## ORNEY GENERAL OF TEXAS

Wehave given careful consideration to the above described question presented to us in your letter of April 1.8.

‘We wish to thank you for the excellent citation of authorities relating to this question submitted in your letter, together with your discussion thereof.

Theforthcoming election for United States Senator to fill the vacancy Fathat office is provided for by the following provision con’tained in the 17th Amendmentto the Federal Constitutionr

When vacancies happen in the representation of anyState in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

. . .I1 This amendmentwas adopted in 1913 and in conformity therewith the Legislature of Texas at the first called session of the sameyear enacted alawwhich nowappears as Chapter 12, of Title 30, kticles 3086-3099, inclusive, Revised Civil Statutes of Texas vacancies in i 1925, which provides the procedure for filling

he office of the United States Senator from Texas. Article 3097 contained in Chapter 11, Title 50, Revised Civil Statutes of Texas, 192.5, describes the type of election to be held onJune 28, 1941, as a “special” election in the followings language:

“Bnyperson desiring to have his nameappear upon the official ballot as a candidate for United States

‘Senator at any special election held for the purpose of filling avacancy in the United States Senate, when no party primary is held, maydo so by presenting his application to the Secretary of State which shall set forth:

. . . .‘IHon. TomSeay, page 2 (O-3438)

Thegeneral rules governing the conduct of all elections were enacted bystatute passed by the first called session in 1905 commonlyreferred to as the Terre11 Election Law, which law as subsequently amendedfrom time to time is nowembodied in Title 50, Articles 2923 et seq., Revised Civil Statutes, 192.5. TheTexas SupremeCourt in Beans P. Waples, 108 Texas 140, 187 S.W. 191, held that the Ter,ell Election Lawof 1905 andthe statute providing for the election of Senators enacted in 1913, which was compiled in 1925 as Articles 3086- 3099, inclusive, should be construed together. .In this case, the court speaking through MrOJustice Hawkins, at p. 148, with reference to these statutes, declared:

“Because those two statutes deal with the one general subject of party primaries for the makingof party nominations, and are3 therefore, essentially cognate, andbecause, obviously, the latter was intended to supplement the former, thereby completing one general scheme of legislation upon aparticular subject, andbecause the latter statute presents strong andconclusive intrinsic evidence of a legislative purpose andintent that, in so far as their phraseology will permit, the two statutes are to be treated, construed, applied andenforced as one, we regard it as too plain for argument that, accordingly, said two statutes should be read and construed together. Certainly they are statutes in wteria, andin their interpretation the settled rules of statutory construction which are applicable in such instances should prevail.” Thecourt in the Beane v. Waples case reached this conclusion in part upon Section 3 of the 1913 Act, which appears as Article 3088, Revised Civil Statutes, 1925, andreads as fol1OWSl

“Art. 3088. Every law regulating or in anymanner governing elections or the holding of primaries in this State shall be held to apply to each election orenomination of a candidate for aUnited States Senator so long as they are not in conflict with the Constitution of the United States or of any law of statute enacted by the Congress of the United States regnlating the election of United States Senators or the provisions of this law, Thereturns from any election held for United States Senator shall be made, the result ascertained and declared, a certificate of election issued, as provided for the election of representatives in Congress, by this title.”Hon. TomSeay, page 3 (O-3438)

In 1925 the Terre11 Election law andthe Senatorial Election Lawwere both codified in Title 50, R.C.S., 1925, which provides anadditional reason whythese twolaws should be construed together andtheir various provisions reconciled.

Theopinions in Wallis v. Williams, by the Supreme Court, 101 Tex. 395, 108 S.W. 153, andSchers v. Telfer by the Austin Court of Civil Appeals, 74 S.W. (26) 327, annouhce certain criteria to distinguish between “general” and “special” elections. Webelieve, however, that these criteria have no application in the present instance where the Legislature has in Article 3097, supra, expressly declared anelection of the type here under consideration to be a special election.

Youspecifically ask our opinion as to the application of the question of whether this is a special or a general election to bticle 2938, Revised Civil Statutes, 1925, andthe provisions of the Texas Liquor Control Act relating to the sale of liquor andbeer on election day.

Article 2937, R.C.S. prescribes that in voting precincts having less than one hundred qualified voters, there shall be two election judges andtwo clerks. Article 2938 provides for four election judges andfour clerks in precincts having one huhdred or more qualified voters, but contains the following exception: Vrovided, that in all elections held under the provisions of this title, other than general elections, local option elections andprimary elections, the officers to be appointed by the commissioners court to hold said elections shall be a presiding judge, andassistant judge andtwo clerks,

. . . ‘a Since the election under consideration cannot be classified as ageneral election, local option election, or primary election, webelieve that this proviso applies in the instant case so that it is our opinion that only two election judges andtwo clerks are required in all precincts to conduct the forthcoming senatorial elect ion.

TheTexas Liquqr Control Act regulates the sale of liquor andbeer on election day. Section 25 of Article 666, Penal Code of Texas, 1925, provides in part:

“It shall be unlawful for anyperson to sell or deliver any liquor:

“(a)

. . .Hon. TomSeay, page 4 (O-3438)

“(b) Onany general primary or general election daybetween the hours of seven o ’clock a.m. and eight o ’clock p.m.
. . .” Section lob of Article 667, Penal Code of Texas, 1925, provides:

“It shall be unlawful for anyperson to makeany sale of beer anywhere in this state on the day of any general primary election or general election held in this state between the hours of seven a.m. and eight p.m. on the day

. . .* Since both of these provisions prohibiting the sale of liquor or beer on election days refer specifically to “general” elections, it is our opinion that neither of themapply to the forthcoming election for United States Senator since the Legislature has expressly declared it to be a l’speciali’ election.

Webelieve that the case cited in your letter, Estes v. State, 48Arizona 21, 58Pacific (2) 753, is persuasive of the conclusion wehave reached herein. In that case, the SupremeCourt of Arizona held that an election to fill the vacancy occuring in the office of State Representative to the United States Congress was a “special election” to the extent that it wasnot “a regular general election” within the meaning of the Constitutional provision providing for the submission of referendum questions to the voters. Welikewise concur in the suggestion madein your letter that an election might be “general” in one sense, and “special” in another sense, or as applied to a different statute. Consequently, we are limiting this opinion to the precise questions asked byyou, relating to Article 2938 Revised Civil Statutes 1925 and %;lon 25 of gPticle 666 andSection lob of iLrticle 6b7, PeAal Code of Texas. APPROVED

MAY21, 1941 Yours very truly /s/ Grover Sellers FIRSTASSIST&?TATTORNNY GENERAL ATTORNEY GZNERAL

OFTEXAS APPROVED:

OPINIONCOMMITTRR By /s/ Walter R. Koch BY RLK,CHAIRM4N Walter R. Koch, Assistant WK:mp rwb