Moyer v. Kelley, 9979.
| Decision Date | 25 March 1936 |
| Docket Number | No. 9979.,9979. |
| Citation | 93 S.W.2d 502 |
| Parties | MOYER et al. v. KELLEY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.
Action by J. Paul Moyer and others against Rogers Kelley and others. From an adverse judgment, the plaintiffs appeal.
Reversed and remanded.
S. N. McWhorter, of Weslaco, and Johnston & Newland, of Harlingen, for appellants.
P. G. Greenwood, of Harlingen, for appellees.
This is a contest of a local option election held under the provisions of "The Texas Liquor Control Act," passed at the Second Called Session of the Forty-Fourth Legislature, 1935 (chapter 467 [Vernon's Ann.P.C. art. 666—1 et seq.]). The election was held in justice of the peace precinct No. 7 of Hidalgo county.
Prior to this election liquor could lawfully be sold in precinct No. 7, or, in other words, it was what is commonly called a wet precinct. The official ballot at this election had printed on it: "For Legalizing the Sale of All Liquors." "Against Legalizing the Sale of All Liquors."
At said election a majority of the voters voted against legalizing the sale of all liquors.
Appellants, J. Paul Moyer and others, as contestants below, attack the validity of this election on the ground that, the acts of the Legislature having prescribed the form of the ballot in this character of elections, such provisions are mandatory and failure to comply with them renders the election voidable.
The trial court sustained a general demurrer to contestants' petition, and, upon their refusal to amend, dismissed the contest, from which judgment this appeal has been prosecuted.
The present Liquor Control Act provides for the holding of local option elections to determine whether or not liquors are to be sold within certain political subdivisions of the state.
Two general classes of elections are contemplated, one where the sale of liquors is to be made lawful or unlawful, and the other where various classes of liquors are to be prohibited or not, as may be decided in the election.
Section 35 of article 1, the Liquor Control Act (Vernon's Ann.P.C. art. 666—35) applies where the first class of election is to be held and prescribes the form of ballot to be used in the following language: Vernon's Ann.P.C. art. 666—35(a).
It will be noted this section uses the word "shall," which is generally construed to be mandatory. The phrase "or words appropriate to the election ordered" unquestionably refers to the second class of elections where the various types of liquor are voted on, as provided for in section 40 of article 1 of the act (Vernon's Ann.P.C. art. 666—40), reading as follows:
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...of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958); Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939); Moyer v. Kelley, 93 S.W.2d 502 (Tex.Civ.App.1936, writ dism'd). Here, the 1979 analysis of H.B. 318, which became Article 1293b, supports a mandatory reading of the word "shall". Th......
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...make mandatory, in a penal statute, if not complied with cannot by construction be softened down to a mere technicality. Moyer v. Kelley, Tex.Civ.App., 93 S.W.2d 502, Flowers v. Shearer, Tex.Civ.App., 107 S.W.2d 1049, and see Blount v. McMillin, Tex.Civ.App., 139 S.W.2d 893; Jones v. Threet......
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