                                                                     R-549
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                   THEACTORNEYGENERA                                 L

                                AUSTIN. TEXAS
PRICE  DANIEL
ATTORNEYGENERAL                   July 7, 1947


       Hon. R. A. Taylor, Jr.           Opinion No. v-297
       County Attorney
       Zavala County                    Re:       The vwet" or "dryv
       Crystal City, Texas                        status of Savala
                                                  County; validity   of
                                                  local option elec-
                                                  tion held in 1910
                                                  in said county.
       Dear Sir:

          __       Your letter
                  -._.    -      of June ?, 1947, requests the
       oplmon of tms department as to the wet or "dry"
       status of Savala County and the validity         of a local
       option election   held on May 28,1910.        The minutes of
       the Commissioners      Courts do not disclose    that the
       clerk was ordered to post election       notices   or that
       such notices were in fact posted.        If it.1~ determined
       that such election    was valid or that its validity        can-
       not now be successfully     questioned,    it will not be
       necessary to answer your other questions.
                     In order to determine the~"wet" or "dry"
       status of Zavala County, based on the local option
       election    ,of 1910, It is necessary to go into the ques-
       tion of whether the validity      of such election    can be
       Inquired into at this late date.         As stated in your
       letter,   Article   5728,Revised Civil Statutes.(lgll),
       was enacted in 1907, as'an amendment to Article         3397
       of the Revised Civil Statutes (1895). This Article
       was repealed by state-wide      prohibition    in 1919, but'
       its     ovisions were re-enacted     in the Liquor Control
       Act i"Art: 666-46~.;:V+.P.C.) effective     September 1, 1937.
       Section 40a of Article     666, Vernon's Penal Code, and
       the Act of 1907 which became Article        5728of the Re-
       vised Civil Statutes (1911) are identical         and each
       reads as follows:
                    "At any time within thlrty'(30)  days
              after the result of any local option elec-
              tion held pursuant to the provisions   of the
              Texas Liquor Control Act has been declared,
              any qualified   voter of the county, justice
              precinct   or incorporated town or city of
Hon.   R. A.   Wylor,   Jr.   - Page 2, V-297


       such county in which such election has
       been held, may contest the said election
       In the District     Court of the county In
       which such election      has been held, which
       shall have original      and exclusive    juris-
       diction   of all.sults    to contest such
       election,   and the proceedings in such
       oontest shall be conducted in the same
       manner, as now govern the contest of any
       general election,      and said court shall
       have jurisdiction      to try and determine
       all matters conuected with said election
       including the petition       of such election
       and all proceedings and orders relating
       thereto,   embracing final count and de-
       olaration   and publication      of the result
       putting local option Into effect,         and it
       shall have authority to determine ques-
       tions relating     to the legality    and valld-
       ity of said election,      and to determine
       whether by the action or want of action
       on the part of the offloers        to whom was
       entrusted the control of snoh election,
       such a number of legal voters were denied
       the privilege     of viAIn& as bad they been
       allowed to vote, might have maberially
       changed the result,      and if it shall appear
       from the evidence that such lrregularltles
       existed in bringing about said election            or
       In holding ssme, as to ‘Under the true re-
       sult of the election      imposeibl6 to be ar-.
       rlv6d at or very dimbtful of ascertalnlng,
       the court shall adjudge such election           to be
       void, and shall order the proper officer            to
       order another election       to be held, and shall
       cause a certified      copy of such judgment and
       order of the court to be delivered          to such
       officer   upbn whom is’ devolved by law the
       duty of ordering such election.          It is fur-
       ther provided that all such cases shall
       have precedence In the District        Court and
       appellate    courts and that the result of such
       contest shall finally       settle all questions
       relating   to the validity      of said election,
       and it shall not be permissible         to again
       oall the legality      of said election     in ques-
       tion In any other suit or proaeedlng;            and
       provided further,      that if no contest of
Hon. Ri. A. Taylor,   Jr.   - Page 3, V-297


     said election  Is filed and proseouted In the
     manner and within the time provided above,
     it shall be conclusively   presumed that said
     election  as held and the result thereof de-
     clared, are in all respects valid and blnd-
     ing upon all courts; provided also that
     pending such contest the enforcement of lo-
     cal option law in such territory   shall not
     be suspended, and that all laws snd parts
     of laws in conflict   herewith be and the same
     are hereby repealed.
            "Any qualified    voter of any county,
     justice   precinct,   incorporated   city or town
     within the State which has heretofore       voted
     on local option may contest said election
     under the provisions      of this Act, and if ho
     contest is filed within sixty (60) days
     from the taking effect       of this Act, It shall
     be conclusively     presumed that said election
     as held was valid in all things and'binding
     upon all courts."
           In the case of Iiardy v. State, 107 9. W. 547,
(decided January 29, 1908) our Court of Criminal Appeals
construed Article     3397, as amended in 1907.: Th; s.;rl-
lant took a bill of exceptions      to the refus
Court to allow him to prove by the county c Yerk that he
(the clerk) did not:at any time post or cause to be post
ed any noticesof      the election.   !Fhe Court, In passing
upon the blll?_said:., .,
            "This prosecution   was commenced on the
     29th da{ of,July,    1907.   The bill   shows that
     the Sta e objected on the ground that it was
     immaterial,, and was offered in:.$he nature of
     a defense to contests the legalrty      of the
     local option law at a time more than 60 days
     after the taking effect     of the Act .of the
     Thirtieth Legislature,     passed May 14', 1907,
     Laws 1907, p. 447, C. 8. 'We hold that this
     objection   is well taken.    Said Act provides
     that contests of elections      that had thereto-
     fore been had must be contested within 60
     days from taking effeot of said law, and not
     otherwise.    The matters compialned of would
     be mere irregularities     at best, and this Act     ),
     makes valid and noncontestable      .anythlng per-   :
     taining to irregularltles      In the adoption
Hon. R. A. Taylor,   Jr.   - Page ‘r, V-297


     of the looal option law.   The act Itself
     provides that we shall oonolusively   pre-
     sume that said election  as held was valid
     in all things and binding upon all courts.
     We accordinglyhold that said Act is valid,
     and applies to all local option elections
     and It olearly applies in this case.’
            The Court of Criminal Appeals has frequently
had the same statute before it for oonstructlon       and have
unlSormly held that uuless a local option eleotlon was
contested within the statutory time aiter the result of
the election   has been declared,   the law conclusively
presumes that the election     as held and the result there-
of declared are in all respects     valid and binding on the
court.    See Branch’
                    s  Annotated   Penal  Code, Sec. 1228, p.
682, for citation   of earlier   oases; Blaine v. State, 139
9. W. (26) 792; Grumbles v. State, 169 9. W. (26) 720;
ex parte King, 160 9. W. (26) 255.
           In J&alne v. State; supra, the Court of Crimi-
nal~Appeals of Texas, in oonstruing Article    5728, Re-
vised Civil Statutes (Ml),     used the Sollowing lsnguage:
             “Ihere is an attaok made upon the pro-
     ceedinga of the election       whereby said jus-
     tice precinct 190. 7 OS Dallas County, Texas,
     was voted dry In 1890. This attack comes
     too late.      This attack should have been made
     within alxty days after the talcing effect        of
         B N       51 Chapter VIII OS the General
     &ws’of’ke       30th Legislature,    First Called
     Session, p. 447, which became effective
     ninety days after May 14, 1907 fail
     which the law conclusively        prekd%t
     thealectlon      as held and the results as
     therein declared are in all respects valid
     and binding on the oourts. ’ (Emphasis ad&i)
            Copies of the prooeedings of the Comniasloners
Court of Z&vale County pertaining     to the local option
electl.on of 1910, which you sent us, disolose     that the
statutes governing local option elections      in effect at
that time were Sully complied with in every respect,       ex-
cept there is no record showing there had been any post-
      of the notloes of such election   as required by Articl
$37     Revised Civil Statutes (18%)      However, at the tim
the &e&ion      was ordered the amend&It to Article     3397,
Revised Civil Statutes,     (18%)~ Was in full force and ef-
fect.    We infer from your request that no contest of this
Hon. R. A. Taylor,     Jr.   l. Page 5, V-297,.


election   was filed   at any time.~
           You are advised that it'is concluslvely~      pre-
sumed that such notices were posted in the msnner        and
for the length of time prescribed by law and that        the
question of whether such notices were or were not        so
posted will not now be considered by the courts.
            You are further advised that Zavala County
was a' "dry area", as that term is defined in Section
23, Article   666, Vernon's Penal Code, from the time
the local option election       of 1910 prohibiting  the sale
of intoxicating    liquors in that county became effective,
until It became legal to sell therein 3.2 per cent beer
by weight as a result of a local option election        held
in 1933 for that purpbse.        Since that time it has been
a "dry area" only as .to the sale of whiskey and other
alcoholic   beverages,~containlng     more than 3.2 per cent
alcohol by Weight.      Tillers~on v. State, 159 S.W. (2d)
502.
                              SUMMARY
             The question of whether notices of a
      local option election      held In 1910 were or
      were not posted in the manper and for the
      length of time provided by statute,       the
      election    not having been contested'wlthln
      the statutory period after the reault of
      the election'was     declared by the.Commis-
      sYoners' Court, will not be considered by
      the'courts,    but will be conclusively     pre-
      sumed that such notices were duly and regu-
      larly posted as required bg'law.        Article
      3397, Revised Civil Statutes (1895)as '~
      zt;d       by the Thirtieth Leglslature~ (1907)
        .      .
             From the time the local option elec-
     'tion of 1910 became effective    in Zavala
      County until the sale of 3.2 per cent beer
      by weight was legalited    by the local option
      election   In 1933, that county was a "dry
      arean as that term is defined by Section
      23, Article   666, Vernon's Penal Code. Since
      that time, the county has been a "dry area"
      only as to the sale of whiskey and other
      alcoholic   beverages containing more than
Hon. R. A. Taylor, Jr. - Page 6, V-29!&


     3.2 per cent aloohol by weight. Tillereon
     v. State, 143 Tex. Ct. Rep. 473, 159 S. W.
  ,;,(26) 502.
                             Yours very truly
                        ATTORREYGEZEBA.LOF TEXAS


                        By   wA=dd8%f-


                             William 9. Lott
WSL:rt;djm                               Assistant
