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        Honorable Price Dnniel             Opinion No. W-89
        Governor of Texas
        State Capitol                     Re: Constitutionality of S.B.
        Aus tin, Texas                        No. 225 to amend the Texas
                                              Liquor Control Act, permit-
         ~8                                   ting the holder of a manu-
                                              facturer’s license to con-
                                              tinue operating in an area
                                              which subsequently has
                                              voted to prohibit the sale
                                              of beer under local option
        Dear Governor Daniel:                 election provisions.

                       You have submitted for our consideration the con-
        stitutionality of Senate Bill No. 225, Acts of the 55th Legis-
        lature, 1957, the pertinent portion of which reads as follows:

                            “Section 1. Article II of the Texas
                       Liquor Control Act is hereby amended by the
                       addition of a new section, designated Section    ?
                       2a, which shall read as follows:
                           “‘Section 2a. Regardless of any other
                       provision of the Texas Liquor Control Act, no
                       person who has theretofore been Issued a
                       Manufacturer’8 License shall subsequently be
                       denied a Manufacturer’s License or any renewal
                       of a Manufacturer’8 License for the same loca-
                       tion on the grounds that the sale of beer has
                       been prohibited by local option election In the
                       area In which said manufacturer is located; and
                       any manufacturer’s License so previously held,
                       or issued under this provision, shall authorize
                       its holder to do all things which a manufacturer
                       is authorized to do under any other provision
                       of the Texas Liquor Control Act including but not
                       limited to manufacture, possession, storage,
                       packaging, and transportation to areas wherein
                       the sale of beer is legal. I”

                       Article XVI, Section 20(a) of the Texas Constitu-
        tion specifically grants authority to the Legislature to regulate
        the manufacture of intoxicating liquors, in the following language:
Honorable Price Daniel,   Page 2,   (Wb!-89)



                "Sec. 20 a) The o en saloon Shall be and is
          hereby prohib Ited.   Tge Legislature shall have
          the power, and it shall be its duty to define the
          term 'open saloon' and enact law8 against Such.

               "Subject to the foregoing, the Legislature
          shall have the power to regulate the manufacture,
          sale, possession and transportation of intoxica-
          ting liquors, including the power to establish
          a State Monopoly on the sal? of distilled liquors."

          Senate Bill No. 225 is an Act which regulates the
manufacture of intoxicating liquor by allowing such manufacture
within certain areas.   As such, it is clearly within the author-
ity granted by the above quoted provision8 of the Constitution.

          Senate Bill No. 225, at first glance, would seem to
authorize the sale of intoxicating liquor in an area which has
adopted the local option provisions of the Texas Liquor Control
Act, in that it authorizes the manufacturer to "do all thing8
which a manufacturer is authorized to do under any other provi-
sion of the Texas Liquor Control Act including but not limited
to manufacture, possession, storage, packaging{, and transporta-
tion to area8 where the sale of beer is legal.     The Texas
Liquor Control Act in turn authorize8 the holder of a manufactur-
erls licence "to manufacture or brew beer and to distribute and
sell same to others; and to dispense beer for consumption on
manufacturer'8 premises; . . s Article 667-3,  sec.a,

          However, the Supreme Court in State vs TeXaS Brewing
eo., l.06Tex. 121, 157 3.W. 1166 (1913), held as follows:
               "All power8 of government reside in the people,
          and the officials of the different departments exer-
          cise delegated authority;   However, the Legislature
          san exercise all legislative power not prohfbited by
          the Constitution.  But the section of the Constitution
          quoted provide8 a method (a referendum) by which the
          voters of a given territory may exercise the sovereign
          power of legislating upon this Subject, which place8
          the law adopted by them above legislative authority,
          as if it had been embraced in the Constitution, and
          we must 80 consider the local option law adopted by
          the voters of Clay County, for that, like the ConstF-
          tution, is the exercise of primary soverefgnty; there-
          fore, what is prohibited by the local option law to be
          done in Clay County, as to sale of Intoxicating liquors,
          cannot be authorized by the Legislature to be done there,"
-   ,-




         Honorable Price Daniel,   Page 3,   (W'W-89)


                   See also White v. State, 85 Tex. CP, R, 42, 210 S.W.
         201 (1919) and cases therein cited.

                   Therefore, the Legislature in granting certain powers
         to the holder8 of manufacturer8 I licenses could not grant Such
         holder8 the right to sell beer or other intoxizating liquor in
         a dry area.   Neither do we construe the word dispense    to mean
         that the manufacturer is authorized to sell beer in a dry area.
         The manufacturer8 under Senate Bill No. 225 merely succeed to
         the powers originally given the holder8 of manufacturing licenses
         under Article 667-3, sec. a, which does not include the sale of
         beer in a dry area.    Therefore, we construe S.B. No. 225, Act8
         55th Legislature, 1957, as not authorizing the sale of beer by
         a manufacturer within a local option area wherein the sale of
         beer has been prohibited.    It is our opinion that S.B. No. 225
         is not unconstitutional under Article XVI, Section 20 of the
         Constitution of the State of Texas.


                                       SUMMARY

                        G.B. 225, Acts 55th Legislature, 1957, is
                        Constitutional, and a manufacturer within
                        the purview of this bill is not authorized
                        to sell beer in a dry territory.

                                              Your8 very truly,

                                              WILL WILSON
                                              Attorney General

                                                                          ;

                                                                0 ) Jr.
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         APPROVED:

         OPINION COMMITTEE
         H. Grady Chandler
                 Chairman
         Edwin P. Horner
         John Reeve8
         Joe G. Rollins
         F. C. (Jack) Goodman
