Jones v. Threet, 13833.

• Decision Date: 06 May 1938
• Docket Number: No. 13833.,13833.
• Citation: 117 S.W.2d 560
• Parties: JONES v. THREET et al.
• Court: Texas Court of Appeals

117 S.W.2d 560

JONES v. THREET et al.

No. 13833.

Court of Civil Appeals of Texas. Fort Worth.

May 6, 1938.

Appeal from District Court, Archer County; Allan D. Montgomery, Judge.

Action by C. R. Jones against Millard Threet and others to contest a local option election. From a judgment holding the election to be valid, contestant appeals.

Reversed and rendered.

Spence & Anglin, of Wichita Falls, for appellant.

Millard Threet, Co. Atty., of Archer City, for appellees.

BROWN, Justice.

This is a local option election contest, and the case is brought to us on an agreed statement of facts. In the fore-front of the statement of facts it is agreed that Archer County has prohibited the sale of all liquors, save and except malt and vinous liquors containing alcohol not in excess of four per cent by weight. This fixes the status of the territory in which the election was held, towit, Justice's Precinct No. 7 of said County.

A petition signed by the required number of citizens and qualified voters of Justice's Precinct No. 7 in said County, praying the County Commissioners' Court to order an election to determine whether or not beer should continue to be sold and manufactured within the bounds of such subdivision of the County, was duly filed, and on December 27th, 1937, the Commissioners' Court of such County ordered such election to be held on January 15th, 1938, and in such order prescribed the official ballot to be used in the election, with the following propositions thereon: "For prohibiting the sale or manufacture of beer." "Against prohibiting the sale or manufacture of beer." The election being held, the result was canvassed by the Commissioners' Court on January 21st, 1938, at a special meeting called for such purpose, and an order entered declaring the result in the following words: "As a consequence the Court declares that the said election has resulted in the sale or manufacture of beer, upon this order becoming effective as provided for by law, being prohibited in said election district. It is therefore declared, ordered and decreed by this Court that said election has carried and a majority of the voters who cast their ballots and voted therein voted for prohibiting the sale or manufacture of beer, and upon this order becoming effective, as provided for by law, the sale or manufacture of beer shall be prohibited after thirty days from the date of this order in said election district."

C. R. Jones, the appellant, contested the election in the district court of Archer County, and judgment having been rendered by such court holding that the election was valid, the cause is appealed to us.

This case must be governed by Article 666 of the Penal Code and its many subdivisions, which was enacted through amendments in 1937, by the 45th Legislature of the State of Texas, Vernon's Ann. P.C. art. 666—1 et seq., said Act being effective September 1st, 1937. This is a Penal Statute, and we are compelled to give it a strict construction. Subdivision 40 of said Article 666, Vernon's Ann.P.C. specifically provides that the Commissioners' Court may, either upon petition, as provided for, or upon its own motion, order local option elections, for the purpose of determining whether liquor of the various types and alcoholic contents provided for in the Act shall be legalized or prohibited, and the issues to be submitted are specifically provided for in this subdivision.

First, it is said: "In areas where the issue or issues to be submitted pertain to the legalization of the sale of liquor, one or more of the following issues may be submitted." We are not interested in these issues, as they are not pertinent to the conditions found in the area in which the election under consideration was held. But we move on to the second portion of such subdivision 40, and find the following: "In areas where the issue or issues to be submitted pertain to the prohibition of the sale of liquor of any type or...