Mabry v. Davis

• Decision Date: 26 August 1964
• Docket Number: Civ. A. No. 3395.
• Citation: 232 F. Supp. 930
• Parties: James R. MABRY, David M. Sneary, et al., Plaintiffs, v. Charles G. DAVIS, Assessor-Collector of Taxes, Bexar County, Texas, Waggoner Carr, Attorney General of Texas, and Calvin Galm and Mrs. Eugene Irvin, Election Judges for Precincts 86 and 135, respectively, Bexar County, Texas, for the 1964 General Election, Defendants.
• Court: U.S. District Court — Western District of Texas

232 F. Supp. 930

James R. MABRY, David M. Sneary, et al., Plaintiffs, v. Charles G. DAVIS, Assessor-Collector of Taxes, Bexar County, Texas, Waggoner Carr, Attorney General of Texas, and Calvin Galm and Mrs. Eugene Irvin, Election Judges for Precincts 86 and 135, respectively, Bexar County, Texas, for the 1964 General Election, Defendants.

Civ. A. No. 3395.

United States District Court W. D. Texas, San Antonio Division.

August 26, 1964.

Maverick, Tynan & Gochman, Arthur M. Gochman, San Antonio, Tex., for plaintiffs.

James E. Barlow, Criminal Dist. Atty. of Bexar County, Tex., Preston H. Dial, Asst. Criminal Dist. Atty., San Antonio, Tex., for defendants Charles G. Davis, Calvin Galm and Mrs. Eugene Irvin.

Waggoner Carr, Atty. Gen. of Texas, Mary K. Wall, Asst. Atty. Gen., Austin, Tex., for defendant Waggoner Carr.

Before BROWN, Circuit Judge, SPEARS, Chief Judge, and THORNBERRY, District Judge.

SPEARS, Chief Judge.

The question in this case is whether or not Article 6, Section 2, of the Constitution of Texas, Vernon's Ann. St., and Article 5.02, Vernon's Annotated Texas Statutes Election Code, insofar as they wholly deny the right to vote in Texas to members of the armed forces residing in this state who enter military service from other states, violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. We hold that they do.

This suit is brought as a class action in behalf of plaintiffs and others in the State of Texas "who are similarly situated because of their being members of the armed forces of the United States or component branches thereof, or in the military service of the United States".

In general, the plaintiffs claim that they, as individuals, and the class they represent, are deprived of their right to vote in Texas solely because they are members of the armed forces; that they are otherwise fully qualified to vote in every way; and that the Constitution and statute of Texas which prevent them from voting are in derogation of Article 1, Sections 2 and 4 of the Federal Constitution, as well as Sections 1 and 2 of the Fourteenth Amendment to that Constitution. They ask for judgment declaring the Texas laws unconstitutional, and for injunctive relief against the defendants, in consequence of which this three-judge Court was designated pursuant to Title 28 U.S.C. § 2281.

Defendants contend that the Court does not have jurisdiction of this controversy, but that, in any event, the Constitution and laws of Texas relating to the classification of electors do not violate any provision of the United States Constitution.

The facts are undisputed.

Plaintiff, James R. Mabry, a 27 year old Staff Sergeant in the United States Air Force, resides at 910 Mount Kisco, in Precinct 135, San Antonio, Bexar County, Texas. He came to San Antonio in May, 1959. On September 16, 1963, he was discharged from the Air Force in that city, and he was there when he reenlisted in the Air Force on the following day.

In August, 1960, Sergeant Mabry and his wife moved into a home at 415 Merry Ann, San Antonio, which they then owned. They remained in it as their homestead, paid taxes thereon, slept and had all their belongings there until May, 1963, when they moved into their present home, which they own as their homestead, pay taxes on, and in which they sleep at night and keep all their belongings. At no time since May, 1959, has Sergeant Mabry maintained a residence other than in San Antonio, Bexar County, Texas.

Although Sergeant Mabry entered the armed forces from the State of Wisconsin, he has never voted nor made any attempt to vote in that state. He is not a resident of Wisconsin and has no intention of declaring it as his residence. On the contrary, he has been stationed in San Antonio by his preference, and intends to permanently reside there.

In view of Sergeant Mabry's training in research work he has been frozen at his present station, but stated that: "If the freeze is lifted and I am transferred someplace else, I would probably not take steps to resign from the service but would obey the orders given me. I would travel alone. My family would still stay at my present address and I would return to Texas either when I got out of the service (or) when I returned. I would make every effort to come back to the job I now hold, and since I am familiar with it, I know from (the) experience of other individuals that this is very possible. In fact, it is almost assured that I could come back to the same job because they do need trained research workers".

Plaintiff, David M. Sneary, a 26 year old First Lieutenant in the United States Air Force, resides at 2222 Rawhide, in Precinct 86, San Antonio, Bexar County, Texas. He came to San Antonio in May, 1962, at which time he was, and still is, a member of the armed forces.

Upon his arrival in San Antonio, Lieutenant Sneary moved into a house with his wife at 5518 Plumtree, where they remained until June, 1963, when they moved into their present address, which they own as their homestead, pay taxes on, and where they sleep at night and keep all their belongings. At no time since May, 1962, has Lieutenant Sneary maintained a residence other than in San Antonio, Bexar County, Texas.

Lieutenant Sneary entered the armed forces from the State of Oklahoma, but is not a resident of that state and has no intention of declaring it as his residence. He is in San Antonio at his own request, and intends to permanently reside there. He does say, however, that: "If I received orders transferring me to another state I would obey the orders and not make an effort to get out of the service. If the orders are of a nature to remain here or go overseas, I would more than likely remain here, but if I am flatly ordered to an overseas base, I would leave my family here and go alone and then return after the assignment".

Defendant, Charles G. Davis, is the Assessor-Collector of taxes of Bexar County, Texas, and is charged with the duty of collecting poll taxes and issuing receipts therefor; defendant, Waggoner Carr, is Attorney General of the State of Texas, in which capacity he has sought to uphold the provisions of Article 6, Section 2 of the Texas Constitution, and the Election Code of the State of Texas; and defendants, Calvin Galm and Mrs. Eugene Irvin, are the Election Judges for Precincts 86 and 135, respectively, Bexar County, Texas, for the 1964 General Election.

Plaintiffs fulfill all the qualifications of persons required to pay a poll tax and entitled thereto.¹ They are native-born citizens of the United States, have established their residences in the State of Texas, and their occupation is that of members of the armed forces. Payment of a poll tax is a qualification for voting under the laws of the State of Texas.²

In the year 1964, the defendant Assessor-Collector issued poll tax receipts to Dorothy Mabry, wife of James R. Mabry, and to Clara L. Sneary, wife of David M. Sneary. On January 23, 1964, he issued to James R. Mabry 1964 Poll Tax Receipt No. 140401, upon payment by him of a poll tax for 1963, but wrote thereon, "Not Eligible To Vote". On January 24, 1964, he issued to David M. Sneary 1964 Poll Tax Receipt No. 140402, upon payment by him of a poll tax for 1963, but wrote thereon, "Not Entitled To Vote". He refused to place plaintiffs, or any person of the class they represent, on the list of persons entitled to vote, which list he is required to make under the laws of the State of Texas³, and instructed his employees that unless persons in the military service can state they entered the service from Bexar County, they were not to collect or accept payment for a poll tax from them. The poll tax payments made by the named plaintiffs, and the poll tax receipts they received in payment of the 1963 tax, were executed by agreement of the parties.

It is agreed that both plaintiffs are residents of San Antonio, Bexar County, Texas, under the provisions of the Texas Election Code⁴, and that it is solely by virtue of the operation of the Constitutional provision and the implementing Statute⁵ that they are unable to vote in Texas.

This Court has jurisdiction of this controversy, because the complaint herein plainly sets forth a case arising under Section 1 of the Fourteenth Amendment to the Constitution of the United States.⁶ Since we are convinced that the provisions of the Texas Constitution and the implementing statute involved, insofar as they totally deny the right to vote in Texas to plaintiffs and those similarly situated, violate the equal protection clause of the Fourteenth Amendment, our discussion will be limited to a consideration of them in the light of that Amendment to the Federal Constitution.

Section 1 of the Fourteenth Amendment provides:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any citizen of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". U.S.C.A.Const. Amend. 14, § 1.

Article 6, Section 2, of the Constitution of Texas, as amended in 1954, reads as follows:

"Any member of the Armed Forces of the United States or component branches thereof, or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces". Vernon's Ann.Tex.Const. art 6, § 2.

It is interesting to note that the amendment to the Texas Constitution makes no mention of the serviceman's wife, so her right to vote is not affected thereby, one way or the other.

In the very similar case of Carrington v. Rash, 378 S.W.2d 304 (April 29, 1964), the Supreme Court of Texas recently held that the purpose of the amendment was "to prevent a person entering military service as a resident citizen of a county in Texas from...