election was 105. The number for prohibition was 105. The number against prohibition was none. It is hereby declared by this court that the result of said election held on September 24, 1910, is that prohibition has carried in said precinct No. 5, by a majority of 105 votes.

"It is further ordered that this order declaring the result of said election shall be published for four successive weeks in some newspaper published in Marion County, Texas, to be selected by the County Judge of Marion County, Texas, for that purpose.

"It is further ordered that the sale of intoxicating liquors, except as hereinbefore mentioned, within the above described justice precinct No. 5, of Marion County, Texas, shall be absolutely prohibited, and that said prohibition shall begin and take effect immediately, and shall be enforceable from and after the date of the last aforesaid publication of this order.

"R.A. Loomis, "County Judge, Marion County, Texas."

It further appears that this publication was made in the paper selected by the county judge, and for the length of time required by law. It apparently appears that more than three years after the election had been held and result thereof declared, for the first time the contention is made that the order declaring the result is insufficient in law to put prohibition in force, as the minutes of the court do not specifically show that in declaring the result they at that time entered an order prohibiting the sale of intoxicants, although the publication shows such an order was made. That is, though it appears that such an order was made, the failure of the clerk to enroll it on the minute book prevents prohibition going into effect until he does so enroll, and another publication had. We are frank to admit that the decisions of this court rendered prior to 1907 would support such contention, and this was the reason for the Legislature passing an Act that unless a contest of the election is instituted"within thirty days after the result has been declared" it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding upon all the courts. (Art. 5728, Rev. Stats.) And in this article it is provided that the District Court shall have jurisdiction to try and determine all matters connected with said election, including the petition for the election and all proceedings andorders relating thereto, embracing final count and declarationand publication of result putting local option into effect, etc. So it is thus seen that the Legislature provided that all matters relating to the sufficiency of any of these steps must be contested within thirty days after the court has declared the result, and if it is not done the courts must conclusively presume that all necessary legal steps were taken. If one three years after the result has been declared can contest the sufficiency of the order declaring the result and prohibiting the sale, then why not contest the sufficiency of the petition for the election, the sufficiency of the order ordering the election, the fact that the notice had not been posted, or any other step provided in the law? This law was intended to put an end to all these matters after the lapse of time provided for the contest, and it has been so held in an unbroken line of decisions by this court since the passage of the Act.

This court, in the case of Evans v. State, 55 Tex. Crim. 450, held that this Act of the Thirtieth Legislature, regulating the contest of local option elections and providing for the conclusiveness thereof, was constitutional, and "it follows therefore that the court did not err in refusing to permit appellant, after the expiration of sixty days, to introduce evidence going to show irregularities or defects in the initiatory steps necessary to place local option into effect. It was proper for the court to have the county attorney to introduce sufficient number of the orders of the Commissioners Court to show that the county had adopted local option. It was also proper, as stated, to refuse to permit appellant to contest the validity of said orders after the expiration of the sixty days."

In Doyle v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 815, it was held: "It is contended, among other things, that the precedent steps necessary to put local option in force in Johnson County had not been complied with, and that for many reasons, urged in bills of exception and insisted on in brief of counsel, said election was invalid and nugatory. Whatever we might conclude in respect to these several matters, in the absence of the statute passed by the Thirtieth Legislature (Acts 30th Leg., c. 8), requiring contests to be made of local option elections theretofore or to be thereafter held, it is sufficient to say that, in the absence of a contest, we must and shall assume that the judgment and decree putting local option in force and the proclamation of the county judge had the effect to institute the law in that county, and that this presumption and conclusion are conclusive on us and on appellant."

In Harrymon v. State, 53 Tex.Crim. Rep., it was held, "Where upon trial of a violation of the local option law it appeared that the publication was made as provided by law, the court correctly charged the jury that the sale of intoxicating liquors was at the time prohibited in said county."

In Alexander v. State, 53 Tex.Crim. Rep., it was held: "Various objections to the orders of the Commissioners Court are in the record, but under an Act of the Thirtieth Legislature that went into effect August 11, 1907, which provides that contests of elections where the local option law was in force at the time the act was passed should be contested within sixty days, none of the objections to the orders can be considered. The record shows there was no civil contest of the local option law. For a discussion of this matter see Wilson v. State, 107 S.W. Rep., 818; Hardy v. State, 52 Tex.Crim. Rep., 107 S.W. Rep., 547."

In the case of Ex parte Thulemeyer, 56 Tex.Crim. Rep., where it was contended that no order appeared on the minutes of the Commissioners Court showing a creation of the justice precinct in which it was alleged that an election had been held and prohibition had been adopted, it was held that his remedy was by contest of the election under the above provisions of the statute, and the question could not be inquired into on habeas corpus.

In the Jerue case, 57 Tex.Crim. Rep., it was held: "The other question relates to the supposed invalidity of the local option election under which appellant was sought to be held, for the reason, in substance, that the notice of the election was not completed and published in the manner required by law. Since the passage of the Act of the Thirtieth Legislature, in respect to contests of local option elections and the presumption of validity, in the absence of such contest, this point is no longer available to appellant."

In the case of Wesley v. State, 57 Tex.Crim. Rep., it was held: "Many of the questions raised on the appeal relate to the sufficiency of the orders, judgments and decrees of the Commissioners Court of Howard County putting local option into effect. Since there was no contest as provided by the Act of the Thirtieth Legislature, these matters can not be considered by us, but we must assume and hold, as the court below did, that the law was in all respects regular and valid." See also Coleman v. State, 53 Tex.Crim. Rep., 112 S.W. Rep., 1072; Gipson v. State, 58 Tex.Crim. Rep.; Wilson v. State, 107 S.W. Rep., 818; Hardy v. State, 52 Tex.Crim. Rep., 107 S.W. Rep., 547; Romero v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 859. Many other cases might be cited in which it is held that after the lapse of time in which a contest may be filed, no question can be raised as to the sufficiency of the petition, the sufficiency of the order ordering the election, or any other order made by the court, but we do not deem it necessary to do so, and will only add that in no event would this render invalid the election, but if in fact the order putting in effect prohibition in that precinct is not of record in the minutes of the court, the court can now enter up an order in its minutes so declaring, and no other election would be necessary. Crockett v. State, 40 Tex.Crim. Rep..

Another matter we would mention is that while it was not permissible for Judge Stallcup to answer the question as he did, yet under the facts in this case it was permissible to ask him if he knew the reputation of appellant as a bootlegger of whisky in prohibition territory where he lived, and if he answered that he knew it, it would then be permissible to be asked if it was good or bad, and the witness answer good or bad as the facts authorized, but on direct examination he could not tell what others had said to him.