Ex Parte Elliott

• Decision Date: 18 March 1903
• Citation: 72 S.W. 837
• Parties: Ex parte ELLIOTT.
• Court: Texas Court of Criminal Appeals

72 S.W. 837

Ex parte ELLIOTT.

Court of Criminal Appeals of Texas.

March 18, 1903.

Original application by W. R. Elliott for a writ of habeas corpus. Granted, and applicant discharged.

Smith, Templeton & Tolbert, for relator. Robt. A. John, Asst. Atty. Gen., for respondent.

DAVIDSON, P. J.

Applicant was arrested under complaint and information charging him with violating the local option law in School District No. 54, Grayson county. Having been arrested, he resorted to the writ of habeas corpus, which was granted by this court. The facts are agreed upon, and show that on February 1, 1892, local option went into effect in Justice Precinct No. 3 of Grayson county, and has been in effect since that time, and is still in effect; that on February 1, 1902, 10 years after the law went into effect in Justice Precinct No. 3, the said law was put into effect in said School District No. 54. That in Justice Precinct No. 2, which is divided from Justice Precinct No. 3 by an imaginary line under the order of the commissioners' court, local option is not now, and never has been, in force; that School District No. 54 is partly in Justice Precinct No. 3 and partly in Justice Precinct No. 2. That within the limits of said School District No. 54 is the incorporated town of Bells; that the town of Bells is divided from east to west by the Texas & Pacific Railway; that the portion lying north of the railroad is in Justice Precinct No. 2, and that lying south of said railroad is in Justice Precinct No. 3, and was so situated on December 9, 1901, when the election was ordered for School District No. 54; that portion lying south of the Texas & Pacific Railway is in Dugganville voting precinct, and in Justice Precinct No. 3; that lying north of said railroad is in Bells voting precinct, and in Justice Precinct No. 2; and that School District No. 54 includes all of the town of Bells, as well as other territory besides that included within the incorporated limits of the town. It is further agreed that applicant sold intoxicants to Tom Fergurson within said School District No. 54.

There are several questions presented for revision. It is contended the election in School District No. 54 is invalid because, under the law as it then existed, such subdivisions as School District No. 54 were unknown, and, under this condition, the law was put into operation in the entire Justice Precinct No. 3, and that no subsequent legislation could affect the law as in force in Justice Precinct No. 3; that the Legislature has no power to repeal the law in force in any given territory; that this must be by the voters living in that territory. We believe this proposition sound. Such we understand to be the doctrine of Dawson v. State, 25 Tex. Cr. App. 670, 8 S. W. 820; Aaron v. State (Tex. Cr. App.) 29 S. W. 267; Adams v. Kelley (Tex. Civ. App.) 44 S. W. 530. The fact that the Legislature may alter the provisions of the local option law cannot affect territories in which the law is then in force. The law in force in the given territory will stand as its provisions were at the time it was voted into operation, despite subsequent amendments to the law by legislative enactment. The Legislature may amend the local option law; but this ends their power. It takes the vote of the people of a given territory to put it into operation, and it takes the vote of the same people to end its operation. All that portion of School District No. 54 which lies within Justice Precinct No. 3 was under the operation of the law as it existed on February 1, 1892; therefore the election in School District No. 54 in 1902 could not affect the law as put into operation in Justice Precinct No. 3, and, as to that part of School District No....