On the 29th day of December, 1935, the relators, W. H. Mayhew and C. E. Mayhew, made application to the respondent, Hon. Clyde Garrett, as county judge of Eastland county, Tex., for a license to sell beer with an alcoholic content not to exceed 3.2 per cent. by weight in precinct No. 6 of Eastland county, and requested respondent to set a time for a hearing, that notice be given of the filing of the application, etc. Respondent, evidently being of the opinion that the license could not legally issue, refused to take any of the preliminary steps necessary to its issuance. Thereupon relators presented an application for mandamus to the Ninety-first district court of Eastland county, praying for a judgment requiring relator to take the steps necessary for the issuance of such license. This application was refused on the 14th day of January, 1936, and relators have appealed to this court.
It must be remembered that this is an application for a writ of mandamus to be issued to a public officer requiring him to perform an official act. Mandamus will never issue in such a case "unless the relator shows a clear legal right to its performance at the hands of the respondent." 28 Tex.Jur. § 11, p. 533 et seq.
Prior to the adoption in 1919 of section 20, article 16, of the Constitution of Texas, known as the state-wide prohibition amendment, Eastland county, by an election held within and for the whole county, had prohibited the sale of intoxicating liquors within the county. By virtue of the amendment of 1919, the entire state continued to be legally "dry" as to all kinds of liquors, except for certain purposes that need not be considered here, until August 26, 1933, when the "beer amendment" was adopted by amendment of article 16, section 20, of the Constitution. That portion of the amendment of 1933 thought necessary for an understanding of the question to be discussed reads as follows: "Provided the Legislature shall enact a law or laws whereby the qualified voters of any county, justice's precinct, town or city may, by a majority vote of those voting, determine from time to time whether the sale for beverage purposes of vinous or malt liquors containing not more than three and two-tenths per cent (3.2%) alcohol by weight shall be prohibited within the prescribed limits; and provided further that in all counties in the State of Texas and in all political subdivisions thereof, wherein the sale of intoxicating liquors had been prohibited by local option elections held under the laws of the State of Texas and in force at the time of the taking effect of Section 20, Article 16, of the Constitution of Texas, it shall continue to be unlawful to manufacture, sell, barter or exchange in any such county or in any such political subdivision thereof, any spirituous, vinous or malt liquors or medicated bitters, capable of producing intoxication or any other intoxicant whatsoever, unless and until a majority of the qualified voters in said county or political subdivision thereof voting in an election held for such purpose shall determine it to be lawful to manufacture, sell, barter and exchange in said county or political subdivision thereof vinous or malt liquors containing not more than three and two-tenths per cent (3.2%) alcoholic content by weight, and the provision of this subsection shall be self-enacting."
On or about the 21st day of December, 1933, an election was held in justice's precinct No. 6 of Eastland county, "at which election a majority of the voters of said precinct voted to legalize the sale of beer with an alcoholic content not to exceed 3.2 per cent by weight."
"On or about the 3rd day of January, 1936, there was held a county wide election in Eastland County, Texas, wherein a majority of those voting in said election voted against legalizing the sale of vinous *Page 1106 and malt liquors that do not contain alcohol in excess of 4% by weight."
The facts are agreed to between the parties, and the cause is submitted upon an agreed statement of facts. It is further agreed that there has been no precinct local option election within justice's precinct No. 6 since the one mentioned in the second preceding paragraph; that relators are in every way qualified to receive the license applied for if it can legally be issued under these facts. Whether or not it can be legally issued is the sole question of law to be determined.
In the case of Walling v. King, County Judge, 87 S.W.2d 1074, 1075, the Supreme Court, by adopting the opinion of Judge German of the Commission of Appeals, held a city election void under the following circumstances: Childress county had adopted prohibition by county-wide election before 1919. On the 26th day of August, 1933, the county by a county-wide election voted against permitting the sale of 3.2 beer in the county. On March 2, 1934, the city of Childress in Childress county held a city election in which the majority of those voting voted to permit the sale of 3.2 per cent. beer within the city. Walling made application to the county judge of Childress county for a license authorizing him to sell 3.2 per cent. beer in the city of Childress. The county judge refused to take any action on the application. Application for mandamus to compel the county judge to issue the license was presented to the district judge, who refused to issue the mandamus, and Walling appealed to the Court of Civil Appeals at Amarillo. The court certified the following questions to the Supreme Court:
"1. Under all the circumstances was the election held within and for the City of Childress on March 2nd, last, void?
"2. Did the County Judge err in refusing to have a hearing on the appellant's application for license?
"3. Did the District Judge err in denying the appellant's application for a writ of mandamus?"
The Supreme Court, in answering the questions certified, after setting out the constitutional amendment of 1933, known as the Beer Amendment, said:
"Prior to the adoption of section 20, article 16, it had been the law of this state for many years that when a county, justice's precinct, or other political subdivision of a county voted to prohibit the sale of intoxicating liquors, it continued to be unlawful to sell such liquors within the prohibited territory until the voters of the identical territory which had adopted prohibition voted to repeal it. In Ex parte Pollard, 51 Tex. Crim. 488, 103 S.W. 878, Judge Davidson, speaking for the Court of Criminal Appeals, said: `Wherever a local option law is once legally put into operation in a given territory, it must remain in force until it has been voted out by the voters of the territory where such law was originally vitalized.'
"Several cases are cited in support of this holding.
"The constitutional amendment set out above by express words adopted this rule of law. The language is that in any county or any political subdivision thereof where the sale of intoxicating liquors had been prohibited prior to the adoption of section 20, article 16, it should remain unlawful to sell same (including beer) in said county or political subdivision `until a majority of the qualified voters in said county or political subdivision thereof voting in an election held for such purpose shall determine it to be lawful to manufacture, sell, barter and exchange in said county or political subdivision thereof vinous or malt liquors containing not more than three and two-tenths per cent (3.2%) alcoholic content by weight.'
"The very constitutional amendment by which appellant is accorded his right to a license expressly provided that if local option prevailed in the county where he sought to obtain his license it was necessary for the voters of that county to authorize the sale of the 3.2 per cent, beer before he could obtain a license. This the county has never done, but on the contrary it had for the second time voted in favor of local option so far as beer was concerned. It necessarily follows that as Childress county had prohibited the sale of intoxicating liquors within its boundaries prior to the adoption of section 20, article 16, by virtue of subdivision (a) set out above, it was unlawful to sell beer within any part of said county until voters of the whole county determined otherwise. Local option within the county as a whole could not be repealed by piecemeal.
"For other reasons set out in the opinion in the case of Coker, County Judge, v. Kmeicik (Tex.Com.App.) 87 S.W.2d *Page 1107 1076, this day decided, the election within the city of Childress was ineffectual so far as sale of beer in Childress county was concerned.
"It follows that the election of March 2, 1934, was unauthorized and was a nullity. We therefore answer question No. 1 in the affirmative, and questions Nos. 2 and 3 in the negative."
To further stress the fact that the question has been very definitely decided by the Supreme Court of Texas, we present the following extracts from the opinion referred to; that is, Coker, County Judge, v. Kmeicik,87 S.W.2d 1076, 1077:
"The theory of defendant in error is that the constitutional amendment of August 26, 1933, by its local option provision guarantees to a justice precinct the right, by a majority vote of the qualified voters, to permit the sale of beer within said precinct, notwithstanding the county may have voted to prohibit the sale of beer within its borders. * * *
"Eliminating all decisions which appear to be based upon statutory provisions rather than the Constitution itself, we still find that the Courts of Civil Appeals, the Court of Criminal Appeals, and the Supreme Court have expressed the conclusion that the Constitution of 1876 guaranteed to counties, having voted to prohibit the sale of intoxicating liquors, the right to remain dry as a whole, notwithstanding a precinct within the county may vote against prohibition; and have held that the smaller subdivision cannot control over the larger subdivision so far as the right to adopt prohibition is concerned. This is based on the unanswerable proposition that to hold otherwise would be to permit the smallest subdivision recognized by the Constitution to nullify the Constitution as to all larger subdivisions, including the county. * * *
"`We have had this question before us in several cases, and there is not the slightest intimation to the effect that a precinct, town, or city, etc., can hold an election, when the county has voted prohibition, until prohibition is repealed by a vote of the entire county. Every case referred to is emphatically the other way, when properly understood.' * * *
"We are of the opinion that the provision of the amendment of 1933 set out above is to be given the same effect."
It occurs to us that the opinions in Walling v. King, supra, and Coker v. Kmeicik, supra, both adopted by the Supreme Court, are determinative of the issue against relators. But it is contended by relators that the amendment of article 16, section 20, of the Constitution of Texas, of August 24, 1935, provides for a local option election to legalize as well as to prohibit, and that, by virtue of said amendment and the enactment by the Legislature of article 2, § 1, subd. (b), c. 467, pp. 1826, 1827, Acts 44th Leg., 2nd C.S., 1935 (Vernon's Ann.P.C. art. 667 — 1(b), which became effective November 15, 1935, it was intended, and the result is, that the Legislature "ratified and validated that which was declared to be illegal by the case of Coker v. Kmeicik." The provisions do not purport to be retroactive, nor do they purport to validate or ratify anything that has been illegally done. The act of the Legislature merely lays down the procedure prescribed by it for future local option elections. It plainly speaks of the future, not the past. A portion of the same section of said act does provide that in counties or subdivisions "wherein a majority of the voters have voted to legalize the sale of beer in accordance with the local option provisions of Chapter 116, Acts of the Regular Session of the Forty-third Legislature [1933], beer may continue to be sold lawfully."
Substantially the same provision as that quoted is to be found in subdivision (c) of the 1935 amendment of article 16, section 20, of the Constitution of Texas.
We think it was intended in both instances to refer to a valid legal local option election in the area in question. In fact, section 23, article 1, of the Acts of the Legislature last above referred to (Vernon's Ann.P.C. art. 666 — 23) expressly so provides. It reads as follows:
"Whenever the term `dry area' is used in this Act it shall mean and refer to all counties, justice precincts, incorporated cities or towns wherein the sale of intoxicating liquors had been prohibited by valid local option elections held under the laws of the State in force at the time of the taking effect of section 20, Article XVI, Constitution of Texas, in the year 1919. It likewise shall mean and refer to any such area where such sale shall be prohibited under the terms of this or any other Act. *Page 1108
"The term `wet area' shall mean and refer to all other areas of the State.
"As to any particular type of liquor, each county, justice precinct, incorporated city or town within this State shall be deemed to be a `dry area' unless such county, justice precinct, city or town, was a `wet area' at the time Section 20 of Article XVI of the Constitution became effective and has not since said time changed its status, or unless the sale of that particular type of liquor has been legalized by local option election in such county, justice precinct, city or town, since said time.
"The term `wet area' shall be construed as including in each particular instance only liquors of a type or liquors not exceeding in alcoholic content that which have been legalized by a valid local option electionin the prescribed area." (Italics ours.)
We think it was clearly intended by the last constitutional amendment and legislative enactment to place the people of Texas, with reference to local option in the respective areas, in exactly the status they had fixed for themselves by valid local option elections, there to remain until changed in like manner.
That the local option election in justice's precinct No. 6 was not valid, but void, was definitely determined by the Supreme Court in the cases cited.
Our conclusion against the contention that the void election has been validated is fortified by the fact that the same contention, in effect, was presented to the Supreme Court in the cases mentioned, at least on motion for rehearing, and rejected by that court when it overruled the motions for rehearing in January, 1936.
We conclude that the action of the county judge was correct, and that the district court did not err in refusing to issue the mandamus. The judgment of the district court is affirmed.