Untitled Texas Attorney General Opinion ( 1948 )

AUS~N, TEXAS
February 5, 1948
Hon. L. A. Woods, Opinion Ao, V-494
State Superintendent,
Department of Education, Re: The validity of a
Austin, Texas school bond elec-
tion on February
21, 1948, sincb tha
poll tax rolls Will
not be compiled be-
fore April lst, 1948.
Dear Sir:
We refer to your letter of January 24, 1948
in which you submit the following:
"1. The Fort Worth Board of Educa-
tion has called a bond election for Feb-
ruary 21st, 1948.
"2. Certain Fort Worth attorneys
have advised the Board that such election
cannot be valid because of the absence of
a poll tax list as required by Article
2975 of the Revised Civil Statutes of
Texas e The poll tax list will be absent
because the tax,office cannot complete it
before April lst, 1948.
"3. Will the election be valid
should it be held without such a list hav-
ing been furnished by the Collector?ll
You have informed us that the boundaries of .
Fort Worth Independent School District do not coincide
with the boundaries of the City of Fort Worth, by reason
of which we assume that such district boundaries are not
coincident with the boundaries of the voting precincts.
The poll tax receipt and exemption records
in the office of the countytax assessor-collector of a
county contain the names of those who have paid poll tax-
es or obtained exemption certfffcates in each election
Hon. L. A..Woods - Page 2 (V- 494 )
precinct of the county, separately. It is not stated
in those records whether the poll tax payer or exemp-
tion certificate holder resides in any school district,
by reason of which no certified list of the voters in
the Fort Worth Independent School District, as such
could be furnished to the election officials of such
district by such county officer based upon the records
of his office.
It is elementary that the law does not re-
quire an officer to certify that things exist or are
disclosed by his records which things are not so dis-
closed.
The pertinent parts of Article 2955,.V.C.S.
read:
" 0 0 e 0 provided that any voter who is
subject to pay a poll tax under the laws
of this State, shall have paid said tax
before offering to vote at any election
in this State and holds a receipt show-
ing that said poll tax was paid before
the first day of February next preceding
such election; and, if said voter is ex-
empt from paying a poll tax and resides
in a city of ten thousand (10,000) inhab-
itants or more9 he or she must procure a
certificate showing his or her exemptions
as required by this title. 0 0 The pro-
visions of this Article &s to cu bal- .
&&= shall apply to all elections includ-
. fng general, special and primary elections.*
(Emphasis added)
Article 2785? V.C.S, provides for elections
to determine the proportion of the levy of such tax or
the issuance of school bonds. The pertinent part of that
article reads: It0D 0 0 said~election shall be held and
conducted as provided by law for general elections, ex-
cept as provided herein." (Emphasis added)
Fort Worth Independent School District was
created by House Bill No9 528, Chapter 230,Local and SPec-
ial Laws, Acts 1925, 39th Legislature, page 674, with full
powers to call and hold elections for the issuance of bonds.
Hon. L. A. Woods - Page 3 (V-494)
There is no requirement that Its election officials be
furnished a list of poll tax payers.
The provisions of Articles 2955 and 2785,
V.C.S. pertain to the method of conducting elections,
such as casting and counting ballots and making returns.
Article 2975 requires County Tax Collectors
to “deliver to the Board certified lists of citizens in
each precinct who have paid their poll tax or received
their certificates of exemptiorY~before April 1st of
each year.
In Schrock v. Hylton, 133 S. W. (2d) 175, the
Court quoted and approved other cases as follows:
“So, for the purpose of this opinion,
assuming that the election was held under
and governed by the provisions of the gen-
eral election laws of the State of Texas,
which evidently was not the case, by virtue
of the above statute, Art. 3054, supra, Q&
burden of proof rested upon contestants to
show that a poll list at the polling place
would have materially changed the result of
the election, or that the absence of such
list did materially change the result; thus,
in the absence of such showing, the failure
of the election officers to have a certified
list at the polling place at the time the
election was held, becomes immaterial,
“In State ex rel? Paggi v, Fletcher,
Ter. Civ. App,, 50 S.W.2d 450, 452, in an
election-contest, among ether assignments of
error, the contention was made, as here, to
void the election, that a list of voters was
not furnished the election officers in com-
pliance with Art, 2975, R.S. The court said:
‘Because the voting lists furnished the elec-
tion judges failed to furnish all the inform-
ation prescribed by article 2975, appellants
insist that the election was absolutely void
* * * In support of their proposition ap el-
lants cite yett v0 Cook, 115 Tex, 205, 2i1
S.W. 8379 and articles 29759 3005, and 3012
.
Hon. L. A. Woods - Page 4 (V-494)
of the Revised Statutes. While it Is true
that the Supreme Court, in Pett v. Cook, dls-
cussed the office of the list of voters pro-
vided for by article 2975 and in effect held
that the provisions of this article were mand-
atory, the facts of that case have no relation
to the facts of this case, and what was said
there can throw but little light on the propo-
sition befere us. * * l To have relief because
Its provisions were not complied with, appel-
lants rested under the burden of alleeinr and
proving Itinjury,wwhich was not done.-``&
apht to vote is a constitutional rieht and
while the Legislature has the Dower to &tab-
lish rules.regulating this right, such regu-
lations should generally be given a liberal
construction to effectuate the constitutional
right of suffrage. Regulations which, from
their very nature, are deemed absolutely es-
sential to accomplish the purposes of consti-
tutional suffrage, are deemed mandatory; such
as, that voting shall be by ballot, that it
shall take place on a certain day within cer-
tain precincts, etc. Rut reaulations that are
u&g
no
the election are considered merely formal in
character and should be construed as directory.
This is the clear holding of the Supreme Court
in McKinney v. O'Connor, 26 Tex. 5, and Fowler
v. State, 68 Tex. 30 3 S.W. 255. also of
this court In State tex rel. Pace j v. Logan
(Tex. Clv. App.) 5 S.W.2d 247, and Scurlock
v. Wlngate (Tex. Civ.~App.) 283 S.W. 307. See,
also, Turner v. Teller (Tex. Civ. App.) 275
S.W. 115; Bass v. Lawrence (Tex. Civ. App.) 300
S.W. 207 . . .
"The decisions cited on the question of
whether the provisions of the law, relative to
election officers having a properly certified
list of the qualified voters or of the polls,
are mandatory or directory, are clearly in fa-
vor of the rule that, the failure of either the
voters or election officers to perform their
respective duties at the polls according to the
Hon. L. A. Woods - Page 5 (V-494)
Do eround to set aside an election other isa
al . In McCrary on Elections, 4thWEd.
t&q-- the author says: ‘The justice of this
rule S apparent, and it may be said to be the
underlying principle to be applied In determin-
ing this question. The requirements of the law
upon the electors are in the Interest of pure
elections, and should be complied with at least
in substance, but to disfranchise the voter be-
cause of the mistakes or omissions of election
officers would be to Put him entirely at the
mercy of political manipulators. The perforr-
an&e by the election officers of the duties in-
posed upon them can be reasonably well secured
by providing a penalty for failure so to do.‘”
&mphasis added)
c
It will be noted that the list to be compiled
by the county tax collector under the provisions of Arti-
cle 2975 must be delivered before the first day of April
of each year. In other words, the tax collector has until
such date to deliver the list, and the statute would not
be violated if such list were not delivered until the last
day of March. Therefore, if an election is to be held un-
der appropriate statutory provisions after January 31st
and before April 1st) and the list has not been delivered,
then Article 2975 could have no application or bearing on
such election.
We are of the opinion that failure of the As-
sessor and Collector of Taxes for Tarrant County to fur-
nish election officials in a school bond election in Fort
Worth Independent School District with a certified list of
voters in said district will not invalidate such election.
Opinions Nos. o-1178 and O-3350 by a former
Attorney General, and bpinion No. V-220 by us are perti-
nent to your inquiry, and a copy of each of them is en-
closed for your information. Said Opinion Noo.o-1178 holds
!
Hon. L. A. Woods - page 6 (v-494)
that Article 2955v, V.C.S., which requires T~ax Assessors
to furnish election officials with a list of property tax-
payers, Is void. That opinion Is in accord with the cases
of Lucchese v. Mauermam, ,195 S.W. (26) 422, ref. n.r.0.
certiorari denied 67 S. Ct. 633 and Border V. Abel1 lil
S.W. (2d) 1186. &aid Opinions N:s. O-3350 and~V-220 &F-
taln to the qualification of voters In such e1Cctlons.
Fall+re of the County hssessor and
Collector of Taxes to furnish election of-
ficials In a school district bond election
with a list of holders of poll tax receipts
and exemption certificates In such school
‘districtwill not invalidate such election.
Yours vary tr$ay,
ATTORNEY GEHE3AL OF TEXAS
WTW :wb
Encls.
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Assistad
APPROVED: