
    BISHOP v. STATE.
    (No. 3141.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 10, 1914.)
    1. Animals (§ 50) — Stock Laws — 'Validity.
    Under Const, art. 16, § 23, empowering the Legislature to pass laws for the regulation of live stock in the stock-raising portion of the state, and to exempt from such laws other portions of the state, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., a town incorporated under the general incorporation act could be included in a district for which a stock law election was had.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.*]
    2. Animals (§ 50) —Running ax Large — Stoce: Laws.
    Under Const, art. 16, § 23, empowering the Legislature to pass laws regulating live stock in the stock-raising portion of the state, and to exempt other portions, provided any local law thus passed shall be submitted to the voters of the section to be affected thereby, etc., and the statutes passed thereunder, one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    3. Couets (§ 89) — PREVIOUS Decisions as Peecedent.
    Since the Legislature has given the civil courts exclusive jurisdiction to determine the validity of stock law elections, and taken such question from the criminal courts, the decisions of the civil courts as to such questions are binding upon the criminal courts in preference to their own previous decisions.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. § j 311, 312; Dec. Dig. § 89.]
    4. Animals (§ 50) — Running at Large — Stock Laws — Election—Petition.
    Where a petition to the commissioners’ court for a stock law election was permitted to be amended so as to include three other surveys and change the number of the district, the amendments did not render the petition a new one, so that the court could not act thereon at that term.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    5. Animals (§ 50)— Running at Large — Stock Laws — Elections — Record of Returns.
    Under Rev. St. 1911, art. 2276, requiring the commissioners’ court to procure and keep in the county court clerk’s office suitable books to record the proceedings of the court, the fact that the tabulated returns of a stock law election were recorded in a book in which the result of all elections were recorded, and not in the minutes of the court, did not invalidate the election, since the minutes of the court need not necessarily be kept in one book.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    6. Animals (§ 50) — Stock Laws — Elections —Failure to Record Returns.
    Though the clerk of the commissioners’ court should fail to record the tabulated returns of a stock law election in the proper book, it would not invalidate the whole election, where every other essential was complied with, and there was no doubt that the election was carried.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 148-157; Dec. Dig. § 50.]
    Appeal from Colorado County Court; J. J. Mansfield, Judge.
    Mose Bishop was convicted for permitting his cow to run at large in violation of the stock law, and he appeals.
    Affirmed.
    J. C. Kindred and Grobe & Miller, all of Columbus, for appellant. A. A. Gregory, Co. Atty., and Townsend, Quin & Townsend, all of Columbus, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, P. J.

Under article 1249, P. C., appellant was prosecuted and convicted for knowingly permitting his cow to run at large after the stock law had been adopted prohibiting this. He waived a jury, and was tried before the court on an agreed statement of facts.

Shortly prior to the August term, 1913, of the commissioners’ court of Colorado county, 58 qualified voters in a certain territory of said county petitioned said court to order an election in that certain designated portion of said county specifically described by metes and bounds to determine whether or not stock — horses, mules, jacks, jennets, and cattle — should be permitted to run at large in said designated territory. This territory, except three surveys, had theretofore been designated by said court as election district No. 6 of said county. The petition at first so called it, in addition to the specific boundaries composing it at that time. When said court convened at said August term it added three surveys — one league and two quite small surveys — to that election district, and changed the number thereof from 6 to 8. It then permitted the petitioners to amend their said petition so as to include said three surveys and change the number of the district from 6 to 8 therein, which they did; the court and all the petitioners consenting. The court then granted the petition, ordered the election, made all of the necessary orders, had all the proper notices issued and published and the election held strictly in accordance with the statute. Said election district, as No. 6, theretofore had embraced the city of Weimar. Weimar, long before then, had been incorporated under the General Incorporation Act, authorizing towns of 1,000 inhabitants or over to incorporate under articles 762 et seq. of our Revised Civil Statutes. As such corporation it had just such power and authority over the streets, alleys, and public grounds of the city and to regulate and prohibit stock running at large as were given by said statutes to such incorporated towns. It had passed no ordinances, and had none regulating or prohibiting stock running at large. Some considerable time before said election two respective subdivisions of said district 8 had had stock law elections, which had carried, putting said stock law in force in said two subdivisions, respectively. These two subdivisions together embraced perhaps more than half of said district 8. Neither of them embraced Weimar, or any part of it. The other portion thereof, including Weimar, had never had any stock law election embracing that territory, or any part of it. Said district 8 embraced the whole of each of said two subdivisions and said additional territory. Before this prosecution none had ever been had in either of said two subdivisions where the stoek law had been carried. Said law in neither of said subdivisions had been observed or enforced. Thirty-two of said petitioners were resident freeholders of said two subdivisions. The other 26 were resident freeholders in that part of said district 8 which theretofore had had no election, nor stock law in force. The returns of said election in said district 8 were properly opened, tabulated, and counted by the county judge in the presence of the persons the statute requires, his count and tabulation distinctly showing that 139 votes were cast for the law and 93 against, and 5 mutilated ballots. The said certificate and order of the county judge showing all this, was duly recorded in volume 3 of the Records of Elections in the county clerk’s office of said county. In addition, the said petition for the election, the order of the court granting it and ordering the election, the order of the county judge ordering the election and causing the proper publication, reciting everything the statute requires, the further proclamation of the county judge, fully reciting all the proceedings authorizing and requiring said election, and declaring said result, and that after the requisite time it would be unlawful to permit, etc., such stock to run at large in said territory, were all duly recorded. Appellant knowingly permitted his cow to run at large within the corporate limits of Wei-mar after said stock law had been voted and put in effect in said district 8 in 1913.

Under this state of facts appellant contested the validity of said election and claims the stock law is not in force in said district 8 on four grounds. He contends, first, that Weimar cbuld not be included in the territory for such election because it was incorporated; second, that because stock law elections had been held and the law put in force in said two subdivisions of said district 8, they could not be combined with another, wherein no election had been Held and the stock law not in force therein, so as to embrace the whole territory described and designated as said district 8; third, that because said original petition was amended in the particulars shown after the term of said court had convened, it thereby became a new or original petition, and, having again been filed, after said court convened, the court had no power at that term to order said election; and, fourth, because the tabulated election returns were not recorded in the minutes of said court, but recorded only in the records of elections of said county court.

Our Constitution (section 22, art. 16) is:

“The Legislature shall have the power to pass such fence laws, applicable to any subdivision of the state or counties, as may be needed to-meet the wants of the people.”

Again, section 23, art. 16, is:

“The Legislature may pass laws for the regulation of live stock and the protection of stock raisers in the stock-raising portion of the state, and exempt from the operation of such laws other portions, sections or counties; * * * provided, that any local law thus passed shall, be submitted to the freeholders of the section, to be affected thereby, and approved by them before it shall go into effect.”

Under these constitutional provisions the Legislature has from time to time passed stock laws and authorized elections to be held in counties and subdivisions thereof. It first passed a law authorizing such elections to be held to prohibit the small live stock, hogs, sheep and goats, from running at large. For the first time by the act of 1899, p. 220, it provided for like elections to be lield to prohibit the large live stock, horses, mules, jacks, jennets and cattle, from running at large. These various acts have been construed both by this and our civil courts from time to time. We have again considered and reviewed the decisions, both civil and of this court, on the points raised by appellant, as well as the authorities cited in appellant’s brief herein.

This court in Neuvar v. State, 163 S. W. 58, expressly decided appellant’s first ground against him. We have no doubt of the correctness of that decision, and that Weimar could be, as it was, embraced in said district 8, and the election was not invalid because thereof.

We also think it clear, under the statute and the decisions of this court and the Supreme Court, that the two subdivisions of said district 8, in which previous stock law elections had been held and carried, could be embraced therein together with the remaining portion of said district 8 in which no stock law election had been held. Ex parte Thompkins, 47 Tex. Cr. R. 358, 83 S. W. 379; Roberson v. State, 42 Tex. Cr. R. 597, 63 S. W. 884; Armstrong v. Traylor, 87 Tex. 598, 30 S. W. 440; Graves v. Rudd, 26 Tex. Civ. App. 554, 65 S. W. 63.

Prior to the decision of the Thompkins Case, supra, this court had held in Ex parte Heyman, 45 Tex. Cr. R. 532, 78 S. W. 349, and other cases since then following that decision, that under section 20, art. 16, of our Constitution, requiring the Legislature to pass laws authorizing certain subdivisions of a county to hold elections to determine whether or not the sale of intoxicating liquors should be prohibited therein, one or more such subdivisions of a county wherein such election had been held and carried could not be combined with any other such subdivision, so that a valid election could be held in such combined divisions. But this court, through Judge Henderson, in Thomp-kins Case, supra, pointed out the distinction and difference between that section of the Constitution and those regulating stock law elections, and in effect held that the doctrine announced in the Heyman Case was inapplicable to stock law districts, and the effect of the decision and the principle announced in the Thompkins Case is that the whole of another or other districts wherein the stock law election had been carried could be combined with another, and with territory in which no election had been held, making a new district, and that an election held in such new district was valid. We have no' doubt, under the stock law constitutional provisions above quoted and the statutes passed thereunder, that one or more districts where the stock law has been put in force can be combined with territory where no election has been held, and thereby embrace an entirely new and complete district, as was done in this case, and that such election embracing such territory is valid and legal.

Besides this, since the decision in the Heyman Case, supra, and all those following it were rendered, the Legislature of this state has taken the decision of all such questions from this court and given the civil courts exclusive jurisdiction to determine the validity of any such election, under the liquor prohibition constitutional provision, by the act of 1907, passed at the first special session of the Legislature (page 447). Our Supreme Court, in Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635, and other cases, and the Court of Civil Appeals at Galveston, in the recent decision of Scurlock v. Fairchilds, 159 S. W. 1001, have held that such districts can be combined and made a new district, and that such an election held therein would not be invalid because thereof. The principles announced in those cases are exactly applicable to that question in this case, and we would follow the civil courts on such questions. The reasoning of the two decisions, just above cited, in our opinion, is unanswerable and conclusive of the question. Under the law as it now is, that question under the liquor prohibition constitutional provision cannot again come before this court, so that, the effect of the said decision in the Heyman Case, supra, and others following it, is in effect done away with.

The petition for the election in this case having been filed before the August term, 1913, of the .commissioners’ court convened, it was properly acted upon and granted and the election ordered at that term of court. The amendments thereto, made as shown above, did not render the petition a new one, so that the court could not act thereon at that term.

The statute (R. S. art. 2276) requires the commissioners’ court to cause to be procured and kept in the county clerk’s office suitable books in which shall be recorded the proceedings of the court. One of these books so procured and kept in the office seems to have been a book in which the record of the result of all elections was entered, and, the tabulated returns of this election having been recorded therein, substantially complied with the law. The minutes of the commissioners’ court need not necessarily be kept in any one book. Various books for the record of the various proceedings of the court may be kept. We know of .no law that requires the proceedings of the commissioners’ court to be recorded in any one book. Even if the tabulated returns had been omitted to be entered in the proper book by the clerk, that certainly could not be held to invalidate the whole election and the validity of the law, when every other essential had been fully and completely complied with, and there could be no possible doubt from the orders and minutes of the court that the election was carried, as shown by the tabulated returns of the election. Even mere irreguiarities in conducting the stock law election would not render it void. Hannah v. Shepherd (Civ. App.) 25 S. W. 137.

In our opinion the stock law in said election district 8 in Colorado county was in every way valid and legal against any and all of appellant’s contentions. The judgment is therefore affirmed.  