Appellant was tried for violating the local option law, and his punishment assessed at a fine of $100 and confinement in the county jail for twenty days; hence this appeal. It appears from the record that the entire county of Palo Pinto voted upon local option at the election under which this prosecution is based. It is contended by appellant that the election was illegal and void, because, as he insists, but 226 qualified voters petitioned for said election, when the law then in existence required 250. We copy as follows from the orden of the court on this subject: "Whereas, there came on to be heard a petition signed by 226 qualified voters, residing in Palo Pinto County, Texas, asking for an election to determine whether or not the sale of intoxicating liquors should be prohibited in Palo Pinto County, it is therefore ordered by the court that an election be held by the qualified voters of Palo Pinto County," etc. The contention of appellant, as we understand it, is that, as the order of the court appears to be based on a petition of the qualified voters of said county, the presumtion cannot be indulged that the court made the order on any other account than that stated. The statute under which this election was held was Article 3227 of the Acts of 1893, which authorizes the Commissioners' Court of any county to order an election for local option in the county whenever they deem it expedient; and it makes it their duty to order an election for such purpose whenever as many as 250 qualified voters in the county petition them to do so. The court has the inherent right to issue the order without a petition. It is not necessary for any fact to exist in order for the court to exercise that power. The statute requires the court to issue the order when petitioned by 250 voters, and is not for the purpose of giving the court jurisdiction to issue it; but, when this is done, it becomes imperative upon the court. Let us suppose that the petition was presented and signed by less than 250 voters of the county, and that the court was induced to make the order by that petition. This would be perfectly legitimate, because they could make it without any petition. We cannot inquire as to what induced the court to make the order; nor will the members of the court be heard to deny that they ordered the election of their own motion, notwithstanding the recitation in the order would suggest that the matter was called to their attention by a petition. If the law only authorizes the jurisdiction *Page 236 of the court to order an election on local option on a petition of 250 qualified voters, then the contention of appellant would have some force; but as the law empowers them to use their discretion, regardless of a petition, to order the election, when they have acted, no matter what the recitation in the order may be, the exercise of their power will be attributed to an exercise of their discretion, which is lodged in them by the act itself. The court did not instruct the jury that the local option law was in force in Palo Pinto County, but left it to the jury to determine. However, if the court had thus instructed the jury, we believe the instruction would have been proper in this case. The order for the election and the order declaring the result and prohibiting the sale of intoxicating liquors in that county were introduced in evidence. Under such a state of case, the burden was upon the defendant to show that the court in the first instance had no authority to make the order for the election, or to show that the proper notices were not posted, or to show that the order forbidding the sale of intoxicating liquors had not been published as required by law. Now, if there be a conflict in the testimony in regard to either of these facts, the court should not have instructed the jury that local option was in force in that county, but have left the issue to the jury. In this case the order for the election was attacked in the manner above indicated, to-wit: because not made by the Commissioners' Court upon their own motion. As above stated, we found this untenable. Appellant does not insist that the proper number of notices were not posted as required by law. The only complaint is that the sale, according to the evidence, was not made after local option went into effect. The order of court introduced in evidence shows as follows: "Published in the Palo Pinto County Star, a weekly newspaper, published in said county for four successive weeks, ending on April, 18th, 1896." Now, unless this publication was first made on Sunday, evidently it ended before the 18th, which was Saturday. By the expression "ending on April 18th, 1896," may be meant that the time had already expired on that day. Any other construction would make the publication to have begun on a Sunday. But, whatever may be the construction in this regard, yet the testimony of all the witnesses who speak upon this point is to the effect that this occurrence was after local option had gone into effect. Some of the witnesses say "on or about the 18th of April," and but one says "on the 18th." All, however, say that it was after local option had gone into effect in that county. This is further borne out by the suggestion, made in this record, that this case was made as a test case, to try the validity of the local option law, and evidently the parties engaged in making such a case would wait until local option went into effect. We think the evidence shows that the four weeks' publication had expired at the time of the alleged violation of the local option law. As to this being a fictitious case, the evidence unquestionably shows that the liquor was purchased, and that local option had gone into effect in Palo Pinto County at the time, and this is not under the proof of a *Page 237 feigned case. The purchase of the liquor actually occurred, and was intended as a test of the validity of the local option law. Because the parties undertook to do things inhibited by the law does not constitute a merely feigned or fictitious case, but is a real case, and is none the less so because the parties did the acts for the purpose of making a test case. No errors appearing in the record, the judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]