In the opinion of my brother Brooks, the facts connected with the case are stated, and in discussing the questions, reference is here made to same. As the subject is one of some interest, in addition to what was said in that opinion, I desire to make a few observations.
The real question here involved is, whether the Terrell Election Law, which requires notices of all elections to be posted for twenty days in all election precincts of the territory where an election is held, or whether the local option election law, which requires five notices to be posted for twelve days in the territory to be affected, applies. That is, whether the Terrell Election Law supersedes and annuls the local option election law on this subject. As incident to this a larger question is embraced, that is, whether the Terrell Election Law repeals by implication the provisions of our local option law regulating elections for that purpose, regardless of whether these provisions be with reference to the mode and manner of holding elections or matters preliminary thereto.
It is conceded that the Terrell Election Law is later in point of time than the local option law. It is also conceded that if the later law effects a repeal, it is not by expression but by implication. No one will dispute the proposition that repeals by implication are not favored. The rule on this subject is well stated in Harold v. State, 16 Texas Crim. App., 157.
As a corollary to the above rule and lending strength in its application to this case, I desire to state two other propositions: 1. That while a general law will repeal a special law even by implication, the intent of the Legislature to repeal the special act by the general act, must be placed beyond any reasonable question. On this subject I quote from the text of Sutherland on Stat. Construction (Secs. 157, 158, 159), citing numerous authorities in its support. "It is a principle that a general statute, without negative words, will not repeal by implication from their repugnancy the provisions of a former one which is special or local, unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the Legislature contemplated and intended a repeal. * * * The general law can have full effect beyond the scope of the special law, and, by allowing the latter to operate according to its special aim, the two acts can stand together.
Unless there is plain indication of an intent that the general act shall repeal the other, it will continue to have effect, and the general words with which it conflicts will be restrained and modified accordingly. * * * These interpretations harmonize with the rule that when a general intention is expressed, and also a particular intention, *Page 290 which is incompatible with the general one, the particular intention shall be considered an exception to the general one." Mr. Black, on this subject, uses the following language: "This rule is founded upon or expressed by the maxim, generaliaspecialibus non derogant. Thus, when the provisions of a general law applicable to the entire State are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either wholly or in part, unless such modification or repeal is provided for in express words or arises by necessary implication. A local statute enacted for a particular municipality, for reasons satisfactory to the legislature, is intended to be exceptional and for the benefit of such municipality. It has been said that it is against reason to suppose that the legislature in framing a general system for the State intended to repeal a special act which the local circumstances made necessary." See Black Inter. Laws, p. 116; Endlich on Inter. of Stat., sections 230, 231.
The application of the above rule is made manifest when it is considered that the Terrell Election Law is general in its scope, covering the entire State, and the local option election law is special in its character, relating only to localities voting on the question of local option.
Another proposition that refers itself directly to the matter under consideration is the following: 2. Where the Legislature has enacted a general law on a given subject, and a special law relating to the same subject matter in part, and these laws have been construed by the courts in pari materia, — that is, the courts have so construed them as to permit both to stand — and subsequently the Legislature passes another act on the general subject, it will be presumed to have taken notice of the former laws on the same subject, and the construction placed thereon by the courts. The last general act of the Legislature on the same subject, as the prior act, will not be held to repeal the special law, unless the intention of the Legislature to work a repeal is manifest — I had almost said, it cannot be done, unless by express provision.
Now, if it shall transpire that the former law on the subject of elections (Rev. Civ. Stat., title 36) is the same in all its essential features, so far as the local option election law then existing was concerned, as the later Terrell Election Law (Gen. Laws, 28th Leg., p. 133) in its essential features regarding local option, and if the courts have harmonized the former existent laws and given effect and operation to both, within their particular spheres; then it must follow that as between the Terrell Law and the former special law the same construction must be adopted, unless it shall be shown that the former interpretation was radically wrong. In Shields v. State,38 Tex. Crim. 252, this very question of a difference in the time of notice as between the general election law and the local option election law, was before the court. It was there held that the local option law prevailed within its territory. I quote from the language of that decision, as follows: "It is contended by appellant that the notice of the election must be *Page 291 posted within each voting precinct in the county, and he refers us to the acts of the 22nd Legislature, p. 13 (which is now article 1728, Revised Civil Statutes — General Election Law) regulating special elections. This act has no reference to local option elections. We have a special provision in regard to local option elections, which is, that the five notices must be issued and posted in the territory to be affected. See article 3387, Rev. Civ. Stat., 1805. We hold that these two statutes are independent of each other; that the statute of 1891 was made to apply to special elections generally with reference to notice, while local option elections are regulated by the statute passed for that purpose." Voss v. Terrell, 34 S.W. Rep., 170; Roper v. Scurlock, 69 S.W. Rep., 456. These two last mentioned cases were opinions rendered by our courts of civil appeals on this subject; and they hold that the two laws are independent of each other, the one applicable to elections generally, as to notice; and the other operative with reference to local option elections as to notice. In reaching the conclusion they did, our courts, both criminal and civil, must have had in view the essential difference in the two laws; the one pertaining to elections generally and the other pertaining to an election of a special character, to wit: local option. The latter act provides the machinery peculiar to itself and under the distinct provision of the Constitution authorizing local option elections. That provision of the Constitution requires the Legislature "to enacta law whereby the qualified voters" of the county, or of thenamed subdivision thereof, "may by a majority vote determine from time to time whether the sale of intoxicating liquors shall be prohibited within prescribed limits." That mandate of the Constitution was complied with by the Legislature, and they provided how an election should be brought about, what preliminary steps should be had, and then referred the matter as to how the vote should be taken to the provisions of the general election law. Article 3387, among other things, provides: "Which election shall be held and the returns thereof made in conformity with the provisions of the general laws of the State, and by the officers of election appointed and qualified under such laws." Article 3389 provides: "The officers holding said election shall in all respects not herein specified conform to the existing laws regulating elections," etc. Thus making provision as to the manner of holding elections, in harmony with the general election law of the State and in consonance therewith. It may also be stated as a significant fact, while the Terrell Act mentions other special elections, such as municipal and school elections (see sections 44-59) it nowhere refers to local option elections, by name. No wonder the courts have held that the two statutes, though relating in a measure to the same subject matter, could stand together, each revolving in its own orbit — the local option election law in some of its details being peculiar to itself, especially as to the preliminary steps to be taken in order to bring about an election. These relate to the application for the election, the order granted by the commissioners court for holding the same, the character of notice to be *Page 292 given, and number of copies and time to be posted, and also requiring return of the votes to be made to the commissioners court to be counted by them, and the result declared, etc. These provisions relate solely to an election of this character, and are different from the provisions to be found in the general election law relating to the same subject. It would seem to follow if the provision with reference to time of posting notice is repealed, that all of the other provisions out of harmony with the general election law, are also nullified. Such a result was never contemplated by the Legislature in passing the general election law.
The question then presents itself, what new words of repeal or annulment are embraced in the Terrell Election Law which were not contained in the former general election law. In all reasonable intendment it rests with those who assert an essential difference, to point it out. The old election law, as well as the Terrell Election Law, intended to take its place, refers to special elections as well as general elections: both prescribing the character of notice to be given of the election, and by whom; both prescribing the character of ballot, and both prescribing the manner and form of holding the election. The only radical difference between the two laws relates to the qualification of votes — the latter act prescribing a poll tax qualification. This no doubt constituted the reason for the passage of the Terrell Law and differentiates it from the former law on the subject. In addition it may be mentioned that the Terrell Law relates to primary elections, which the former act did not embrace, and also prescribes penalties for violating the law which the former act did not. So there is nothing in the contention, that the Terrell Election Law, as to local option, has legislated on other new subjects not in harmony with the local option law, and tending to repeal it by implication. It is said, however, that the last clause of the Terrell Law, to wit, section 144, operates a repeal of the local option election law. It reads as follows: "This act is cumulative as to penalties for violating the elction laws of the State and as to the mode and manner of any law, except such laws as are inconsistent with it, or in conflict herewith; provided this act shall not apply to any election held prior to February 1, 1904." It will be noted that those who insist on a repeal of the local option election law, emphasize the language: "as to the mode and manner of any law," contending that this language absolutely implies a repeal of the local option election law as to notice, as well as other preliminary steps. Whether this relates to cumulating penalties, as to mode and manner of holding elections, or is cumulative merely as to the mode and manner of holding elections, it occurs to us, makes no difference in the construction to be placed on the language. The mode and manner of holding elections naturally and reasonably relates to the day of holding the election, and what then transpires. Norman et al. v. Thompson et al., 6 Texas Ct. Rep., 607, 72 S.W. Rep., 62. So there is no inconsistency between the provisions of the local option law, which refers to the mode and manner of holding elections, to those who are to vote at the same, and the *Page 293 officers holding the same, and the general election law. This construction does not operate a repeal, but harmonizes the two laws. If it were an original proposition as to whether or not the Terrell Election Law repeals the local option election law as to the preliminary steps to be taken, particularly as to the notice to be given, I see no escape from the proposition, that the two laws can be harmonized and can stand together. To re-state the case: the local option election law, in regard to how and by whom the election is to be ordered, the character of notice to be given, by whom, and the time and manner of posting same; and also with reference to the character of ballots to be used, and by whom the final count of the vote is to be made, requiring it to be done by the commissioners court on the 11th day after the election, in order that the result may be declared by the proper authority, and notice thereof given, differs essentially from the Terrell Law as to these matters; but the latter does not operate to repeal the former on that account. On the contrary it is evident the Legislature never intended to bring about such a result. Understanding the construction placed by the courts, as between the former general election law and the local option election law, as it is presumed to, and knowing that they had been harmonized, so that both should stand within their respective spheres, it was never contemplated by that body, that the Terrell Law should annul the provisions of the local option election law in the respects above referred to. The former by its terms refers generally to the whole State, and the latter exceptional, and referring to the particular locality only. If a repeal had been intended under the circumstances here manifest, the Legislature would not have used vague and shadowy phraseology, but apt and explicit language would have been employed demonstrating that purpose.
The local option election law, by referring to the general election law as to who has the right to vote and as to the mode and manner of holding the election (which is provided for by the Terrell Law), stands under the shadow of that law, as to all that relates to voting on the day of the election. Whatever purity at the ballot box is guaranteed by that law, is equally guaranteed to those who vote at a local option election. At the same time those safeguards erected by the law-makers for a local option election, whereby the qualified voters can declare themselves in favor of or against local option in a particular territory, are preserved. To declare that the Terrell Election Law, as to these preliminary matters provided for in the local option election law "repeals the former by necessary implication," would produce inextricable confusion, and operate a result never intended by the law makers; and, in my view, would do violence to all the rules of statutory construction on this subject. *Page 294