22 S.W. 409 | Tex. Crim. App. | 1893
Appellant was indicted for a violation of the local option law within the limits of the town of Springtown, in Parker County, and was arrested under a warrant charging him with said offense, and sued out a writ of habeas corpus before the Hon. A.J. Hood, Jr., county judge of Parker County, alleging, that he was illegally restrained of his liberty, for the reason there was no local option law in force in Springtown; that the said pretended election was wholly void, because of various grounds set forth in the petition. The case was duly heard by the county judge, who refused the prayer of the petitioner, and remanded him to the custody of the sheriff of Parker County, and relator thereupon appealed to this court.
It is only necessary to consider one of the grounds set up, to-wit, that the County Commissioners Court had no authority to order the election for local option in Springtown, because said town was not incorporated, and had no defined limits. On the hearing of this cause, relator proved, that on the 2nd day of May, 1884, thirty-four citizens residing within the proposed limits of Springtown filed an application in the office of the county judge of Parker County, praying for an election for incorporation, and an election was ordered to be held on May 24, 1884, and it directed one Ackard to hold the election. So far as is shown by the record, nothing more was done in the case. Ackard testified, he did not hold the election, but was absent in Jack County, and did not know that an election was held. It was further shown that there was no entry made by the county judge on the minutes of the Commissioners Court, or record of the entry on the deed record, as required by article 514, Revised Statutes, as the prerequisite of the incorporation. We think, in the absence of any showing by the State, that Springtown was not an incorporated town. Rev. Stats., arts. 506-515.
It is true that the local option law (article 3229) declares that local option may be adopted by the qualified voters of any town, but we think *119 it clearly means an incorporated town, with its fixed and defined limits. Under article 3229, Revised Statutes, the County Commissioners Court could order elections only in counties, justice precincts, cities, and towns. It could not order a local option election in any area less than it justice precinct, unless it was a town or city; that is to say, it was restricted to areas whose geographical limits or boundaries were already legally defined and designated. A town in this State, which has never been incorporated, has not legally defined boundaries, and there is no way of ascertaining who would be qualified voters at any local option election. The law declares that only those voters who reside within the limits of the town can vote (Revised Statutes, article 3229), and notice of the election is to be posted at five places within the proposed limits. Rev. Stats., art. 3230. Our conclusion is, that Springtown, so far as shown by the record, having never been incorporated, and its limits defined by law, there was no local option law in force at said place, and no grounds shown for detaining the relator in custody. The order of the county judge is reversed, and the relator dismissed from custody.
Reversed and dismissed.
Judges all present and concurring.
