                           ORNEY        GENERAL
                         OF    TEXAS




          We have given careful consideration    to the above de-
scribed question presented to us in your letter    of April 1.8.
‘Wewish to thank you for the excellent  citation   of authorities
relating to this question submitted in your letter,    together
with your discussion  thereof.
            The forthcoming    election for United States Senator
to fill   the vacancy Fa that office    is provided for by the fol-
lowing provision    con’tained in the 17th Amendment to the Federal
Constitutionr
          When vacancies happen in the representation
     of any State in the Senate, the executive   authority
     of such State shall issue writs of election   to fill
     such vacancies.   . . .I1
           This amendment was adopted in 1913 and in conformity
therewith the Legislature     of Texas at the first    called session
of the same year enacted a law which now appears as Chapter 12,
of Title 30, kticles     3086-3099, inclusive,    Revised Civil Stat-
utes of Texas 1925, which provides the procedure for filling
vacancies in i he office   of the United States Senator from Texas.
Article  3097 contained in Chapter 11, Title 50, Revised Civil
Statutes of Texas, 192.5, describes    the type of election     to be
held on June 28, 1941, as a “special”     election   in the followings
language :
             “Bny person desiring    to have his name appear upon
     the official     ballot as a candidate for United States
     ‘Senator at any special     election  held for the purpose
      of filling    a vacancy in the United States Senate, when
     no party primary is held, may do so by presenting his
      application    to the Secretary of State which shall set
      forth:     . . . .‘I
Hon. Tom Seay,    page 2   (O-3438)


           The general rules governing the conduct of all elec-
tions were enacted by statute passed by the first     called ses-
sion in 1905 commonly referred to as the Terre11 Election Law,
which law as subsequently amended from time to time is now em-
bodied in Title 50, Articles   2923 et seq., Revised Civil Stat-
utes, 192.5. The Texas Supreme Court in Beans P. Waples, 108
Texas 140, 187 S.W. 191, held that the Ter,ell    Election Law of
1905 and the statute providing for the election    of Senators
enacted in 1913, which was compiled in 1925 as Articles      3086-
3099, inclusive,   should be construed together.  .In this case,
the court speaking through MrO Justice Hawkins, at p. 148, with
reference  to these statutes,  declared:
            “Because those two statutes     deal with the one
     general subject of party primaries for the making of
     party nominations,     and are3 therefore,    essentially
     cognate, and because, obviously,       the latter was in-
     tended to supplement the former, thereby completing
     one general scheme of legislation        upon a particular
     subject,   and because the latter     statute presents
     strong and conclusive      intrinsic  evidence of a legis-
     lative purpose and intent that, in so far as their
     phraseology will permit, the two statutes are to be
     treated,   construed,   applied and enforced as one, we
     regard it as too plain for argument that, according-
     ly, said two statutes should be read and construed
     together.     Certainly they are statutes in w-
     teria,   and in their interpretation      the settled rules
     of statutory    construction    which are applicable    in
     such instances should prevail.”
             The court in the Beane v. Waples case reached this
conclusion    in part upon Section 3 of the 1913 Act, which appears
as Article    3088, Revised Civil Statutes, 1925, and reads as fol-
1OWSl
            “Art. 3088.    Every law regulating      or in any man-
     ner governing elections      or the holding of primaries
     in this State shall be held to apply to each election
     ore nomination of a candidate for a United States Sena-
     tor so long as they are not in conflict          with the Con-
     stitution    of the United States or of any law of stat-
     ute enacted by the Congress of the United States regn-
     lating the election     of United States Senators or the
     provisions    of this law,    The returns from any election
     held for United States Senator shall be made, the re-
     sult ascertained     and declared,   a certificate     of elec-
     tion issued, as provided for the election           of representa-
     tives in Congress, by this title.”
Hon. Tom Seay, page 3      (O-3438)


          In 1925 the Terre11 Election law and the Senatorial
Election Law were both codified  in Title 50, R.C.S.,   1925, which
provides an additional  reason why these two laws should be con-
strued together and their various provisions  reconciled.
             The opinions in Wallis v. Williams, by the Supreme
Court, 101 Tex. 395, 108 S.W. 153, and Schers v. Telfer by the
Austin Court of Civil Appeals, 74 S.W. (26) 327, annouhce cer-
tain criteria    to distinguish   between “general” and “special”
elections.     We believe,   however, that these criteria  have no ap-
plication    in the present instance where the Legislature    has in
Article    3097, supra, expressly declared an election    of the type
here under consideration      to be a special  election.
           You specifically  ask our opinion as to the application
of the question of whether this is a special   or a general elec-
tion to bticle   2938, Revised Civil Statutes,  1925, and the pro-
visions of the Texas Liquor Control Act relating   to the sale of
liquor and beer on election   day.
              Article 2937, R.C.S. prescribes      that in voting pre-
cincts having less than one hundred qualified           voters,   there shall
be two election      judges and two clerks.      Article 2938 provides for
four election      judges and four clerks in precincts       having one huh-
dred or more qualified       voters,  but contains the following       excep-
t ion:
              Vrovided,    that in all elections    held under the
       provisions    of this title,   other than general elec-
       tions, local option elections       and primary elections,
       the officers     to be appointed by the commissioners
       court to hold said elections       shall be a presiding
       judge, and assistant      judge and two clerks,     . . . ‘a
           Since the election  under consideration    cannot be classi-
fied as a general election,   local option election,     or primary elec-
tion, we believe that this proviso applies in the instant case so
that it is our opinion that only two election      judges and two clerks
are required in all precincts    to conduct the forthcoming senator-
ial elect ion.
          The Texas Liquqr Control Act regulates  the sale of li-
quor and beer on election  day. Section 25 of Article 666, Penal
Code of Texas, 1925, provides in part:
             “It shall be unlawful    for   any person   to sell   or
      deliver any liquor:
            “(a)   . . .
Hon. Tom Seay, page 4      (O-3438)


             “(b)    On any general primary or general election
      day between the hours of seven o’clock     a.m. and eight
      o’clock     p.m. . . .”
            Section   lob of Article   667,    Penal Code of Texas,   1925,
provides:
            “It shall be unlawful for any person to make any
      sale of beer anywhere in this state on the day of any
      general primary election   or general election held in
      this state between the hours of seven a.m. and eight
      p.m. on the day . . .*
           Since both of these provisions  prohibiting   the sale of
liquor or beer on election   days refer specifically   to “general”
elections,  it is our opinion that neither of them apply to the
forthcoming election  for United States Senator since the Legisla-
ture has expressly declared it to be a l’speciali’ election.
           We believe that the case cited in your letter,     Estes v.
State, 48 Arizona 21, 58 Pacific    (2) 753, is persuasive of the
conclusion we have reached herein.      In that case, the Supreme Court
of Arizona held that an election    to fill  the vacancy occuring in
the office  of State Representative    to the United States Congress
was a “special   election” to the extent that it was not “a regular
general election” within the meaning of the Constitutional      provi-
sion providing for the submission of referendum questions to the
voters.
            We likewise concur in the suggestion made in your letter
that an election    might be “general” in one sense, and “special”  in
another sense, or as applied to a different    statute.  Consequently,
we are limiting    this opinion to the precise questions asked by you,
       relating   to Article 2938 Revised Civil Statutes    1925 and
%;lon     25 of gPticle 666 and Section lob of iLrticle 6b7, PeAal
Code of Texas.
 APPROVEDMAY21, 1941                      Yours very truly
/s/ Grover Sellers
FIRST ASSIST&?T ATTORNNY
                       GENERAL                ATTORNEY
                                                     GZNERALOF TEXAS
APPROVED:OPINION COMMITTRR                By /s/ Walter R. Koch
BY      RLK, CHAIRM4N                     Walter R. Koch, Assistant
WK:mprwb
