Burgess v. Fox

298 S.W.2d 653, 1957 Tex. App. LEXIS 2356
CourtCourt of Appeals of Texas
DecidedJanuary 7, 1957
DocketNo. 6662
StatusPublished
Cited by1 cases

This text of 298 S.W.2d 653 (Burgess v. Fox) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burgess v. Fox, 298 S.W.2d 653, 1957 Tex. App. LEXIS 2356 (Tex. Ct. App. 1957).

Opinion

PITTS, Chief Justice.

This is an appeal from a local option election contest filed by appellants, Walter J. Burgess, Richard E. Cook and Mrs. W. D. Bales, qualified voters of Moore County, Texas, against appellees, Ezelle Fox, County Judge of Moore County, Texas, and the four named County Commissioners of said county, each in their respective official capacities, seeking to have declared void a second local option election held in Moore County, Texas, to determine an issue that had allegedly been previously determined by an election duly and lawfully [654]*654held less than two months, and certainly less than a year, prior to the holding of the second election. The facts in the case at bar are not controverted and they, reveal that in Moore County, Texas, all alcoholic beverages were being legally sold prior to June 9, 1956, when an election was duly and legally held at which the qualified electors cast their votes for or against “the legal sale of all alcoholic beverages,” and as a result of the said election the county voted “dry” by a majority vote of 1773 to 1526. Proper orders were entered and notices given prohibiting the “legal sale of all alcoholic beverages” within the county and the legality of the election has not been challenged. However, thereafter on July 9, 1956, the Commissioners’ Court of the said county by a majority vote of three to two ordered another' election upon a petition presented to be held, in the said county on August 3, 1956, to determine whether or not “the legal sale of all alcoholic beverages for off-premise consumption only” may be permitted. As a result of such «lection the proposal carried and such sales were authorized by a vote of 1807 to 1774. The County Commissioners’ Court thereafter declared the result and entered its orders authorizing the sale of all alcoholic beverages within the said county for “off-premise consumption only.”

As a result of such proceedings this suit was instituted and tried before the trial court without a jury, after which judgment was rendered and entered sustaining in effect the actions of the Commissioners’ Court in calling the second election and in effect declaring the said election to be valid, from which judgment an appeal has been perfected. Appellants present several points of error charging in effect that the second election held was void because it was not authorized by law but in fact was prohibited by law. Appellees join issues with appellants on the charges made and such is the controlling question presented.

Local option elections and particularly the matters here presented are controlled hy a portion of Article 666, Sections 1 to 56 of the Texas Penal Code as amended and more particularly by Section 2 of the said Article and by parts of Sections 32 and 40 of the said Article as amended. Section 32 of the said Article as amended provides for the calling of such elections but among other provisions states that:

“No subsequent election upon the same issue shall be held within one (1) year from the date of the last preceding local option election in any county, justice’s precinct, or incorporated city or town.”

Section 40 of the said Article as amended sets out the various issues that may be voted upon in elections called as provided for in Section 32 as amended. In areas where any type or classification of alcoholic beverages is prohibited and it is sought to legalize such the various issues are stated, among them being issues of (1) for or against “the legal sale of all alcoholic beverages” and (2) for or against “the legal sale of all alcoholic beverages for off-premise consumption only.” The language of the two issues is identical except that the phrase of “for off-premise consumption only” is added in the second issue. The. controlling question here presented is one of statutory construction to determine whether or not the issue as first stated is an all-inclusive issue which includes the second stated issue and thus precludes “the legal sale of all alcoholic beverages for off-premise consumption only” for at least one year after the qualified voters have at a previous election recently held voted to prohibit “the legal sale of all alcoholic beverages.” Appellants contend that under such circumstances and under the provisions of the statutes the first stated issue does include the second stated issue and thus precludes .the holding of another election within one year to determine the question of selling “all alcoholic beverages for off-premise consumption only,” while appel-lees contend that the second stated issue is not included within the first stated issue in any event but that tire second stated issue is a separate and independent issue within itself, in which event an election can be legal-[655]*655!y called and held at any time to determine whether or not “the legal sale of all alcoholic beverages for off-premise consumption only” may be permitted.

Because of these adverse views of the parties we are called upon to construe the provisions of the statutes involved. It is not within the province of the courts to change the law or to extend its provisions to an absurdity, but it is the duty of the courts to construe the language of the statutes when required and such may be done in the light of well-defined rules governing such, although no fully inflexible rule has been announced for the construction of statutes.

The Act providing for the holding of local option elections sets forth its purpose and urges a liberal construction to accomplish its purpose as shown in Section 2 of Article 666, Penal Code, in the following language:

“This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and. safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose.”

Such provisions and admonitions have been consistently followed by our courts as is shown in the following cases: Britten v. Williams, Tex.Civ.App., 293 S.W.2d 853; Bullington v. Lear, Tex.Civ.App., 230 S.W.2d 290; Pollard v. Snodgrass, Tex.Civ.App., 203 S.W.2d 641; Leggett v. Cochran, Tex.Civ.App., 193 S.W.2d 729; Powell v. Bond, Tex.Civ.App., 150 S.W.2d 337; Flowers v. Shearer, Tex.Civ.App., 107 S.W.2d 1049.

The object or purpose in construing any statute is to ascertain from the language used in the statute the intention of the Legislature. White v. McGill, 131 Tex. 231, 114 S.W.2d 860. A statute must be given the interpretation which most nearly accomplishes the Legislature’s intention from the words of the statute, looking to all of its terms. Barber v. Giles, 146 Tex. 401, 208 S.W.2d 553. A statute should be given a fair and sensible construction in order to carry out the purpose for which it was enacted and should not be construed in such a manner as to nullify or defeat its purpose. Brazos River Conservation and Reclamation Dist. v. Costello, 135 Tex. 307,

Related

Fox v. Burgess
302 S.W.2d 405 (Texas Supreme Court, 1957)

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Bluebook (online)
298 S.W.2d 653, 1957 Tex. App. LEXIS 2356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-fox-texapp-1957.