Thomas v. Groebl

With all deference to the majority view, I must dissent. I am firmly convinced that the district court and the Court of Civil Appeals decided this case right and their judgments ought to be affirmed.

The case turns upon what effect shall be given to the 1945 amendment to Article 2968, R.S. Deleting parts extraneous to the problems under study, the amendment reads:

"Article 2968. EXEMPTION CERTIFICATES IN CITIES. Every person who is exempted by law from the payment of a poll tax, and who is in other respects a qualified voter, who resides in a city of ten thousand (10,000) inhabitants or more, shall, before the first day of February of the year when such voter shall have become entitled to such exemption, obtain from the Tax Collector of the county of his or her residence, a certificate showing his or her exemption from the payment of a poll tax.

"Such exempt person shall on oath state his name, age, race, county of residence, occupation, the length of time he has resided in said county, and the length of time in the city, and the number of the ward or voting precinct in which he resides, and shall also state his street address by name and number, if numbered, and the grounds upon which he claims exemption from the payment of a poll tax.

"A certificate of exemption from the payment of poll tax shall be issued from a well-bound book, containing therein original and duplicate, and upon issue the certificate issued to the exempt voter shall be detached from said book, leaving therein a duplicate carbon or other copy thereof, which shall contain the same description and the original certificate bearing its proper number shall be delivered to the citizen in person to identify him in voting. Certificates of exemption for each precinct shall be numbered consecutively, beginning at Number One. * * *

"All certificates of exemption shall be renewed or reissued annually."

The Constitution authorizes the legislature to enact laws requiring the registration of voters in cities of more than 10,000 inhabitants. This authority is given in connection with the mandate found in the same section of the Constitution, that the legislature shall "preserve the purity of the ballot box." Texas Const., Art. VI, sec. 4. The Terrell Election Law of 1905 required the registration of voters in cities of over 10,000 inhabitants (Art. 2953, R.S. 1911, carried forward unchanged as Art. 2968 R.S. 1925). Although this original provision has been amended five times since the 1925 codification, the registration requirement has never been repealed. The absolute necessity that a person exempt from the payment of the poll tax in cities of over 10,000 inhabitants seasonably obtain a certificate of exemption before he can vote has been unequivocally upheld and ought not to be considered an open question. Texas Power Light Co. v. Brownwood Public Service Co. (Tex. Civ. App.) 111 S.W.2d 1225, error refused, is direct authority for this statement. I submit that the majority opinion overrules this case on the points under consideration.

The historical background of this legislation must be reviewed in order to appraise it accurately. From 1905 to 1930, it was provided that a voter exempt from the payment of poll tax should "after the first day of October and before the first day of February following, before he offers to vote, obtain from the tax collector of the county of his residence a certificate showing his exemption from the payment of a poll tax." Art. 2953, R.S. 1911; Art. 2968, R.S. 1925. This was taken to mean that the exemptions should be obtained annually. But in 1930 the Forty-first Legislature made sweeping changes in the measure. It provided, first, that a voter exempt from poll tax payment under Article 2960, R.S., might obtain his exemption certificate at any time after the 1st day of January after the year when such voter shall have become entitled to such exemption, and before he offers to vote." And, second, it provided that so long as the voter continued to reside in the county and precinct where the certificate was originally issued, he did not have to get it renewed annually. Acts 1930, 5th C.S., ch. 26.

The 1930 amendment apparently was working out badly. People entitled to them could get exemption certificates the very day before an election and their names would of course not appear on any poll list in the hands of the election judges. So the Forty-fourth Legislature in 1935 (Acts 1935, 2nd C.S., ch. 448) changed the 1930 act to require the voter to get his certificate "before the 1st day of February of the year when such voter shall have become entitled" to exemption from paying a poll tax. But the 1935 law left the 1930 provision for permanent certificates unchanged.

Now, in 1945 the Forty-ninth Legislature enacted the amendment which has in part been quoted and which is Article 2968 as it reads in the statutes today. Acts 1945, ch. 333, sec. 1. The change in the law which this amendment made was to eliminate permanent exemption certificates and to require that "all certificates of exemption shall be renewed or reissued annually." Obviously, when they passed this 1945 amendment the lawmakers were undertaking to discharge their constitutional duty to make such "regulations as may be necessary to detect and punish fraud and to preserve the purity of the ballot box." Texas Const., Art. VI, sec. 4; Texas Power Light Co. v. Brownwood Public Service Co., supra. The need for the change appears right plain. Persons exempt from poll tax payments got on the tax collector's poll list and, not being obliged to renew their certificates annually, they never got off, even if they moved away or died. It is apparent that from 1930 to 1945 hundreds, even thousands, of people in the large cities must have been listed as voters holding permanent exemptions, and the election judges in the populous places had no way of knowing what persons carried on the poll lists as qualified electors were in fact dead or no longer local residents.

If the legislature thought it wise to abandon the system of permanent exemption certificates and go back to the policy of requiring them to be reissued or renewed annually, as was done in the 1945 amendment, the courts should meticulously respect the legislative will. This amendment mandatorily declares that these annual renewals shall be obtained. The courts ought not to contort this language to mean anything other or less than what the lawmakers said. To rule this requirement directory only, as the majority has done, is to nullify a legislative enactment which the majority concedes is constitutional, and thus empty it of all vitality. For if the act is merely directory, people may ignore it at their pleasure and the law becomes as dead a letter as if it had never been written. Nullification of legislation by this means ought not to be countenanced by the courts. This enactment, being within proper constitutional bounds for legislative action, ought by all means to be given full effect. Anderson County v. Houston G.N.R. Co., 52 Tex. 228; Wood v. State ex rel. Lee, 133 Tex. 110, 126 S.W.2d 4, 121 A.L.R. 931. The necessary meaning of the majority opinion is that although the lawmakers had authority to enact this, a valid measure, they nevertheless intended it to be an utterly useless appendage to our statutory law.

The majority suggest that the emergency clause of the 1945 amendment shows that the act was directory rather than mandatory. That clause reads:

"The fact that there are at this time the names of many people who are deceased or who have removed from the State of Texas upon the poll tax exemption lists of all the counties throughout the State, places a heavy burden upon the tax assessors and collectors of each of the several counties of Texas, creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended," etc.

It is well known that emergency clauses are frequently not at all relevant to the purpose and policy of the act itself. The office of an emergency clause is most aptly phrased thus in 39 Tex. Jur., Statutes, sec. 121:

"The purpose of an emergency clause is not to clarify or declare the intention of the Legislature, nor to explain the express language of the act, but merely to justify suspension of the constitutional rule requiring the bill to be read on three separate days or to make the act immediately effective. It may not be invoked for the purpose of raising an ambiguity in a statute, or to control its plain meaning or purpose. But an emergency clause may be considered if it sheds light upon the inquiry and will aid the court in ascertaining the legislative intent, even though it is not effective to suspend the constitutional rule."

This act is so plain that it construes itself. The requirement for annual renewals of certificates of exemption could not have been more plainly stated nor simply said. This clear meaning ought not to be confused or rendered doubtful by any language in the emergency clause.

The majority also suggest that an Attorney General's opinion in 1946 held this act invalid (which is true — Opinion No. 0-7234, Atty. Gen. of Texas), and since the opinion was acted upon by many and the legislature has met after its rendition without amending the law, the construction of the opinion must prevail. The Attorney General's opinions are entitled to and will receive the highest respect from the courts. But where, as here, he erroneously construes a statute which is not doubtful, that construction ought not ripen into a rule binding on the courts. Fire Ass'n of Philadelphia v. Love, 101 Tex. 376, 108 S.W. 158, rehearing denied 101 Tex. 376, 108 S.W. 810; Jones v. Marrs,114 Tex. 62, 263 S.W. 570; City of Tyler v. Texas Employers' Ins. Ass'n (Tex. Com. App.) 288 S.W. 409; rehearing denied294 S.W. 195. I submit that the statute under study is neither doubtful nor vague, and the courts should decline to be bound by an erroneous departmental interpretation of it.

The 1945 act requires, as has been observed, that these "certificates of exemption shall be renewed or reissued annually." The majority hold that "annually" means at any time during the year and before the citizen votes. Were the 1945 enactment dissociated and construed apart from all the other provisions of Title 50 on Elections, this might be a tenable view. But the amendment by its own terms remains "Article 2968," and must take its place and be arrayed along with the other election enactments. It must be construed, if possible, to give a harmonious pattern to the entire Election Law. International G.N.R. Co. v. Bland (Tex. Civ. App.) 181 S.W. 504.

It must be observed, as has been suggested, that the 1930 amendment allowed those originally entitled to exemption certificates to get them any time from the first of January up until the elector voted. But this was abandoned in 1935 in favor of requiring these certificates to be obtained before the first of February after the citizen became exempt from paying a poll tax. The reason for this return to the old system readily emerges from a study of other articles of the Election Law which will be briefly reviewed.

It is made the duty of the county tax collector to prepare, before the first day of April of each year, an alphabetically arranged list for each precinct showing all voters who have paid poll taxes or received exemption certificates. This poll list must be furnished to the presiding election judge of each precinct. Art. 2975, R.S. When the citizen presents himself to vote, he shall deliver his certificate or poll tax receipt to an election judge and announce his name. The judge shall compare the appearrance of the party with the description on the list and, if satisfied, let the voting proceed. Art. 3005, R.S.

Significally, there is no provision in the statutes for the preparation of any supplemental poll list by tax collectors after the first of April save only in respect of certain poll tax paying voters under circumstances not material here. Art. 2975, R.S. So, if persons exempt from poll tax payment were allowed to secure their certificates of exemption after the tax collector closed his poll list and before an election was held, the poll list in cities of over 10,000 inhabitants might and probably would fail to list legally qualified voters in great numbers and thus deprive the election judges of an effective means of protecting the "purity of the ballot box." Yett v. Cook,115 Tex. 205, 281 S.W. 837. If construed to allow the renewal of exemption certificates at any time before the elections, the 1945 amendment would not be at all effective to get exempt persons properly listed in the cities and the act would be measurably robbed of its efficiacy in preventing illegal voting.

These poll lists occupy an important place in our election machinery. The statutes requiring the tax collectors to compile and the presiding judges at the elections to obtain and have at the polling places lists of the voters have been held mandatory, and an election governed by the general election statutes is not valid unless a poll list is prepared and furnished to the election officials. Arts. 2975 and 2993, R.S.; Yett v. Cook, supra. Manifestly, it is of the greatest importance that these lists be as current and complete as the circumstances will admit. Lists which had been compiled before April 1st as the law requires would obviously be neither current nor complete, but would fall far short of the serviceability the law contemplates for them, if voters in large numbers are permitted to apply for and receive certificates of exemption after the lists have been closed. This the majority view will permit.

Moreover, Article 3004, R.S., which is unchanged since 1905, reads:

"No citizen shall be permitted to vote, unless he first presents to the judge of election his poll tax receipt or certificate of exemption issued to him before the first day of February of the year in which he offers to vote except as otherwise permitted in this title, unless the same has been lost or mislaid, or left at home, in which event he shall make an affidavit of that fact, which shall be left with the judges and sent by them with the returns of the election; provided, that, if since he obtained his receipt or certificate he removes from the precinct or county of his residence, he may vote on complying with other provisions of this title."

The certificate of exemption, it was clearly contemplated, would be good only for the year in which the elector offered to vote. So, from 1905 to 1930 new certificates annually had to be obtained before the first day of February. That being the law prior to 1930, a like construction is applicable to the act as amended in 1945, which in effect went back to the old law. It should be so held.

I have not touched in this dissent upon the jurisdiction of this court, and no not care to discuss it at length. But I think it extremely dubious that we have jurisdiction. It is difficult to perceive of any election case which does not subject some statute to judicial review. And the majority hold in effect that if the Court of Civil Appeals decision reviews a statute, a writ of error will lie. If that view is right, the statute (Art. 1821, R.S.) making the decision of the Court of Civil Appeals final in election cases will have but meager application.

Opinion delivered June 23, 1948.

BREWSTER and FOLLEY, Associate Justices, join in this dissent.