Bonham v. Fuchs

Inability to agree with my Associates in the holding made in this cause imposes the statutory duty of entering of record this statement of the grounds of that dissent.

Irrespective of the reasons given for it, I think the trial court was correct in sustaining the general demurrer, and that this court should have affirmed its judgment.

It seems to me plain that the qualifications of electors prescribed in section 2 of article 6 of our Constitution, taken along with the provisions of the other sections in that same article, apply to an election of this kind — that is, one to determine whether or not the corporate existence of a town should be abolished — and that it was clearly adding something to those qualifications to require as a prerequisite, as article 1079 attempts to do, that one offering to vote must also be a resident taxpayer in such town, as shown by its last assessment roll.

As I read it, the Constitution not only nowhere authorizes, but by necessary implication forbids, the imposing of any such restriction upon voters in an election of this character. It was not one "to determine expenditure of money or assumption of debt," and therefore not within the only class as to which the participants may be restricted to those who pay taxes on property within the town. Section 3, article 6, of the Constitution, quoted in the majority opinion.

The clear implication from this language used in section 3 is that in all other elections the wedding garment of being a taxpayer is not an indispensable prerequisite.

The holding of the majority that section 2 of article 6 was only intended to confer and regulate the right of suffrage in general elections covering the state as a whole is unsupported by cited authority, if not in fact novel. As against it there seems to me to be the direct former pronouncement of this court itself in Warrener v. Lambrecht, 146 S.W. 633, the only prior case, so far as I am aware, involving an interpretation of this particular statute. Vernon's Sayles' Rev.St. 1079, then article 617c. The validity of the statute as against the constitutional objection sustained by the trial court in this suit was not involved, but as one of the grounds upon which its judgment was rested this court expressly held that the qualifications of a voter prescribed in section 2 did apply to an election under this article to abolish the corporate existence of a town, its language being as follows:

"Section 2 of the Constitution, as amended in 1902, prescribing the qualifications of a voter, in addition to the requirement that he shall have resided in the state one year and in the county six months, provided that he must have attained the age of 21 years, be a citizen of the United States (unless of foreign birth, in which event he must have declared his intention to become a citizen of the United States in accordance with the federal naturalization law), and must have paid his poll tax and hold a receipt therefor, showing the same to have been paid before the 1st day of February next preceding the election. We think the proof offered at the trial falls short of showing that the 19 persons possessed all these prescribed qualifications. It may be the fact that each had paid his poll tax for 1910 was sufficient to establish that each was 21 years of age; but the proof was wholly insufficient to show that each was a citizen of the United States, or, if of foreign birth, had, at a proper time before the election, declared his intention to become a citizen, and that he had paid his poll tax before the 1st day of February next preceding the election in question."

Likewise our Supreme Court made the same declaration, applying it generally, when on rehearing in Koy v. Schneider, 221 S.W. at page 915, in defining the meaning of section 2, it says:

"Which prescribes qualifications of voters in all elections with which that entire article [VI the suffrage article] was intended to deal."

While in that case the court by divided bench held the suffrage article applicable only to what it characterizes as "governmental elections" in contradistinction to "primary elections by political parties," there was no division upon the applicability of section 2 to the kind of an election here involved, for the distinguished Chief Justice, too, in his very able dissenting opinion, 218 S.W. at page 484, thus declared it:

"I maintain that the language of this section is so simple and plain as not to admit of construction or refinement by courts, and that it means, steadily and unfailingly, the qualifications it prescribes shall be possessed by all voters at all public elections in the state which the Legislature has the power to establish and which it may provide by law."

Apart from these direct holdings to that effect, however, the very broad use of the terms "an election," "any election," "in all elections in this state," and "in all elections," as used in sections 2 and 3, as well as the phrases "in all elections by the people," and "voters shall, in all cases," appearing in succeeding sections 4 and 5, unmistakably, it seems to me, indicates that the framers of the Constitution intended the provisions of all these sections to apply to and govern the right of suffrage and the qualifications of voters in at least any and all governmental elections held by virtue of the authority of the people — that is, under a law enacted by the Legislature — whether it affects the state as a whole or only a portion of it or its people.

There is nothing elsewhere in that instrument limiting the meaning of the term "election" as thus used, just as the Supreme Court held there was not in discussing amended section 8 of article 5 in Ashford v. Goodwin, 103 Tex. 491, 131 S.W. 535, Ann. Gas. 1913A, 699. It is inconceivable to assume that the same simple word in the fundamental law, whose terms in their very essence are always broad, general, and intended to be easily understood and liberally interpreted, means one thing at one place and a wholly different one at another.

Now that there was actually held here under and by virtue of the election laws of the state, and in accord with the detailed procedure therein directed, a public "governmental" election is undisputed; indeed, that fact lay at the foundation of the suit and was, in effect, so alleged in the petition. Right there is disclosed the difference — so distinctive as to denude those cases of any bearing upon the question here — between Graham v. City of Greenville, 67 Tex. 63,2 S.W. 742, and State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348, cited and relied upon by the majority, and the ruling facts of this case. There was no question of the qualifications of individual voters involved in either of those holdings; on the contrary, the fact that those participating were legally qualified voters under the laws of the state was expressly recited, and the court simply decided that section 4, art. 6, of the Constitution, did not require public elections to be held to determine whether or not adjoining territories should be annexed to a city — that is, prescribe an exclusive method for the expression thereon of the will of the people affected — and that an act of the Legislature under which that result might be accomplished by another method was not therefore invalid. Unlike the situation in the case at bar, the facts were that no election was held, the choice of the inhabitants of the adjoining territory being evidenced merely by signed petitions directed to the city council. Surely that is a far cry from holding that when, as here, the prescribed details of the procedure for that purpose are followed, and a formal public election for governmental purposes pursuant to the general laws of the state is held, the qualifications enumerated in the Constitution for voters in all elections by the people do not apply to it. Nor, as far as has come to my knowledge, is any such holding by an appellate court in Texas extant.

If the foregoing deductions be maintainable, then our Legislature under all the authorities (Koy v. Schneider, 218 S.W. 480-481; Id.,221 S.W. at page 905 [20]; Solon v. State, 54 Tex. Crim. 261,114 S.W. 349; Cooley's Constitutional Limitation, § 599; 10 A. E. Ency. Law, 573-576; 15 Cyc. 282; 8 R.C.L. par. 41), had no more power to add a qualification not provided for in section 2 of article 6 than it would have had to take away any one of those that was therein included. That much also being true, how could there still be said to be lacking "a clear and strong conviction of incompatibility" — to use the expression employed in Brown v. Galveston, 97 Tex. 9, 75 S.W. 492 — between a statute saying a voter must be a taxpayer and a Constitution which requires nothing of the kind?

If an election of this sort is wholly ungoverned by the Constitution, and the Legislature is accordingly unrestrained by any of its provisions in declaring what shall be the qualification of the participating voters, it undoubtedly had the power to say that they need not possess any of the qualifications mentioned anywhere in the Constitution. To such a doctrine of legislative omnipotence I am unwilling to lend my judicial authority. Suppose, instead of providing in this article 1079 that all legally qualified voters of the state and county, who are resident property taxpayers in a city or town, shall be allowed to vote on the question of dissolving the corporate existence, the Legislature had said that all such resident property taxpayers should be allowed to vote, whether or not they were 21 years old, of sound mind, or residents of the state and county, or had paid a poll tax; could it then be said that the act was valid?

Without in the least inveighing against what has been said, it might be conceded that, if the Legislature had the power to say that only taxpayers should be allowed to vote in this sort of an election, its authority to further prescribe the rule or method by which that fact might be determined by the officers of the election would not be wanting; for, under the supposition stated, the enactment would not amount to the addition of anything to the constitutional qualifications of electors, but would merely provide a way for determining whether or not those offering to vote possessed them. Such mere regulations by the Legislature of the conditions under which and the manner in which the right to vote shall be exercised, where reasonable, nondiscriminatory, and not in themselves inhibited by the Constitution, have uniformly been upheld. Instances of holdings of that general character are Savage v. Umphries, 118 S.W. 893, and Solon v. State (by the Court of Criminal Appeals)54 Tex. Crim. 261, 114 S.W. 349, cited in the majority opinion.

This protest against the reversal of the trial court's judgment is respectfully, but earnestly, entered.