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Hon. Andrew P. Johnson OpinionNO, ~~387

CountyAttorney Dimmit County Re: Authority of Commissioners1Court Carrizo Springs, Texas to order or refuse to order a local option election, Dear Mr. Johnson:

Receipt is acknowledged of your request for our opinion upon the two matters hereinafter set out, Your opinionrequest has been supplementedwith some additional facts which we thought it necessary for us to have in order to answer your questions,

We wish to thankyou for your able briefwhich accompaniedyour opinion request.

You state that Dimmit County,by a local option election held in 1935, voted to prohibit the sale of all intoxicatingalcoholic beverages in said county. You further inform us that no county-wide electionhas since been held which authorizes the sale of intoxicatingalcoholic liquors in Dimmit County, You state that the City of Asherton is incorporatedand lieswholly within the boundaries of Dimmit County; that the requisitenumber of qualifiedvoters residing in said City ofAsherton have presented to the Commissioners'Court of Dimmit County a petitionasking that a local option electionbe held in said City of Asherton to determine whether the sale of alcoholic liquorswill be authorized in the corporate limits of said city,

You desire the answer to two questions, and for the sake of brevity we shall condense each question, and transpose the order inwhich they are set out in your opinion request, Question No, 2: In substance,your first inquiry is whether the electionmentioned, if held, would be a legal election,
Our answer to the question is that such electionwould not be a legal election if held, Such election, if held and if the majority of votes cast should be in favor of makingwsherton "wetn,would, in law have no effect on the present "dry" status of the City of Asher on. i In our opinion become "dry" by reason of a county-wide f Dimmit County,having ocal option election in 1935, Dimmit County and thewhole of it will remain "dry" until itHan, Andrew P, Johnson, page 2 (WW-387)

is otherwise determinedby a county-wideelection inwhich the majority of thevotes cast and countedare for a change in the 'ldryrt status of the county.
In the case of JacksonvQ State, 118 S,W,2d 313, OUT Court of CriminalAppeals, speaking through Judge Graves, in part said:

This been N0 0 0 intoxicating liquors, once having been voted out, can only be voted back by a majority vote of the identical territorv that had voted such liquors out, To this effect is our holding in Aaron v0 State, 34 Tex.Cr.R, 103, 29 SOW, 267." (Theadded emphasis is ours.) decisionwas handed down in the year 1938 and has never overruled, The Dallas Court of CivilAppeals, in the case of Goodie Goodie Sandwich, Inc..vs State 138 S,W,2d 906, speaking through Chief Justice Bond, in pare said:

"It has long been recognizedby the courts of this State that,when the voters of a county justiceprecinct, town or cityhave, by means o h an election properlyheld, prohibited the sale of intoxicating liquors in such precinct or other political subdivision,it shall thus be unlawful, until the c+o'cers

of such area shalldetermine otherwise by an election for that purpose. Intoxicating liquor, once voted out, can only be legalized by a majority vote of the territory thathad voted it out, A change or abolition of the precinct or subdivisionboundarieswould not alter the status of the territory in relation to the sale of liauors, Houchinsv0 Plainos. 110 Tex. b-13,110 S,W,2d 549;Hill 'vOHowth, 101-Tex. 620 111 S,W, 649; Jackson v, State, 135'Tex.Cr. R, 140, 1-18S,W,2d 3130ts" This decisionwas handed down in theyear 1940. Thewrit of error tables show that error was dismissed by our Supreme Court with the notation that the decisionwas correct, and prior to the decision in the last mentioned case9 the Supreme Court of Texas, in the case of Houchins v0 Plainos. et al,, 110 S,W.2d 5%9, speaking throughMr, Justice Critz, said in part:

'*Ofcourse9any such area has the right to become wet by sovoting at an election legally- 1

Hon. Andrew P, Johnson,page 3 (WW-387)

ordered and held for that purposeunder present local option statutes, In this connection however, we again note THAT SUCH ELECTION MUS!C BE HELD IN THE SAMEAREA THAT ORIGINALLYVOTED DRY."
It is therefore our opinion that insomuchas Dimmit County became '*dry" by reason of a county-wide local option election, such county can only become "wet? by a county-wide election. No incorporatedcity of or in said Dimmit County can become '*wetrl

by virtue of any local option election in such incorporated city,

Subsequent to the first decision of the appellate courtsholding as above stated e the Legislaturehas on more than one occasion amended the statu e, using in the amendment substantially the same language as was in the statutewhen it was so interpretedby the appellate court, The Legisla,ture is presumed to have known the constructionplaced upon this statute by the appellate courts,and that the same languagewill be given the same constructionby the appellate courts as was given the lan uage sew, 80% previous to the amendments,

21 Ann,Cas. 6561, (Lewisv. State, 127 ihe There exists also the presumption that if courts0holdings had been at variance from the intent of the Legislature,a changewould have been made in the law by the Legislature. (RepublicInsuranceCo, v. Poole, (Civ. App.) 257 S,W, 624, error refused,)

The learned authors of the authoritative Texas Jurisprudenceview this question as we view it, See Tex.Jur.Supp., Vol. 6, Set, 42, on page 3999 where :it.issaid:

"Intoxicatingliquor, oncehaving been voted out, can only be voted back by a majority vote of the identical territorywhich voted liquor out, y D ,,I1 So long as the County of Dimmit inwhich Asherton is located is dry, no local option election in the City of Asherton can change the "dry"' status ofAshe'r'ton. Question No, 1: The substance of the first question you propound is whether, under the factual situation reflected in your opinion request, it is now mandatory on the Commissioners'Court of Dimmit County to order and have held a local option electionin the City of Asherton on the issue ofwhether or not the sale of alcoholic liquorswill be legalized in said City of Asherton, a petition proper in form having been presented to said Commissioners" Court by the requisite number of qualifiedvotersHon. Andrew P. Johnson,page 4 @JW-387)

residing in the City of Asherton asking that such election be held.
Our answer to this QuestionNo. 1 is that,under the fact situationpresented by you to us, it is neithermandatory nor proper that the CommissionerssCourt order such election held. Asherton, being an incorporated city in the County of Dimmit,which countybecame "dry" by virtue of a county-wide election, itwould be futile and illegal to hold such election in the City ofAsherton as the result of such electionwould effect nothing whatever.

We are not unmindful of the language commanding the holding of local option elections upon the presentationof a proper petition, as set 

### out inArticle 666-32, Vernon'sAnnotated Penal Code, but the "manifestreason and obviouspurpose" of the statute justmentionedwas to enable the people residing in a political subdivision to have the power to determinewhether intoxicating liquor could be legally soldwithin its limits by holding a local option election so as to determine such question. Itwas not the purpose of the above mentioned statute to demand or require the holding of a useless election by a political subdivisionwhich had no power to determine any question by such election, To so hold would be to sacrifice the manifest reason and obvious purpose of the law to a literal interpretation of the words used to express the purpose. This the law does not demand nor countenance, 1109, error ref,), (SeeKirk v. Morley Bros., 127 S.W. (Andwe have not exhausted the authorities.)
In all cases the legislative intention controls the language used by the Legislature,and in the construction of a statute confinement to the literalmeaning of thewords used is not necessary where the strict literalmeaning of thewords would be at variancewith the intent expressed by the Legislature. Weber v Ro an, 94 Tex, 62, 68, 5% S,W. 1016, 55 S.W. 559, 57mshev v0 Galveston,H, & H,R.Co., 16 Tex. 516; Harris Countvv. Smith, (Civ,App,%l87S,W. 701.

It has further been held thatwords shouldnot be given their literal meaningwhen suchwould thwart the main purpose of the Legislature orwould lead to absurdity. G' m 108 Tex, 167, 188 S.W, 1037; Edwards v* Morton, 92 Tex. 152, 4b SW, 792; Winder v0 Kinr: (Com.App,)1 S,W.2d 587, affirming 297 S.W, 689; Leslie v. Grifhin, (Civ,App,)23 S,W.2d 535,reversed on other points (Com,App,)25 S,W,2d 820.

We advise that the County Commissioners'Court of Dimmit County is certainlynot required to expend publicmoney for the purpose of holding an illegal election the result of which would effectuate nothing.Hon. Andrew P. Johnson, page 5 W-387)

SUMMARY The local option election inquired about would not be a legal election, if held, and would have no effectupon the presentdry status of the City of Asherton.
It is not mandatory on the Commissioners' Court of Dimmit County to orderand have held the local option election in the City of Asherton which has been petitioned for. Very trulyyours, WILL WILSON Attorney Qmera-iof Texas

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GPB:wb
APPROVED: OPINION COMMITTEE
J. C. Davis, Jr., Chairman Cecil Rotsch Gordon C. Cass Assistant

REVIEWED FOR THEATTORNEY GENERAL
BY: W. V. Geppert