Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $20 and *Page 173 twenty days' imprisonment in the county jail; hence this appeal. The information in this case is substantially in the same form as the information in the case of Key v. State, ante, p. 77, and the court did not err in holding it good. Appellant, by his first bill of exceptions, states that a certified copy of the order of the Commissioners' Court of Johnson County, of date January 29, 1894, was introduced in evidence over his objections. We are not informed by the bill itself what was the character of this order. The bill of exceptions, in order to have been a complete bill, should have either set out the entire order itself, or have substantially embodied the same in the bill, and also have stated the facts and conditions surrounding its admission, so that this court might have intelligently and correctly passed upon the admissibility of the order in question. Concede, however, that the bill is intended to question the admissibility of the order of the Commissioners' Court authorizing an election on prohibition in Johnson County, we will notice such objections urged thereto as we deem important. It has heretofore been held by this court that when an order for a local option election has been made by the Commissioners' Court, in the absence of contrary proof showing irregularities it will be presumed that all of the incipient and necessary steps were taken in order to authorize the order. Appellant objected to the introduction of said order, on the ground that the Commissioners' Court was a court created by the Constitution of express and limited authority; that among its functions was not enumerated the right to order a local option election; that this was not a function pertaining to county matters. The local option election law, while a general law, applicable alike to all the counties and subdivisions of counties that may see fit to adopt it, yet appertains to the counties, and involves a matter of county regulation. The clause of the Constitution upon this subject is as follows: "The County Commissioners so chosen, with the County Judge, as presiding officer, shall compose the County Commissioners' Court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of this State, or as may be hereafter prescribed." See, Const., Art. 5, § 18. This subject-matter is expressly placed in the hands of the Commissioners' Court by the Constitution itself. Concede that the Constitution was silent upon the subject, and that the jurisdiction of the County Commissioners' Court had been specifically defined, it would not follow that the legislature could not confer such further jurisdiction upon the court, especially as to matters over which no other court had jurisdiction. The clause above referred to seems to apprehend this, and the prohibition amendment as stated refers to County Commissioners' Courts.
To the introduction of the order declaring the result of the election, appellant made a number of objections. The fourth ground of objection was: "Because the proper notice of said election was not given; and, if the same was given, it was not given by the proper person." As to this matter, the onus was upon the defendant, in the first instance, *Page 174 by his bill to show as a matter of fact that proper notices were not given; and, if same were given, that they were not given by a proper person. The objection made by him is not a certificate by the judge that the facts were so. When this order is issued, the presumption obtains that the election was fairly conducted; that the vote had been counted, and the result ascertained; and that everything necessary to holding a legal election had been done. If the notice had not been given, or had not been given by the proper person, appellant must show it. This cannot be done by objecting to the introduction in evidence of the order — we assuming that the order was in proper form. The State was not required to prove that notices of the election had been posted. The issuance of the order assumes such to be true; and, after the introduction of the order, if appellant proposed to attack the election because such notices were not posted as the law requires, this is a matter of fact, and the burden is upon the appellant to make the attack with proof. See, Gaines v. State, ante p. 73. Appellant further objects to the introduction of said order because, he says, "it shows on its face that the polls were not opened and the votes counted by the Commissioners' Court; said act being a condition precedent to the correct rendering of said order prohibiting the sale of intoxicating liquors in Johnson County." As stated in reference to other bills of exceptions, this bill should have contained the order, which it does not. If we look to the order itself, it does not show on its face that the polls were opened and the vote counted by the County Commissioners' Court. If, however, appellant had offered proof that the polls or poll boxes were not in fact before the court, and were not opened and counted, we have heretofore held, in construing this law, that this was not fatal to the authority to issue the order. See, Ex Parte Williams, 35 Tex. Crim. 75. In that case, however, we did not go into a discussion of Arts. 3389, 3390, Rev. Stat., 1895. By referring to said articles, and construing them together, we think they clearly indicate that the judges holding the election should count the vote, and make due report of the count so made by them to the Commissioners' Court, who examine the tally sheets or report of the judges, and estimate the result. Concede that it was the duty of the Commissioners' Court, before the order proclaiming the result of the election and prohibiting the sale was made, to count the votes, and that they had failed to count the votes as required by the statute, this would not be fatal to the order. See this question discussed and decided in Ewing v. Duncan, 81 Tex. 230. It is also insisted that the result of the election is to be determined by a majority vote of the subdivision or county where the election is held, and that the County Commissioners' Court has no authority to declare the result, and make an order to that effect. It is not contended, as we understand, nor was any evidence offered, that the majority of the voters of Johnson County did not vote in favor of prohibition; but it is urged that the Commissioners' Court was not authorized by the law or Constitution to make an order declaring the result, *Page 175 after the result has been reached by a vote of the people. As heretofore stated, there is nothing in the Constitution prohibiting the County Commissioners' Court from acting in this matter. On the contrary, the Constitution appears to lodge this matter with the County Commissioners' Court. It certainly could not be contended upon any sound principle that, if the Constitution authorized this matter to be decided by a majority vote and this majority vote declared in favor of prohibition (and this result is not questioned), it would render such election void because some tribunal not authorized by law should afterwards enter an order predicated upon the ascertained will of the people upon this question. The order was further objected to because it did not specially name the purposes for which the sale of intoxicants may be made; that is, for medical and sacramental purposes. This is unnecessary. The law ingrafts the exceptions; and, if the order had not alluded to this matter at all, no one could be legally convicted for selling within the exceptions.
Appellant insists that the evidence in this case shows conclusively that the election in Johnson County was illegal, because he showed by proof that in a great majority of the voting precincts of Johnson County there were more than one hundred voters according to the last census; and that but five officers held the election in said precincts, whereas the law required eight; and also that only one election box was used at each of said election precincts. We have examined the record in this respect, and it shows that it was an admitted fact that at the election preceding the local option election of January 17, 1895, there were polled at seven of the voting precincts in Johnson County, less than one hundred votes, and that at eighteen of the voting precincts in said county there were polled more than one hundred votes It is also an admitted fact that only five officers held said election at each and all of said places, and also that only one ballot box was used in which all the ballots were deposited; so that appellant claims that the evidence showed conclusively that it was not a legal election held within eighteen of the precincts on the 17th day of January, 1895, on the question of local option. This same question is also raised in the charge of the court on this subject. The court, in effect, instructed the jury that said orders of the Commissioners' Court, which were read in evidence, were legal, and prohibited the sale of intoxicating liquors in said county from and after the 6th day of April, 1895. It is insisted by the appellant that the court might have been authorized to give such an instruction where the proof was not controverted, but in this case the evidence was against such an instruction. The law provides that "local option elections shall be held and the returns thereof made in conformity with the provisions of the general laws of the State and by the officers of the election appointed and qualified under such laws." Article 3230, Acts 1893. It is clear from this provision that local option elections must be held as general elections are held. The election in this case occurred in January, 1895, and therefore was required to be held under the law then in force as to general elections. By the act of March *Page 176 14, 1887 (20th legislature), it is provided "that the presiding officer of each election precinct, which shall have cast more than one hundred votes at the last preceding election, shall on or before the day of the election, from the qualified voters of the precinct, select three judges and four clerks, * * * who are authorized to hold the election." This was not done in eighteen of the precincts in Johnson County, as above stated. As the law requires that local option elections shall be held under the general laws regulating elections generally, and as the election law required that the presiding officer shall select three other judges and four clerks in precincts at which at the former election more than one hundred votes were cast; and as this was not done in this case, it is insisted the election was void. There is no suggestion in this record that the election was not fair, that any voter was deprived of the right to vote, or that the result was not in favor of local option. It is not suggested or questioned that three judges and two clerks performed all the duties required under the general election law, as prescribed for the eight officers. The simple question is that, as there were but two judges and two clerks assisting the presiding judge, and not three judges and four clerks, as required by the general election laws, was the election void? We are of opinion that it was not. The authorities are conflicting upon this question. The early congressional election cases support the affirmative — that the election was void. The latter cases, and better reason, hold the negative — the election was not void. In support of our views we cite State v. Stumpf, 21 Wis. 586. This case is precisely in point. Also case of McCabe v. Arcularins, N Y Contested Election Cases, 333. Quoting from the opinion in State v. Stumpf, supra: "Precisely the same objection was taken in the celebrated case of People v. Cook, 8 N.Y. 67, the election held in the Fourteenth ward of the city of New York. The law of that State required, like our own, that there should be three inspectors in each election district. Summing up the facts, the court states 'that there were at times one inspector at the polls, and then three, and then at times four inspectors.' Still the court held that the irregularity did not vitiate the election, because the statutory regulations for conducting elections are directory, and not jurisdictional, in their character; the main object of such laws being to afford all persons entitled to vote the right of exercising the elective franchise, and prevent illegal voting, and ascertaining with certainty the true number of votes cast, and for whom." We also quote from 6 Amer. and Eng. Ency. of Law, p. 325, as follows: "Constitutional and statutory provisions for the conduct of elections are either mandatory or directory, and the violation of mandatory provisions will avoid the election without regard to the motives of the persons, and without any inquiry into the effect of the result of the election. But in cases of directory provisions the election will not be set aside, unless the disregard of the provisions has been such as to show a fraudulent intent or uncertainty has been produced in the result of the election. When the election is fair and honest, courts will not disfranchise voters, unless compelled to *Page 177 do so by the peremptory requirements of the law." We believe, as there was no testimony in this case tending to show that the irregularity complained of affected the result in the slightest degree, that it was not error for the court to instruct the jury that the local option law was in force. If there had been an issue as to the fairness of the election, or as to the result, or as to whether all of the voters had an opportunity to cast their votes, then such a charge would not have been proper. Then, in such case, questions of fact would have been presented which should have been decided by the jury. The same observations above apply to the question raised of having one voting box at the various precincts. No question is made but that the facilities offered by the one box provided were ample for the purpose of holding the election. See, 6 Amer. and Eng. Ency. of Law, p. 324. We notice that counsel insist that this question has been directly adjudicated by the Court of Appeals of Missouri, and they refer to the cases of State v. Mackin, 41 Mo. App., 99; State v. Prather, Id., 451; State v. Searcy, 39 Mo. App., 393. We have not had access to said cases, but we would observe that they are not decisions of a court of last resort in said state.
Appellant contends that the court should have sustained his motion for a new trial, because the verdict of the jury was against and contrary to the evidence, and failed to show that defendant sold the beer to Bell, as alleged in the indictment. We have very carefully examined the statement of facts, and are of opinion that the testimony supports the verdict. It seems that the appellant furnished Bell with a blank order on a brewery in the city of Dallas for five dozen pint bottles of beer. Bell paid him nothing for it. A few days afterwards he was informed that his beer had arrived; and thereafter, on several different days, among others the 20th day of August, 1895, in Johnson County, defendant delivered to him pint bottles of beer, for which he paid at the rate of fifteen cents per pint bottle, as he received it; that he could get beer from defendant whenever he wanted it; and sometimes he paid twenty-five cents for two bottles, when he got that many. No evidence is offered that Bell was ever furnished with a statement as to the prices of the beer. It is remarkable that appellant should charge the usual price for beer, — fifteen cents per pint bottle, or two bottles for twenty-five cents. We believe that this matter in regard to the order and storage was a subterfuge to cover a sale, and that the jury were therefore authorized to take this view of the case, and convict the defendant for selling the beer to Bell. We have carefully examined this record, and fail to find a reversible error, and the judgment is affirmed.
Affirmed.
[NOTE. — Appellants motion for rehearing, filed February 26th, 1897, was overruled without a written opinion. — Reporter.] *Page 178