Fox v. Burgess

• Decision Date: 15 May 1957
• Docket Number: No. A-6255,A-6255
• Citation: 302 S.W.2d 405,157 Tex. 292
• Parties: Ezelle FOX et al., Petitioners, v. Walter J. BURGESS et al., Respondents.
• Court: Texas Supreme Court

Page 405

302 S.W.2d 405

157 Tex. 292

Ezelle FOX et al., Petitioners, v. Walter J. BURGESS et al., Respondents.

No. A-6255.

Supreme Court of Texas.

May 15, 1957.

Rehearing Denied June 12, 1957.

Looney, Clark & Moorhead, Austin, Lovell & Lyle, Dumas, for petitioners.

C. J. Humphrey, Amarillo, for respondents.

CULVER, Justice.

This suit was instituted by respondents against Ezelle Fox, County Judge, and County Commissioners, seeking injunctive relief and to have declared void a local option liquor election held in Moore County on the ground that it contravenes the prohibition in Article 666-32 of the Penal Code as follows:

'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.'

The trial court denied all relief prayed for by respondents and inferentially held the election to be valid. The Court of Civil Appeals, to the contrary, held the election null and void, reversed and rendered. 298 S.W.2d 653.

We granted the application for writ of error on account of the conflict between the instant decision of the Court of Civil Appeals and that of the San Antonio Court in Mitchell v. McCharen, 119 S.W.2d 676. We agree with the latter holding.

In the first part of 1956 all types of alcoholic beverages were legally sold in Moore County. On June 9, 1956 an election was held in that county on the issue 'for (against) the legal sale of all alcoholic beverages,' A majority voted against. On August 3, 1956 an election was held on the issue 'for (against) the legal sale of all alcoholic beverages for off-premise consumption,' and a majority voted affirmatively. Respondents charge that the latter election was illegally held for the reason that it submitted the same issue that was voted upon in the previous election on June 9th which made illegal the sale of all alcoholic beverages.

Article 666-40, Penal Code, provides for local option elections 'for the purpose of determining whether alcoholic beverages of the various types and alcoholic contents herein provided, shall be legalized or prohibited.' It further provides that

'in areas where any type or classification of alcoholic beverages is prohibited and the issue submitted pertains to legalization of the sale of one or more such prohibited types or classifications, one of the following issues shall be submitted:

'(a) 'For the legal sale of beer' and 'Against the legal sale of beer.'

'(b) 'For the legal sale of beer for off-premise consumption only' and 'Against the legal sale of beer for off-premise consumption only.'

'(c) 'For the legal sale of beer and wine' and 'Against the legal sale of beer and wine.'

'(d) 'For the legal sale of beer and wine for off-premise consumption only' and 'Against the legal sale of beer and wine for off-premise consumption only.'

'(e) 'For the legal sale of all alcoholic beverages' and 'Against the legal sale of all alcoholic beverages.'

'(f) 'For the legal sale of all alcoholic beverages for off-premise consumption only' and 'Against the legal sale of all alcoholic beverages for off-premise consumption only."

Likewise, the article provides for the submission of the same issues in a prohibitory election where the sale of all alcoholic beverages has been legalized.

The Court of Civil Appeals held that (298 S.W.2d 656):

'Therefore when the qualified voters of Moore County, Texas, voted the county dry on June 6, 1956, it must remain dry for at least one year before any kind of a local option election can be legally held to determine the legal sale of any kind of alcoholics for any purpose.'

Thus the only and controlling question to be decided here is whether or not the elections of June 9th and August 3rd were upon the same issue as contemplated by the prohibition in Article 666-32, Penal Code, quoted above. In our opinion the issues are not the same and therefore the election of August 3rd is valid. The statute 666-40, Penal Code, very clearly sets out six separate propositions that may be voted upon and denominates them as 'issues'. It must be presumed that the Legislature intended for the word 'issue' to have the same meaning in Article 666-32 as it does in Article 666-40. In the former article it is provided that 'in any election ordered by the Commissioners Court the issue ordered to appear on the ballot shall be the same as that applied for and set out in the petition.' The issue ordered to appear on the ballot must be one of the issues provided for in Section 666-40.

Prior to the 1953 Amendment, Article 666-40 provided for only three issues. The decision in Mitchell v. McCharen was rendered in 1938. The facts in that case are that in Willacy County within a year after a local option election on the issue 'for (against) prohibiting the sale of alcoholic beverages' the Commissioners' Court refused to order a local option election on the issue 'for (against) legalizing the sale of beer that does not contain alcohol in excess of four per cent (4%) by weight.' The Court of Civil Appeals in reversing the trial court held that the two issues were not one and the same and granted relator's application for mandamus requiring the Commissioners' Court to order the election. The Amarillo Court took the view that the per curiam order entered by this Court (121 S.W.2d 1055) had the effect of nullifying the pronouncement of law as decreed by the San Antonio Court so as to render it of no precedential value. It appears that the application was granted and the cause ordered dismissed on the same day for the reason that the case had become moot. We ordered that the conflicting judgments of the two lower courts be reversed, the trial court having denied the writ of mandamus...