Ex Parte Pollard

• Decision Date: 22 May 1907
• Citation: 103 S.W. 878
• Parties: Ex parte POLLARD.
• Court: Texas Court of Criminal Appeals

103 S.W. 878

Ex parte POLLARD.

Court of Criminal Appeals of Texas.

May 22, 1907.

Rehearing Denied June 27, 1907.

Appeal from Caldwell County Court; G. W. Kyser, Judge.

Habeas corpus by Tom B. Pollard to obtain his release from custody for alleged violation of the local option law. From an order remanding him to custody, he appeals. Affirmed.

R. H. Ward, A. B. Storey, and Will G. Barber, for relator. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

In 1882 the commissioners' court of Caldwell county divided that county into justice precincts. In 1893 on the 14th day of December, a local option election was held in precinct No. 4, resulting favorable to local option. Within the bounds of justice precinct No. 4 was what is termed election precinct No. 13, and in said justice precinct was contained precinct No. 13 at the time the local option law went into effect. In 1894 the commissioners' court of said county detached the whole of election precinct No. 13 from justice precinct No. 4, and attached it to and made it a part of justice precinct No. 1, and to that extent it diminished the area of said justice precinct No. 4, and, of course, to that extent increased the area of justice precinct No. 1. In 1896 an election was held in that portion of justice precinct No. 1, which embraced election precinct No. 13, and resulted in a decided majority against local option. It had been understood among the people living in the territory where this last election was held that they were not under the operation of the local option law, and from that time on the sale of intoxicants was authorized by the issuance of license, etc., in said territory.

It is contended, as far as we understand the applicant's position, that the commissioners' court was authorized to order an election in election precinct No. 13, whether it was contained within the bounds of justice precinct No. 4 or precinct No. 1. We do not agree with this contention. In Efird v. State (Tex. Cr. App.) 80 S. W. 530, it is held that an election precinct is not a subdivision within the contemplation of article 16, § 20, for the purposes of holding local option elections. The former appeal in that case held otherwise, but the latter decision announces the correct doctrine. This proposition of applicant is also erroneous from another standpoint, to wit, wherever a local option law is once legally put into operation in a given territory, it must remain in force until it has been voted out by the voters of the territory where such law was originally vitalized. This is supported by the following authorities: Medford v. State (Tex. Cr. App.) 74 S. W. 768; Woods v. State (Tex. Cr. App.) 75 S. W. 37; Nelson v. State (Tex. Cr. App.) 75 S. W. 502; Ex parte Fields (Tex. Cr. App.) 86 S. W. 1022, and quite a number of other cases. Then, under this view of the question, whether election precinct No. 13 remained in the justice precinct No. 4. or was detached from that precinct and attached to precinct No. 1, would make no difference. It having been placed under the operation of the local option law under the act of 1893 in justice precinct No. 4, it must remain, so far as the local option law is concerned, a part of that territory, at least it will remain under the operation of the local option law by virtue of the election held in and for said justice precinct No. 4, and, until an election is held by the original territory of precinct No. 4 voting it out of said precinct No. 4, said election precinct No. 13 would remain under the operation of the local option election held in precinct No. 4, held in December, 1893. It would seem from the decision in the Whisenhunt Case, 18 Tex. App. 491, and in Woodlief's Case, 21 Tex. App. 412, 2 S. W. 812, that prior to the act of 1893 a different rule applied, but this election in justice precinct No. 4 was held under the terms of the amended statute passed in 1893, and Whisenhunt and Woodlief Cases, supra, are not authority.

It is also contended, in substance, that, by reason of the act of the commissioners' court changing election precinct No. 13 from justice precinct No. 4 to justice precinct No. 1, said change operated a repeal of the local option law in regard to the territory...