
    Ex parte ASH.
    (No. 8360.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Habeas corpus <@=>3— Inaccuracies of description of stock law district cannot be raised.
    Inaccuracies of description in metes and bounds of territory of stock law district cannot be raised by habeas corpus for release from custody under charge of violating law.
    2. Animals <S=50 (2) — Discrepancies in description of territory of stock law district in orders granting petition and calling election held immaterial.
    Discrepancies in description of territory of stock law district in orders of commissioners’ court, granting petition and calling election, held immaterial in habeas corpus for release from custody under charge of allowing cow to run at large in part of precinct admittedly covered by both descriptions.
    3. Statutes <©=>35i/2 — Penalties of law adopted by people of given territory cannot be made more severe by later legislative enactment.
    When people in given territory vote into operation laws not theretofore operating therein, as permitted by Constitution and laws, penalties under latter cannot be made more severe, as applied to such territory, by later legislative act, unless citizens adopt it or laws authorizing vote be repealed.
    4. Animals <©==>50(2) — Resident of stock law district not subject to penalty for violating statute containing no penal provisions when adopted by district.
    Where people of precinct under Acts 1903, e. 71, voted to adopt Acts 1899, e. 128, prohibiting running of cattle at large, but prescribing no penalty, resident cannot be prosecuted under penal provisions added by Acts 1907, c. 57, which were never adopted by them.
    Original application by W. B. Ash for writ of habeas corpus.
    Writ heretofore granted perpetuated, and relator discharged.
    Jerome P. Nearby, of Comanche, for appellant.
    Ghent Sanderford, Co. Atty., of Comanche, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

This is an original application for habeas corpus by which relator seeks relief from the custody of the sheriff of Comanche county, who holds him under a ca-pias following the. indictment of relator for a violation of the stock law in said county.

The issues are made by an agreed statement of the facts on file. From same we learn that in September, 1903, an election was held in what purported to be justice precinct No. 6 of said county to determine whether cattle, horses, etc., should be allowed to run at large, at which election it was determined that they should not. . The charge against relator is a violation of the law thus adopted. An examination of our stock law statutes presents a rather curious situation. The first laws passed on the subject, after the Constitution of 1876 was adopted, gave to the people of given territories the right to decide whether hogs, sheep, and goats should be prohibited from running at large, and, no law otherwise providing seems to have been passed until 1899. However, the Legislature in 1897 passed the penal statute, which is now article 1241 of our Penal Code, making it a misdemeanor to allow stock to run at large which had' been forbidden so to do under laws then in force. Prior to that time the only penalties had been damages, fees for impounding, etc. Manifestly then, article 1241 penalized parties who allowed hogs, goats, and sheep to run at large. In 1899, the Legislature passed a law (Acts 1899, c. 128), allowing certain named counties to vote on the question as to whether cattle, horses, etc., should run at large. No mention was made in this statute of hogs, sheep, and goats. By amendment at various times this statute has been added to — an amendment in 1903 (chapter 71, Acts Regular Session 28th Leg;, adding, among others, the county of Comanche to those which had the right to vote upon themselves the provisions of said law. That same year, in September, the election in the territory here under consideration was held and the law was adopted. No penal features appeared in any of the various enactments relative to horses, cattle, etc., until the 30th Legislature in 1907, in chapter 57, Acts of its Regular Session, further amended said statute relating to cattle, horses, etc., and provided a punishment for a violation of its provisions in the shape of a fine. These matters are referred to in Neuvar v. State, 72 Tex. Cr. R. 410, 163 S. W. 58, wherein appears the following statement:

“In the present Revised Statutes and Penal Code it seems reasonably certain that the Legislature intended that article 1241, Penal Code, should apply more particularly, if not exclusively, to hogs, sheep and goats, and that article 1249 should apply to horses, cattle, etc. The said two articles of the Penal Code are taken, in the revision, from the general bills of the several acts on the subject.”

It is admitted in the case before us that there has been no other or subsequent election held in said precinct. It is also admitted that relator’s cow ran at large in a part of said precinct not in the territory about which appears in this record a dispute as to whether it is 'included; in other words, the animal ran at large in a part of the precinct admittedly covered by the description of same in the petition and order for the election.

Relator has no valid ground of complaint here because of the inaccuracies of description in the metes and bounds of the territory voted upon. Matters of this character cannot be reached by habeas corpus. Ex parte Thulemeyer, 56 Tex. Cr. R. 337, 119 S. W. 1146. Nor do we agree with relator’s contention based on alleged discrepancies of description between the territory described in the order made by the commissioners’ court granting said petition and calling the election. Ex parte Stein, 61 Tex. Cr. R. 320, 135 S. W. 136; Williams v. State, 52 Tex. Cr. R. 377, 107 S. W. 1124; Stewart v. State, 69 Tex. Cr. R. 384, 153 S. W. 1153; Neuvar v. State 72 Tex. Cr. R. 410, 163 S. W. 58.

Relator contends that he is not criminally liable herein because there was no penal provision in the law when it was adopted by local option vote in 1903 of his precinct, and he insists that the principle announced in Dawson v. State, 25 Tex. Cr. App. 670, 8 S. W. 820, and adhered to in other decisions down to and including Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, is .applicable to his case. We approved the doctrine there announced in the comparatively recent case of Ex parte Jank, 93 Tex. Cr. R. 88, 245 S. W. 685, and if it has application to the facts we see no reason to change our views. The state cites Roberson v. State, 42 Tex. Cr. R. 595, 63 S. W. 884; Black v. State, 62 Tex. Cr. R. 77, 136 S. W. 478; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112, and Dozier v. State, 62 Tex. Cr. R. 258, 137 S. W. 680. Each of these cases has been examined. What is deemed the question decisive of this case was not the point involved in any of them.

We are constrained to believe that when, under the permissive clauses' of our Constitution and under legislative sanction, the body of the people in any given territory are called on to decide whether they will vote upon th’emselves the mandates and provisions of laws not theretofore in operation in such territory, and they do so vote them into such operation, the punitive provisions of such laws then in force cannot be made more severe by legislative enactment and be held operative in such territory unless and until the citizenship thereof themselves adopt by their own vote such law with its more onerous provisions or else the laws under which the exercise of the law-making power by the people in said territory be repealed. We think this doctrine applicable in this case. The stock laws relative to horses, cattle, etc., as they were upon our statute books in 1903, when this local option election was held in the precinct under consideration, did not contain any provisions punishing those who violated the terms of the law. Neither rela'tor nor those in his precinct have ever agreed, by their vote to submit themselves to a law having such penal provisions in it. Of course, they might have voted such law into effect, but the question is that they did not. Since they did not, we are constrained to follow the path so well outlined by our predecessors, and to hold that relator cannot be prosecuted under the penal provisions which were not in the law at the time it was adopted in said precinct.

The writ heretofore granted will be perpetuated, and the relator will be discharged. 
      ©ssFor-other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     