Solon v. State

• Decision Date: 22 May 1907
• Citation: 114 S.W. 349
• Parties: SOLON v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W. 349

SOLON v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1907.

On Rehearing, June 24, 1908.

Rehearing Denied December 9, 1908.

Appeal from McLennan County Court; J. W. Baker, Judge.

Frank Solon was convicted of lending money to be used by the borrower to pay his poll tax, and he appeals. Affirmed on rehearing.

Sandford & Denton and O. L. Stribling, for appellant. F. J. McCord, Asst. Atty. Gen., A. W. Terrell, and John C. Townes, for the State.

DAVIDSON, P. J.

Appellant was charged with violating section 170 of what is known as the "Terrell Election Law," passed by the Legislature in 1905, which reads as follows: "Any person who loans or advances money to another knowingly to be used for paying the poll tax of such other person, is guilty of a misdemeanor." Laws 1905, p. 561, c. 11. The facts show that appellant loaned A. J. Ray the sum of $1.75 for the purpose of paying his (Ray's) poll tax for the year 1906. Before Ray borrowed the money from appellant he informed him of the purpose of borrowing it, and what he intended to do with it, and he further swears that he did pay his poll tax. One dollar and 50 cents went to the state, and 25 cents to the county. Ray was, in all respects other than payment of the poll tax, a qualified elector under the laws of this state.

Several questions are suggested for revision, among others, that this section of the election law is unconstitutional, in that it was an abridgment of the right of the voter to pay his poll tax and thereby qualify himself to exercise the right of suffrage. The Constitution requires that a person who desires to vote should pay his poll tax by the first of February of the year in which he offers to vote, but it does not prescribe the manner in which the paying shall be made, otherwise than to the tax collector, nor does it prohibit any one from borrowing money with which to pay the tax. Wherever the Constitution makes a declaration of political privileges or rights or powers to be exercised by the people or the individual, it is placed beyond legislative control or interference, as much so as if the instrument had expressly declared that the individual citizen should not be deprived of those powers, privileges, and rights, and the Legislature is powerless to deprive him of those rights and privileges. It is another well-settled proposition that the Legislature cannot add to the constitutional qualification of voters. It is also well settled that the act of the Legislature must be as broad as the Constitution, or at least it must not take from the citizen the rights, powers, and privileges conferred by the Constitution or reserved to the citizen in the Constitution. We believe that section 170 of the Terrell election law violates these propositions. This section 170 is illegal, because it infringes the common right of voting reserved in the Constitution. Every citizen in Texas has a right to vote, unless prohibited by the Constitution, or he cuts himself off from that right by either doing, or refraining from doing, something authorized by the Constitution by which his right to vote is curtailed. That the Legislature may regulate the manner of voting so as to guarantee pure and proper elections is fixed by the Constitution, and every citizen of Texas has a right to vote, except those who are interdicted by authority of the Constitution. Ray did not fall within any of those classes. He was a qualified voter, and the only impediment to his voting was his failure to pay his poll tax, and to secure that poll tax borrowed $1.75 from appellant. He had a right to borrow the money to pay his poll tax, as much so as he did to pay the ad valorem or any other tax required at his hands for the discharge of the obligations and duties devolving upon him as a citizen. The Constitution does not discriminate in favor of those who are able to pay their taxes and those who are not, and to give this section of the Terrell election law the construction that that law seeks would prevent, or tend to prevent, the poorer citizenship of the country from voting, or qualifying themselves to vote, by reason of their poverty. The construction of a law that would lead to such results certainly was never intended by the framers of the Constitution, and no such construction should be placed on the Constitution or a law that would lead to such conclusion. That the party must pay his tax before voting is contemplated by the Constitution, but that instrument does not bear the construction, nor was it intended to bear the construction, that a party who did not have the money should be cut off from borrowing it to pay his tax and qualify himself to vote. He has the right to vote, and the further right to take all legitimate means to qualify himself to exercise the power of franchise or right of suffrage, and it would make no difference whether the party lending the money knew the borrower's purpose or not. This does not militate against the idea that, if the borrower received the money for the purpose of selling his vote, or of casting it in the manner indicated by the lender, or by lending the borrower the money to influence his vote one way or the other, these would be criminal. This situation, or probable situation, seems to have been carefully guarded by section 160, and subsequent sections of the same law of 1905. Section 160 expressly provides: "Any person who lends or contributes or offers or promises to lend or contributes or pay any money or other valuable thing to any voter, to influence the vote of any other person, whether under the guise of a wager or otherwise, or to induce any voter to vote or refrain from voting at an election for or against any person or persons, or for or against any particular proposition submitted at an election, or to induce such voter to go to the polls or to remain away from the polls at an election, or to induce such voter or other person to place or cause to be placed his name unlawfully on the certified list of qualified voters that is required to be furnished by the county tax collector, is guilty of a felony, and on conviction shall be punished by confinement in the penitentiary not less than one year nor more than five years, and in addition shall forfeit any office to which he may have been elected at the election with reference to which such offense may have been committed, and is rendered incapable of holding any office under the state of Texas." Section 162: "The penalty prescribed in the last preceding section against those who violate any of its provisions shall be imposed on any one who receives or agrees to receive any money, gift, loan or other thing of value, for himself or any other person, for voting or agreeing to vote, for going or agreeing to go to the polls on election day, or for remaining away, or agreeing to remain away from the polls on election day," etc. So, section 170 was not intended to punish men who are corrupted by means of borrowing money to pay their poll tax. Not only is that condition of things punished in the Terrell election law but by other provisions of our Penal Code. We, therefore, hold that section 170 of said law, supra, is void, and on the further ground that it is an unnecessary and unreasonable abridgment of the right of contract. Const. art. 1, §§ 16, 19; Const. U. S. art. 14, § 1, and Milliken v. City of Weatherford, 54 Tex. 388, 38 Am. Rep. 629, and authorities there cited.

We are therefore of opinion that the complaint and information do not charge a violation of the law, and that a prosecution cannot be maintained under section 170, for which reason the judgment is reversed, and the prosecution ordered dismissed.

BROOKS, J., absent.

On Rehearing.

RAMSEY, J.

The appellant was charged, by information, in the county court of McLennan county, Tex., with the violation of the provision of section 170 of the election law, passed by the Twenty-Ninth Legislature, in that he did unlawfully, willfully, and knowingly loan and advance to one A. J. Ray the amount of his poll tax, knowing at the time that the money so advanced and loaned was to be used by Ray to pay such tax. A motion was made in the court below to quash the complaint and information, for the reason, in substance, that the law under which the prosecution was begun was invalid and in contravention of the Constitution for that: (1) Said law is violative of section 1, art. 14, of the Constitution of the United States, in that it is an unreasonable abridgment of and restraint upon the liberty of the citizen to contract, and an abridgment of the privileges and immunities of citizens of the United States; (2) that said law, and especially section 170 of same, is unconstitutional, invalid, and void, because it is an infringement on the inherent and indefeasible right of the citizen in the acquiring of property and in the pursuit of happiness; (3) that said section 170 on which the prosecution is based is null and void, in that same is unreasonable and in contravention of the common right of the citizen as guaranteed to him under sections 19 and 20 of the Bill of Rights and other provisions of the Constitution of the state; (4) because the offense charged could not be committed except there be in force, at the time of the alleged commission, a valid law of the state levying a poll tax, and there is and was at the time charged no such law; that the provisions of our Revised Statutes (article 5048) are invalid and unconstitutional, in that they are obnoxious to section 3 of the Bill of Rights, and other provisions of the state Constitution, and to section 1, art. 14, of the Constitution of the United States, in that it is an abridgment of the privileges and immunities of the citizens of the United States, and deprives persons of property without due process of law, and also deprives persons of the equal protection of the law; (5) that said section 170 of the law in question is invalid and unconstitutional, because the...