Ex Parte White

• Decision Date: 28 November 1894
• Citation: 28 S.W. 542
• Parties: Ex parte WHITE.
• Court: Texas Court of Criminal Appeals

28 S.W. 542

Ex parte WHITE.

Court of Criminal Appeals of Texas.

November 28, 1894.

Appeal from Hill county court; W. P. Cunningham, Judge.

Petition for writ of habeas corpus, on the relation of Tom White. From a judgment remanding relator to confinement, he appeals. Affirmed.

Smith & Wear, Tarlton & Morrow, S. C. Upshaw, and McKinnon & Carlton, for appellant, White. R. L. Henry, Asst. Atty. Gen., and Vaughon & Jones, for the State.

SIMKINS, J.

At a local option election held on the 18th day of January, A. D. 1894, in justice precinct No. 1, Hill county, Tex., which embraces the town of Hillsboro, local option was carried by a majority of 85 votes, and the notice of the result was duly published as required by law. Relator was afterwards arrested for selling intoxicating liquor in violation of said law, and thereupon sued out a writ of habeas corpus, alleging the law to be illegally adopted, for reasons stated in his petition. Upon a hearing, the county judge overruled the prayer of petitioner, and remanded him to the custody of the sheriff, and an appeal was taken to this court. It is admitted in the statement of facts that relator sold intoxicating liquor at the time and place as charged, and that the sole question to be determined on this appeal is whether the local option law has been legally adopted in said precinct 1 of Hill county. If so, the relator was properly remanded to the custody of the sheriff; and, if otherwise, relator should be discharged.

It is insisted that the law is invalid (1) because Hillsboro is an incorporated town, divided into four wards, yet the county commissioners' court, with full knowledge of that fact, divided the Hillsboro voting precinct (which embraces, not only the town itself, but considerable territory lying adjacent thereto) into four voting precincts, regardless of the ward divisions, and in fact each voting precinct contained parts of several wards.

There is no question that it is the duty of the county commissioners, in laying out or dividing an election precinct, which contains a town or city, into voting precincts, to recognize and designate the several wards as such voting precincts (Rev. St. art. 1664); and, when required for public convenience they may subdivide each ward into as many voting precincts as they may deem proper (Acts 1889, p. 10). Such is the plain requirement of the statute, and it would seem that a nonobservance thereof would ordinarily avoid the election. But this identical question came before our supreme court in Davis' Case, 75 Tex. 420, 12 S. W. 961. The city of San Marcos was divided into four wards, but the commissioners' court established two voting precincts, without reference to the wards, and including parts of the surrounding county. It was claimed that this act of the county commissioners' court, in ignoring the existence of the city wards, would make the election a nullity. It was answered by respondent that, while it was true that such had been the method of laying out the voting precincts, yet it was the customary method; that for many years prior thereto the precincts had been so laid out, and elections held therein without objection. In passing on the sufficiency of the answer, a majority of the court, notwithstanding a strong dissenting opinion by Justice Henry, sustained the election; holding that although the commissioners' court had laid out the voting precincts regardless of wards of the city or town, which by statute were made voting precincts, yet the elections, having been fairly held in the precincts so laid out, without objection from any quarter, should not be claimed invalid unless it was shown that the commissioners' court had acted with a fraudulent purpose. The opinion, as we understand it, seems to rest upon two grounds: First. The commissioners' court, being charged with the duty of laying out the voting precincts, had, by disregarding the wards, practically decided they did not exist, and to prove that they did exist, in that character of contest (suit by quo warranto to try the right to the office of sheriff), was a collateral attack on their judgment. Secondly. That the law in reference to voting precincts, and which prescribes the duty of the commissioners' court in regard thereto, fails to declare that a noncompliance therewith will invalidate the election as to those precincts; that the observance of the wards by the commissioners' court, in laying out the voting precincts, is not absolutely essential to secure a fair expression of the popular will, and, the law having failed to make it an essential prerequisite to the validity of the election, the court would not make it so. Now, we can see no reason why the last ground is not applicable to and decisive of the question at bar. If the position is sound, it applies to any election, whether general or special, in which the commissioners' court is empowered to define the voting places. Whatever views we might entertain if the question was open need not be here considered. Deference to the views of the supreme court, as we understand them, incline us to hold that the position of appellant, here considered, is not well taken. There is no question of the fairness of the election in this case. The commissioners' court of Hill county, on the 12th February, 1885, divided the Hillsboro precinct into four voting precincts, without reference to the wards of the city, as was done in the San Marcos Case; and ever since 1885 to the present time, except in 1890, when the courthouse was being rebuilt, all elections, general and special, except city elections, have been held in the...