Untitled Texas Attorney General Opinion

Honorable M. F. Kieke county xttorney Lee county Giddings, Texas Dear Sir: Opinion No. O-2502 Ret: ,hrethe inhabitants of an incorporated oity permitted to vote in a stook law eleo- tion under Article 6954, R. C.S., such city being inolud- ed w-thin the desoription of the subdivision? And related question. Your letter of recent date requesting a legal opinion from this department states that in 8 stook law election under Article 6954, Revised Civil Statutes of Texas, an inoorporated city is included nith- in the description of the sub-division in which the election is to Ix held. You ask if the inhabitants of suoh oity are permitted to vote in the election, and if not, would the city nevertheless be effeoted by and included within such sub-division. Article 6954 provides in part as follows': "Vpon the written petition of one hundred (100) free- holders of any of the following counties: . . . Lee. . . . or upon the petition of fifty (50) freeholders of any such subdivision of a county as may be desoribed in the petition, and defined by the Commissioners Court of any of the above named counties, Commissioners i%urt of said County shall order an election to be held in such County or such sub- division of a county 8s may be desoribed in the petition and defined by the Commissioners Court on the day named in the order for the purpose of enabling the freeholder6 of such oounty or subdivision of a oounty as may be described in the petition an&defined by the Commissioners Court to determine whether horses, mules, jaoks, jennets, and aattle shall be permitted to run at large in such county or such sub-division of a oounty as may be desoribed in the petition and defined by the Conmissioners Court." In the case of Conner vs. Skinner, et al, 156 SW 567 (Court of Civil Appeals). it is saidt Honorable M. F. Kieke, Page 2 O-2502 n .....Tt iS SUffiOient answer to Say the record nowhere discloses that any general stock lam is in force in East- land County, and therefore, if the statutes cited were ap- plicable to that county, some of which are not, yetthere is nothing, as indicated, to show that the people of that county have ever availed themselves of the privilege of adopting the provisions of the general stock lam so as tc put the same in force in the tom -__. of Eastland '..(F$l$FZs ours) In.considering the question as to whether an incor- porated city or town may be embraced within a designated derritory within which the stock laws would apply, the Court of Criminal Appeals in the case of Eeuvar vs.,State, 163 sll58, declared: "None of the statutory enactments providing for the adoption by vote of either of said stock laws excluded the incorporated towns or oities from being embraced within the territory designated within which such stock law should apply. .... 80 that we think it is clear that the petition for the election in a certain part of Lavaca County designated by metes and bounds in the petition, the orders of the commissioners court and in the adoption of the aot. were perfectly legal and valid, although it embraced three incorporated towns within its boundaries1 and that the freeholder6 within said incorporated town could vote at such election the same as a freeholder voter in any part of the territory....," To the same effect is the case of Bishop vsO State, 167 .S.W 363, from which we quote as follows: "Said election district, as No. 6, therefore had embraced the city of Weimer. Weimer, long before then, had been incorporated under the general incorporating act, authorizing toan6 of one thousand inhabitants or over to incorporate.,,. As such corporation, it had just such power and authority.,. to regulate and prohibit stock running at large SR were given by aaid statutes to such incorporated tams. It had passed no ordinances, and ,hadnone regulating or prohibiting stock running at large.... He contends, first, that Rimer oould not be included in the territory for such election because it was incorporated.... This court in Neuvar vss State, 163 SW 58, expressly decided appellant's first ground against him. We have no doubt of the oorreotness of that decision, and that Weimer could be, as it wasp embraced in said distriot eight...." The rule announced in these cases by the Court of Criminal Ap- peals cf Texas was recognized and its correctness re-affi~rmedin the .. _- - Honorable M. F. Kieke, Page 3 O-2502 case of Lambert, et al vs. Sourlook, et al, (Court of Civil Appeals) 286 SPY6'79,wherein the court saidr "Appellant.....asserts that the eleation was void because in a sub-division of Jefferson County whioh included Port Arthur, an incorporated city, nhioh had theretofore adopted the stook law, and henoe could not be lawfully included in said election. 00.01)We do not deem it neaessary to go into a lengthy discussion of these cases, but will say that they were in effeot overruled in Xeuvar ~8. State, 72 Tex. Grim, Rep. 410; 163 SW 56. In that case a stock law elecvtion'~88held valid, although it included within the bounds of the sub-division in whiah the election was held three in- corporated towns, In Bishop VS. State,...,.the question ,....was again considered. and it was again hsl~dthat such town could be included in such sub-division....ev And in English ~8~ State, 292 SW 229, it was again declared by the Court of Criminal Appeals; "This oourt is called upon to determine whether, upon a proper construction of the statute quoted, it is legal to include in the district wherein the eleotion was ordered the territory embraced within the inaorporated oity of Port Arthur..... It is true that the people within a oity are not dependent upon the eleation, but the aity might,by ordinance, pro- hibit stock from running at large within the corporate limits. This was known to the Legislature, however, when the statute uas enacted, without providing that in defining a district the oonmnissioners"court should not include the territory embraced in any incorporated aity. .....Nothing in the language used can, in the opinion of the writer, imply any intention or direc- tion that the people of the incorporated oities within the counties might not participate, and this as above state, though such cities might, by ordinances, protect themselves against stock running at large within their boundaries. The language used with referenoe to the entire county, and the manifest intent that the election should be one in which all freeholders, whether urban or suburban, could participate, is illustrative of the legislative intent in its use of practically the same language with referenae to sub-divisions of the oounty. The precedents are not harmonious, but somewhat oOnfuSingeoee" *a have reviewed the foregoing cases beoause, 8s pointed out by the court in the English case, the precedents are not harmonious. For e~mple, in the 0a80 of &wand vs. State. 202 SW 961, it was held on Honorable M. F. Kieke, Page 4 O-2502 the authority of the case of Reuter vs. State, 67 SW 505, that a local option election could not be held within the oily of Dallas beoause by the aot of the 30th Legislature in granting a speaial oharter to the city of Dallas, the aity eas given the power to regulate and prohibit the running at large of stook. This could not be invaded by the et- tempt of the commissioners* court of Dallas oounty to include the city of Dallas within the district. In the Beuter case, referred to above, the Court of Criminal Appeals had held that the Legislature by special aot having given authority to the city of Dallas to regulate the running at large of stock, the city was supreme, end an eleotion ordered by the Commis- sioners' oourt of the aounty to prohibit stock running at large in the oounty would not affect the city of Dallas, The court reasoned that the general lam appliaable to every county was at all times subject to change and modification "by special laws acting upon the same subject in particular counties or special localities, though suoh ohange will not affeot the operation of general law, except in those localities which are to be taken out of the general rule." ihe special eat of the Legislature giving to the oity of Dallas the authority to regulate the matter precluded the epplioation of the general stock law statutes., The opinions in both the Cowand and Reuter cases were written by Judge Davidson. In the Newsr case, discussed above, the same court, through Judge Prendergaat, declaredr 'We do not regard the ease of Renter vs. State, 43 Tex, Grim. Rep. 672, 67 SW 505, es applicable to the questions presented in this ease** df course these oases mey be distinguished upon the prooosition that they involved an act of the Legislature which granted c special charter to the aity, giving to the oily the express and specifio power to regulate the matter else regulated by the general stook lam statute., Yet, as pointed out by Judge Morrow in the English ease, the cases are "somewhat oonfusing." 76swere orally advised by you that the incorporated city of Lexington, &ioh does not operate under an existing aharter as was involved in the Cowaad and Reuter cases, is the subject oity of your request, and that it has not adopted a stock law. Clearly, therefore, your question would be controlled by the authority of the cases uhioh hold that GUIiaaorporated city or town may be legally embraoed within the territory designated within whioh a stock law would apply, and that the freeholders within the inaorporated aity ortown may vote at the stock law election. Aooordingly, you are advised that the freeholders within the inoorporatsd oity of Lexington, the subjeat city of your request, should Honorable M. F. Kieke, F'age6 O-2502 be permitted to vote in a stock law election under Article 6954, such city being embraced within the desoription of the sub-division of the oounty within rhiah the stock law would apply, It thereupon benomea umneaessary for us to disouss your seoond question, Very truly yours ATTORNEY GEEML OF TEX&S By s/Zollie C. Steakley Zollie C. Steakley Assistant APPROVXD AUG. 2, 1940 s/Grover seller* FIRST ASSISTANT 4TTORNEY GEhSRAL Approved Opinion Committee By EWE3Chairman