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