Appellant insists that we shall not overlook or fail to decide the principal question raised on the trial in the court below upon the merits, even though we may find other grounds upon which to reverse the judgment.
As stated in the indictment, the charge preferred against defendant was “unlawfully pursuing the occupation of selling spirituous, vinous, and intoxicating liquors in quantities less than a quart, without having obtained a license therefor, and without having paid the State- and county tax, levied and due on said occupation.” The prosecution was under Article 110, Penal Code, and the act of the Seventeenth Legislature amending the act to regulate the sale of spirituous liquors, etc. (Gen’l Laws, Seventeenth Leg., p. 112, sec. 1.) On the trial, the sale of the liquors as charged was proven, and further that defendant had never paid any occupation tax.
Defendant introduced evidence to prove that local option had been adopted in his precinct, and contended that the adoption of local option abrogated all general laws, and that he was not amenable to the general law so long as local option was in force. (Robertson v. The State, 10 Texas Ct. App., 419.) It is insisted that, though the local option may have been passed without
Upon this point the propositions announced and conclusions deduced are thus stated in the able brief of counsel for appellant:
“1. A statute is always presumed valid. (Cooley’s Const. Lim., 4 ed., 210-321.)
“2. The promulgation of a law gives it intrinsic force. (Cooley’s Const. Lim., 4 ed., 193.)
“ 3. When a law is promulgated by competent authority, parties must observe it until its repeal is declared by competent authority. (Wilson v. O. & M. R. R. Co., 64 Ill., 542, 16 Am. Rep., 565.)
“4. Irregularities in the proceedings had by which a law is enacted will not be looked into by the courts, when the law has been duly promulgated by competent authority, and on its face seems perfect and unobjectionable. (Blessing v. City of Galveston, 42 Texas, 656, et seq.; Mayor v. Harwood, 32 Md., 471, 3 Am. Rep., 161; Louisiana Lottery Co. v. Richoux, 23 La. Ann., 743, 8 Am. Rep., 602; State v. Swift, 10 Nevada, 176, 22 Am. Rep., 721.)
‘‘ 5. Under our present Constitution, parties desiring to contest such an election may do so before the Commissioners’ Uourt before the result is declared, but, after it is declared, and the result promulgated, no court has jurisdiction to hear or determine such contest, and there is no appeal from, and no legal mode for revising, the action of such court. (Ex parte Towles, 48 Texas, 413; Williamson v. Lane, 52 Texas, 335.)
“6. It is the duty of every good citizen to obey whatever may be promulgated by the law making power. (Sessums v. Botts, 34 Texas, 349.)
“ 7. The only way to repeal the local option law is for the voters of the district to petition for a re-election after twelve months time, and vote it down at the polls, and have the result declared and published in the same manner as it was carried. (Rev. Stat., Art. 3236, et seq.)
“ 8. The act of the people in passing the local option law is legislative. (Boone v. The State, 10 Texas Ct. App., 419.)
Page 29‘ ‘ 9. Where local option is in force it abrogates the occupation tax on retailing. (Robertson v. The State, 5 Texas Ct. App., 158.)”
The conclusions drawn from these propositions are: “That in a local option election, the voters, with the Commissioners’ Court, constitute the legislative body, and the promulgation of a law enacted by such body gives it intrinsic force, and where a law has been promulgated as enacted by such body, it is notice to all affected by it, and it is not incumbent on any person to inquire into the regularity of the proceedings that caused its publication; and when such local option law, by its passage, renders non-effective an existing statute, a violator of such statute is protected by such local option law, regardless of whether or not all the formalities were complied with in its passage.”
The propositions are all sound beyond controversy or question. Let us see how far the conclusions will avail a defendant in a criminal prosecution of this character.
It is a rule now well settled in the criminal practice in this State, that, “when distinct substantive matter is relied upon by the defendant to exempt him from punishment and absolve him from liability, then that is matter foreign to the issue as made by the State in her charge against him, and the burden of proving it, in reason, common sense and law, should be upon the defendant.” (Ake v. The State, 6 Texas Ct. App., 398; Jones v. The State, 13 Texas Ct. App., 1.) If the law invoked was a general law passed by the Legislature for the State -at large, then, indeed, the conclusions announced might be maintainable. But, with regard to local option, the settled law is, that the action of the Commissioners’ Court in ordering an election, the election, and all of its incidents, must conform strictly to the requirements of the statute, or the election will be void. (Boone v. The State, 10 Texas Ct. App., 418.) Such a law, even though promulgated by the proper authority, if void, is neither binding upon nor notice to anyone. Being for a particular locality only, it is a quasi local or special law, and depends for its validity upon its adoption in conformity with the law. permitting its adoption. When it is sought to be availed of by the State or defendant as a weapon of offense or defense, the party pleading or asserting a right under or by virtue of it must show it to be a valid and subsisting law. If the law had been a State law per se, then, it
On the trial below, a preliminary question was raised by motion to quash the transcript from the District Court transferring the case and the indictment, and also by plea to the jurisdiction of the County Court.
The district clerk’s transcript shows that the indictment was returned into court by the grand jury on the twenty-fourth day of January, 1882. On the twenty-fifth day of January, 1883, the District Court ordered the cause transferred to the County Court, and the certificate of the district clerk attached to the order of transfer is dated the twenty-second day of January, 1883. The indictment itself appears to have been filed in the County Court on the twenty-sixth day of January, 1883, and the offense, as charged in the indictment, is alleged to have been committed oh the fourth day of January, 1883. If the indictment was presented in court, as certified by the clerk, on the twenty-fourth •of January, 1882, then it was presented nearly a year before the offense is shown to have been committed by the body of the indictment. The clerk transferred the cause, according to his own certificate, three days before the order of transfer was made by the District Court.
Again: The clerk’s certificate of transfer styles the cause which he is transferring as one in which the defendant is charged with “ unlawfully selling intoxicating liquors,” whilst the indictment charges the offense to be the “unlawful pursuit of the occupation of retailing, etc., without license.” ' .
The motion to quash and plea to the jurisdiction, it seems, were both well taken, and should have prevailed. (Robles v. The State, 5 Texas Ct. App., 358; Denton v. The State, 3 Texas
Reversed and remanded.