Thomas v. Groebl

Decision Date23 June 1948
Docket NumberNo. A-1669.,A-1669.
Citation212 S.W.2d 625
PartiesTHOMAS et al. v. GROEBL et al.
CourtTexas Supreme Court

George T Thomas, County Atty., of Big Spring, for petitioner.

J. L. Sullivan, and Thos. J. Coffee, both of Big Spring, for respondents.

Price Daniel, Atty. Gen., and Joe R. Greenhill, Asst. Atty. Gen., amici curiæ (by invitation of Court).

SMEDLEY, Justice.

In an election held September 9, 1947, in the Big Spring Independent School District, Howard County, for the levy of a maintenance tax and for the issuance of bonds, forty-five persons over the age of sixty, who resided in Big Spring, a city of more than ten thousand inhabitants, and who held permanent certificates of exemption issued during prior years but did not hold renewed or reissued certificates for the current year, were permitted to vote. The district court in this suit, filed by respondents as an election contest, concluded that those forty-five votes were illegal, and on that conclusion rendered judgment that "the local maintenance tax duly and legally carried" and that "the bond issue failed to carry". If those forty-five votes had been held to be legal, the tax increase would have failed to carry. The judgment of the trial court was affirmed by the Court of Civil Appeals, which held that, by reason of the provisions of Chapter 333, Acts of the Regular Session of the 49th Legislature amending Article 2968 of the Revised Civil Statutes, Vernon's Ann.Civ. St. art. 2968, the trial court was correct in holding that the forty-five voters who had not obtained certificates of exemption for the current year were not qualified voters. 208 S.W.2d 412.

This Court has jurisdiction of this case, although it is an election contest because "the validity of a statute (Chap. 333, Acts Regular Session of the 49th Legislature) is questioned by the decision" of the Court of Civil Appeals. See Article 1821, Revised Civil Statutes, as amended by Chapter 33, Acts Regular Session 41st Legislature, and Article 1728, as amended by Chapter 144, Acts Regular Session 40th Legislature, Vernon's Ann. Civ.St. arts. 1821, 1728. While that court sustained the Act as valid, its constitutionality was attacked by three points of error in the appellants' brief and that court in its opinion gave serious consideration to them. The decision of the Court of Civil Appeals therefore, questioned the validity of the statute, as it "raised a question about", "called in question", its validity and subjected the question to judicial examination. See Webster's New International Dictionary. Having jurisdiction of the case, this Court may also review and pass upon the question as to the correct construction of the Act, even though we may hold that the Act is valid.

The principal attack made by petitioners upon the Act is that the caption is defective in that it is so much broader than the body of the Act as to be misleading. The caption is: "An Act to amend Article 2968, of the Revised Civil Statutes of the State of Texas, requiring those persons entitled to poll tax exemption to secure a new certificate annually; and declaring an emergency." It is argued that this caption would inform interested persons that it is proposed by the amendment to require all persons entitled to exemptions to secure new certificates annually, whereas the body of the Act provides that only those persons who reside in cities of ten thousand inhabitants or more shall procure new certificates annually. It may be conceded that the caption is somewhat broader than the enactment, but this does not necessarily render the Act invalid. All doubts should be resolved in favor of the constitutionality of the Act, and this defect in the caption will not render it invalid unless it clearly appears that the caption is misleading as to the contents of the Act. In our opinion, the reference in the caption to the article of the statutes to be amended saves the caption from being fatally defective. That reference directs attention to all of the provisions in the article to be amended and they relate to the procuring of certificates only by persons residing in cities of ten thousand inhabitants or more. When the caption is thus read in connection with the provisions of the article to be amended, it is consistent with the body of the enactment and is not misleading. English & Scottish-American Mortgage etc. Co. v. Hardy, 93 Tex. 289, 298, 55 S.W. 169; Tarrant County Water etc. District v. Fowler, 142 Tex. 375, 378, 179 S.W.2d 250; Lowery v. Red Cab Co., Tex.Civ.App., 262 S.W. 147, application for writ of error refused.

Petitioners attack the 1945 amendment, Chap. 333, as unconstitutional "because of being in excess of the power of the Legislature to limit suffrage", but the amendment, construed as in our opinion it should be construed, clearly is not open to that attack. We need not discuss, and we express no opinion as to, the further contention that Article 2968, before the amendment in 1945, was unconstitutional, because the rights of the forty-five electors to vote have not been questioned for failure to comply with the provisions of that article. They complied with them.

The important question in the case is: Did the Legislature, in rewriting Article 2968 by Chapter 333, Acts of the Regular Session of the 49th Legislature, 1945, intend that qualified voters exempted by law from the payment of a poll tax, who reside in a city of ten thousand inhabitants or more and who have procured exemption certificates, as required by the first paragraph of Article 2968 both before and after this amendment, shall forfeit or lose their rights to vote for failure to procure, before the first day of February next preceding the election in which they offer to vote, renewed or reissued certificates of exemption. The intention of the Legislature is to be found in the terms of the amendment, Chapter 333, itself, read in the light of the applicable provisions of the Constitution and in the light of Article 2968 as it existed at the time of the amendment.

Section 1 of Article VI of the Constitution, Vernon's Ann.St., which article is entitled Suffrage, sets out the classes of persons who shall not be allowed to vote, and section 2 provides that every person subject to none of those disqualifications, who shall have attained the age of twenty-one years, who shall be a citizen of the United States and who shall have resided in the State one year and within the district or county six months "shall be deemed a qualified elector". The only limitation or qualification of the right to vote thus given and assured is that any voter who is subject to pay a poll tax under the laws of the State shall have paid the tax before offering to vote and shall hold a receipt showing that the poll tax was paid before the first day of February next preceding the election. In further assurance of the right of suffrage Section 2 of Article XVI of the Constitution declares that the privilege of free suffrage shall be protected by laws regulating elections. The Constitution says nothing with reference to exemption from payment of the poll tax and nothing with reference to certificates of exemption. Section 4 of Article VI states that the Legislature may provide by law for the registration of all voters in all cities containing a population of ten thousand inhabitants or more.

Article 2955 of the Revised Statutes, Vernon's Ann.Civ.St. art. 2955, defines the qualifications of voters in the same language as that used in Section 2 of Article VI of the Constitution, followed by the same proviso that any person subject to pay a poll tax under the law shall have paid the tax before he offers to vote and shall hold a receipt showing that the tax was paid before the first day of February next preceding the election. This proviso is followed in the statute by these words: "and if said voter is exempt from paying a poll tax and resides in a city of ten thousand inhabitants or more, he or she must procure a certificate showing his or her exemptions, as required by this title." It is significant that this article which prescribes the qualifications or voters makes, as does the Constitution, the holding of a poll tax receipt (when the voter is subject to pay the tax) showing that the tax was paid before February 1 next preceding the election, a qualification for voting, and that the article does not require that one exempt from that tax must hold an exemption certificate issued before February 1 next preceding the election or at any other specified time in order to be a qualified voter. The provision is merely that the exempt voter must procure a certificate showing his exemption as required by this title.

Article 2960 exempts from the payment of poll tax every person who is more than sixty years old, or who is blind or deaf or dumb, or is permanently disabled, or has lost a hand or a foot, or is a disabled veteran of a foreign war. It is Article 2968 that requires persons exempted from the payment of the poll tax, who reside in cities of ten thousand inhabitants or more, to obtain from the tax collector certificates showing their exemption. The substance of that article, several times rewritten after its enactment as a part of the 1905 election law, was, at the time of the enactment of Chapter 333 of the Acts of the Regular Session of the 49th Legislature, 1945, as follows: The first paragraph provided that the exempted person...

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