Honorable Howard Carney Opinion No. S-113
Secretary of State
Austin, Texas Re: Payment of poll tax as a
prerequisite'to voti
T .by
servicemen during 195
Dear Mr. Carney:
Your have requested fan opinion on whether the.waiver of
poll tax payments was a prerequisite to voting, under Section 2a
of Article VI ,of~theTexas ~Constitution,~wlllbe ,in effect during
the year ~1954.
Section 2a of Article VI of the Texas Constitution reads
in part:
"Nothing ~inthis Constitution shall beacon-
strued to require zany person, who at the time of
the holding of an selection hereinafter ,referred
to is, or who, within eighteen months immediately
prior to the time of:holding any suc~.hreelection
was, a member of the-armed forces o'f'theUnited
States, or of the Armed Porce~Reserve of the
United States, or of 'anybranch or component part
of such armed forces or Armed Forc~~eReserve, or
the United States Maritime Service or the United
States Merchant,Marine, and who is otherwise a
qualified voterunder the laws and Constitution of
this state, to pay a ~~011 tax or to hold a rec~eipt
for any poll tax assessad against him, as a con-
dition precedent to his rightto vote~in any elec-
tion held under the authority of the laws of this
state, during the time the United States is engaged
in fighting a war, or withi~none year after the
close of the calendar year in which said war is
terminated."
In letter opinions R-1304 (1948) and R-2210 (1950) ~this
office held that the date on which World War II would t~erminate,
within the meaning of this constitutional provision, would be
the date on which it was terminated fin the legal sense by con-
gressional action or presidential proclamation. World War'11
was terminated in the legal sense on April 28, 1952, the ~date on
which the Ja anese Peace Treaty'came into force. Att'y Gen. Op.
V-1540 (1952P 0 Thus, the,period of waiver of poll tax payments
Honorable Howard Carney, page 2 s-113
as a condition precedent to voting, based on World War II, will
expire on December 31, 1953. Whether the waiver will be effec-
tive during 1954 depends on whether the Korean conflict is a war
within the meaning of this constitutional provision.
Section 8 of Article I of the United States Constitution
gives to Congress the power to declare war. There has been no
formal declaration of war against North Korea.or Commnist China.
Hence, we are faced with the question of,whether "war,"as used
in Section 2a of Article VI of the Texas Constitution, includes
undeclared war.
In Western Reserve Life Insurance Co. v. Meadows, decid-
ed October 7, 1953 (not yet reported) the Supreme Court of
Texas held that the Korean conflict ii a war within the meaning
of a double indemnity provision of an insurance policy which
rendered the accidental death benefit void if the insured was in
military service "in time of war" at the date of the accident.
The opinion contains an exhaustive review of cases dealing with
"de facto war' as distinguished from "technical war" or "legal
war," that is, war declared by Conress. In accord,ancewith the
rule that terms used in contracts of insurance are to be given
their plain, ordinary and generally accepted meaning unless the
instrument itself shows them to have been used in a technical or
different sense, the court held that the term "war" in the in-
surance contract meant war in fact.
The Meadows opinion is an authoritative determination,
as regards matters of Texas law, that the Korean conflict is a de
facto war.
Similar to the rule of construction followed in the
Meadows case, the language of a constitutional provision is to
be given its usual and ordinarv meaning--the meaning which the
voters reasonably understood i; to have. Cox v. RoEison, 105
Tex. 426, 150 S.W. 1149 (1912); Ball v. Davis, 118 Tex. 534, 18
S.W. 2d 1063 (1929). Another rule is that the language should
be construed in the light of the purpose it was intended to ac-
complish. Cox v. Robison, e. Since members of the regular
militarv establishments are not aualified electors in Texas. the
waiver of poll tax payments in Section 2a of Article VI as a
condition precedent to voting was adopted for the benefit of the
"citizen soldiers" who are recruited by both voluntary and com-
pulsory means in time of national stress. One of the purposes
of the waiver was to prevent the men and women whose normal way
of life had been thus interrupted from being disfranchised by a
failure to attend to a detail of civilian activity. The consid-
erations which motivated the adoption of the constitutional
amendment are present with equal force in an undeclared war as
well as a declared war. We are of the opinion that the people
Honorable Howard Carneg, page 3 s-113
of this State, in adopting Section 2a of Article VI, understood
and intended the term 'war" to mean war in fact as well as war
in its technical sense.
The insurance cases holding that war means war in fact
involve private contract matters and are not necessarily con-
trolling on whether the waiver provision in our State Constitu-
tion contravenes the Federal Constitution. It remains for us
to consider whether the extension of the waiver to periods de-
fined by the existence of an undeclared war conflicts with the
constitutional power of Congress to declare the existence of a
legal state of war.
Except as restricted by the Federal Constitution, the
determination of the qualifications of its electors and the
requirements for eligibility to vote are matters solely within
the control of each individual State. Breedlove v. Suttles,
302 U.S. 277 (1937). The grant of special voting,privileges to
citizens of the State for their service in the armed forces and
related services is within the power residing in the State to
"condition suffrage as it deems appropriate. Davis v. Teague,
220 Ala. 309, 125 So. 51 (1929), appeal dism. 281 U.S. 695
(1930). The conditioning of the privilege upon service during
time of undeclared war has no effect beyond the internal affairs
of the State in prescribing the requisites for voting by its
own citizens, and we are of the opinion that it does not inter-
fere with the prerogative of the political department of the
Federal Government to declare the legal existence of a state of
war.
Since actual hostilities in the Korean conflict were
not suspended until July 26, 1953, it is manifest that the entire
year of 1954 will come within the waiver period. Persons coming
within the waiver provisions of Section 2a of Article VI of the
Constitution of Texas will not be required to pay a poll tax as
a condition precedent to voting during 1954.
It should be noted that although this section of the
Constitution waives payment of poll tax as a prerequisite to
voting in certain instances, it does not nullify the poll tax
otherwise levied by the Constitution and statutes. Att'y Gen.
op. o-6821 (1945).
SUMMARY
The Korean conflict 'Isa war within the
meaning of Section 2a of Article VI of the Texas
Constitution. The waiver of poll tax payments
as a prerequisite to voting which is granted by
that section to certain persons in military and
Honorable Howard Carney, page 4 s-113
allied services will be in effect durFng the year
1954.
Yours very truly,
JOHN BEN SHEPPERD
Attorney General
By s/Mary K. Wall
Mary K. Wall
Assistant
APPROVED:
J.C. Davis, Jr.
Reviewer
John Atchison
Reviewer
Robert S. Trbtti
First Assistant
John Ben Shepperd
Attorney General
MKW:wb:wc