Snelson v. Murray

McGILL, Justice. This is an appeal from a judgment of the District Court of Ward County,. rendered in an election contest filed in that Court. The contest was- of an election held on January 8, 1952, for the office of Tax Assessor and Collector of Ward County Water Improvement District No. 2, and of one Director of the District. Upon a canvass of the election returns appellant Snelson was declared elected as Tax Assessor an4 collector and appellant White as a Director of the District. The trial court deducted from the votes cast 104 votes of persons who did not own taxable real property within the District, as required by art. 7631, R.C.S., Vernon’s Ann.Civ.St. art. 7631. Such deduction changed the result of the election. Appellants’ first point is that the court erred in holding that art. 7631, R.C.S., as-amencled by Chap. 30, Acts of the 48th Legislature, 1943, was applicable to the election in question. Art. 7631, R.C.S. had its origin in Sec. 7, Chap. 87, Acts of the 35th Legislature, 1917. This Section related to “The manner of conducting ■such election”, (emphasis ours) referring to the election which determined whether the District should be created. Western Union Tel. Co. v. Wichita County Improvement Water Dist. No. 1, Tex.Com.App., 30 S.W.2d 301, loe. cit., 305 (Sec. 7). That Act provided that , “There shall be held on the second Tuesday in January, 1918, and every two years thereafter, a general election, at which time there shall be elected five directors for such district”. Sec. 72. Section 7, Chap. 87, Acts of the 35th' Legislature, 1917, was amended by Chap. 28, § 7, Acts of the First Called Session of the 36th Legislature, 1919, which referred to the manner of conducting “elections Herein provided for” (emphasis ours). This amendment obviously included the election of directors provided for in Sec. 72 of Chap. 87, Acts of the 35th Legislature, 1917. The amendatory act of 1919 was incorporated in the codification of 1925 as art. 7631 of the R.C.S. The amendment' of this Article by Chap. 30, Acts of the 48th Legislature, 1943, p. 32, uses'the same language as the amendatory act of 1919, i. e., “elections herein provided-for”, and therefore refers to the election of directors provided by Section 72 of the original Act of 19Í7. The original Act provided for the appointment of Assessor and Collector of the District by the Directors. Sec. 15. This section was amended by Chap. 53, Acts of the 4th Called Session of the 35th Legislature, 1918, p. 126, so as to provide that the Assessor and Collector might be elected at an election held for. that purpose ordered by the. directors. This amendment is incorporated in art. 7642, R.C.S., Vernon’s Ann.Civ.St. art. 7642. Since this amenda-tory act was effective when the amendment of 1919 was enacted, such election was an “election herein provided for” within the purview of the 1919 and 1943, amendments [722] and the Act of 1943 therefore refers to such election. We therefore overrule appellants’ point that the Court erred in holding that art. 7631, as amended by Chap. 30, Acts of the 48th Legislature, 1943, was applicable to the annual election of officers to govern the district. Appellants attack the constitutionality of art. 7631, as amended on the ground among others, that it violates Section 2 of Article 6, the suffrage clause of the Constitution of this State, Vernon’s Ann.St. If Section 2 of Article 6 of the Constitution is applicable to the election here involved, then clearly art. 7631, R.C.S., as amended by Chap. 30, Acts of the 48th Legislature, Regular Session 1943, contravenes the qualifications of suffrage prescribed by the Constitution. The suffrage clause is restrictive in its operation and its legal effect is to deprive the Legislature of authority to take from or add to the therein defined qualifications of electors. Koy v. Schneider, 110 Tex. 369, loe. cit. 440, 218 S.W. 479, 221 S.W. 880. The Statute cannot impose additional qualifications. Texas Power & Light Co. v. Brownwood Public Service Co., Tex.Civ. App., Ill S.W.2d 1225, loe. cit. 1226(1-3) and authorities there cited. (Wr. ref.) That the Statute here involved attempts both to add to and to take from the qualifications of electors prescribed by Sec. 2 of art. 6 of the Constitution is apparent. It adds to those qualifications the additional qualification that the elector must own taxable real property within the District. It removes from the qualifications prescribed by Sec. 2 of art. 6 the qualification that the elector must have resided the last six months preceding the election within the District in which he offers to vote. As we construe the Statute it clearly contemplates that persons who are residents of the county who own taxable real property within the District may vote although such persons do not reside within the District. Under the record here no vote of such elector is challenged, and their disqualification is not involved. It is only the disqualification of electors who reside in the District but own no real property therein that is involved. Therefore, the serious question presented is whether the suffrage amendment, Section 2 of Article 6, is applicable to the election of directors and a Tax Assessor and Collector of a water improvement district created under Chapter 87, Acts of the 35th Legislature, 1917, and amendments thereto, for the purposes therein specified and also for all other purposes authorized by Sec. 59(a) (b) (c) of the Constitution. Conservation and Reclamation Amendment 1917. Ward County Water Improvement Dist. No. 2, v. Ward County Irrigation Dist. No. 1, Tex. Civ.App., 222 S.W. '665. In Koy v. Schneider, supra, it was held that Sec. 2 of Art. 6 had no application to a primary election. The court followed the classification made in Waples v. Marrast, 108 Tex. 5, 184 S.W. 180, L.R.A. 1917A, 253, of elections which are governmental and those which are non-governmental, holding that Sec. 2 of art. 6 applied only to the former, which did not include a primary election. By the express provision of the Constitutional Amendment of 1917, art. 16, § 59(b), Water Improvement Districts are governmental agencies and bodies politic, with powers of government and authority to exercise such rights, privileges and functions as may be conferred by law. Among these powers is the power to tax all property, real and personal, within the District. See Texas & Pacific R. Co. v. Ward County Irrigation Dist., 112 Tex. 593, loc. cit. 604, 251 S.W. 212, citing Wharton County Drainage Dist. No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381, Dallas County Levee District No. 2 v. Looney, 109 Tex. 326, 207 S.W. 310, and Hester & Roberts v. Donna Irrigation Dist., Tex.Civ.App., 239 S.W. 992, 995. The governing board of such Districts is composed of its Directors. They control all matters pertaining to the business of the District. They may appoint the Tax Assessor and Collector of the District or may order an election to select such Assessor and Collector. The election of directors and a Tax Assessor and Collector is governmental rather than non-governmental. The elected directors and Tax Assessor and Collector become the duly constituted offi [723] cers of the District just as any other elected officers at a general election. Therefore, under the reasoning of Koy v. Schneider, supra, Sec. 2 of Art. 6, the suffrage provision of the Constitution would he applicable and controlling. However, 'Chap. 87, Acts of the 35th Legislature!, and amendments thereto was enacted under Constitutional authority. See 44 Tex.Jur., Sec. 173, pp. 256, et seq. It is a statute enacted pursuant to Constitutional authority, relating among others to Water Improvement Districts. It does not relate to elections generally, and therefore the suffrage provision of the Constitution has no application to it. Schrock v. Hylton, Tex.Civ.App., 133 S.W.2d 175, 176, loc. cit. 177(2-4) citing Wallis v. Williams, 101 Tex. 395, 108 S.W. 153. As pointed out, under the original Act the Assessor and Collector was not elected at all, but was appointed by the directors. Section 15. Under the amendment of 1919, art. 7642, R.C.S., this officer may yet be appointed by the directors. If this provision does not contravene the suffrage provision of the constitution, and we think it does not, since it was enacted pursuant to Constitutional authority, then art. 7631, as amended by Chap. 30 of the Acts of the 48th Legislature providing that electors for this office must own real property within the District, certainly does not violate Sec. 2 of art. 6 of the Constitution, since this Section has no application to such an election. The same is true as to the requirement that electors for the directors own property within the District, and we think it necessarily follows that the requirement of Sec. 2 of art. 6 that electors shall have resided in the District the last six months preceding the election has no application. Appellee seems to concede that if the Statute attempts to do away with this requirement it would contravene the Constitution, but we hold otherwise. Appellants contend that the Statute violates Sec. 1 of the 14th Amendment to the Constitution of the United States because it discriminates against owners of personal property within the district, such property being subject to taxation by the District, but denying them the' privilege of voting for officers who shall manage the affairs of the district. The privilege of voting in the election of officers who manage the affairs of such District is not one of those privileges protected by the 14th Amendment. Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205, 82 L.Ed. 252. The Statute relates to the creation of districts which shall primarily benefit real estate, and we think fittingly delegates the authority to determine questions arising in the government of such districts to the owners of the land to be primarily benefited thereby. Such was the holding in Bethune v. Salt River Valley Water Users’ Ass’n, 26 Ariz. 525, 227 P. 989. Such classification is not arbitrary, but based on the primary purpose for which the District was organized. The reference in the caption of the amendatory act of 1943 to the number of the article of Revised Civil Statutes which was amended was sufficient to comply with Sec. 36 of art. 3 of the Constitution, English & Scottish-American Mortgage Inv. Co., v. Hardy, 93 Tex. 289, 55 S.W. 169 and the emergency clause is sufficient to satisfy art. 3, § 39 of the Constitution. Day Land & Cattle Co. v. State of Texas, 68 Tex. 526, 4 S.W. 865. It follows, therefore, that we overrule all of appellants’ points and affirm the judgment of the trial court. Affirmed.