Case Information
*1 ORNEY GENERAL OF TEXAS
We have given careful consideration to the above de- scribed question presented to us in your letter of April 1.8. ‘We wish to thank you for the excellent citation of authorities to this question submitted in your letter, together with your discussion thereof.
The forthcoming election for United States Senator
to fill the vacancy Fa that office is provided for by the fol- lowing provision con’tained in the 17th Amendment to the Federal Constitutionr
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election such vacancies. . . .I1
This amendment was adopted in 1913 and in conformity therewith the Legislature of Texas at the first called session of the same year enacted a law which now appears as Chapter 12, of Title 30, kticles
3086-3099, inclusive, Revised Civil Stat- 1925, which provides the procedure for filling utes of Texas he office of the United States Senator from Texas. vacancies in i Article 3097 contained in Chapter 11, Title 50, Revised Civil Statutes of Texas, 192.5, describes the type of election to be election in the followings held on June 28, 1941, as a “special” language :
“Bny person desiring to have his name appear upon the official ballot as a candidate for United States ‘Senator at any special election held for the purpose of filling a vacancy in the United States Senate, when no party primary is held, may do so by presenting his application to the Secretary of State which shall set forth: . . . .‘I
The general rules governing the conduct of all elec- tions were enacted by statute passed by the first called ses- sion in 1905 commonly referred to as the Terre11 Election Law, which law as subsequently amended from time to time is now em- bodied in Title 50, Articles 2923 et seq., Revised Civil Stat- utes, 192.5. The Texas Supreme Court in Beans P. Waples, 108 Texas 140, 187 S.W. 191, held that the Ter,ell Election Law of 1905 and the statute providing for the election of Senators enacted in 1913, which was compiled in 1925 as Articles 3086- 3099, inclusive, should be construed together. .In this case, the court speaking through MrO Justice Hawkins, at p. 148, with reference to these statutes, declared:
“Because those two statutes deal with the one general subject of party primaries for the making of party nominations, and are3 therefore, cognate, and because, obviously, tended to supplement the former, essentially
the latter was in- thereby completing one general scheme of legislation subject, and because the latter upon a particular
statute presents strong and conclusive intrinsic evidence of a legis- lative purpose and intent that, in so far as their phraseology will permit, the two statutes are to be treated, construed, applied and enforced as one, we regard it as too plain for argument that, according- ly, said two statutes should be read and construed together. Certainly they are statutes in w-
teria, and in their of statutory such instances interpretation the settled rules
construction which are applicable should prevail.”
The court in the Beane v. Waples case reached this conclusion in part upon Section 3 of the 1913 Act, which appears as Article 3088, Revised Civil Statutes, 1925, and reads as fol- 1OWSl
“Art. 3088. Every law regulating or in any man- ner governing elections or the holding of primaries in this State shall be held to apply to each election ore nomination of a candidate for a United States Sena- tor so long as they are not in conflict with the Con- stitution of the United States or of any law of stat- ute enacted by the Congress of the United States regn- lating the election of United States Senators or the of this law, The returns from any election held for United States Senator shall be made, the re- sult ascertained and declared, a certificate of elec- tion issued, as provided for the election of representa- tives in Congress, by this title.”
In 1925 the Terre11 Election law and the Senatorial Election Law were both codified in Title 50, R.C.S., 1925, which provides an additional reason why these two laws should be con- strued together and their various provisions reconciled.
The opinions in Wallis v. Williams, by the Supreme Court, 101 Tex. 395, 108 S.W. and Schers v. Telfer by the Austin Court of Civil Appeals, 74 S.W. (26) 327, annouhce cer- tain criteria to distinguish between “general” and “special” elections. We believe, however, that these criteria have no ap- plication in the present instance where the Legislature has in Article 3097, supra, expressly declared an election of the type here under consideration to be a special election.
You specifically ask our opinion as to the application of the question of whether this is a special or a general elec- tion to bticle 2938, Revised Civil Statutes, 1925, and the pro- visions of the Texas Liquor Control Act relating to the sale of liquor and beer on election day.
Article 2937, R.C.S. prescribes that in voting pre- cincts having less than one hundred qualified be two election voters, there shall
judges and two clerks. Article 2938 provides for four election judges and four clerks in precincts having one huh- dred or more qualified voters, but contains the following excep- t ion:
Vrovided, that in all elections held under the of this title, other than general elec- tions, local option elections and primary elections, the officers to be appointed by the commissioners court to hold said elections shall be a presiding judge, and assistant judge and two clerks, . . . ‘a Since the election under consideration cannot be classi- fied as a general election, local option election, or primary elec- tion, we believe that this proviso applies in the instant case so that it is our opinion that only two election judges and two clerks are required in all precincts to conduct the forthcoming senator- ial elect ion.
The Texas Liquqr Control Act regulates the sale of li- quor and beer on election day. Section 25 of Article 666, Penal Code of Texas, 1925, provides in part:
“It shall be unlawful for any person to sell or deliver any liquor:
“(a) . . .
“(b) On any general primary or general election day between the hours of seven o’clock a.m. and eight o’clock p.m. . . .”
Section lob of Article Penal Code of Texas, 1925, provides:
“It shall be unlawful for any person to make any sale of beer anywhere in this state on the day of any general primary election or general election held in this state between the hours of seven a.m. and eight p.m. on the day . . .*
Since both of these provisions prohibiting the sale of liquor or beer on election days refer specifically to “general” elections, it is our opinion that neither of them apply to the forthcoming election for United States Senator since the Legisla- ture has expressly declared it to be a l’speciali’ election.
We believe that the case cited in your letter, Estes v. State, 48 Arizona 21, 58 Pacific (2) 753, is persuasive of the In that case, the Supreme Court conclusion we have reached herein. of Arizona held that an election the vacancy occuring in the office of State Representative to the United States Congress was a “special election” to the extent that it was not “a regular general election” within the meaning of the Constitutional provi- sion providing for the submission of referendum questions to the voters.
We likewise concur in the suggestion made in your letter that an election might be “general” in one sense, and “special” another sense, or as applied to a different statute. Consequently, we are limiting this opinion to the precise questions asked by you, to Article 2938 Revised Civil Statutes 1925 and %;lon 25 of gPticle 666 and Section lob of iLrticle 6b7, PeAal Code of Texas. Yours very truly
APPROVED MAY 21, 1941 /s/ Grover Sellers
FIRST ASSIST&?T ATTORNNY GENERAL ATTORNEY GZNERAL OF TEXAS APPROVED: OPINION COMMITTRR By /s/ Walter R. Koch BY RLK, CHAIRM4N Walter R. Koch, Assistant WK:mp rwb