HonorableBert Ford, page 3 (o-4440)
considerationandthat.thereforeit is sufficientto confineour- selveshere to a short oondensation of this case.
The faots in substancewere these% John Plain08end Save Plainoswere 6ngagedin the businessof sellingvinous and malt beveragesconfiaining alcoholin excess of one-halfof one perosntby volume in a part of the City of Houstonthat on September15, 1912 was a separatemunicipalityknown as the City of Houston Heights. On said last named date at a valid local optionsleotionthe qualifiedvoters of the City of HoustonHeightsadoptedlocal option and prohibited the sale of liquorwithin said territory. On February20, 1918 the peopleof HoustonHeightsvoted to dissolvesaidmunicipalityand since that time the area comprisingHoustonHeightshas been an intb- gral part of the City of Hou8ton. Since the adoptionof local option on September15, 1912, there had never been held a local option elec- tion in and for the territorywhich xas formerlythe City of Houston Heights,legalizingthe sale of alaoholiobeveragesand thereyhbdnbt been a local option electioninand for the City of &u&on. The area which was formerlythe City of HoustonHeightsis not oo-extensive with a justice'sprebinat,a Commissioner*8 precinct,a city, town or county.
Under these hots it was agreedthat the sole questionof law involvedin the cause nasr
*Is that territorywhiohras formerlythe City of Houston Heights,and now being a part of the City of Houston,Harris County,Texas, a,mt or a dry area?"
The ease in nhioh the above faots appearedbegan when, upon the affidavitof otis0. H. Houohins,the HonorableRlllismMcGraw, then the A%ttornayGeneral of Texas, filed suit in the DistrictCou& of Harris Couiity,Texas againstJohn and Save Plainosto enjointhcPnfran selling or distributingvinous or malt beveragescontainingalooholin exoess of one-halfof one per sent in the territorycomprisedwithin the area of what w$s onoe the City of Hous,tinHeights,in Harris County,Texas. The DistrictCourt grantedthe injunction&s prayedfor by the Attomsy General; Plainosbeing unsuuooassful in an attemptto dissolvethe temporaryinjuno- tion in the DistrictCourt, appealedto the GalvestonCounty of Civil Appeals,which reversedthe judgmentof the DistrictCourt and dissolved the temporaryinjunotion. (106 S.W. (2) 745). The SupremeCourt of Texas granteda writ of arror,and on kvember 24, 1937 handed down its opinion, writtenby JusticeCrits,reversingthe judementof the Court of Civil Appealsand affirmingthe judgmentof ths trial court. The rules laid dew inthis opinionby the SupremeCourt are substantiallyto the follow- ing sffeat;the languageis mostly from the syllabi,but for the sake of brevity,it is not quoted directly. EonorpblsBert Ford, page 4 (0-4~)
1. Hhere City of h&on Heightsvotedto beoonze a dry area in 1912, end in 1918 was dissolvedand annexedto mut city of Em&on, its area remaineddry in 1919 when prohibitionam&dment was adopted,and was saved as a dry ama, nith right to bsoane wet by l&al optionelection,by 1933 and 1935 amendments(citingTexas Constitution,Arts. 666-l et seq. and 667-l et seq. of Vernon's AnnotatedPenal Code). 2. The dry city of HoustonHeightsdid not vote to Broome e wet area by voting to ix0oms.apert of tha wet city of Houston (ottlngConstitution, Art. 18, Sec. 20, es amendedin 1891, 1919 and 1933).
3. Where power is given by Constitution,and means by which, or manner in which it is to be exercisedis pmsoribed, suoh Iwane or manner is exclusive.
4. Under local option amendmentof 1933, the area of any