Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
a* c MANN
All----
Honorable V. 0. ?darehall.,
Ohairman
sttte Soil ConservetlonEOt%4
ProfestionslBulldIne
Temple, Texas
Dear Sirr
This will no pt of pour letter
of Oatobfc 19, requeet on rr05 this depart-
o? 'PornpIe
is the preolno8
ot l%ndownen tot0 who lirs
eide the eorperste l5mlt# within this prsalnat
OS the pririlqp of rotin~.
@The purpose of the S.&uaa ie written,
an4 the prooielons under whish it mwt be earrisd
out, seems to be such ~6 plsaea the Beard ohrged
Hon. V. C. Marehall, Pace 2
with the responsIbIlItyof aarrplne the law
;;t, In an llnpoaalblaposition. Our question
: Is it possible for the State Board to
proaaed with electiona ior the oreatlon of
Sol1 ConservationDistricts an4 meet the re-
quirements OS the law as wrltten'lv
COnstruing your questionwhioh Is In Itself verF
broad, along with the iaota furnished an4 the Attorney hen-
eral'e Opinions Numbers O-906, 0-lEO4, O-1383 an4 O-1496,
us 4eduoe that ou want to know whether an elaation ha14
aa provided In ieotioh 5, subdIvIsIonsc, D an4 R of ths
Stats 9011 ConaaroationAot, Ii.B. No. 20, 46th Legislature,
will be legal IT the "voting boxv or vpol1I.u~plaae" (where the
votes are oaat) Is looatad within tha corporatelimits of a
oity; that Is, where the preolnot Itsalf embraoea territory
Iu the oity Unit6 an4 territory outside the olty 1Imlts.
Frequently,ths term Voting box* arid"voting
preainat~ are used loosely as having the same meaning. i7e
aeorlbe to them CIff.%rent meanings. Voting praolnot" has
reference to an area defined as suah by the oounty oom-
misslonera~ oourt. Artfoles 2933, 2934, an4 E935, R. C. S.
of Texas, 1925. Voting box" has refersnoe to the plaoe
or looatlon where the alsotlon Itself is held, tha WpollIng
plaoew. Artloles 2931 an4 2932, R. C. S. of Texas.
Iu our latter and example, you reter to the
*Tecupla west it ountry boxW ae being a plaoe within tha aor-
porate limIts~,oiTemple whera people vote. It Is assume4
that you we the word Voting box* In the sam mm80 as
we. Or4lnerIly,suoh an arraneemantwould present no
problem, so long aa tha loaatlon OZ ths "voting bat*
was within the boundaries of the praolnot. Rowever, It
would present a problem In sums oa8eY as in municipal
electionswhloh has been taken oars oi by statuts. ArtioleS
2931, 2934 an4 2951, R. C. S. of Texas 1925. No such OX-
press provIsIons have bean made for the elaotions IuquIrs4
about by you. The pertinent provision8 of tha S0f.lWn-
servation Aat, supra, hereafter referred to as the Aot, are
as tolloW0:
"C. . . To assist the Boar4 In tha de-
tarmInatIonof auoh a4miuIetretivepraatiaa-
bIlIty an4 fsaeIbIlItp,It ahall'be tha 4ut
of tha Board, within a reasonable time ai&
en$ry of the findine that there is usa4 far
Hon. V. C. Earshall, Pace 3
the or~anlxatIonOS the proposed dlstrlot and
the determinationof the boundsrise thereof,
to hold an eleatlon within the propose4 4Istriot
UPon the ProPosltlon of the creationor the
dlstrlot, and to OQU8e due not100 OS suoh
eleatlo:~to be Riven, whloh notioe shall set
forth the boundaries of the proposed 4IstrIot.
. . ."
"D. The Eoaf4 shall pay all expenses Sor
the issuanoe OS suoh notioes a~& the conduot OS
suoh hearlugs an4 eleotlons,and shall supervisa
the oonduot OS suoh hearlnps and elaotious.lt
h 11 I mropriate regulationsgovemlIng-
:h: oonde::;:I'suoh hearlnus and eleatione, and
provldlnfifor the regletratlonprior to the date
OS the cieatlon OS all eligible voters. All
such elcctlons held uuder the provisionaOS this
Act shall be In oonformltp with the General Leo-
tion Laws of thle state, except as herein otherwise
provided, an4 sroept that the ballot shall not be
numbered or marke4 Sor I4entIfIoatIonpurposes.
*E. The Boar4 shall publish the result of
such eleatIon an4 shall thrreafteroonslder ah&
determine whether the operation of the dlstrlot
within the defined boundaries Is e4mInIstratIvely
praotloablean4 feasible . . .v (Underaoorlng
ours)
Elections he14 under the State Soil Conservation
Aot are napecial el--:otIons"
as oontraatedwith *general
electIonsw,and being such, we look first to the Aat an4 Its
moessary Implloatlonsfor thr prooedure to be Sollowed.
Xallis v. H. S. Williama, 101 Tex. 396. The Aot elves the
State Board broad authoritywith reterenoe to Cleotions
provided Sor therein8 It merely directs that they be held
in oonformity to the General Eleotlon Laws. In our opinion,
this 1s merely a gensral dlrrotion to the Boar4 apb as t0
the details of the elaotlon suoh as 4eaIgnatIn8polling
pleaes, the dlaoretion la nlth the State Board. This
position ia SortiSle by the feat that there is nothing In
the General Eleotion Laws speoISloallYProvi4ing that
all eleotlons shall be held at the *pollIne PlaQes" ox
"voting boxes* deal~mted by the County COmmIssIeners'
Court; au4 further, by the Seat that there Is nothIng in
Hon. V. C. Marshall, Page 4
the Ganaral xleOtiOn Lai%¶speolfyingWhat per8On Or body shall
designate the wpolling pLecee”, it being merely implied that
the person or body in charge of the eleation shall do so.
The Board would hsvs the same authority in this reapeat
as would the Commlsslonere*Court or city oOuOi1, with
reSp8Ot t0 eleotlone vihlahthey “oonduot and supervise*.
It has been held by this departmentthat under
the Aot, inoorporated alties and towns should not be
included in soil conservationalstrlotsand that land-
omers, to be eligible to vote, must reside in the distriot
(whiahwould, of oourse, mean that they aould not vote if
residents or an lnaorporatedolty or town). Attorney
Generel’s Oplnlon No-O-1353, September 30, 1939. It has
ale0 been held by this department that in an eleotion held
under the above quoted seotlons, *voting boxesw or “polling
plaaeV shall be provided ln eaah eleotlon preoinot, pre-
viously formed by the CommIssionera*Court of the oomty
under authority of Artlale 2935, supra. Attorney Oeneral’s
Opinion No.O-1495, Ootober 10,‘1939. The latter opinion
tight.be construed to mean that the partioular voting
boxes* or “polling plaoss” ordinsrllyused In eaoh eleotion
precinot ehould be used in eleatlonaheld under the Aot.
Such eonstruc3tlon 1s not to be placed on that opinion. The
writer or that opinion used the words “voting box* intending
them to mean *voting preolnot*, as will be seen from reading
them In oonneotionwith the question asked and the entire
paragraph, of whioh they are s part.
In your quoted statement, you say, Wevidently
the Board has no authoritybeyond the bounaarleaof s pro-
posed soil croneervatlon,dietriot,and therefore en eleotlon
oannot be held within the aorporatellmlts Or the City
0r ~0mpw. YilthoUtoommentlngon the aorreotnessof
your oonolueion,one way or the other, ainoe It has been
held that the oonvenienoeof the voter 1s to be ooneidered
in the holding or sleatlons,Dubose V. w00a8, 163 5. W. 3,
and since a sol1 conservationdlstrlot should not inolude
any part.of aa inoorporatedtown, you are advised that Where
a partloular voting preolnat has within it8 boundaries soma
territorywhloh Is also within the OOrPOratelimits of a
city or town, the Board should desimate as the “Polling
P~SCB* a place 1ooateC iiiViZ portion of the preoimt
which lies outside the city or toWL Rowever, with feepeat
Hon. V. G. I$arshall,Page 5
to your question,namely, the vlagallty"or the election,
if it were otherwise legal and no oue were distranchised
thereby, the rasults would probably be sustainedby the
courts, though the "polling placav was not even located
Ephe boundariesof the preclnat. RalE. Parish,
. ., 151 E. Vi.1089. As to the legality of the
election if held within tha precinct and aleo within the
corporate limits 0r a town, such as Temple, it is our
opinion that its legality would likewise be sustainedby
the courts.
With regsrd to the selection of "polling places",
your attention 1s respectfullydirected to Article 2932,
I;.C. S. of Texas, 1925, which says that where practicable
80 to do, all elections shall be held in a public building
within the limits of the election precinctwhere the alec-
tion is being held. This provision of course is advisory
and not mandatory, and, in our opinion, whether or not it
were foIlowed would be within the sound disavetion of the
Board.
Therefore,it is the opltiionof this department,
and you are so advised, that the answer to your question
is that the "voting box" for an election held in con-
nection with the organizationof a soil conservationdis-
trict, when part.of the precinct lies within the boundaries
of an incorporatedcity or town, should be located outside
the city limits; but, if the elecmere held at a box
located within the city limits and it were otherwiselegal
and no one were disfranchisedthereby, the election could
not be successfullyattacked in the courts.
Trusting that this satisfictorilyanswers your
inquiry,we are
Yours very truly
hTTORN%p GENEF~ Oy TEXA8
JN:ET
BY
APPROVED NOV 17, 1939 James Noel
Assistant
h2ala c Mann
ATTORREY'DENERALOF TEXAS APPROVED
opinion committee
By B'hB
bhairmell