ON APPELLANT’S motion for rehearing
DAVIDSON, Judge.Appellant challenges the correctness of our conclusion that the ordinance is valid in so far as it makes unlawful the sale of beer from 1:00 o’clock, p.m., until midnight on Sunday. He contends that there is no specific provision of the ordinance to that effect, and that such conclusion rests only upon the fact that the period of time involved happened to be within that time covered generally by the ordinance.
*72■ It is insisted, therefore, that it is impossible to preserve out of the ordinance any specific provision as valid without rewriting or amendng the ordinance to so provide. In other words, to conclude as we did originally, appellant insists that there must, of necessity, be substituted in the ordinance the terms ‘T :00 o’clock, ip.m.,” for “,1:00 o’clock, a.m.,” and “midnight” for “7:00 o’clock, a.m., on Monday,” thereby rewriting the ordinance so as to create the specific offense for which appellant stands here convicted.
:■ Our Constitution (Texas), Art. 2, Sec. 1, in distributing the powers of government, prohibits courts, under the guise of construing a statute, from creating, rewriting, or amending a statute, or creating an offense. 39 Texas Jur., Statutes, Sec. 89, p. 162; 50 Am. Jur., Statutes, Sec. 28, p. 212.
1 Upon further consideration of the validity of the ordinance, wé are constrained to agree that the entire ordinance must be held invalid and that to preserve therein as an unlawful act the offense here charged would do violence to the rule of construction stated and would constitute judicial legislation as prohibited by the Constitution.
Accordingly, appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the cause is now reversed and the prosecution ordered dismissed.
Opinion approved by the court.