Volume 251 — South Western Reporter

<p>Error from District Court, Harris County Chas. E. Ashe, Judge.</p> <p>Action between C. W. Mowrey and the Fidelity & Deposit Company of Maryland. Judgment for the latter, and the former brings error.</p>

<p>I. Taxation &wkey;o5f5 — •'Tax collector may refuse to accept taxes tendered without payment of wife’s poll tax, though women are not compelled to vote.</p> <p>In view of Const, art. 8, §§ 1, 15, article 6, § 2, as amended in July, 1921, so as to confer the right of suffrage on women, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7354, Rev. St. art. 7630, and Rev. St. art. 2939, as amended by Acts 36th Leg. (.1920) 4th Called Sess. c. 6 (Vernon’s Ann. Civ. St. Supp. 1922, art. 2939), requiring that persons qualified to vote by Const. U. S. Amend. 19, pay a poll tax, a tax collector’s refusal to accept taxes tendered by a taxpayer without payment of his wife’s poll tax, denied neither any guaranteed constitutional or statutory right, though women are not compelled to vote by the constitutional amendment or statute conferring such privilege.</p> <p>2. Elections <§=> I — Right to vote not inherent, but exercise of political power which may be regulated, modified, or withdrawn by authority conferring it.</p> <p>The right to vote is not a necessary or fixed incident to citizenship or an inherent right, but the exercise of a political power, which may be regulated, modified, or withdrawn by the authority which conferred it.</p> <p>3. Elections <§=>18 — Legislature may require women to pay poll tax in order to vote.</p> <p>Under Const, art. 8, § 1, authorizing the Legislature to impose a poll tax, it may extend its power to levy taxes on property owned by women, whether they vote or not, so as to include poll taxes as a condition precedent to the exercise of such privilege.</p> <p>4. Taxation <§=355 — Act requiring women between certain ages to pay poll tax not in violation of uniformity clause.</p> <p>Acts 36th Leg. (1920) 4th Called Sess. c. 6, requiring women between 21 and GO to nay poll taxes in order to vote, held not void as violating the uniformity clause of the Constitution; such tax being levied on all persons within given ages and fairly within the Legislature’s power to make reasonable classifications of the subjects of taxation.</p> <p>5. Taxation <§=544 — State comptroller’s regulation pursuant to which tax collector refused to accept taxes tendered1 without poll tax on payer’s wife held valid.</p> <p>A regulation by the comptroller of public accounts, pursuant to which a county tax collector declined to accept taxes tendered by a taxpayer without the addition of a poll tax levied on his wife, as required by Acts 36th Leg. (1920) Ath Called Sess. c. 6, held valid as a reasonable and effective means of forcing payment of such tax within the comptroller's power, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4324, 4326, 4334, to adopt such regulations, not inconsistent with the Constitution and laws, as he deems essential to the speedy and proper collection of the state revenues.</p> <p>6. Mandamus <§=>119 — Tax collector held not so clearly wrong in refusing tender of taxes for failure to include poll tax as to require issuance of writ.</p> <p>A tax collector held not so clearly wrong in refusing a tender of taxes for failure to include a poll tax on the taxpayer’s wife as to require issuance of a writ of mandamus to compel acceptance of the amount tendered, irrespective of the question as to a taxpayer’s right to pay taxes on some property without paying those due on other taxable property owned by him, since to foreclose the remaining lien would require a course of procedure tending to delays, costs, uncertainties, and perhaps loss in taxes.</p> <p>7. Tender <§=>12(2)— Debtor not entitled to acquittance on tender of amount less than sum due.</p> <p>A creditor is not bound to accept less than what is due in full discharge of the debt, nor is a debtor entitled to acquittance on tender of an amount less than is due from him.</p> <p>8. Constitutional law <©=>48 — Statutes not declared unconstitutional unless clearly so.</p> <p>The courts will not declare an act unconstitutional unless clearly so.</p> <p>9. Statutes <§=>109 — General title fairly indicating object not objectionable if not made cover to incongruous legislation.</p> <p>Where a law has but one general object, which is fairly indicated by its title and can be considered by fair intendment as necessarily and properly connected therewith, the generality of the title is not objectionable, if not made a cover to incongruous legislation; the provisions of the act being liberally construed to avoid serious embarrassment of legislation.</p> <p>10. Statutes <§=>121 (7) — Act levying poll tax on women held not invalid as not embodying subject in title.</p> <p>Acts 36th Leg. (1920) 4th Called Sess. c. 6, entitled “An act to amend article 7354, e. 1, title 126, Rev. Civ. St. of Texas,” etc., “all of which articles relate to the qualifications of voters, so as to eliminate * * * the word ‘male’ and * * * levy and collect from all persons, male or female, within certain ages, poll taxes, and fixing the qualifications of voters so as to include all persons, both male • and female,” etc., held not in violation of Const, art. 3, § 35, as levying a poll tax on women without embodying such subject in the title, the levy of such tax being but a detail relating to the qualification of women voters, and hence within the purview of the general subject of the act; it being necessary, to accomplish the purposes of the constitutional amendment conferring the suffrage on women, that the specified articles of the Revised Statutes be amended and're-enacted.</p> <p>11. Statutes <§=>6 — Act levying poll tax on women held not unconstitutional as revenue act originating in Senate instead of House.</p> <p>Acts 36th Leg. (1920) 4th Called Sess. c. 6, conferring the franchise on women possessing certain qualifications and levying a poll tax on them, held not a revenue act, and hence not violative of Const, art. 3, § 33, because it originated in the Senate instead of the House of Representatives.</p> <p>12. Taxation <§=>309 — Women liable for poll tax levied by Legislature^ though not assessed by tax assessor.</p> <p>As respects the right of a tax collector to refuse to accept taxes tendered by a taxpayer without an additional poll tax on his wife, it is immaterial that the latter was not assessed for such tax by the tax assessor or had authpr-ized her husband to so permit; the Legislature itself having levied the tax, which is a distinguishing feature of an excise tax.</p> <p>13. Statutes <§=>141 (I) — Act levying poll tax on women not invalid as amending poll tax law by mere reference to title.</p> <p>Acts 36th Leg. (1920) 4th Called Sess. c. 6, entitled “An act to amend article 7354, c. 1, tit. 126, Rev. Civ. St. of Texas, and article 2942,” etc., “all of which articles relate to the qualifications of voters, so as to eliminate” therefrom “the word ‘male’ and * * * levy and collect from all persons, both male and female, within certain ages, poll taxes, and fixing the qualifications of voters so as to include all persons both male and female,” etc., held, not violative of Const, art. 3, § 36, as amending the law imposing a poll tax by mere reference to its title; it being sufficient that the title primarily and specifically mention the particular articles related to the subject to be amended, in order to harmonize the laws and give effect to the constitutional amendment conferring the suffrage on women.</p> <p><g=For other eases see same topic and KEY-NUMBKR. in all Key-Numbered Digests and Indexes</p>

L. Hubbard, Judge. Suit by C. H. Rice against L. Perkins, in which, the First State Bank of Terrell was made a party defendant hy supplement tal petition. From a judgment overruling defendant bank’s plea of privilege, it appeals.

A. Childers, Judge. Suit for injuneion by Joe Probst and others against George W. West and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from Harris County Court; John W. Lewis, Judge.</p> <p>Action by Viola Smith against American Woodmen. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Karnes County ; Covey C. Thomas, Judge.</p> <p>' Action by Mrs. Nicy B. Singletary against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Garnishment <&wkey;250 — Damages for wrongful garnishment may be set off against plaintiff’s cause of action; “arising out of, incident to, or connected with plaintiff’s cause of action.”</p> <p>A plea in reconvention for damages for wrongfully procuring a writ of garnishment in aid of plaintiff’s suit is a .counterclaim founded on a cause of action “arising out of, incident to, or connected with plaintiff’s cause of action,” within Rev. St. art. 1339, recognizing defendant’s right to plead such counterclaim in set-off.</p>

<p>Appeal from District Court, Brazos County; W. C. Davis, Judge.</p> <p>Action by M. S. Dansby against the National Liberty Insurance Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Wichita County; E. W. Napier, Judge.</p> <p>Suit by E. D. Price against the Bell Oil & Refining Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Stephens County; C. O. Hamlin, Judge.</p> <p>Suit by H. M. Lee, Jr., against R. W. Lindsey. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trespass to try title <@=340(4) — Deed not conveying land in controversy not admissible as evidence of title.</p> <p>A deed which does not convey the land in controversy is not admissible as evidence of title in a suit involving title to the land.</p> <p>2. Trespass to try title <@=>41 (3) — When identity of land in controversy with that described in plaintiff’s, deeds established stated.</p> <p>When suit is brought to recover a particular tract of land, if the deeds in plaintiff’s chain of -title introduced in evidence describe the land thereby conveyed as he describes-it in his petition, they show that he has title, and, if defendant’s answer does not deny that he' is in possession, and is claiming the land described in the petition, the identity of the land in controversy with that described in the deed is established.</p> <p>3. Trespass to try title <@=>41 (3) — Identity of land described in deed may be shown by circumstantial evidence.</p> <p>In trespass to try title, the identity of the land claimed by plaintiffs as part of the land described in their deeds may, like any other fact, be shown by circumstantial evidence.</p> <p>4. Trespass to try title <@=>41 (3) — Finding that - land; in controversy was part of land described in plaintiffs’ deed sustained.</p> <p>In trespass to try title, evidence held to establish that land claimed by plaintiffs was part of the land described in a deed constituting a portion of their chain of title.</p> <p>5. Lost instruments <@=>23(3) — Evidence held sufficient to establish execution of lost deed.</p> <p>In trespass to try title, evidence held! sufficient to establish the execution of a lost deed.</p>