                  THEATTORTYGENERAL


PRICE  DANIEL
                               AUSTIN     II.
                                            TEXAS
ATTORNEYGENERAL

                                  July     13,     1949


 Hon. John Lawhon                        @pInion     No. V-854
 Administrator
 Texas Liquor Control Board              Re:     Validity of a local option
 Austin, Texas                                   election in which the propo-
                                                 sition submitted was: "For
                                                 (or against) prohibiting the
                                                 sale of malt and vinous bever-
                                                 ages not exceeding 14% by
                                                 weight."
 Dear Sir:
            Your request for an opinion is in part:
           "There is one county in this State which
      has legalized the sale of malt and vinous bev-
      erages not exceeding 148 by weight. An elec-
      tion was called in this county with the follow-
      ing propositions submitted to the voters 'For
      prohibiting the sale of malt and vinous bever-
      ages not exceeding 14% bg'weight' and 'Against
      prohibiting the sale of malt and vinous bever-
      ages not exceeding 1476by weight.'
           "I will appreciate your valued opinion as
      to wether an election submitting the proposi-
      tion as above stated would be valid.!
          Article 666~Sec. 40, V.P.C., provides specifically the
 issues which will be submitted in any local option selection. One
 such issue, as set out in the statute, reads:
           "(b). 'For legalizing the sale of malt and
      vinous beverages that do not contain alcohol in
      excess of fourteen ~(14%)percenturnby volume'
      and lAgainst'legaliilng the sale of malt and
      vinous beverages that do not contain alcohol'in
                                    ntum bv volm'"

            Article 666-4Oa,     V.P.C., provides, inpart:
           "At any time within thirty (30) days after
      the result of any local option election held pur-
Hon. John Iawhon, page 2         V-854


    suant to the provisions of the Texas Liquor Con-
    trol Act has been declared, any qualified voter
    of the county, justice precinct or incorporated
    town or city of such county in which such elec-
    tion 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 -inal
    and exclusive jurisdiction of all suits to c(mtest
    such election. . . . and said court shall have
    jurisdiction to try and determine all matters con-
     nected with said election, including the petition
    of such election and all Proceedings and'orders
    relating thereto, embracing final count and declar-
    ation and publication of the result putting local
    option into effect. and it shall have authoritv
    to determine qllions    relating to the legality
    and v,alidity of said election . . . and if it shall
    appear from the evidence that such irregularities
    existed in bringing about said election or in
    holding same, as to render the true result of the
     election imnossible to be arrived at. or verv
    doubtful of ascertaining, 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 upon whom is devolved by law the
    duty of ordering such election. It is further
    provided that all such cases shall have prece-
    dence 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 call the legality of said election in oues-
    tion in any other suit or proceeding; and provided
    further, that if no contest of said election is
    filed and prosecuted in the manner and within the
    time provided above, it shall be conclusively pre-
    sumed that said election as held and the result
    thereof decMred, are in all respects valid and
    binding upon all courts; . . . . "(Emphasis added)
         This opinion deals solely with the question of irregu-
larities insofar as they appear in the issues submitted and we do
not pass upon any other matters pertaining to the election.
         It is the uniform holding of our courts that an election
contest is the exclusive remedy of a citizen who feels aggrieved,
or harmed, by the results of an election. The invalidity, if any,
of an election must be set up in a contest. The reason is that
Hon. John Lawhon, page 3           v-a54


the Legislature, having set up this special procedure for the
adjudication of such issues, that procedure is exclusive and no
other remedy is available.
         The general rule is announced in 16 Tex. Jur. 142,
Elections, Sec. 115:
         "The Constitution and statute have con-
    ferred~upon the Court's jurisdiction over elec-
    tion contests, and have provided a special pro-
    cedure by which contests may be tried. This
    procedure is designed to be final and exclusive
    and the Courts have no authority to adjudicate
    cases which come within its purview otherwise
    than in the manner specified."
         In Crawford v. Maule, 114 S.W. 2d 696, (Tex. Civ. App.
19381, suit was brought seeking to have the sheriff and all other
officers whose duty it was to enforce local options enjoined from
enforcing an order declaring the results of a local option elec-
tion. The court denied the injunction on the grounds that the
mode of contesting or determining the validity of an election was
prescribed by statute and that that particular mode alone could
be resorted to.
         Agairi,in Tallv v. Benson 96 S.W. 2d 94, (Tex. Civ.
App. 19x6), plaintiff sought a mandamus requiring the proper
officers to grant him a permit alleging that a prior local option
law was void because of certain irregularities. The Court said,
after discussing other phases of the case:
        "The proper method of attack upon such an
   election was by a contest as authorized by the
   statutes. Such method of attack upon elections
   has been held to be exclusive and final. . . .
   The method sought herein was a collateral attack
   upon such election and cannot therefore be prop-
   erly entertained. That being true, the election
   of January 1936 which at most was only voidable,
   and subject to be set aside, if at all, only by
   a proper contest thereof; established justice
   precinct No. 1 as a dry area."
The Court refused to grant a mandamus, and the opinion is positive
authority for the proposition that an attack upon an election be-
cause of existing irregularities can be heard only in a contest
proceeding.
         Article 666-40   has been the subject of construction by
our courts many times.    In election contests the courts have de-
Hon. John Lawhon, page 4         V-854


clared
  _-. that irregularities in the issues appearing in the order
calling the election and irregularities appearing in the same
issues placed upon the ballot void the elections.
         In Hutson v. Smith, 191 S.W. 2d 779, (Tex. Civ. App.
1946), an election contest, the order calling the local option
election did not state the issue to be voted on as is specifi-
cally required by Art. 666-40.  The Court held that:
         II
          e . . the Commissioners' Court mst  itself
    issue the order for a local option election in
    the manner and form which the Legislature has
    made mandatory. . . There is no hint in the
    record that the defective order had any effect
    upon the result of the election. But we are
    constrained to hold that the order did comply
    with the statute, that the statute was mandatory,
    that consequently the order was void, and that
    the election held in response to a void order
    was itself void." (Emphasis added)
         Again, in w     v. w,      117 S.W. 2d 560, (Tex. Civ.
APP. 1938), in local option election contest wherein the ballot
did not contain the issue as set out by the statute, the Court
held:
        "The Legislature having prescribed the form
   of the issues to be submitted under the condi-
   tions which obtained in said subdivision of
   Archer County, it was obligatory upon the part
   of the Commissioners Court of said County to sub-
   mit the issue thus specifically prescribed.
         "We are reluctant to hold invalid such an
    election as this, and thus set aside the will
    of a majority of the qualified voters who par-
    ticipated in the election, but under the au-
    thorities, it is our manifest duty to do so,
    even though we are convinced that the results
    of the election would not have been different
    had the proper ballot been used. . . . . DJ'
         The above authorities in no way alter the general rule
of prohibiting a collateral attack upon the results of an elec-
tion. There can be no doubt but that Art. 666-40a places exclu-
sive authority in the District Courts to determine all matters
connected with the election including the petitions, orders, and
ballots pertaining thereto. Irregularities in holding a local
option election likewise shall be adjudged only by legal contest.
It is significant that said statute provides that such a contest
Hon. John Lawhon, page 5        V-854


be brought within thirty days after the results have been de-
clared and upon a failure thereof the results of the election as
a matter of law are presumed to be valid and binding on all
courts. Blaine v. State, 139 S.W. 2d 792 (Tex. Crim. 1940).
Duran v. State, 158 S.W. 2d 720 (Tex. Grim. 1943); and Attokey
General's opinion V-297.
         The courts have held in instances where an election
has been called without authority that such election is void ab
initio. City of Austin v. Thompson, 219 S.W. 2d 57 (Tex. Sup.
1949) ; City of Dallas v. Dallas Consolidated Electric Street
Railway Cornpang,105 Tex. 337, 148 S.W. 292 (1912). These cases
deal with the right and power for the particular election to be
held. Such a circumstance Is clearly distinguishable from the
situation present here. The errors and irreqularities raised in
the present question are those specifically mentioned in Article
666-4Oa, V.P~.C.,and it is obviously contemplated by said Article
that irregularities of such a nature should be determined by an
election contest, and are not of sufficient gravity to void the
election ab initio.
         In the light of the above authorities it follows   that
in the absence of an election called without authority or   a
proper election contest, the election must be presumed to   be
valid and the results of said election must be given full   force
and effect.
                             SUMMARY
        The insertion of the word "weight" for
   "volume" and the ommission of I'alcohol"in a
   local option election are irregularities which
   can be challenged only in an election contest
   pursuant to the statutory requirements of
   Article 666-4Oa, V.P.C. Crawford v. Maple,
   114 S.W. 2d 696 (1938); Tally v. Benson, 96
   S.W. 2d 94 (1936). An election not having
   been contested within the statutory time will
   conclusively be presumed to be valid and bind-
   ing on all courts. City of Austin v. Thompson,
   219 S.W. 2d 57 (Tex. Sup. 1949); City of Dallas
   v. Consolidated Electric Street Railway Cornpane,
   105 Tex. 337, 148 S.W. 292 (1912).
Hon. John Lawhon, page 6        v-854


                               Yours very truly
                           ATTORNEY GENERAL OF TEXAS

                           By s,fJoe H. Reynolds
                                 Joe R.~Reynolds
                                 Assistant
JHR:rt:pwb

APPROVED:
s/Price Daniel
ATTORNEY GENERAL
