Rippy v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Henderson
• Citation: Rippy v. State, 68 S.W. 687, 44 Tex.Cr.R. 72 (Tex. Crim. App. 1902)
• Decision Date: 21 May 1902
• Parties: RIPPY v. STATE.

68 S.W. 687

RIPPY v. STATE.

Court of Criminal Appeals of Texas.

May 21, 1902.

Application by Granville Rippy for a writ of habeas corpus. Writ refused.

F. M. Etheridge and Clark & Bolinger, for applicant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is an original proceeding by writ of habeas corpus in this court. The application alleges that relator is illegally restrained of his liberty by virtue of a warrant of arrest charging him with a violation of the local option law; the case pending in the county court of Grayson county. It is shown that applicant is a resident of Potsboro, and he admits the sale of intoxicating liquor in said precinct, etc. He alleges that the adoption of local option at Potsboro was illegal and unconstitutional, on the ground that on the 6th of April, 1901, a local option election for the justice precinct in which said town of Potsboro was situated, known as "Precinct No. 8," was held, and that local option was defeated in said precinct; that thereafter, on the 8th of February, 1902, an election was held in a commissioners' district or subdivision of the county, embracing said precinct No. 8 and precinct No. 7 of said Grayson county; and that at said election local option was adopted. He claims that it was not competent, under the constitution, to include the Potsboro precinct, No. 8, in the enlarged precinct, and vote thereon, as was done. The propositions on which he alleges that the last election was unconstitutional and void are embraced in his brief, and are as follows:

"(1) That article 3395, Rev. Civ. St., operates to deny to the citizens the equal protection of the law, in that it discriminates against those who vote for prohibition, and operates to disfranchise for a period of two years all citizens within the territory to be affected who are opposed to prohibition, and denies them the right for such period of time to legislate upon that question legally, while, upon the contrary, it confers that right upon those who favor prohibition to vote therefor as often as they shall see fit.

"(2) Said article further denies the equal protection of the law, in that it provides that the failure to carry prohibition in a town or city shall not prevent an election from being immediately thereafter held for the entire justice's precinct or county in which said town or city is situated, and denies to those citizens who oppose local prohibition the privilege of so voting in the event prohibition should carry in a town or city.

"(3) Said statute further denies equal protection of the law, in that it provides that, in the event that prohibition should fail to carry in a town or city, immediately thereafter those in favor of prohibition may inaugurate an election in a larger district, to be selected by them, which shall include the said town or city, and, in the event the election so to be held in such enlarged territory shall be carried in favor of prohibition, the same shall operate as an abrogation and repeal of the previous election held in said town or city. And because said statute further provides that, if at an election prohibition should carry in any town or city, it cannot be defeated by an inauguration of a subsequent election in an enlarged district, and, upon the contrary, provides that when prohibition has been carried at an election in the town, city, or precinct, such prohibition shall not be repealed, except at an election ordered and held for such town, city, or precinct.

"(4) Said statute further denies the equal protection of the law, in that it provides that, when prohibition has been carried at an election in the entire county, no election shall thereafter be ordered in any subdivision of said county until after prohibition has been defeated in the entire county; and, in disregard and denial of equal protection, it further provides that, should an election fail to carry prohibition in a county, those in favor of prohibition may immediately thereafter inaugurate an election for any and all such portions of the county as they may choose, and, in the event prohibition carries in any such subdivision so immediately inaugurated, such election shall have the effect of abrogating the previous election held in the entire county."

The constitutionality of the act of the legislature, known as the "Local Option Act" (Rev. Civ. St. arts. 3384 to 3399, inclusive), authorizing the submission of the question to the people, was before this court in Ex parte Fields, 39 Tex. Cr. R. 50, 46 S. W. 1127; and, so far as our own state constitution is involved, the provisions of the law, especially of article 3395, was construed, and it was distinctly held that the legislature had a right to do exactly what was done here. We can add nothing to what was there decided. We quote at length from that decision, as follows:

"Antiprohibition is in force in every county, justice precinct, town, etc., in this state, unless voted on at an election held for that...