Powell v. City of Baird

The question, as the writer sees it, completely determinative of the only phase of the case discussed in the majority opinion, is this: Are ordinances of any city or town in this State, as the word "ordinances" is used in R.S. 1925, Art. 2955, included in, or synonymous with, the words "laws of the State of Texas" as used in Constitution Art. 6, sec. 2, Vernon's Ann. St., providing that "any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax before offering to vote at any election in *Page 212 this State"? (Italics ours) There can be no difference of opinion that a city, chartered under the general laws of this State, has the power "to levy and collect an annual poll tax, not to exceed One ($1.00) Dollar of every inhabitant" of such city, with stated exceptions. R.S. 1925, Art. 1030. Such power must be exercised by the passage of an ordinance. R.S. 1925, Art. 1033.1

It must be borne in mind that the question of poll tax payments as a qualification to vote is entirely different from, and wholly independent of, the question of the power of a city or town to levy and assess poll taxes. The power of commissioners' courts and of cities and towns to provide for the levy, assessment and collection of poll taxes, existed long prior to the time that the payment of such taxes was added to the qualifications of voters. As to cities and towns it has existed, at least, since 1875. The requirement of the payment of poll taxes as a qualification of electors was enacted about the year 1902.

The question at issue is believed to be controlled by the proper construction of Constitution, Art. 6, secs. 1, 2, 3 and/or 3a.2 With unimportant exceptions, Constitution Art. 6, secs. 1, 2, 3, and/or 3a, *Page 213 prescribes, inclusively and exclusively, the qualifications of electors in this State. Section 1 names classes of persons not allowed to vote in this State; and authorizes the Legislature to make certain exceptions not here important. Section 2 provides, inclusively, who shall be qualified electors, but by a proviso excepts therefrom "any voter who is subject to pay a poll tax under the laws of the State of Texas" and who shall not have paid same and "hold a receipt showing said poll tax was paid before the first day of February next preceding such election" etc. This does not purport to declare who shall be qualified electors in any particular kind of election. The language is "at any election in this State." That includes all elections held in this State. Unless a city election is included there would exist no warrant for holding that the payment of a state poll tax is required as a qualification to vote in a city election. It, therefore, applies to all elections in this State, just as the language clearly imports, unless the Constitution itself provides exceptions. No proposition is better settled than that "The Legislature has no power or authority to require other qualifications than those, for voting, provided in the Constitution." Wendover v. Tobin, Tex. Civ. App.261 S.W. 434, 438; Texas Power Light Co. v. Brownwood Public Ser. Co. et al., Tex. Civ. App. 111 S.W.2d 1225; McCutcheon v. Wozencraft,116 Tex. 440, 294 S.W. 1105; Cameron v. Connally, 117 Tex. 159,299 S.W. 221; Koy v. Schneider, 110 Tex. 369, 377, 218 S.W. 479,221 S.W. 880; Solon v. State, 54 Tex.Cr.R. 261, 114 S.W. 349; Ramsay v. Wilhelm, Tex. Civ. App. 52 S.W.2d 757; 12 C.J. sec. 169, p. 751.

The Constitution having declared in said section 2 that, subject to the exclusions provided in section 1, every person "who shall have attained the age of twenty-one 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 such person offers to vote, shall be deemed a qualified elector," such provision, as said before, is both inclusive and exclusive of all qualifications of voters, save and except only such others, if any, as are provided in the Constitution itself.

There are some exceptions so otherwise provided. One is applicable to all elections; and that is the provision that "Any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax" (and have evidence of such payment, in the manner prescribed). Another applies only to elections held by "any county, or any number of counties, or any political sub-division of the State, or any political sub-division of a county, or any defined district now or hereafter to be described and defined within the State and which may or may not include towns, villages or municipal corporations, or any city, town or village, for the purpose of issuing bonds or otherwise lending credit or expending money or assuming any debt." (Italics ours) Const. Art. 6, sec. 3a. As applied to any election of the character so described, section 3a prescribes the additional and further qualification to those provided in section 2 that "only qualified electors who own taxable property in the State, county, political sub-division, district, city, town or village where such election is held, and who have duly rendered the same for taxation shall be qualified to vote." (Italics ours) Id. It cannot be seriously argued, I think, that there is thus prescribed any other or additional qualification than that of the ownership and rendition of property. Constitutional provisions, unlike some statutory provisions, are at once both enabling and restricting. It is a rule of constitutional construction "that when the Constitution defines the circumstances under which a right (such we interpolate as the right to vote) may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition * * *." Cooley, Constitutional Limitations, p. 99, 7th Ed. The language of the Constitution, under the rule, clearly implies the exclusion of the payment of a city poll tax as a part of the qualifications of an elector to vote in a city election.

Hence, it would seem the proposition is incontrovertible that if the Legislature has the power to prescribe, as a part of the qualifications of an elector, in any election, that he have paid a city poll tax and hold a receipt for same, such power must exist only because of the fact that an ordinance of a city or town is a law of the State of Texas, within the meaning of said constitutional provision.

At least since the time of the Attorney General's opinion, referred to in the *Page 214 majority opinion, it seems to be generally recognized and conceded that the payment of a city poll tax cannot be imposed as a qualification of an elector in general elections, other than elections held in a city or town. But, I see no escape from the conclusion that if a city poll tax, authorized by an ordinance of a city, is thereby authorized by a law of the State of Texas, the payment of such a city poll tax will be essential to qualify as an elector in any election. The Constitution having made no distinction, the Legislature would be just as powerless to do so as it would to prescribe qualifications additional to those prescribed by the Constitution or to declare exceptions to those prescribed by the Constitution. In truth, that is just what it would be doing.

In said opinion of the Attorney General, it is said: "that the statutory requirement [R.S. 1925 Art. 2955] for the payment of a poll tax levied by the `ordinances of any city or town in this State' was added to the constitutional requirement for the payment of poll taxes levied `under the laws of the State of Texas' not by the Legislature first construing section 2 of Art. 6, but by a subsequent Legislature.

"It must be conceded there is a vast difference between theconstitutional guaranty of a right to vote upon the payment of a poll taxunder the laws of the State of Texas and the statutory requirement notonly of that tax, but in addition thereto, a receipt showing the paymentof any poll tax levied under the `ordinances of any city or town in thisState' as a prerequisite to voting in State and county elections." (Italics ours)

In so saying, it seems to me the Attorney General admitted the nonexistence of the only possible basis of distinction between the qualifications of an elector in State and county elections upon the one hand, and city elections upon the other, with reference to the requirement of the payment of a city poll tax. The opinion, so far as I can see, points out no other possible basis of distinction, authorized by the Constitution wherein it must be found, if it exists. Manifestly no effect can be given to the Act of the Legislature as a legislative construction of Constitution, Art. 6, sees. 2 or 3. The Legislature in adding the words "or ordinances of any city or town in this State" to the requirement, in almost the identical words of the Constitution, and certainly identical in meaning, namely, "under the laws of this State", thereby seems to have construed "ordinances" as something different from "the laws of this State." Otherwise, the added language could serve no purpose, but, on the contrary, could only confuse the expression of the legislative intent, if their full intent was already expressed in substantially the language of the Constitution. There is the implication of something added to the constitutional provision.

It may be admitted that in a special sense an ordinance of a city or town, particularly, a city or town chartered under the general laws, may not inaptly be referred to as a law of the State of Texas. Was it in such a sense that the Constitution required, as a qualification of an elector, the payment of poll taxes which he was subject to pay "under the laws of the State of Texas"? If so, as already said, the elector would not be qualified to vote in any election without a receipt for the payment of a city poll tax, where such poll tax was due. That consideration, of course, does not conclude the question. It is only persuasive because of the generally accepted view that the payment of city poll taxes is not required as a qualification to vote in state and county elections.

In Vosburg v. McCrary, 77 Tex. 568, 14 S.W. 195, 196, it is said: "Ordinances, when authorized by the charter, are but municipal laws, intended to regulate and provide for the orderly exercise of powers conferred by the charter." The enactment of ordinances is the exercise of legislative power. 30 Tex.Jur. 154, page 280. As further said by the same authority: "While an ordinance is not a law in one sense of the word, and does not come within the constitutional provision requiring notice of an intention to apply for the passage of a local or special law, it is a local law, emanating from legislative authority and operative within its limited sphere as effectively as a general law of the sovereignty." Id. When the governing body of a city or town acts directly under authority of a law of the State of Texas, an ordinance is not necessary. "In the absence of any provision to the contrary in the charter or statute, the governing body may enact a valid law in the form of a resolution, but it may not adopt that mode of making laws where the power which created it has commanded that it shall *Page 215 legislate in a different form." 30 Tex.Jur. 282, sec. 156; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S.W. 735.

The Constitution, in several places, makes other references to laws in such a way as clearly not to include ordinances of a city or town. For instance, Art. 3, sec. 36, in prohibiting any law to be revived or amended by reference to its title, has no reference to an ordinance of a city. Ex Parte Parr, 82 Tex.Cr.R. 525, 200 S.W. 404. It cannot be doubted that Art. 11, sec. 4 of the Constitution, in requiring cities and towns of five thousand population or less to be chartered alone by general law, has no reference to an ordinance of a city or town. Again, sec. 5, Art. 11, in providing, with reference to home rule cities, that they may "levy, assess and collect such taxes as may be authorized by law or by their charters," etc., could not reasonably be construed as using law in the sense of ordinances, since it makes a distinction between law and the charter under which ordinances must be authorized, if at all. Constitution, Art. 3, sec. 29, in prescribing the enacting clause for all laws, clearly has no reference to city ordinances. If so, then R.S. 1925, Art. 1012, in making a different provision as to ordinances would be unconstitutional. The provision of sec. 30 of that same article, that no law shall be passed except by bill, cannot be contended as including city ordinances. The prime duty which the Constitution imposes upon the Governor of the State by Art. 4, sec. 10, that he shall cause the laws to be faithfully executed certainly, it is believed, imposes no duty upon the governor to execute city ordinances.

Added to all the foregoing considerations, is the operation of the principle of liberal construction in favor of the right of suffrage as expressly granted by the Constitution. Even if the question were doubtful there is at least a sufficient lack of certainty that city ordinances were by intention included in the laws of the State to require that the doubt be resolved in the favor of the right of suffrage.

It is the opinion of the writer that the clause of R.S. 1925, Art. 2955, "or ordinances of any city or town in this State" was in excess of constitutional authority and that the Legislature is without authority to prescribe as a condition to the qualification of electors the payment of a city poll tax.

1 The subject matter of Art. 1030, was a part of the Acts of 1875 (8 Gammel's Laws, p. 507) the material provisions of which read as follows:

"Sec. 81. The city council shall have power within the city byordinance, to annually levy and collect taxes, not exceeding one per cent., on the assessed value of all real and personal estate and property in the city, not exempt from taxation by the Constitution and laws of the State; provided, that by consent of two-thirds (2-3) of the qualified voters of said city, expressed at an election held for that purpose under the provisions of this act, the city council may levy and collect an additional tax of not exceeding one per cent. upon all such property. (Italics ours)

"Sec. 82. To annually levy and collect a poll tax, not to exceed one dollar, of every male inhabitant of said city over the age of twenty-one years, (idiots and lunatics excepted), who is a resident thereof at the time of such annual assessment."

It thus appears that present Art. 1030 was but a subjoined clause, depending for meaning on section 81, which provided that the grant of power, in both 81 and 82, was to be exercised "by ordinance." Even in the absence of present Art. 1033, which was sec. 86, of said Act of 1875, it is not believed the Legislature, by the slight changes made in subsequent codifications, intended to change the requirement that the power to collect a poll tax could be exercised without the passage of an ordinance so providing. At any rate, whatever the proper interpretation of Art. 2955, it only applies to city poll taxes due under ordinances of cities and towns.

2 Although the question is not of controlling effect in the decision of the question at issue, it is believed that Constitution, Art. 6, sec. 3a (added November 8, 1932) should be construed to have superseded sec. 3. The only provision of said sec. 3 not included with greater detail in sec. 3a reads: "Provided, that no poll tax for the payment of debts thus incurred, shall be levied upon the persons debarred from voting in relation thereto." The meaning of the provision thus quoted is obscure. It certainly does not purport to place a restriction on the appropriation or use of money derived from city poll taxes. It does not purport to be a limitation or qualification on the right of property taxpayers, possessing the other qualifications of electors, to vote in the particular character of elections to which the provision, in terms only, applies. It seems to be a limitation on the power of cities and towns to levy poll taxes under certain circumstances upon certain persons, leaving open the implication of the power to levy it upon other citizens of the same city or town, in apparent conflict with the other constitutional requirement of equality and uniformity.

If sec. 3 were repealed by sec. 3a, the repeal was, of course, by implication. The general rule of repeal by implication is a strict one, applicable only when the later and earlier acts are in necessary conflict. There is, however, an exception, or apparent exception, to such rule. "If a constitutional amendment does not in terms expressly repeal a constitutional provision, yet, if it covers the same subject provided for in such provision, the amendment will be regarded as a substitute for it and as suspending it." 12 C.J. 725, sec. 95. Of course, if there was absolutely no difference in the old and new provisions there would be nothing in the old that could be so suspended. Section 3 applied only to electors in incorporated cities and towns. The new section 3a includes the same with many others and is so comprehensive as, I think, to justify the interpretation that it supersedes section 3.