Untitled Texas Attorney General Opinion

R-179 THEATTORNEYGENERAL OFTEXAS Marah 22, 1947 Hon. Bert Ford Texas Liquor Control Board Austin, Texas opinion No. v-100 Re : VaLldlty of order passed by the Commlssloners * Court of Byrleso,~ County with rbfsrsnce to tb4 sale of alcoholic kverages and Denr MrIr.Ford: relat4d quest ions. Your latt,er of Febtiuarj 25 Is, set out in full b%iow : Vour valued opimioa 1s respectfully reqtieete’d with referem to the Oertaln quQstlons propoquled bblov with i?ef4rence to the fact sltu&tionti heFsln related: “Harked ISxhlbit~ On4 1s a cop7 of $n order .passed by t,he Oonmirriolrer4 Court of Burlesoa~Coutitj,~Texas, under date of March 11, 1946,~ vith referenoe to the iale of al- coholic beverag6 in Burl44oa County. “Under data of March 26, 1946, Steve D. Navles, P. 0. Box 181, Bryan, Texas, exe- cuted an orgglnal applisation for a package store permit to be located on the south side of Highway 21, five hundr4d (500) yarda west of the Braaos Rlvsr Bridge, about twelve miles from Caldwell In Burl4son County, Texas. This appllcat Ion, accompanied by a proper bond and the aecessary fees,, was filed ftith the Texas Liquor Control Board on April 10, 1946. Short- ly after April 11, 1946, th, abov4 aentloned copy of the Co1amiseion4er~s ,$ourt order was filed with the Taxa Liquoa Control Board. “On or about Apr¶i 19, 1946, Mr. Steve D. Nav14s, accompanied by his attorneys, Law Henderson of Brgan and Ohant Sanderford of Austin, appeared in my offlee and requested r . Hon, Bert Ford, Page 2, V-100 some action on his application Sor a pack- age store permit e The application was ap- proved by County Judge Hays Bowers of Bur- leson County, Texas, and found to be in regular order D “Prior to the appearance of Mr. Navles and his attorneys, I had been Informed that a building had been moved on the property across the road from the location Mr, Navies desired to use for his permit and that said building was being converted Into a church. A hearing was had and evidence offered to show that there was no church In existence at this location at this time. As Admin- istrator for the Board I found that there was no church in existence within three hun- dred (300) feet of the Iocat ion for which Mr. Nevles sought a Piquor store permit; and on April 19, 1946, I ordered the permit is- sued and same was issued, “In compliance with the provisions of the Texas Liquor Control Act, under date of July 18, 1946, Steve D, Navies executed the proper application for renewal of the permit above mentioned and same, accompanied by the proper See i was Piled with the Board on July 29, 1946, The renewal permit was issued September 1, 1946, and automatically expires August 3~1, 1947e No protest against the re- newal of the original permit was ever filed with this office until long after the r4n4w- al permit was issued.. “Yesterday I received a letter dated February 18, I947, signed by H. ,D, Dennis, Pastor of the Wl,lIlams Xemorial Church, which church Pastor WlPllams says is vlthln one hun- dred forty-four ( 144) feet of the S rant door of the Navles Package Store in question. Pas- tor Dennis is demanding a hearing on the mat- ter. “I am also in receipt of a letter dated February 1.6, 1947, from Sheriff Cleve Bates, Burleson County., T4xas, which letter caare.ln-’ to my hands yesterday stating that, the L. IS. Williams Memorial Baptist Church is located Hon. Bert Ford, Page 3, V-100 directly adross the highway from the Mavles Package Store 0 “At my request the attorneys for the Williams Memorial Church had e. survey mad& of distance between the said church and the Navies Liquor Store, and I attach the plat, which was mad4 and certified to by Bennle F. Sebesta, County Surveyor of Aurleson County, Texas, I had requested the attor- neys for the Memorial Baptist Church to have the englnssr making this survey show all roads Intersecting with State Highway No. 21, but he apparently overlooked doing this o Since th~ls plot Is drawn to scale, It can be ass-d that there is not any other road Intersecting with 3tate Highway Noo. 21 within 300 feet of the Memorial Bap- tist Church or the Navies Liquor Store, ‘In cases heretofore arising where a church has been built vlthln 00 feet of a packa 4 store according to t ;f e measurements specl B;led, after a permit has been issued, it has been b4ea the policy of this depart- ment to notify the permittee that the permit would not be renewed unless a new location had been Sound before the expiration of same for the reason, that the Administrator has been unable to find arry autho:rity In the law authorizing eancellatioa. The Adminls- trator has also been unable to find any authority for making a refund for the un- used portion of the perml~t Se4 even II the permit v4r4 surrendered for voD.uitarg can- cellat ion, “The only instances where similar fact sltuat ions have arisen have bden in lncorpor- ated cities and towns having an ordinance prohibiting a license or permit within 300 feet of a church. So far as the Administrator knave, the Commissioner’s Court in Burleson County Is the only one that has undertaken to pass an order prohibiting sales in rural areas where a church is located vlthln 300 feet of a premise authorized to sell alcoholic bever- ages o . . Hon, Bert Ford, Pa&e 4, V-100 %lhlle the order of the Commissloner”s Court of Burleson County does not exactly foqlow Section 25(a) of the printed Texas Liquor Control Act with reference to mea- surements9 I think it is fair to assume that the attached order was passed by said Court uadqr.the authority provided in said Section 25 “The specific questions which I desire to have answered by the Attorney General are a% follows 2 “‘P 0 Is the order passe~d by the Commls- slonerOs Court of Burleson County, Texas, un- der date of March 11, 1946, a valid order? “2, If the order is valid, then has County Surveyor Bennie F. Sebesta of Burle- son County, Texas, made the measurements in the proper manner, or should the measurements be along the property lines of the street fronts and from front door to front door and in direct line across intersections where they may occur? (See Section 25 (a) 1. “30 If it fs determined that the ordin- ance isvalid and also determined that the measurements have been properly made, then Is it the duty of the Administrator, assum; ing that the Wllllams Memorial Church Is now a bona fide church, to cancel the package store permit of Steve D, Mavles? ‘“4 0 If ft is held that it is the duty of the Administrator to cancel the Havlese permit 8 then what section of the Act Is to be used in notifying Mr. Mavles that a hear- ing Is to be had for the purpose of cancel- ling his permit provided it is determined that his location is within 300 feet of a bona fide cbureh? “5o If the permit is cancelled under these circumstances, then would Steve D. Mavles be entitled to a refund of his permit fee from the date of the cancellation to Aug- ust 31, 1947, which is the date saw auto- matically expires? ” HOKI,Bert Ford, Page 5, V--1C;ci Article 6k6-25aof Vernon’s Penal Code, which ia also Section 25a of Art1cS.e 1 of the Texas Liquor Control Act, is as follows: “The Commissioners’ Court of any county in the territory thereof outside incorporated cities and towns and the governing authorities of any city OP town wlthln the corporate. limits of any such city or town may prohibit the sale of alcoholic beverages by any dealer where the place of business of any such dealer is wl.thi~n three hundred (300)feet of any church, public school or public hospital, the measurements to be along the property lines of the street fronts and from front door to front door and in dif;ect line ac~ross intersections where they occur, That such delegation by the Iegls1ature is valid appears we19 settled, We quote from 30 Am, Jur. 435,436, ‘A state, in the exercise of its police power, may enact a valLd law forbidding the sale of lntoxlcatlng liquor 1.n a partleular locality, such as a law prohibiting sales within specified distances of churches and schools, as well as other buildings, lnstltu- tions, and grounds, public and private 0 Sim- ilar power may l?fl e_zcgsr,c_j- ,spkG muriiclpfZ~ ties and counti.egO , i r “The Leglslatura ma2 by pt’atut.e, and municipalities and counties, dua G&r>, x by orditrancepr~bitthee~~tthllBhrnent ,-- -.--.-- pi licensing of saloons wits$ spe_cifled distances of churches. fl TEmphsuis added,) The first question for determlnat,ion is the validity of the order of the Commissionerss Court of bur- leson County dated March 11, rg46* The order of the Commissioners) Court contains the fol.lowing language with regard to method of measurements: Sl 0 D the mileage to be made from tha front door of the property li.ne and from prop- erty line to front door 0 ” ., Hen, &rt Ford, Page 6, V-100 Article 666-2fja, supra, grants the authority to counties and cities to prohibit the sale of alcoholic beverages where the place of business is within three hundred feet of certain establishments and then In the latter part of the article provides for ,the means of measuring this distanced 11 ” 0 0 D the measurements to be along the property Pines of the street fronts and from front door to front door and In direct line across intersections where they occur’.’ The language used In the Co5r&sslonersP Court order to set forth the method of measurement Is obscure and ambiguous u However 3 it may be assumed that the Com- mlssloners~ Court meant to follow the method ,of measure- ment set forth by the Legislature. We quote from 20 Co Jo 3, 802: “‘As a county Is a quasi corporation s 0 0 0 3 and a governmental agency of the State, D 0 0 with no Independent sovereignty, It possesses only such powers as are expresslv or implledly conferred upon it by eoastitu- tlonal provisions or leglslatlve enactments, Powers not eonferred are just as plainly prohibited as though expressly forbidden; and, when -- a power Is conferred --- be exer- to elsed in a particuPar manner, there is an imnliedr~strietion _upon the exercise of that power in excess of tlib m, or In a manner different from that &- BEmphasls added, B- - As to the eonstruetlon to be placed on coun- ty orders, we quote from 20 C, J, S,, 871: “Since it Is not to be expected that the orders and ordinances of a county board will be drawn with that degree of preciseness and skill which characterizes acts adopted by higher PeglsPatlve bodies, they should, ex- cept for penal ordinances, be construed llb- erally, and so as to give effe$ to the clear Intention of the county board. And again in 20 C, J, %-, 870, we find this statement: Hon. Bert Ford, Page 7’> V-100 “A county order o~dlwaance must comply with the formal requl.sites, prescribed by statute. However, where the subject matter of the order or ordinance 1s within the jurl isdiction of the board, substantial compll- ante Is sufficient, and the order 01’ ordlua- ante will not be declared Invalid for mere informalities or irregularit les, or because of the presence of unnecessary recitals therein, whether such recl.tels are correct or incorrect D” We believe that a comparison of the language used in the statute and the language used~ i,n the county , order wlth reference to method of measurement shows an attempt on the part of the county to adopt the statu- tory language, and in view of the liberal construction to be given county orders, we are of the opinion that the Commissioners’ Court order 1s a valid one, and that the method of measurement intended by the Commisslonersg Court is the method set forth in Article 666-25a, suppa, The next question tc be resolved 1s whether or not the measurement as shown on the plat 1s the cor- rect method. The church Is located on the west sl.de of Texas Highway No, 21 and the liquor store on the east side of said highway and north of the church. The county surveyor has measured from the liorth door of the church diagonally and in a noT-th easterly directioo to the west door of the liquor store, In other words, his measurement consists of a straight line joi.nlag the two doors, tend is, therefore, a measurement of the clos- est distance between the two doortr, This distance IS 144 feet, Your question is whether this 1s the correct method or whether the measurement should be “along the property lines of the street fronts and from front door to front door and in direct line across Intersections where they occur. ” The cases of Hallum v, Texas Liquor Control Board, 166 3. W, (26) 175 and St ubbs v L Texas Liquor Control Board, 166 3, W, (26) 178, deal with the proper method of measurement under Arti.cle 666-256, supra. Al- though in both of these cases an intersection was in- volved, we believe the language will be helpful In the quest Ion before us, In these eases, the court decided that the distance between opposite eorne,rs of inter- sections was properly measured diagonally rather thuu across street lines D lion, Rert Ford, Page a, V-100 We believe that in order to accord with the rule prescribed by Art, 666-25a, the measurement should be as follows: Beginning at the front door of the L. B Williams Memorial Baptist Church in an easterly dlrec- tion to the property line of the highway front; thence at right angles north along said line to a point direc- tly opposite the front door of the liquor store; thence east in a direct line to the front door of Ravles Liquor Store 0 Since au intersection does lot occur between these establlshnmnts, It was not the legislative Intent to require measurement to the nearest Fntersectlon and then back to the establishment where the intersection does uot separate the church from the package store. The following language in the Rallum case, cited above, leads us to this conclusionn “In reaching the front door af the church from the front door of amellant’s &ace of busi- ness, and vice versa* ue~~ssarllg, & lntersec- tion of these streets would be emcouatered.” -hasIs adde’d,~ It would therefore seem to follow that if in walking from front door to fro&t dear an intersection would not uecesearlly be eucoautewed then the measure- meut would be made from front door to front door along the property lines and across the street in direct line. Streagth is added to this proposl.tlon by the Stubbs case, cited above, in which the Dallas Court of Civil Appeals stated: ‘“Obviously, it was the intention of the Legfslature to prohibit a place for the sale of liquor within 300 feet of a church, deter- miued by any permlssable masuremnt under the rule prescribed for that purpose 0 0 0 0 In applying the prohibition against sales near churches, great llberallty is exercised, aad the rule of construation usual19 adopted is said -- to f=or the relinloua iaotitutloas Kd not the traffizrs -- in liouor, 0 D 0 D y - An excelleat annotation on the mode of mea- surement of such distanees appears in 96 A, L, R,, 778. In that annotation, the following language appears: Hon. Bert Ford, Page 9, V-100 “The proposition appears to be estab- lished as a rule of Law that, except as may & otherwise specificaXYy provided, the dls- tance contemplated by a statute or regula- t ion pro, hlbltlng the granting of a license for the sale of intoxicating liquors, or traffic therein, within a certain distance of a named lnstltutlon or place (e. g,, church, D D e ), must be measured In a straight line ~ rather than in some other man- ner, such as by the ~aually traveled route or the street lines,” gkmphas is added 0) It is our opinion that the computation of the distance in the manner already set forth Is the correct method of measurement i The third question is whether or not it is your duty to cancel the package store permit of Steve D, Navies, assuming the WllliarmMemorlal Church to be a bona fide church, Art lcle 666-12, Vernon ss Penal Code, provides as follows: “The Board or Administrator may cancel or may suspend for any period of time not exceeding sixty (60) days, after notice and hearing, any such permit granted If it Is found that any of the following fs true: “(1) * That the permittee has at any time been convicted for the vlo:latlon of any provision of this Act, ““(2) * That the perml,ttee has violated any provision of this Act or any rule or regulation of the Board at any time 0 “(31 D That the permittee has made any false or misleading represeatatlon or state- ment in his application, “(4) D That the permittee is Indebted to the state for any taxes, fees, or penal- ties imposed by this Act or by any rule or regulation of the Board- ‘7 5) D That the permittee is not of good moral character, or that his reputa- tion for being a peaceable and law-abiding Hon0 Bert Ford, Page 10, V-100 citizen fn the comtnunfty where he resfdes is bad, “(6) e That the place or manner in whfch per- mfttee conducts hfs business is of such a nature which, based on the general welfare, health, peaces morale i and safety of the people and on the public sense of decency, warrants the cancellation or sus- pension of the permit. “(7) D That the permittee fs not maintaining an acceptable bond 0 “(8), That the permittee maintains a noisy, lewd, disord~erly,. or insanitary establishment or has been supplying impure or otherwise deleterious beverages 0 “(9) 0 That the permfttee is insolvent or fn- competent D or physically unable to carry on the management of his establishment. “(10) * That the permittee fs in the habit of using liquor to excess, “(11) 0 That either the permittee, his agents9 servants s or employees have misrepresented to a customer or the public any liquor sold by hfm, “(12) 3 Where the word PpermftteeV fs used fn (1)s (2), (3), (5)s (6)s and (lo), of this Section ft shall also mean and include each member of a partnership or association and each officer and the owner or owners of the majority of the corporate stock of a corporation,” Under the “Expressi Unfuswrules the Board or Admfnfstrator may cancel or suspend a permit only if some subsection of Section 12 9 supra p has b’een violated. We quote 39 Tex,, Jur, s 188, 189: “The maxim Expressfo Unfus est exclusio alter- lus (the expression of one thing is exclusive of an- other) is said to be a logical, sensible and sound rule of construction; and it has been frequently ap- plied in the construction of statutes as well as fn the interpretation of other documents. The maxim signifies that the express mention or enumeration of one person, thfng, consequence or class is tan- tamount to an express exclusion of all others, And Han, Bert Ford, Page 11, V-100 when it is applicable, affirmative words imply a negatirr of what is net affirmed, negative words imply an affirmetivr of what is net negatived; and a provision limlting a thing to be done in a par- ticular form or menner implies that it shall not be done otherwisr.n After a careful reading of Section 12, supra, and a ooasideration of all of the facts presents4 in yeur letter, it is the opinion of this Depmrtwnt that you de not hsve authority tr cancel the prokage store permit cl Steve D, Navles under any of the subsoctiens of Artidle 666-12, Vernon's Penel Code, Having answered your first question in the af- firmative and your second and third questions in the neg- ative, a consideration of questions 4 and 5 is unnecessary. _ SUMMARY (1) The order passed by the Commissioners! Court of Burlesen County prohibiting the sale of intoxicating beverages within 300 feet of a church is valid. The measurement of the 300 feet from package store to church must be along the property lines ef the street frents and from front door to front door as provided in 'Art, 666-25a, Vernoass Penal Code, (2) Where church is built within 300 feet of package store after permit has been issued and permit is renewed without any proteat being filed, Administrator is not authorized to cancel permit under Art. 666-12, Vernon79 Penal Code, Very truly yours, APPROVEDMAR. 24, 1947 ATTORNEYGENERALOF TEXAS A&& By@- Clarence Y. Mills Assistant CMII:rt:mrj