This is a proceeding on a habeas corpus before this court, and the relator was remanded, and comes before us *Page 243 on motion for rehearing. The original opinion states the case substantially. As I merely concurred in the result reached, I will here briefly state my views.
Relator insists that the local option law in justice precinct No. 1 of Henderson County is invalid, because the presiding judge of election precinct No. 2 failed to endorse his name in person on all the ballots voted in said precinct, the endorsement being made at his instance by one of the judges of the election. His contention is that these votes, under the Terrell Election Law, should not be counted, and that there were a sufficient number of votes in said box which were counted improperly, which, if thrown out, would change the result of said election. The question thus presented is whether or not relator is correct in the proposition that the election is absolutely void because the presiding judge did not sign his name in person upon the ballots. To sustain his contention, relator cites us to Arnold v. Anderson, 14 Texas Ct. Rep., 713; Clark v. Hardison, 14 Texas Ct. Rep., 227, and other cases. It has been held that as to local option elections wherever the local option law speaks on the subject, that it furnishes the rule regulating local option elections, and the general election law, commonly known as the Terrell Election Law, only applies where the local option election law is silent and the Terrell Election Law is not inconsistent but harmonizes with the local option election law. See Revised Civil Statutes, article 3389; Acts of the Legislature 1905, sec. 194, of the Terrell Election Law; Hanna v. State, 87 S.W. Rep., 702, and Ex parte Keith, 83 S.W. Rep., 683. It may be conceded that the endorsement of the presiding judge, in accordance with the provisions of the Terrell Law, of his name on the local option election ballots, is not inconsistent with anything in said election law and, therefore, inasmuch as this is one of the safeguards regulating elections, said provision is applicable to local option elections, and that this provision should be read into the local option election law regulating the issuance of ballots, and providing for a personal endorsement thereon by the presiding judge of the election of his name; that is, this is a provision safeguarding the election against frauds, the intention being to see that none but the ballots issued by the election board shall be voted. However, did the failure of the presiding judge to write his name in person on the ballots given out (if it be conceded that this was a personal trust which he could not delegate, which appears to be in accordance with the holding of our Civil Supreme Courts) render the local option election in Henderson County absolutely void? It will be borne in mind that no fraud is charged, no illegal votes were cast, all the voters were qualified, and the election was fair, and counting these votes, the votes not endorsed, local option carried in that precinct by a considerable majority. Now, while it is true the law says these ballots shall not be counted, they have been counted, and the result declared, and local option put into effect by publication. Can we hold that because one of the safeguards guaranteeing *Page 244 a fair election was disregarded, that said election was consequently null and void? We think not, and if the cases cited by relator from our Civil Supreme Court are intended to enunciate this doctrine, notwithstanding the very high respect which we entertain for their opinions, we cannot bring ourselves to agree with them. But we do not believe that the cases cited go to the extent insisted upon by relator; and this brings in review another proposition. In Arnold v. Anderson, supra, and other cases cited, there was a direct proceeding to contest the local option election brought before the district court which, as we understand, has exclusive jurisdiction of a contested local option election under our law. See art. 3397, Rev. Civ. Code. In such a contest that court has jurisdiction to inquire into the fairness of local option elections, and to determine as to the conduct of said elections and what occurs on the day of the election only. See Norman v. Thompson, 6 Texas Ct. Rep., 641; 72 S.W. Rep., 62. This last case is an opinion of the Supreme Court of this State, which holds in a contested election case before the district courts they are authorized to take cognizance of what occurs on the day of the election only, and of course this would include the endorsement by the presiding judge of the ballots distributed to the voters. In the trial of a contested local option election, the action is direct and the court is authorized to go into the box and thoroughly investigate the fraudulency of the election and to determine the question as to the validity of said election, and in case it finds the election was carried on in such a fraudulent manner as to render same void, that court can authorize a new election.
Here, however, we have a habeas corpus proceeding which does not involve a direct but a collateral attack on the election, and we are only authorized to act when the local option election for some cause is absolutely void. As this question comes before us, it is admitted that the election was fair and that prohibition carried in the precinct, counting the votes which were not personally endorsed by the presiding judge of the election. Now, can we hold that this failure to endorse the ballots rendered said election absolutely void? To so hold would be equivalent to saying that notwithstanding the election was fair, it was rendered void simply because one of the safeguards securing the fairness of the election was not observed. This is not the law, and to so hold would violate all the rules regulating elections, and which are intended merely to guarantee the will of the people as expressed in a fair ballot. It may be, in thus holding, there is a conflict between our views and those of the Courts of Civil Appeals on this subject. If such be the case, relator may be placed in a peculiar predicament. The civil courts may hold that there was no election and order a new one, while by our holding the law is in force and he is held amenable to the law.
In this connection we do not believe it amiss to suggest to the Legislature that it would be advisable to further amend our statutes *Page 245 with reference to the trial of local option elections which may be contested; and require other courts to take cognizance of such contest, and the result thereof, and to suspend prosecutions during such contest.
Overruled.