Ex Parte Keith

• Decision Date: 23 November 1904
• Citation: 83 S.W. 683
• Parties: Ex parte KEITH.
• Court: Texas Court of Criminal Appeals

83 S.W. 683

Ex parte KEITH.

Court of Criminal Appeals of Texas.

November 23, 1904.

Application by Jim Keith for habeas corpus to obtain his release from custody for

a violation of the local option law. Relator remanded.

Martin & George and Jno. W. Ray, for relator. Fred H. Chandler, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

This is an original application for the writ of habeas corpus, which was granted by the presiding judge, and is now before us upon an agreed statement of facts for decision. Relator was arrested under proper complaint and information for violating the local option law in Erath county, and relies for his discharge from arrest on the invalidity of the local option law of Erath county.

Relator insists that the notice for the local option election was not published for 20 consecutive days, as provided by what is known as the "Terrell Election Law," passed by the Twenty-Eighth Legislature. See Gen. Laws 28th Leg. 1903, p. 133, c. 101. The statement of facts shows that the notice of said local option election was posted in each of the 27 precincts of said Erath county for 20 days next before the day of said election on June 11, 1904. In view of the agreement that 27 notices were posted at the respective voting boxes, the statement of facts containing no description of said notices, we will presume they were such as required by law. In our view of this case it is immaterial whether such notices were published for the 20 consecutive days required by the Terrell election law. We hold that, in order to make a valid local option election, it is only necessary to comply with the character of notice required under the local option election law, and that the Terrell election law does not repeal by implication any of the provisions of the local option law. This question was decided by us in Shields v. State, 38 Tex. Cr. R. 252, 42 S. W. 398. Article 3387 of the local option law (Rev. St. 1895) provides: "The clerk of said court shall post or caused to be posted, at least five copies of said order at different places within the proposed limits, for at least twelve days prior to the day of the election, which election shall be held and return thereof made in conformity with the provisions of the general laws of the state, and by the officers of election appointed and qualified under such laws."

Article 3389 provides: "The officers holding said election shall in all respects not herein specified conform to the existing laws regulating elections, and after the polls are closed shall proceed to count the votes, and within ten days thereafter make due report of said election to the aforesaid court." An inspection of other clauses of the local option law shows that the time of counting the result of the local option election is different from the Terrell election law, and if the Legislature had intended any character of repeal, some direct expression would have been made in the Terrell law with reference to local option law. As stated above, the only insistence that relator makes in reference to the validity of the local option law in Erath county is that the notice was not published according to the Terrell election law. Prior to the Terrell election law, in passing upon whether or not the provisions of the general election law repealed or controlled the provisions of the local option law in reference to notices, etc., Judge Stephens, delivering the opinion of the court in Voss v. Terrell (Tex. Civ. App.) 34 S. W. 170, held that said general election law did not apply to the local option law, and among other things says, reviewing article 1685, Rev. St. 1895, in reference to the general election: "Where any election is ordered, at least 20 days' notice, etc., should be interpreted with reference to the various elections provided for in that chapter and under that title, and not to elections provided for and regulated under a different title." Then he cites article 1759, which expressly provides, in substance, that this construction should prevail; but the whole tendency and trend of the decision shows that this clause would not have changed the construction of the law if the same had not been contained in said general election law. This decision has been approved in Roper v. Scurlock (Tex. Civ. App.) 69 S. W. 456.

Relator insists that the Terrell election law repealed by implication the local option election law. We cannot agree with this construction of the law. It will be observed by an inspection of the Terrell election law that it does not propose or attempt in any of its provisions to change the general election law with reference to ordering the election for the various things and purposes involved in the general election law prior to the time of the adoption of the Terrell election law. In other words, the general election law contained in Rev. St. 1895, tit. 36, provided for the election of certain state, county, and municipal officers, and among other provisions stated that the notice of election should be posted 20 days. Now, the Terrell election law in this respect is but a bare enlargement of the old general election law as to the purpose for which the election could or should be ordered. The main insistence of relator, indicating a repeal, appears to be section 41, which reads: "Twenty days' notice of every election ordered shall be given by notice posted up at the places of holding elections in each election precinct, which shall state the time of holding the election, the offices to be filled, and the question to be voted on, or both, as the case may be, except as herein otherwise provided. Gen. Laws 28th Leg. 1903, p. 140, c. 101. This section and section 42 of the Terrell election law are almost literal copies of the general election law that existed prior to the Terrell election law. Then relator cites section 53, prescribing the oath of officers. This, in most of its salient features, is a re-enunciation of the old oath of office contained in the old election law. Section 59 of the Terrell election law is a bare enunciation by the Legislature that they did not intend to change the mode and manner of electing district or school officers of a city, town, or village. Relator cites section 73, which provides that nothing stronger than coffee should be drunk by the officers holding the election; then section 76, which provides there shall be but one official ballot for each political party lawfully nominating a candidate for office to be voted for at each general or special election in each county, city, or town. Certainly these provisions cited could not militate against the former construction of the local option law, and especially the latter provision, since the question of "political party" has nothing whatever to do with the adoption of the local option law. Section 61 provides that in holding elections the voters shall have paid a poll tax.

The main insistence appears to be, as stated, upon section 41 and section 144, which reads: "This act is cumulative as to penalties for violating the election laws of the state and as to the mode and manner of any law, except such laws as are inconsistent with it, or in conflict herewith: provided this act shall not apply to any election held prior to February 1, 1904." "It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention. Hence it is a rule, founded in reason as well as in abundant authority, that, in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it, the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict, or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject." Endlich, Interp. of Stat. § 210. A general law does not abrogate an earlier special one by mere implication. The law does not allow the exposition to revoke or alter, by construction of general words, any particular statute, where the words of the two acts, as compared with each other, are not so glaringly repugnant and irreconcilable as to indicate a legislative intent to repeal, but may have their proper operation without it. Endlich, Interp. of Stat. §§ 223, 228. This author also supports the proposition that, although an act contains a repealing clause of a previous law on the subject, this clause must give way to a rational interpretation of the legislation, in order to give intent to the legislative mind. Endlich, Interp. of Stat. § 43.

The Terrell election law is a general statute. The local option election law is a special statute, relating to localities. In Laredo v. Martin, 52 Tex. 561, we find this language: "The act upon which appellees rely to revoke the power given the city is the general act to regulate ferries; but there is no allusion to the act incorporating the city of Laredo or to the power conferred by it upon the mayor and aldermen to establish ferries within its corporate limits. It is too well settled that the general law does not by implication repeal a special one, although both relate to the same subject-matter." In Ellis v. Bates, 26 Tex. 707, Moore, J., uses this language: "The literal import of the statute is broad and unlimited, and, if we can suppose that the...