
    REED v. STATE.
    (No. 5234.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    1. Intoxicating Liquors &wkey;>40(3) — Sales Without License — Statutes.
    Acts 35th Leg. Fourth Called Sess. cc. 5, G, amending Pen. Code 1911, arts. 611 and 612, prescribing punishment for selling intoxicating liquor without a license, does not apply to local option territory.
    2. Intoxicating Liquors &wkey;>42 — Local Option Laws — Power oe Legislature.
    Where the local option law has been placed in effect by a vote of the people, it must so remain until the people of the same territory repeal it by a vote at another election, and the Legislature has no power to do so.
    Prendergast, J., dissenting in part.
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Lizzie Reed was convicted of violating a local option law, and she appeals.
    Affirmed.
    See, also, 200 S. W. 843.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, her punishment being assessed at a fine of $100 and 60 days’ imprisonment in the county jail.

The evidence presented the issue of fact between the state’s witness and defendant’s testimony .as to the sale. The jury decided in favor of the state’s evidence. They had a right to solve the question, and this court would not feel justified in interfering with the conviction for that reason.

The question presented, however, for revision, arose on the prpposition that, inasmuch as the Legislature had amended articles 611 and 612, P. C., it therefore repealed the local option law in Lamar county. The articles amended will be found in the Acts of the Fourth Called Session of the Thirty-Fifth Legislature, pp. 9, 10. This act of the Legislature prescribes punishment against parties who sell without first obtaining a license for that purpose. This law does not apply to local option territory. The Legislature has no authority to repeal the punishment in local option territory where it has been voted upon by the people. The uniform line of decisions is to the effect that, where the local option law has been placed in effect by a vote of the people, it shall so remain until the people of the same territory see proper by another election to repeal it by their vote. The Legislature is powerless to do this. This question came up for decision in the case of Dawson v. State, 25 Tex. App. 670, 8 S. W. 820, and it was held that the Legislature was powerless to add to or change the effect of the local option law in the territory where it was put into operation by a vote of the people. The Dawson Case was followed by the Robinson Case in 26 Tex. App. 82, 9 S. W. 61, and Lawhon v. State, 26 Tex. App. at page 102, 9 S. W. 355. There are other decisions, but the question came again for review in the Love Lewis Case, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656, where the question was again decided and the authorities fully reviewed. The Lewis Case was thoroughly considered, the opinion having been written by Judge Ramsey. All of the authorities in Texas are to the same effect. Mr. Branch, in his Annotated P. C., collates a number of authorities on page 698, under section 1235. Quoting froin his annotations:

“When local option is adopted in a particular locality, the penalty attached to the first violation which was submitted to and adopted by the voters will remain in force until such election is repealed by the voters of the same territory.”
“An act of the Legislature increasing the penalty will be in force and operate in such localities only as since the passage and taking effect of such amendment may, by election, adopt its provisions.”

In this section Mr. Branch cites Robinson, Lawhon, and Lewis, supra; also, Doyle v. State, 59 Tex. Cr. R. 60, 127 S. W. 815; Guzman v. State, 59 Tex. Cr. R. 353, 128 S. W. 1198; Pointer v. State, 60 Tex. Cr. R. 355, 132 S. W. 136; Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782. These authorities are clear and distinct in 'their enunciation of the proposition that the punishment under the local option law will remain as voted by the people until.the people in the same territory see proper to hold another election and place the territory under the increased punishment enacted by the Legislature, where the Legislature so enacts. The Legislature cannot enact a punishment or change the provisions of the local option law so as to affect its operation in territory where the people have once voted upon it. The Legislature has no power to repeal the local option law as voted by the people and substitute any other law in its place. This is one question about which the courts of Texas have been in thorough accord. It will be further noticed that article 612, P. C., as' amended does not apply to local option territory, and could not apply. That is a punishment sought to be imposed upon parties who sell without license. This can apply in territory where license will issue. So from any viewpoint the position of appellant is not well taken.

The judgment will be affirmed.

PRENDERGAST, J.

(dissenting in part). The original articles, 611 and 612, applied solely to wet or now prohibition territory. The recent amendment of these articles also applies exclusively. Therefore the judgment herein is correctly affirmed. I do not concur in what is said otherwise in the opinion. 
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