Dawson v. State

• Decision Date: 20 June 1888
• Citation: 8 S.W. 820
• Parties: DAWSON v. STATE.
• Court: Texas Court of Appeals

Page 820

8 S.W. 820

DAWSON v. STATE.

Court of Appeals of Texas.

June 20, 1888.

Appeal from Erath county court; W. W. MOORES, Judge.

Information against W. A. Dawson for violation of the local option law, in force in Erath county. From a judgment of conviction defendant appeals.

Frank & Devine, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

On the 9th day of December, 1886, what is commonly known as the "Local Option Law" was adopted in Erath county, at an election held for the purpose of determining whether or not said law should be adopted in said county. On the 12th day of September, 1887, information was presented in the county court, charging the defendant with violating said law on or about June 24, 1887. On the day that the information was presented the cause was tried, and the conviction from which this appeal is prosecuted was had. On March 12, 1888, pending this appeal, a second election was held in said county for the same purpose as the first election was held, and which resulted in a majority "against prohibition," and such result was duly declared by the commissioners' court. Upon this state of facts the defendant bases his motion to set aside the conviction and dismiss the prosecution, because, as he contends, the law under which he was convicted has been repealed by the result of the second election, and therefore the judgment rendered against him cannot be enforced. To this proposition the assistant attorney general replies that the second election was a nullity, because held before the expiration of two years after the holding of the first election, and therefore did not have the effect to repeal local option in Erath county. This issue requires a consideration and determination of the effect of the amendatory act of July 4, 1887, (Acts 20th Leg. p. 96; Sayles, Civil St. art. 3227 et seq.,) upon the statute as it was at the time of the adoption of local option in Erath county, on December 9, 1886. By the statute in force at said last date, it was permissible to hold a second election after the expiration of 12 months from the date of the first election. Rev. St. art. 3236. But that provision, as amended by the act of July 4, 1887, supra, provides that a second election shall not be held in less than two years after the first election. Sayles, Civil St. art. 3236. Does the provision, as thus amended, deprive a locality, which adopted local option under the old law, of the right which they had under that law of holding another election upon the issue at the expiration of 12 months from the time of the first election? or, is not the operation and effect of the amendatory act confined to localities which might thereafter adopt said local option law? is not the amendatory act applicable only to elections held after it went into effect? Section 20 of article 16 of the constitution provides as follows: "The legislature shall, at its first session, 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." What is the extent of the power conferred upon the legislature by the foregoing provision? Simply to enact a law enabling the qualified voters of the localities designated to determine, in accordance with such law, whether the sale of intoxicating liquors shall be prohibited within specified limits. No power was conferred upon the legislature to prohibit the sale of intoxicating liquors, but such power was vested alone in the qualified voters of the localities named; such power to be exercised by them in the manner to be provided by the legislature. It is only by a majority vote of the qualified voters of a locality that the sale of intoxicating liquors within the limits of said locality can be prohibited. Hence is derived the common name of the law upon the subject; that is, the "local option law." While it is a general law in the sense that it may be adopted in any portion of the...