The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-09-14
JUDGE MORRIS OPINION
ON THE WILLIAMSON COUNTY PR0HI-
BIrION INJUNCTION.
A Very Thorough and Exhaustive Opinion
Rendered by Him, Covering All the
Various Phases Of the CUES.
tions Involved in the Most
Complete Manner.

down yesterday by District Judge F.
G. Norris:
Geo. w. Scott, ct al. vs.. ID. 8. Ches-
sher, ct al. Suit pending in the district
court of Williamson county, Tex
Geo. w. Scott and q h. King alleging
themselves TO be property owner
and taxpayers of Williamson county
and dealers in Intoxicating liquors
therein, sue in the district court OF
Williamson county in behalf of them
selves aud all other citizens of Will
hanson county, who may see proper to
make themselves parties against the
election officers oil precincts Nos. l, 3,
and of the county, and the county
commissioners court. They allege In
substance that the county commits
sioners court has ordered county
election to be held in said county on
the 18th day of September, 1898, 10 de-
termine whether the sale OF 1ntoxicat.
ing liauors shall be prohibited in said
county; that the order of the court
does not direct the posting of notices
of election in a proper manner; that
they have paid occupation taxes as
Ii luor dealers, for refunding of which
in accordance with the provisions OF
the local option law no appropriation
has been made; that the local option
law ~ already in force in said lre-
cincts No. /, 3, and 5, by virtue OF pre-.
cinct elections heretofore held, and
tn At the Term tor which the law was
adopted has not expired in two OF said
precincts
Plaintiffs deny the right to hold
any election in said precincts as part
offhe county election, and they allege
that the election will be void If held
for the reasons stated by them, and
that the holding of the same and
the declaration and publication of the
result thereof will iDjure them in their
business "a liquor dealers; and that
the EXPENSE thereof will involve an
illegal use of public money, to prevent
which expenditure and the injury to
their business they pray that the
election officers of said precincts be re-
strained from holding the election in
their respective precincts, that the
county commissioners court be re-
strained from counting the votes
which may be cast in said precinct
and from declaring and Publishing
the result of the election, and for all
other relief general and special that
they may be entitled to underline law
and the facts of the case.
First-The duty of posting the no.
tees Is devolved upon the CLERK OF the
court by the law whenever an order
for such election is made, nor Is the
order of the court directing the post
ing of notices without requiring that
each should be posted at seperate
place from the others in conflict with
the direction of the law to so post
them. 'rhe order is merely silent as
to the place OF posting the respective
notices and leaves the clerk free to
obey the law in that respect. Ills
point Is therefore not well taken.
Second--The next question to be
considered arises out of the failure OF
the Legislature to make an appropria-
ton to refund occupation taxes In To-
calities where prohibition might be
adopted. The provision OF the law OF
1893 requiring such refunding Is in.
corporated and referred to in the title
of the act as au amendment TO article
3239b of the Revised Statutes. There
being no such article in the Revised
Statutes this section of the law ia void.
Probably nearly the entire law of 1893
Is void, because it is entitled an act TO
amend numerous articles of the Re-
vised Statutes, part of which we're re-
pealed by the local opt on law Of 1887
and most OF the others are referred to
by numbers OF articles which never
existed in the Revised Statutes. II 10
iuson VS.. State, II CT. App Sal; Il. 4
N, r.. II Co. vs.. City of East St. Louis
% n. f, Rep 062; state VS.. Benton
Sin. w. Rep 40; Switzerland on
Statutory Considerations sec. 1872
This leaves in force the local option
Law of 1887, which made no provision
for refunding occupation taxes. The
provisions of the law which are In
be found in the act of May
5, 1882, and the fir-r section thereof as
amended April IA 1888 These statutes
make provisions tor the refundinG Of
she occupation taxes in counties where
the local option law is adopted, bu
the taxing effect OF the local option
law Is not made in any manner TO de
pend upon the refunding of any par
of such occupation taxes. That TIT
law prohibiting the sale of intoXicat
ing liquors in disregard OF the claims
of those who have paid an occupation
tax to follow the occupation and with
out refuuGing the tax, whether RICH
or wrong, is constitutional, has be
come settled law in this and most o
the other states in the Union. Rob
ertson VS.. State, (12, CT. App. Sal
must therefore hold that the position
ofplaintif's on this point is not wei
taken.
Thi d-The plaintiffs next question
the right of the voters residing in thu
precincts in which the liquor local OPP
ton law is in force 20 vote in the cleo
ton in question and take the position
that the election will be void if thu
voters of those precincts are allowed
to vote in the election. A very i'm
portant question is here raised which
though apparently arising in some
criminal cases which have been de
cided by the former court of appeals
has not been dicussed or decided by
any of the courts of this state. If il
be assumed that county election cal
be held in Williamson county il
which any question can ba decided al
to the adoption or reject on of the
local option liquor law throughout the
;Io tbo loaaI Nnt;OY loxu &c