Graves v. Eubank , 205 Ala. 174 ( 1921 )

The question presented for decision upon this appeal is the liability vel non of a woman who has been duly registered to pay a poll tax between the 1st day of October, 1920, and February 1, 1921, as a condition precedent to a right to vote in subsequent elections. The Nineteenth Amendment to the federal Constitution, which became effective August 26, 1920, reads as follows:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

"Sec. 2. Congress shall have power to enforce this article by appropriate legislation."

This amendment automatically strikes from the state laws, organic and statutory, all discriminatory features authorizing one sex to vote and excluding the other, or placing conditions or burdens upon one not placed upon the other as a condition precedent to the right to vote, but in no wise interferes with, changes, or alters state laws with reference to elections that cannot and do not amount to a discrimination in favor of one sex against the other. It protects the man and woman alike, and a burden cannot be placed upon one sex that is not put upon the other, nor can a privilege, benefit, or exemption be given one to the exclusion of the other. The said amendment, by its own force and effect, strikes from section 177 of our state Constitution the word "male," as used in defining who are or may become electors, as well as where used in other parts of our organic or statutory laws when used in connection with the right and qualification to vote, and also strikes therefrom the use of the masculine pronoun wherever it appears, so as to make the same include and applicable to both sexes. And as the said amendment prohibits a discrimination against women by section 177, and perhaps other provisions of our state law, it likewise prohibits a discrimination against men by sections 178 and 194 of our Constitution, and has the same effect upon these provisions as to the elimination of the male sex as when used in section 177 and other provisions. The result is that upon the final ratification of the Nineteenth Amendment it had the effect of making our organic as well as statutory laws applicable to men and women alike, and placed all women in the state upon the same footing with men, and those who were over 21 years of age and under 45 prior to October 1, 1920, were so to speak, put in the same shoes of a man who became 21 years of age between the ratification of the amendment and said 1st day of October, 1920. In other words, if the man became liable to a poll tax payable October 1, 1920, and delinquent the 1st of the following February, the women who were over 21 and under 45 years of age are likewise liable for said poll tax as a condition precedent to the right to vote in succeeding elections.

This ruling conforms to and harmonizes with the previous rulings of the United States Supreme Court upon kindred or analogous questions. In case of Neal v. Delaware, 103 U.S. 370,26 L. Ed. 567, the question presented was the effect that the Fifteenth Amendment had upon the laws of Delaware which required that all jurors should be "white male electors." The court held that the federal amendment had the effect, of its own force, and without the aid of Delaware legislation, of striking from the existing law of Delaware only the word "white" and left all of the rest of said law undisturbed. This Neal Case, supra, was cited approvingly in Ex parte Yarbrough,110 U.S. 651, 4 Sup. Ct. 152, 28 L. Ed. 274. It was again cited and approved in the case of Guinn v. U.S., 238 U.S. 362,35 Sup. Ct. 930, 59 L. Ed. 1340, L.R.A. 1916A, 1124, wherein the court, speaking through the Chief Justice, said:

"While in the true sense, therefore, the amendment gives no right of suffrage, it was long ago recognized that in operation its prohibition might measurably have that effect; that is to say, that as the command of the amendment was self-executing and reached without legislative action the conditions of discrimination against which it was aimed, the result might arise that as a consequence of the striking down of a discriminating clause a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out. Ex parte Yarbrough, 110 U.S. 651; Neal v. Delaware, 103 U.S. 370. A familiar illustration of this doctrine resulted from the effect of the adoption of the amendment on state Constitutions in which at the time of the adoption of the amendment the right of suffrage was conferred on all white male citizens, since by the inherent power of the amendment the word 'white' disappeared and therefore all male citizens without discrimination on account of race, color, or previous condition of servitude came under the generic grant of suffrage made by the state."

Since the fixation of a poll tax the time of the accrual of same and for the payment thereof as a condition to vote, as well as all exemptions therefrom, are provided for and regulated by our state Constitution, as amended by the Nineteenth Amendment as well as the Soldiers' Exemption Amendment, designated as section 194 1/2 of the Constitution, this instrument controls in the settlement of the question here presented, and so much of the act of 1920 (page 1, Special Session) can have no bearing upon the same, and so much thereof as deals with this particular question is merely cumulative and is of little or no consequence, whether said act is or is not a penal one or whether it went into effect upon its passage or not until 30 days thereafter.

In the case of Shepherd v. Sartain, 185 Ala. 454, 64 So. 57, following the case of Finklea v. Farish, 160 Ala. 230,49 So. 366, and qualifying the case of Frost v. State, 153 Ala. 654,45 So. 203, the opinion says:

"In accordance with the latter case [referring to the Finklea Case], which it is conceived involved a construction of section 194 of the Constitution, we now conclude:

"(1) The Constitution [section 194] levies the poll tax according to age at the time the tax is declared to be due, viz., on the 1st day of October of each year, and the Legislature has no power to change the operation of that provision.

"(2) One who becomes 21 years of age before the 1st day of October of any year is subject to the poll tax due on that date."

The result is that, the Nineteenth Amendment becoming operative prior to the 1st day of October, 1920, all women who were over 21 years of age and under 45 on said date became liable to the payment of the poll tax due on said date and which would become delinquent the 1st of the following February as a condition to vote in succeeding elections, and this appellant, having tendered the tax collector the amount of her tax, is entitled to the writ of mandamus compelling the acceptance of same and the issuance to her of a receipt therefor, and which said writ was erroneously denied by the trial court. It must not be understood from this holding that the court means to intimate that any vote heretofore cast in the November election or any other election held prior to the 1st day of February, 1921, is invalid when cast by those who acquired the right to vote by virtue of the Nineteenth Amendment, but we do hold that, in order to vote in future elections occurring after the 1st of February, they must have paid the poll tax which becomes delinquent on said 1st day of February.

While the law as declared in the case of Frost v. State was departed from in the case of Finklea v. Farish, and not only departed from in the Sartain Case but said Frost Case was expressly qualified, the same has never been expressly overruled, for the reason, no doubt, that a majority in each instance were of the opinion that Frost did not become 45 years of age prior to the time the tax became due, October 1, 1906. He was born October 2, 1861, and by excluding his birthday, which was conceded to be proper in the opinion as well as the briefs in said case, he did not become 45 years old before the tax became due, October 1st, but on the day that it became due. In other words, he was 45 years of age the day the tax was due, and going upon the theory that but one day could be excluded, he was not 45 before the tax became due and was not therefore exempt from the payment of same; and there was some reason for feeling that the right result had been reached in said case, notwithstanding the unsoundness of the reason given for same. Upon a reconsideration of this Frost Case, however, we are not only of the opinion that the reasoning of same was properly overturned in the two later cases, but it should have been expressly overruled. Under the law as applicable, Frost was 45 years of age October 1, 1906, the day the tax fell due, and if the Constitution exempted those over 45, he would have been liable; but upon a closer analysis of section 194 of the Constitution, we are of the opinion that it is the fixation of a tax on certain ones and not an exemption. In other words, it places a tax on those "over age of 21 years and under 45 years of age." Frost on October 1, 1906, was 45 years of age and not "under the age of 45" as fixed by the Constitution. We therefore expressly overrule said case of Frost v. State,153 Ala. 654, 45 So. 203.

The case of State v. Doster Drug Co., 196 Ala. 447, 71 So. 427, did not involve the question here in hand, as it was dealing with escape property taxes, and the citation of section 194 of the Constitution, which deals exclusively with the poll tax, was in-apt. The citation of the Frost Case was also, no doubt, due to inadvertently overlooking the fact that it had been repudiated by the more recent Finklea and Sartain Cases.

The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

All Justices concur, except McCLELLAN, J., who dissents.