condemned for having read to the Bar Association of Texas a discussion of such matters in which there is not a single citation of authority. The fact is that, since the beginning of this year, there have been in notes to law reports and in legal publications such numerous and thorough arguments and presentations of decided cases that I have become doubtful of the value of anything I can add in that direction. For the benefit of such as wish to give to the questions here presented a more thorough consideration than is possible within any reasonable limit which I can set to this paper, I beg to refer to the opinion in State vs. Goggin, 58 L. R. A., 513, and to that delivered in Warehouse Co. vs. Commonwealth, 57 L. R. A., 33. With each case there is published a note upon the taxation of corporate franchises and capital stock, in which will be found a reference to every opinion of which I have any knowledge on either subject. The authorities there presented appear to me to justify every assertion which I have made respecting the status of the law, and to show beyond question the right of the State to value and tax both tangibles and intangibles in accordance with the system and method advocated herein.

WILL AN INJUNCTION LIE TO RESTRAIN THE LOCAL OPTION LAW

FROM GOING INTO EFFECT?

A PAPER READ BEFORE THE

TEXAS BAR ASSOCIATION,

BY

C. F. GREENWOOD,

OF THE HILLSBORO BAR.

The legal proposition involved in this subject presents to my mind an interesting question, and one that calls for thoughtful study and mature deliberation. We submit at the outset that an injunction will not lie to restrain or prevent the local option law from going into effect; that the same is not a proper remedy, and that the issuance of the writ in such instance is inoperative and void.

Our government is divided into three separate and distinct branches, the legislative, the executive and the judicial, each separate and apart from the other, and it was intended that neither should encroach upon the authority or jurisdiction of the other; and, under our representative system, we know that theoretically, at least, all power springs immediately from the people, who, so far as legislation is concerned, act by and through their chosen representatives. The only statutes of a penal nature put into force by the people directly in their individual and sovereign capacity, are those relating to live-stock running at farge in a given territory, and the prohibition against the sale of intoxicating liquors within prescribed limits. These are made, in a sense, by popular ballot. Now, it is submitted that if an injunction will lie against a law enacted by the people directly, it will also lie against a law enacted by them indirectly through their legislature, the same identical principle being involved in both instances. Let us

look at the question closely. After the election has been held, resulting in a majority for the proposition, the statutes prescribe certain duties for the county officials to perform. These acts and duties so enjoined by statute, are clear and explicit, and are purely ministerial, involving no discretion whatever. The commissioners court shall count the vote and the result shall be declared; thereupon the county judge shall select a newspaper within the county and have published in the same the order declaring the result, and prohibiting the sale of intoxicants in the territory for which the election was held, for four successive weeks, or, if there be no newspaper in the county he shall cause publication to be made by posting copies of the court's order at three public places in the territory affected, for such period of four weeks. Now, suppose the election has been ordered and held, and has resulted in favor of the proposition, and the commissioners court has thereafter met and counted the vote and declared the result; the county judge thereupon designates the newspaper for the publication, the publication has actually begun. The question that then arises is: Is a party entitled to an injunction against the county judge and the publisher, restraining such publication? We will say that the plaintiff's petition alleges that the statute discriminates, that it is inequitble, that it is not uniform, that it discriminates in favor of those in favor of and against those opposed to local option, and especially with reference to the time and manner of holding elections, that there is a discrimination between cities and rural districts, that plaintiff has a license from the State, county and city to pursue the trade of a liquor dealer for a specified length of time, and that under the election it is attempted to discontinue his business during his licensed term, and that the State, county and city are unable to refund him that portion due on his unexpired license, that the local option statutes attempt to impair contracts, and destroy vested rights, and that they are in violation of both the Federal and State Constitutions in a number of particulars. We will say that the pleader clearly and specifically points out each and every vice, real and imaginary, in all the satutes upon the local option subject, and that every single solitary objection that could possibly be urged or conceived of, is embraced and minutely pleaded in his petition. Now, upon such a showing, is he entitled to an injunction? We say that he is not, and that its issuance is utterly null and void. Why? Because it would be an attempt to contest the law and its validity, which cannot be done by the process of such a writ. Let us analyze the question closely if possible. If the fourth publication can be restrained so can the first, and

if this can be done, then the county judge can be restrained altogether from ordering the publication. Going still further back, the commissioners court could be enjoined from declaring the result at all. If an injunction will lie against this, it will lie against the commissioners court ordering an election, and against the citizens from presenting a petition to the court for the election; and if this can be done, the right of the people to peaceably assemble and register their ballots could be enjoined. Carrying out the same principle, if there were no inhibition in the way, the Governor of the State could be enjoined from approving a bill enacted by both houses of the Legislature, and even the transmission of the bill to the Governor after its passage; and if this be true, the writ would lie against the presiding officer of a legislative body from submitting the bill to a vote; and striking deeper at the legislative prerogative, the introduction of a bill in either house could be restrained, but if introduced, each member of such body might be enjoined from voting upon the same. This is the principie. It is utterly inconsistent with our whole system of enlightened jurisprudence, and if followed to its logical conclusion, must become destructive of the very basic principles of our system of govern

ment.

There is a contest, however, that can be made, not against the law itself, as seems to be a prevailing opinion, as evidenced by the large number of suits predicated upon this erroneous theory, but against the result of the election. Our statute, Article 3397, provides as follows:

"At any time within thirty days after the result of the election has been declared any qualified voter of the county, justice precinct or subdivision of such county, or in any town or city of said county in which such election has been held, may contest the said election in any court of competent jurisdiction in such manner as has been or may hereafter be prescribed, and should it appear from the evidence that the election was illegally or fraudulently conducted, or that by the action or want of action on the part of the officers to whom was entrusted the control of such election, such a number of legal voters were denied the privilege of voting as, had they been permitted, might have materially changed the result, or if it appears from the evidence that such irregularities existed as to render the true result of the election impossible to be arrived at or very doubtful of ascertaining, the court shall adjudge such election to be void, and shall order the proper officer to order another election to be held, and shall cause a certified copy of such judgment and order.

of the court to be delivered to such officer upon whom is devolved by law the duty of ordering such election."

Now, it will be seen from the plain provisions of this statute that a simple, adequate and statutory remedy is afforded for the contest of such election. It will be further seen that this is a contest of the election and not a contest directed against the law itself, and the whole statute is framed for the sole purpose of protecting, preserving and carrying out the will of the majority, and was made for that purpose and that purpose alone. It will be observed first, that this contest must be filed within thirty days, and second, that the right to contest is not given to a liquor dealer, as such, but to any qualified voter residing within the territory affected by the election, without reference to the character of his business or vocation, and third, that as a reason for setting aside such election the petitioner may allege and show that by the action or want of action on the part of the officers holding the election, such a number of legal voters were denied the privilege of voting, as, had they been allowed to vote, might have materially changed the result, or that there were such irregularities attending the election as to render the true result thereof impossible to be arrived at, or very doubtful of ascertaining. These are the grounds, and the only grounds, upon which the statute permits a contest, all, or either of which, will be sufficient, and it will be observed that the statute goes directly to the question as to whether or not the will of the majority has been arrived at. If it has not, then the court trying the case is explicitly directed to adjudge such election to be void and order a new one.

Article 1798, Sayles' Civil Statutes, provides that any person intending to contest an election within this State shall within thirty days after the return of an election, give contestee notice thereof in writing and deliver to him a written statement of the ground on which such contestant relies to sustain his contest, and it has been held by our higher courts that this statute is directly applicable to the contest of a local option election. These statutes afford a legal remedy at law, and under them, the contest is a direct attack upon the result of the election, and the reason for their enactment must be obvious, when we remember that the law must jealously guard the purity of the elective franchise, and that every honest citizen is directly interested in upholding elections that reflect the sentiment of a majority of the legal voters participating therein; therefore, the right to contest an election that does not represent the sentiment of a majority, is expressly given to any citizen in his capacity as a citizen, independent of his vocation or calling.

On the question as to the authority of a judge to issue an injunc