Solon v. State , 54 Tex. Crim. 261 ( 1908 )

I have read with great pleasure the opinion of my Brother Ramsey concurred in by my Brother Brooks, granting a rehearing and affirming the judgment in this case. The opinion shows great research of authorities and elegance of diction. I am still firmly convinced of the correctness of the original opinion.

While the Legislature has authority, and is bound by obligations of duty, to pass suitable laws regulating and controlling the manner of holding elections and safeguarding the purity of the ballot box, yet those regulations must be reasonable, not arbitrary and harsh, and especially they should not be carried to the point of imputing fraud and corruption upon facts that will not justify such imputation. Section 170 of the Terrell election law evidently was not intended to reach that class of voters who might accept money or a consideration to influence their votes, because the language does not warrant such conclusion, and those questions are thoroughly covered in other sections of the law, notably section 160. This latter section covers every imaginable case where a voter could be bribed or influenced in any way by the acceptance of such consideration. Section 170, under which appellant was convicted, does not undertake to go farther than to prohibit the lending of money for the purpose of paying poll tax. It does not include the idea that such borrowing shall influence the borrower. If borrowing money was intended to influence a voter, and the voter so accepted it, both would be guilty of a felony under section 160. If sections 160 and 170 are intended to reach and suppress the acceptance on the part of the voter of a consideration to affect his vote, then we have two statutes meaning the same thing, creating the same offense, but imposing different penalties, one being a felony and the other a misdemeanor. These sections are in the same act, passed at the same time, and would in that event nullify each other. And it is also out of harmony with section 16 of the Terrell election law wherein parties are authorized to pay the poll tax for other voters under circumstances therein specified. If the agent or friend of a voter can advance money and pay the poll tax for that voter, he would be justified under section 16, but punishable under section 170. However, I do not purpose to discuss this phase further, but refer to what was said in the original opinion.

The more important question arises on the unconstitutionality of the law in regard to imposing a burden upon some voters and relieving others from the same burden. In respect to the right of suffrage under the different clauses of our Constitution this can not be done. If the statute levying a poll tax is in violation of constitutional provisions, then it is conceded by my brethren to be invalid, but this question they meet with the doctrine of classification. Before discussing these matters, I will call attention to some of the provisions of the Constitution. Article 1, section 3, of that instrument provides, "All free men when they form a social compact have equal rights, and no man or set of men is entitled to exclusive separate public emoluments or privileges, but in consideration of public services." Article 8, section 1, provides: "Taxation shall be equal and uniform. * * * The legislature may impose a poll tax. It may also impose occupation taxes." And it further provides in section 2 of article 8, that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. Article 7, section 3, also provides, that, "One-fourth of the revenue derived from the State occupation taxes, and a poll tax of one dollar on every male inhabitant of this State between the ages of twenty-one and sixty years, shall be set apart annually for the benefit of the public free schools." Article 6 provides that any voter who is subject to pay poll tax under the laws of the State of Texas shall pay said tax before he offers to vote at any election in this State, and holds receipt showing payment before the first day of February preceding such election. The Legislature provided in article 5048 of the Revised Civil Statutes that "There shall be levied and collected from every male person between the ages of twenty-one and sixty years, resident within this State, on the first day of January of each year (Indians not taxed, and persons insane, blind, deaf and dumb or those who have lost one hand or foot, excepted), an annual poll tax of one dollar and fifty cents, one dollar for the benefit of free schools, and fifty cents for general revenue purposes." Section 83 of the Act of 1905 further exempts from this poll tax all officers and enlisted men of the active militia of this State who comply with their military duties as prescribed by this Act, except the poll tax prescribed by the Constitution for the support of the public schools. Section 6 of what is known as the Terrell election law also provides that every male person who is more than sixty years of age, or who is blind, deaf or dumb, or who is permanently disabled or has lost one hand or foot shall be entitled to vote without being required to pay a poll tax if he obtains his certificate of exemption from the county collector when the same is required by the provisions of this Act.

Now, before proceeding further, I will notice the question of classification. In regard to the right of suffrage, the Constitution does not classify those who have a right to vote, nor is there any exemption in the Constitution from payment of poll tax of those who have the right to vote. Article 6 of that instrument enumerates those who can not vote, reserving the right to vote in all other citizens of Texas. The amendment to this article a few years ago requires that all voters as a prerequisite to exercising the elective franchise shall pay their poll tax, and exempts no voter from its provisions. The payment of the poll tax on or before the first of February preceding the election at which he proposes to cast his vote is a prerequisite from every voter. It will be noticed that under article 8, section 1, of the Constitution, the Legislature has the power to levy a poll tax. Under article 7 that tax is made obligatory upon all male inhabitants of Texas between twenty-one and sixty years of age. Under the terms of that clause of the Constitution citizenship is not a requisite. It applies as well to the alien. It also applies to those who are unable to vote as set forth in article 6 as well as to those who can, but it is nevertheless a poll tax, and the voter must pay it, for there are no exemptions. Section 2 of article 8 of the Constitution authorizes the imposition of occupation taxes and expressly authorizes the Legislature to classify, but this classification has reference only to occupation taxes; it does not apply to poll taxes. There is nothing justifying the idea of classification in regard to poll taxes within the terms of the Constitution. All voters must pay, else forfeit the right of voting. The militiamen, nor the deaf and dumb, nor the blind, nor the cripple, nor the disabled, nor any one else can avoid paying this poll tax under the terms of the Constitution, and under article 6 in order to become a voter the poll tax must be paid on or before the first of February and a receipt taken, which receipt is a prerequisite to his voting. Therefore, it will be observed that the question with reference to classification has no relation to or bearing upon the question of paying poll tax, nor does it apply to the right of suffrage. Where class legislation is interdicted by the Constitution, statutory class legislation is necessarily void. The Terrell election law is equally obnoxious to article 8, section 1, which requires that all taxes shall be equal and uniform, and in regard to poll taxes demanded of those entitled to vote, it must be equal and uniform. They are all in one class. They can not be divided into classes. In fact I do not understand the Legislature has undertaken to classify, but only to exempt from the operation of the poll tax law something like a dozen classes of citizenship. This is not classification, but exemption, for which there is no warrant. Poll tax is what is termed in the law books "Capitation Tax" and is a tax. "A poll tax or a tax upon the person simply without any reference to his property, real or personal, or to any business in which he may be engaged, or to any employment which he may follow" is a capitation tax. See 6 Cyclopedia of Law and Procedure, page 349; Gardner v. Hall, 61 N.C. 21; Hylton v. U.S., 3 Dall. U.S., 171-175; 1 Lawyers' Ed., 556; The Head Money Cases, 21 Blatchf. (U.S.), 460; 18 Fed. Rep., 135-139. A poll tax is under all the authorities a tax. 27 Am. Eng. Ency. of Law, p. 634; Cooley on Taxation, p. 18. In Texas it is made to bear equally upon all male residents, from twenty-one to sixty years of age, and all those who are entitled to vote. See constitutional provisions heretofore cited. If every citizen in Texas, under the terms of the Constitution, who is entitled to vote, is required to pay a poll tax, it is evident there can be no classification, because every voter is necessarily in one and the same class. Under the Constitution none are exempted; in the statute quite a number are exempted. I feel safe in making the assertion that no authority will be found which authorizes the Legislature to detract from or add to the qualifications of voters as set forth in the Constitution. There has been a great deal written on very refined lines seeking to draw a distinction in regard to suffrage as to whether it is a privilege or a right. With that matter I have no very great concern at present. But I would like to ask from whom do Texans obtain their rights or privileges anyway, and who confers these rights and privileges? It may be called a right or a privilege, but whenever and wherever it is guaranteed by the Constitution and the status of the voter is fixed by that instrument it becomes as sacred to the voter, and to the people who ordained the Constitution as any right in that instrument, and doubtless more sacred, for it is here the power of the people is lodged and exercised. That the great body of the people in ordaining the Constitution could have made different provisions is conceded, but when they have been fixed in the Constitution, then such conditions become absolutely unassailable, and beyond the power of the Legislature to change in any respect by adding to or detracting from such conditions. Our Constitution has fixed this status. The Legislature has sought to change it. The Constitution exempts none who are entitled to vote from payment of the poll tax, but in fact in a very mandatory manner commands that payment be made as a pre-requisite to his privilege or right to vote, and this being true, the Legislature is powerless to change it in any manner whatever. Whenever the Constitution has fixed the status of a voter, whether it be a privilege or a right, it is as sacred as is his right of trial by jury, or that he shall not be tried for a felony except upon an indictment found by a grand jury, or that he shall not be placed twice in jeopardy of life or liberty for the same offense, or any other of the reserved rights. Nor do I care to enter into a discussion as to whether these rights of any character specified in the Constitution are inherent orotherwise. Whenever they are specified in the Constitution they become sacred and unassailable by any department of the government, legislative, judicial or executive. Therefore, I am not concerned so particularly as to what it may be called,"right" or "privilege." The difference is one of refined abstruse reasoning. The decisions and elementary works speak of it as a"right" or "privilege," either or both, and in fact use the two words, "right" and "privilege," rather indiscriminately. In State v. Staten, 6 Coldw., Tenn., 233, it was said: "The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated — the right to vote, the elective franchise, or the privilege of the elective franchise; the person who, under the Constitution and laws of the State, is entitled to it, has a property in it which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy. The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it. Persons invested with it can not be deprived of it otherwise than by `due process of law.' To the same extent that persons can not be deprived of their lands and chattels, or rights and franchises of any kind, otherwise than by due process of law, is it also true that without `due process of law' they can not be deprived or divested of the muniments which evidence and establish their titles and rights, such as deeds, bills of sale, bonds, promissory notes, and the like; and the certificate of registration and the right to vote may be properly included in the category." Again, the doctrine is without qualification or contradiction of authority, so far as I am aware, that, "where the right of suffrage is fixed by the Constitution of a State, as is the case in most States, it can be restricted or changed by an amendment to the Constitution or by an amendment to the Federal Constitution, such as would be binding upon the States. But it can not be restricted or changed in any other way. The Legislature can pass no law directly or indirectly either restricting or extending the right of suffrage as fixed by the Constitution." See 10 Am. Eng. Ency. of Law, p. 573; State v. Adams, 2 Stew. (Ala.), 239; Rison v. Farr, 24 Ark. 161; 87 Am. Dec., 52; Eaton v. Brown, 96 Cal. 371; 31 Am. Dec. Rep., 225; Spier v. Baker, 52 Pac. Rep., 659; County Ct. v. People, 58 Ill. 456; People v. English, 139 Ill. 622; Quinn v. State, 35 Ind. 485; 9 Am. Rep., 754; Kinneen v. Wells,144 Mich. 497; 59 Am. Rep., 105; People v. Maynard, 15 Mich. 471; State v. Fitzgerald, 37 Minn. 26; State v. Findlay, 20 Nev. 198; Allison v. Blake, 57 N.J.L. 6; Allison v. Public Road Board, 58 N.J.L. 140; Lanning v. Carpenter, 20 N.Y. 447; Green v. Shumway, 39 N.Y. 418; People v. McDonald, 52 N.Y. Supp., 898; Van Bokkelen v. Canaday, 73 N. Car., 198; Page v. Allen, 58 Pa. St., 338; 98 Am. Dec., 272; McCafferty v. Guyer, 59 Pa. St., 109; Bredin's Appeal, 109 Pa. St., 337; Lyman v. Martin, 2 Utah 136; Bloomer v. Todd, 3 Wn. Ter., 599; State v. Williams,5 Wis. 308. "While the elective franchise is a privilege rather than a right and may be taken away by the power which conferred it, yet when it has been granted by the Constitution it can not be abridged by the Legislature, and all laws in regulation of the same must be reasonable, uniform and impartial. Where the Constitution of a State fixes the qualifications and determines who shall be deemed qualified voters in direct, positive and affirmative terms, these qualifications can not be added to by legislative enactment. Any provisions which would impose upon a particular class of citizens conditions and requirements not imposed upon all others are void. Neither is it within the power of the Legislature to dispense with any of the constitutional qualifications and confer the elective franchise upon other classes than those to whom it is given by the Constitution; for the enlargement and deprivation of the right of suffrage are equally obnoxious to the Constitution. In short it is not within the power of the Legislature to deny, abridge or extend the constitutional right of suffrage; or in any way to change the qualifications of voters as defined by the Constitution of the State." This quotation is from the 15th vol. of Cyc. of Law and Procedure, at pages 281 and 282. The supporting authorities are as follows: Monroe v. Collins, 17 Ohio St. 665; In re Newport Charter, 14 R.I. 655; In re Appointment of Supervisors, 52 Fed., 254. That the Legislature has no power thus to disfranchise voters who are qualified by the terms of the Constitution see authorities already cited, and in addition see State v. Tuttle,53 Wis. 45; 9 N.W. 791; State v. Lean, 9 Wis. 279; State v. Williams, 5 Wis. 308; 68 Am. Dec., 65; 18 Cent. Dig. tit. "Elections," sec. 2, et seq.; Spier v. Baker, 120 Cal. 370;52 P. 659; 41 L.R.A., 196; People v. English, 139 Ill. 622;29 N.E. 678; 15 L.R.A., 131; State v. Findlay, 20 Nev. 198;19 P. 241; 19 Am. St. Rep., 346; State v. Dillon, 32 Fla. 545;14 So. 383; 32 L.R.A., 124; Gougar v. Timberlake, 148 Ind. 281;25 N.E. 221; 9 L.R.A., 326; Coffin v Board of Election Com'rs.,97 Mich. 188; 56 N.W. 567; 21 L.R.A., 662; State v. Board of Examiners, 21 Nev. 67; 24 P. 614; 9 L.R.A., 385; Clayton v. Harris, 7 Nev. 64; Davies v. McKeeby, 5 Nev. 369; Allison v. Blake, 57 N.J.L. 6; 29 A. 417; 25 L.R.A., 480; Cusick's Election, 136 Pa. St., 459; 20 A. 574; 10 L.R.A., 228; 18 Cent. Dig. tit. "Elections," sec. 6, et seq. Nor can the Legislature change the qualification as fixed by the Constitution. See Black's Constitutional Law, p. 538; Cooley Const. Lim., p. 79, and note, and page 752. Mr. Black says: "Where the Constitution of a State, as is usually the case, fixes the qualifications of those who are to enjoy the right of suffrage, it is the intention that the standards so set up shall remain unalterable until the popular will changes to such an extent as to involve an alteration of the organic law. In this case, it is not within the constitutional power of the State Legislature to alter, modify, or dispense with the qualifications determined by the Constitution. It is not lawful to enact statutes which would either exclude persons admitted by the Constitution, or admit persons whom the Constitution would shut out. No new or different qualifications can be prescribed, nor can any of those named by the Constitution be abrogated." See Chase v. Miller, 41 Pa. St., 403; McCafferty v. Guyer, supra; State v. Adams, supra; Bourland v. Hildreth, 26 Cal. 161. Mr. Cooley, page 752 of his work on Constitutional Limitation, says: "In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who by the Constitution of the State are permitted to exercise the elective franchise," citing Ex parte Siebold, 100 U.S. 371; Ex parte Clarke, 100 U.S. 399; In re Coy, 127 U.S. 731; United States v. Goldman, 3 Woods, 187. On page 78 Mr. Cooley further says: "Where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient. The rule applies to the exercise of power by all departments and all officers. * * * Another rule of construction is, that when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases." In note 2, to the above, Mr. Cooley adds, on page 79 of his work, a great number of authorities, some of which have already been cited. See also St. Joseph et al. v. R.R. Co. Buchanan County Court, 39 Mo., 485; State v. Symonds,57 Me. 148; State v. Staten, 6 Cold., 233; Randolph v. Good, 3 W. Va. 551 . And a great number of authorities mentioned in the note support the proposition that "The Legislature can not add to the constitutional qualifications of voters." It has further been said that "A constitutional designation of the qualifications for the exercise of specific rights is not subject to legislative modification. Thus, it is not competent for the Legislature to add to the constitutional qualifications of voters nor change the qualifications of public officers as prescribed by the Constitution." In support of these propositions the text cites the decisions cited supra. This extract is from 6 Am. Eng. Ency. of Law, p. 28. In Am. Eng. Ency. of Law, pp. 576-7, the following language is found: "If there is no provision in the Constitution as to the qualifications of voters, the Legislature may fix them. But if the qualifications of voters are fixed by the Constitution, as is the case in most States, the Legislature has no power to restrict the right of suffrage by further or different qualifications. Nor can the Legislature extend the right of suffrage to those not possessed of the constitutional qualifications, for the grant of the right to certain classes is by implication a restriction to those classes." In support of these propositions, in addition to the authorities already cited, the foot notes cite a great many others, among which I mention Brewer v. McClelland, 32 N.E. Rep., 299; Attorney-General v. Detroit, 78 Mich. 545; 18 Am. St. Rep., 458; Bew v. State,71 Miss. 1; Com. v. Reeder, 171 Pa. St., 505; Pearson v. Brunswick,91 Va. 322; Barker v. People, 20 Johns., N.Y., 457; Gotchens v. Matheson, 58 Barb. N.Y., 152; Huber v. Reily, 53 Pa. St., 112; People v. Blodgett, 13 Mich. 127; Chase v. Miller, 41 Pa. St., 403; People v. English, 139 Ill. 622. In State v. Dillon,32 Fla. 586, it was held that an act which required the voter to pay his own poll tax did not deprive him of the right to pay it by agent, and the Terrell election law expressly recognizes this right under circumstances mentioned in section 16 of that act as not being subject to punishment. The proposition may be again thus stated; when the Constitution makes specific provisions or declarations of powers on any particular subject, it is not within the power of the Legislature to enlarge or abridge the same. Any attempt in either direction will be plain usurpation and void. Gemmer v. State, 66 L.R.A., 82; State v. Askew,2 S.W. 349; People v. Bull, 46 N.Y. 57; 7 Am. Rep., 302; Com. v. Gamble, 62 Pa. St., 343; State v. Thomas, 10 Kan. 191; State v. Wiltz, 11 La. Ann., 439; 10 Am. Eng. Ency. Law, p. 681 (2 ed.); Howard v. State, 10 Ind. 99; Deweese v. State, 10 Ind. 343; Markle v. Wright, 13 Ind. 549; Cooley Const. Lim., 64.

It would seem, if a question could be settled at all uniformly and harmoniously, that the one under discussion has been so settled in the United States, and this by every court of last resort which has written on the subject. It would hardly be questioned that one of three propositions is inevitably correct; either that the Legislature has more power than the Constitution and is clothed with greater authority, and can with impunity add to or detract from the constitutional mandatory provisions, or the Constitution itself must be supreme; second, that those who pay the poll tax have a greater burden imposed upon them as a pre-requisite qualification for voting than do those who vote without paying said poll tax; third, that those who are exempted from payment of the poll tax are either disqualified as voters and not authorized to vote, or exercise the elective franchise without being required to pay the poll tax and are, therefore, placed upon a different plane than those who do pay or are required to do so. Then, it may be incontestably stated that all those within the exemptions mentioned in the statute are either disqualified from voting, or they have a"right" or "privilege" conferred to exercise the electivefranchise without paying poll tax, which the other citizenship of the State, who are voters, are required to pay. It is asserted in our bill of rights that all power is inherent in the people. That inherent power is asserted by express command of the Constitution through the elective franchise "by ballot." While sovereignty is in the people generally, the practical fact of sovereignty resides in that part of our people who are constitutionally authorized to exercise the elective franchise. It is only through the ballot box that the resident inherent power of our people is manifested in ordaining and executing and carrying on our republican form of government. These practical facts and propositions are beyond doubt or casuistry. Whether the elective franchise be "privilege" or "right," it is beyond question the embodied idea of inherent power in our citizenship. In it is the basic principle of constitutional government and sovereignty of the State. It is the essence, spirit and real life of our representative democracy. To attack it at any point as fixed by the Constitution would be plain usurpation. The rule of legislative omnipotence must find its termination in an attack on this inherent resident power in our constitutional elective franchise. The servant is not greater than his master. At the ballot box our inherent power is exercised, and as the Constitution has ordained it, that power must unalterably remain. It is by this means our officers are selected. It is through this method that many of our local laws and policies are vitalized and put into operation. It is the only way by which our Constitution can be amended, or a new one substituted. It is only through the elective franchise that inherent power finds expression. It would be a bold assertion to make that our legislative department could abrogate or modify the inherent power reserved by and resident in our people. If any or all departments could successfully emasculate this inherent power of our people, then our republican form of government would be at an end, and our boasted representative democracy a fiction. No department has any right or power to subordinate this inherent power. Much less would the power exist for legislative classification of those exercising the elective franchise. Suffrage is not an occupation and not subject to classification as are occupation taxes. The cases cited by my brethren in regard to occupation taxes have no pertinence or bearing on the elective franchise. Poll taxes are not occupation taxes. The elective franchise is not an occupation. As before stated, the Legislature is without power to classify voters from poll tax standpoint, because the constitutional provisions are mandatory and delegate no such authority to that body, nor do they grant power to make exemptions. When a citizen proposes in Texas to exercise the right of elective franchise, he must comply with the provisions of the Constitution, and when he has done so he is safe from legislative interference from this standpoint.

I am not unaware of the consequences of holding an act of the Legislature unconstitutional in regard to these exemptions, nor am I unmindful of the far-reaching consequences if the propositions asserted were successfully maintained in their effect upon what is known as the Terrell election law. I understand full well that the police power of a State is very comprehensive and far-reaching, but I as fully understand that no power, police or otherwise, assumed by legislative, judicial or executive departments of the government is sufficiently comprehensive to set aside, override or annul the plain or mandatory provisions of the Constitution. To attempt to do so would be usurpation of power. Nor can the doctrine of inconvenience obtain in questions of this character. As was said in Chance v. Marion County, 64 Ill. 66. "In construing the language of the Constitution the courts have nothing to do with the argument from inconvenience. Their sole duty is to declare it a lex scripta est." Greencastle Tp. v. Black, 5 Ind. 571; People v. Morrell, 21 Wend., N.Y., 584; Newell v. People, 7 N.Y. 109. "When the terms of a written Constitution are clear and unambiguous, and have a well understood meaning and application, effect must be given to the intent of its framers as indicated by the language employed. The operation and effect of the instrument will not be extended by construction beyond the fair scope of the terms employed, merely because the more restricted and literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be to some extent within the reasons which led to the introduction of some particular provision, plain and precise in its terms. Settle v. Van Evrea, 49 N.Y. 280." So far as the writer is concerned, it has been regarded as a duty to follow the Constitution as it is written without reference to results and regardless of consequences. If the Constitution does not work as it is thought it should, the same power which ordained can change it either by substituting a new one, or by amending the provisions found to be objectionable. The fact that the provisions of the Constitution may work inconvenience or hardship in this or that case, or under this circumstance or under other conditions, is a matter which has had no effect upon my action in construing and upholding that instrument as written. The hardship may be endured until it can be changed or amended by the same power that ordained it, and when the courts or the Legislature, or the executive, or all three combined, assume or exercise power to divert it from its plain meaning and evident purpose and intent, a dangerous precedent has been set and a principle inaugurated that can at will overturn any other and all other provisions of that instrument. From this doctrine I have always withheld my assent, and will continue to raise my voice against it while clothed with judicial authority. The doctrine of inconvenience or convenience leads inevitably to the ultimate destruction of constitutional government, which would be legalized anarchy.

For the reasons indicated, I respectfully enter my dissent from the conclusion reached by my brethren. I believe the law under discussion, under which the appellant was convicted, is unconstitutional and in plain violation of the organic law.