At the request of counsel for appellees, the consideration of this motion was postponed on account of the pendency in the Court of Criminal Appeals of two certain appeals from Parker County, in which Tom Fields and Hez Allen were the respective appellants, involving, as was thought, in effect, though in a different form, substantially the same question as is presented by the motion. These cases, as we understand, though we have not had access to the opinions, have been decided against the contention of appellees, and their counsel now withdraw their request for further postponement. We proceed, therefore, to dispose of the motion.
On the original hearing our discussion was confined to the grounds stated in the petition for mandamus. In a carefully prepared printed argument, counsel for appellees now urge, in support of the motion for rehearing, which was to some extent presented on the original hearing, that the Constitution itself (article 16, section 20) entitles the city of Cleburne to the election sought. But if we adopt this view, we must hold article 3395 of the Revised Statutes to be unconstitutional, which we are not inclined to do, since, as before seen, it but declares the true construction of the original local option law, the validity of which has been too often affirmed by our Court of Criminal Appeals, which is a court of final jurisdiction, to be now questioned by this court. Besides, section 20, article 16, of the Constitution, is not self-executing, but only makes *Page 486 it the duty of the Legislature to pass such laws as will enable the qualified voters of a county, city, or town, etc., from time to time to determine by a majority vote whether the sale of intoxicating liquors shall be prohibited within the prescribed limits. If the Legislature has failed to do its duty under the Constitution, the remedy is certainly not mandamus against the commissioners court.
We are also of the opinion that the interpretation which counsel for appellees seek to give this section of the Constitution is not the correct one. The idea seems to be that it gives to a city or town situated in a county where prohibition has been adopted and is in force throughout the county the right at any time, by a majority vote, to repeal the law within the urban limits, though no previous election for such town or city has ever been held. It is manifest that the prime object of this constitutional provision was to provide for such legislation as would give to the voters of the named localities from time to time an opportunity, if the majority so desired, in the first instance, to adopt the law, and then, when found not to give satisfaction to such majority, to repeal it. It certainly could not have been the purpose of the framers of the Constitution to reverse the order, and confer on the voters of the given locality the right to repeal what they had never adopted. It could not, with any show of reason, be contended that the object of the election sought in this case was the adoption of the prohibition law for any part of Johnson County, since it already prevailed throughout the county. The result of the proposed Cleburne election, then, would add nothing to and could take nothing from the law, and it would be unreasonable to impute to the framers of the Constitution an intention to provide at public expense for any such useless election. For a further statement of our views upon this question, see Harvey v. State, 33 Southwestern Reporter, 886.
If this construction works a hardship on cities and towns not yet grown large enough to control the county election, it is due to the inclusion of the less within the greater, and to the subordination of the will of the minority to that of the majority. Any other construction would deprive a majority of the voters of the whole county of the constitutional right conferred, first in order, on them.
The Kentucky cases cited and discussed with so much plausibility by counsel arose under statutes essentially different from our own.
The motion is overruled.
Rehearing denied. *Page 487