**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS**

**AUSTIN**

**xr. Bert**  **Ford** Uquor Control Board Austin, Texae

Dear Sir:
Opinion **No.**

Re: that al

Charter of the oitp &

a, b an& c, vfaa~enaoted
e of,Teras,at the Regular $, being Eouse RI11 x0. 368, peoial Laws of that S888iOlL

b and 620 of the CharterbZ the

here srlrltuous,

vinous or malt redlcated bitters oapable of proxicatlon,are sold or kept for sale, ehall be locatedwithin the followingdescribed territory in said olty, or upon the following lots or blooks in said aity, to-wit: (here follow metes and bounds delineating lines and area 8hoKn by the red line on the n;ap attaohed toNr. Bert Ford, Kay l.3, 1939, Page 2

this letter.)

“62b. That at no other plao8 or plaoes Mthin the oorporate limit8 of said city of Galveston,exoept as named In the foregoing seotion,shall spirituous,Yinous and malt liquors or medloated bitter8 capable of pro,- ducing lntoxicatioti, be 8Old or kept for sale. Provided,hwever, that this cot 8hall not be
so oonstrueda8 to prohibit drug stores from sellingor keepingfor sale aplrituous, vinous,
or malt liquors,or medicated bitters capable of produoing lntoxioation,for medicinalpurposes upon the written presoriptlonot a regularly lioensed and practicingphysician.

**“ 620.**  That any violationOf the proYision8 of this act shall be punishedby a fine at not leas than fifty nor more than one hundred dollars, and each sale of such liquor8 or blttere, **and** each day that suoh liquors or bitter8 are **kept** for sale, in violation of the provisionsof this aot shall oonstitutea separate ofrense."

We are informedby the Liquor Control Board that this arot

was approved and beoame etfeotiveYaroh 22, 1909, and that there hat never been a vote of **the** people of the olty of Galvestonon Seotion 62 of it8 charter.

On lay 24, 1919, Section 20 of Artiole 16 of the state Constitution was amended to read a8 follow8;

T5eotlon20(a) The manufaoture,sale, barter and exchange in the state of Texae, **0r** spirituous,vlnoua or malt liquors or medicatedbitters oapable of producing intoxication, 'or

any other intoxicantswhatever except for medicinal,meohanlcal, seientifioor saoramental

purposes, are each and all hreby prohfiited.

Vhe Legislatureshall enaot laws to enforce this seotion.

. m(b) Until the legislature shall prescribe other or differentregulations on the subjeot; the sale of spirituous,vlnous or malt liqUor8,
or medloatedbitters, capable of producing intoxloation, or any other intoxicantwhatever, forMr. Bert Ford, May 15, 1959, Page 3

for medlolnalpurposse shall be made only In case8 of actual eloknessand then only upoii the presoriptlonof a regular praotlslng physician, subjcot to the regulations applicableto sale8 under preeorlptlonaIn prohibited territoryby virtue of Artlole 598, Chapter 7, Title 11 of the Penal Code of the Stat8 0r Texas,
"(0) This amendment is self-operative and until the Legislature shallpresoribe other or alrrerentpenalties,any person acting for him&V or In behalf,ofanother,
or In behalf of any partnership,oorporatlon
or association of persoa8,who shall, after the adoption of this amendmentviolate any pzrt of this oonstltutional provision ehall be deemed guilty 0r a felony, **aa** shail, upon oonvlotlonIn a pro8eoutlon.oommeno8d,carried on and concluded In the manner prescribed by law In case8 of felonies,be pIM8hed by confinement In the penitentiaryfor a period Of time not 18SS than one year nor more than five yearswithout the benefit of any law providing for suspended aentenoe. And the di8trlOt oourtaandthe julgee thereof,under their equitypowers, shall haPe the authority to Issue,upon suit of the AttorneyGeneral, lajunotlonaagainst lnfraotlopls er threatened lnfraotlonaof any part of this oonstitutlonal prwl8Ion.
*(a) Without affeOtlng the provision8 herein, intoxicatingliquors are deolaredto be aubjeot to the general polioe power of the state; and the Legislature shall have the power to pass any additionalprohibitory 'i laws, or laws In said thereof,whloh It may deem advisable.
"(e) Liability for violating any liquor laws In foroe at the time of the adoption of-- .-

?!I-. Bert Ford, Vay 15, 1939, Page 4

this amendmentshall not be affectedby this amendment,and all renedles, ~1~11 and orimlnal,Bar such violations shall be preserved.*

No looal option electionhas ever been hold In the city of Galvestonunder the provisions of Feetlon 20, Jztlcle 16 of the **State** Constitutionas It existedprior to !?ay 24, 1919, or hs has existed subsequent to Awust 24, 1935, or under any acts of the Leglslabre passed pursuanct IXJ said Section 20, &rtlcle 16 of the Constitution.

Prlcr to Yay 24, 1919, Section 20 of Article 16 of the Conetltutlono? Texas, prOVidad for the determination by loce~l option,by vote of the people In counties, justice'sprecinctsor lnoorporatedtovms or oltles within the atate, a8 to whether or not liquor could be sold therein, and pursuant to such article a8 It then existed, a number of loco1 option statuteshe& been pansed by the Legislature.from tl:e tc time, and numerous counties,Justice'sprecincts, clt&es and towns In the state had voted tF:erflelvea *!dry” pursuant tc .cuohstatutes and such amendment.

On August 24, 1935, tection 20 of Article 16 of the state Conctltutlon was further axanded to read a8 folloM~s:
"(a) The oyen saloon.shallbe and Is hereby prohibited. The L.egls?ature hhall have the power, and it shall he Its duty to define the term 'open saloon1 and enact **law8** against such.

"bubJeotto the foreqoinz, the Leelalature shall have the paver to re,@ate the manufacture,sale, possessionand transportation of i~toxloatingliquors, lnclW.1~ the ~~~,eroy,oae~~~~i~~hlaqe~~~~ mnopol~ on the

“(b) The legislature shall enact a law
or lws whereby the qualifiedvoters of any county, justice'sprecinct or lncor~oratedt'r. Eert Ford, ray 15, 1939, Pace 6

town or olty,may, by a mUjorIty vote of those voting, determinefrom time to time whether the sale d Intoxicatingliquors for beveragepurposes shallbe prohibited
or legalizedvlthln ‘ the prescribed llmltsl and such laws shall oontainprovisionsBar votlly:

on the sale cf lntoxloatlnl: llq.uors of vl:rloue

types tad various alcohollo content.
*(c) In all counties, justloetsprocincts or incorporated towns or cities wherein the sale of Intoxicatingliquors hod been **pohihlteb by**  **local** option electlons held under the laws **of** the **state of**  Texas and in fo-ce at the tlmo of the takr lny: effect of Sectlcn, 20, Article 16 of the Constitutionof Texas, It shall continue to be unlawful to manufacture,ooll, barter
or exchange ln'cny such county, justloets preolnct or incorporatedt0v.n or city, any splrltuou8,vinrua or malt liquors or **rieai** ceted bitter **cryable** of produolng lntoxloatlon or any ether intoxioants whatsoever, for beverage Furposes,unlessand until a majority of the qualifiedvoters In such county or ?olltloal subf:lvlodon thereof votIn6 In an elcctlonheld for such purpose &all determia such to be lawful:provided that tkle oubcectlonshall not prohibit the sale cf alcoholicbeveragesoontainlng not more than 3.J per cent alcohol by weight in cities, ocuntie8 or yolltlcal subdivisions thereof In which the qualifiedvoters have voted to legalize such sale under the provlsions of Chapter 116, Lots of the !?ecular Session of the 45rd ie~islature.W

It must be noted that such oon~tltutlonalamenament specificallyproviCes that the sale of lntoxlcatln **llouors** shall continue to be unlawful in 09rtainareas' f n th6 state, definedand describedas bein!: all oountles,?~'I-. ?ert Ford, .)-ny

15, 1939, Faze 6

justice'sprecincts or Incorporatedtowns or cIt&es wherein the sale of Intoxlcatln~liquors has been prohibitedby local option electionheld under the laws of the otate of Texas and In rorce at the time cf the taklnc effeat of FeatIon 20 of hrtlcle 16 o? the Constitutionmtil, a mojorlty of the qualified
**YOter8** of cuch political subdivIsIonshould vote otherIdBe.

The **Bane prOYi8iOn**  Wfm carried id.0 the **Texas** Tlquor Control Act which beoame effective E.eytezzber 1, 1937., See E.ectIon Z3 of krtlcle 666, Revleed~CIvIl%atutes.
Courtsshaveheld tkt this lant$uaee only deSines and Identifiescertain "dry" area8 In the state and doet not re-enact or revive In any manner the loaal option laws existingprior to the prohibitioncmendnent of 1919, since such pre-existlnglocal optIon laws could note heve been revivedby mere reference to their title, but cculd only have been revivedby re-emmtnent end rerublicatlonof the lansuaee.

i:e cl_uote frorr the case of Teal vs. State, 90 S' (2nd) 651, as follows:

"';ho local option laws exlstlngprior to the 1919 mendmeat were not attested to be revived'bpthe amendmentof sectlan 20,. hrt. 16, a=. cdoy.ted

Ausst 24, 1935. This arandnient defined r:hat

area8would remain dry and what areas would be wet after the ndoption of the 1935 arzendment. In adopting this amndmen?., the people Bad the rI?ht to Bay what temitory would remin dry and what territory Vould beconewet. This they did by.paragaph (0) of the mendnent of Eection 20, Art. 16, adopted'

;run,ust 2.4, 1935, es follows:
"*(c) In all counties, jurtice's precinct8 or IncorporatedtOWI or cities wherein the sale of intoxicating lIquor8 had been prohibited~ by local option eleotionsheld under theVs. Gert Ford, L'ay15, 1939, Page 7

laws of the state of Texas and In force at the time of the taking effect of section ZB, Article XYI of tb8 Constitutionof ?exas, It shell oontlnue to be unlawful to mnufacture, sell, barter or exchange In any such county, juetIce*s**FreCinCt** or Incorporatedtown or city, any spirituous,vinous or rialt liquors
or lcediceted

bitters capable of producing IntoxIoatIonor any other Intoxicantswhatsoever,for beverage purro8e8, unleso and until a majority of the qualifiedvoters In such county or political subdivisionthereof Yotinlr, an electionheld for suoh purpose shell determine suoh to be lavXul.*

"ThIS languagedefined the dry territory and merely referred to the lax under which It
was **mde** dry territory for ti.e purpose of definlv, and Identifyingeucb territory, Eectlon 23 of Article 1 of Home El11 77 c. 467, Acta of the 2nd Glled Eession, 44th fegislature, enacted In aid of the abcve q&ted ar-enCr!ent to the Constltutlon,also defines a ‘dry area' and
a *wet area’ In the sme lzanner cs doe: the aforementioned con:t.itutioaal emenmient,and said St&Xtute forbids the sale or possession of liquors In excess of 4 per cent alcohol by weight In any ‘dry area’ as that tam is dcflned In the act.*

It will be neen that there has been no re-enactment of any pre-existinglocel option 1Sv:S and likewisethere has been no se-enactment**of** any pre-existingcharter provisions or ordinancesprior to 1919.

Area8 *dry" by local option electionprior to 1919 v:ere

again "dry" after the amendment of 1935 becau&e the people of this state had 80 voted by definition In the constitutionalamendment of 1935, and not because of any re-enactmentof such laws. Constitutional amendrcent\s z.r. Sert Ford, Kay 15, 1939, rage 0

or 1935 i8 entirely8Ilent as to the chertorprovlsions or spoclal **aOt8** of the l.e&Blature,such a8 Section 62 of the Charter of the city of Grlvetton.

On December 30, 1912, Sectirn 5 of Article 11 of tho state Constitution, known (1s

the "I:oT;e

Kulet* amendment,WRS adopted and thereafter,considerable legIslatIon~08 enactedby the l.egislat.ure from time to time, under authority of such emendmmt, vhlch leglslation I8 Eet forth In Ckppter 13 of Title 28 of the ~Zcvlsed

Civil statutes. The city of Gelverton hao
never re-enactedor re-adopted Its charteras a whole under the *lIome

rule* law8, nor has It ever z-c-adopted
or se-enacted .Sectlon 62 .-rits charter thereunder.
Judqe Yattlmore,In the ease of Cone vs. State, 236 W 486, used the tollowinr: lan::uaEe:

l'on ?Tay St, 1939, by populnr vote, **f:eC** tion 20, Article 16, of our State Constitution,
ws amended, i:n1

the yroclemationof' the :'overnor puttinz EZK;(:

into effect war of dcte July 3, 1919. By the tei%s of said amendmentformer aectlon 20 wee struck out of t.he Conztltution and relzenled.Said sectlcn vza the one which gave **the** legislaturepaver to enact law submIttInS to th6 people of a Flven territoryfor their detornlnetionthe vestion e8 to the sale ~-r~~l.~~~~~...intoricatI~ liquorvithln **8UCtA** territc-ry.Y'be

repeal of seld Sectinn 20 necessarilycarriedwith it the reTeel of all law deFendin fw their validitywon the exerEIse of the power conferredby Bald section. \;hen amended section 20 became effective,the former section 20 died, and v:ith it elso diod Its descendantsand dependents, e::cept insofar
as the savin: clause of said amendnd section 20 kept the provisionsof such laws alive for the purpose of prosecutingoffenses committedthereunder prior to the adoption of the amendment.v

Also the cases of Sparks **vs.** St&e, 230 SY;649 and.~.IllIam~

vs. State, 23S SK.640 are to the 8ame effect, holding that whercln conviction fpr posi3ession of equipment!.!r. Bert Ford,Yay 15, 1939, Page 9

for the nanufoc~ure of intoxic+ng

_ . . . _ _ llqucr,unlawful
unaer statutes in exiutenceprior to the odc~tion of the constitution61 amendment in 1919 were reversed by a holdin; thnt, such statutehr:d

boon repealedby such amendment.

?:.e do not thir& thct it can be ccntended that
an ect of the Legislatureamending; the chbrtcr cf a municipal oorporetlonhas aAny treater force or dignity
or Is entitled to any further effectiveness'tb~n a general act of the Iegfslaturscovorin3 6-nd applyfng to the entire state. If such tot or statutexas repealed by the above set forth constitutionalamendment5' of 1919, as is held by the cbsen above cited, then the ronner~mustalso ran.

.Tustice

Dey of the SuIx'eme Court of the United : States, in the ease of United States vs. Iuginovioh, 41 Dup. Ct. rep. 551, holdlrg certainprovisionsof preexistin? lfquor laws of the Unitad Stated, r6pcoledby the 16th emendrent., snd the acts of ConrJress rassed prsuant thereto, says in port es follows:

w1t is, cl"

course, Settled that repeals by implicationere not favored. It is equallywell settled that a latter statube reI?e?ls

fomzer ones when clearly inconsistentwith the ecrlier enactments.q

Ke think thct Eectlnn 62 of the Charter of the city or ~Glvestonas rtbove quoted is clearly inconsistent. and in conflictwith the amendmentsof the ~onctitution of the St&t8 of T6xc.s adosted in 1919.

"he fremers of the prohibition~enOc.entto the conttltutionedc~ted in 1919, evidentlyrealizedend **be** lieved thct such emendmentvould have the eifect of tie-. diat8ly re;?c&ling end nullifying:

pre-8i:iSting

p~rohibitory, .regulatoryand penal laws on the subject of liquor,because they felt it necoesnry to and did incorporateinto such amendment its own penal provisionsand a3 xi11 be s:en from the cases before oited, this vieu- of the amendment wes also t&en by our Court of Criminal &peals, when the matter finclly came before them for decision.Mr. Bert Ford, Pay l5, 1939, Page PO

**After** the adoption or the amendment

__ - br 193. and pursuant to the authority Oontalned in Ssctlon jb] 'thereof, the Leqlsbture haa re-emoted new looal option laws whioh hi.ve **been** noted Upon b: various oountles, justicels precinctsand incorporatedtowns and olties In the stote, but no such aotion under the authority of said saction or any le&islationpassed thereunderhas b89n taken by the city cf Galveston or in CIlvestonCounty.

It can be seed that this Section does not authorizethe pessaye of any statute grantin to cor%" porated titles the power to zone themsalvesfor t e:aale of liquor, but ninoe said secti.-n and the law8 passed thereuuderdo not prohibit cities from doing so, aities under the Vom !:ule" amendmenthave the inherentpower, in accordancewith the regulations laid down In suoh "Home Wle" law, to so zone themelves, but they only heve such power as a result of the "Bome Eu&e* amendment end to be exercised in accordance therewiLhsnd this has
never been done in the city of Galveston,end is in no sense true of Cectlon **62** of the charter.

fn the cases of Pitre VE. Raker,,,111 ijX(Znd). **360,** and Trltico et al VS. Texas f.iquor e.:ntrol

hoard, recently decidedby the Eeauniont Court of Civil Appeals
on Perch le, 1939,an attack<.was being made upon the charteramendment of the olty of Port Cxthur adopted Xovembar 4, 1936, pursuanbe to and in full compliance eith the "home RulcW statute or the state of Texas,which **said** amendment defines certain areas in the city or Port Arthurwhere intoxicetiw liquor could end could not be sold lnaacoordance with the state laws upon the general subJect of such business.

These cases hold thet the poryer to regulate the sale of lntoricatirqliquors to the extent that it is 1aMul under the state laws is inherent in "!iome Rule" cities unltss d8fIiRd them by the conetitutianand general laws or the stete, and that such rs~letlon Is valid unless In confliotwith such goneral laws or the Gonstltution, end it having been conceded that such charter amendment in Port Arthurwas adopted in compliancewith the ?%me Rulea law, the only ocncern of the court via8to determine whether or not such parerwas denfed such city by the.

**Yr.** Pert Ford, ?,'aay 15, 1939, Page 11

present s8Ction 20, Article 16 of the Constitutionor the liquor Control Act passed pursuant thereto, end whether such **cherter** emndmnt was in conflictwith the Stat8 laws on the eubject. Doth of these questions wr8 answered In the negative,

You are respecttullyadvised that it Is the opinion of this departc:ent that 2ection 20, Article 16 of the Constitutionas amended In 1919 has the errect Cc ropeollngell existing legislation whether it be in the forr:

of loco1 option statutes or charter arsendnent statutes, that upon the adoption or this mendr,ent on &!ey24, 1919, .Ssotion62 of the city of C7alvestonbecme seP8al8dand 0r no further rorce or efrect.

Trustin5 that the fOr8gOinq answers ycur inquiry, we remain**ad811** 'i;illil3XES im3istant