This is an application for an original writ of habeas corpus filed in this court. There appears nothing before the court upon which any judgment may be predicated. The application alleges that relator is illegally restrained by the constable of precinct No. 1 of Dallas County, by virtue of a certain warrant of arrest, a copy of which is alleged to be attached. An inspection of said alleged copy shows there is no return of any officer thereon. There is no statement of any facts filed, and all of the matters on file in this court are mere pleadings and prove nothing. Ex parte Welburn, 70 Tex.Crim. Rep.; Ex parte Roberson,63 Tex. Crim. 280; Ex parte Thomas 65 Tex.Crim. Rep., 145 S.W. Rep., 601; Ex parte Barnes, 73 Tex.Crim. Rep., 166 S.W. Rep., 728.
We cannot know from this record whether in fact any complaint is on file against relator, or whether or not in fact he is now, or has ever been, in custody. However, we observe here that the rule was early laid down by this court, that where no valid reason is shown why an application was not presented to the lower court, the writ would be refused by this court. Ex parte Lynn, 19 Texas Crim. App., 120; Ex parte Gregory, 20 Texas Crim. App., 210.
The writ, at the hands of this court, should be issued originally only in extraordinary cases; Ex parte Lambert,37 Tex. Crim. 435; Ex parte Pattison, 42 Tex. Crim. 256; Ex parte Japan, 36 Tex.Crim. Rep.. In the Japan case,supra, Judge Davidson says: "While the Constitution and statutes on this subject give to this court jurisdiction to issue writs ofhabeas corpus, yet we do not believe it was the intention of the lawmakers to constitute this tribunal a nisi prius court for the purpose of issuing and trying indiscriminately, all cases ofhabeas corpus. The Constitution and laws *Page 176 of this state authorize us to review such case on appeal." Further in said opinion, the learned presiding Judge said: "This application could have been made to the county court of Bell County, if indeed applicant could have resorted to the writ ofhabeas corpus at all." These are apt and forceful words and apply with peculiar strength to the matter now before the court. An inspection of the documents attached to the application in the instant case, show that on February 27, 1919, a complaint was filed in the office of a justice of the peace at Dallas, the charging part of which complaint is as follows: "I, M.G. Kennedy, being duly sworn, do state on my oath, that in said State and in the county of Dallas, on the 24th day of December, 1918, Ed Davis did then and there unlawfully manufacture spirituous, vinous and malt liquors capable of producing intoxication, and not to be used for medicinal, scientific or sacramental purposes, against the peace and dignity of the State;" and that on the same day this application was prepared and sworn to, and on the following day the same was filed in this court. As stated, whether relator was ever actually arrested, does not appear. Whether any writ was ever issued or served is likewise not shown, nor is there any answer or return of any officer or other person showing that he holds the relator in restraint. The entire proceeding might be an attempt to evade the usual and proper method and channel by which questions and causes should be brought before this court, and might be an effort to obtain from this court an opinion on some phase of the prohibitory laws. We observe further that the offense, if any, charged against relator, is a felony and the only jurisdiction of the justice court of Dallas County was that of an examining magistrate. In such case this court has uniformly declined to interfere with the jurisdiction of such magistrate by awarding a writ of habeas corpus before a hearing and judgment in such trial court. Such court is a court of competent jurisdiction and the presumption is that its judgment will follow the law. Ex parte McCorkle, 29 Texas Crim. App., 20 and authorities cited; Ex parte Krug, 60 S.W. Rep., 38. Let us state again that when a case is pending before a court of competent jurisdiction, this court will not award a writ of habeas corpus unless it is made to appear that the hearing in the court where such matter is pending, is being delayed to the relator's injury and that the writ has been refused by the local court having jurisdiction to hear and render judgment on the law and facts. This court has power to issue a writ and in an extraordinary case may compel or procure evidence necessary to a determination of the issues made thereunder, but in an ordinary case this court's jurisdiction is appellate and only in this way should such cases be brought here. For the reasons stated the application should be dismissed. It is the impression of the Assistant Attorney General that there was an agreed statement of facts filed which has been misplaced and *Page 177 that same shows that relator was in fact under restraint herein. We fail to find anything of that kind in the record, but in view of this, add to what we have already said, that the Acts of the Fourth Called Session of the Thirty-fifth Legislature make penal the manufacture of intoxicating liquors with certain exceptions and that there is nothing in the Constitution of the State which forbids such legislation. Said Act is composed of numerous sections forbidding various matters in connection with the liquor traffic. Section 1 of said Act contains nothing except the prohibtion of the manufacture of intoxicating liquors.
It is specifically provided in another section of said Act that if any part or section of said Act be held unconstitutional that this shall not affect the remainder. If the Meyer case,84 Tex. Crim. 288, be correct, which is not here discussed, the holding thereunder would not affect the provisions of said Act forbidding the manufacture of liquor. I am in accord with the doctrine that if the governor submit to a called session of the Legislature, legislation on any subject, the whole of such subject is thereby opened for such legislation as the lawmakers may enact relative thereto, and further think that the submission of liquor regulation to a called session of the Legislature by means of what might be called the creation of a zone, opens up the whole subject of liquor regulation. It follows that whether a statement of facts was filed or not adhering to the rules hereinbefore announced, this application should be dismissed and relator remanded to the custody of the constable of precinct No. 1 of Dallas County.
Dismissed.