21 S.W. 684 | Tex. Crim. App. | 1893
Lead Opinion
Affirmed.
HURT, P.J., concurs. SIMPKINS, J., absent. *21
Dissenting Opinion
I can not concur in the opinion of the majority. The local option law requires the result of the election to be published for four successive weeks in the county newspaper. Rev. Stats., art. 3234.
The result of the local option law in Rockwall County was published for three successive weeks in the Rockwall News. At the end of the third week, to-wit, September 30, 1892, the district judge granted a temporary injunction restraining thefurther publication of the order. After a lapse of six weeks, to-wit, November 17, the injunction was dissolved, and the order declaring the result was again published one week longer, completing the four weeks required.
The question in the case is, Has there been a publication forfour successive weeks of the order of the court declaring the result as required by article 3234?
If I understand the argument of the Assistant Attorney-General, adopted as the opinion of the majority, the six weeks in which the publication was restrained by injunction of the District Court is not to be computed, but the statute is held complied with, and the order was deemed published for four successive, although six weeks elapsed between the third and fourth week: first, because this case is like the cases of limitation in which the time of limitation or absence are not computed; second, that appellant in this case enjoined, and can not take advantage of his own wrong.
How such reasoning applies to the question at issue I am at a loss to determine. As between private litigants, it is a general rule, that the statute of limitation does not run pending litigation; and when one sues out an injunction against the enforcement of a claim he can not set up the limitation that by his own act has intervened pending the injunction.
This, however, is not the enforcement of a claim or cause of action, but the adoption of a public law. The question here is, Has the local option law become of force in Rockwall County by compliance with the local option statute, requiring a publication of the order declaring the result of the election for four successive weeks?
If the law is of force, it is because it has been legally adopted and legally published, and it must be in force not only against the one who injoined it, but all other persons living within the local option district.
It is not now an open question in this court, that the various steps required in the adoption of a local option law must be substantially complied with, and it will not be denied, that the order declaring the result is a necessary step. It is the promulgation of the law. The statute declares it must be done by publication for "four successive weeks." There can be no misunderstanding of the words. We have no right to take from nor add to the statute. If from any cause the publication is interfered *22 with, it must be begun again until the law is complied with. But it is insisted, that this construction may enable parties opposed to the law to sue out repeated injunctions and prevent successive publications, and thereby nullify the law. Such a condition of things can not legally exist, and if it could, I could not hold that a publication of four weeks, scattered byinjunctions, over a period, say, of over a year, was four successive weeks."
The difficulty in the case does not lie in the law itself, but in the interference with it. It is certainly difficult to understand upon what ground an injunction can issue, as in this case, against the publication of the order declaring the result. If the law was void by reason of any mistake, failure, or fraud in any of the prior steps necessary for its adoption, a publication of the result could have added no force or efficiency; whereas, if all the prior steps were valid, the court, by enjoining the publication, lends the power and process of the court to thwart the will of the public.
It should not be forgotten that a plain and equitable remedy is provided in the law itself. Under article 3239a. of the Revised Statutes, ample provision is made for the contest of the result of the election, and the grounds set forth upon which the contest must be made. This contest must be filed before the expiration of the thirty days during which the publication is carried on. Now when the contest is filed, there can be no possible necessity for an injunction; for the publication not being completed, the law can not be enforced; and when completed, the contest being previously instituted is then pending, and ipso facto suspends the operation of the law, which, if found on contest not to be legally adopted, a new election is ordered. I am therefore of the opinion, that the law can not be legally nullified by district judges interfering with the publication of the order. That it may be done illegally is no reason why I should disregard the requirement of the statute in holding, that the four successive weeks need not be successive when there is illegal judicial interference. I think the rehearing should be granted upon this question. I concur in the other points decided.