The appellant was tried in the court below for the violation of the local option law in justice's precinct No. 1, of said county, and was convicted, and his punishment assessed at a fine of $25 and 20 days confinement in jail, and from the judgment of the lower court he prosecutes this appeal.
The only question presented for our consideration is, can the Commissioners' Court, upon a petition signed by 50 qualified voters, order an election for local option in the part of the county embracing two justice's precincts, calling the same a subdivision, and describing the territory by metes and bounds? In ex parte Speagle, 34 Tex.Crim. Rep., we hold that "where the election is for an entire county, or for any justice's precinct in the county, in its entirety, or for any town or city therein, it is not necessary to set forth the metes and bounds thereof, either in the minutes of the Commissioners' Court or in notices to be given for the election, and only where it is some subdivision of a county, distinct and different from a justice's precinct, or a town or city, is such description necessary. These latter, it is true, are, in a sense, subdivisions of a county, but they are already designated, and their boundaries matters of record, and are known; and it is sufficient merely to name the justice's precinct or the town or city to be affected. If the locality in which a local option election is ordered embraces less than the whole of the justice's precinct, or one justice's precinct and a part of another, or parts of two or more precincts, such metes and bounds should be set out and made matter of record in the order for election and in the notices." That is, Article 3227, Rev. St., was by said court construed to mean that in a local option election the metes and bounds of a county, city, or town, or justice's precinct of said county need not be set out in the application or order for election, but it was sufficient merely to allude to these by name; but, if the locality to be affected was other than one of these known divisions of the county, that such metes and bounds should be set out; and we now hold that such subdivision may consist of the whole of a justice's precinct and a part of another or others, or two or more justice's precincts. In such case, the territory to be affected must be described by metes and bounds. In this case, the territory was described by metes and bounds, but it is said that the territory so described embraces exactly precincts Nos. 1 and 4, of San Saba county; and it is contended that because these two precincts have their known *Page 54 boundaries, and a local option election could be ordered for either without the necessity of describing the territory so embraced by metes and bounds, therefore it is not such subdivision of the county for which a local option election can be ordered. As strengthening this position, the appellant urges that, if the local option election is to be held in either of said known precincts, it would require a petition signed by 50 voters, and if the two can be embraced, as was done in this case, that a petition of 50 voters can accomplish, when they are designated as a subdivision, the same object which would require 100 voters if they petition the vote singly. While this may be true, to our minds it furnishes no reason why the two precincts, or even more territory short of the whole county, cannot, be embraced in the order, and authority vested in such subdivision to vote upon local option upon a petition of only 50 voters of such territory; for, as we understand it, so the law is written. As we construe the law, it is only necessary that the petition be signed by 50 voters, except in two contingencies: One is where the local option election is for the whole county, and the other is where an incorporated town or city is embraced within the local option division or subdivision. In the view we take of this question, there is no error in the record, and the judgment is affirmed.
Affirmed.