                                                            R-179
          THEATTORNEYGENERAL
                         OFTEXAS




                               Marah 22, 1947

Hon.   Bert   Ford
Texas Liquor Control         Board
Austin, Texas                   opinion   No. v-100
                                Re :   VaLldlty of order passed
                                       by the Commlssloners * Court
                                       of Byrleso,~ County with
                                       rbfsrsnce   to tb4 sale of
                                       alcoholic   kverages   and
Denr MrIr.Ford:                        relat4d quest ions.
              Your latt,er    of Febtiuarj 25 Is, set out in full
b%iow :

              Vour   valued opimioa
                                  1s respectfully
       reqtieete’d with referem  to the Oertaln
       quQstlons propoquled bblov with i?ef4rence
       to the fact sltu&tionti heFsln related:
              “Harked ISxhlbit~ On4 1s a cop7 of $n
       order .passed by t,he Oonmirriolrer4   Court of
       Burlesoa~Coutitj,~Texas,    under date of March
       11, 1946,~ vith referenoe    to the iale of al-
       coholic beverag6 in Burl44oa County.
              “Under data of March 26, 1946, Steve
       D. Navles, P. 0. Box 181, Bryan, Texas, exe-
       cuted an orgglnal applisation    for a package
       store permit to be located on the south side
       of Highway 21, five hundr4d (500) yarda west
       of the Braaos Rlvsr Bridge, about twelve miles
       from Caldwell In Burl4son County, Texas.     This
       appllcat Ion, accompanied by a proper bond and
       the aecessary fees,, was filed ftith the Texas
       Liquor Control Board on April 10, 1946.     Short-
       ly after April 11, 1946, th, abov4 aentloned
       copy of the Co1amiseion4er~s ,$ourt order was
       filed with the Taxa Liquoa Control Board.
             “On or about Apr¶i 19, 1946, Mr. Steve
       D. Nav14s, accompanied by his attorneys,   Law
       Henderson of Brgan and Ohant Sanderford of
       Austin, appeared in my offlee  and requested
                                                        r       .




Hon, Bert   Ford,   Page 2, V-100



     some action    on his application Sor      a pack-
     age store permit e The application         was ap-
     proved by County Judge Hays Bowers         of Bur-
     leson County, Texas, and found to         be in
     regular   order D

            “Prior to the appearance      of Mr. Navles
     and his attorneys,      I had been Informed that
     a building      had been moved on the property
     across   the road from the location        Mr, Navies
     desired    to use for his permit and that said
     building    was being converted     Into a church.
     A hearing     was had and evidence     offered  to
     show that there was no church In existence
     at this location      at this time.     As Admin-
     istrator     for the Board I found that there
     was no church in existence       within three hun-
     dred (300) feet of the Iocat ion for which
     Mr. Nevles sought a Piquor store permit;           and
     on April 19, 1946, I ordered        the permit is-
     sued and same was issued,

           “In compliance    with the provisions     of
     the Texas Liquor Control Act, under date of
     July 18, 1946, Steve D, Navies executed         the
     proper application    for renewal of the permit
     above mentioned and same, accompanied        by the
     proper See i was Piled with the Board on July
     29, 1946,   The renewal permit was issued
     September 1, 1946, and automatically        expires
     August 3~1, 1947e    No   protest  against  the re-
     newal of the original      permit was ever filed
     with this office    until    long after  the r4n4w-
     al permit was issued..

           “Yesterday   I received    a letter    dated
     February 18, I947,   signed   by  H. ,D,   Dennis,
     Pastor of the Wl,lIlams Xemorial      Church, which
     church Pastor WlPllams says is vlthln         one hun-
     dred forty-four  ( 144) feet   of the S rant door
     of the Navles Package Store in question.           Pas-
     tor Dennis is demanding a hearing         on the mat-
     ter.
            “I am also in receipt      of a letter   dated
     February 1.6,   1947, from Sheriff     Cleve Bates,
     Burleson   County., T4xas, which letter       caare.ln-’
     to my hands yesterday      stating   that, the L. IS.
     Williams   Memorial   Baptist    Church is located
Hon.   Bert     Ford,   Page   3, V-100


       directly     adross     the highway   from the   Mavles
       Package     Store 0

              “At my request   the attorneys      for the
       Williams   Memorial Church had e. survey mad& of
       distance   between the said church and the
       Navies Liquor Store,      and I attach the plat,
       which was mad4 and certified        to by Bennle
       F. Sebesta,    County Surveyor    of Aurleson
       County, Texas,     I had requested      the attor-
       neys for the Memorial Baptist         Church to
       have the englnssr     making this survey show
       all roads Intersecting      with State Highway
       No. 21, but he apparently       overlooked    doing
       this o Since th~ls plot Is drawn to scale,
       It can be ass-d       that there is not any
       other road Intersecting      with 3tate Highway
       Noo. 21 within 300 feet of the Memorial Bap-
       tist   Church or the Navies Liquor Store,

               ‘In cases heretofore        arising   where a
       church has been built        vlthln       00 feet of a
       packa 4 store       according     to t ;f e measurements
       specl B;led, after     a permit has been issued,
       it has been b4ea the policy            of this depart-
       ment to notify      the permittee        that the permit
       would not be renewed unless a new location
       had been Sound before         the expiration      of same
       for the reason, that the Administrator             has
       been unable to find arry autho:rity            In the
       law authorizing      eancellatioa.         The Adminls-
       trator     has also been unable to find any
       authority     for making a refund for the un-
       used portion      of the perml~t Se4 even II the
       permit v4r4 surrendered          for voD.uitarg can-
       cellat ion,

              “The only instances    where similar   fact
       sltuat  ions have arisen have bden in lncorpor-
       ated cities    and towns having an ordinance
       prohibiting   a license    or permit within 300 feet
       of a church.     So far as the Administrator
       knave, the Commissioner’s      Court in Burleson
       County Is the only one that has undertaken         to
       pass an order prohibiting      sales  in rural areas
       where a church is located      vlthln  300 feet of
       a premise authorized     to sell alcoholic    bever-
       ages o
                                                      .     .




Hon, Bert   Ford,     Pa&e 4, V-100



            %lhlle the order of the Commissloner”s
     Court of Burleson       County does not exactly
     foqlow Section      25(a) of the printed    Texas
     Liquor Control Act with reference         to mea-
     surements9 I think it is fair        to assume that
     the attached     order was passed by said Court
     uadqr.the    authority    provided  in said Section
     25
            “The specific     questions  which I desire
     to have answered       by the Attorney   General are
     a% follows 2

            “‘P 0    Is the order passe~d by the Commls-
     slonerOs       Court  of Burleson County, Texas, un-
     der date       of March 11, 1946, a valid order?

            “2,   If the order is valid,       then has
     County Surveyor      Bennie F. Sebesta of Burle-
     son County,     Texas, made the measurements in
     the proper manner, or should the measurements
     be along the property       lines   of the street
     fronts    and from front door to front door and
     in direct    line across    intersections     where
     they may occur?      (See Section     25 (a) 1.
            “30  If it fs determined   that the ordin-
     ance   isvalid and also determined     that the
     measurements   have been properly   made, then
     Is it the duty of the Administrator,       assum;
     ing that the Wllllams    Memorial Church Is now
     a bona fide church,    to cancel  the package
     store permit of Steve D, Mavles?

            ‘“4 0 If ft is held that it is the duty
      of the Administrator    to cancel  the Havlese
      permit 8 then what section    of the Act Is to
      be used in notifying    Mr. Mavles that a hear-
      ing Is to be had for the purpose of cancel-
      ling his permit provided     it is determined
      that his location    is within 300 feet of a
      bona fide cbureh?

            “5o If the permit is cancelled    under
      these circumstances,   then would Steve D.
      Mavles be entitled   to a refund of his permit
      fee from the date of the cancellation    to Aug-
      ust 31, 1947, which is the date saw auto-
      matically  expires? ”
HOKI,Bert     Ford,   Page 5, V--1C;ci



              Article   6k6-25aof Vernon’s Penal Code, which
ia also     Section   25a of Art1cS.e 1 of the Texas Liquor
Control     Act, is as follows:

               “The Commissioners’      Court of any county
        in the territory     thereof    outside   incorporated
        cities   and towns and the governing         authorities
        of any city OP town wlthln the corporate.            limits
        of any such city or town may prohibit            the sale
        of alcoholic    beverages     by any dealer    where the
        place of business     of any such dealer       is wl.thi~n
        three hundred (300)feet of any church,              public
        school   or public   hospital,     the measurements to
        be along the property       lines   of the street      fronts
        and from front door to front door and in dif;ect
        line ac~ross intersections        where they occur,

               That such delegation   by the       Iegls1ature     is
valid     appears we19 settled,     We quote       from 30 Am, Jur.
435,436,
                ‘A state,  in the exercise     of its police
        power, may enact a valLd law forbidding            the
        sale of lntoxlcatlng      liquor   1.n a partleular
        locality,     such as a law prohibiting      sales
        within specified     distances   of churches      and
        schools,    as well as other buildings,        lnstltu-
        tions,    and grounds,   public  and private 0 Sim-
        ilar power may l?fl e_zcgsr,c_j- ,spkG muriiclpfZ~
        ties and counti.egO     , i r



               “The Leglslatura     ma2 by pt’atut.e,     and
        municipalities     and counties,     dua G&r>,
        x    by orditrancepr~bitthee~~tthllBhrnent
                                         ,--  -.--.--
        pi licensing     of saloons   wits$     spe_cifled
        distances     of churches. fl TEmphsuis       added,)

           The first  question  for determlnat,ion     is the
validity  of the order of the Commissionerss       Court of bur-
leson County dated March 11, rg46*       The order of the
Commissioners)   Court contains   the fol.lowing   language
with regard to method of measurements:
              Sl 0 D the mileage to be made from tha
        front door of the property    li.ne and from prop-
        erty line to front   door 0 ”
                                                                .,




Hen,   &rt     Ford,   Page 6,   V-100



             Article  666-2fja,     supra, grants the authority
to counties    and cities     to prohibit     the sale of alcoholic
beverages    where the place of business          is within three
hundred feet of certain         establishments      and then In the
latter   part of the article        provides   for ,the means of
measuring this distanced
               11
               ” 0 0 D the measurements to be along
       the property  Pines of the street fronts  and
       from front door to front door and In direct
       line across  intersections where they occur’.’

            The language used In the Co5r&sslonersP    Court
order to set forth    the method of measurement Is obscure
and ambiguous u However 3 it may be assumed that the Com-
mlssloners~   Court meant to follow   the method ,of measure-
ment set forth    by the Legislature.   We quote from 20
Co Jo 3, 802:

               “‘As a county Is a quasi corporation              s 0
       0 0 3 and a governmental           agency of the State,
       D 0 0 with no Independent            sovereignty,      It
       possesses      only such powers as are expresslv
       or implledly       conferred     upon it by eoastitu-
       tlonal     provisions     or leglslatlve       enactments,
       Powers not eonferred          are just as plainly
       prohibited       as though expressly        forbidden;
       and, when
              --      a  power   Is  conferred    --- be exer-
                                                   to
       elsed in a particuPar          manner, there is an
       imnliedr~strietion           _upon the exercise      of
       that power in excess of tlib m,                   or In a
       manner different        from that &-
       BEmphasls added, B-            -

               As to the   eonstruetlon to be placed           on coun-
ty   orders,    we quote   from 20 C, J, S,, 871:

               “Since it Is not to be expected       that the
       orders and ordinances        of a county board will
       be drawn with that degree of preciseness            and
       skill    which characterizes     acts adopted by
       higher    PeglsPatlve   bodies,   they should,    ex-
       cept for penal ordinances,        be construed    llb-
       erally,     and so as to give effe$      to the clear
       Intention     of the county board.

               And again    in 20 C, J,     %-,   870,   we find       this
statement:
Hon. Bert    Ford,   Page 7’> V-100



              “A county   order   o~dlwaance   must   comply
       with the formal requl.sites,         prescribed     by
       statute.      However, where the subject          matter
       of the order or ordinance         1s within the jurl
       isdiction     of the board,     substantial      compll-
       ante Is sufficient,       and the order 01’ ordlua-
       ante will     not be declared     Invalid     for mere
       informalities      or irregularit    les, or because
       of the presence      of unnecessary      recitals
       therein,    whether such recl.tels       are correct
       or incorrect     D”

            We believe   that a comparison     of the language
used   in the statute   and the language used~ i,n the county             ,
order wlth reference     to method of measurement      shows an
attempt on the part of the county to adopt the statu-
tory  language,   and in view of the liberal      construction
to be given county orders,      we are of the opinion      that
the Commissioners’     Court order 1s a valid     one, and that
the method of measurement      intended  by the Commisslonersg
Court is the method set forth       in Article   666-25a,    suppa,

             The next question    tc be resolved        1s whether
or not the measurement as shown on the plat 1s the cor-
rect method.      The church Is located     on the west sl.de
of Texas Highway No, 21 and the liquor           store on the
east side of said highway and north of the church.                  The
county surveyor      has measured from the liorth door of the
church diagonally       and in a noT-th easterly      directioo     to
the west door of the liquor       store,    In other words, his
measurement      consists   of a straight   line    joi.nlag    the
two doors,    tend is, therefore,     a measurement of the clos-
est distance     between the two doortr,      This distance        IS
144 feet,     Your question    is whether this 1s the correct
method or whether the measurement should be “along the
property   lines    of the street   fronts  and from front        door
to front   door and in direct     line across     Intersections
where they occur. ”

             The cases of Hallum v, Texas Liquor Control
Board, 166 3. W, (26) 175 and St ubbs v L Texas Liquor
Control   Board, 166 3, W, (26) 178, deal with the proper
method of measurement under Arti.cle         666-256,   supra.   Al-
though in both of these cases an intersection            was in-
volved,   we believe     the language will be helpful       In the
quest Ion before     us,    In these eases,    the court decided
that the distance      between opposite     eorne,rs of inter-
sections    was properly     measured diagonally    rather thuu
across   street  lines D
lion,   Rert   Ford,   Page   a, V-100


            We believe    that in order to accord with the
rule prescribed    by Art, 666-25a,     the measurement    should
be as follows:     Beginning     at the front  door of the L. B
Williams   Memorial Baptist      Church in an easterly    dlrec-
tion to the property      line of the highway front;      thence
at right angles north along said line to a point direc-
tly opposite    the front    door of the liquor    store;  thence
east in a direct     line to the front door of Ravles Liquor
Store 0

            Since au intersection            does    lot occur between
these establlshnmnts,     It was         not the     legislative    Intent
to require    measurement to the           nearest     Fntersectlon   and
then back to the establishment              where    the intersection
does uot separate     the church         from the      package store.
The following    language in the          Rallum     case,    cited above,
leads us to this conclusionn

               “In reaching    the front door af the church
        from the front     door of amellant’s   &ace     of busi-
        ness, and vice versa* ue~~ssarllg,      &     lntersec-
        tion of these streets      would be emcouatered.”
        -hasIs      adde’d,~

            It would      therefore   seem to follow   that if in
walking from front        door to fro&t dear an intersection
would not uecesearlly         be eucoautewed   then the measure-
meut would be made        from front door to front     door along
the property   lines      and across   the street   in direct  line.

           Streagth   is added to this proposl.tlon   by the
Stubbs case,   cited above,   in which the Dallas   Court of
Civil Appeals stated:

               ‘“Obviously,      it was the intention        of the
        Legfslature     to prohibit      a place for the sale
        of liquor    within 300 feet of a church,             deter-
        miued by any permlssable          masuremnt         under the
        rule prescribed        for that purpose 0 0 0 0 In
        applying    the prohibition       against      sales near
        churches,    great llberallty        is exercised,      aad
        the rule of construation          usual19      adopted is
        said
        --     to f=or      the relinloua      iaotitutloas     Kd
        not the traffizrs
        --                          in liouor,      0 D 0 D y -

          An excelleat    annotation    on the mode of mea-
surement of such distanees      appears in 96 A, L, R,, 778.
In that annotation,    the following    language appears:
Hon. Bert   Ford,   Page 9, V-100



             “The proposition       appears to be estab-
     lished    as a rule      of Law that,      except   as may
     & otherwise       specificaXYy      provided,      the dls-
     tance contemplated          by a statute      or regula-
     t ion pro, hlbltlng      the granting      of a license
     for the sale of intoxicating             liquors,    or
     traffic    therein,      within a certain       distance
     of a named lnstltutlon          or place (e. g,,
     church,     D D e ), must be measured In a
     straight     line ~ rather than in some other man-
     ner, such as by the ~aually            traveled     route
     or the street       lines,”     gkmphas is added 0)

           It is our opinion  that the computation            of the
distance  in the manner already   set forth Is the           correct
method of measurement i

           The third question    is whether or not it is
your duty to cancel   the package store permit of Steve
D, Navies,  assuming the WllliarmMemorlal      Church to be
a bona fide church,     Art lcle 666-12,  Vernon ss Penal
Code, provides  as follows:

            “The Board or Administrator    may cancel
     or may suspend for any period      of time not
     exceeding   sixty  (60) days, after    notice and
     hearing,   any such permit granted If it Is
     found that any of the following      fs true:

            “(1) * That the permittee   has at any
     time been convicted    for the vlo:latlon of any
     provision    of this Act,

            ““(2) * That the perml,ttee has violated
     any provision     of this Act or any rule or
     regulation     of the Board at any time 0

           “(31 D That the permittee       has made any
     false  or misleading   represeatatlon     or state-
     ment in his application,

            “(4) D That the permittee     is Indebted
     to the state for any taxes,     fees,   or penal-
     ties   imposed by this Act or by any rule or
     regulation    of the Board-

             ‘7 5) D That the permittee   is not of
     good   moral character,   or that his reputa-
     tion   for being a peaceable     and law-abiding
Hon0 Bert      Ford,   Page 10,    V-100



     citizen       fn the   comtnunfty where       he resfdes     is     bad,

            “(6)    e That the place or manner in whfch per-
     mfttee conducts       hfs business    is of such a nature
     which,      based on the general    welfare,   health,  peaces
     morale i and safety      of the people and on the public
     sense of decency,       warrants   the cancellation    or sus-
     pension of the permit.

          “(7) D That the         permittee   fs    not maintaining         an
     acceptable   bond 0

           “(8), That the permittee    maintains   a noisy,
     lewd, disord~erly,. or insanitary   establishment      or
     has been supplying   impure or otherwise     deleterious
     beverages 0

          “(9) 0 That the permfttee   is insolvent or fn-
     competent D or physically  unable to carry on the
     management of his establishment.

               “(10) * That the permittee          fs   in the   habit     of
     using       liquor to excess,

           “(11) 0 That either         the permittee,    his agents9
     servants s or employees          have misrepresented    to a
     customer or the public           any liquor  sold by hfm,

           “(12) 3 Where the word PpermftteeV fs used fn
     (1)s (2),     (3),  (5)s (6)s and (lo),   of this Section
     ft shall    also mean and include    each member of a
     partnership      or association and each officer    and the
     owner or owners of the majority        of the corporate
     stock   of a corporation,”

            Under the “Expressi      Unfuswrules  the Board or
Admfnfstrator    may cancel   or suspend a permit only if some
subsection    of Section  12 9 supra p has b’een violated.  We
quote 39 Tex,, Jur, s 188, 189:

             “The maxim Expressfo     Unfus est exclusio      alter-
     lus (the expression       of one thing is exclusive       of an-
     other)    is said to be a logical,       sensible   and sound
     rule of construction;       and it has been frequently         ap-
     plied    in the construction     of statutes     as well  as fn
     the interpretation      of other documents.        The maxim
     signifies    that the express mention or enumeration
     of one person,     thfng,   consequence    or class    is tan-
     tamount to an express       exclusion   of all others,       And
Han, Bert     Ford,   Page 11,   V-100



       when it is applicable,       affirmative     words imply a
       negatirr    of what is net    affirmed,     negative  words
       imply an affirmetivr    of    what is net negatived;       and
       a provision    limlting a    thing to be done in a par-
       ticular   form or menner     implies    that it shall   not be
       done otherwisr.n

           After a careful     reading of Section   12, supra,
and a ooasideration     of all of the facts   presents4  in yeur
letter,  it is the opinion     of this Depmrtwnt    that you de
not hsve authority    tr cancel the prokage store permit cl
Steve D, Navles under any of the subsoctiens        of Artidle
666-12, Vernon's    Penel Code,

             Having answered your first         question in the af-
firmative    and your second and third         questions in the neg-
ative,    a consideration  of questions        4 and 5 is unnecessary.   _

                                     SUMMARY

              (1) The order passed by the Commissioners!
        Court of Burlesen      County prohibiting      the sale
        of intoxicating     beverages   within   300 feet of a
        church is valid.       The measurement of the 300
        feet from package store       to church must be along
        the property    lines   ef the street    frents   and
        from front    door to front    door as provided     in
      'Art,   666-25a,    Vernoass Penal Code,

              (2) Where church is built   within 300 feet
       of package store after    permit has been issued
       and permit is renewed without any proteat     being
       filed,   Administrator is not authorized   to cancel
       permit under Art. 666-12,    Vernon79 Penal Code,

                                            Very truly    yours,

APPROVEDMAR. 24,        1947         ATTORNEYGENERALOF TEXAS



A&&                                  By@-
                                             Clarence    Y. Mills
                                             Assistant

CMII:rt:mrj
