Koy v. Schneider

Mr. Justice GREENWOOD

delivered the opinion of the court.

Question certified from the Court of Civil Appeals of the First Supreme Judicial District of Texas, in an appeal from the District Court of Fayette County.

The certificate of the Honorable Court of Civil Appeals is as follows :

“In the above styled and numbered cause, now pending in this Court on appeal from the District Court of Fayette County, the question hereinafter stated, which is material to a decision of this , appeal, arises upon the statement of the nature and result of the suit, and the facts disclosed by the record, which are as follows:

“The suit was brought by appellant for mandamus to compel the appellee, the Tax Collector of Austin County, to issue' a poll tax receipt entitling her to vote, under the provisions of Chapter 34, Acts of the Fourth Called Session of the 35th Legislature. The petition alleges and the facts disclose that appellant possessed all of the qualifications of a voter prescribed in said Act of the Legislature. The application for payment of poll tax and the issuance of receipt therefor contains all of thp requisites prescribed by the statute. The appellee, upon presentation of the application, refused to accept the poll tax money which was tendered by appellant, and refused to issue her a receipt.

‘ ‘ The appellee answered in this suit by filing a general demurrer, and admitting the allegations of plaintiff’s petition as to her sex, residence, tender of poll tax money, demand for poll tax receipt, and all other facts necessary to entitle her to a poll tax receipt under said Act of the Legislature. The court below sustained appellee’s general demurrer to plaintiff’s petition, on the ground that the Act of the Fourth Called Session of the 35th Legislature, before cited, was unconstitutional and void.

“Because of the public importance of the question, and the obvious desirability of obtaining its final decision within the earliest practical time, we deem it advisable to certify for your decision the" following question:

“Is the Act of the Legislature above cited, granting to women the privilege of voting in primary elections, violative of Section 2 of Article 6 of our State Constitution?”

Article VI of the Constitution of the State of Texas, in section 2, prescribes that every male person, subject to no disqualification specified by section 1, and who shall have attained the age of twenty-one years, and who shall be a citizen of the United States, and who shall have resided in this State one year next preceding an election and the last six months within the district or county in which he offers to vote shall be deemed a qualified elector; and that every male person of foreign birth, subject to no disqualification specified by section 1, who not less than six months before an election, at which he offers to vote, shall have declared his intention to become a citizen of the United States in accordance with the Federal Naturalization Laws, and shall have resided in this State one year next preceding such election and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector.

The Act of the Legislature confers the right to vote on women possessing the qualifications, save of sex, of electors under the Constitution and laws of the State, at any and all primary elections or nominating conventions to be held under the laws of the State, and requires each woman offering to vote in any primary election or convention, after January 1, 1919, to comply with all provisions of our laws requiring and permitting voting on payment of poll taxes.

Our answer to the certified question depends on whether the constitutional provision, when rightly construed, fixes the qualifications of participants in party primaries or conventions.

There are many organized voluntary groups in the various States of the Union, whose purposes and objects depend for their accomplishment on the exercise of a form of suffrage by the individual member. Such groups are of the highest value in the promotion of the general good. Among these groups are many maintained for charity, many maintained for helpful cooperation, such as mutual insurance associations, and many maintained for the support of religious worship, such as the various churches having a congregational form of government. The law recognizes, and will often enforce, the right of the individual as an elector in the conduct of the affairs of each of such groups to which he belongs, but no one would maintain that such • right, even when exercised in a group regulated by statute, as not infrequently occurs, came within the purview of article YI of our Constitution. It follows that the words “qualified elector” and the word “election” were not used in this constitutional provision in the broadest possible sense, and that in order to determine their application to the exercise of the right of suffrage within an organization we cannot ignore the essential nature and objects of such organization.

The Act of the Legislature deals only with suffrage within the party primary or convention, which is but an instrumentality of a group of individuals for the accomplishment of party ends.

As so well stated by this Court in Waples v. Marrast, 108 Texas, 11 to 13, L. R. A., 1917A, 253, 184 S. W., 183: “A political party is nothing more or less than a body of men associated for the purpose of furnishing and maintaining the prevalence of certain political principles or beliefs in the public policies of the government. As rivals for popular favor they strive at the general election for the control of the agencies of the government as the means of providing a course for the government in accord with their political principles and administration of those agencies by their own adherents. According to the soundness of their principles and the wisdom of their policies they serve a great purpose in the life of a government. But the fact remains that the objects of political organizations are intimate to those who compose them. They do not concern the general public. They directly interest, both in their conduct and in their success, only so much of the public as are comprised in their membership, and they only as members of the particular organization. They perform no governmental function. They constitute no governmental agency. The purpose of their primary elections is merely to enable them to furnish their nominees as candidates for the popular suffrage. ... To provide nominees of political parties for the people to vote upon in the general elections is not the business of the State. It is not the business of the State because in the conduct of the government the State knows no parties and can know none. . . . Political parties are political instrumentalities. They are in nonsense governmental instrumentalities. ’ ’ In a previous portion of the opinion, the Court recognized that: ‘General elections are essential to the public welfare and are distinctly related to the discharge of an important governmental duty, because it is only by their means that the organic law may be amended and in the elective offices public officials be supplied for the various administrative agencies of the State.” 108 Texas, 11.

Prom the above it appears that the real question before us is whether we should construe the suffrage article of our Constitution as sufficiently broad in scope to relate to suffrage within a mere political organization, as contradistinguished from a governmental organization, and within an organization, whose objects do not concern the general public and are intimate only to those who are comprised within the organization’s membership <? To our minds, this question admits of no answer save in the negative.

It is difficult to conceive how the primary election law of this State, even without the provision admitting women to participation in primaries and conventions, could be held free of violation of the constitution, if section 2,'of article VI, were construed to govern voting at party primaries and conventions. Por, it would seem unquestionable that the constitutional provision was designed to prevent the denial of the right of suffrage, which it safeguards, to any person possessing the requisite qualifications; and all the authorities seem in accord with the statement that ‘ ‘ where the right of suffrage is fixed in the constitution of a State, as is the case in most States, it can be restricted or changed by an amendment to the constitution or by an amendment to the Federal Constitution, which, of course, is binding upon the States. But it cannot be restricted or changed in any other way. The Legislature can pass no law directly or indirectly either restricting or extending the right of suffrage as fixed by the constitution.” 10 A. & E. Encyclopedia of Law, 573, 576; 15 Cyc., 282,. 8 R. C. L., see. 41.

In Cooley’s Constitutional Limitations, in section 599, it is said: “Whenever the Constitution has prescribed the qualifications of electors, they cannot be changed or added to by the Legislature or otherwise than by an amendment to the Constitution.”

The rule stated was approved in the opinion of Justice Ramsey in Solon v. State, 4 Texas Cr., 261, 114 S. W., 349, where it is said: “Where a Constitution has conferred the right and prescribed the qualifications of electors, it, of course, is paramount until amended, and the Legislature cannot change or add to them in any way; but, where the Constitution does not fix the right of suffrage or prescribe the qualifications of voters, it is competent for the Legislature, as the representative of the lawmaking power of the State, to do so.”

By its very nature, and certainly by its express terms,’ the Texas primary law provides for the exclusion¿from participation in party primaries of persons granted the constitutional right of suffrage, if the constitutional grant extends to primary suffrage. The definition in our statutes of a “primary election” excludes therefrom all save “the members of an organized political party.” The test prescribed and authorized, as to which the Constitution is silent, operates still more restrictively. Arts. 3085, 3096, 3093, Yernon’s Sayles’ Texas Civil Statutes.

We. think it fallacious to argue that our primary election laws regulate but do not restrict the right of suffrage. It is true they regulate, but the first and essential step in the regulation is to restrict.

Most of the States, as above noted, have primary election systems, established under constitutional provisions similar to ours. Hence, if our primary system is affected by constitutional infirmity, so would be most of the primary systems of our sister States.

No matter how far reaching and disastrous would be the consequences of declaring primary suffrage within the scope of our constitutional provision, we would not decline to make the declaration if such was believed to be the true intent of the language of the Constitution. It is a proper inquiry, however, in ascertaining whether a certain interpretation should be given to the language of the Constitution, to consider whether its framers and the voters by whom it was adopted intended the consequences which must follow such interpretation. Scott v. Sandford, 19 How., 426, 15 L. Ed., 691; Maxwell v. Dow, 176 U. S., 602; Assn. v. New York, 152 N. Y., 257, 37 L. R. A., 792, 46 N. E., 499.

In Kelso v. Cook, 184 Ind., 173, 110 N. E., 990-993, it was contended that a primary election came within the purview of section 2, of article 2, of the Constitution of Indiana, which reads: “In all elections not otherwise provided by this Constitution, every male citizen of the United States, of the age of 21 years, . . . who shall have resided ... in the township sixty days, and in . . . the precinct thirty days, immediately preceding such election, . . . shall be entitled to vote in the . . . precinct where he may reside, if he shall have been duly registered. . . .” In rejecting the contention, the Supreme Court of Indiana said: “The character of an act is often best determined by viewing it from the standpoint of its results. The practical results of holding that section 2, of article 2, supra, cover primary elections, is their destruction, whether voluntarily held by groups of electors called political parties, or involuntarily held under statutory mandate. We do not believe that the people in adopting the constitutional provision, had any such result in mind.”

Likewise, we have no doubt that nothing was further from the minds of anyone having a part in framing the suffrage provisions of our constitutions or further from the minds of the voters by whom same were adopted than to prevent nominations by means of party primaries.

Indeed, in the light of the history of party nominations by conventions and by primaries in this State, the conclusion seems inevitable that the people in voting on section 2, of article VI. of the Constitution of 1876, and on the amendment adopted in 1902, could not have contemplated or intended for the original section or amendment to have any relation whatever to party primaries. The idea of subjecting parties to restraint in the matter of selecting nominees and of declaring and accomplishing party aims is one which arose after the words were put into the Constitution, which are now claimed to govern the qualifications of participants in primaries.

It seems to us that due consideration for the opinions of the appellate courts of other states, construing similar constitutional provisions, relating to elections and to electors, must at least make doubtful whether the language of section 2, of our article VI, could be properly held to refer to primary elections and to those participating therein. Our obligation to carefully consider such opinions, in determining constitutional questions, is plainly announced by this Court in 'the opinion of Chief Justice Hemphill in the early case of DeCordova v. Galveston, 4 Texas, 476.

It was said by the Supreme Court of West Virginia in the case of Baer v. Gore, 79 W. Va., 58, L. R. A., 1917B, 728, 90 S. E., 533: “By many text-books and decisions an important distinction is noted between a general and a primary election. They treat a primary election merely as a substitute for a nominating caucus convention and not as an “election” within the meaning of that term as used in Constitutions. So treated, it is a mere matter of statutory regulation within a reasonable exercise of the police 'power of the State, predicated on rights reserved by the people, when not forbidden by the organic law of the municipality. This principle is especially emphasized with reference to the qualifications of electors and tests of party membership prescribed by primary laws.”

In State v. Flaherty, 23 N. D., 323, 41 L. R. A. (N. S.), 132, 136 N. W., 81, it is stated: “Many courts lay down the broad rule that such constitutional provisions are applicable only to general elections and therefore do not apply to primary elections. As illustrative, we quote from Riter v. Douglass, 32 Nev., 400, 109 Pac., 444; ‘That a primary election of candidates is not an election of officers within the meaning of the constitutional test has been sustained bv an overwhelming weight of authority in States with similar constitutional provisions to those contained in the Constitution of Nevada,’ citing Line v. Election Canvassers (Line v. Waite), 154 Mich., 329, 18 L. R. A. (N. S.), 412, 117 N. W., 730, 16 Ann. Cas., 248; Montgomery v. Chelf, 118 Ky., 766, 82 S. W., 388; State ex rel. Gulden v. Johnson, 87 Minn., 222, 91 N. W., 608, 840; State ex rel. Webber v. Felton, 77 Ohio St., 554-578, 84 N. E., 85, 12 Ann. Cas., 65; Dooley v. Jackson, 104 Mo. App., 21, 78 S. W., 333.”

There is another line of authorities which excludes from the purview of such' constitutional provisions as ours all elections provided for by statute only, and not by the Constitution. Scown v. Czarnecki, 264 Ill., 305, 106 N. E., 276, L. R. A., 1915B, 253; Riter v. Douglass, 32 Nev., 400, 109 Pac., 444; State v. Nichols, 50 Wash., 508, 97 Pac., 728; Schostag v. Cator, 151 Cal., 600, 91 Pac., 502; State v. Flaherty, 23 N. D., 313, 136 N. W., 76, 41 L. R. A. (N. S.), 132; Hanna v. Young, 84 Md., 179, 35 Atl., 674, 34 L. R. A., 55, 57 Am. St. Rep., 396; Coggeshall v. Des Moines, 138 Iowa, 730, 128 Am. St. Rep., 229, 117 N. W., 309; Buckner v. Gordon, 81 Ky., 665; Florida (State ex rel.) v. Dillon, 32 Fla., 545, 14 So., 383, 22 L. R. A., 124; State v. Johnson, 87 Minn., 223, 91 N. W., 604, 841.

See, also: Baer v. Gore, 79 W. Va., 50, 90 S. E., 533, L. R. A., 1917B, 728; Montgomery v. Chelf, 118 Ky., 766, 82 S. W., 388; Wheeler v. Brady, 15 Kan., 26; State v. Monahan, 72 Kan., 492, 115 Am. St. Rep., 224, 84 Pac., 130, 7 Ann. Cases, 661; Harris v. Burr, 32 Or., 348, 39 L. R. A., 768, 52 Pac., 17; State v. Board of Elections, 9 Ohio, C. C., 34; State v. Felton, 77 Ohio St., 554, 84 N. E., 85, 12 Ann. Cas., 65; Re Carragher, 149 Iowa, 225, 128 N, W., 352, 31 L. R. A. (N. S.), 322, Ann. Cases, 1912C, 972; Seaman v. Baughmann, 82 la., 216, 47 N. W.,109, 11 L. R. A., 354; Mayor v. Shattuck, 19 Colo., 104, 34 Pac., 947, 41 Am. St. Rep., 208; People v. English, 139 Ill., 622, 29 N. E., 478, 15 L. R. A., 131; Plummer v. Yost, 144 Ill., 68, 33 N. E., 191, 19 L. R. A., 110; Ackerman v. Haenck, 147 Ill., 514, 35 N. E., 381; Landis v. (Ashworth) School List., 57 N. J. L., 509, 31 AtL, 1017; State v. Board, 57 N. J. L., 605, 31 AtL, 1033; Opinion of Justices, 115 Mass., 605; Olive v. School Dist., 86 Neb., 135, 125 N. W., 141, 27 L. R. A. (N. S.), 522; State v. Cones, 15 Neb., 444, 19 N.' W., 682; Belles v. Burr, 76 Mich., 1, 43 N. W., 24; Menton v. Cook, 147 Mich., 540, 111 N. W., 94; In re Gage, 141 N. Y, 112, 25 L. R. A., 781, -35 N. E., 1084; In re Inspectors of Elections, 25 N. Y. Supp., 1063; Spitzer v. Pulton, 172 N. Y., 285, 92 Am. St. Rep., 736, 64 N. E., 957; State v. Board of Elections, 2 Ohio Dec., 94; Leflore County v. State, 70 Miss., 769, 12 So., 904.

A number of the above cases announce conclusions similar to Scown v. Czarnecki, 264 Ill., 305, 106 N. E., 276, L. R. A., 1915B, 247, Ann. Cas., 1915A, 776, which involved the validity of an Illinois statute of 1913, known as the Woman’s Suffrage Act, and which, though it did not mention party primaries, granted to women the right of suffrage as to certain officers and as to certain other subjects therein mentioned, some of which were, and some of which were not, covered by provisions of the Constitution of Illinois. The line of cleavage was very clearly drawn and strictly followed, as of determinative force, by the Supreme Court of that State, in an opinion holding said statute in part invalid and in part-valid. In that opinion, after reviewing previous decisions of the Illinois Supreme Court, it is said: “By these decisions the rule is settled that section 1 of article 7 of the Constitution refers only to elections provided for by that instrument. The qualifications of voters at such elections are fixed by the Constitution and the Legislature cannot change them. Other elections, however, provided for only by statute and not by the Constitution, are wholly within the control of the Legislature.”

The Court of Civil Appeals at Austin determined in a carefully-considered . opinion, in the case of Hamilton v. Davis, 217 S. W., 431, in which all the judges concurred, that the legislative act mentioned in the certified question was not violative of the Constitution.

If the decisions referred to, and others in line with them, should not be accepted as conclusive in so far as they bear on the precise question under consideration, as we are inclined to regard them, it seems to us that they must at least raise grave doubt as to whether our constitutional provision and similar clauses in pther constitutions were meant to prescribe the qualifications of participants in party primaries.

Nothing is plainer than our duty when such doubt exists. Judge Brown was very particular in laying down the principle which has ever guided and must ever guide this Court, under such conditions, when he said, in Brown v. Galveston, 97 Texas, 9, 75 S. W., 492: “If there be doubt as to the validity of the law it is due to the co-ordinate branch of the government that its action should be upheld and its decision accepted by the judicial department. In his work on Constitutional Limitations, page 218, Mr. Cooley says: ‘The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague' conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. ’ ”

Judge Brown and the Court felt that the importance of this enunciation justified its repetition, and later in the same opinion it, is declared: “If there was doubt in our minds our conclusion must be as expressed in the following quotation: “But if I could rest my opinion in favor of the constitutional ity of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt. ’ ” Brown v. Galveston, 97 Texas, 12.

Principal reliance is placed, in attacking the statute, on the decisions in Ashford v. Goodwin, 103 Texas, 491, 131 S. W., 535, Ann, Cases, 1913A, 699; Anderson v. Ashe, 62 Texas Civ. App., 262, 130 S. W., 1044, and Lane v. McLemore, 169 S. W., 1073. The last named two cases follow the decision in Ashford v. Goodwin, where it was held that the amendment to the Constitution conferring original jurisdiction on the district courts in cases of contested elections authorized the district courts to hear and determine contests of primary elections.

That decision can be rightly understood by bearing in mind its underlying principle, announced by the court, per Judge Brown, immediately after the statement of the case in these words: “When the Legislature passed that Act they must, in the discharge of their duty, have determined that the power to so enact was conferred upon that body by the language we have quoted above from section 8 of article 5 of the Constitution as amended. The Legislature having determined that the power was granted to that body to pass the law, this court must sustain it unless its invalidity be apparent beyond a reasonable doubt.” Here, the Legislature necessarily determined that section 2, of article VI, left them free to fix the qualifications of participants in primaries, and, since we cannot say that the legislative determination was wrong beyond a reasonable doubt, we must sustain it. If we did otherwise, we would fail to apply the principle on which the.decision in Ashford v. Goodwin is based.

We do not regard the proceedings of the constitutional convention relative to woman suffrage as bearing on the right of women to participate in primaries, under an act of the Legislature. Such proceedings related only to the participation of woman in governmental elections, and not to their participation in- the acts of any non-governmental, voluntary groups of citizens, clothed with no ultimate power to fill constitutional or, other offices, to amend constitutions, or to impose tax burdens.

We cannot agree that the Act of the Legislature infringes on any right of qualified electors under section 2, of article VI. While, it is true that no one actuated by conscientious and honorable motives will fail to support the nominees of a primary in which he or she participates, the fact remains that the primary law compels no one not satisfied with the statutory and party regulations to enter a primary. Even after participating in the primary, the qualified elector is legally free to vote as he chooses in the general election, no matter how contrary that vote may be to good conscience or to moral obligation. It would be most unreasonable to say that something amounts to an actual infringement of .a person’s rights, when the asserted infringement may be entirely avoided at the option of such- person.

There being no constitutional prohibition, it follows that the .Legislature was free to extend the privilege of participation in party primaries and conventions to women possessing the qualifications, save sex, of electors under our Constitution and laws, as is recognized in the above quoted portion of the opinion in Solon v. State. “By section 1, of article 3, the Constitution declares ‘the legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘the Legislature of the State of Texas,’ The legislative power of this State means all the power of the people which may properly be exercised in the formation of laws against which there is no inhibition expressed or implied in the fundamental law.” Brown v. Galveston, 97 Texas, 15.

We answer “No” to the certified question, having determined that there is no conflict between the legislative act and section 2, of article VI, of the Constitution.

Opinion delivered January 28, 1920.

Chief Justice Phillips dissents.