Relator applied to the district judge, and also to the county judge of Parker County, for this writ, which was denied; hence application is made to this court.
Relator was tried for selling whisky in precinct No. 1, Parker County, entered his plea of guilty, and was fined, with imprisonment in the county jail for twenty days. Relator that this judgment was absolutely void, because local option was not in force in precinct No. 1 of Parker County at the time the sale was made. The contention is as follows: That the election was held in precinct No. 1 on the 5th day of September, 1896, which resulted in the defeat of prohibition. Now, *Page 54 it appears from the record that an election was held on the same day for the entire county, and resulted in favor of prohibition; that the county and precinct elections were held simultaneously in said precinct No. 1. The question is therefore presented whether, under the above state of facts, the sale of intoxicating liquors was prohibited in said precinct No. 1 of Parker County. The Constitution provides: "The Legislature shall at its first session enact a law whereby the qualified voters of any county, justice precinct, town, city, or such subdivision of a county as may be designated by the commissioners court of said county, may by a majority vote determine from time to time whether the sale of intoxicating liquors shall be prohibited within the prescribed limits." See Const., art. 16, sec. 20. In treating of this subject, the term "local option" has frequently been used; the idea being conveyed that the county or subdivision thereof has the right to determine whether intoxicating liquors shall or shall not be sold within the county, justice precinct, etc.
Anti-prohibition is in force in every county, justice precinct, town, etc., in this State, unless voted on at an election held for that purpose. It requires no act to put in force the right to sell intoxicating liquors. This right was not conferred upon the people of the counties, justice precinct, etc., by the Constitution; but the right to prohibit the sale of intoxicating liquors was conferred upon the county, justice precinct, etc. Now we state this proposition: That, until the Legislature repeals the acts enforcing this right, there is no power within this State to prohibit the county from declaring by an election that the sale of intoxicating liquors shall be prohibited therein. The county can not prevent any precinct, town, or city, etc., from declaring that the sale of intoxicating liquors shall be prohibited within such precinct, town, city, etc. There is no authority in the county to do this. On the other hand, no precinct, town, city, etc., can prevent the county from declaring that the sale of intoxicating liquors shall be prohibited within the county. If the county has the right to prohibit, it has the right to prohibit the sale in every foot thereof, because the Constitution says that the county may do so. If the precinct has the right to prohibit, as before stated, no county election can prevent it. Let us suppose that a county election is held. A number of precincts vote against prohibition, but, when all the votes are counted, prohibition carries. Can it be contended that prohibition is not in force in every part of that county, notwithstanding the opposition in such precincts? If the contention of the relator be correct, no county election should ever be held. The election should be had by precincts, towns, cities, etc.; and, if all are in favor of prohibition, then prohibition would be in force in the entire county. We do not so understand the Constitution. The county has the same right to declare prohibition as the precinct, etc. They stand exactly upon the same footing with reference to the power to declare it, but not upon the same footing with reference to the power to repeal it; for, if a precinct can repeal it, or defeat the county election, so far as that precinct is *Page 55 concerned, then the county has no right by an election to declare prohibition. All of the acts of the Legislature bearing upon this subject are in accord with this view. If prohibition is defeated in a county, a precinct can assert its right, and hold an election at once, if not prohibited by article 3393, Sayles' Revised Statutes, 1897. To illustrate: Suppose there had been no election in the given precinct, and the county votes upon the question, and prohibition is defeated, an election can be ordered at once for such precinct. This is in literal compliance with the provisions of the Constitution which confer upon the precinct this right. But, if there had been an election within said precinct within two years, there is no authority to hold that election until the expiration of two years. But the rights of the justice precinct, towns, etc., do not depend at all upon when the county votes, and rejects it.
A different view of this question is contained in Whisenhunt v. State, 18 Texas Criminal Appeals, 491, decided by a majority of the court. After that opinion was rendered, the Legislature enacted this provision: "But when prohibition has been carried at an election, ordered for the entire county, no election on the question of prohibition shall be thereafter ordered in any justice precinct, town, or city of said county, until after prohibition has been defeated at a subsequent election for the same purpose, ordered held for the entire county in accordance with the provisions of this title." Sayles' Rev. Stats., art. 3395. This provision was enacted, no doubt, to meet the opinion in the Whisenhunt case, supra, and is a very explicit expression of the Legislature's opinion as to the meaning of the Constitution on this subject. 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.
This question has been before the Court of Civil Appeals in three cases (Kimberly v. Morris, 31. S.W. Rep., 809; State v. Harvey, 33 S.W. Rep., 885; Adams v. Kelley, 44 S.W. Rep., 529), and the same conclusions reached. The last opinion was rendered by Judge Stephens, and cites us to several cases, and we think that the question is forever put at rest in Texas. We are not inclined to depart from our views expressed upon this subject in the former opinions. The writ of habeas corpus is refused.
Writ refused.
[NOTE. — Relator's motion for rehearing was overruled without a written opinion. — Reporter.] *Page 56