Abbott v. State

• Decision Date: 09 May 1900
• Citation: 57 S.W. 97
• Parties: ABBOTT v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

57 S.W. 97

ABBOTT v. STATE.¹

Court of Criminal Appeals of Texas.

May 9, 1900.

Appeal from Bosque county court; H. C. Cooke, Judge.

A. P. Abbott was convicted of violating the local option law, and appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted for violating the local option law, and his punishment assessed at a fine of $25 and 20 days' confinement in the county jail.

In bill No. 1, appellant complains that the court erred in admitting the order for the election, the order declaring the result, and the county judge's publication of the same, because the election was ordered at a special session of the commissioners' court, when that body was sitting as a board of equalization. We think this can be done, under the present statute. Article 3384, Rev. Civ. St., provides: "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 justice's precinct, or such subdivisions of a county as may be designated by the commissioners' court, * * * to determine whether or not the sale of intoxicating liquors shall be prohibited in such county," etc. Thus, it appears that the commissioners' court, as a court, can order such election "whenever they deem it expedient." This can be done at either a special or regular session. However, the commissioners' court sitting as a board of equalization is a regular session of said court, provided for by article 5120, Id., as follows: "The commissioners' courts of the several counties of this state shall convene and sit as a board of equalization on the second Monday in June of each year, or as soon thereafter as practicable before the first day of July, to receive all the assessment lists or books of the assessors of their counties for inspection, correction, equalization and approval." We have heretofore held that the commissioners' court could order a local option election at a special session. Loveless v. State (Tex. Cr. App.) 49 S. W. 602.

In his brief, appellant cites section 18, art. 8, and section 18, art. 5, of the constitution, in support of his contention that the commissioners' court, while in session as a board of equalization, has no power to order a local option election. The first section reads: "The legislature shall provide for equalizing, as near as may be, the valuation of all property subject to or rendered for taxation (the county commissioners' court to constitute the board of equalization); and may also provide for the classification of all lands with reference to their value in the several counties." The latter part of section 18, art. 5, provides: "Each county shall in like manner be divided into four commissioners' precincts, in each of which there shall be elected by the qualified voters thereof one county commissioner, who shall hold his office for two years and until his successor shall be elected and qualified. The...