OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUnTIN
a-0.w
Honorable Oharlem
Criminal Dlrtriot
Oorrioaaa, Texar
Dear 81r1
this Departmnt
ld on roam dab betwoen now and the
6, 1940, wa wrbto you rrqueatlng additional
information oonownlng the above mentlonod quertioa.
we quote rrom your letter or Augurt 7, 1940, aa rot
lowrr
Honorable Char188 T. Banister, Fage 2
#In rsply to your letter Of August 6, 1940, pertain-
ing to additional information in referonce to the abore
asationsd oaption, we hrreby quota the request of the
potltionars and the rssolndlng order as stated ln the
mlnutss or the Oommlssionsrs~ Court;
* ’SPECIAL SESSION
Saturday, June 15, 1940
a’Thl8 Speolal Session being oalled by the Oounty
fudgs, Paul H. Klllsr, ror the purpose or oonsldering the
request from a rspresentatirs of the signers of the psti-
tfon hsretorore riled in this court asking ror the oalling
of a spaolal beor eleotlon ln this oounty, was called to
order at 2115 o’olook P. K. this day with the rollowing
prsssnt I
County Judge, iaul E. Ulller
Joe A. Georgs, Commlssloner, Preolnot No. 4
C. M. fittgsrald, Preoinot No, 2
Rev. B, T. Miller appeared before the Court and presented
the followlng request t
CorsloaAa, Texas
June 15, 1940
To ths Commlssloners Court
or Xararro County8
I, E. T. Miller, as spokesman for the other Five
hundred SAd forty-two (542) qualified voters of K&varro
Couty , Texas, who prssented to the Commlsaloners~ Court
of said oounty a petition asklllg for a epeolal beer eleo-
tion, and beiA& the mime X. T. Killer who presented tbs
above mentioned petition to the Commiesloners~ Court on
June 1, 1940, do, this day, June 15, 1940 ask said Commls-
sionsrs’ Court to resoind ths motion 0allLg for said
eleotion, and earnestly implore your so doing, for the
reason that there is a possibility of a~ ukavoldable
irrrgularlty ii the prooeeding oallir?g for such eleotion
and It.1 that In view of suoh possibility, ii the election
should be won by the dries, aotlon alght be taken in court
to set aside said election, thus inourrlng undue expense
ror all part188 conosrned.
I want to go on reoord aAd hare the Court understand
that somstlms after the primary we expect to ask you to
aall suoh slrotlon at some suitable date.
3. T. Xlller. *
:!onorable Charles T. SanIstsr, iage 3
“COnUissioner G4ores than made the iollowIq motion:
1 move that the notion of the CofmaIssIoAers* Court taken
herstOtOr* On JUne 13, 1940, Oalling 8lSOtIOA to be held
On June 24, 1940, to dotermine whether the sale or beer
OOctclinis aloohol not esoosdlng Sour per oentum (4s) by
Weight, shall be prohibited In Navarro County, be resoinded,
aAd that the County Clerk be Instructed not to post AotIces
or said eleotion as Qrsriously oulled OA JuAs 13, 1940.
EOtIoA was seoonded by ComIsslonsr Eitzgerald, and upon
behg put to a vote, oarrled unanimously. All present
voted *aye”.
‘**It is theretore ordered by the Coamissioners* Court
that the uctloc of the court heretofore tuken OA June 13,
19&O, oellIr<; a beer elcctior. for &Ae 24, 1940, ba, and
it ip hereby resckded and wlth&rtm~. i’he County Clerk
1s hereby ordored not to post notices for asid election.‘”
SeotioA 32 , .*tIole 1, or the Texas Liquor Control
Aot reads as rollous:
*%he ooaziesioAer6’ oourt 0: each county in tiia
state upon its o~ia motloo say order an election to be
held by tht; ;uallfled voters cl said osunty, to determine
whether or not t:ls sale cf liquor shall 36 prohibited or
legalized in such county, and suoii court s&l1 order a
1ooAi option eleotion whenever ;etItIoned to do so by as
many as ten (10) per cent or tta ~ualirlaa votera or said
county, or of any justice ynolr~ot, city or town, taking
/the votes i’or governor st the last preoedi~ general elec-
tlori YS the uaaia for deteraiAIAg the quallried voters In
any such couuty, or poll tic31 subdivision. dter the rlrst
local o@lon election held as provided ln tSIs aot, in ony
OouAty, justice preoinot, lnrorgorated tom, or oity, no
3ubse;ueAt election upon the 3~10 Issue IA the aa* r;olItIoal
subdlvfnlon shall be held y;IthIa one (1) yea? fron the date
of the preceding looal option eleotlon IA said OouAty, or
said political subdlrlelon of said Oouuty.a
action 33, Article 1, of the Tezao Liquor Control
Aot prorIdes that:
“:&en the commissIonerr* court shall order aA ehotiOn
as herein provided for, It shall be the duty Of Said OOurt
to order such eleotion to be held at the VOtIAg Places
wIthIn such subdivision or oounty upon a day not less than
ten (lo) nor more than twenty (20) days rrom the date or
said order, and the order thus made shall sxpress the ObjsOt
or such eleotlon and shall be held to be prima faoh erldenoe
that all or the provIsloAs neoessarg to give It validity or
to OlOthe the court with jurIsdIotlon to aske It valid,
Honorable Charlea T. Banlater, Page 4
“hare bean duly oompliad with, proridr4 that aal& oourt
ahrll l&qolnt luoh ottloora to hold auoh elaotlona aa
now tequlr.4 to hold genaral eleotlonr.”
The Taraa Liquor Control Aot further proridaa that
the olerk Of aald court (ootiaalonera’ oourt) aball peat or
06Uae to be poatab at leaat one oopy of raid order in eaoh
lleo tiopnr eo lnoin t auoh politloal aubdiriaion or oounty
affeofed, for at least air (6) days rlor to the 6~ or thr
eleOtion, whloh lleotion ahall be he P4 an4 the return theroof
Bade in oonformity with the prorlalona of tha general lawa of
the State, and by the lleotlon ofrloere appointed and quallrla4
under auoh law.
%‘ilth reierenoe to an order for an eleotlon, It la
said in Texas Juriaprudenoe, Volume 16, page ES, that *In all
oaaea muoh la neoesaarlly left to tha dlaoretlon or the ofrioara
authorized to oall the eleotion. If the menner of performance
ia such as till reasonably aoaompllah the purpose oi the law,
It ahould bo held aufflolent. It has been aald that, compare4
to the importanoe of effectuating the objeot of every eleotion,
the question aa to the manner of ordering an eleotlon la of
tri+tal moment. Eowever, in apeoial or local eleotlona
all the requlremek~ it law ahould be substantially if not
literally oomplled with. If the failure of the election ofiloera
to oomply with statutory requirements haa resulted in a denial
of the right to vote to a number of elector8 auffloient to
have ohanged the reeult, then the alaotion la nugatory and void.”
The oomzliaeionera’ oourt, aa a Court of general
jurlsdlotlon, haa full oontrol over its judgnente during the
term at which they are rendered, an4 may rorlee or reaolnd ordera
at the term at which they are made, prorldod that this be done
before any righta have accrued thereunder. ‘Where the action
of the court in a partloular oaae 18 judiolal and not admini*-
trative, the ordera or deoreea may not be 8et aalde at a aubae-
quent term. Howeyer, the comaisaionere~ oourt haa the power to
rescind or vacate an order made in its legislative or adminlstra-
tlve capacity, l-far aa vested rights Is8 not impaired. Aueuat
A. Busoh & Co. ‘I. Cufleld, 135 9. I. 2441 Collfngaworth County
t. Myera, 36 S. ‘h, 414; BarerMmn T. Coryell CO., 847 30 R.
1086; Texas turlaprudanoe, Vol. 11, pe 673.
Honorable Charles T. Banlater, Page 3
We believe that the aot of the CommIaelonera*
Court on June 13, 1940, oalllng a nlleotlon ?or the 84th day
o? June, 1940, was olearly an admlniatratire oao, aad an lot
whloh the Commissioners* Court had a lagal right to maoin&.
It will be note6 t&t the petltlo~ra through their apoker-n
did not dealre or attempt to withdraw the petition prose&e&
to the Commiasionera~ Court but only in lffeot asked that
the or&or calling the eleotfon be reaolnded, an4 that It was
their purpose to hare the oourt to oall an lleotlon at aoma
lultable data other then the original date ror whioh tha
lleotlon had been oalled. The atatute (Seotlon Se 0r Artlole 1,
Texaa Uquor Control Aot aupra) providing for looal OptIon
elections upon the petitjon of the votera dbia not apeoify
the time or the term of the oourt at whloh the oommlaelonera’
court muat lesua auoh order for an eleotlon. Rowever, the
eleotion must be ordered within a reasonable time after the
oommlealonera* oourt reoelvos a valid petition therefor.
When you r&or to the next presidential election
In November In your inquiry wa presume that you have referenoe
to the next general election, aa Seotlon 32, aupra provider
in erreot that ea many aa ten per oent o? the quali?Ied votera.
of a oertaln oounty or any political eubdlvialon of the oounty,
taking the votes for the governor et the laet preoedlng general
election as a basla ror determining the quellfled voters In
any suoh county or polltlcal aubdlvlalon.
YOU are respectfully advlaed that it la the opinion
of thla Department that ii the 542 petitioners who eigned the
original petition constitute ten per cent or more of the quall-
rled votera of raid oounty, taking the votes ?or governor at
the laat ?moedlr;8 general election a8 a baa18 ior determining
the quallrlea votera In the oounty, the COmmi8SlOnOrB’Court
oan legally call M eleotlon to be held on some date between
now .and the next general eleotlon upon the basil of the Barn4
petition orlgitally presented.
Truatlng that the roregolng fully 0nawera your
inquiry, we are
Your8 very truly