Ex Parte Mills

• Decision Date: 24 February 1904
• Citation: 79 S.W. 555
• Parties: Ex parte MILLS.
• Court: Texas Court of Criminal Appeals

79 S.W. 555

Ex parte MILLS.

Court of Criminal Appeals of Texas.

February 24, 1904.

Original application for habeas corpus, on the relation of John Mills, to secure release from arrest for violating the local option law. Relator discharged.

Kearby & Kearby, C. H. Reese, M. G. Sanders, J. S. Spinks, and Nat G. Turney, for appellant. Alex Collins, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Applicant was arrested for violating the local option law, and resorted to the writ of habeas corpus. The election putting the local option law into effect was held in a portion of the county, composed of all the justice's precincts except No. 2. Some of the territory included was already under operation of the local option law. Of the questions presented, we desire to discuss but one, to wit, the authority of the commissioners' court to combine justices' precincts or other subdivisions of a county for the purpose of holding local option elections. We have answered this question in the negative in the recent case of Ex parte Heyman, 78 S. W. 349. The facts being so nearly similar in the two cases, we might, perhaps, rest the decision of this case on the opinion in that, but desire to make some additional observations.

Local option in Texas is a rather recent innovation upon the manner of putting laws into operation, and can have no existence except as provided in the Constitution. The usual manner in which acts of the Legislature become law is pointed out by the Constitution; that is, they must pass both houses of the Legislature, must be signed by the Speaker of the House and President of the Senate, and receive the approval of the Governor, and, in case of the Governor's veto, then only by being passed over that veto by the constitutional majority. There is no authority for local option laws outside the constitutional provision. Therefore, where local option is sought to be put into operation, the laws under which the vote of the people is taken must be in conformity to the constitutional requirement. State v. Swisher, 17 Tex. 441. Local option legislation of any character with reference to intoxicants exists only by virtue of article 16, § 20, of the Constitution. This was inserted in 1876, and reads as follows: "The Legislature shall at its first session enact a law, whereby the qualified voters of any county, justice 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 amended in 1891, and is as follows: "The Legislature shall at its first session enact a law, whereby the qualified voters of any county, justice precinct, town or city (or such subdivision of a county as may be designated by the commissioners' court of said county) may by a majority vote determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." Under the Constitution of 1876, elections were confined to a county, a justice precinct, town, or city. Under the amendment of 1891, the parenthetical clause, "or such subdivision of a county as may be designated by the commissioners' court of said county," was added. This authorizes an election to be held in a subdivision of the county. "Subdivision," within contemplation of this section, does not refer to the county, justice precinct, city, or town. While justice precincts, cities, and towns are divisions or subdivisions of a county, the word here is used to point out political subdivisions other than those already enumerated. By bringing these forward from the Constitution of 1876 into the amendment of 1891, it is evident that no change was intended with reference to any of the matters comprehended in the Constitution of 1876. The amendment simply contemplated authority to hold local option elections in subdivisions not previously mentioned; and it was not intended, by using the word "subdivision" to give a different meaning or standing to those already enumerated, or in any manner to qualify them. Words previously used in the Constitution, and reordained by amendment, are to be taken in the same sense as originally understood; and there would be no change, unless clearly shown by the terms of the amendment. As these territories could not be combined for election purposes under the Constitution of 1876, it would follow that in bringing them forward it was not intended that they should be combined under the Constitution as amended. There is nothing indicating such a purpose in the amendment. On the contrary, it was evidently the purpose of that amendment not to convey such meaning. The word "subdivision" does not mean "addition," for, if such was the meaning of the framers of the Constitution, a word or words would have been used more appropriate to express that meaning. The local option elections provided for in the Constitution of 1876 necessarily meant for the county, justice precinct, city, or town; that it was only within these particularly enumerated territories that such an election could occur. This is emphasized from another expression in the Constitution, which required these elections to be from time to time, and within the prescribed limits. In fact, "local option elections" means recurring elections, and it means recurring elections for the territory specified in the Constitution—not such as could be combined by commissioners' courts, for no such authority is given. If this were not true, it is easily demonstrated that, by the process of addition, one precinct could be added to another, until there would be two or more elections for one justice precinct, and only one for the other precinct. To illustrate: Justice Precinct No. 1 is under operation of the law. Precinct No. 2 is not. An election held where two or more are combined, resulting favorably to the law, would place two or more elections on one of the precincts, and only one on the latter. Besides, under the combination process, the votes of one precinct could be utilized to put the law into operation in another precinct. This would be in direct violation of the Constitution. The voters of one precinct cannot be used to put the law into operation in another precinct. Following up this combination or addition theory to its final analysis, it will be readily seen that there could be eight elections in a county containing that number of justice precincts, the result of which will be eight elections in force on the precinct in which the election was first held, and only one election in force on the last precinct for which it was held. This would be a clear and palpable violation of the Constitution. What is said of justice precincts is equally true as to school districts, for, by this theory of addition, 50 elections could be held, commencing with School District No. 1, and ending with School District No. 50, if the county contained so many districts, which would place 50 elections on School District No. 1, and only 1...