The judgment in this proceeding, which was instituted to contest a local option election in Wise *Page 440 County, was affirmed on the original hearing in an oral opinion, Hunter, Associate Justice, filing a written dissent. By both written and oral argument in support of this motion, counsel for appellant persists in the contention that that election should be set aside. On account of this persistent and earnest insistence on the part of able counsel, and the dissent of Justice Hunter, we have concluded in this instance to depart from the practice adopted soon after the organization of this court, in order to relieve the congestion of our docket and avoid an unnecessary multiplication of published decisions, of writing opinions only in those cases where the statute made it obligatory. We proceed then to state, briefly, our conclusions in writing.
The election in question was held after the posting for twelve days of the requisite number of copies of the order of election as provided in the local option statute (Rev. Stats., art. 3230), but without giving the twenty days' notice as provided in the general election law (article 1685). The article last cited is found in a chapter of the general election statute succeeding articles which provide for the election of various State and county officers. This chapter also contemplates other elections, but makes no mention of local option elections, which were elsewhere expressly provided for, under title 63 of the Revised Statutes, but not under title 34, which embraces the several chapters on the subject of elections generally.
According to all the rules of construction, the language in article 1685, "Where any election is ordered, at least twenty days' notice," etc., should be interpreted with reference to the various elections provided for in that chapter and under that title, and not to elections provided for and regulated under a different title. But we are not left to rules of construction merely. The very last article (1759) of the general election title itself declares the applicability of the provisions under that title (including article 1685), as follows: "The provisions of this title shall apply to all elections, whether for officers or for other purposes, where not otherwise provided by law." Thus, by the express terms of the general election statute itself, the provisions under that title (34) only have application to elections not otherwise (as in title 63) provided for.
The question then is, did the local option statute in providing for elections of that class prescribe what notice should be given? If so, there can be no escape from the conclusion that the general election statute, by its very terms and provisions, is excluded, except in so far as its provisions were expressly adopted by the local option law. The local option statute has always provided the kind and length of notice to be given of elections thereunder. Originally it required copies of the order of election to be posted twenty days before the election, though authorizing the election to be held as early as fifteen days after it was ordered. This conflict was considered and declared by the Court of Appeals, and soon thereafter the change was made by the Legislature from twenty to twelve days. Obviously, the purpose of the change was to eliminate this conflict. *Page 441 To hold now that a local option election may be ordered and held fifteen days after the order is made, as the statute (article 3229, as amended in 1893) provides, but that twenty days' previous notice thereof must be given, is to hold that the Legislature re-enacted an absurdity, after their attention had been called thereto. The more reasonable construction would be, that they reduced the time from twenty to twelve days to avoid such absurdity, seeing that twenty into fifteen will not go.
The only possible escape from this conclusion is through the still more unreasonable one, that it was not the purpose of article 3230 to give notice to the voters in requiring the clerk to "post or cause to be posted at least five copies of said order [provided for in preceding section] at different places within the proposed limits, for at least twelve days prior to the day of election." True, it is not there called notice, though in other parts of the act, where it is evidently referred to, the term notice is used. Articles 3227, 3229. The copies of the order are required to be "posted." The verb post is defined in Webster's Dictionary as follows: "To attach to a sign-post or other usual place of affixing public notices; to advertise; as, to post a notice." That such posting was intended to be notice or nothing is so plain, we think, that he who runs may read. Should this requirement of the statute not be properly complied with, the remedy is given in article 3239a, under which this proceeding is had.
In further confirmation of the view here maintained, the general election statute prohibits the creation of an election precinct out of parts of two justice precincts, but no such restriction is found in the local option statute in providing for the designation of subdivisions of the county and fixing voting places therein. To this feature of the amended local option statute the general election law as to election precincts, and consequently the provisions for notices of elections therein, hardly seems applicable.
Furthermore, as the Court of Criminal Appeals is the tribunal that must ultimately determine the validity of local option laws, and as we understand it to have adopted the construction here given, we think its decisions ought to be followed by this court. Winston v. State, 32 Texas Crim. App., 59. The law was upheld in the case just cited, though the election was held less than twenty days after it was ordered, precluding thereby the possibility of twenty days' notice. It is urged, however, that the point was not directly raised. True, it does not appear that either the counsel or the court saw fit to discuss it, but it was necessarily involved in the decision. It was too obvious to have escaped attention, and the reasonable construction should be, we think, that it was not then deemed of the magnitude to which it has recently grown.
The expressions in the opinion of Chief Justice Lightfoot in Himberly v. Morris, 31 S.W. Rep., 810, were dicta, and seem to have been made incidentally merely, without any particular examination of the question. *Page 442
We adhere to the conclusions heretofore announced orally, and overrule the motion.
Motion overruled. Judgment affirmed.
DISSENTING OPINION.