No. 508. | Tex. Crim. App. | Jan 30, 1895
Appellant was convicted of selling liquor in a local option precinct in Ellis County. The State introduced in evidence the order for the election in precinct 8 of said county. To its admission appellant objected, upon the ground that said order did not require or authorize the posting of notices of such election in said precinct. This election was held under the law as amended by the Act of 1887. By that act, it is not necessary that the order for such election shall contain anything in regard to the notices to be posted preliminary thereto. The order being made, the law makes it the duty of the clerk of the County Court to post or cause to be posted such notices. His authority was full and complete, and this duty was imposed upon him by the statute, without being authorized or commanded to do so in the order for the election.
It is contended by counsel for appellant, that the Act of 1893 requires the order for the election to expressly authorize or command the clerk to post such notices. Two answers to this proposition may be made: (1) This election was not held under the Act of 1893; (2) said act does not require the order to contain any such matter. Acts 1893, pp. 48, 49, sec. 3229. It appears from the record, that before the sale was made an election had been held under the Act of 1893 for the entire county, which resulted in the defeat of prohibition. It is contended this defeat abrogated the law in precinct 8. In other words, if local option is legally in force in a precinct, made so by election in that precinct, that a subsequent election, held for the entire county, resulting against prohibition, has the effect to repeal or abrogate local option in that said precinct. To this proposition we can not agree. By reference to the various provisions of the local option statutes, we are informed that the people of the entire county can not express their *106 views upon this subject so as to defeat or repeal local option in any subdivision of the county. Nor can the people of a precinct by vote defeat prohibition in any subdivision of that precinct, town, or city. The county may force prohibition by a vote over precincts which are not in favor of it, and so may a precinct over cities, towns, or subdivisions thereof that may not be in favor of it, but can not force, by vote, repeal of it in any town, city, or subdivision thereof. The people of the county, outside of the territory to be affected, have no right to vote at all as to the law in that subdivision. Again, the people of the county have never voted on the proposition that local option should or should not prevail in precinct 8. They voted on the proposition whether prohibition should prevail in the whole county. A great many voters might oppose prohibition for the county, and yet heartily support it for precincts in which they have no police force, as well as for other reasons sufficiently cogent to their minds.
Counsel contend the election was void in precinct 8, because not conducted under the Act of 1893. There is no contention that it was not held strictly in compliance with the law in force at the time the election was held. We do not concur in this view. If counsel be correct, every officer elected for a term of years would be deprived of his office should the Legislature change or modify the laws relating to elections during the term. We understand the amendments to the local option law simply provided for the manner of holding these elections from the time the law went into effect as to future elections, and did not relate to previous elections, nor have a retroactive operation, so as to repeal local option wherever it then existed. If counsel be correct in these propositions, then local option was repealed wherever throughout the State it prevailed when the Act of 1893 went into effect, unless they were held in conformity with a law that did not exist. It is also contended, that the Act of 1893 repealed the Act of 1887 in so far as it relates to punishment for violating the local option law. This is not well taken, as held in Ex Parte Segars, 32 Texas Criminal Reports, 553. Besides, the punishment for violating this law in a precinct was most clearly fixed by law at the time the sale herein occurred.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.