Bluitt v. State , 56 Tex. Crim. 525 ( 1909 )

I agree with my brethren in reversing and dismissing the prosecution. I think that portion of the majority opinion is correct. In the disposition of some of the other questions I can not concur. The evidence discloses that appellant lived within the corporate limits of Ennis, in Ellis County. This residence included the years 1904, 1905 and 1906, and up to September, 1907, since which time he has resided in the city of Corsicana, in Navarro County. During the years mentioned he paid street tax in Ennis required under the charter and by-laws and regulations of that town. It was sought during this time to require him to work upon the public roads of the county. These roads, of course, were outside of the corporate limits of the city of Ennis. This he declined to do, and for this failure this prosecution was brought. Those who reside in incorporated towns and cities are not required, nor can they be forced, to work upon public roads of the county. Their duty in this respect is to work the streets or pay street tax, either or both, required of him as a resident of the incorporated town. The county has control of the public roads, but towns and cities have control of the streets. The county has no authority over the streets of an incorporated town, nor has the county any authority to summon or require work of those who reside in such incorporated towns to work upon county roads. The county and the cities and towns are municipalities independent of each other, each being supreme within its own jurisdiction and political sphere. The county can not assume jurisdiction of the streets, nor can the city assume jurisdiction of the county roads. They are municipal bodies entirely separate and distinct from a political standpoint, each governed by such laws as the Legislature under constitutional authority may enact or authorize. Such has been the legal and judicial history of Texas. This question first came in the case of State v. Jones,18 Tex. 874. It was again decided by the Supreme Court in Norwood v. Gonzales County, 79 Tex. 218. The Jones case, supra, has been followed by the Appellate Courts of this State in all the decisions. There have been several cases decided by the Court of Appeals and Court of Criminal Appeals. Ex parte Roberts, 28 Texas Crim. App., 43. I deem it unnecessary to collate these, as all the decisions are harmonious, not even broken by a dissent. This is also the rule in other states. Nelson v. Garfield, 6 Colo. App., 279; Gallaher v. Head, 72 Iowa 173; 21 Iowa 418. For the first time in the history of Texas a majority of the court in this case holds that the residents of an incorporated city or town can be compelled to work on the county roads. This is evidently erroneous. If my brethren are correct, then the residents of cities and towns could not only be required to pay taxes levied and collected for the purpose of keeping up the streets, as well as working on said streets, but they would be required as well to go out into the county and work the public roads, thereby being burdened with onerous double duties. I do not care to follow this question it is so obviously incorrect.

There are other questions in the case to which I do not agree, one of which I will mention. My brethren hold that the Legislature is authorized to levy three dollars poll tax for road purposes in Ellis County, being a special law of that county. The Constitution requires payment of poll tax as a prerequisite to the right of suffrage. This conclusion of the majority of the court seems to be upon the idea that the Legislature has a right to classify voters, as was held by the majority in the case of Solon v. State, 54 Tex.Crim. Rep.; 114 S.W. 349. The Solon case is made the authority for this decision. I can not agree that the right of suffrage is an occupation, or that a poll tax may be classified, for the Constitution, in regard to the right of suffrage, places every man who is authorized to vote upon the same plane. Under the Solon case, and the decision in this case, voters would be required to pay as a county tax in Ellis County — not a State tax — very considerably more than in other counties. I can not believe this is correct under our Constitution. I therefore respectfully enter my dissent.