Ex Parte Segars

• Decision Date: 07 February 1894
• Citation: 25 S.W. 26
• Parties: Ex parte SEGARS.
• Court: Texas Court of Criminal Appeals

25 S.W. 26

Ex parte SEGARS.

Court of Criminal Appeals of Texas.

February 7, 1894.

Appeal from county court, Brown county; Charles Rogan, Judge.

Petition of John R. Segars, arrested for selling liquor in violation of the local option law, for habeas corpus. Writ denied. Relator appeals. Affirmed.

Goodwin & Grinnan, for appellant. R. L. Henry, Asst. Atty. Gen., for respondent.

SIMKINS, J.

Relator was charged by information filed in the county court of Brown county on the 26th of December, 1893, with violating the local option law then in force in a certain subdivision of Brown county by selling intoxicating liquor. He was arrested under a capias issued out of the said court on the said 26th of December, 1893, and on the same day filed his petition for a writ of habeas corpus before the Honorable Charles Rogan, the county judge, alleging simply that he was illegally restrained of his liberty, and setting up no grounds therefor. After the return of the sheriff the cause was duly heard, and the prayer of the relator denied, and he thereupon appealed. It will not be necessary to discuss the various questions raised in appellant's brief. We will only consider those mainly relied upon by him for reversing the judgment below.

1. The relator claims that the local option district which embraces the city of Brownwood and a portion of the country lying around said city was not legally defined and designated by law; that the district or subdivision should first have been designated by the county commissioners' court, before an election was ordered. We think that the subdivision was clearly defined, as required by the statute. The record shows that in the petition signed by 230 names the limits of the proposed subdivision were specifically set out as required by article 3227 of the local option statute of March 29, 1893, (chapter 45.) That the commissioners' court, in acting on the petition, and entering the order of election, find that the petitioners are all voters of the county and state, and residing in the proposed subdivision, and in said order of election the metes and bounds of the proposed subdivision are fully set forth, and the time and places are set forth as required by law. We think the law has been, in this respect, fully complied with. Tummings' Case, (Tex. Cr. App.) 22 S. W. 409, relied upon by counsel, has no application to the case at bar. In that case no boundaries were fixed, and the election was void for uncertainty. Here they were definitely and clearly fixed.

2. Relator insists that the local option law passed in 1893 is invalid, because it purports to be an amendment of Rev. St. tit. 63, when in fact the said title had been repealed by the local option law of April 1, 1887. As a matter of fact title 63 of the Revised Statutes of Texas was not repealed by the act of April 1, 1887, but certain articles only were amended, and a new article, to wit, 3239a, was added by said act. These amendments and addition then became a part of the Revised Statutes, made so by the very terms of the amending statute, by which it is declared "that articles 3227, etc., of title 63 of the Revised Civil Statutes of the state of Texas be so amended as to read as follows;" then follow the amended articles, Acts 1887, § 1, p. 96. The contention here is that the caption and first section of the act of 1893 should have declared it to be "An act to amend title 63 of the Revised Statutes as amended by the act of April 1, 1887." While it is true that the caption and first section should properly have so stated, we do not think its failure in that respect invalidates the law; for, while the caption does not in express terms refer to the act of 1887, it unquestionably means the Revised Statutes as amended by that law, because, among the articles set forth in the caption which the act of 1893 seeks to amend is article 3239a, which was added by the act of 1887. But, were it not so, we would presume that when the caption referred to "the Revised Statutes" it meant the Revised Statutes as amended by subsequent amendatory statutes. In Oshe v. State, 37 Ohio St. 501, the court says: "At the time of the passage of the amended section it took the place of the original section in the revision, and was thereafter the only section 6941 of the Revised Statutes in force; and the reference to the Revised Statutes must be understood as referring to the only statute in force." See, also, State v. Brewster, 39 Ohio St. 653; McKibben v. Lester, 9 Ohio St. 628; Blakemore v. Dolan, 50 Ind. 194. The act of 1893 (chapter 54) is intended to be a revision of all the articles of title 63 of the Revised Statutes relating to local option. It is carelessly drawn in several particulars, arising from the fact that the amendments were made to Sayles' Revised Statutes, and not to the Revised Statutes themselves....