Ex Parte Heyman

• Decision Date: 20 January 1904
• Citation: 78 S.W. 349
• Parties: Ex parte HEYMAN.
• Court: Texas Court of Criminal Appeals

78 S.W. 349

Ex parte HEYMAN.

Court of Criminal Appeals of Texas.

January 20, 1904.

Original application by Edward Heyman for a writ of habeas corpus. Relator discharged.

J. T. Adams, Culp & Giddings, and Davis & Garnett, for relator. Howard Martin, Asst. Atty. Gen., Lewis Rogers, C. L. Potter, and Cofer & Thomason, for the State.

HENDERSON, J.

This is an original application to this court for the writ of habeas corpus, which was granted by the presiding judge in vacation, and made returnable before the full court, and now comes before us for determination. It appears from the record that under the orders of the commissioners' court of Cooke county, made on July 18, 1903, an election was held for local option on August 8, 1903, for all of said county, except one precinct, to wit, Burns City precinct, and that prohibition carried in said seven precincts, but the precinct in which the offense relator is charged to have committed, to wit, Precinct No. 1, anti-prohibition carried. After prohibition had been put into effect by publication, relator was arrested for selling intoxicating liquors in said Precinct No. 1 in violation of the prohibition law as adopted in all said seven precincts; and he has invoked the power of this court by habeas corpus, insisting that said election was void, because the commissioners' court of Cooke county had no right, under section 20 of article 16 of the Constitution of 1876, as amended in 1891, to combine said seven justice precincts into one local option subdivision of said county. It further appears from the record that Justice Precinct No. 4 of Cooke county, known as "Roxton Precinct," adopted prohibition by an election held on June 27, 1884; that Precinct No. 6, known as "Valleyview Precinct," adopted prohibition at an election held on March 7, 1901; that Precinct No. 2, known as the "Dexter Precinct," adopted prohibition at an election held on March 18, 1902; that Precinct No. 7, known as the "Callisburg Precinct," adopted prohibition at an election held on October 18, 1902; that Precinct No. 5, known as the "Marysville Precinct," rejected prohibition at an election held on December 13, 1902; that Precinct No. 3, known as the "Burns City Precinct," and which was not included in this local option election, adopted prohibition at an election held on December 13, 1902; that Precinct No. 1, known as the "Gainesville Precinct," and Precinct No. 8, known as the "Muenster Precinct," have never adopted local option until this last election. It will be further seen that the entire county of Cooke refused to adopt prohibition at an election held on May 24, 1902. Thus it will be observed that the commissioners' court combined said seven justice precincts of Cooke county into one local option subdivision, with the status as to local option fixed upon them as above shown. This was done under the amendment to article 3384, Rev. St. 1895, passed by the Twenty-Fifth Legislature (Acts 1897, p. 235, c. 162), which gave to the county commissioners authority to include two or more justice precincts into a subdivision for the purpose of holding a local option election. Relator insists that this cannot be done, under a proper construction of section 20 of article 16 of the Constitution, and authorities which have interpreted the same. On the other hand, the state insists that the commissioners' court of Cooke county was authorized to do what they did in carving out and designating said subdivision, by said amendment to article 3384, Sayles' Ann. Civ. St. 1897, and that that amendment was authorized by section 20 of article 16 of the Constitution of 1891. It is insisted that this question is res adjudicata, under the decisions of this court, and we are referred to Williams v. State, 31 S. W. 654, Ex parte Brown, 34 S. W. 131, Rippy v. State, 68 S. W. 687, Medford v. State, 74 S. W. 768, and other cases. And it is urged that this view is also supported by the decisions of our Courts of Civil Appeals, and we are cited to Kidd v. Truett, 68 S. W. 310, Martin v. Mitchell, 74 S. W. 565, 7 Tex. Ct. Rep. 716, Sweeney et al. v. Webb et al., 76 S. W. 766, 8 Tex. Ct. Rep. 397, and other cases. We have examined the authorities referred to, and are constrained to differ with counsel representing the state as to what was really decided in those cases.

In the Williams Case, supra, it was, indeed, assumed that a local option election could be held in two justice precincts; but the main question there seems to have been whether or not the same should be described by metes and bounds, and no question was made as to the status of either of said precincts as to local option at the time. Presumably they were not. Nor was the constitutional question presented there as it is here. However, the court, in passing on the case, stated, in general terms, that a subdivision may consist of a whole of the justice precinct and a part of another or others, or two or more justice precincts. This case followed Ex parte Brown (Tex. Cr. App.) 34 S. W. 131. Both cases were decided under the act of the Legislature of 1893, which, in terms, authorized the Legislature to carve out any territory of a county, and make a subdivision of it, regardless of the known political subdivisions of a county. In neither of these cases was the constitutional question discussed, but it appears to have been assumed that the act was constitutional, and merely the effect of the legislation on the subject was reviewed. Rippy's Case, supra, was subsequent to the act of 1897, which amended article 3384 of the local option act, repealing the power of the Legislature to authorize the commissioners' court to carve out a subdivision, and substituting in lieu thereof the authority of the commissioners' court to embrace two or more subdivisions of a county into one local option territory. It is true, in Rippy's Case two local option justice precincts were embraced in the same local option territory as a commissioners' precinct. One of these had gone wet within two years before the election, and the other had gone dry within the two years prior to the election in said commissioners' precinct. But this phase of the question was not discussed in the opinion, although it may have been incidentally raised. The case appears to have been decided upon the authority of Ex parte Fields, 39 Tex. Cr. R. 50, 46 S. W. 1127, which was authority for holding that a county election could be held, regardless of the status of the various precincts of the county as to local option; and the court appears to have treated a commissioners' precinct, which might embrace two or more justice precincts, on the same principle as a county election. As far as this case is concerned, it is not necessary here to discuss that question, as the election here complained of was not held in a commissioners' precinct. In Medford's Case, supra, the court merely said, in passing upon other questions, that the commissioners' court unquestionably has authority to create subdivisions for local option purposes; but this was not necessary to that decision. And it may be said as to other cases that there may be expressions used and propositions stated assuming the constitutionality of the acts of the Legislature above alluded to, yet, so far as we are advised, none can be found in which the constitutional question here involved was presented and discussed.

Nor do we believe it can be asserted that, in the civil cases on local option which have gone before our supreme civil tribunals, the constitutional question as to the authority of the Legislature to authorize the commissioners' court to arbitrarily carve out local option territory, or to join together known political subdivisions of the county into local option territory, has ever been presented and decided. In Kidd v. Truett (Tex. Civ. App.) 68 S. W. 310, the court appears to have taken jurisdiction of the question as to the validity of a local option election in a school district which embraced a part of justice precinct where local option already prevailed, and to have held such election legal, though we note the dissent of Templeton, J. This decision was rendered prior to the case of Norman v. Thompson et al. (Tex. Sup.) 72 S. W. 62, in which the Supreme Court held that in a contested election case the court only had jurisdiction of matters transpiring on the day of the election, such as fraud, etc., which might render the election void. Nor did the court in Kidd v. Truett discuss the constitutional question as bearing on the right of the commissioners' court to order an election in territory a part of which already had local option. Under the view we entertain, as will be hereafter shown, there can be no question as to the power of the commissioners' court to order an election in either commissioner's precincts or a school district where no part of the territory is at the time under local option. Nor was the Constitution discussed in Martin v. Mitchell, 74 S. W. 565, 7 Tex. Ct. Rep. 716, although the court passed on the validity of the local option election in Commissioners' Precincts 1, 3, and 4 of said county. Judge Stephens remarked in that case that under Norman v. Thompson, supra, he did not believe the court had jurisdiction to decide the questions involved in said case. In Sweeney v. Webb, 76 S. W. 766, 8 Tex. Ct. Rep. 397, the able judge who rendered that opinion did not assume to construe the power of the Legislature to create subdivisions under the local option clause of the Constitution, but expressly stated that the election in the particular case was a county election, and, if the act complained of was subject to constitutional objection, it would not have the effect to make the whole act void, etc. Oxford v. Frank, 70 S. W. 426, 5 Tex. Ct. Rep. 941, involved a local option election in Erath county held in 1902, and involved the attempt by the commissioners' court to arbitrarily carve out territory not theretofore constituting a...