R-445

RNEY 

### GENE

PRICE DANIEL ATTORNEYGENERAL

Honorable Perry County Attorney Travis 6%tnty Austin, 

### Tsrae F EXAS

June 12, 1947

Lr Jones Opfnion No, v-250

R8l Loeal option status of Gammon

Sc?$aol Dlatricrt ~0~ 43 w 00ntaima lin JufstSal?is' Prsolmts NQSp 6 end 0 in Travla Cowatrr Deer MroJonestHonorablePerry L. Jones, Page 2

"OnMarch 25, 1939, in a local option electionJustice PrecinctNo. 5 votedWET, permittingthe sale of all alcoholicbeverages.
"On October 24, 1946, in a local option election,Justice PrecinctNo. 6voted against sale of all alcoholic beverages.
"On November 16, 1946, in a local option election, Justice PrecinctNo. 5, votedWET.
"Youwill note there has notbeen a local option election in the originalCommonSohool DistrictNo. 43, St. Elao and Longview Consolid$efg;;hools since itwas votedDRY on January

In view or this fact and underthe Suireme r!!ourt'e

holding in the case of HOUCHINS VS. PLAINOS,ETAL.,,110 S.W. (2d)549, is the CommonSchool DistrictNo. 43 dry untilan election is held in the exact saae area that originallyvotedDRY? Or, did thatpart of Common School District No. 43 situated in Justice PrecinctNo. 5 become 'wetarea'when Justice PrecinctNo. 5 became 'wetarea'?" We assume throughout this opinion that all elections set forth inyour letterwere held in accordancewith all statutoryand constitutionalprovisions in efiectat the time of the elections,and that such electionswere valid in all respects,

The authority underwhich the 1918 election in CommonSchoolDistrictNo. 43 was heldwas Article XVI, Section 20 of the ConstitutionofTexas as amended in 1891, and as quotedbelow:

"The legislatureshall at its first session enact e lawwhereby the qualifiedvoters of any county, justice'sprecinct,town, city (orsuch subdivisionof'

a countyas may be designatedby the commissionersscourt of said county)may by emajorityvote determine from time to time whether the sale of intoxicatingliquorsshall be prahibited .withFnthe prescribedIfruits." ArticleXVI, Section 20 of the Texas Constitution as adopted in 1891 and as quoted above remainedunchangedun-.

Hmorable Perry L, Jonesp Page 4.Honorable Perry L. Jones, Page 6

the State of Texas and in force at the time of the taking effect of Section 20, Article XVI

. of the Constitution of Texas, it shall oontinue to be unlawful to manufacture, sell, barter or exchange in any such county, justice’s precinct’ or incorporated town or oity, any spirituous vinous or malt liauors or medicated bitters canable of producing -intoxication or any other intoxicants whatsoever, for beverage purposes, unless and until a majority of the.quali.fied voters in such county or .politi&al subdivision thereof votinu in an election held for such ouroose shall determine such to be lawful;. provided that this subsection shall not .prohibit the sale of alcoholic beverages~ containing not more than 3.2 per cent alcohol by weight in cities, counties or- politioal subdivisions thereof in which the qualified voters have voted. to leaallze such sale under the provisions of Chapter 1x6, A&s of the Regular Session of the 43rd Legislature.” (Emphasis added). This constitutional provision is the one nowin effect in this state, and the one,under which the question presented by you must.be decided. The effect of this repeal amendmentis to legalize the sale of intoxicating liquors anywhere in Texas except in those specific areas namedin subsection (c) which hadvoted to prohibit the sale of intoxicating liquors prior to the bakiw effect OSSection 20 of Article XVI. In support of this contention we quote again from the Houchins case, supra:

“By the terms of this amendment, the entire State, as such is again madewet as to all intoxicating liquors; but with certain exceptions and limitations. In effect, this amendmentcontains provisions which make any county, justice’s precinct, or city, or town, dry whioh was dry at the time it became effective. In other words, this amendmentpreserves the status quo as to dry areas as ther existed at the time .it became effective. It-therefore preserved as dry any county, justice’s oreoinct, or city, or town, which was dry when it went into effect.* (Emphasis added. ) Under the maximexpressio unius est exclusio alterius, (the expression of one thing is exclusive of another) , it is oursopinion that, any subdivision not a county, justice’s precinot, or ~a11 inoorporated town or aity at the time it voted “dry” was not preserved as a ndryn area by this section of the Constitution. Weare awareHonorable Perry L. Jones, Page 7

that in the latter part 0r subseotion (0) after the specific enumeration of counties, justice's preancts, and incorporated towns and cities this language fs used: "in such county or politioal subdlvlsionw and woltles, counties, or political subdivisions thereof.' However, we think it clear that the words upolltloal subdivision* refer to those political subdivisions specifically set forth in the first part of subeeotion (o), namely oounties, justice9 precincts and incorporated towns ati cities. The Supreme Court of Texas inthe.language already quoted interpreting the 1933 provision construed the words npolltloal subdivision* as lnoluding the ar8a of any justice's precinct, or town, or.oitg. Such a contention is further supported by the dootrine of eju%- demgeneris, to the effect that when general words follow specific words in an enumeration, the general words are construed to embrace only objeots slmiIar in nature to those.objects enumerated by the preceding specific words. That the Legislature interpreted the oonatita-

. tional provision as preserving the dry status only in counties,, justioe's pracinots and inoorporated oities .or towns which had VOt8ddry prior to 1919, is shown in two provisions 0r the Texas Liquor Control Bat.

Artlole 1, Section 23,of the Texas Liquor Control Act, codified as Arti 666-23 OfV8rnOn'%.Penal Code, .reads in part 'as follows:

"Whenever th8 term *dry area' Is used in this Aot,.it shall meanand refer to all oounties, jostlce'precincts, inoOrpOrat8d cities or towns wherein'the sale of alooholio b8V8rages,'had been prohibited by valid local option elections held under the laws of the State in force at thentime of the taking effect of geo- 'tion 20, Article XVI, Constitution of Texas in the year 1919." Article 2, Seotion 2 of the abOV8Act, oodified as Article 66~7-2of Vernon's Penal Code, 1%in'part as
r0110ws: "It shall continue to be unlawful to manufacture, sell, barter or eXChalIg8in any county, justice precinct, or inoorporated city or town anybeer exoept in counties, justiae precinots, or incorporated cities or towns wherein the voters thereof had not adopted prohibition byI >. .,.. ‘, :>,. :’ .Y Honorable Perry L. Jones, Page 8

local option elections held under the laws of

. .. .. - the State of T8xa%and in,force at tne time or taking effect of Section 20, Article 16 of the Constitution of T8xasin'lQlQ;

. . ." Both the constitutional provision of 1935 and the legislative interpretation of that provision as contained in the above quoted language of the Texas Liquor Control Act contains no language which could possibly be construed as preserving the Idry" status of a common school district.. Wa have carefully considered the language in the Houohins case to the effect that whenan area voted dry it'remained dry until it was voted w8t at a subsequent election held in and for the same identical area which,.had theretofore voted ndry". How8v8r, in the Houchins case the subdivision considered was an area which had originally,voted "d.ry9"as.811 incorporated city and later dissolved its corporate existence and was aM8Xed t0 a "W8t".Oity. W8think the language Of the Houohins case insofar a%It lays downa requirement for an election in the same identical area which had originally vote ?dryw is restrioted to the areas originally voting "dry" as count

P s, incorporated towns justice's precinct% or

It is, therefore, the opinion 0s this depaX'tm8nt that Article XVI, Section 20 88,adopted in.1919 abolished all local option area% in Texas, and that the repeal amend ment of 1935, nowin effeot,.preserved only those areas as "dry" which hadvoted ndryw prior to 1919 a%a county~, justice’s precinct or as an incorporated town or city. Since Common

School Distriot No. 43 did not vote in 1918 as one of the subdivis1,on.s speoifically mentioned, th8 area embraced within it% original boundaries must depend for its local option status on the ooMty, the justice's preoinot or the incorporated city or town in which it is located. Since you have stated in your request that Justice Precinct No.,,6 whioh Includes the East St. Blmo **box** and has in its last election voted against the sale of all alcohloic beverages we are of the opinion that East St. Elmo is a "dry" area. You have also stated that Justice Precinct No. 5 which includes the West St. Elmo box has in its last election voted to legalize the sale of intoxicating liquors. Weare, therefore, of the opinion that West St. Elmois a "wet" area.

1. Article.XVI, Section 20, of the Texas Con-HonorablePerry L. Jones,Page 9

stitutionas adopted in 1935 and now in effect did not preserveCoamonSchool DistrictNo. 43 as a "dry* area. This constitutionalprovisionpreserved as "dry" only those areaswhich had voted ndryfr prior to 1919 as a county, justhess precinct, or as an incorporatedtown or city, 2, East St. Elno is a *dryH areaby vfrtue of the fact that JusticePrecinct No, 6, ofwhich it is a part, is "dry". 3. West St. Elmo is a Rwetn areaby virtue of the fact that JusticePrecinctNo, 5, ofwhich it is a part, is "wet."
Yours very truly
ATTORNEYGENERAL OFTEXAS

APPROVED gL/ aGiLq ATTORNEYGEI'IERAL CYM/Jbk:jrb