Case Information
*1 R-549 ,-. . nnmrm- OF “m B! Ibllr
THEACTORNEYGENERA L AUSTIN. TEXAS PRICE DANIEL July 7, 1947 ATTORNEY GENERAL
Hon. R. A. Taylor, Jr. Opinion No. v-297 County Attorney Zavala County
Re: The vwet" or "dryv Crystal City, Texas status of Savala
County; validity of local option elec- tion held in 1910 in said county.
Dear Sir: Your letter of June ?, 1947, requests the __ -._. -
oplmon of tms department as to the wet or "dry" status of Savala County and the validity of a local option election held on May 1910. The minutes of the Commissioners Courts do not disclose that the clerk was ordered to post election notices or that such notices were in fact posted. If it.1~ determined that such election was valid or that its validity can- not now be successfully questioned, it will not be to answer your other questions. necessary
In order to determine the~"wet" or "dry" status of Zavala County, based on the local option election ,of 1910, It is necessary to go into the ques- tion of whether the validity of such election can be Inquired into at this late date. As stated in your letter, Article Revised Civil Statutes.(lgll), was enacted in 1907, as'an amendment to Article 3397 of the Revised Civil Statutes (1895). This Article was repealed by state-wide prohibition in 1919, but' ovisions were re-enacted in the Liquor Control its Act Art: 666-46~.;:V+.P.C.) effective September 1, 1937. i" Section 40a of Article 666, Vernon's Penal Code, and the Act of 1907 which became Article 5728 of the Re- vised Civil Statutes (1911) are identical and each reads as follows:
"At any time within thlrty'(30) days after the result of any local option elec- tion held pursuant to the provisions of the Texas Liquor Control Act has been declared, any qualified voter of the county, justice town or city of precinct or incorporated *2 - Page 2, V-297 Hon. R. A. Wylor,
such county in which such election has been held, may contest the said election In the District Court of the county In which such election has been held, which shall have original and exclusive juris- diction of all.sults to contest such election, and the proceedings in such oontest shall be conducted in the same manner, as now govern the contest of any general election, and said court shall have jurisdiction to try and determine all matters conuected with said election including the petition of such election and all proceedings and orders relating thereto, embracing final count and de- olaration and publication of the result putting local option Into effect, and it shall have authority to determine ques- tions relating to the legality and valld- ity of said election, and to determine whether by the action or want of action on the part of the offloers to whom was entrusted the control of snoh election, such a number of legal voters were denied the privilege of viAIn& as bad they been allowed to vote, might have maberially changed the result, and if it shall appear from the evidence that such lrregularltles existed in bringing about said election or In holding ssme, as to ‘Under the true re- sult of the election imposeibl6 to be ar-. rlv6d at or very dimbtful of ascertalnlng, the court shall adjudge such election to be void, and shall order the proper officer to order another election to be held, and shall cause a certified copy of such judgment and order of the court to be delivered to such officer upbn whom is’ devolved by law the duty of ordering such election. It is fur- ther provided that all such cases shall have precedence In the District Court and appellate courts and that the result of such contest shall finally settle all questions relating to the validity of said election, and it shall not be permissible to again oall the legality of said election in ques- tion In any other suit or proaeedlng; and provided further, that if no contest of *3 Hon. Ri. A. Taylor, Jr. - Page 3, V-297
said election Is filed and proseouted In the manner and within the time provided above,
it shall be conclusively election as held and the result presumed that said
thereof de- clared, are in all respects valid and blnd-
ing upon all courts; provided also that
pending such contest the enforcement of lo-
cal option law in such territory shall not
be suspended, and that all laws snd parts
of laws in conflict herewith be and the same are hereby repealed.
"Any qualified voter of any county,
justice precinct, incorporated city or town
within the State which has heretofore voted
on local option may contest said election
under the provisions of this Act, and if ho
contest is filed within sixty (60) days
from the taking effect of this Act, It shall
be conclusively presumed that said election
as held was valid in all things and'binding
upon all courts."
In the case of Iiardy v. State, 107 9. W. 547, (decided January 29, 1908) our Court of Criminal Appeals construed Article 3397, as amended in 1907.: Th; s.;rl- lant took a bill of exceptions to the refus
Court to allow him to prove by the county c Y erk that he (the clerk) did not:at any time post or cause to be post ed any noticesof the election. !Fhe Court, In passing upon the blll?_said: ., .,
"This prosecution was commenced on the
29th da{ of,July, 1907. The bill shows that
the Sta e objected on the ground that it was immaterial,, and was offered in:.$he nature of a defense to contests the legalrty of the
local option law at a time more than 60 days after the taking effect of the Act .of the
Thirtieth Legislature, passed May 14', 1907,
Laws 1907, p. 447, C. 8. 'We hold that this
objection is well taken. Said Act provides
that contests of elections that had thereto-
fore been had must be contested within 60
days from taking effeot of said law, and not The matters compialned of would otherwise.
be mere irregularities at best, and this Act ), makes valid and noncontestable .anythlng per- : taining to irregularltles In the adoption
Hon. R. A. Taylor, - Page ‘r, V-297
of the looal option law. The act Itself provides that we shall oonolusively pre- sume that said election as held was valid in all things and binding upon all courts. We accordingly hold that said Act is valid, and applies to all local option elections and It olearly applies in this case.’ The Court of Criminal Appeals has frequently had the same statute before it for oonstructlon and have unlSormly held that uuless a local option eleotlon was contested within the statutory time aiter the result of the election has been declared, the law conclusively presumes that the election as held and the result there- of declared are in all respects valid and binding on the See Branch’s Annotated Penal Code, Sec. 1228, p. court. 682, for citation of earlier oases; Blaine v. State, 139 9. W. (26) 792; Grumbles v. State, 169 9. W. (26) 720; ex parte King, 160 9. W. (26) 255.
In J&alne v. State; supra, the Court of Crimi- nal~Appeals of Texas, in oonstruing Article 5728, Re- vised Civil Statutes (Ml), used the Sollowing lsnguage:
“Ihere is an attaok made upon the pro- ceedinga of the election whereby said jus- tice precinct 190. 7 OS Dallas County, Texas, was voted dry In 1890. This attack comes too late. This attack should have been made within alxty days after the talcing effect of B N 51 Chapter VIII OS the General First Called 30th Legislature, &ws’of’ke Session, p. which became effective ninety days after May 1907 fail prekd%t which the law conclusively as held and the results as thealectlon therein declared are in all respects valid and binding on the oourts. ’ (Emphasis ad&i) Copies of the prooeedings of the Comniasloners Court of Z&vale County pertaining to the local option electl.on of 1910, which you sent us, disolose that the statutes governing local option elections in effect at that time were Sully complied with in every respect, ex- cept there is no record showing there had been any post-
of the notloes of such election as required by Articl Revised Civil Statutes (18%) However, at the tim $37 the &e&ion was ordered the amend&It to Article 3397, Revised Civil Statutes, (18%)~ Was in full force and ef- fect. We infer from your request that no contest of this *5 l. Page 5, V-297,. Hon. R. A. Taylor,
election was filed at any time.~
You are advised that it'is concluslvely~ pre- sumed that such notices were posted in the msnner and for the length of time prescribed by law and that the question of whether such notices were or were not so posted will not now be considered by the courts.
You are further advised that Zavala County was a' "dry area", as that term is defined in Section 23, Article Vernon's Penal Code, from the time the local option election of 1910 prohibiting the sale of intoxicating liquors in that county became effective, until It became legal to sell therein 3.2 per cent beer by weight as a result of a local option election held in 1933 for that purpbse. Since that time it has been a "dry area" only as .to the sale of whiskey and other alcoholic beverages,~containlng more than 3.2 per cent alcohol by Weight. Tillers~on v. State, 159 S.W. (2d) 502.
SUMMARY
The question of whether notices of a
local option election held In 1910 were or in the manper and for the
were not posted
length of time provided by statute, the
election not having been contested'wlthln
the statutory period after the reault of
the election'was declared by the.Commis-
sYoners' Court, will not be considered by
the'courts, but will be conclusively pre-
sumed that such notices were duly and regu- larly posted as required bg'law. Article
3397, Revised Civil Statutes (1895) as '~ zt;d by the Thirtieth Leglslature~ (1907)
. .
From the time the local option elec-
'tion of 1910 became effective in Zavala
County until the sale of 3.2 per cent beer
by weight was legalited by the local option
election In 1933, that county was a "dry arean as that term is defined by Section 23, Article Vernon's Penal Code. Since that time, the county has been a "dry area" only as to the sale of whiskey and other beverages containing more than
alcoholic
Hon. R. A. Taylor, Jr. - Page 6, V-29!&
3.2 per cent aloohol by weight. Tillereon v. State, 143 Tex. Ct. Rep. 473, 159 S. W.
,;, (26) 502.
Yours very truly ATTORREYGEZEBA.LOF TEXAS By wA=dd8%f- William 9. Lott WSL:rt;djm Assistant