,~.’
tion certificates b~ecause
: . .
fex collector failed~ to is-
Dear Sir:‘- : sue .them. ?
Youfreijyest for an opizi+onreads in part-as folloivs:
, :I:~;. .
: ‘Can a.person who has reached the. age of hRU&
:.I’.-da16yeah on or since January 1, 1952; who is. not .sub-,
i.
.Ject to tbe’disqualifications setout.id,Section 33 of the
-CC .ZIee%on.Code, and who is ‘entitled td.Ln~exi&@ohfrom
‘z”e^@bWt&xvote in ‘tie primary election ‘on July 26,1952,
‘.%%&bstanding his or her failure to haves obtained from
,_”thi?‘,~‘as’sessor-collectbr cif the couutyof his re’sidence
--a certificate of exemption within 30”days prior to said
~‘.‘Rrimaryelection?
.
“As a subquestion to the one propounded above, a
-‘-‘number of ‘per’sons’in this county in due time called at
~‘“,the off& of the tax collector and requested exemption
‘, - certificate and were advised that such was not needed.
No eliemption certificates;have ,beep provided’tbe tax
“i!oUector for issue. Would the fact tbat such person
~.as des&ibed ‘above failed to obtain his exemption cer-
tificate through po fault or lack of diligence on his ‘part
alter your answer, or affect your answer to the main
question above propounded? Stated differently, would
tl+ failure of such person as described above to obtain
his~e+emption certificate within the prescribed time
deprive him of his right to vote in any election in which
‘.be could votk bad he obtained the exemption certificate,
where such failure toobtain such certificate is attribut-
able to failure’of the county authorities to provide and to
issue such exemption certificates 7’
‘A person who has reached the age of 21 years on tbe~day of
an election and who meets other necessaryqualifications and re-
quirements is entitled to vote at that election. Sets. 1 and 2, Art.
VI, Tex. Const.; Sets. 33. 34, 41. and 42, Texas Election Code.
Hon. Joe Tunnell. page 2 (V-14g5)
One of these requirements for parsons who attain the age of 21
years after January 1 of the preceding year (i.e., after January 1,
1951. with respect to voting during the current year) is that they
obtain an exemption certificate. Section 49 of the Election Code
reads in part: : .~
‘Every citizen not subject to the disqualifications
set out in Section 3.3 and who is exempt from the pay-
ment of a poll tax by,reason of the fact that he or she
hag not yet, rea.ched the age of. twenty-one years on the
first day,@ January preceding its levy . . . shall not :
later than thirty (30),days before any election at which
he v&.hes tovote obtain from the Assessor and Col-
elector of .TaxeS for the county of his or her residence
a ce~rtificate of exemption from the payment of a poll
tax, and no such person who has’failed or refused to
obtainsucb ,certificate of exemption from ~the payment
of a poll tax shall be allowed to vote. . . .”
This secti,&is based on the former A&&e 2’9&. V.C&
but two important changes b&e ~beeh made ~$nits wording. The
first is the. omission ~of.the knguage “[every ++en] ‘who does not
reside in a c&of .&n thousand inhabitants 01:’more,” The ,~second
change which shouldIld
a person who had not obtained an exemption certificate was’not en-
titled to vote did not raise the point here involved. and we~have been
bich unable to find a parallel case in the opinions of the Texas courts.
toper- However, the point has been ruled upon in a number of other juris-
e dictions. There is a line of cases. of which Molero v. Rowley, 194
d to is.
La. 527, I94 So. 7 (1940). is illustrative, holding that registratgon re-
; annUa quirements are not dispensed with because compliance has been MS-
to is- dered or prevented by the wrongful acts of registration officials. See
td.
Hon. Joe Tunnell. page 6 (V&1485) ,’
29. C. J.S.. Elections, 5.38, p. 61. On the other hand, there are
cases:illustrated by Earl v. Lewis, 28 Utah 116. 77 Pac. 235
(1904). holding that the voters is not required to resort to manda-
mus to compel the registration official to act and is entitled to
vote +thout being registered. In ,the .Lewis case the court said:
“Counsel for contestees also contend that the pro-
visions of the statute as to registration are mandatory,
and that &hefailure to revise the list and register those
,entitled ‘to register was fatal, and rendered the election
void. It is clear that the provisions of the statute as to
the register are mandatory in the sense that, if he re-
fuses or neglects, to perform his duties, he may be com-
pelled by mandamus to do .so; but it does not follow that
his refusal or failure to act defeats the ensuing election,
or deprives the qualified voter who has made proper ap-
plication for registration from exercising his constitu-
tional ,right to vote thereat. Section 2, art. 4. of the Con-
stitution,,is as follows: ‘Every citieen of the United
estates. of the age of twenty-one years and upwards;- who ’
shall have been a citizen for ninety days. and shall have
resided in the state or territory one year, in the county
four months, and in ‘the precinct sixty days next preced-
ing any election, shallbe entitled to vote at such election.
except as herein otherwise provided.’ The Constitution is
silent on the subject of registration. It is fundamental
that a right of a citizen guarantied by the Constitution can-
not be abridged, impaired, or taken away, even by an act
of the Legislature. Notwithstanding our Constitution has
-fixed the qualification of voters, the Legislature may right-
fully enact a registration law which merely regulates the
exercise of the elective franchise. and does not amount to
~a denial of the right itself,~ and does not abridge or impair
‘the, same. Section 821, Rev. St. 1898, provides that: ‘No
person shall hereafter be per’mitted~to vote at any general,
special, municipal, or school election, without having been
first registered within the time and’in the manner and
form required by the provisions of this chapter.’ . . : In
passing section 821. it is evident that the Legislature did
not anticipate a case so extreme and improbabIe as the
refusal of a sworn register to act; ‘on the contrary, the
section was passed in contemplation that the register
would perform his duty, and that legal voters, properly ap-
plying for registration, would not be denied the right. ~There
is no provision of the registration act athich warrants the
conclusion that it was the intention that the legal voter who
has properly applied for registration, but who has beende-
~prived of the right by the failure of the register to act,
575
Hon. Joe Tunnell, page 7 (V-1485)
should, .by reason .of such.failure+ .be~also deprived of ’
his constitutional. right to vote at the polls.- .We are ’
therefore of the opinion that ,a failure of a register to
..“~. a&neither vitiates the registration law, nor deprive:s
the legal.voter. who has ,properly applied-for ,registra- ”
,: tion in the manner required by sections %00, ,of his con-
stitutional right. In other words, when the legal voter
has done all that the law,requires at,his.,hands, and his
‘failure to be registered was the fault of the registra-
tion officer; ‘upon the well-settled principle ‘,of law
that the offer to ‘perform an’act which depends for its
~,‘. performance ~uponthe’action of another person, who
:. wrongfully refuses to act, is equivalent to its perform-
anceT.(McCrary on Elections. g 137). his act~s in at-,
tempting to register should be taken as equivalent to
: registration, and upon tendering his ballot at the polls,
.and showing that he possesses the ‘qualifications pre-
scribed by thenConstitution, and also the cause of his
failure to. register, he should .be permitted to vote. The
claim that the remedy of the voter in such cases is
either by mandamus to compel the register to act, or
by an ac.tion against the register for damages;. is note
:. tenable, because to require the.voter to resort to the
‘~..remedy.of mandamus would be to add onerous condi-.
tions not required by the Constitution, and a resort to’
X: an. action for ~damages would not:prevent registration of-
: ;.ficers from corruptly defeating’the will of the ‘majority.
~ofqualified voters by intentionally failing toact? ‘.~
~.‘We think:the holding in Earl-v. ~Lewis comports with the’
spirit of the election laws .of this State, as set out in case’s cited
above and in numerous other decisions. It is our opinionthat the
Legislature did not intend to disfranchise a person where his fail-
ureto. obtain the exemption certificate required by Section 49 was
brought about by the improper act of the tax collectorin refusing
to issue the certificate., The wording of Section 49. stating that
“PO such 'perscin who has failed or refused to ,obtain such certif-
icate of exemption from the payment of a poll tax shall be allowed
to vote ,,” is significant. Certainly a person who has not obtained
a certificate because of the tax collector’s refusal to issue it has
notrefused to obtain one. Did the Legislature mean that a failure
to obtain a certificate should in every instance prevent the person
from voting? It appears that the’Legi@ture, by adding the word
“refused, * intended to impart to the word “failed’” the meaning of
failure through the voter’s neglect; otherwise, the addition of the
word “refused’ would have been unnecessary, since the one word
576
Hon. Joe Tunnell, page 8 (V-1485).
Failed” could have meant that a, voter.lacking the certificate for
any reason whatever ,should not be allowed ~tovote. : ,:. ~.
~’
One further provision of the,E~lection Code should, be noted.
Section 89 providescthat “no citizen shall be permitted. to vote, ex-
cept as provided in the Constitution of Texas m$ess he first pre-
sents to the judge of election his eoll tax receipt or certificate un-
less the same has been ,lost or mislaid; or left at ~home.” Ramsay
v. Wilhelm. supra. held that Article 3004, V.C;S,, on which-
89 is ~based,TEZZor the guidance of election judges in testing qual-
ifications of a,voter and did not purport to define ~qualifications of
voters. See Thomas vi Groebl, supra. It is sufficient to say, with-
.out going .into an extended ,discussionof this section, ,that it~cannot
be taken as imposing any greater requirement for ~the possession
of an exemption certificate than that which is imposed under the
statutes providing for their issuance. Since it is our opinion that
Section 4.9 does not make .the poss~essionof a certificate a necessary
,requirement to voting where the tax collector has refused .toissue
a. certificate to the voter, it is our further opinion that Section 89
does not enlarge the requirement. .~ ~.~ L,
.Accordingly, our answer. to your second question is that a
qualified voter who has ,made timely application for’s certificate
under Section 49 of the. Election-Code should be permitted tovote
upon proof that his failure .to possess a certificate ,resulted.from ule
tax collector% refusal to issue it-~, The election judges .are authorized
to administer oaths for the -purpose of obtaining such pr~oof,:and they
have authority to require proof of the voter’s qualifications. as an
elector before furnishing him a ballot. Sets. 87; 91. 92, Election Code.
Itwould be advisable for .the~election judge to preserve.in affidaVft
form .&e,.voter’s statement of the’reason for his failure~to.have ~the
certificate. ,~..~.’ ,~.
.’ . .
We ~might add that ‘if the tax collector of yo~~do&ty~Oi&ns
Be-necessary blanks and begins issuing certificates to qualified ap-
plicants, persons heretofore refused cdtificates, upon .learning these
facts. should obtain their certificates for us~eat-future election%”
: ,,
As a,general rule; .every person’who is exempt ..
&om payment’of a poll-taxbecause ofnonage must
obtain an exemption ~certificate at least 30 days before
,Hon. J+ mll. page 9 (V-L?85)
election day in order to vote at the election. Sec. 49,
Election Code-~ @nv&er. ivhere a person ma&g time-
Iy appIicaf,ion for a ce&ific&te ha& failed to obtain one
because of &e tax colkctor’s iefusal to issue it, he is
entitled to vote upon s+isfactory proof of ,his qualifica-
~.tionsas an elector and,bf the reason for his failure to
possess a certificate.
Your&-very truly,
PRICE DANIEL
APPROVED: Attorney General
.J. C. Davis. Jr.
Couuty Affairs Divitiion
E.~ Jacobson
Reviewing Assistant Assistant
Charl+s D. Mathews
First .Assistant