R-549
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THEACTORNEYGENERA L
AUSTIN. TEXAS
PRICE DANIEL
ATTORNEYGENERAL July 7, 1947
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 28,1910. 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
necessary to answer your other questions.
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 5728,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was repealed by state-wide prohibition in 1919, but'
its ovisions were re-enacted in the Liquor Control
Act i"Art: 666-46~.;:V+.P.C.) effective September 1, 1937.
Section 40a of Article 666, Vernon's Penal Code, and
the Act of 1907 which became Article 5728of 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
precinct or incorporated town or city of
Hon. R. A. Wylor, Jr. - Page 2, V-297
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
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 presumed that said
election as held and the result 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 Yerk 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
otherwise. The matters compialned of would
be mere irregularities at best, and this Act ),
makes valid and noncontestable .anythlng per- :
taining to irregularltles In the adoption
Hon. R. A. Taylor, Jr. - 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 accordinglyhold 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
court. See Branch’
s Annotated Penal Code, Sec. 1228, p.
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
&ws’of’ke 30th Legislature, First Called
Session, p. 447, which became effective
ninety days after May 14, 1907 fail
which the law conclusively prekd%t
thealectlon as held and the results as
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
$37 Revised Civil Statutes (18%) However, at the tim
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
Hon. R. A. Taylor, Jr. l. Page 5, V-297,.
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 666, 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
were not posted in the manper and for the
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 666, Vernon's Penal Code. Since
that time, the county has been a "dry area"
only as to the sale of whiskey and other
alcoholic beverages containing more than
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