This appeal is from a judgment of the county judge of Milam county in a habeas corpus proceeding. Appellant was held in custody by one Cone, a constable of Milam county, by virtue of a warrant of .arrest issued by a justice of the peace of said county upon a complaint charging appellant with a violation of the local option law in said county. He applied to the count}^ judge of said county for the writ of habeas corpus, and obtained the same, but upon a hearing thereof said judge remanded him to the custody of said constable.
Appellant claims that he is entitled to be discharged from custody upon three grounds, to wit: ■
1. Because the local option law is unconstitutional.
Page 2952. Because the election at which the local option law was adopted in Milana county was void.
3. Because said law, if legally adopted, could not operate and have effect in the city of Rockdale, the place where intoxicating liquors were sold by appellant.
These propositions have been earnestly and ably insisted upon before this court by counsel for appellant, both in his brief and in an oral argument. We will consider them, in the order in which we have stated them above.
I. It is claimed that the local option law is unconstitutional, be- ' cause it is in violation of sections 15, 16, 17 and 19 of our Bill of j Rights, and of article Y and section 1 of article XIY of the amendments to the Constitution of the United States. The principal argument urged in support of this position is, that the effect of the local option law is to take or damage private property for public use, without compensation to the owner, and without due course of law. There is strong reasoning in support of the position, and, were it an original question, this court would be inclined to hold that the local option law is an infringement of section I of our Bill of Rights, which provides that “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,” etc. We would be inclined to adopt the views and reasoning of Judge Comstock, so clearly and ably expressed in the case of Wynehamer v. The People, 3 Kernan (N. Y.), 378. But opposed to these views there is a strong and almost uniform array of authorities which unequivocally declare that laws such as our local option law are within the scope of the police powers of a State, and do not take, damage or destroy private property for public use within the meaning of that provision of the organic law, and do not infringe upon any other provision of constitutional law.
Upon this subject Mr. Cooley, in his work on Constitutional Limitations, says, after discussing the license cases decided by the supreme court of the United States (5 Howard, 504): “It would seem from the views expressed by the several members of the court in these cases that the State laws known as prohibitory liquor laws, the purpose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the power of Congress to regulate commerce, and to levy imposts and duties. And in several cases it has been held that the fact that such laws may tend to prevent, or may absolutely preclude, the fulfillment
The above quoted texts are abundantly and overwhelmingly supported by adjudicated cases in a number of the States of the Union.
II. It is claimed by appellant that the election at which the local option law in Milam county was adopted is void, because of a supposed defect in the petition upon which the commissioners’ court acted in ordering said election. The petition is claimed to be defective because it does not state that the petitioners are qualified voters of Milam county. Article 3227 of the Revised Statutes declares that it shall be the duty of the commissioners’ court, upon the petition of at least fifty qualified voters of the county, to order the election. There is no provision of the statute which prescribes the requisites of such petition. It is clearly contemplated, however, that it shall be in writing and signed by at least fifty qualified voters of the county, or twenty qualified voters of the precinct, town, or city, as the case may be, in which it is desired to have the election. Xo particular allegations or statements are required to be made in it. If it expresses in an intelligible manner the desire of the petitioners to have an election held for the purpose of determining whether or not the local option law shall be adopted within the county, or within a certain justice’s precinct, town or city, it is, in our opinion, sufficient.
But, even if it were essential, as contended for counsel for appellant, that it show upon its face that it is presented by the requisite number of qualified voters, the petition in this case substantially and sufficiently shows that fact. It is addressed to the commissioners’ court of Milam county, Texas, and states that “The undersigned citizens of said county, believing,” etc. The word citizens is a sufficient allegation that the signers are qualified voters of the county. A citizen is defined to be “ a member of the civil State, entitled to all its privileges.” (Cooley’s Const. Law, 77.) One of the definitions of the word given by Mr. Webster is, “A person, native or naturalized, who has the privilege of voting for public officers, and who is qualified to fill offices in the gift of the people.”
III. The third and last position contended for by counsel for appellant is that the charter of the city of Rockdale, the place where appellant is alleged to have unlawfully sold intoxicating liquor, empowered the corporate authorities of that city to license and regulate the sale of intoxicating liquors within the corporate limits of said city, and that this authority had been exercised by the city, by the passage of ordinances prior to the adoption of said local option law, and by the issuance of licenses under said ordinances permitting appellant and others, for the consideration of certain sums paid to said city, to carry on the business of selling intoxicating liquors for a certain named period of time, which period of time had not yet expired. It is argued that the adoption of the local option law in Milam county does not, and could not, have the effect to repeal or supersede the charter rights of said city, and the ordinances and licenses enacted and granted in pursuance thereof; but that the powers conferred upon said city by its charter, that charter being the general law for the incorporation of cities and towns (see ch. 4, title XVII, R. S.), is a special grant of power, which cannot be taken awrny or abridged by the local option law, which is a general statute.
In support of this position we are cited to Davis v. The State, 2 Texas Ct. App., 425, and Craddock v. The State, 18 Texas Ct. App., 567. Neither of these cases, we think, sustains or is applicable to the proposition here contended for. The local option law was enacted under a mandatory provision of our Constitution. (Const., art. XVI, sec. 20.) While the law in one sense may be said to be a general statute, still in its operation it is confined to localities which may adopt it, and in this sense it is a special statute (Donaldson v. The State, 15 Texas Ct. App., 25), and must, we think, be given the effect of a special statute, and be held to set aside, and, during its operation, repeal all laws and regulations in conflict with it.
But, even viewing it as a general law, it was unquestionably the intent of the Legislature that it should have the effect, whenever adopted in a particular locality, to prohibit the sale of intoxicating liquors in that locality by any person, without regard to whether such person had been licensed by the State, county, city or town to
In Rowland & Bro. v. The State, 12 Texas Ct. App., 418, this court held that the Legislature had power by general law to revoke a license for which an antecedent tax had been received by the State. We hold, therefore, that the local' option law having been legally adopted in Milam county, it became operative throughout the county, and upon all persons within said county alike, and had the effect to repeal and abrogate all licenses for the sale of intoxicating liquors granted by said county, or by any city or town within said county.
We find no error in the judgment appealed from, and it is affirmed; and it is further ordered that the appellant pay the costs of this appeal, and the amount of costs due herein to the clerk of this court is fixed at §10.
Affirmed.
[Opinion delivered November 11, 1885.]