towns on the same footing as justice precincts, school districts and other subdivisions of the county which may be designated by the commissioners court. After prohibition has been carried throughout the county, no subdivisions of the county can vote it off until a vote has been had throughout the county, voting off prohibition. In the case of Roper v. McCoy, 29 Texas Civ. App., 470, 69 S. W. Rep., 459, it was shown that prohibition had been carried in Johnson County. Thereafter a certain portion of the county was laid off and made a subdivision, and a petition by the requisite number of voters residing therein was presented to the Commissioners Court asking that an election be called to determine whether local option should be adopted in such subdivision. The Commissioners Court refused to call the election. The petitioners brought suit for a mandamus against the county judge and said Commissioners Court. Upon hearing the mandamus was refused by the trial court, and upon appeal this court held that, prohibition having been adopted in the county, the Commissioners Court could not order an election in a subdivision of the county. A writ of error was refused by the Supreme Court. See also, Kimberly v. Morris, 87 Texas, 637, 31 S. W. Rep., 809; State v. Harvey, 11 Texas Civ. App., 691, 33 S. W. Rep., 885; Adams v. Kelley, 17 Texas Civ. App., 479, 44 S. W. Rep., 529; Ex parte Fields, 39 Texas Crim. Rep., 50, 46 S. W. Rep., 1127; Rippy v. State, 63 S. W. Rep., 687.

It is contended that the statute is repugnant to the Constitution in that it undertakes to say how the commissioners court shall subdivide the county in prohibition elections, while the Constitution provides that this discretion shall be with the commissioners court; and further, that it mentions subdivisions not named in the Constitution. By the terms of article 5, section 20, of the Constitution, hereinbefore quoted, the Legislature had power to enact a statute authorizing the commissioners court to subdivide the county. The Legislature did not confer the full power upon it, but only authorized the commissioners court to make subdivisions subject to certain limitations and restrictions. It is held that the grant of a greater power includes a lesser power. Bowman v. State, 38 Texas Crim. Rep., 14, 40 S. W. Rep., 796. Having conferred on the commissioners court less power than by the Constitution it was authorized to, it can not be said that the act of the Legislature was in violation of the Constitution.

Again, the appellants in this case should not be heard to complain of the law in this respect for the reason the election in this case was a county election, which was authorized by both Constitution and the statute; and if the act was subject to the objection made, it would not have the effect to make the whole act void, but only that part authorizing the commissioners court to designate commissioners' precincts, school districts, or territory comprising two or more such subdivisions. The naming of these subdivisions only affects the validity of the act in so far as they are mentioned, and they are so independent of the remainder of the act that they can be eliminated without in any way

affecting the validity of the balance of the statute. If the Legislature exceeded its powers in mentioning "commissioners precincts, school districts, or any two or more of such subdivisions," then they should be eliminated and the remainder held valid.

Does the statute discriminate against the Jews in their mode of worship by interfering with their use of wine, and is it therefore in violation of the Bill of Rights and the fourteenth amendment to the Constitution of the United States? I. Yiedel, one of the appellants, is a Jew, and belongs to a Jewish religious society that practices the Jewish mode of worship. The Jewish mode of worship knows no sacraments, but the same requires the use of wine on a number of occasions during each week and each year; such use of wine has no symbolical or mystical meaning, and is in no sense for sacramental purposes, but is used on such occasions as a beverage. It is shown, "that during the Passover and on two nights thereof each member of the Jewish religious society is required by their mode of worship to drink four glasses or cups of wine on each of said nights; and that on Friday and Saturday nights of each week, each member of a Jewish family is required by their mode of worship to drink one glass or cup of wine."

Article 1, section 6, of the Bill of Rights forbids any interference with the rights of conscience in the matter of religion, or the giving of any preference by law to any religious society or mode of worship. In enacting the local option statute the Legislature was legislating in reference to intoxicating liquors and providing a means whereby the citizens of certain localities could, from time to time, determine whether their sale should be prohibited in such locality. It is not questioned but the State in the exercise of its police powers can absolutely prohibit the sale or manufacture of intoxicating liquors within its territory. Brannon v. State, 40 S. W. Rep., 796; Mugler v. Kansas, 123 U. S., 273.

The effect of the statute is to absolutely prohibit the sale of intoxicating liquors as a beverage in the locality where adopted. In this respect it operates upon all persons alike. It is only as medicine, and then upon prescription, or for sacramental purposes that intoxicants. may be lawfully sold in local option territory. It is contended that its sale for sacramental purposes is a discrimination against Jewish worship. The contention is not sound. There is no discrimination against the use of wine in their mode of worship. The prohibition is against the sale of intoxicating liquors.

The next contention is that the act denies equal protection of the law, and therefore contravenes the fourteenth amendment, because one section forbids the prescribing of intoxicating liquors by anyone who does not follow the practice of medicine as his principal and usual calling. There is no discrimination shown here, except as between physicians who practice medicine occasionally and those who make it their principal calling. Appellants are not physicians, and therefore can not successfully complain of that clause of the statute regulating the giving

of prescriptions by physicians. Bowman v. State, 40 S. W. Rep., 796; Ex parte Burnside, 6 S. W. Rep., 276; Cooley, Const. Lim., 215.

If it be conceded that the appellants could raise this contention, and that the statute in this respect is subject to the objection made, it would not affect the result in this case. The portion of article 3385 which contains the clause complained of reads: "Provided, that a physician who does not follow the profession of medicine as his principal and usual calling shall not be authorized to give the prescription provided for in this article." The portion of the article quoted is independent of the remainder of the article, and, if illegal, it can have no effect on the validity of the balance of the statute. It is so independent of the remainder of the law that this clause can be eliminated without invalidating the other provisions. Bush v. Webb, 122 Fed. Rep., 666; State v. Swisher, 17 Texas, 441; Stanfield v. State, 83 Texas, 321; San Antonio v. Jones, 28 Texas, 31; Willis v. Owen, 43 Texas, 41; Parker v. Commonwealth, 47 Am. Dec., 480; Barto v. Hinesod, 8 N. Y., 483; State v. Weir, 11 Am. Rep., 115.

There is no merit in the contention that the order of the Commissioners Court calling the election to determine whether the sale of intoxicating liquors should be prohibited in Grayson County concluded with the words, "except for the purposes and under the regulations prescribed by law." This order provides: "In said election those who favor prohibiting the sale of intoxicating liquors within Grayson County,. Texas, shall have printed or written on their tickets the words, 'for prohibition,' and those who oppose it shall have printed or written on their tickets the words, 'against prohibition." Thus it is seen that the form of the tickets was prescribed and the vote taken in accordance with the statute. We think it is clear that the order, when considered as a whole, meant by law for local option elections. The voters could not have been misled by the order. Dillard v. State, 31 Texas Crim. Rep., 470, 20 S. W. Rep., 1107; Simmons v. State, 67 S. W. Rep., 503.

The contention that the entire local option law of Texas is unconstitutional and void because it, in effect, constitutes class legislation, in that it discriminates in favor of those citizens who are in favor of prohibition and against those who are opposed to it, has been passed upon by the Court of Criminal Appeals, adversely to appellant. The holding of that court is conclusive on this question. Ex parte Fields, 39 Texas Crim. Rep., 50; Rippy v. State, 68 S. W. Rep., 687, and 73 S. W. Rep., 15.

Believing that the proper judgment has been pronounced in this cause, the same is affirmed.

Affirmed.

W. F. HICKS V. OSCAR POGUE ET AL.

Decided October 24, 1903.

1.-Resulting Trust-Time of Payment-Notes Given.

P., being in possession of money inherited by his children, used part of it in purchasing land for them, taking the deed therefor in his own name and executing his note for the deferred payments. Before they fell due he conveyed the land to the children by deed which was delivered, but not recorded. P. paid the notes when they fell due with the children's money, and at all times held money of theirs sufficient to pay out the land. The children knew of the purchase of the land for them at the time it was made, and were satisfied therewith. Held, that a resulting trust in favor of the children at the time of the purchase was not defeated by reason of the money not being then paid in full for the land

2. Same Purchaser Without Notice-Valuable Consideration-Creditor Buying at Execution Sale.

The land was levied on by a creditor of P., and was bought by him at execution sale without notice of the rights of P.'s children therein, and the amount bid by him was applied to the payment of the costs of the suit, it not being shown what the costs were, nor how much thereof the plaintiff creditor was liable for. Held, that it was not shown that he was a purchaser for valuable consideration.

3.-Same-Varying Consideration in Deed.

Objection that as the deed of P. to the children recited a consideration of one dollar and no other, the defendant children could not, over plaintiff's objection, engraft another consideration by parol evidence, was not well taken, and the point was immaterial since the right and title of the children did not depend on the deed.

4.-Evidence-Books Not Accounted For.

It was not error to refuse to permit plaintiff and a witness to testify as to what the county assessor's books showed with reference to the rendition of the land in controversy for taxes where no reason was shown why the books themselves were not produced.

5.-Resulting Trust-Notice of, Immaterial.

Plaintiff not being a purchaser for valuable consideration at his own execution sale of the land, it was immaterial whether or not he had notice at that time of the resulting trust in the land then existing in favor of the defendant children.

Error from the District Court of Dallas. Tried below before Hon. Wm. Poindexter.

Geo. D. Green, for plaintiff in error.

Cleveland & Haynes, for defendants in error.

TALBOT, ASSOCIATE JUSTICE.-This is an action of trespass to try title, instituted by plaintiff in error against defendants in error in the District Court of Johnson County. The plaintiff in error alleged, in addition to the usual allegations in an action of trespass to try title, that the defendants below claimed the land in controversy by virtue of a deed of conveyance executed by J. T. Pogue and his wife, Ella Pogue, father and stepmother of defendants, on the 6th day of July, 1896; that the consideration of such conveyance was one dollar, and that such con

veyance was simulated and not a real transaction between the parties thereto, and was never delivered by the grantor to them, or accepted by them. That said deed was made by the said Pogue with the intent to cheat and defraud his creditors, and particularly the plaintiff, and that the defendants knew such purpose and intent. He further alleged that he was a creditor of the said Pogue, and that he, Hicks, claims title to the land through a judgment, execution, levy and sale thereunder, as purchaser at such sale. I'laintiff in error prayed that said deed of Pogue to defendants in error be declared fraudulent and void, and that it be canceled, and he prayed for general and special relief. He also prayed for rents for the use and occupation of said land.

The defendants in error answered by general demurrer, general denial, and plea of not guilty. There was a trial by jury, resulting in a verdict and judgment for the defendants, motion for new trial overruled, and plaintiff, Hicks, appeals.

Conclusions of Fact.-Defendants were the children of J. T. Pogue by his first wife, and inherited from their grandfather the sum of $500, which was received by their father, J. T. Pogue, in 1895, and by him invested, with their knowledge and consent, in the purchase and improvement of the land described in plaintiff's petition. For the purpose of more securely vesting the title of said land in his children, as he thought, the said J. T. Pogue conveyed the same to them by deed, dated July 6, 1896, expressing therein the nominal consideration of one dollar. The real consideration was the money of said children received by him from their grandfather's estate and theretofore invested in said land and premises for them. The land was purchased from Gilbert B. Shaw and Horace Thomas, and the deeds taken in the name of J. T. Pogue. The consideration expressed in the deed from Shaw is $10 cash and the sum of $30 evidenced by the said Pogue's note due in one year from its date. The consideration expressed in the deed from Horace Thomas is $30 cash and $25 evidenced by said Pogue's note due in one year from its date, both of said notes retained a vendor's lien on said land, and said notes and deeds were dated the 9th day of May, 1896. The deed to defendants in error dated July 6, 1896, for the land in controversy, was signed and acknowledged by J. T. Pogue and his then wife, Ella Pogue, before George McClusky, a notary public, and left in his possession for the purpose and with the intention on the part of the said Pogue and wife to be by him delivered to defendants in error. In accordance with the intention of the said Pogue and wife, and in furtherance of their purpose, said deed was held by said McClusky and by him actually delivered to Oscar Pogue, one of the defendants in error, in June, 1900, and accepted by said Oscar Pogue in his own behalf and in behalf of the other defendants in error. Said deed was not simulated and fraudulent, but made and delivered in good faith, and at the time of its execution and delivery the land and premises therein conveyed constituted the homestead of the said J. T. Pogue, and was all the real