83 S.W. 831 | Tex. Crim. App. | 1904
Applicant seeks his discharge upon the ground that the local option election, for the violation of which he is under arrest, is void, because notices were not given in accordance with the provision of the act of the last Legislature, commonly designated, the "Terrell Election Law." Under that law notices of special elections are required to be published in a newspaper for twenty days prior to the date of the election, if there be such paper; if not, then by posting for twenty days such notice at each voting place in the territory in which the election is to be held. This law was not followed in this respect in the territory where applicant is charged with violating the law. The requisite notice for local option elections is by posting notices at five places for twelve days prior to the day of the election in the territory in which such election is to be held. The terms of the local option election law, in regard to notices must be followed as a prerequisite to the validity of the election, unless such law has been repealed by the Terrell Election Law. The question here is, has such a repeal been effected; in other words was the local option law in regard to notice repealed by the later general law. We have answered this in the negative in Ex parte Keith, decided at the present term. See that case, as well as the concurring opinion of Judge Henderson. Also Ex parte Kimbrell, decided at the present term.
Repeals by implication are not favored, and under this rule, in order to effect a repeal, the conflict between the two laws must be irreconcilable. This rule applies more particularly to cases where the two laws are of the same class or nature, or of the same character of legislation. But where one law is general in its application, and the other special or local, the rule is different; it is still more rigid and stringent. Special laws and legislation to be made operative by the voters of a particular locality and laws of kindred character, are not repealed by general laws, unless specially mentioned in the general law, or such purpose is made manifest from the plain provisions of the general law. Ellis v. Batts,
An inspection of the Terrell Election Law will manifest the fact that no mention of the local option laws is to be found; nor is it to be gathered from the provisions of that law that the evident intent or manifest purpose of the legislature was to repeal any of the provisions of the local option law in respect to the matters here under discussion. Nor are the two laws in any way inconsistent. Such has been the view taken on this subject by this court in Shileds v. State, 38 Tex.Crim. Rep.; and by our appellate civil courts in Voss v. Terrell, 34 S.W. Rep., 170, and in Roper v. Scurlock, 69 S.W. Rep., 456. It was held in those cases that the general law in regard to notices of special elections did not apply to local option elections; and that in this respect there was no repugnancy or conflict between the general and the special law. These decisions were well understood by the Legislature at the time the Terrell Election Law was present. It is the rule and has been since local option became part of our constitutional and legislative systems that whenever and wherever local option laws are in vogue, or are in opposition to the general law, that such law supersedes and prevails, while existent, over the general law. That the local option laws in this State have been enacted under this idea, will not admit of discussion or doubt. This idea has been carried to the extent that when put into operation in a given territory, the local law remains in full force until voted out of such territory by those who have the right to vote on the question, despite all alterations or changes of such local law by subsequent legislation. This has been the rule throughout the history of local option legislation in this State. It has been even held that an alteration of the punishment by subsequent legislation cannot affect the territory already under the operation of the prior local option statute; and the Legislature is powerless to repeal such prior laws so as to change such status in the territory where the law is in force at the time of the change. This is and has been as well understood as is the fact that local option is a part of our constitutional and legislative system. Therefore, before the courts will be justified in holding the general law as repealing the prior local option statute in regard to election notices, there must be express mention of that purpose in the general law, or if not, then that intent must be so clearly manifest that no doubt is left, and such purpose to repeal must be made to appear unequivocally and with certainty. This purpose is not manifest, nor is it even apparent. The two laws can exist without conflict as they have from the beginning; and there is no reason made to appear why this well understood rule should be changed or that it was the legislative intent to change it. We are of opinion, therefore, that the law was properly put into operation, so far as notices are concerned, and that the failure to give the notice required by the Terrell Election Law, does not in any way affect the validity of that election. This is an original application before this *444 court for the writ of habeas corpus, which was granted and set down for hearing. After a careful revision of the matters involved, we do not believe applicant is entitled to his discharge, and he is accordingly remanded to custody.
Remanded to custody.
