Untitled Texas Attorney General Opinion ( 1940 )

Honorable M. F. Kieke
county xttorney
Lee county
Giddings, Texas
Dear Sir: Opinion No. O-2502
Ret: ,hrethe inhabitants of an
incorporated oity permitted
to vote in a stook law eleo-
tion under Article 6954, R.
C.S., such city being inolud-
ed w-thin the desoription of
the subdivision? And related
question.
Your letter of recent date requesting a legal opinion from this
department states that in 8 stook law election under Article 6954,
Revised Civil Statutes of Texas, an inoorporated city is included nith-
in the description of the sub-division in which the election is to Ix
held. You ask if the inhabitants of suoh oity are permitted to vote in
the election, and if not, would the city nevertheless be effeoted by and
included within such sub-division.
Article 6954 provides in part as follows':
"Vpon the written petition of one hundred (100) free-
holders of any of the following counties: . . . Lee. . . .
or upon the petition of fifty (50) freeholders of any such
subdivision of a county as may be desoribed in the petition,
and defined by the Commissioners Court of any of the above
named counties, Commissioners i%urt of said County shall
order an election to be held in such County or such sub-
division of a county 8s may be desoribed in the petition
and defined by the Commissioners Court on the day named in
the order for the purpose of enabling the freeholder6 of
such oounty or subdivision of a oounty as may be described
in the petition an&defined by the Commissioners Court to
determine whether horses, mules, jaoks, jennets, and aattle
shall be permitted to run at large in such county or such
sub-division of a oounty as may be desoribed in the petition
and defined by the Conmissioners Court."
In the case of Conner vs. Skinner, et al, 156 S.W. 567 (Court of
Civil Appeals). it is saidt
Honorable M. F. Kieke, Page 2 O-2502
n
.....Tt iS SUffiOient answer to Say the record nowhere
discloses that any general stock lam is in force in East-
land County, and therefore, if the statutes cited were ap-
plicable to that county, some of which are not, yetthere
is nothing, as indicated, to show that the people of that
county have ever availed themselves of the privilege of
adopting the provisions of the general stock lam so as tc
put the same in force in the tom
-__. of Eastland '..(F$l$FZs ours)
In.considering the question as to whether an incor-
porated city or town may be embraced within a designated
derritory within which the stock laws would apply, the
Court of Criminal Appeals in the case of Eeuvar vs.,State,
163 sll58, declared:
"None of the statutory enactments providing for the
adoption by vote of either of said stock laws excluded
the incorporated towns or oities from being embraced
within the territory designated within which such stock
law should apply. .... 80 that we think it is clear that
the petition for the election in a certain part of Lavaca
County designated by metes and bounds in the petition,
the orders of the commissioners court and in the adoption
of the aot. were perfectly legal and valid, although it
embraced three incorporated towns within its boundaries1
and that the freeholder6 within said incorporated town could
vote at such election the same as a freeholder voter in
any part of the territory....,"
To the same effect is the case of Bishop vsO State, 167 .S.W
363,
from which we quote as follows:
"Said election district, as No. 6, therefore had embraced
the city of Weimer. Weimer, long before then, had been
incorporated under the general incorporating act, authorizing
toan6 of one thousand inhabitants or over to incorporate.,,.
As such corporation, it had just such power and authority.,.
to regulate and prohibit stock running at large SR were
given by aaid statutes to such incorporated tams. It had
passed no ordinances, and ,hadnone regulating or prohibiting
stock running at large.... He contends, first, that Rimer
oould not be included in the territory for such election
because it was incorporated.... This court in Neuvar vss
State, 163 S.W. 58, expressly decided appellant's first
ground against him. We have no doubt of the oorreotness of
that decision, and that Weimer could be, as it wasp embraced
in said distriot eight...."
The rule announced in these cases by the Court of Criminal Ap-
peals cf Texas was recognized and its correctness re-affi~rmedin the
.. _- -
Honorable M. F. Kieke, Page 3 O-2502
case of Lambert, et al vs. Sourlook, et al, (Court of Civil Appeals) 286
SPY6'79,wherein the court saidr
"Appellant.....asserts that the eleation was void
because in a sub-division of Jefferson County whioh
included Port Arthur, an incorporated city, nhioh had
theretofore adopted the stook law, and henoe could not
be lawfully included in said election. 00.01)We do
not deem it neaessary to go into a lengthy discussion
of these cases, but will say that they were in effeot
overruled in Xeuvar ~8. State, 72 Tex. Grim, Rep. 410;
163 S.W. 56. In that case a stock law elecvtion'~88held
valid, although it included within the bounds of the
sub-division in whiah the election was held three in-
corporated towns, In Bishop VS. State,...,.the question
,....was again considered. and it was again hsl~dthat
such town could be included in such sub-division....ev
And in English ~8~ State, 292 S.W. 229, it was again declared by
the Court of Criminal Appeals;
"This oourt is called upon to determine whether,
upon a proper construction of the statute quoted, it
is legal to include in the district wherein the
eleotion was ordered the territory embraced within
the inaorporated oity of Port Arthur..... It is true
that the people within a oity are not dependent upon
the eleation, but the aity might,by ordinance, pro-
hibit stock from running at large within the corporate
limits. This was known to the Legislature, however,
when the statute uas enacted, without providing that
in defining a district the oonmnissioners"court should
not include the territory embraced in any incorporated
aity. .....Nothing in the language used can, in the
opinion of the writer, imply any intention or direc-
tion that the people of the incorporated oities within
the counties might not participate, and this as above
state, though such cities might, by ordinances, protect
themselves against stock running at large within their
boundaries. The language used with referenoe to the
entire county, and the manifest intent that the election
should be one in which all freeholders, whether urban
or suburban, could participate, is illustrative of the
legislative intent in its use of practically the same
language with referenae to sub-divisions of the oounty.
The precedents are not harmonious, but somewhat oOnfuSingeoee"
*a have reviewed the foregoing cases beoause, 8s pointed out by
the court in the English case, the precedents are not harmonious. For
e~mple, in the 0a80 of &wand vs. State. 202 S.W. 961, it was held on
Honorable M. F. Kieke, Page 4 O-2502
the authority of the case of Reuter vs. State, 67 S.W. 505, that a local
option election could not be held within the oily of Dallas beoause by
the aot of the 30th Legislature in granting a speaial oharter to the
city of Dallas, the aity eas given the power to regulate and prohibit
the running at large of stook. This could not be invaded by the et-
tempt of the commissioners* court of Dallas oounty to include the city
of Dallas within the district.
In the Beuter case, referred to above, the Court of Criminal
Appeals had held that the Legislature by special aot having given
authority to the city of Dallas to regulate the running at large of
stock, the city was supreme, end an eleotion ordered by the Commis-
sioners' oourt of the aounty to prohibit stock running at large in the
oounty would not affect the city of Dallas, The court reasoned that
the general lam appliaable to every county was at all times subject to
change and modification "by special laws acting upon the same subject
in particular counties or special localities, though suoh ohange will
not affeot the operation of general law, except in those localities
which are to be taken out of the general rule." ihe special eat of the
Legislature giving to the oity of Dallas the authority to regulate the
matter precluded the epplioation of the general stock law statutes.,
The opinions in both the Cowand and Reuter cases were written
by Judge Davidson. In the Newsr case, discussed above, the same court,
through Judge Prendergaat, declaredr
'We do not regard the ease of Renter vs. State, 43 Tex,
Grim. Rep. 672, 67 S.W. 505, es applicable to the questions
presented in this ease**
df course these oases mey be distinguished upon the prooosition
that they involved an act of the Legislature which granted c special
charter to the aity, giving to the oily the express and specifio power
to regulate the matter else regulated by the general stook lam statute.,
Yet, as pointed out by Judge Morrow in the English ease, the cases are
"somewhat oonfusing."
76swere orally advised by you that the incorporated city of
Lexington, &ioh does not operate under an existing aharter as was
involved in the Cowaad and Reuter cases, is the subject oity of your
request, and that it has not adopted a stock law. Clearly, therefore,
your question would be controlled by the authority of the cases uhioh
hold that GUIiaaorporated city or town may be legally embraoed within
the territory designated within whioh a stock law would apply, and that
the freeholders within the inaorporated aity ortown may vote at the
stock law election.
Aooordingly, you are advised that the freeholders within the
inoorporatsd oity of Lexington, the subjeat city of your request, should
Honorable M. F. Kieke, F'age6 O-2502
be permitted to vote in a stock law election under Article 6954, such
city being embraced within the desoription of the sub-division of the
oounty within rhiah the stock law would apply, It thereupon benomea
umneaessary for us to disouss your seoond question,
Very truly yours
ATTORNEY GEEML OF TEX&S
By s/Zollie C. Steakley
Zollie C. Steakley
Assistant
APPROVXD AUG. 2, 1940
s/Grover seller*
FIRST ASSISTANT 4TTORNEY GEhSRAL
Approved Opinion Committee By EWE3Chairman