31 S.W. 171 | Tex. Crim. App. | 1895
The appellant, who was relator below, appeals from the order of the county judge from a proceeding on habeas corpus, remanding him to the custody of the sheriff of Hunt County, for the alleged violation of the local option law in precinct number 6 of Hunt County. The case brings in review the validity of a local option election in Hunt County. It appears that, in ordering the election for the local option, the Commissioners Court described the locus in quo to be affected by metes and bounds. These metes and bounds are not recorded in full in the minutes of the Commissioners Court, nor was such description embraced in the notice given for such election; but the order and subsequent proceedings were treated as an election for Justice Precinct No. 6 of Hunt County.
The first question presented is whether metes and bounds of a justice precinct had to be recorded in full in the minutes of the Commissioners Court, and embodied in the notice given for such election. This exact question was not before this court in Ex Parte Smith, ante, p. 284, from the same precinct in Hunt County, and was not in terms decided. We now hold, that where the election is for an entire county, or for any justice 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 the notice to be given for the election; and only where it is some subdivision of the county, distinct and different from a justice 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 precinct or the town or city to be affected. If the locality in which the local option election is ordered embraces less than the whole of the justice precinct, or one justice precinct and a part of another, or part 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. As stated, it appears that the application for the local option election in this case set forth the metes and bounds to be affected by descriptive averments, but all of the subsequent proceedings were as for an election in Justice Precinct No. 6 in Hunt County, and the question now presents itself, if it is ascertained that Justice Precinct No. 6, as to its metes and bounds, is identical with the metes and bounds as originally set out in the application, should the election be sustained as valid? In our opinion, it should. Upon this point, as to the evidence, there is some controversy.
Appellant contends, that in a survey of the metes and bounds, as set forth in the application for a local option election, a small portion of land, to wit, 160 acres, is not included within the metes and bounds of precinct number 6. There is evidence upon this point pro and con, the court below holding that all of the territory embraced in the field notes set out in the original application is within the bounds of said justice precinct. It is admitted that the field notes of both are the *468 same until the survey reaches a point on Middle Sulphur, which calls for a point due north of the old Harris survey, and the question of fact here turns upon where the old Harris survey is located. On the map of Hunt County, which is before us, we find that there is a survey of eighty acres patented to Harris. Just west of that is a survey of 160 acres patented to O.M. Harper. This latter, with territory immediately adjoining north and south is the territory alleged not to be embraced in the justice precinct. The parol testimony shows, that this Harper survey was first settled by Harris, it being university land; that for some cause it was subsequently abandoned by Harris, and a patent issued to Harper; but it was known as a part of the old Harris tract. Now, running a line from a point on Middle Sulphur due north of said 160 acres to a point on South Sulphur, the disputed territory is embraced within said justice precinct. It is further in evidence, that for seventeen years said last mentioned line has been recognized as the boundary line of said justice precinct, and has been acted on as such. If this were a question of boundaries, involved in a litigation for a tract of land, we believe the evidence would be amply sufficient to establish the line just indicated as the western boundary for said tract; and, by analogy, we hold it to be sufficient to establish that part of the west boundary line of said justice precinct, which makes it identical with the surveyed line, as set out in the original application for the local option election. We agree with counsel, that the object of the law requiring metes and bounds to be set out was to apprise all voters to be affected with notice whether or not they were in the territory embraced in the order, and also to notify all persons, after the election, whether or not such territory was within the local option precinct. In this case it is not shown that any persons were living upon the disputed territory, or rather that portion claimed not to be embraced within the justice precinct. This, however, makes no difference, as, in our judgment, said territory is a part and parcel of said justice precinct. In our view, the facts establish that the metes and bounds set out in the original application are identical with Justice Precinct No. 6 of Hunt County; and it was not in such case necessary to record the metes and bounds of said justice precinct in the order of the Commissioners Court, nor to embrace the same in the notice given for election; and we hold the election for said justice precinct valid, and the judgment of the lower court is in all things affirmed.
Affirmed.
Judges all present and concurring. *469
