Ex Parte Heyman

I dissent from the opinion of the majority. It has neither parallel nor precedent in the previous decisions of this court or of any court. It is in the face of the Constitution, instead of a construction of the same. It violates the statute authorizing the election herein under consideration. It is at variance with the previous decisions of this court since the adoption of the amendment to the Constitution in 1891; is at variance to the decision of the Court of Civil Appeals at Dallas, and is also at variance with the decision of the Court of Civil Appeals at Fort Worth.

Section 20 of article 16 of the Constitution provides: "The Legislature shall at its first session enact a law, whereby the qualified voters of any county, justice precinct, town, city (or such subdivision of the county as may be designated by the commissioners court of said county) may by a majority vote determine from time to time, whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." That portion of this section in parentheses was placed in the Constitution by the amendment of 1891. Prior to said amendment the Legislature had passed a law by which the commissioners court of its own motion, or upon proper petition signed by a number of legal voters, could determine from time to time in the respective subdivisions whether local option should be adopted or not. Then, there was an evident purpose on the part of the Legislature in submitting the amendment in question. That purpose must have been one of two: either the amendment authorizes the commissioners court to designate an arbitrary subdivision, or it authorizes the designation of a political subdivision. The most restricted view of the question that can possibly be taken is the latter. If the amendment merely contemplated the designation of pre-existing political subdivisions, then clearly the commissioners court could designate any pre-existing subdivision or any number of pre-existing political subdivisions. Subdivision means a smaller portion than the whole. Designate means "to mark out and make known; to point out to general knowledge; to indicate; to show; to call by distinctive title. To denominate; to name; as to designate the boundaries of a county. To point out by distinguishing from others — as to designate the more active rioters. To indicate or set apart for the purpose or duty." Then, under this provision the commissioners court are clearly authorized to make known, mark out and point out at least any political subdivision. Commissioners and justice precincts, cities and towns are recognized by the Constitution as political subdivisions of a county. If the commissioners court can point out any subdivision they may designate, then it is folly to say that they can not combine one or more justice precincts as they see fit. The insistence is seriously urged that the Constitution does not say "subdivisions" but "subdivision" — in the singular. One precinct of a county is a subdivision of the county, since it is a part of the whole; seven precincts would also be a subdivision. It is distorting instead of construing the Constitution to hold otherwise. The Constitution would be meaningless with any other construction. If prior to the amendment of 1891 the Legislature had authorized the commissioners court of its own motion to order an election for a county, a justice precinct, town or city, to hold that the amendment merely gives them this authority is rendering meaningless and senseless the amendment to the Constitution. Why should the amendment say that they can designate any subdivision, if the Constitution intended to limit them to the designation of one subdivision? This can not be a proper construction of our Constitution. I take it that under any possible view, the Constitution confers upon the commissioners court the power to order an election for six or seven justice precincts as a subdivision; or for one justice precinct; for the whole county, or for a town or city or commissioners precinct. In other words, this amendment was clearly intended to clothe the commissioners court with discretion in ordering the election.

Since the adoption of the amendment of 1891, the Legislature appears to have restricted the right of the commissioners court to political subdivisions. Article 3384, as amended by the Acts of the Twenty-fifth Legislature (1897), p. 235, reads: "The commissioners court of each county in the State, whenever they deem it expedient, may order an election to be held by the qualified voters of said county, or of any commissioner's or justice's precinct, or school district, or any two or more of any such political subdivisions of a county, as may be designated by the commissioners court of said county, to determine whether or not the sale of intoxicating liquors shall be prohibited in such county, or commissioner's or justice's precinct, or school district, or any two or more of any such political subdivisions of such county, or in any town or city; provided it shall be the duty of said commissioners court to order the election as aforesaid, whenever petitioned so to do by as many as two hundred and fifty voters in any county, or fifty voters in any other political subdivision of the county or school district, as shall be desiganted by said court, or in any city or town, as the case may be; provided, that if the precinct or precincts designated embrace within the limits an incorporated town or city, then such election shall only be ordered when the petition for the same is signed by qualified voters, not less than one-tenth in number of the total vote cast for Governor at the next preceding general election in such incorporated town or city; and in case an election is asked for a subdivision of said county, composed of two or more complete commissioners' or justices' precincts, or school districts, such petition shall describe such subdivision by metes and bounds, as well as by the proper numbers of such precincts or school districts; and said petition and the description of such subdivision shall be recorded in full in the minutes of the commissioners court, and such description shall be embraced in the notice given for such election; provided, that where a school district, city or town may be composed in part of two or more subdivisions of the county, named hereinbefore, the right to order and hold an election in such school district, city or town shall not be denied; and provided further, that no city or town shall be divided in holding a local option election for any of the other subdivisions named herein; nor shall any school district which has adopted local option be divided in a subsequent election, held for any other of such subdivisions covering a part of the territory of such school district."

Waiving the question as to whether this limitation, in the light of the Constitution, is proper or not, then I believe thaf clearly within the letter and spirit of the above quoted article, the act of the commissioners court ordering the election under consideration was entirely constitutional, though ordered for seven justices' precincts. The majority insist that the commissioners court can order an election for one commissioner's precinct, usually it contains two and a part of a justice's precinct — yet the commissioners court is impotent to order an election for three justices' precincts. No rational reason can be given for such a tortuous construction. By what process of reasoning can it be said that a commissioner's precinct is a political subdivision and a justice's precinct is not, in view of the fact that the very article of the Constitution under consideration mentions justice's precincts and does not mention commissioner's precincts, I am at a loss to know.

In Oxford v. Frank, 5 Texas Ct. Rep., 941, the Court of Civil Appeals at Fort Worth, in a very learned opinion, clearly uphold the right of the commissioners court to order an election under the above article for as many political subdivisions of a county as the commissioners court may see proper. However, it is insisted that this case was overruled by Norman v. Thompson, 6 Texas Ct. Rep., 607. In the latter case the Supreme Court held that on the contest of elections the civil courts merely had the right to pass upon the accuracy of the vote, rather to count the votes and ascertain how the majority stood, and did not have the right, under the statute on the question of contesting elections, to pass upon other questions than the one stated. Be this as it may, the reasons of the learned judge in that opinion are cogently expressed and commend themselves to any one passing upon this question.

Reverting to the constitutional provision under consideration. It is desired to ascertain what is a subdivision. Judge Davidson answers this question in Nichols v. State, 37 Tex. Crim. 546, at least does so inferentially — using the following language, quoting from Spiegel v. State, 34 Tex. Crim. 465 : "We now hold that where the election is for the entire county or for any justice precinct in the county in its entirety or for any town or city therein, it is not necessary to set forth the metes and bounds thereof, either in the minutes of the commissioners court or in the notice to be given for the election; and only where it is some subdivision of the countydistinct and different from a justice precinct or a town or city is such description necessary. These latter, it is true, are, in a sense, subdivisions of a county; but they are alreadydesignated, and their boundaries matters of record, and are known, and it is sufficient merely to name the justice precinct or the town or city to be affected." Here is a clear statement, I take it, of the fact that if the commissioners court designate any arbitrary portion of a county, it is a subdivision of the county, as contemplated by the Constitution. Spiegel's case, referred to, was rendered by Judge Henderson. So, both members of this court rendering the majority opinion herein hold that any portion of a county is a subdivision whenever it is so designated by the commissioners court. And again, in Ex parte Brown, 34 S.W. Rep., 131, this language is used: "Prohibition in article 3236 applies to counties, cities or subdivisions of a county, and that an election can not be had, whether prohibition carries or is defeated, until the expiration of two years thereafter. This means where the precise territory is to be affected, and has no reference to carving below the extent of such territory. The last act gives to the commissioners court the right to carve out such territory as they may deem proper; it may be taken from two or more adjacent precincts. When carved it is treated as a separate and distinct subdivision of the county for local option purposes." This opinion was rendered by Judge Hurt, in 1896, and concurred in by the full court. Judge Henderson, in Williams v. State, supra, uses this language: "As strengthening this position, appellant urges that if the local option election is to be held in either of said known precincts, it would require a petition signed by fifty voters, and if the two can be embraced as is done in this case, that the petition of fifty voters can accomplish, when they are designated as subdivisions, the same object it would require one hundred voters if they petition or vote singly. While this may be true, to our minds it furnishes no reason why the two precincts, or even more territory short of the whole county, can not be embraced in the order and authority vested in such subdivision to vote upon local option upon a petition of only fifty voters of such county, for, as we understand it, so the law is written. As we construe the law it is only necessary that the petition be signed by fifty voters, except in two contingencies; one is where the local option election is for the county, and the other is where it is an incorporated town," etc. Here again we have the definition of subdivision, and here again we have a declaration by this court upholding the inherent right of the people through the commissioners court to hold an election for a subdivision regardless of the fact that local option had or had not existed in part of the designated territory.

In Kimberly v. Morris, 31 S.W. Rep., 809, Lightfoot, C.J., one of the purest and ablest judges that ever adorned the bench in Texas, in passing upon this question, said: "Undoubtedly one of the objects of the Legislature in passing the statute of 1893, was to meet the construction of the old statute by a majority of the court in Whisenhunt's case, 18 Texas Crim. App., 491. In any event the statute of 1893 did meet it and there can be no question of the proper construction of the letter of the statute. There can be no more reason for holding a precinct has such a vested right as would prevent the entire State voting on prohibition. If such a rule would prevail it would present the novel aspect of a very small fraction or subdivision of the State, to wit, a county or subdivision of a county, thwarting the will of the people of the whole State. It is true that State prohibition would not come under the same section of the Constitution; but the question of vested rights would be the same. In this case neither precinct number one, nor precinct number two, nor the people of such precincts, acquired any vested right to the result of an election under the law. The law itself charged them with notice that a different result might be reached by a vote of the people of the whole county." But it may be suggested that this decision was rendered under the Act of 1893, where the Legislature, in compliance with the constitutional provision under discussion, had awarded to the commissioners court the right to make arbitrary subdivisions. But the same reasoning applies with reference to the Act of 1897, since said act merely limits the power of the commissioners court to political subdivisions. There is not a jot or tittle in the local option law that grants or awards an anti or a pro, as is sagely suggested by the majority opinion, any rights whatever. It is not required that one should be an anti or a pro to petition for the election; he may be either; he may be neither; but if he is a qualified voter in the county or territory to be affected he can petition for the election. He has no vested right to the continuance of the law, except where the law for that particular territory alone is to be affected. If the commissioners court upon petition or upon its own motion, deem it proper to order an election for a larger territory, it has a perfect right to do so, and the election would be valid, regardless of the fact that a portion of the territory for which the election was ordered might then have local option; and might, if the last election was not held, have a right to vote for their particular territory within a week after the last election. The majority opinion recognizes this principle as correct in relation to the county. That is, they concede that if a precinct has local option, and the two years is nearly up, if an election is ordered for the county, and it goes in favor of prohibition, this bars the precinct from holding an election. Now, if the precinct has a vested right in holding another election within the two years, there is no justice or reason or law for saying that a county can take this right away, any more than there is for saying that a larger subdivision can do so.

The majority rely with great force upon Elliott's case, 7 Texas Ct. Rep. 59. The construction placed upon it was never dreamed of by any member of this court at the time of its rendition, and this statement will be borne out by the presiding judge of this court. In this decision the principle laid down in Dawson v. State, 25 Texas Crim. App., to the effect that where a certain territory adopts local option that that particular territory must vote it off, was clearly upheld. School district No. 54 attempted to hold an election in this case, part of its territory being in a dry justice precinct and part in a wet justice precinct. The court held the law inoperative and void, on the theory that if the election went wet it would destroy the election in the dry precinct. This violates the very letter of the decisions cited, and relied upon by the court in the rendition of the majority opinion. Under the majority opinion, I take, it now that a school district has a constitutional right to hold an election for local option purposes; and if the construction placed upon the Elliott case, supra, is correct, this would depend upon the status of the respective justices' precincts in which the school district might lie as to whether the commissioners court could order it or not. The writer says that, if the construction placed upon the Elliott case is correct, then he did not so understand the decision at the time it was written, nor does he so understand it now. But, if the majority's construction be correct, then it violates both the Constitution and the decisions cited to support it. It follows that the case of Kidd v. Truett, 68 S.W. Rep., 310, is the correct exposition of the law on this question.

In Rippey's case, 68 S.W. Rep., the principle here contended for was reannounced; and the decision in Ex parte Fields,39 Tex. Crim. 50, was again upheld. That is, if a precinct adopts local option it stays local option, so far as that precinct is concerned, until voted out at the expiration of two years. But the county can order an election, or any larger subdivision of the county than that precinct can order an election including that precinct.

But it is seriously insisted that the constitutional question under consideration has never been passed upon by any of the decisions cited by the majority of the court or by the writer. No better answer need be made to this than the fact that the Constitution is so plain and simple that it needed no construction, and all of the decisions in passing upon the validity of the statutes under consideration conceded their constitutionality, and were merely called upon to construe the validity of the statute. In no case before this court was the question ever more thoroughly discussed or more research and ability displayed in assailing the validity of the statute and the constitutional provision than the Rippey case, supra; and yet no one questioned the constitutional provision under consideration, but the sole insistence was that it did not accord to the citizens the equal protection of the law, etc., in ascertaining their wish and will about local option. But it is sagely suggested that the constitutional provision does authorize the commissioners court to order a local option election for commissioners precincts and school districts. If this had been the intention of the Constitution, instead of saying "or such subdivision of the county as the commissioners court may designate," the amendment to the article under consideration would have said, "or other subdivision of the county." When met with the incongruity that two or more justices' precincts may be contained in a commissioner's preprecinct, the majority use the pedantic declaration "ita lex scripta est." The only answer necessary to this is that the law is not so written. It is a well known aphorism of the law. that that can not be done indirectly which can not be done directly. If the Constitution did not intend to permit the commissioners court to order an election for the two or three precincts, as they might see fit, they certainly would not have been authorized to allow an election for a commissioner's precinct, which contains two and one-half justice's precincts. As a court it is not proper to say whether legislation is wise or not. The statute does not recognize, in authorizing an election, whether part of the territory to be affected is then under local option or not; but its clear mandate is that the commissioners court may order an election for two or more political subdivisions. I think this, as indicated above, is the most restricted construction that could be given to the constitutional amendment. There might be serious argument to the effect that the Legislature had transcended its power in limiting the election at the instance of the commissioners court, to political subdivisions, since the Constitution authorized an election for such subdivision as the commissioners court may designate. I agree with the majority that Judge Marshall is correct in saying, "that constitutions must be construed according to their plain signification;" but clearly I disagree as to the applictaion of this salutary rule of construction. I do not think that the provision under consideration can be tortured into a construction that would authorize anyone to say that the Constitution intended to give to the commissioners court power to "create" subdivisions. No power, save Omnipotence, can "create" land; but it is a simple act, clearly within the purview and power of the commissioners court to point out and designate a subdivision of a county for local option purposes. So believing, I wish to enter my dissent from the majority opinion.