McDaniel v. State

• Decision Date: 15 March 1893
• Citation: 21 S.W. 684
• Parties: McDANIEL v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W. 684

McDANIEL v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1893.

Appeal from Rockwall county court; I. J. Austin, Judge.

H. R. McDaniel was convicted of violating the local option law, and appeals. Affirmed.

Stroud & Chandler, for appellant.

R. L. Henry, Asst. Atty. Gen., for the State, submitted the following brief:

Appellant's punishment was assessed at a fine of $25 and confinement for 20 days in the county jail. Several questions are raised, but it is only necessary to notice three of the errors assigned, the remainder being regarded as without merit.

(1) Appellant contends that the order of court declaring the result of the election was not published for "four successive weeks" in some newspaper as required by statute. Let us see if this is true. By an inspection of the record we find that an election was ordered by the commissioners' court on August 13, 1892. The result of this election was declared on the 13th of September following. Publication of the result was made in the Rockwall News, a newspaper designated by the county judge for that purpose. This order was published for three successive weeks, viz. September 16, September 23, September 30, 1892. Thereupon, Hon. R. E. Burke, one of the district judges of Dallas county, on the 30th of September granted a temporary injunction restraining the further publication of the order. On the 7th day of October, at the instance of the same parties, he granted a similar injunction, which injunctions remained in force until November 17th, when said injunctions were duly dissolved. The order declaring the result of the election was then, on November 18th, after a lapse of six weeks, again published one week, completing the four weeks. Article 3233, Sayles' Ann. St., requires the court to meet and declare the result of the election. Article 3234 requires the court, where local option obtains, to have published in a newspaper selected by the county judge "for four sucessive weeks" the order declaring the result of the election. Where the result has been published for three successive weeks, and further publication is suspended by legal proceedings in the nature of an injunction, can it be said that such injunction destroys all steps in the way of all publication, although the injunction may afterwards be dissolved as without merit? Can a statute be thus nullified? This is the question here to be solved. It is stated as a proposition that the law will not compute the time the injunction is in force, but will treat it as a blank. This question is similar to one of limitation. For instance, it is well settled that statutes of limitation do not run against any claim while it is in litigation. Kothman v. Skaggs, 29 Kan. 5; 13 Amer. & Eng. Enc. Law, p. 745. When any proceeding at law is enjoined by a court of equity, the statutes of limitation do not run, parties do not lose their rights, for the simple reason that they are helpless, and without redress, until the injunction is dissolved. The reasonable and sensible construction to be placed upon the language "four successive weeks" is that the legislature intended for the publication to be so made in the absence of such legal obstacles as we have here. That when parties put such obstacles in the way of the complete successive or consecutive publication of the result of the election as this injunction, they cannot take advantage of their action and suspend a statute, nor did the injunction have the effect of rendering void the prior publications or of preventing the continuity of the four publications. This publication is...