
    Ex Parte William Stein.
    No. 1049.
    Decided February 22, 1911.
    1. —Stock Law—Election—Polling Place.
    Where the polling place selected by the proper officers. is outside of the election district, the electors who lived in the territory to be affected who vote thereat are not disfranchised on that account if the election is lawfully conducid. This is a mere irregularity. Following Ex Parte Segars, 32 Texas Crim. Rep., 553.
    2. —Same—Election—Justice Precinct—Proclamation.
    Where the proclamation, after an election on the stock law, declared it in force .in the entire territory of a certain justice precinct, when in fact the election was held only in a part of said precinct, such an irregularity would not prevent the stock law from going into effect in that part of the precinct which had legally adopted it. Following Ewing v. Duncan, 81 Texas, 235.
    3. —Same—Void Complaint and Judgment—Habeas Corpus.
    W’here, upon trial of habeas corpus, the agreed statement of facts showed that the stock law was never adopted and in force in all the territory of a certain justice precinct, and a complaint alleged a violation of such law throughout the entire precinct, both the complaint and judgment were void and the relator could not be held thereunder, and the court has the power to hear the writ and discharge relator.
    From Fayette County.
    Original application for writ of habeas corpus asking release from a judgment of the County Court in an appeal from the Justice Court under a fine less than $100.
    The opinion states the case.
    
      Brown & Lane, for relator.
    —On question of insufficient complaint: Kerry v. State, 17 Texas Crim. App., 178; Smith v. State, 49 S. W. Rep., 373; Hoskey v. State, 9 Texas Crim. App., 202; Hewitt v. State, 25 Texas, 722.
    
      John A. Mobley (who was then Assistant Attorney-General), for the State.
   HARPER, Judge.

—The relator was charged with permitting his stock to run at large in Justice Precinct No. 6, Fayette County, the allegation in-the complaint being that the law prohibiting stock from running at large was in force in Justice Precinct No. 6, Fayette County, Texas.

Relator was tried in the Justice Court and convicted. He appealed to the County Court and was again tried andt convicted. The fine was in such an amount that no appeal could be taken to this court, and he sued out a writ of habeas corpus, which was heard by this court at a former day of this term.

Eelator filed a motion in the County Court to quash the indictment on various grounds, which was by the court overruled, and in the application for a writ of habeas corpus he presents, in substance, the same grounds.

The. agreed statement of facts shows that at the February term, 1910, of the Commissioners’ Court of Fayette County, a petition was presented praying that an election be held to determine whether or not certain stock should be prohibited.from running at large in Justice Precinct lío. 6, except certain territory within the said justice precinct, being the incorporated town of Flatonia. The petition describes the justice precinct by metes and bounds, and also describes by metes and bounds the territory within said justice precinct not included in the petition for an election. On February 10, 1910, fhe court entered an order that said election be held as prayed for on the 2d day of April, 1910, in said order saying: “The subdivision herein described being Justice Precinct lío. 6, Fayette County, Texas, excluding, however, from the above-described territory of Justice Precinct lío. 6 the town of Flatonia, an incorporated town within said justice precinct,” then giving the field notes of the territory within Justice Precinct lío. 6 not included in the order for an election. The county judge, on February 18th issued his proclamation for said election to be held in accordance with the recitations in the petition and the order, and ordered that polls be opened in Cistern school-house, in Colony schoolhouse, in Praha school-house and in the courthouse in the town of Flatonia, naming the managers.

The returns show the election was held on the day named, and the stock law carried by forty-one majority, no one living in the incorporated town of Flatonia (within said precinct) being permitted to vote. On the 18th day of April, 1910, the county judge issued a proclamation declaring that a majority of the votes were cast in favor of the stock law, and in said declaration declared the law in force in all of Justice Precinct lío. 6, in said order not exempting from the operation of the law the incorporated town of Flatonia, as was done in the petition for the election, the action of the Commissioners’ Court in ordering the election, and the proclamation of the county judge ordering the election to be held, naming the voting places and managers of election. Thereafter defendant had a complaint filed against him, in which it was charged that he permitted his stock to run at large in Justice Precinct lío. 6, not excluding therefrom the incorporated town of Flatonia, the citizens of which town were not permitted to vote in the election. The facts show .that relator permitted his stock to run at large in the territory in which the election was held.

We do not deem it necessary to notice but three questions raised in the application and relator’s brief, as all necessary steps seem- to have been taken to put in force the law in the territory in which the petition sought an election.

The relator complains that the county judge had no authority to name the courthouse in Flatonia as one of the places for the citizens to vote, as it was in the territory in which the voters were excluded from participating in the election; that the order declaring the stock law carried and in force declared it in force in all of Justice Precinct Ho. 6, when in fact the petition and order for the election embraced only a portion of said Justice Precinct Ho. 6; and is, therefore, void; that the indictment alleged that relator had permitted his stock to run at large in Justice Precinct Ho. 6 when there was no law in force in said Justice Precinct Ho. 6, but only in the portion thereof described in the petition, and "the order ordering the election to be held is void.

In the agreement, it is stated that the courthouse in Flatonia is in the territory excluded, and not in the territory in which the election was petitioned for and held, and it is also agreed that no one living in the excluded territory voted in said election. Where the polling place selected by the proper officers is outside of the election district, the electors who live in the territory to be affected who vote thereat are not disfranchised on that account if the election is lawfully conducted. Cyc., vol. 15, p. 344, and authorities there cited. In Ex parte Segars, 32 Texas Crim. Rep., 553, this court holds that a mere irregularity in the place where the election is held will not invalidate the election, when it does not appear that there has not been a fair expression of the will of the people . We hold that the place of voting in this case would not invalidate the election.

The judge, in declaring the result of the election, declared it in force in all of Justice Precinct Ho. 6, when in fact the election was held only in that part of said precinct exclusive of the incorporated town of Flatonia. We do not think that the proclamation declaring the law in force in all of the justice precinct would be such an irregularity as would prevent it going in effect in such part of the precinct as had legally adopted the law. In Ewing v. Duncan, 81 Texas, 235, it is held: “Another ground upon which it is alleged that the election was illegal is that the county judge did not canvass the returns and declare the result. . . . The presumption may be that he did not do his duty in the premises and the result was never legally declared. . . . But when the election is drawn in question in a judicial inquiry the legal votes cast will determine the result. Therefore, if Floyd City received a majority of the votes, the fact that the county judge failed to do his duty is no ground for vacating the election.” This holding is adopted and cited with approval by Judge Hurt in the case of Chapman v. State, 37 Texas Crim. Rep., 167, also citing other authorities.

"But the next question is one that presents a graver question. The stock law was not adopted in Justice Precinct Ho. 6 as a whole. Certain territory was excluded and the stock law is not shown to have ever been in force in all of said justice precinct. In fact, Justice Precinct No. 6 has1 no such law; only in such parts of it as is outside of the incorporated town of Flatonia is the law in force. We are aware of that line of decisions that the writ of habeas corpus is not available to test the sufficiency of a complaint. Cox v. State, 53 Texas Crim. Rep., 242, and cases there cited. And this has been the holding in this court in an unbroken line of decisions where the complaint is only insufficient, and is based on a valid law. But as we understand it, the rule is different where the complaint or indictment is void, and especially would this be true when it is based on a special law not in force in the territory alleged. In the complaint in this case it is alleged that the stock law was in force in all of Justice Precinct No. 6, and that the stock was permitted to run at large in said precinct in violation of said stock law. A motion was made to quash the complaint on the ground that the stock law was not in force in Justice Precinct No. 6. Under the agreed statement of facts we find that Justice Precinct No. 6 as a whole had no such -law, and we are of the opinion that the complaint is void, because there was no law in force in all of Justice Precinct No. 6, on which to base the complaint. In Ex parte Siebold, 100 U. S., 371, the Supreme Court of the United States says:

“It is stated, however, in Bacon’s Abridgment, probably in the words of Chief Baron Gilbert, that Tf the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge.’ Bac. Abr. Hab. Corp., B., 10. The latter part of this rule, when applied to imprisonment under conviction and sentence, is confined to cases of clear and manifest want of criminality in the matter charged, such as in effect to render the proceedings void. The authority usually cited under this head is Bushel’s case, decided in 1670. There twelve jurymen had been convicted in the Oyer and Terminer for rendering a verdict (against the charge of the court) acquitting William Penn and others, who were charged with meeting in conventicle. Being imprisoned for refusing to pay their fines, they applied to the Court of Common Pleas for a habeas corpus; and though the court, having no jurisdiction in criminal matters, hesitated to grant the writ, yet, having granted it, they discharged the prisoners on the ground that their conviction was void, inasmuch as jurymen can not be indicted for rendering any verdict they choose. The opinion of Chief Justice Vaughan in the case has rarely been excelled for judicial eloquence. Bushel’s Case, T. Jones, 13; s. c., Vaughan, 135; s. c., 6 Howell, St. Tr., 999.

“Without attempting to decide how far this case may be regarded as law for the guidance of this court, we are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. The validity of the judgment is assailed on the ground that the Acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and can not be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question .of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws.”

This holding is in line with the authorities of this State. Ex parte Kramer, 19 Texas Crim. App., 123; Furrh v. State, 6 Texas Civ. App., 221, 24 S. W. Rep., 1126; James v. State, 21 Texas Crim. App., 353; Mato v. State, 19 Texas Crim. App., 112.

Because the agreed statement of facts shows that the stock law was never adopted or in force in all of Justice Precinct Mo. 6, and the complaint alleges a violation of law which it alleges is in force in Justice Precinct Mo. 6, but in fact there was no such law, we hold that the complaint and judgment are void, and relator is ordered discharged.

Relator discharged.  