Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
xr. Bert Ford Uquor Control Board
Austin, Texae
Dear Sir:
Opinion No.
Re: that al
Charter of the oitp & a, b an& c, vfaa~enaoted e of,Teras, at the Regular $, being Eouse RI11 x0. 368, peoial Laws of that S888iOlL b and 620 of the Charter bZ the here srlrltuous, vinous or malt redlcated bitters oapable of pro- xicatlon, are sold or kept for sale, ehall be located within the following described territory in said olty, or upon following lots or blooks in said aity, to-wit: (here fol- low metes and bounds delineating lines and area 8hoKn by the red line on the n;ap attaohed to *2 Nr. Bert Ford, Kay l.3, 1939, Page 2
this letter.)
“62b. That at no other plao8 or plaoes Mthin the oorporate limit8 of said city of Galveston, exoept as named In the foregoing seotion, shall spirituous, Yinous and malt liquors or medloated bitter8 capable of pro,- ducing lntoxicatioti, be 8Old or kept for sale. Provided, hwever, that this cot 8hall not be so oonstrued a8 to prohibit drug stores from selling or keeping for sale aplrituous, vinous, or malt liquors, or medicated bitters capable of produoing lntoxioation, for medicinal pur- poses upon the written presoriptlon ot a re- gularly lioensed and practicing physician. “620. That any violation Of the proYision8
of this act shall be punished by a fine at not leas than fifty nor more than one hundred dollars, and each sale of such liquor8 or blttere, and each day that suoh liquors or bitter8 are kept for sale, in violation of the provisions of this aot shall oonstitute a separate ofrense."
We are informed by the Liquor Control Board that this arot was approved and beoame etfeotive Yaroh 22, 1909, and that there hat never been a vote of people of the olty of Galveston on Seotion 62 of it8 charter.
On lay 24, 1919, Section 20 of Artiole 16 of the state Constitution was amended to read a8 follow8;
T5eotlon 20(a) The manufaoture, sale, barter and exchange in the state of Texae, 0r spirituous, vlnoua or malt liquors or medicated bitters oapable of producing intoxi- cation, 'or any other intoxicants whatever ex- cept for medicinal, meohanlcal, seientifio or saoramental purposes, are each and all hreby prohfiited.
Vhe Legislature shall enaot laws to en- force this seotion. .
m(b) Until the legislature shall prescribe other or different regulations on the subjeot; the sale of spirituous, vlnous or malt liqUor8, or medloated bitters, capable of producing intoxl- oation, or any other intoxicant whatever, for *3 Mr. Bert Ford, May 15, 1959, Page 3
for medlolnal purposse shall be made only In case8 of actual elokness and then only upoii the presoriptlon of a regular praotls- lng physician, subjcot to the regulations applicable to sale8 under preeorlptlona In prohibited territory by virtue of Artlole 598, Chapter 7, Title 11 of the Penal Code of the Stat8 0r Texas,
"(0) This amendment is self-operative and until the Legislature shall presoribe other or alrrerent penalties, any person
acting for him&V or In behalf,of another, or In behalf of any partnership, oorporatlon or association of persoa8, who shall, after the adoption of this amendment violate any pzrt of this oonstltutional provision ehall be deemed guilty 0r a felony, aa shail, upon oonvlotlon In a pro8eoutlon.oommeno8d, car- ried on and concluded In the manner prescribed by law In case8 of felonies, be pIM8hed by confinement In the penitentiary for a period Of time not 18SS than one year nor more than five years without the benefit of any law providing for suspended aentenoe. And the di8trlOt oourtaand the julgee thereof, under their equity powers, shall haPe the authority to Issue, upon suit of the Attorney General, lajunotlona against lnfraotlopls er threaten- ed lnfraotlona of any part of this oonstitu- tlonal prwl8Ion.
*(a) Without affeOtlng the provision8 herein, intoxicating liquors are deolared to be aubjeot to the general polioe power of the state; and the Legislature shall have the power to pass any additional prohibitory laws, or laws In said thereof, whloh It may 'i deem advisable.
"(e) Liability for violating any liquor laws In foroe at the time of the adoption of *4 -- .-
?!I-. Bert Ford, Vay 15, 1939, Page 4
this amendment shall not be affected by
this amendment, and all renedles, ~1~11
and orimlnal, Bar such violations shall
be preserved.*
No looal option election has ever been hold In the city of Galveston under the provisions of Fee- tlon 20, Jztlcle 16 of the State Constitution as It existed prior to !?ay 24, 1919, or hs has existed subse- quent to Awust 24, 1935, or under any acts of the Legls- labre passed pursuanct IXJ said Section 20, &rtlcle 16 of the Constitution.
Prlcr to Yay 24, 1919, Section 20 of Article 16 of the Conetltutlon o? Texas, prOVidad for the deter- mination by loce~l option, by vote of the people In coun- ties, justice's precincts or lnoorporated tovms or oltles within the atate, a8 to whether or not liquor could be sold therein, and pursuant to such article a8 It then existed, a number of loco1 option statutes he& been pans- ed by the Legislature .from tl:e tc time, and numerous counties, Justice's precincts, clt&es and towns In the state had voted tF:erflelvea *!dry” pursuant tc .cuoh sta- tutes and such amendment.
On August 24, 1935, tection 20 of Article 16 of the state Conctltutlon was further axanded to read a8 folloM~s:
"(a) The oyen saloon.shall be and Is hereby prohibited. The L.egls?ature hhall have the power, and it shall he Its duty to define the term 'open saloon1 and enact law8 against such.
"bubJeot to the foreqoinz, the Leelala- ture shall have the paver to re,@ate the manufacture, sale , possession and transporta- tion of i~toxloating liquors, lnclW.1~ the ~~~,eroy,oae~~~~i~~hlaqe~~~~ mnopol~ on the The legislature shall enact a law “(b)
or lws whereby the qualified voters of any county, justice's precinct or lncor~orated *5 t'r. Eert Ford, ray 15, 1939, Pace 6
town or olty, may, by a mUjorIty vote of
those voting, determine from time to time whether the sale d Intoxicating liquors
for beverage purposes shall be prohibited or legalized vlthln ‘the prescribed llmltsl and such laws shall oontain provisions Bar votlly: on the sale cf lntoxloatlnl: llq.uors of vl:rloue types tad various alcohollo con- tent.
*(c) In all counties, justloets pro- cincts or incorporated towns or cities
wherein the sale of Intoxicating liquors
hod been pohihlteb by local option elec- tlons held under the laws of the state of
Texas and in fo-ce at the tlmo of the takr lny: effect of Sectlcn, 20, Article 16 of the Constitution of Texas, It shall continue
to be unlawful to manufacture, ooll, barter or exchange ln'cny such county, justloets preolnct or incorporated t0v.n or city, any splrltuou8, vinrua or malt liquors or rieai- ceted bitter cryable of produolng lntoxloa- tlon or any ether intoxioants whatsoever, for beverage Furposes, unless and until a
majority of the qualified voters In such
county or ?olltloal subf:lvlodon thereof vot- In6 In an elcctlon held for such purpose
&all determia such to be lawful: provided that tkle oubcectlon shall not prohibit
the sale cf alcoholic beverages oontainlng not more than 3.J per cent alcohol by weight in cities, ocuntie8 or yolltlcal subdivisions thereof In which the qualified voters have voted to legalize such sale under the provl- sions of Chapter 116, Lots of the !?ecular Session of the 45rd ie~islature.W
It must be noted that such oon~tltutlonal amena- ment specifically proviCes that the sale of lntoxlcatln llouors shall continue to be unlawful in 09rtain areas' f n th6 state, defined and described as bein!: all oountles, *6 ?~'I-. ?ert Ford, .)-ny 15, 1939, Faze 6
justice's precincts or Incorporated towns or cIt&es wherein the sale of Intoxlcatln~ liquors has been prohibited by local option election held under the laws of the otate of Texas and In rorce at the time cf the taklnc effeat of FeatIon 20 of hrtlcle 16 o?
the Constitution mtil, a mojorlty of the qualified of cuch political subdivIsIon should vote other- YOter8 IdBe. Wfm carried id.0 the Texas The Bane prOYi8iOn
Tlquor Control Act which beoame effective E.eytezzber 1, 1937., See E.ectIon Z3 of krtlcle 666, Revleed~CIvIl %a- tutes.
Courtsshave held tkt this lant$uaee only de- Sines and Identifies certain "dry" area8 In the state and doet not re-enact or revive In any manner the loaal option laws existing prior to the prohibition cmendnent of 1919, since such pre-existlng local optIon laws could note heve been revived by mere reference to their title, but cculd only have been revived by re-emmtnent end re- rublicatlon of the lansuaee.
i:e cl_uote frorr the case of Teal vs. State, 90 S' (2nd) 651, as follows:
"';ho local option laws exlstlng prior to 1919 mendmeat were not attested to be revived'bp the amendment of sectlan 20,. hrt.
16, a=. cdoy.ted Ausst 24, 1935. This arand- nient defined r:hat area8 would remain dry and what areas would be wet after the ndoption of the 1935 arzendment. In adopting this amnd- men?., the people Bad the rI?ht to Bay what temitory would remin dry and what territory Vould becone wet. This they did by.paragaph (0) of the mendnent of Eection 20, Art. 16, adopted' ;run,ust 2.4, 1935, es follows:
"*(c) In all counties, jurtice's precinct8 or Incorporated tOWI or cities wherein the sale of intoxicat- ing lIquor8 had been prohibited~ by local option eleotions held under the *7 Vs. Gert Ford, L'ay 15, 1939, Page 7
laws of the state of Texas and In force at the time of the taking ef- fect of section ZB, Article XYI of tb8 Constitution of ?exas, It shell oontlnue to be unlawful to mnufac- ture, sell, barter or exchange In any such county, juetIce*s FreCinCt or Incorporated town or city, any spirituous, vinous or rialt liquors or lcediceted bitters capable of pro- ducing IntoxIoatIon or any other In- toxicants whatsoever, for beverage purro8e8, unleso and until a majority of the qualified voters In such county or political subdivision thereof Yot- inlr, an election held for suoh purpose shell determine suoh to be lavXul.* "ThIS language defined the dry territory and merely referred to the lax under which It was mde dry territory for ti.e purpose of de- finlv, and Identifying eucb territory, Eectlon 23 of Article 1 of Home El11 77 c. 467, Acta of the 2nd Glled Eession, 44th fegislature, enacted In aid of the abcve q&ted ar-enCr!ent to the Constltutlon, also defines a ‘dry area' and a *wet area’ In the sme lzanner cs doe: the afore- mentioned con:t.itutioaal emenmient, and said St&X- tute forbids the sale or possession of liquors In excess of 4 per cent alcohol by weight In any ‘dry area’ as that tam is dcflned In the act.*
It will be neen that there has been no re-enactment of any pre-existing locel option 1Sv:S and likewise there has been no se-enactment of any pre-existing charter pro- visions or ordinances prior to 1919.
Area8 *dry" by local option election prior to 1919 v:ere again "dry" after the amendment of 1935 becau&e the people of this state had 80 voted by definition In the constitutional amendment of 1935, and not because of any re-enactment of such laws. Constitutional amendrcent *8 \s z.r. Sert Ford, Kay 15, 1939, rage 0
or 1935 i8 entirely 8Ilent as to the chertor provl- sions or spoclal aOt8 of the l.e&Blature, such a8 Sec- tion 62 of the Charter of the city of Grlvetton.
On December 30, 1912, Sectirn 5 of Article 11 of tho state Constitution, known (1s the "I:oT;e Kulet* amendment, WRS adopted and thereafter, considerable legIslatIon ~08 enacted by the l.egislat.ure from time to time, under authority of such emendmmt, vhlch legls- lation I8 Eet forth In Ckppter 13 of Title 28 of the ~Zcvlsed Civil statutes. The city of Gelverton hao never re-enacted or re-adopted Its charter as a whole under the *lIome rule* law8, nor has It ever z-c-adopted or se-enacted .Sectlon 62 .-r its charter thereunder.
Judqe Yattlmore, In the ease of Cone vs. State, 236 W 486, used the tollowinr: lan::uaEe:
l'on ?Tay St, 1939, by populnr vote, f:eC- tion 20, Article 16, of our State Constitution, ws amended, i:n1 the yroclemation of' the :'overnor putt inz EZK;(: into effect war of dcte July 3, 1919. By the tei%s of said amendment former aectlon 20 wee struck out of t.he Conztltution and relzenled. Said sectlcn vza the one which gave legislature paver to enact law sub- mIttInS to th6 people of a Flven territory for their detornlnetion the vestion e8 to the sale ~-r~~l.~~~~~...intoricatI~ liquor vithln 8UCtA
territc-ry. Y'be repeal of seld Sectinn 20 necessarily carried with it the reTeel of all law deFendin fw their validity won the exer- EIse of the power conferred by Bald section.
\;hen amended section 20 became effective, the former section 20 died, and v:ith it elso diod Its descendants and dependents, e::cept insofar as the savin: clause of said amendnd section 20 kept the provisions of such laws alive for the purpose of prosecuting offenses committed there- under prior to the adoption of the amendment.v
Also the cases of Sparks vs. St&e, 230 SY; 649 and.~.IllIam~ vs. State, 23S SK.640 are to the 8ame effect, holding that whercln conviction fpr posi3ession of equipment *9 !.!r. Bert Ford, Yay 15, 1939, Page 9 llqucr, unlawful
for the nanufoc~ure of intoxic+ng _ . . . _ _ unaer statutes in exiutence prior to the odc~tion of the constitution61 amendment in 1919 were reversed by a holdin; thnt, such statute hr:d boon repealed by such amendment.
?:.e do not thir& thct it can be ccntended that an ect of Legislature amending; the chbrtcr cf a municipal oorporetlon has aAny treater force or dignity or Is entitled to any further effectiveness'tb~n a general act of the Iegfslaturs covorin3 6-nd applyfng to the entire state. If such tot or statute xas re- pealed by the above set forth constitutional amendment 5' of 1919, as is held by the cbsen above cited, then the ronner~must also ran.
.Tustice Dey of the SuIx'eme Court of the United : States, in the ease of United States vs. Iuginovioh, 41 Dup. Ct. rep. 551, holdlrg certain provisions of pre- existin? lfquor laws of the Unitad Stated, r6pcoled by the 16th emendrent., snd the acts of ConrJress rassed pr- suant thereto, says in port es follows:
w1t is, cl" course, Settled that re- peals by implication ere not favored. It is equally well settled that a latter sta- tube reI?e?ls fomzer ones when clearly incon- sistent with the ecrlier enactments.q
Ke think thct Eectlnn 62 of the Charter of the city or ~Glveston as rtbove quoted is clearly inconsistent. and in conflict with the amendments of the ~onctitution of the St&t8 of T6xc.s adosted in 1919.
"he fremers of the prohibition ~enOc.ent to the conttltution edc~ted in 1919, evidently realized end be- lieved thct such emendment vould have the eifect of tie-. diat8ly re;?c&ling end nullifying: pre-8i:iSting p~rohibitory, .regulatory and penal laws on the subject of liquor, be-
cause they felt it necoesnry to and did incorporate into such amendment its own penal provisions and a3 xi11 be s:en from the cases before oited, this vieu- of the amend- ment wes also t&en by our Court of Criminal &peals, when the matter finclly came before them for decision.
Mr. Bert Ford, Pay l5, 1939, Page PO After the adoption or the amendment __ - br 193.
and pursuant to the authority Oontalned in Ssctlon jb] 'thereof, the Leqlsbture haa re-emoted new looal option
laws whioh hi.ve been noted Upon b: various oountles, justicels precincts and incorporated towns and olties In the stote, but no such aotion under the authority of said saction or any le&islation passed thereunder has b89n taken by the city cf Galveston or in CIlveston County.
It can be seed that this Section does not authorizethe pessaye of any statute grantin to cor- porated titles the power to zone themsalves for t e:aale
%" of liquor, but ninoe said secti.-n and the law8 passed thereuuder do not prohibit cities from doing so, aities under the Vom !:ule" amendment have the inherent power, in accordance with the regulations laid down In suoh "Home Wle" law, to so zone themelves, but they only heve such power as a result of the "Bome Eu&e* amendment end to be exercised in accordance therewiLh snd this has never been done in the city of Galveston, end is in no sense true of Cectlon 62 of the charter.
fn the cases of Pitre VE. Raker,,,111 ijX (Znd). 360, and Trltico et al VS. Texas f.iquor e.:ntrol hoard, recently decided by the Eeauniont Court of Civil Appeals on Perch le, 1939,an attack<.was being made upon the charter amendment of the olty of Port Cxthur adopted to and in full compliance Xovembar 4, 1936, pursuanbe eith the "home RulcW statute or the state of Texas, which said amendment defines certain areas in the city or Port Arthur where intoxicetiw liquor could end could not be sold lnaacoordance with the state laws upon the general subJect of such business.
These cases hold thet the poryer to regulate the sale of lntoricatirq liquors to the extent that it is 1aMul under the state laws is inherent in "!iome Rule" cities unltss d8fIiRd them by the conetitutian and general laws or the stete, and that such rs~letlon Is valid unless In confliot with such goneral laws or the Gonstltution, end it having been conceded that such charter amendment in Port Arthur was adopted in compliance with the ?%me Rulea law, the only ocncern of the court via8 to determine whether or not such parer was denfed such city by the *11 .
Yr. Pert Ford, ?,'aay 15, 1939, Page 11
present s8Ction 20, Article 16 of the Constitution or the liquor Control Act passed pursuant thereto, end whether such cherter emndmnt was in conflict with the Stat8 laws on the eubject. Doth of these questions wr8 answered In the negative,
You are respecttully advised that it Is the opinion of this departc:ent that 2ection 20, Article 16 of the Constitution as amended In 1919 has the errect Cc ropeollng ell existing legislation whether it be in the forr: of loco1 option statutes or charter arsendnent statutes, that upon the adoption or this mendr,ent on &!ey 24, 1919 , .Ssotion 62 of the city of C7alveston be- cme seP8al8d and 0r no further rorce or efrect.
Trustin5 that the fOr8gOinq answers ycur in- quiry, we remain-
ad811 'i;illil3XES im3istant