Koy v. Schneider

• Decision Date: 28 January 1920
• Docket Number: (No. 3359.)
• Citation: 218 S.W. 479
• Parties: KOY v. SCHNEIDER, Tax Collector.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 479

218 S.W. 479

KOY v. SCHNEIDER, Tax Collector.^*

(No. 3359.)

Supreme Court of Texas.

January 28, 1920.

Certified Question from Court of Civil Appeals of First Supreme Judicial District.

Mandamus proceedings by Mrs. Alma Koy against William Schneider, Tax Collector. From an order sustaining a general demurrer to the petition, the petitioner appealed to the Court of Civil Appeals of the First Supreme Judicial District, which certified a question to the Supreme Court. Question answered in the negative.

Walker Acker, of Houston, for relator.

C. G. Krueger, of Bellville, and McMeans, Garrison & Pollard, of Houston, for respondent.

W. J. Townsend, Asst. Atty. Gen., amicus curiæ.

GREENWOOD, J.

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 Thirty-Fifth 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 the 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 Thirty-Fifth 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 practicable 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 6 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 21 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 co-operation, 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 6 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 Tex. 11-13, 184 S. W. 183, 184 (L. R. A. 1917A, 253):

"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 elections 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 the 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 then 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 no sense 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 Tex. 11, 184 S. W. 183, L. R. A. 1917A, 253.

From 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 6 were construed to govern voting at party primaries and conventions. For 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. § 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, 54 Tex. Cr. R. 261, 114 S. W. 349, where it is said:

"Where...