
    [Nc briefs found with the record.—Beporter.]
    
      Ex Parte Jim Schilling.
    No. 1590.
    Decided November 3, 1897.
    1. Local Option—Writ of Election.
    Article 1724, Revised Statutes, as to general elections, requires that the county judge or commissioners court ordering the election shall issue writs of election. In a local option election, where no such writ had been issued, but the orders and notices for the election issued by the clerk, and which were posted, contained the date of election, the question to be voted upon, and the officers to hold said election; Held, while the issuance of the writ for the election would have been more regular, the failure to issue the same did not render the election void. Following Ex Parte Williams, 35 Texas Crim. Rep., 75.
    
      2. Same—Order Declaring Result Prima Facie Evidence.
    The order of the commissioners court declaring the result of a local option election is prima facie evidence that all prior preliminary steps have been taken.
    3. Same—Voters Declining to Hold Election.
    Where a local option election has been ordered for a justice precinct, in which there are two voting boxes, and the voters at one of said boxes declined to hold the election, and decided to leave the matter to the voters of the other voting box; Held, the election was valid and legal.
    Appeal from the County Court of Coleman. Tried below before Hon. B. F. Bose, County Judge.
    Appeal from an order and judgment remanding relator to custody on a habeas corpus proceeding to test the validity of a local option law.
    Belator offered in evidence the complaint and information charging him with a violation of local option, and the warrant for his arrest; the order of the Commissioners Court creating the justice precinct; the order for the local option election; the order declaring the result, etc.
    Belator then showed by the clerk of the County Court, the county judge, and the sheriff of Coleman County that no writs of election or form of returns were ever issued or delivered to anyone for the holding of this election, and that the county judge did not issue or have posted for the twenty days required by the general statutes a notice at the respective voting places in said precinct, specifying the day of the election and the question to be voted on; and by Walker Wood and E. T. Harbour, the parties appointed to hold election, that no election was held at Cotton schoolhouse upon the issue, and no returns made of any election for said precinct having said Cotton schoolhouse as its voting place. And by said Walker and Wood, that the result of the election and order of prohibition was made solely on the vote at Washington schoolhouse; that the majority for prohibition was only 11 votes, and that the voting strength of Cotton schoolhouse was, in the general elections of 1892, 28 votes, and in the general elections of 1894, 28 votes; and that there were in said precinct at the time the local option election was held at least 25 votes.
    
      Sims & Snodgrass, for relator.
    The court erred in not discharging relator and in remanding him to the custody of the sheriff of Coleman County, because the local option law was not in force, and has not at any time been put into operation in said Justice Precinct Ho. 5, as required by the laws of this State, and its attempted enactment as to said precinct is wholly null and void, because the requisites of the law necessary to be observed to put same into operation were not fulfilled or observed.
    The court erred in not discharging relator and in remanding him to custody, because local option law was not in force and invalid in Justice Precinct No. 5, Coleman County, for the following reasons, to wit:
    1. Because said Justice Precinct Ho. 5 was, at the time of said local option election and proceedings, composed of two voting precincts with separate voting places, namely, Washington schoolhouse and Cotton schoolhouse, and the order of court recognizing said voting places as such appoints presiding officers to hold said election at each of the said voting places, but fixes no time for holding said election for the precinct having Cotton schoolhouse as its voting place, and failed to order said election for said precinct having Cotton schoolhouse as its voting place, to be held on any day not less than fifteen and not more than thirty days from the date of said order.
    2. Because no writs of election were issued for the holding of said election as required by law, either by the county judge or county commissioners court, containing a statement of the question to be voted upon and the day of the election, accompanied with a copy of the forms of return, and because no writs were ever delivered to the sheriff of Coleman County as required by law, and none delivered by him to the presiding .officer or any other person as required by law.
    3. Because no notice of the holding of the election was given for twenty days prior thereto by notice posted up at the places designated for holding the election in each election precinct, specifying time such election would be held and the question to be voted upon, as required by law.
    4. Because the election precinct having Cotton schoolhouse as its voting place in fact held no election upon the question of whether or not the sale of intoxicating liquors should be prohibited in said justice precinct, and the order of prohibition as to said justice precinct under which relator is held and prosecuted was made and entered by the commissioners court solely upon the votes polled and returned alone from the election precinct having Washington schoolhouse as its voting place, the votes polled being 36 for prohibition and 25 votes against prohibition, the majority for prohibition being 11 votes. The said election precinct had at the time legal and qualified voters under the Constitution and laws of this State within said election precinct to the number of 28, and more than sufficient, if they had voted or been permitted to vote, to have changed the result and defeated the said local option law as to said precinct No. 5.
    5. Because five copies of the order ordering said election for said justice precinct were not posted or caused to be posted as required by larv.
    6. Because the order of prohibition contains no sufficient description or designation of boundaries within which said law is to operate, merely prohibiting in general terms within Justice Precinct No. 5, when the order creating said precinct contains no definite boundaries, no field notes, and is void for uncertainty and indefiniteness of description. Acts 1893, p. 48, art. 3229, same as art. 3386, Rev. Stats. 1895; Mech. on Pub. Off., p. 110, sec. 177; McCrary on Elec., secs. 141,145; Stephens v. People, 89 Ill., 337; Toney v. Harris, 3 S. W. Rep. (Ky.), 614; Cool. Const. Lim., p. 759,760; Currey v. State, 28 Texas Crim. App., 475. On failure to hold election at Cotton schoolhouse: Ex Parte Kennedy, 23 Texas Crim. App., 77, and authorities there cited; Marshall v. Kerns, 2 Swan (Tenn.), 71.
    The failure to perform any preliminary step required to precede the holding of the election in special elections when no election is actually held will render the election void, provided the precinct holding no election contained sufficient votes to have changed the result. We do not understand this position or the Kennedy Case to be in conflict with the case of Ex Parte Williams, 35 Texas Criminal Reports, 75, in which case it was held that a failure to issue writs of election did not invalidate the election, because in that case the election was actually held in every precinct, and there was no contention that it was not fairly held and that it did not express the will of the majority. That case bears no analogy to this case. As said by this court in the case of Ex Parte Burge, 32 Texas Criminal Reports, 463: “In special elections there is a distinction to be drawn between those matters required to be done anterior to the election and those subsequent thereto. The first are generally directed to securing a prompt, fair, and intelligent expression of the popular will; while the second are for the purpose of ascertaining and declaring it. In regard to,the first the courts require a strict compliance with the provisions of the statutes, not only that the people may he given an opportunity of expressing their will (Ex Parte Sublett, 23 Texas Criminal Appeals, 311), but that full notice of the object, time and place may be given. McCrary on Elec., secs. 127, 128.”
    
      [No briefs found with the record.—Reporter.]
    Upon the failure of the county judge to have notices posted for twenty days at the voting places, a notice of the time of election and the question to he voted upon as required by the general election laws, we contend that this requirement is not abrogated by the local option statute; that repeals by implication are not favored, and that no provision for notice is provided by the local option law that is repugnant to the general statute as to notice, and that both should have such a construction as to be reconciled. That the provision for posting copies of the order-by the clerk not even being required to be in a public place should not be held to supersede the said notice by the county judge. As said by the Court of Civil Appeals, Kimberly v. Morris, 31 Southwestern Reporter, 810: “The provisions of this statute are cumulative of and not in conflict with the general election laws, which must be complied with.”
    
      Mann Trice, Assistant Attorney-General, for the State.
   HENDERSON, Judge.

Appellant sued out a writ of habeas corpus. The case was tried in the court below, and appellant remanded to custody. The questions here presented simply involve the validity of the local option election in Precinct No. 5 of Coleman County.

Appellant claims that the county judge did not issue any writ of election for a local option election in said precinct, and that, consequently, said election was invalid.- We are referred to the general election law as authority for this requirement. Article 1724,- Revised Statutes 1895, applicable to general elections, requires the county judge or commissioners court ordering elections to issue writs of election, and said section indicates what said writ shall contain. It is insisted that this article of the Revised Statutes is applicable to local option elections. The record in this case shows that no such writ as that contemplated in the article above referred to was ever issued. The clerk of the County Court of Coleman County only issued six copies of the order for the election, and delivered them to the sheriff to be posted. These orders stated fully the question to be voted upon, the day of election, and the officers who were required to hold said election. Concede, however, that a writ for the election should have been issued, and certainly this would have been more regular; yet the failure to issue same would not render the election void. Ex Parte Williams, 35 Texas Crim. Rep., 75.

It is also insisted that the record in this case fails to show that said notices were posted the necessary twelve days prior to the election. In Shields v. State (decided at the present term of this court), ante, p. 252, we held that the order declaring the result, and putting local option in force, was prima facie evidence of all the preliminary steps having been taken prior to the issuance of said order. In this case the defendant not only failed to successfully assail the posting of said notices, as he is required to do, but the State showed affirmatively that said notices were posted.

Appellant’s contention that no election was held at Cotton schoolhouse, one of the voting precincts, is immaterial. It was optional with them to hold the election. It appears from the record that they considered the matter of holding said election, and decided not to do so, as the other voting box was more interested in the result than they were, and they were willing to leave the matter to the voters of that box. We see no harm in this. We hold that the election in said justice precinct was a valid and legal election.

The judgment of the lower court is accordingly affirmed.

Affirmed.

Hurt, Presiding Judge, absent. •  