In a forceful motion for rehearing appellant insists that the allegations of the information herein, are not supported by the proof. It is alleged that after an election was held in the described subdivision of Aransas County to determine whether hogs, sheep and goats run at large therein, and after the returns were made, that "on the 29th day of March, 1921, the said Commissioners Court of said Aransas County, in session, opened said election returns, counted and tabulated the votes cast at said election and found that 112 votes had been east for and 97 votes against the adoption of said stock law, and that a majority of 15 votes were cast for the stock law, voted upon as aforesaid at said election on said 22nd day of March, 1921." It will be borne in mind that the territory embraced in the subdivision referred to was the southern part of said county only. The order to the Commissioners Court as introduced over appellant's objection, is as follows:
"At a meeting of the Commissioners Court of Aransas County, Texas, held on the 29th day of March, 1921, came on to be considered the returns of an election held on the 22nd day of March 1921, to determine whether or not hogs, sheep and goats shall be permitted to run at large in Aransas County and it appearing that said election was in all respects lawfully held and said returns duly and legally made and there were cast at said election 209 votes of which number 112 were cast `For the Stock Law,' and 97 votes cast `Against the Stock Law.'
"It is therefore ordered and declared that the proposition against permitting hogs, sheep and goats being permitted to run at large in Aransas County was sustained by a majority vote of the freeholders in said county and that the Court Judge is ordered to issue his proclamation declaring the result of said election and declaring that it shall be unlawful for hogs, sheep and goats to run at large in Aransas County, Texas, after 30 days after posting said proclamation, which notice be posted on March 30th, 1921."
Clearly this order can not be held to relate to, or to carry into effect the result of, an election held in only a subdivision of said *Page 423 county. True, the order and proclamation of the county judge of said county of date March 30, 1921, relates to and describes the subdivision of said county named in the petition and order for the election, and recites that the return of all votes cast at such election had been made as required by law, and that he, the county judge, had tabulated and counted the returns and ascertained the result of said election in the manner prescribed by law. However, this recitation and the apparent contradiction in present Article 7219 and 7220, Vernons Complete Texas Statutes, conduced to lead us to overlook the fact that the pleader had alleged that the returns were opened, counted and tabulated by the Commissioners Court, when the evidence did not support such allegation. Said articles of the statute referred to are as follows:
"Article 7219. On or before the tenth day after any election under the provision of this chapter, the persons holding such election shall make return of all the votes cast at their respective voting places for and against said proposition to the county judge of the county, who shall tabulate and count said returns and ascertain the result of said election.
"Article 7220. The returns shall be opened, tabulated and counted by the Commissioners Court of the county in the same manner as provided for all general elections in the State of Texas."
That these articles appear mutually contradictory is self-evident.
Article 7219 is part of the enactment of 1876, while old Article 7220 was amended in 1919 by the Second Called Session of the thirty-sixth Legislature to read as above set out, but the amendatory act contained no repealing clause.
We have concluded that appellant's contention as made in his motion is well founded. The State having charged that the returns of the election held for the subdivision in question, were opened, counted and tabulated by the Commissioners Court, and it being well settled that it is necessary both to allege and prove all needful steps which must be taken in the adoption of a local option law such as this, would seem to necessarily make fatal the failure of the State to prove that the returns of the election for said subdivision were opened, counted and tabulated by the Commissioners Court. Proof of an order evidencing that the returns of an election for the whole county were opened, tabulated and counted, would not suffice. In all material matters the allegation and proof must correspond.
Appellant's motion for rehearing is granted, the judgment of affirmance set aside, and a reversal is ordered.
Reversed and remanded. *Page 424