Appellant was arrested upon information rated in the County Court of Hill County for violation of the local option law in justice precinct number 2 of said county, and sued out a writ of habeas corpus before the county judge. Upon hearing, appellant was adjudged to be legally restrained, and remanded to the custody of the sheriff, from which judgment he prosecutes this appeal.
It appears from the agreed statement of facts, that upon November 17, 1892, the County Commissioners Court of Hill County ordered a local option election to be held in precinct number 2; that the election was duly held, and the law fully complied with in all respects, except in the entry of the order declaring the result of the election, the court failed to also enter an order absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, as required by article 3233 of the Revised Statutes.
It further appears, that this omission being called to the attention of the court, another election was held on the 15th day of April, 1893, at which local option was again carried in said precinct, and this election was in conformity with the requirements of the law. It further appears, that shortly thereafter, a doubt arising as to the validity of the second election, the County Commissioners Court met on the 12th day of July, 1893, and entered of record an amendatory order, in which, after reciting all the facts attending the first election, and the court's failure to enter the proper order required, they made the order in full, as required by article 3233, Revised Statutes.
Appellant, admitting that the first election was valid, contends, that by the failure of the County Commissioners Court to enter the order at the time required by the statute, all power over the subject ceased, and no right of amendment existed; and secondly, that the first election being valid, though inoperative, there could be no other election held before the expiration of two years, by virtue of Revised Statutes, article 3236; hence the second election was a nullity, and consequently there was no local option law in force in precinct number 2, Hill County, at the time of the alleged violation with which appellant is charged, and appellant is therefore illegally restrained of his liberty.
In the view we take of this case, it is not necessary to consider the question of the second election, nor what is included in the term "election." The only question that need be considered is, Had the County Commissioners Court of Hill County the right to make the amendment of July 12, A.D. 1893? In determining what circumstances of official omission or misconduct will avoid an election, the object to be attained by an election must be kept in view, to-wit, the ascertaining the will of the majority; and whatever statutory provisions are essential to the attainment of this end are obviously indispensable. In special elections there is a distinction to be drawn between those matters required to be *Page 463 done anterior to the election and those subsequent thereto. The first are generally directed to securing a prompt, fair, and intelligent expression of the popular will; while the second are for the purpose of ascertaining and declaring it. In regard to the first, the courts require it strict compliance with the provisions of the statute, not only that the people may be promptly given an opportunity of expressing their will (Ex Parte Sublett, 23 Texas Criminal Appeals, 311), but that full notice of the object, time, and place may be certainly given. McCrary on Elec., secs. 127, 128. After an election has been held, and the will of the people fairly ascertained, courts will give such a construction as will best secure and carry out that will, and will not hold the precise time to be the essence of the election, and thereby permit the election to be defeated by the neglect or willful disregard of a plain ministerial duty. Id., sec. 128. We regard the requirement of the statute, that "the order declaring the result and prohibiting the sale of intoxicating liquors should be entered on the eleventh day, or as soon thereafter as practicable," as intended for the benefit of the voters adopting the law; and while the law requires the order to be entered as soon as practicable, it by no means intends the election to be void on a failure so to do. On the contrary, we think a writ of mandamus would lie to enforce the performance of the duty where it was neglected, and certainly the court can do voluntarily what it can be made to do.
We see no error in the judgment of the County Court remanding the appellant to the custody of the sheriff of Hill County, and it is affirmed.
Affirmed.
Judges all present and concurring.