The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-01-17
REFUSED
A COMPREHENSIVE OPINION REN
DERED BY JUDGE NORRIS.
lie refuses to Prohibit the Commission
ers to Count the Pfluegerville Local
Option Vote-Points Out Irregu-
larities.

n Saturday, Judge Frank Morris handed
" down me following opinion in the Plug
gervi.le local option injunction case:
n This is a suit by George Phueger agains
Al p. 4 McFall, as county judge and eacl
fof the members of the county commits
y aioners court of Travis county, seeking al
H finiunction or writ of prohibition against
N said court, to prevent the counting and
ldeclariug the result of an election held in
n "a cerldn subdivision of justice precinct
|kof IIay is county, to determine whether oI
Mot the local option liquor law should b.
gadOpred in said subdivision, and from pay-
|l1ng any monies of the county for the
Sholding of said election or for the publ
Vocation # the result thereof. 1t is insisted
that the election was void, and the plain
'Eitf ciaun the right to maintain this suit
sfupon the ground that he is tax payer OF
said county, residing in said subdivision,
! and thar his right to engage in the sale OF
to do 50, would be infringed by declaring
said law to be in force.
1t is contended by the plaintiff that the
act of March 30, 1893, entitled An act
TO amend articles 1927, 322S, 3229, 3230,
1891, 3232 1898, 1884, 3235, 3236, 32331,
323S $780, 3239a, 3239b, 3230c. title 633:
VI the Revised Civil Statutes of Texas,
tS UNCONSTITUTIONAL.
Iirst--Because the title of the act is in
sufficient to express the subject OF the bill
in that It purpOrts to amend certain artl-
cles of the revised statutes which 1t IS
claimed We're repealed by the act OF
April 1887. amendatOry OF certain sec
yOns 0 title 63, Revised Civil Statutes or
the State of Texas. and adding thereto
article b239a, and further, ecause the
title of aid act Of 1893 purports to amend
a}ticles 3239b. and 3239c, of title 63 of
The Revised Civil Statutes OF the STATE Oh
( Texas whereas no such articles ever eX-
Il listed IN the Revised Civil Statutes or in
N the amendments thereto.
"a SecOud-Bccause the subject matter OF
y The amendments to the various articles
\ tmcntiyuad in said caption is not expressed
4 IN he caption.
4 The court of criminal appeals of this
Estate has decided against the contention
8of The aintiff just stated in the case of
leXpartv John Segars, 32 Court OF
i,rimHa' Appeals reports, DOB, and what
tevel | light think of the questions raised
were | at liberty to decide them, unaifect-
ied by Tie decision of the highest court of
5the state in criminal cases, | feel it my
duty 10 follow, without question, the au-
IA sfhOritative decisions of that court, when
apassiug on the constitutionality of Il penal
Mtatute iu Il case in which no private right
gi asserted, which might call for CON
sderation of the decisions of the courts
oE.last resort in civil cases.
VI In this case the plaintiff does not claim
ato be engaged in the business of selling in
laoxicating liquors, and does not allege any
Threatened injury to any right which he
tlaims he will seek to exercise.
IA In so far as he seeks to prevent the en-
penditure of public money, his claim is
based upon the supposed invaildity OF n
penal law sought to be adopted by vote OF
3iie people. So long as the court OF last
Resort in criminal cases shall holu CHAT
the law in Question is constitutional, it
viii be valid and operative to all intents
and purposes, and therefore the contention
that it yould be u misapplication or waste
of puoic money to pay out OF the county
treasuty public money in the way OF eN'
peDses f1r holding an election to adopt
Said lew md publish the result OF the cleo
Ation. is not tenable.
N II IS uue that the case Of eX parte Sc
gar. does not touch upon the objections
made TO the constitutionality of articles
B239b, and 3239c, contained i'll the act OF
1S9S above referred to. Those articles
re undoubtedly unconstitutional and void.
because here is nothing in the caption Of
fsaid act 70 indicate the subject Of either
Of said articles, they being referred to in
the canton of the act as articles of The
revised civil statutes 10 he amended by the
act, whereas no such lrticles ever existed
in the revised statutes or amendments
thereto but those articles may be r.minat-
cd from the law without affecting the
validity Of the other parts of 40 law.
Article 3239b provides for refunding of
occupation tax to liquor dealers pursu-
ing their occupation in the territory affect
ia by he election. This article merely
Sncorp1rgres into the act of 1893 the act
IN May ), 1889, as amended April IA,
a SSS; hence if this article be stricken out
Sbf lhe lgw of 1893, it would still remain
hn force, rs the act of May >. 1882, and
kamcndmcnts thereof of April IA, 1888.
Article 3239c does not affect the pro-
lhibiriva features of the law, but under
.takes to provide more efficient means for
BITS enforcement and may be emitted from
the acL without affecting the validity of
the other parts thereof
It is further contended that the, cleo
ton in question was void because the Or
der of the commissioners court ordering
the same did not describe the territory
in which the election was to be held.
A petition was filed for an order of cleo