Hardy v. State , 52 Tex. Crim. 420 ( 1908 )

Appellant was convicted of violating the local option law.

We find two bills of exception in the record. The first bill relates to the introduction by the State of the order of the commissioners court ordering an election, the contention of appellant being that there was a variance in said order to the charge alleged in the bill of information; the information charging that the order made by the commissioners court ordering an election for the purpose of determining whether or not the sale of intoxicating liquors should be prohibited in said county; whereas, the order introduced ordered an election for the purpose of determining whether or not intoxicating liquor should be sold in said county, it being contended that this is a variance.

The next bill relates to the refusal of the court to allow appellant to prove by the county clerk that he, the clerk, did not at any time post or cause to be posted any notices of an election. In explanation of this bill the court says that the record shows that the copies of the order of the commissioners court were issued and certified by the county clerk, and that the same were posted by Buckner, the sheriff, in the manner and for the length of time required by law.

This prosecution was commenced on the 29th day of July, 1907. The bill shows that the State objected on the ground that it was immaterial, and was offered in the nature of a defense to contest the legality of the local option law at a time more than sixty days after the taking effect of the Act of the Thirtieth Legislature, passed May 14, 1907. We hold that this objection is well taken. Said act provides, that contests of elections that had theretofore been had must be contested within sixty days from the taking effect of said law and not otherwise. The matters complained of would be mere irregularities at best, and this act makes valid and non-contestable anything pertaining to irregularities in the adoption of the local option law. The act itself provides that we shall conclusively presume that said election as held was valid in all things and binding upon all courts. We accordingly hold, that said act is valid, and applies to all local option elections, and it clearly applies in this case.

The judgment is accordingly affirmed.

Affirmed.