Adams v. Kelley

• Decision Date: 31 December 1897
• Citation: 44 S.W. 529
• Parties: ADAMS et al. v. KELLEY et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 529

ADAMS et al. v. KELLEY et al.¹

Court of Civil Appeals of Texas.

December 31, 1897.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by E. T. Kelley and others for mandamus to compel the commissioners' court to order a local option election. From a judgment awarding such writ, F. E. Adams and others appeal. Reversed.

D. W. Odell, for appellants. S. C. Padelford, H. P. Brown, and Henry & Brown, for appellees.

STEPHENS, J.

Upon the petition of appellees, in behalf of themselves and 227 other resident citizens of the city of Cleburne, a writ of mandamus to compel the commissioners' court of Johnson county to order a local option election for said city was awarded by the district court. From that judgment this appeal is taken.

The petition admits that the local option law had been adopted and put in force for the entire county of Johnson in the year 1895, and that a second election for the entire county, held in March, 1897, again resulted in favor of the law. The legal force of this election, however, is denied, upon the ground that the result, though duly declared by the commissioners' court, and entered of record, has not been published. The petition then pleads an act passed at the general session of the last legislature (Acts 25th Leg. p. 235), amending article 3384 of the Revised Statutes of 1895, relating to local option. This amendment, among other provisions, makes it the duty of the commissioners' court of each county to order an election "to be held by the qualified voters of said county, or of any commissioner's or justice's precinct, or school district, or any two or more of any such political subdivisions of a county, as may be designated by the commissioners' court of said county, to determine whether or not the sale of intoxicating liquors shall be prohibited in such county, or commissioner's or justice's precinct, or school district, or any two or more of any such political subdivisions of such county, or in any town or city," whenever petitioned so to do by the requisite number of voters, as therein prescribed: "provided, that where a school district, city or town may be composed in part of two or more subdivisions of the county, named hereinbefore, the right to order and hold an election in such school district, city or town shall not be denied." The petition further shows, after alleging that the city of Cleburne is composed in part of more than two subdivisions, such as the amendment describes, of Johnson county, that the requisite number of qualified petitioners had duly petitioned for a local option election for the city of Cleburne, which the commissioners' court, on August 24, 1897, refused to order. The allegations of fact so made are admitted to be true. The questions involved in the appeal, then, are: First, whether, on account of the failure of the commissioners' court of Johnson county to have the result of the second county local option election published, appellees were entitled to a writ of mandamus to compel said commissioners' court to order a local option election for the city of Cleburne; second, whether, if this did not give the right, it was conferred by the alleged amendment of article 3384.

Upon the first question appellants cite a decision of the court of criminal appeals,— Ex parte Burge, 24 S. W. 289,—which seems to dispose of it in their favor. It was there held that the failure of the commissioners' court, in connection with the declaration of the result of a local option election, to further enter an order in terms absolutely prohibiting the sale of intoxicating liquors with in the prescribed limits, as required by law, did not invalidate the election itself, but, on the contrary, that mandamus to compel the performance of a duty so neglected might be resorted to. The reasons given by Judge Simkins for this ruling apply with equal, if not greater, force where, as in this case, there is a mere failure to publish the result of such election. This decision was cited with approval by us in State v. Harvey, 33 S. W. 886, though in that case the result of the election was not in favor of, but against, the continuance of the local option law. If, then, the commissioners' court of Johnson county might, when this suit was instituted, have been compelled to have the result of the election for the entire county published, the contention would hardly seem plausible that mandamus would lie to compel the performance of a conflicting duty,—that of ordering an election for the city of Cleburne,— which the due publication of the result of the county election would, as the law stood prior to the amendment, certainly have excluded. The two duties, being in conflict, could not co-exist.

We are thus brought to consider the second, and, as we understand, the main, question at issue, in the discussion of which additional reasons may be given for overruling the contention involved in the first question. The constitution adopted in 1876 (article 16, § 20) made it the duty of the legislature, at its first session, "to enact a law whereby the qualified voters of any county, justice's precinct, town or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." This was so amended in 1891 as to extend its provisions to "such divisions of a county as may be designated by the commissioners' court of such county." In obedience to this constitutional requirement, the legislature at its first session (Acts 1876, p. 26) enacted a law which...