Untitled Texas Attorney General Opinion ( 1940 )

Honorable A. A. Miller
County Attorney I
Mewton County
Newton, Texas
Dear Sir: Opinion No. G2853
Re: The holdLng of a local option
liquor election on general elec-
tlon day, together with related
questions.
Your letter of October 23, 1940, recites that the
commisslocers' court of your county has called a local option
election for the 5th day of November, 1940, which Is general
election day, to determine whether cr not the sale of llqucrs
within the county shall be legalized. In connection therewith,
you propound two questions stated by you as follows:
“1. Can a Commissioners Court order an elec-
tion on the question of the sale of Intoxicating
liquor in a dry County to be held on General
Election day November 5, 1940, at the same time
and polling places that will be used for the
General Election and supervised by the same elec-
\tlon officials?
?2 . If the answer to question number cne 1s
‘yes’, will the Court be required to furnish
separa%e ballot boxes and poil books for the liquor
law election or can the liquor law ballc,tsbe drcpped
in the same ballot boxes as the General glectlon
ball&s and be listed and counted in the General
Election books?”
The statutes regulating local option 1Fquor electlorz
and general elections do not contemplate or make specifl.cnro-
vision for the ‘holdingof a local option electlon and a general
electlcn at the same time and in the manc.er descrlbed Fn your
letter. Nevertheless, there Is no prohibF.t:onagainst such be-
ing d@ne.
The courts of Texas have estabilshed lFbera1 prece-
dents pertaining to elections and consFstentlp hold that the
Honorable A. A. Miller, Page 2 (0-2853)
statutory regulations are directory rather than mandatory.
It is said In Texas Jurisprudence, Vol. 16, para. 5, page 10:
"Thus the Supreme Court has said that the
ultimate test of the validity of an electlon is
involved Fn the questlon: Did the qualified
electors at the time and place designated, act-
Fng in concert, either actively or by acquies-
cence, hold an election and cast their votes in
the ballot box; and has this been done in a
manner sufficiently conformable to fhe direction
of the law as that the true result can be arrlv-
ed at with reasonable certainty?"
In Miller vs. Tucker, 119 S.W.2d 92, 94, It was held:
"Appellees' contention that the election
was rendered invalid because J. Roy Lawson,
the presiding officer, was at the same time
mayor of Newton is also without merit. There
was no showing or contention that the presence
of Mr. Lawson as presiding officer in any way
improperly affected the result of the electIon.
No objection was made to Mr. Lawson serving.
The election was fairly and honestly held and,
so far as shown by the record, the votes were
correctly counted and returns accurately made.
Article 2940, Vernon's Ann. Civ. St., is directory
only and an election is not vitiated by the fact
that the election judge acting under the color
of authority did not possess the required quali-
fications In the absence of a showing of fraud
or misconduct. Hill v. Smlthville Independent
School Dist., Tex. Civ. App. 235 S.W. 987; Gajrle
v. Alexander, Tex. Civ. App., 75 S.W.2d 706:’
In Orth vs. Benevides, 125 S.W.2d 1081, 1084, there
is quoted with approval the following language by the Supreme
Court In Fowler vs. State, 68 Tex. 35, 3 S.W. 255:
"Electors must not be deprived of their
votes on account of any technical objection fo
the manner in which the election has been held,
or for any misconduc~t on the part of its presid-
ing officers, If these have not affected the tme
result of the election.... This would be to de-
prive citizens of a great constitutional privilege
Honorable A. A. Miller, Page 3 (O-2853)
for a mere informality, - to place l.twLthin the
power of a few persons to defeat the right of
suffrage altogether. The very means provlded to
insure a fair and proper electlon might become
an Instrument of fraud and dishonesty. Hence,
all such irregularities of the offFcers in the
conduct and return of the election as have not
prevented the electors from a free and fair exer-
cise of the right of suffrage, and from having
their votes fairly estimated for the candidate
of their choice, and which the law has not de-
clared shall set aside their ballots, must be
treated as informalities not vitiating the elec-
tion. This princFpa1 Is to be taken with the
qualification that It must be made to appear that
the neglect or misconduct of the offi.cershas not,
in the particular case, prevented an honest and
fair election."
"Adverting to the subject at hand in the light'of
these well-settled principles, it is observed that Section
33, Article I, of the Texas Liquor Control Act (ArtLcle 666-33
V.A.P.C.) stipulates that when the commissloners' court has
ordered an election it shall be its duty to order such elec-
tion to be held at the voting places in the county within a
specified time and "that said court shall appoint such offi-
cers to hold such election as now required to hold general
elections."
It Is also to be noted that Section 36, Article I,
of this Act, states that "the officers holding such electlon
shall, in all respects not herein specified, conform to the
general election laws in force regulatFng elections.... The
provision of the general election laws shall be followed in
calling and ccnducting said election where not inconsistent
herewith."
The holding of a local opticn election on general
election day is, of course, calculated to result in more vote-s
partlclpating therein and a ccnsequent greater expression of
the public will. The desira3ility of this Ls apparent. The
expediency and econ-my incident thereto is likewise mani.fest.
Such Is not prehLbited and it is our opinion that neither elec-
tion would be Invalid if each 13 otherwise conducted se as to
secure a fair and honest election.
Honorable A. A. Miller, Page 4 (O-2853)
Article 2937, et seq., R.C.S., provides for the.ap-
pointment by the commissioners ’ court of electIon judges who
in turn appoint the electFon clerks. We can perceive no rea-
son why these election officials could not, at the same time,
supervise both a local option liquor election and a general
election.
We therefore hold In answer to your first question
that the commissioners I court may order an election on the
question of the sale of IntoxlcatFng liquor in a dry county
to be held on general election day, November 5, 1940, at the
same time and at the same polling places, and that each elec-
tion may be under the supervision of the same election offi-
clals.
With reference to the use of the same ballot boxes,
It is to be noted that the statutory plan pertaining to ballot
boxes comprises four different boxes with each serving a parti-
cular purpose. Ballot box No. 4 receives defectively printed
ballots’together with defaced and mutilated ballots, and Arti-
cle 3016, R.C.S., prescribes the purpose of ballot boxes Nos.
1, 2 and 3 as follows:
“At the expiration of one hour after voting
has begun, the receiving judges shall deliver
ballot box No. 1 to the counting judges, who shall
at once dellver in its place ballot box No. 2,
vhich shall again be opened and examined in the
presence of all the judges and securely closed and
locked; and, until the ballots in box No. 1 have
been counted, the receiving judge shall receive
and deposlt ballots in ballot box No. 2. Ballot
box No. 1 shall, on Its receipt by the counting
judges, be immediately opened and the tickets taken
out by one of them, one by one, when he shall read
and distinctly announce whLle the ticket remains In
his hand, the name of each candidate voted fcr
there on, which shall be noted on the tally sheets,
and shall then deliver the ballot to the other
counting judge, whc shall place the same in box No.
3, which phall remain locked and in view until the
Honorable A. A. Miller, Page 5 (O-2853)
counting is finished, when said box shall be return-
ed with the other boxes, locked and sealed, to the
county clerk. Ballot boxes Ncs. I and 2 shall be
used by the receiving judge and the counting judge
alternately, as above provided, as often as the
counting jucige has counted and exhausted the ballots
In either box."
Ballot box No. 3 therefore is the locked and sealed
repository for the ballots after they have been counted and
until the ballots have been destroyed in accordance with
law or are subjected to examination and Inspection in a
manner incident to a proceeding contesting the electlon as
speclfically provided for by the Legislature.
It Is manifest that if both the ballots cast in
the local option election and in the general election are
deposited in ballot box No. 3 after being counted, the ballots
cast In both elections would be subject to an exposure;hovever
casual or Incidental it might be, in the event of a contest
of either election whereunder the ballots cast in the parti-
cular election being contested would be subject to examina-
tion and inspection.
In Carroll vs. State, 61 S.W.2d 1005, the constltu-
tional safeguard surrounding the ballot was recognized and
enforced. It was pointed out that ballots cast in an election
may be opened and Inspected only in a manner, and incident to
a proceeding, authorized by the Legislature. The court cie-
clared:
"The mandate of the Constitution of this
State that the vote be by ballot must be con-
strued as meaning a 'secret ballot'...."
Anything that would relax this protection to the
voter, namely, that his bailot in a particular election shall
be kept secret, is to be scrupulously avoided. Accordingly,
if the use of the same ballot boxes in the holding of a local
option election and a genera!.election at the same time would
In any way permit a ballot cast in either election to be ex-
posed other than in a manner, and incident to a proceeding,
authorized by t'neLegislature, it should not be done. We
therefore regard it as indispensable that the commissioners'
court shall at least furnish a separate ballot box No. 3 when
it has ordered a lccal option eiectlon to be held at the same
time as a general election. We deem it more desirable and
appropriate, moreover, that separate ballot boxes Nos. 1, 2
and 4 also be furnished, relating to each election, although
Honorable A. A. Miller, Page 6 (O-2853)
there Is no compelling objection to the use thereof as exists
with reference to ballot box No. 3.
It would not appear necessary that separate lists
of the voters be furnished but the tally and poll lists of
the votes cast in each election, and the returns of each,
vould necessarily have to be separate and distinct.
Yours very truly
ATPORNEYGENERAL OF TEXAS
By /s/ Zollie C. Steakley
Zollle C. Steakley
Assistant
ZCSEAH SC
APPROVED NO'J 1, 1940
/s/ Gerald C. Mann
ATPORNEY GENERAL OF TEXAS
APPROVED
Opinion Committee
BY BWB
Chairman