Bonham v. Fuchs

PLEASANTS, C. J. This is a proceeding, under tlie statute, contesting an election held in the city of West Houston, Harris county, on the 4th day of May, 1920, to determine whether the corporation should be abolished. The returns of the election show that the proposition to abolish the corporation received a majority of 24 out of a total of 180 votes. One of the grounds upon which this result is contested is that 63 of the voters at the election whose votes were received and counted in favor of abolishing the corporation— “were not qualified or entitled, under the laws of the state of Texas, to vote at said election, as the last assessment roll of said city of West Houston before said election, being for 1919, does not show them to be, and none of them are, listed as resident property taxpayers in said city of West Houston, where such election was held, and none of said voters paid a tax on property in said city for the year 1919, and do not pay tax, on property therein, and are not taxpayers, and were not taxpayers when said election was held, but their votes were cast and counted at said election.” A general demurrrer interposed by defendants to plaintiffs’ petition was sustained by the trial court, and, plaintiffs declining to amend, their suit was dismissed. The trial judge in sustaining the general demurrer gave the following reasons for his ruling: “The action of the court in, sustaining this general demurrer is based on the belief of the court that so much of the statute contained in article 1079, Vernon’s Sayles’ Revised Statutes, as requires the name of the voter to be shown by the last assessment roll of a city or town as a prerequisite of the right to vote, is in conflict with article 6, §§ 2, 3. “The Constitution of the state of Texas provides that all male persons not subject to certain named disqualifications shall be permitted to vote in all elections. It is conceded that in this election a prospective voter shall be a resident property taxpayer in the city or town where such election is to be held; and it is contended on the part of the contesting plaintiffs that the words ‘as shown by the last assessment roll’ of such city or town should be given effect by the court in considering their petition and the evidence which they seek to introduce in support of it. “Courts have been very jealous of any effort to restrict the suffrage of citizens, and the Constitution having enumerated those restrictions, including the necessity for a poll tax or affidavit in lieu of a poll tax, it would seem that the Legislature is without authority to add additional restrictions or qualifications, or to provide for a procedure which would have that effect. Not only is it without specific authority to enact such a qualification or restriction, but so much of the statute as requires the name of the voter or the fact of the voter’s qualification to be shown by the last assessment roll is contrary to the purpose and spirit of thé Constitution and cannot be given effect.” Under appropriate .assignments of error appellants challenge the ruling of the trial court sustaining the demurrer, and contend that article 1079, Vernon’s Sayles’ Statutes, prescribing the qualifications of voters at elections held for the purpose of determining whether the corporation of a city or town, incorporated under the general incorporation statute, should be abolished, is not in conflict with sections 2 and 3, art. 6, of the Constitution of this state. The statute cited provides: “All persons who are legally qualified voters of the state and county in which any such election is ordered, and are resident property taxpayers in the city or town where such election is to be held, as shown by the last assessment roll of such city or town, shall be entitled to vote at such election.” Article 6 of our Constitution, giving the right of suffrage, declares, first, in section 1, what class of persons shall not be permitted to vote in this state; and by sections 2 and 3 confers the right of suffrage, with certain restrictions and exceptions, upon all persons in this state not included in any of the classes named in section 1. Section 2 pre *1114 scribes tbe general qualifications of an elector in tbis state. Section 3 provides: “All qualified electors of the state, as herein prescribed, who shall have resided for six months immediately preceding an election within the limits of any city or corporate town, shall have the right to vote for mayor and all other elective officers; but in all elections to determine expenditure of money or assumption of debt, only those shall be qualified to vote who pay taxes on property in said city or incorporated town.” [1] Tbe majority of tbis court cannot agree with tbe learned trial judge that these provisions of tbe Constitution can be construed as prohibiting tbe Legislature from prescribing that, in elections held to determine whether the corporation of a city or town should be abolished, only persons who are property taxpayers in the city or town shall be allowed, to vote, nor from further providing the rule by which the election officers are to determine whether the person who offers to vote at such an election is a taxpayer in the city or town. Such inhibition is attempted to be read into these provisions of the Constitution by the application of the rule, expressio unius est exclusio alterius. This rule, which is never infallible, and, in the opinion of the writer, is rarely a safe one to follow in constitutional construction, cannot be applied to these provisions of the Constitution. . We thinli that section 3, above quoted, shows upon its face that the makers of the Constitution did not intend by the provision of section 2 of this article to confer and regulate the right of suffrage in municipal elections in cities and towns, because, if section 2 confers such right, the first clause of section 3, giving the right to all qualified electors of the state having the prescribed residence in the city or town in municipal elections held for selecting municipal officers, was a wholly unnecessary provision, and would not have been incorporated in that section. In addition to this, the use in section 3 of the words “qualified electors of the state” indicates that the previous section was only intended to confer and regulate the right of suffrage in general elections affecting the state as a whole. If this interpretation is sound, it is just as apt and reasonable an application of the rule “that the expression of the one is the exclusion of the other” to hold that, by giving the right of suffrage in municipal elections for municipal officers to all qualified electors of the state who have resided in the municipality six months next preceding the election, the makers of the, Constitution meant to deny to such electors the right to vote at a municipal election held for any other purpose, as to hold that, by the succeeding provision of the section restricting the right of suffrage in municipal elections to determine expenditure of money or assumption of debt to taxpayers in the municipality, it was intended to give the right of suffrage in municipal elections for any other purpose to all qualified electors of the state who shall have resided in the municipality for six months next preceding the election, and it is therefore clear that the application of the rule stated gets us nowhere in arriving at the meaning of these sections of the Constitution. [2] An act of the Legislature should not be held void by the courts unless it clearly violates some express or necessarily implied provision of the Constitution. Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 495. In the case of Graham v. City of Greenville, 67 Tex. 63, 2 S. W. 742, it is held that the provision in section 4 of article 6 of the Constitution, that “in all elections by the people the vote shall be by ballot,” did not-render invalid the act of the Legislature authorizing a vote of the inhabitants of territory adjoining an incorporated city to determine whether the territory should be annexed to the city, to be taken otherwise than by ballot. While this decision is not directly in point, it seems to us that there was much stronger reason for the contention that the statute in that case was invalid than can be advanced in support of appellees’ contention in this ease. The decision is based upon the theory that the general provisions in the Constitution in regard to elections does not include elections of this kind, and to this extent it supports our conclusions. In the subsequent case of State v. City of Waxahachie, 81 Tex. 626, 17 S. W. 348, the holding in the Graham Case, supra, was expressly approved and followed. [3, 4] It is not entirely clear from the conclusions of the trial judge before quoted that he intended to hold that the portion of the statute restricting the right of suffrage to taxpayers was void, but only that portion denying the right of a taxpayer to vote unless his name appeared upon the assessment roll. If this was the holding, the general demurrer should not have been sustained, because the provision requiring the voter’s name to appear on the assessment roll was not such an integral part of the statute that its invalidity would destroy the entire statute, and plaintiffs’ petition not only alleges that the names of the challenged voters did not appear upon the roll, but that none of them pay taxes on property within the city, “and are not, taxpayers, and were not taxpayers when said election was held.” [5] We are, however, of opinion that, the provision requiring the names of the voters to appear on the assessment roll is not invalid. This was expressly decided by our Supreme Court in the case of City of Fort Worth v. Davis, 57 Tex. 225, construing a like provision in the statute authorizing of *1115 an election for a school tas. In that case the court says: “The Constitution prescribes no means of ascertaining the number of taxpaying qualified voters in the city. The duty of doing this, and ■the consequent right of selecting such means and mode of doing it as they deem best, having reference to practicability and convenience, must devolve on the Legislature. This is the express provision of the Constitution in the section authorizing .counties and cities on the coast to levy a tax for the construction of seawalls and breakwaters, ‘upon a vote of two-thirds of the taxpayers' therein (to be ascertained as may be provided by law).’ Article XI, § 7. From the necessity of the case, a like provision must be implied in the clause we are considering. A reference to the last assessment roll would obviously be open to objection as inaccurate. * * * Absolute accuracy in ascertaining the numbers of property taxpayers who were also qualified voters is manifestly not obtainable. * * * The Legislature have adopted this as under all the circumstances the best test and there are numerous cases which seem to support their, authority to do so.” This decision seems to us to be conclusive of this question. The cases of Savage v. Umphries, 118 S. W. 893, and of Solon v. State, 54 Tex. Cr. R. 261, 114 S. W. 349, also support this view of the law. It follows from these conclusions that the judgment of the trial court should be reversed and the cause remanded, and it has been so ordered. Reversed and remanded. GRAVES, J., dissents. Footnotes [1] ®=>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] ®=For other cases see same topic and KBY-NXIMBBR in all Key-Numbered Digests and Indexes