HonorableM. F. Kieke

countyxttorney Lee county Giddings, Texas

Dear Sir: Opinion No. O-2502 Ret: ,hrethe inhabitantsof an incorporated oity permitted to vote in a stook law eleotion under Article 6954, R. C.S., such city being inoluded 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 electionunder Article 6954, Revised Civil Statutes of Texas, an inoorporated city is includednithin the descriptionof the sub-division in which the election is to Ix held. You ask if the inhabitantsof suoh oity are permittedto vote in the election, and if not, would the city nevertheless be effeoted by and includedwithin such sub-division.

Article 6954 provides in part as follows':

"Vpon the written petition of one hundred (100) freeholders of any of the following counties:

. . . Lee.

. . . or upon the petition of fifty (50) freeholdersof any such subdivisionof a county as may be desoribed in the petition, and defined by the CommissionersCourt 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 subdivision of a county 8s may be desoribed in the petition and definedby the CommissionersCourt on the day named in the order for the purpose of enabling the freeholder6 of such oounty or subdivisionof a oounty as may be described in the petition an&defined by the CommissionersCourt to determinewhether horses,mules, jaoks, jennets, and aattle shall be permitted to run at large in such county or such sub-divisionof a oounty as may be desoribed in the petition and defined by the ConmissionersCourt."

In the case of Connervs. Skinner, et al, 156 SW 567 (Court of CivilAppeals). it is saidtHonorable M. F. Kieke, Page 2 O-2502

n

.....Tt iS SUffiOientanswer to Say the record nowhere discloses that any general stock lam is in force in Eastland County, and therefore, if the statutes citedwere applicable to that county, some of which are not, yetthere is nothing, as indicated, to show that the people of that countyhave ever availed themselvesof 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.consideringthe question as to whether an incorporated city or town may be embracedwithin a designated derritorywithin which the stock laws would apply, the Court of CriminalAppeals in the case of Eeuvarvs.,State, 163 sll58, declared:

"None of the statutory enactmentsproviding for the adoptionbyvote of either of said stock laws excluded the incorporatedtowns or oities from being embraced within the territory designatedwithin which such stock law should apply.

.... 80 that we think it is clear that the petition for the election in a certainpart of Lavaca County designatedby 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 incorporatedtowns within its boundaries1 and that the freeholder6within said incorporatedtown could vote at such election the same as a freeholdervoter in any part of the territory....,"

To the same effect is the case of BishopvsO State, 167 .S.W 363, from which we quote as follows:

"Said election district, as No. 6, thereforehad embraced the city of Weimer. Weimer, long before then, had been incorporatedunder the general incorporatingact, authorizing toan6 of one thousand inhabitantsor 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 incorporatedtams. It had passed no ordinances,and ,hadnone regulating or prohibiting stock running at large.... He contends, first, that Rimer oouldnot be included in the territory for such election because it was incorporated.... This court in Neuvar vss State, 163 SW 58, expresslydecided appellant's first ground against him. We have no doubt of the oorreotnessof that decision, and thatWeimer could be, as it wasp embraced in said distriot eight...."

The rule announced in these cases by the Court of CriminalAppeals cf Texaswas recognized and its correctnessre-affi~rmed in the.. _- -

HonorableM. 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.....assertsthat the eleationwas void because in a sub-divisionof Jefferson Countywhioh included Port Arthur, an incorporated city,nhioh had theretofore adopted the stook law, and henoe couldnot be lawfully included in said election. 00.01) We do not deem it neaessary to go into a lengthy discussion of these cases, butwill 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'~88 held valid, although it includedwithin the bounds of the sub-division in whiah the electionwas held three incorporatedtowns, In BishopVS. State,...,.thequestion ,....wasagain 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 CriminalAppeals;

"This oourt is called upon to determinewhether, upon a proper constructionof the statute quoted, it is legal to include in the districtwherein the eleotionwas ordered the territory embracedwithin the inaorporatedoity of Port Arthur..... It is true that the people within a oity are not dependentupon the eleation, but the aitymight,by ordinance, prohibit stock from running at largewithin the corporate limits. Thiswas 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.

.....Nothingin the languageused can, in the opinion of the writer, imply any intention or direction that the people of the incorporatedoitieswithin the countiesmight not participate, and this as above state, though such citiesmight, by ordinances,protect themselves against stock running at largewithin their boundaries. The languageused 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 illustrativeof the legislative intent in its use of practicallythe same languagewith referenae to sub-divisionsof 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 onHonorableM. 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 ingranting 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 invadedby the ettempt of the commissioners* court of Dallas oounty to include the city of Dallaswithin 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 citywas supreme, end an eleotion ordered by the Commissioners' oourt of the aounty to prohibit stock running at large in the oountywould not affect the city of Dallas, The court reasoned that the general lam appliaableto every countywas at all times subject to change and modification "by special laws acting upon the same subject in particular countiesor special localities,though suoh ohangewill 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 caseswere 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 oasesmey be distinguishedupon the prooosition that they involved an act of the Legislaturewhich 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 JudgeMorrow in the English ease, the cases are "somewhat oonfusing."

76s were 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 questionwould be controlledby the authority of the casesuhioh hold that GUIiaaorporated city or town may be legally embraoedwithin the territory designatedwithin **whioh** a stock lawwould apply, and that the freeholderswithin the inaorporated aity ortownmay vote at the stock law election.

Aooordingly,you are advised that the freeholderswithin the inoorporatsd oity of Lexington, the subjeat city of your request, shouldHonorableM. F. Kieke, F'age6 O-2502

be permitted to vote in a stock law electionunder Article 6954, such citybeing embracedwithin the desoription of the sub-divisionof the oountywithin 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 EWE3 Chairman