Koy v. Schneider

• Decision Date: 21 April 1920
• Docket Number: (No. 3359.)
• Citation: 221 S.W. 880
• Parties: KOY v. SCHNEIDER, Tax Collector.
• Court: Texas Supreme Court

Page 880

221 S.W. 880

KOY v. SCHNEIDER, Tax Collector.

(No. 3359.)

Supreme Court of Texas:

April 21, 1920.

On motion for rehearing. Motion overruled.

For former opinion, see 218 S. W. 479.

HAWKINS, J.

Is the Limited Woman's Suffrage Act of 1918 (chapter 34, p. 61), which seeks to confer upon women the privilege of voting in primary elections and in primary conventions, violative of section 2 of article 6 of the Constitution of Texas? That sole question was certified to our Supreme Court by our Court of Civil Appeals for the First Supreme Judicial District.

Said section 2 of article 6 embodies what is known as the "suffrage clause" of our Constitution. Concededly, it restricts to "males" the privilege of voting in "any election" lying within its legal effect and operation. To that certified question this court answered in the negative—holding that said statute is not violative of said suffrage clause. The controlling principle was that a primary election or a primary convention accomplishes no "governmental" purpose, and, in contemplation of law, concerns only a select and voluntary group of persons, and consequently is not an "election" within the historical meaning, or the legal effect or operation, of said suffrage clause. In that decision Chief Justice PHILLIPS declined to concur, and filed a dissenting opinion.

That decision of this court, as reflected in the clear, yet brief, majority opinion by Mr. Associate Justice GREENWOOD, announces no new or strange doctrine. It presents no novel principle in the construction of Constitutions. Whether that decision be right or wrong, each and every principle upon which it rests is supported by an overwhelming weight of legal authority throughout the United States. That, at least, is a plain, stubborn, undeniable fact, which said dissenting opinion does not even question. See cases cited in said majority opinion.

Moreover, and of greater present importance, is the additional demonstrable fact that said decision of this court in this case is strongly supported, in principle, by four unanimous decisions of this court, rendered prior to the enactment in this state of any statute relating to woman suffrage. Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742; State v. Waxahachie, 81 Tex. 626, 17 S. W. 348; Waples v. Marrast, 108 Tex. 5, 184 S. W. 180, L. R. A. 1917A, 253; Beene v. Waples, 108 Tex. 140, 187 S. W. 191. In the first two cases this court held the provision of our Constitution, that "in all elections by the people, the vote shall be by ballot" (section 4, art. 6), inapplicable to the statutory "vote" on annexation of adjoining territory to a city (R. S. 1879, art. 503; R. S. 1911, art. 781). Each of the latter two cases involved the constitutionality of a primary election statute, and in each the inherent and radical distinction existing between "primary elections" and "general elections" was clearly drawn and emphasized, and in each instance that distinction, involving a clear-cut classification by this court of "elections" of essentially different kinds, was treated as a sufficient basis, or test, for determining the constitutionality or unconstitutionality of a primary election statute. In both of those cases this court classified "elections" as being either "governmental," including "general elections," or nongovernmental, including "primary elections."

In Waples v. Marrast, supra, in 1916, in a clear and forcible opinion by the author of the dissenting opinion in the present case, this court declared, without a dissenting voice, that any primary election is, essentially, merely advisory, rather than of final effect, in that it does not determine, in contemplation of law, who shall fill any office, or whether any particular "governmental" policy shall or shall not prevail, but, on the contrary, is for only "party" purposes, affecting only some of the people, in contradistinction to "governmental" or "public" purposes, affecting all the people, and that, consequently, payment of expenses of a primary election out of public revenues derived from taxation is inhibited by that clause of our state Constitution which declares that "taxes shall be levied and collected * * * for public purposes only" (section 3, art. 8), and also by that clause thereof which denounces the use or "grant" of "public money * * * in aid of, or to, any individual, association or corporation whatsoever" (section 52, art. 3). Accordingly, in that case, and solely upon that ground, this court held the entire Presidential Primary Act of 1913 (Laws 1913, c. 46) unconstitutional and void.

Shortly afterward, during the same term, in Beene v. Waples, in an opinion prepared by this writer, this court expressly and plainly, and again without dissent, reaffirmed the doctrine or principle so declared and upheld in Waples v. Marrast, citing that case in its support, and declaring that if our senatorial primary election statute, then in question, "should be construed as meaning that the election officers referred to therein * * * are to be paid, for their services, out of public funds, such provision for payment * * * is, plainly, unconstitutional, as directing a misuse of public funds"; but that statute was given a different construction, saving it from the taint of such invalidity.

The gist of the principle, or doctrine, which those two former unanimous decisions of this court established in this state as of controlling importance in determining the validity or invalidity of primary election statutes, is, undeniably and simply, that, unlike general elections, primary elections are not for any truly "public" or "governmental" purpose, or, in the graphic language of our Chief Justice, in Waples v. Marrast, "they perform no governmental function."

The present case is, therefore, the third case in which the hereinabove stated distinction between primary elections and governmental elections has been made, squarely and unmistakably, the basis of a decision of this court in passing upon the constitutionality of a primary election law; yet this is the first instance in which any member of this court has dissented from the full and logical application of the above-stated doctrine or principle to the facts of the case or question then before the court for decision, even though, in the first case, it resulted in striking down an act of the Legislature. However, in the first two cases, the right of women to vote in a primary election was not involved.

That selfsame doctrine, or principle, involving that selfsame classification of elections, which thus was so clearly enunciated, and so firmly fixed in the jurisprudence of Texas, by repeated decisions of this court, in which all members, including our present Chief Justice, heartily concurred—a doctrine or principle strongly upheld by so many of said cited decisions in other states—forms one of the two cornerstones upon which rests the decision of this court in the present case. The other cornerstone thereof is the proposition that, under our form of government, it is the duty of the courts to uphold as valid a legislative enactment, unless its unconstitutionality is clear and unquestionable. Said statute is not clearly unconstitutional. To that rule, although not to its application in this case, said dissenting opinion of our Chief Justice yields full assent, in saying, as it does with reference to our Legislature, "any doubt as to the validity of its legislation is to be resolved in its favor." As to the correctness of that rule, in testing validity of statutes, there is no difference of opinion whatever anywhere among the authorities.

Except as restricted by the organic law of the land—the Constitution of the United States or the Constitution of the state—a Legislature has, of course, full power and authority to deal, as it may see fit, with the subject of suffrage in any election which may be required or authorized by law. That proposition is axiomatic. That much being true, the declaration of Chief Justice PHILLIPS, in his dissenting opinion in the present case, that said decision of this court therein "subverts the Constitution of this state and makes of it a vain and useless document," at once is seen to be of deep and broad significance. It not only challenges the correctness of that decision, but, in logical effect, it arraigns the general soundness of the principle enunciated by himself for this court in Waples v. Marrast, supra, and, by necessary implication, it includes also within said quoted and far-reaching indictment numerous carefully matured and similar decisions of many learned and distinguished jurists of various other states, which uphold, as not repugnant to similar suffrage clauses, the power of their own Legislatures to prescribe different qualifications for voting in primary elections.

Can it, then, really be true that thus, through the passing years, the carefully considered and well-settled decisions of so many reputable courts of last resort in other states have done such destructive violence to the Constitutions of their own states, in construing a suffrage clause which, our Chief Justice asserts, "is so simple and plain as not to admit of construction or refinement by courts"? And in applying to said limited woman's suffrage statute of 1918, as a test of its validity, the hereinabove stated doctrine, or principle, concerning primary elections, which formerly this court had enunciated as a test of statutory validity in Waples v. Marrast, and had reiterated in Beene v. Waples even prior to the enactment of that statute, did this court indeed err? If so, the situation is quite unusual, calling for a complete and prompt reversal of said decision in the present case, ere the ending of this term shall forever terminate this court's present unquestionable power and authority to take such action in this case.

Coming from their exalted source, the above-quoted declarations of our Chief Justice in said dissenting...