Britten v. Williams , 1956 Tex. App. LEXIS 1802 ( 1956 )

MARTIN, Justice

(dissenting).

It is not the province of the courts to legislate by judicial ruling and thereby extend the provisions of a clear and unambiguous statute. And, in proceedings as to calling a local option election the duty of the County Clerk with relation thereto is wholly ministerial. He is not required to interpret an application that is not within the language of the statute and on such interpretation prepare a petition.

The legislature under Art. 666, Sec. 40, in great detail, set forth the various issues to be submitted in a local option election and by express language with reference to the submission of any one of such issues required: “* * * one of the following issues shall be submitted”. (Italics added.) The legislature further dictated the issue to be stated in both the petition and the application therefor: “The petition so issued shall clearly state the issue to be voted upon in such election, which shall be the same issue as that set out in the application.” Art. 666-32.

It is obvious from the record in the cause on appeal that the application containing the following language does not even set forth an issue:

“For -

“Against The legal sale of all alcoholic beverages.”

The issue detailed and prescribed by the legislature for use in calling a local option election is clear and can be easily followed. The application above not only fails to set forth an issue but the same could not by any stretch of grammatical or legal construction be held to be the same issue as set forth in the petition. The application should have followed the statutory requirements as laid down by the legislature. Art. 666, Secs. 32 and 40(k) ; Smith v. Counts, Tex.Civ.App., 282 S.W.2d 422.

Appellants’ motion for rehearing should be sustained and this court’s original judgment of affirmance be set aside. The judgment of the trial court should be reversed and judgment rendered declaring the election proceedings void in that an application as required by statute to set in motion the election proceedings was not presented to the County Clerk of Carson County.