Untitled Texas Attorney General Opinion ( 1941 )

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