Case Information
*1 Opinion No. v-590 Hon.~Russel A. Moran
Cbtinty Attqrneg Re: Result to be certified by
Palo pinto County C6mmissioners1 Courtin a local option election in: Palo Pinto, Texas '
which two issues were sub- mitted.
Dear ~Slr:
Your letter requesting an opinion of this department reads aS follows:
"Will you please advise wha'i'results the Corn-: mi.%ioners Cow% of.Palo Pinto County, Texas, should declare nrider.the followingstaterpent of facts: : ~.FACTS ~.
: "On the date of the election Palo Pinto County had legalized s.+le of beverages dontaining aLcoho1 not In excess of fourteen (14%) peF.centum by voluni6,- .I and those of higher alcoholic.content were prohibited. On May 8, 1948, an election was held which submit&d" .to %he voters the following isiues as set forth in:- :- "Art. 666-40 (g). 'For prohibitiri&the dale .of .; ialcoholic beverages that contain .,. alcohol In excess of PO& (4s) ', ~ per'~centum by weight' and 'Against prohibiting the sale of alcoholic beverages that contain alcohol in excess of foyr (4%) per centum by weight': (h) 'For prohibiting the sale of all'alcohollo beverages' atid 'Against prohibiting the sale of all alcoholic beverages'.
Bon. Russ81 A. Moran, page 2, V-5gi1
"On the first Issue (g) the voters by eight votes voted against prohibiting the sale of alcoholic bever- ages that contain alcohol in excess of four (4%) per oentum by weight, but on the second Issue by four votes voted for prohibiting the sale of all alcoholic beverages.
"In view of the fact that the Commissioners Court is required on the fifth day after the election (Thursday, May 13) or as soon'thereafter as praotlca+ :, ble to canvas the returns and deqlsxe the result.of the election; your opinion on this matter at the earliest possible time will be greatly appreciated."
Subdivision '(b) of Section 20 of Article XVI of the Texas Constitution, as adopted in 1935, provides:
'The Legislature shall enact a law or laws where- by the qualified voters of~any county, justlce,ts pre- cinct or inoorporated'town~ or city; may, by a majority ,~ vote of those voting, determfne from time to time whether.the sale, ~f.,Jntoxicating liquors for beverage purposes~ shall bef'prohiblted .or~ legalised'vithin~ the prescribed llmits~;::ai&such laws shall contain provi- sions for voting dn'the sale of intoxicatingliquors of various t es and various alcoholic content.
(Rmphasis is%.zpplied':throughout)
Pursua&tothis coni titutional mandate,' the hegisla- ture In 1935 setforththe varlons~ issues which might be sub- mitted ata.local',option electlon~. 'These issues were, framed so as to submit',to~'the~voters the ques~tion of whether or not alco- holic beversges~of the various types and alcoholic content should be legalized or Ijl;ohibited. As finally amended in 1937, 'the various lssnes which may be voted upon in any local option election are. found in Section40 of Article I of the Texas Liquor Control Act;"hodlfied as Article 666-40 of Vernon's Penal Code. Since you have stated that Palo~:Plnto County; on the date of the election, 'had legallted'the sale'of beverages contalnlng alcohol no,t in excess of.fourteen per Oent by volume only the following 'portion of Articles 666-40, V&non's Penal Code, Is pertinent to the facts submitted:
‘\ \, \
XI. Russel A. Moran, page 3, V-590
"Iti'~a&aq xl&$ the.sale of.beveragea'con~sin~ 1~ i&k&3+A-t+ in ek&s,g of f&x+&q (14%): p&p :. : ..Y centum ~by volume has:been legali.kd, and those of.~,:"' higher~ 'alcoholic 'content :are proh,lbdt,ed,~.one or : t; .I 1 of'.the ~followi&ig iesues 'sharr be,..submltted .ln .~. m any prohlb$tory election: .; .'. ~- ..,
"(8'):~ !For'prohibiting the sale of slcohulic~ '.
beverages that~centairi.~alpohol'in tixcess of four ,.
(4%) per-centum by,i&@t' .and 'Against prohib~fting the'sale df,alc.oh?lio:beverag~s 'that Oontainalqo- ~~ ho1 inex+ss~ of ,.four ,(4$)--per, +ntum ~by Yeight;l
"(h):'tFor prohibiting Ethel sale of all altio- X‘ ~' holic beverages: -ann~tllgainst,~prohlbiting the'sale
of all alcoholic beverages;'".'~ ~. ~'i
contained- in both sub- aragraphs the~'voters .of Palo IntoCounty;. The eXeectlon.'result&,d ln:a majority voting fin svor of the;'fo~lowIng :Fo Xssn0s.l ,~ z:.~,,
"Agaihst' prohibiting the sale of*alcohoiic.i" '~':, .. beverages ;tliat contain'alcohol in'excess~of f&r G ::-1 '. (4%) ,per.centuin~~y~weigh~." .., .'...~"' .' ,'.;cz '~'2 I' '-' .'~" I. ..,,. ~~. -. .,,~ ,, : ":: ': ._
"For~prkbiting the saie'of"ail a~llcoho&? be.y?yzes . n .,: ;: ; ,,~
.:: ?I!& .que.stion ~for 'our dec'lsion -is,what result'shoulb .: ne Conrmfsdoners' Court now cer~tifgi A,thoro$@ search'.of: very available."authqr~ty relating to looal~opti,~n-~~~c'tlons ss revealed:no ease similar to, the. fact sltuation:before I& ~.: or has' any~'enllghtenment, been secured, from textbooFVriters: ther. than general~statements- conqe~ing:e~e$t,$o~ns; ;,'._ .- ::
'The.foilow~~',~Catement :of j&~'gener&l,,,ru~e Is. found a 29 C. 'J. Si, .Ble.ct~ons.,,~ge'~~ 17$:; ~. .: 1; :~": :~ .a.. and'exbeptln &o.se.,cases in ,whSah
'statutes pres&ibing rules to'be obsb$erved by,a %
voter lnthe preparation of~his baalot are shown' to be mandatory by prohibitive ~terms; ~'InhIbiting the counting of a ballot in case of deviation from *4 Hoii. Russel A. Moran, page 4, V-590
Four authority InTexas supporting the proposition that the ballot should be~.glveneffect if the Intent of the voter maybe ascertained from it, see the cases of Wright. v.
Marquis, 255 S. w. 637; Johnston'v. Peters, 260 S. W. 911; Hooker v. Foster, 19 S. W. (2d) 911. in
Another statement of the. eneral rules appears 16 Tex. Jur. 114, Elections, Sed. 9%
?In order to secure. the purposes for which elections are held, the lirle'ls ~that a ballot; like any other writtell lnstrumenti'should be ex- &mined in the light of the attendant circumstances with a view to ,ascertain&ng the intention of the voter."
We have examined the eledtion results In the light of the authorities.quo,ted,above and Inan effort, to ~ascertasn fioti them the .int&it'of'the'voters of P&lo Pinto County. Our effort has ~met with failure. The results disclose that the voters on ~the. one~hand~ expressed a desire to favor the sale of beverages,'of..a'~&eater'alcohollc' content.than four per oent by weightarid dh.,the otherhand expressed a kontrary.deslre to prohibit the,s,ale:o'f all, aloohollc beverages.
' "We'b6~iev~, the &aion for the conflicting vote may inlarge measure be attributed to the unfortunate phrasidg'of. various issues'contained in Article 666-40, Vernon's Penal Code. So&s of 'the issues are couched in such language asto be mis- leading to ~the average voter. For'lnstance, the two"lssues snb- mltted In this election beginning with the words "Against pro- hibiting" undoubtedly tisled~~some of the voters. The results of the election in Palo Pinto County clearly indicate the neeU for a revision of Article 66>F40 of Vernon's 'Penal Code.
Eon. Russell A. Moran, page 5, V-590
'&~.is:&ir opinionthat the result of .the,local option election under~-consid~~a~~Son,,.is impossibie.of.as~ertainment..Such election is therefore voidi~~and the.Commiss%oners' Court should so certtfy.
The iocal option elec.t$on,in Palo Pinto County Inwhich two.lssues~were submitted to the voters;~. one resultQ@.dn~the majority votltug.agalnst pro-~' ,,_ ' hlbiting the&le,of.aldoholic'~beverages containing ', ,.:.,, alcohol in excess of fourper cent by weIght,,and the other resulting in the majority voting for prohibiting' ' the sale of all alcohollo-,~beverageq.-~is vo$d.+
Yours'very truly
,.! : ATT&IR$Y @3n6F TRY@ CYM:rt
,AssBtant ,i.._ ~.,, / :.j.. .! ~. ,.. ~.