Untitled Texas Attorney General Opinion

July 15, 1948 Hon. Perry L, Jones Opinion No. V-635 County Attorney Travle county Re: Legality of personnel Austin, Texas of the Regular United States Air Foroe vot- ing in Texas elec- tions Dear Mr. Joneet Reference la made to your letter of recent date wherein you request our opinion on the above cap- tioned matter. We quote from your letter at3followa: “I received the enclosed letter from the Legal Officer out at Sergstrom Fleld. “You will note he 1~ asking whether members of the Regular Air Foroe personnel come under Article 5 Sections;1 and 2a of the Constitutionof Texas which prohibits. voting by Regular Army and Ravy personnel. ‘1 do not have the Federal statutes pertaining to the consolidationof the Army and Navy, however, it is my understanding, and belief, that the Regular Air Foroe par- sonnel Is now a part of the Regular Army and Navy defense set-up. However, this quea,tlon is one of state wide interest and I believe should be passed upon by your offlce rather than by mysrlf.* In 1947, the 80th Congres’s,First Session, passed the ‘NationalSecurity Act of 1947.” W4 quote from the pertinent portions of aaid Act found in U. S. Code, CongressionalService, 80th Congress, page4 503- 507% “Sec. 201. (a) There Is hereby es- tabllshed the National Military Establish- ment, and the Secretary of Defense Shall be the head thereof. Bon. Perry L. Jones, page 2 (V-635) l(b) The I?atlonalYlilltAry Est~bllrh- nmnt shall consist o fthe Dspartnumt of.tbo Army, the department of the Havy, snd the Department bf the Air Force, together tith all other agencies created under title II of this Act. . : '.' %4c. 208. (a) The United States Air Force Is hereby establishedundsr th4 Da- partment of the Air Force. ;The Army Air Forces, ths Air Corps, United States Army, and the GeneraLHeadquarters Air For04 (Air Force Combat Comma&l), shall be trans- ferred to the United States Air Force. *(b) There shall be a Chief oi Staff, United States Air Force, who shall be appolnt- cclby the President,by and with the advice and consent of the Senate, for a term of four years from among the officers of &en- era1 rank who are assigned to or commission- ed in the United States Air Force. JJnder the dlrectlon of'the Secretary of ths Air Forze 3 the Chief of Staff, United States Air Force, shall exercise command over the United States Air Force and shall be charged with the duty of carrying into execution all lawful orders and directionswLM.chmy be transmlt- ted to him. The functions of the Cmmanding General, General Headquartem Air Force (Air Force Combat Cc&and), and of the Chi4f OS the Air Corps and of the Dcminanding G4mmi1, Army Air Forcea,;shallbe traneferrddto th4 Chief of Staff United States Air Force. When such transfer becomes effective, the offices of the Chief of the Plr Corjm, Unlted Statea Army, and Assistant@ to the Chief of the Air Corps, United States)Arm~r,,'~~ro"lded for by the Act of June 4, 1920, as amended (41 Stat. 768), and CommandingGeneral: General HeadquartersAir Force, provided for by Seo- tion 5 of the Act of June 16,'1936 {49 Stat. 1525), shall ceas4 to exist. while holding oifice as,Chief of Staff,,United States Air' Foro4, the incumbent,s'bahi hold a grade and receive allowances equivalent to those pre- scribed by law for the Chief of Staff, United States Army. Ths Chief of Staff, ZTnited States Army, the Chief of Ipaval Operations, Bon. Perry L. Jones, page 3 (V-635) and the Chief of Staff, United States Air Force, shall take rank among thsmselvss ac- cording to their relative date@ of appolnt- ment as such, and shall each take rank lbot4 all other officers on the aotlve list of the Army, Ravy, and Air Force: PROVIDRD, That nothing in this Act shall have the effect of changing the relative rank of the present Chief of Staff, United States Army, and the present Chief of Naval Operations. *(c) Ail commissioned officers, warrant officers, and enlisted men, commissioned, holding warrants, or enlisted, in the Air Corps, United States Army, or the Army Air Forces, shall be transferredin branch to the United States Air Forc4. All othsr cotio- sioned officers,warrant officers,and en- listed men, who are con~nission4cl, hold war- rants, or are enlisted, in any ccmpcmrnt of the Army of the Unit4d State8 and who are under the authority or commend of the Com- manding General, Army Air Forces, sball be continued under th4 authority or command of the Chief of Staff; United States Air Force, and under the jurladiotlonof the Department of the Air Force. Personnel whose status is affected by 'th3.8rubsection shall retain their exletlng commissions,warrants, or en- listed status in existing componaats of the armbd forcea unless otherwise altered or terminated In accordance with existing law; and they shall not be deemed to have been appointed to a new or different office or grade, or to have vacated their permanent or temporary appointments in an existing component of the annea forces, solely by virtue of any change in status under this subsection. No such change in status shall alter or prejudice the status of any lnd$vl- dual 80 assigned so a8 to deprive him of any right, benefit, or privilege to which he rpay be entitled under existing Law. y(d) Except as otherwise dirsoted by the Secr4targ of the Air Force, all proper- ty, r4cords, in4tallatlons,agsncies, acti- vities, projects, and civilian pereonu41 under the jurisdiction,COntrOl, 4UthOrity, Hon. Parry L. Jones, page 4 (V-635) or commnd of the CommandingGeneral, Army Air Forces, shall be continued to the same extent under,the jurisdiction,control, au- thority, or conunand,respectively,of the ChLLefOS ,Staff,United States Air Forue, in the Depa&nent of the Air Forcr. “(0) For a period of two Years from the date of enactment of this Aot. person-’ he Air Force by direction of the Secretary of .Defense .” (Emphasisadded.1 The last sentence’of section 1 of Article III of the Texas~Constitutionof 1845 reads as follows: (I and provided further, that no sol- diei,‘seaman,or marine in the Army or Navy of the United States ahall be entit- led to vote at any election created by thi8 Constitution.” A eimllar provision was contained in all the Constitutionsado ted by this State subsequent to the Constltutronof 1845, and we call your particular at- tention to a part of section 1 of Article VI of the Constitution of 1876, which reads as follows: *The Pollming classes of persons shall not be allowed to vote in this State, to-wit: . l . “Fifth@ AI1 soldiers,marines an4 seamen, employed irithe service of”tba Army or Navy of the United States. In 1932~the above provision of the Constitu- tlon was amended by adding thereto the following% “Provided that this restrictionshall not apply to officers of the National Guard, of Texas, the National Guard Reserve, the Officers Reserve Corps of the United States, nor to enlisted men OS the National Ward, the National Guard Reserve, and the Crgan- ized Reserves of the United States, nor to . Hon. Perry L. Jones, page 5 (V-635) retired officers of the United States Army, ??a*~,and Marine Corps, and retired warrant officers and retired enlisted men of tti United States Army, Navy, and Marine Corps.' Hot only was the above provision in sootion 1 of Article VI of the Texas Conntitutionanientled80 as to allow the above named pergnxralof the ArpraaServices to vote, but at the atunetime seotions 33 #nd 40 of Artl- cle XVI of ths Oonetitutloawere ala0 amnaea a0 as to allow them to hold publio offices. In order to answer your quest&on, it is nec- essarg for us to determine the meaning of the provision contained In our various Constitutionsrelative to the prohibitionagainst service men voting. and particularly the provision in our Constltution of 1676,and the amend- ment to the same 8s adopted In 1932. In doing this, we call your attention to the statement of the Supreme Court in the case of Travelers Insurance Company v. Mar- shall, 124 ‘Tex. 45, 76 S.W.(2d) 1007, which is as fol- lows: “The meaning which a oonstltutional provision had when adopted, it had today; its intent does not change with time nor with conditions;while it operates upon new subjects and changed COnditiOns, it operates with the same meaWn& and Intent which It had when formulated and adopted. 9 Texas Jur. 427; Sec. 18; 6 Ruling Case Law, p. t’ 6, Sec. 39; Cooley's Constl- tutlonal Limitations (8th Ed.) vol. 1, p. 123. As Jud?;eCooley saysr ‘A COn$tttU- tion is not to be made to mean one thing at one time, and another at some subse- quent time when the circumstancesmay have so changed a8 perhaps to make a different rule in the case seem desirable. *** It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentalsof government beyond their control, that these instru- ments ore framed . . . THE MEANING OF THE CONSTITUTIONIS FIXED WHEZNIT IS ADOPT- ED, AND XT IS NOT DIFFERENT AT m SW%%- ~;W&TT;.E$ifN A COURT HAS OCCASION TO Oooleg~s Const. Urn. vol. 1, pp. 123, i24 (ItaEics OUP~).” Hon. Perry L. Jones, Page 6 (v-535) The members of tile ConstitutionalConventions of 1845 and 1875 and the votere of Texas who adopted the above quoted provision in 1876 which deprived ‘allysol- diers, marines and seamen, employed ln the service of the Army OF Navy of the United States“ from voting at elections in thls Stat&, certainlyintended to exclude all members employed Ifaany branch of the Armed Services of the Unlted States’from voting at el,ectlons In this State. We are sustainedin this conoluslonby the.hold- lng of the court in ‘t& case of Savage‘v. Humphri$s, 118 S.W; 893, rendered pribr to the 1932 amendment,where- in the court held that .Bmember of the National Guard employed in the seiVlce of the Army of the United States was not entitled to vote under the State Constitution. Thfs holding,is very slgnlficantin view of ths fact that the vords “Texas Natlonal Guard” were not used In the constltutlonalprovision of 1876 that the oourt was ccnstrulngin the instant case, and what is more, the Texas National Guard was not authorlsednor organleeil until 1903. (See Senate BillJL.5, Aots of the 28th Leg- islature,Regular Sessirin, 1903, p. 206, and the blen- nial repo&s of the Adjutant General for the years 1903- 104). Also, in the case of State v. Degress, 53 Tex, 3 z 7, the oourt held that the retired officers constitute a part of the Army of the United Staten and a8 a oonee- quenos are held to oooupy,anoffloe of profit or trust under ths United States wlthln the meanin or Article XVI, seotlon 33 of ths Oonstitutlon. (ThL aeoision was also pendered prior to the amendment of 193?), From the forseolng it &an be clearly seen that ths spirit and Intent of the provielon oontainedin the aonstltutionof 1876 prohibitedall membeirsof the Armql Foroes,,,of the United States Goverrlrnentfrom voting in eleotibns in this State, regardless of whether they were known by the name of soldiers, marines, or seamen ln’the service of the Army or Nary of the United States, or by some similar or comparablename. Of course, a8 times ana conditionshave changed, we have gone through two of the most deVa8tRting wars in the history of the Nation, and it has been necessary that the Armed.Forcesof the United States be reorganizedfrom time to time so as best to aope with the emergencies. But at the 881118 time, we tunk it is Immaterialds to the name 0~ names by which said branahes of the Armed Forces have been knOXn. As stated in the case of Travelers InsuranoeCo. v. Manshall, “A ConstitutionIs not to be made to mean one thing ~~“~~ time and another at some subsequenttime when the circumstancesmay have so changed as perhaps to make a Hon. Perry L. Jones, page,7 (v-635) different rule in the case seem desirable.U The meaning of the Constitutionis tix0a when it 1s adopted, and It is no different at any subsequent time, and the same aan only be changed by a V&e of the people in a proper elec- tion oallea for that purpose. In 1932 the voters of this State adopted an amendment to section 1, Article VI, which excludes from the provision thereof officers of the National Guard of Texas, Natlonal Guard Reserve, Officers Reserve Corps' of the United States, enlisted men of the National Guard, the National Guard Reserve, Organized Reserves of the United States, retired offloers of the United States Army, Navy ana Marine Corps, and retired warrant officers and retired enlisted men of the United States Army, Navy and Marine Corps. From the effective date of the amendment of 1932 it was intended that all persons above named could partlclpate In the elections of this State provided they possessed the other necessary qualificationsfor voting. However, if the members of the Armed Force6 of the United States are to come wlthln one of the above enumerated ex- ceptions, then they muat cIearlg bring themselves there- under. As stated by the Supreme Court ln the case of Cramer v. Sheppard, 140 Tex. 271, 167 S.W.(2d) 147, "In construing or interpreting the constitutionaland statu- tory provisionswhioh define a general rule and then pro- vide exceptions thereto, one clalmlng under,,theexcep- tion must clearly brl* himself thereunder. To our minds, the rule has not been met in 'this Instance for the members of the Regular United States Air Force cannot clearly come under the exceptions con- tained in subsection 5, section 1, Article VI of our Oon- stltution. Also, you will observe from reading thz "National.Security Act'of 1947" that "no such change in status ahall alter or prejudice the status of any lndl- vldual so areigned, so as to deprive hlm of any right, benefit or prlvllege to which he may be entitled under existing law.' Certainly, the lVationa1Congress did not ,intendto deprive a member of ~theRegular Air Force of the United States of any privilege or benefit that he might be entitled to.upder the existing law. On the other hand, it did not intend'to give such individual any special right, benefit or privilege‘not enjoyed by the other members of the Regular Armed Forces of the united States. In addition to the f&gc)ing, you will observe Hon. Perry L. Jones, page 8 (V-635) from reading the underlined portion of the National Se- curity Act above quOted’j,,?that for a’perlod of two years from the enaotment o? saM Act, military personnel may be transferredbetwem the Department of the Arb and the Department of the Regular Air Force by dlreotlon of the Secretary of Defense. This clearly showa,that at least for two years it is possible for the members of the Regular Air Forces of the United States to also be members of the Regular Army, or for the members of the Regular Army to be members -ofthe Regular Air Force. Further, a careful study of the entire~“Nationa1Secur- ity Act of 1947” oonvinces qs that the personnel of the Regular United States Air,Porte :,comevithln the prohl- bitioa oontained in subaactlon5,>seotion 1, Article VI of the Texas Conetitutioh, .ana it is, .therefore,our opinion that they cannot vote at the eleotlons held in this State. plembers.ofthe Regular United States Air Force are prohibited from voting at eleotlona In tNa State. Subrectlon5, seotlpn 1, Artiole VI, Texas Coaatltutlon. ., Yours ‘W very,,. truly, ATTORNEY ‘OENERALCP’TEXAS JCD:wbsmw . C. Davla, Jr. APPROVEDt ‘d’ .