Untitled Texas Attorney General Opinion ( 1952 )

,~.’
tion certificates b~ecause
: . .
fex collector failed~ to is-
Dear Sir:‘- : sue .them. ?
Youfreijyest for an opizi+onreads in part-as folloivs:
, :I:~;. .
: ‘Can a.person who has reached the. age of hRU&
:.I’.-da16yeah on or since January 1, 1952; who is. not .sub-,
i.
.Ject to tbe’disqualifications setout.id,Section 33 of the
-CC .ZIee%on.Code, and who is ‘entitled td.Ln~exi&@ohfrom
‘z”e^@bWt&xvote in ‘tie primary election ‘on July 26,1952,
‘.%%&bstanding his or her failure to haves obtained from
,_”thi?‘,~‘as’sessor-collectbr cif the couutyof his re’sidence
--a certificate of exemption within 30”days prior to said
~‘.‘Rrimaryelection?
.
“As a subquestion to the one propounded above, a
-‘-‘number of ‘per’sons’in this county in due time called at
~‘“,the off& of the tax collector and requested exemption
‘, - certificate and were advised that such was not needed.
No eliemption certificates;have ,beep provided’tbe tax
“i!oUector for issue. Would the fact tbat such person
~.as des&ibed ‘above failed to obtain his exemption cer-
tificate through po fault or lack of diligence on his ‘part
alter your answer, or affect your answer to the main
question above propounded? Stated differently, would
tl+ failure of such person as described above to obtain
his~e+emption certificate within the prescribed time
deprive him of his right to vote in any election in which
‘.be could votk bad he obtained the exemption certificate,
where such failure toobtain such certificate is attribut-
able to failure’of the county authorities to provide and to
issue such exemption certificates 7’
‘A person who has reached the age of 21 years on tbe~day of
an election and who meets other necessaryqualifications and re-
quirements is entitled to vote at that election. Sets. 1 and 2, Art.
VI, Tex. Const.; Sets. 33. 34, 41. and 42, Texas Election Code.
Hon. Joe Tunnell. page 2 (V-14g5)
One of these requirements for parsons who attain the age of 21
years after January 1 of the preceding year (i.e., after January 1,
1951. with respect to voting during the current year) is that they
obtain an exemption certificate. Section 49 of the Election Code
reads in part: : .~
‘Every citizen not subject to the disqualifications
set out in Section 3.3 and who is exempt from the pay-
ment of a poll tax by,reason of the fact that he or she
hag not yet, rea.ched the age of. twenty-one years on the
first day,@ January preceding its levy . . . shall not :
later than thirty (30),days before any election at which
he v&.hes tovote obtain from the Assessor and Col-
elector of .TaxeS for the county of his or her residence
a ce~rtificate of exemption from the payment of a poll
tax, and no such person who has’failed or refused to
obtainsucb ,certificate of exemption from ~the payment
of a poll tax shall be allowed to vote. . . .”
This secti,&is based on the former A&&e 2’9&. V.C&
but two important changes b&e ~beeh made ~$nits wording. The
first is the. omission ~of.the knguage “[every ++en] ‘who does not
reside in a c&of .&n thousand inhabitants 01:’more,” The ,~second
change which shouldI131 S.W.2d 663 (Tex. Civ. App. 1939); Rogers
v. Smrth, 119 S.W.Ld 678 (Tex. Civ. App. 1938).
Section 4.9 does not put a limitation on the time during which
a certificate based on nonage may be issued, but it does require that
the certificate be obtained at ieast~30 days before the election in or-
der for the holder to vote at that election. We might state here that
in our opinion the attainment of 21 years of age may be anticipated
and the certificate issued before the applicant actually reaches that
age. in order that persons becoming 21 years old within the 30-day
period may comply with this requirement. See AttOy Cen. Op. V~-
136 (1950).
In your second question you ask whether a person who has
‘made timely application for an exemption certificate, but who has
failed to obtain one because of the failure of the county authorities
to provide and to issue such certificates, is deprived of his ,right to
vote.
Section 50 of the Election Code requires the commissioners*
court of each county to furnish to the county tax collector, before
thenfirst day of October every year. a sufficient number of blankpoll
tax receipt books and blank exemption certificate books for the coui~-
ty. The statutes contemplate that the commissioners’ Court will
furnish these forms and that the tax collector will issue certificates
to all persons applying therefor who are entitled to receive them.
Since Van Zandt County does not contain a city of 10,000 inhabitants
‘or more, there was no necessity for the commissioners* court of
that county to furnish certificate blanks as prescrrbed in Section 48
Hon. Joe TunnelI. page 4 (V-1485)
572:
of the Election Code, but it should have furnished an adequate sup-
ply of~iz.ertificat& as prescribed in Section 49.
We have no doubt that the failure of the tax collector to is-
sue exemption cert.&mates, as well as tbe failure of thencommis-
sioners’ court to provide the blanks, resulted from an innocent mis-
apprehension of the legal requirements. Nevertheless, the tax col-
Iector’s action was tantamount to a refusal to’issue the certificates.
and perfoimance, could~have been compelled by mandamus. See
Parker vi Busby, 170 SW. 1842 (Tex. Civ; App. 1914). That case hi&
that where a persorihad done everything that was required of him in
paying a poll tax within the prescr,ibed time, he was entitled to a r’e-
ceipt permitting him to vote, even though the tax collector did not ac-
tually issue the receipt until a later date. The ~court held that the re-~
ceipt should be issued as of the date of the voter’s compliance. Ap-
plying the reasoning of this holding to the present situation. it is our
opinion that upon request the tax collector should issue a certificate.
‘.
bearing the date on which application was ~originally made; to those
persons who, had be,en refused certificates when they applied for them.
Is the voter required to resort to the remedy of mandamus,
or may he vote without having actually obtained the certificate when
he has attempted to, comply with the provision for ~obtainiag one 7
None of the Texas cases holding that a certificate was necessaryhave
made any reference to a failure of the voter to obtain a certificate
under these circums ces, and we do not deem them to be determi-
native of the question.t”r
The exemption certificate statutes are in substance registra;.
tion laws. See Texas Power & Light Co.. v. Brownwood Public-Serv-
ice Co.. ill S.W.2d 1225 (Tex. Civ. App. 1937, error ref.). Section 2
Article VI of the Constitution does not make the hold& of an’exemi-
tion certificate a necessary qualification for voting. Ai pointed out
in Texas Power & Light Co. v. Texas Public, Service Co., Section 4
of Article VI authorizes the Legislature to provide for the registra-
tion of all voters in all cities &taining a population of 10.005 inhab-’
itante or more: but there is no express authorization or requirement
in the Constitution for registration of voters who reside outside cities
of that population. While the Legislature has the power to require
exemption certificates of voters residing outside of cities of 10,000
inhabitants, the.requirement does not have the status of an additional
l/ In ‘Ihomas v. Groebl. 147 Tex. 70, 212 S.W.2d 625 (1948). which
heM that, under Article 2968 as it then read, certificates issued to per-
sons over 60 years of age ~didnot have to be renewed annually, the
court observed that some of tbe tax collectors had probably failed to is-
sue certificates in reliance on an Attorney General’s opinion that annual
renewal was not necessary. The effect of the collector’s failure to is-
sue certificates where he was required to do so was not discussed.
Hon. Joe Tunnell. page 5 (y-1485)
573
qualification. In other words, the person’s status as a ,qualified
elector does not hinne on uossession of the certificate. .!iava~e
,mphries. 118 S.W. 893; 900, 909 (Tex. Civ. App. 1909=&
State 54Tex. C&m. 261, ll4 S.W. 349, 354 (1908). SincCthe
%i&ure has-made the same provisions applicable to ail, per-
5’~s exempt bec~ause of nonage, re~gardless %whether they reside
in a city of 10.000 inhabitants or ~more. it must be concluded that
the registration requirements of Section 49 weremot enacted under
the constitutional authorization in Section,4 uf Article Vi for regis-
tration of voters, but under the general power to make regulations
d
for the conduct of elections. The use of terms in Clark``v.’Stubbs
1
and Rogers V. Smith, supra. might suggest that the court was treat-
ing the exemption certificate requirement in Article 2968a as an
element of the voter’s qualification, but we think a reading of the
entire opinion in each case shows that the court was not so holding.
We also think that the holding that tbe’requirement was ‘“mandatory*
must be interpreted in the light of the facts before the court.
:m. The courts of this State have announced many times that the
election laws should be construed liberally so as to preserve the
right of’suffrage to those who, qualify as electors
. under the Constitu-
tion and statutes. The tenor of these holdmgs is that a person should
a
not be disfranchised where his failure to comply with the election
we laws is not occasioned by his own fault or neglect. in Tondre v. Hen-
sley. 223 S.W;2d 671 (Tex. Civ. App. 1949). the court held that a voter
.md not be deprived of the.right to vote in the election precinct of
his r~esidence by reason of the fact that his poll tax receipt bore an
incorrect voting precinct number. where the error was caused by an
.a- innocent mistake as to the location of the precinct lines. / Ramsay v.
Wilhelm. 52 S.W.2d 757 (Tex. Civ. App. 1932. error ref.), held that
E ‘failure of an elector to furnish a poll tax receipt to the county clerk
when obtaining an absentee ballot, where the clerk made no demand
oP- for it.~did not render the ballot illegal. Wallis v. Williams. 110 SW.
1t
4 785 ( ~Tex. Civ. App. 1908), held that the mmtake of the tax collector
a- and the voter in the manner of-making payment of the poll tax and ob-
ab- taining the receipt did,not deprive the voter of his constitutional.right
eni of suffrage. Also see Stratton v. Hall, 90 S.W.2d 865 (Tex. Civ. App.
itieS 1936,. error dism.); Lee v. Whitehead, 182 S.W.2d 744 (Tex. Civ. App.
L 1944); Thomas v. Groebl. supra Note 1.
10
As already observed, the cases we have cited which held that
>ld
a person who had not obtained an exemption certificate was’not en-
titled to vote did not raise the point here involved. and we~have been
bich unable to find a parallel case in the opinions of the Texas courts.
toper- However, the point has been ruled upon in a number of other juris-
e dictions. There is a line of cases. of which Molero v. Rowley, 194
d to is.
La. 527, I94 So. 7 (1940). is illustrative, holding that registratgon re-
; annUa quirements are not dispensed with because compliance has been MS-
to is- dered or prevented by the wrongful acts of registration officials. See
td.
Hon. Joe Tunnell. page 6 (V&1485) ,’
29. C. J.S.. Elections, 5.38, p. 61. On the other hand, there are
cases:illustrated by Earl v. Lewis, 28 Utah 116. 77 P. 235
(1904). holding that the voters is not required to resort to manda-
mus to compel the registration official to act and is entitled to
vote +thout being registered. In ,the .Lewis case the court said:
“Counsel for contestees also contend that the pro-
visions of the statute as to registration are mandatory,
and that &hefailure to revise the list and register those
,entitled ‘to register was fatal, and rendered the election
void. It is clear that the provisions of the statute as to
the register are mandatory in the sense that, if he re-
fuses or neglects, to perform his duties, he may be com-
pelled by mandamus to do .so; but it does not follow that
his refusal or failure to act defeats the ensuing election,
or deprives the qualified voter who has made proper ap-
plication for registration from exercising his constitu-
tional ,right to vote thereat. Section 2, art. 4. of the Con-
stitution,,is as follows: ‘Every citieen of the United
estates. of the age of twenty-one years and upwards;- who ’
shall have been a citizen for ninety days. and shall have
resided in the state or territory one year, in the county
four months, and in ‘the precinct sixty days next preced-
ing any election, shallbe entitled to vote at such election.
except as herein otherwise provided.’ The Constitution is
silent on the subject of registration. It is fundamental
that a right of a citizen guarantied by the Constitution can-
not be abridged, impaired, or taken away, even by an act
of the Legislature. Notwithstanding our Constitution has
-fixed the qualification of voters, the Legislature may right-
fully enact a registration law which merely regulates the
exercise of the elective franchise. and does not amount to
~a denial of the right itself,~ and does not abridge or impair
‘the, same. Section 821, Rev. St. 1898, provides that: ‘No
person shall hereafter be per’mitted~to vote at any general,
special, municipal, or school election, without having been
first registered within the time and’in the manner and
form required by the provisions of this chapter.’ . . : In
passing section 821. it is evident that the Legislature did
not anticipate a case so extreme and improbabIe as the
refusal of a sworn register to act; ‘on the contrary, the
section was passed in contemplation that the register
would perform his duty, and that legal voters, properly ap-
plying for registration, would not be denied the right. ~There
is no provision of the registration act athich warrants the
conclusion that it was the intention that the legal voter who
has properly applied for registration, but who has beende-
~prived of the right by the failure of the register to act,
575
Hon. Joe Tunnell, page 7 (V-1485)
should, .by reason .of such.failure+ .be~also deprived of ’
his constitutional. right to vote at the polls.- .We are ’
therefore of the opinion that ,a failure of a register to
..“~. a&neither vitiates the registration law, nor deprive:s
the legal.voter. who has ,properly applied-for ,registra- ”
,: tion in the manner required by sections %00, ,of his con-
stitutional right. In other words, when the legal voter
has done all that the law,requires at,his.,hands, and his
‘failure to be registered was the fault of the registra-
tion officer; ‘upon the well-settled principle ‘,of law
that the offer to ‘perform an’act which depends for its
~,‘. performance ~uponthe’action of another person, who
:. wrongfully refuses to act, is equivalent to its perform-
anceT.(McCrary on Elections. g 137). his act~s in at-,
tempting to register should be taken as equivalent to
: registration, and upon tendering his ballot at the polls,
.and showing that he possesses the ‘qualifications pre-
scribed by thenConstitution, and also the cause of his
failure to. register, he should .be permitted to vote. The
claim that the remedy of the voter in such cases is
either by mandamus to compel the register to act, or
by an ac.tion against the register for damages;. is note
:. tenable, because to require the.voter to resort to the
‘~..remedy.of mandamus would be to add onerous condi-.
tions not required by the Constitution, and a resort to’
X: an. action for ~damages would not:prevent registration of-
: ;.ficers from corruptly defeating’the will of the ‘majority.
~ofqualified voters by intentionally failing toact? ‘.~
~.‘We think:the holding in Earl-v. ~Lewis comports with the’
spirit of the election laws .of this State, as set out in case’s cited
above and in numerous other decisions. It is our opinionthat the
Legislature did not intend to disfranchise a person where his fail-
ureto. obtain the exemption certificate required by Section 49 was
brought about by the improper act of the tax collectorin refusing
to issue the certificate., The wording of Section 49. stating that
“PO such 'perscin who has failed or refused to ,obtain such certif-
icate of exemption from the payment of a poll tax shall be allowed
to vote ,,” is significant. Certainly a person who has not obtained
a certificate because of the tax collector’s refusal to issue it has
notrefused to obtain one. Did the Legislature mean that a failure
to obtain a certificate should in every instance prevent the person
from voting? It appears that the’Legi@ture, by adding the word
“refused, * intended to impart to the word “failed’” the meaning of
failure through the voter’s neglect; otherwise, the addition of the
word “refused’ would have been unnecessary, since the one word
576
Hon. Joe Tunnell, page 8 (V-1485).
Failed” could have meant that a, voter.lacking the certificate for
any reason whatever ,should not be allowed ~tovote. : ,:. ~.
~’
One further provision of the,E~lection Code should, be noted.
Section 89 providescthat “no citizen shall be permitted. to vote, ex-
cept as provided in the Constitution of Texas m$ess he first pre-
sents to the judge of election his eoll tax receipt or certificate un-
less the same has been ,lost or mislaid; or left at ~home.” Ramsay
v. Wilhelm. supra. held that Article 3004, V.C;S,, on which-
89 is ~based,TEZZor the guidance of election judges in testing qual-
ifications of a,voter and did not purport to define ~qualifications of
voters. See Thomas vi Groebl, supra. It is sufficient to say, with-
.out going .into an extended ,discussionof this section, ,that it~cannot
be taken as imposing any greater requirement for ~the possession
of an exemption certificate than that which is imposed under the
statutes providing for their issuance. Since it is our opinion that
Section 4.9 does not make .the poss~essionof a certificate a necessary
,requirement to voting where the tax collector has refused .toissue
a. certificate to the voter, it is our further opinion that Section 89
does not enlarge the requirement. .~ ~.~ L,
.Accordingly, our answer. to your second question is that a
qualified voter who has ,made timely application for’s certificate
under Section 49 of the. Election-Code should be permitted tovote
upon proof that his failure .to possess a certificate ,resulted.from ule
tax collector% refusal to issue it-~, The election judges .are authorized
to administer oaths for the -purpose of obtaining such pr~oof,:and they
have authority to require proof of the voter’s qualifications. as an
elector before furnishing him a ballot. Sets. 87; 91. 92, Election Code.
Itwould be advisable for .the~election judge to preserve.in affidaVft
form .&e,.voter’s statement of the’reason for his failure~to.have ~the
certificate. ,~..~.’ ,~.
.’ . .
We ~might add that ‘if the tax collector of yo``do&ty~Oi&ns
Be-necessary blanks and begins issuing certificates to qualified ap-
plicants, persons heretofore refused cdtificates, upon .learning these
facts. should obtain their certificates for us~eat-future election%”
: ,,
As a,general rule; .every person’who is exempt ..
&om payment’of a poll-taxbecause ofnonage must
obtain an exemption ~certificate at least 30 days before
,Hon. J+ mll. page 9 (V-L?85)
election day in order to vote at the election. Sec. 49,
Election Code-~ @nv&er. ivhere a person ma&g time-
Iy appIicaf,ion for a ce&ific&te ha& failed to obtain one
because of &e tax colkctor’s iefusal to issue it, he is
entitled to vote upon s+isfactory proof of ,his qualifica-
~.tionsas an elector and,bf the reason for his failure to
possess a certificate.
Your&-very truly,
PRICE DANIEL
APPROVED: Attorney General
.J. C. Davis. Jr.
Couuty Affairs Divitiion
E.~ Jacobson
Reviewing Assistant Assistant
Charl+s D. Mathews
First .Assistant