Ex Parte Brown

Court of Criminal Appeals of Texas

Ex Parte Brown

34 S.W. 131, 35 Tex. Crim. 443, 1896 Tex. Crim. App. LEXIS 36

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 12, 1896

DocketNo. 901.

StatusPublished

Cited by7 cases

This text of 34 S.W. 131 (Ex Parte Brown) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Brown, 34 S.W. 131, 35 Tex. Crim. 443, 1896 Tex. Crim. App. LEXIS 36 (Tex. 1896).

Pincite

Opinion

HURT, Presiding Judge.

It appears from the record that an election was held for the purpose of determining whether intoxicating liquors should be sold in precinct No. 1, of Burnet County. This election was held on the 10th day of July, 1893, and resulted against prohibition. The subdivision, in which the last election was held, was carved out of said precinct No. 1. The last election for this subdivision was had before the expiration of two years from the date of the first election. It occurred a month and six days prior to the expiration of the two years. The relator contends that this election was absolutely void, because it could not legally he held at that time, or at any time prior to the expiration of the two years. The appellant insists that this contention is supported by article 3236, which provides, “that no election under preceding articles shall be held within the same prescribed limits in less than two years after the election under this title has been held therein.” This article does not support the contention of the relator. The last election was not within the same prescribed limits,—all of the same territory was not covered. Article 3238 provides, “that the holding of an election in a j ustice’s precinct shall not in any way prevent the holding of an election immediately thereafter for the county.” It does not prohibit the holding of an election in the same precinct for a town, city, or subdivision thereof within less than two years. One of the objects of this article is for the purpose of prohibiting the construction *449 of the local option law so as to permit an election in a precinct, town, or city, in which prohibition was defeated, preventing an election in the county, or precinct, as the case may be. To be more explicit, if prohibition is defeated in a town or city, the object of this article is to prevent the law from being so construed as to hold that an election could not be had in the precinct or the whole county within less than two years after the election. If an election is held within a precinct, and prohibition defeated, the law must not be so construed as to hold that such an election would prevent an immediate election for the whole county. It says nothing about lesser territories, except the first subdivision of the article. Prohibition, in article 3236, applies to the county, cities, or subdivisions of the county, and that an election cannot be had, whether' prohibition carries or is defeated, until the expiration of two years thereafter. This, means where the precise territory is to be affected, and has no reference to carving below the extent of such territory. The last act gives to a Commissioners’ Court the right to carve out just such territory as they may deem proper. It may be taken from two or more adjacent precincts. ' When carved, it is treated as a separate and distinct subdivision of the county for local option purposes. The result of the election was published consecutively for three weeks, once a week in June and July, as required by law, but the fourth publication was on the 19th of September. The continuity being thus broken by an injunction, which was afterwards dissolved, the relator contends that the result of the election, to-wit: prohibition, cannot be enforced, and that the election is a nullity. We had this precise question in the case of McDaniel v. State, 32 Tex. Crim. Rep., 16, and in that case we held that the hiatus would not defeat the election. We see no reason for changing our opinion in regard to this question.

Affirmed.

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HURT, Presiding Judge.

It appears from the record that an election was held for the purpose of determining whether intoxicating liquors should be sold in precinct No. 1, of Burnet County. This election was held on the 10th day of July, 1893, and resulted against prohibition. The subdivision, in which the last election was held, was carved out of said precinct No. 1. The last election for this subdivision was had before the expiration of two years from the date of the first election. It occurred a month and six days prior to the expiration of the two years. The relator contends that this election was absolutely void, because it could not legally he held at that time, or at any time prior to the expiration of the two years. The appellant insists that this contention is supported by article 3236, which provides, “that no election under preceding articles shall be held within the same prescribed limits in less than two years after the election under this title has been held therein.” This article does not support the contention of the relator. The last election was not within the same prescribed limits,—all of the same territory was not covered. Article 3238 provides, “that the holding of an election in a j ustice’s precinct shall not in any way prevent the holding of an election immediately thereafter for the county.” It does not prohibit the holding of an election in the same precinct for a town, city, or subdivision thereof within less than two years. One of the objects of this article is for the purpose of prohibiting the construction *449 of the local option law so as to permit an election in a precinct, town, or city, in which prohibition was defeated, preventing an election in the county, or precinct, as the case may be. To be more explicit, if prohibition is defeated in a town or city, the object of this article is to prevent the law from being so construed as to hold that an election could not be had in the precinct or the whole county within less than two years after the election. If an election is held within a precinct, and prohibition defeated, the law must not be so construed as to hold that such an election would prevent an immediate election for the whole county. It says nothing about lesser territories, except the first subdivision of the article. Prohibition, in article 3236, applies to the county, cities, or subdivisions of the county, and that an election cannot be had, whether' prohibition carries or is defeated, until the expiration of two years thereafter. This, means where the precise territory is to be affected, and has no reference to carving below the extent of such territory. The last act gives to a Commissioners’ Court the right to carve out just such territory as they may deem proper. It may be taken from two or more adjacent precincts. ' When carved, it is treated as a separate and distinct subdivision of the county for local option purposes. The result of the election was published consecutively for three weeks, once a week in June and July, as required by law, but the fourth publication was on the 19th of September. The continuity being thus broken by an injunction, which was afterwards dissolved, the relator contends that the result of the election, to-wit: prohibition, cannot be enforced, and that the election is a nullity. We had this precise question in the case of McDaniel v. State, 32 Tex. Crim. Rep., 16, and in that case we held that the hiatus would not defeat the election. We see no reason for changing our opinion in regard to this question.

Affirmed.

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Bluebook (online)

34 S.W. 131, 35 Tex. Crim. 443, 1896 Tex. Crim. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-brown-texcrimapp-1896.

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