C. R. Co. v. Sullenger's Adm'r, 160 Ky. 455, has been restored to the record. As recited 169 S. W. 858. The judgment is therefore affirmed, upon the appeal of both Salyers and the railway company. On Petition for Rehearing. The petition for a rehearing herein is based upon the fact that the bill of evidence made at the second trial was mislaid, and was not with the record when it was considered and the decision arrived at, and the court for that reason could not consider the cross-appeal of Salyers, who was the plaintiff below. It was made to satisfactorily appear that such bill of evidence had originally constituted a portion of the record, and was not therein at the time the cause was considered, without any fault of the cross-appellant, Salyers, and in the opinion, the cross-appeal rests upon the contention that the court erred in setting aside the verdict and judgment rendered at the second trial, and granting a new trial. Such of the grounds of objection to the order of the court granting the new trial as could be considered upon the record before us at the former consideration were then disposed of. There remained only to be considered, of the grounds for setting aside the verdict and judgment, the contentions: (1) That the ver dict was contrary to the weight of the evidence; (2) was not sustained by the evidence; and (3) newly discovered evidence. After a careful examination of the bill of evidence, it is concluded from a consideration of all the facts of the case that the court did not abuse its discretion in granting the new trial. The petition is therefore overruled. KOY V. SCHNEIDER, Tax Collector. * (No. 3359.) (218 S.W.) STATUTE WILL BE SUSTAINED IN CASE OF DOUBT. "The suit was brought by appellant for mandamus to compel the appellee, the tax collector of Austin county, to issue a poll tax receipt entitling her to vote, under the provisions of chapter 34, Acts of the Fourth Called Session of the Thirty-Fifth Legislature. The petition alleges, and the facts disclose, that appellant possessed all of the qualifications of a voter prescribed in said act of the Legislature. The application for payment of poll tax and the issuance of receipt therefor contains all of the requisites prescribed by the statute. The appellee, upon presentation of the application, refused to accept the poll tax money which was tendered by appellant, and refused to issue her a receipt. "The appellee answered in this suit by filing a general demurrer, and admitting the allega A statute will not be declared unconstitutions of plaintiff's petition as to her sex, resitional in a doubtful case. 3. ELECTIONS 9-STATUTE PROVIDING THAT WOMEN MAY VOTE AT PRIMARY "ELECTIONS" VALID. Acts 4th Called Sess. 35th Leg. (1918) c. 34, empowering women to vote at primary elec tions, does not violate Const. art. 6, § 2, making only male persons qualified electors at elections within the state, since the word "elections" in the Constitution refers only to governmental elections and not to preliminary and non-governmental activities like primary elec tions. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Election.] Phillips, C. J., dissenting. Certified Question from Court of Civil Appeals of First Supreme Judicial District. Mandamus proceedings by Mrs. Alma Koy against William Schneider, Tax Collector. From an order sustaining a general demurrer to the petition, the petitioner appealed to the Court of Civil Appeals of the First Supreme Judicial District, which certified a question to the Supreme Court. Question answered in the negative. Walker Acker, of Houston, for relator. ent. W. J. Townsend, Asst. Atty. Gen., amicus curiæ. GREENWOOD, J. Question certified from the Court of Civil Appeals of the First Supreme Judicial District of Texas, in an appeal from the district court of Fayette county. The certificate of the honorable Court of Civil Appeals is as follows: "In the above styled and numbered cause, now pending in this court on appeal from the district court of Fayette county, the question hereinafter stated which is material to a decision of this appeal arises upon the statement of the nature and result of the suit, and the facts disclosed by the record, which are as follows: dence, tender of poll tax money, demand for poll tax receipt, and all other facts necessary to entitle her to a poll tax receipt under said act of the Legislature. The court below sustained appellee's general demurrer to plaintiff's petition, on the ground that the act of the Fourth Called Session of the Thirty-Fifth Legislature, before cited, was unconstitutional and void. "Because of the public importance of the question, and the obvious desirability of obtaining its final decision within the earliest practicable time, we deem it advisable to certify for your decision the following question: "Is the act of the Legislature above cited, granting to women the privilege of voting in primary elections, violative of section 2 of article 6 of our state Constitution?" Article 6 of the Constitution of the state of Texas, in section 2, prescribes that every male person, subject to no disqualification specified by section 1, and who shall have at tained the age of 21 years, and who shall be a citizen of the United States, and who shall have resided in this state one year next preceding an election and the last six months within the district or county in which he offers to vote, shall be deemed a qualified elector; and that every male person of foreign birth, subject to no disqualification specified by section 1, who not less than six months before an election at which he offers to vote shall have declared his intention to become a citizen of the United States in ac cordance with the federal naturalization laws, and shall have resided in this state one year next preceding such election and the last six months in the county in which he offers to vote, shall also be deemed a qualified elector. The act of the Legislature confers the right to vote on women possessing the qualifications, save of sex, of electors under the Constitution and laws of the state, at any and all primary elections or nominating conventions to be held under the laws of the state, and requires each woman offering to vote in any primary election or convention, after January 1, 1919, to comply with all provisions of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Our answer to the certified question depends on whether the constitutional provision, when rightly construed, fixes the qualifications of participants in party primaries * To not the business of the state. It is not the our laws requiring and permitting voting | enable them to furnish their nominees as candion payment of poll taxes. dates for the, popular suffrage. * provide nominees of political parties for the people to vote upon in the general elections is business of the state because in the conduct of the government the state knows no parties and can know none. * Political parties are political instrumentalities. They are in no sense governmental instrumentalities." or conventions. There are many organized voluntary groups in the various states of the Union, whose purposes and objects depend for their accomplishment on the exercise of a form of suffrage by the individual member. Such groups are of the highest value in the promotion of the general good. Among these groups are many maintained for charity, many maintained for helpful co-operation, such as mutual insurance associations, and many maintained for the support of religious worship, such as the various churches having a congregational form of government. The law recognizes, and will often enforce, the right of the individual as an elector in the conduct of the affairs of each of such groups to which he belongs, but no one would maintain that such right, even when exercised in a group regulated by statute, as not infre quently occurs, came within the purview of article 6 of our Constitution. It follows that the words "qualified elector" and the word "election" were not used in this constitutional provision in the broadest possible sense, and that in order to determine their application to the exercise of the right of suffrage within an organization we cannot ignore the essential nature and objects of such organization. The act of the Legislature deals only with suffrage within the party primary or convention, which is but an instrumentality of a group of individuals for the accomplishment of party ends. As so well stated by this court in Waples v. Marrast, 108 Tex. 11-13, 184 S. W. 183, 184 (L. R. A. 1917A, 253): "A political party is nothing more or less than a body of men associated for the purpose of furnishing and maintaining the prevalence of certain political principles or beliefs in the public policies of the government. As rivals for popular favor they strive at the general elections for the control of the agencies of the government as the means of providing a course for the government in accord with their political principles and the administration of those agencies by their own adherents. According to the soundness of their principles and the wisdom of their policies, they serve a great purpose in the life of a government. But the fact remains that the objects of political organizations are intimate to those who compose them. They do not concern the general public. They directly interest, both in their conduct and in their success, only so much of the public as are comprised in their membership, and then only as members of the particular organization. They perform no governmental function. They constitute no governmental agency. The purpose of their primary elections is merely to In a previous portion of the opinion, the court recognized that "General elections are essential to the public welfare and are distinctly related to the discharge of an important governmental duty, because it is only by their means that the organic law may be amended and in the elective offices ministrative agencies of the state." public officials be supplied for the various ad108 Tex. 11, 184 S. W. 183, L. R. A. 1917A, 253. From the above it appears that the real question before us is whether we should construe the suffrage article of our Constitution as sufficiently broad in scope to relate to suffrage within a mere political organization, as contradistinguished from a governmental organization, and within an organization, whose objects do not concern the general public and are intimate only to those who are comprised within the organization's membership. To our minds, this question admits of no answer save in the negative. It is difficult to conceive how the primary election law of this state, even without the provision admitting women to participation in primaries and conventions, could be held free of violation of the Constitution, if section 2 of article 6 were construed to govern voting at party primaries and conventions. For it would seem unquestionable that the constitutional provision was designed to prevent the denial of the right of suffrage, which it safeguards, to any person possessing the requisite qualifications; and all the authori ties seem in accord with the statement that "Where the right of suffrage is fixed in the Constitution of a state, as is the case in most states, it can be restricted or changed by ar amendment to the Constitution or by an amend ment to the federal Constitution, which, of course, is binding upon the states. But it cannot 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." 10 A. & E. Encyclopedia of Law, 573, 576; 15 Cyc. 282; 8 R. C. L. § 41. In Cooley's Constitutional Limitations, in section 599, it is said: "Whenever the Constitution has prescribed the qualifications of electors, they cannot be changed or added to by the Legislature or otherwise than by an amendment to the Constitution." The rule stated was approved in the opinion of Justice Ramsey in Solon v. State, 54 (218 S.W.) Tex. Cr. R. 261, 114 S. W. 349, where it is said: In rejecting the contention, the Supreme Court of Indiana said: "The character of an act is often best de "Where a Constitution has conferred the right and prescribed the qualifications of elec-termined by viewing it from the standpoint of tors, it of course is paramount until amended, and the Legislature cannot change or add to them in any way; but, where the Constitution does not fix the right of suffrage or prescribe the qualifications of voters, it is competent for the Legislature, as the representative of the lawmaking power of the state, to do so." its results. The practical result of holding that section 2 of article 2, supra, covers primary elections, is their destruction, whether voluntarily held by groups of electors called political parties, or involuntarily held under statutory mandate. We do not believe that the people, in adopting the constitutional provision, had any such result in mind." were By its very nature, and certainly by its exLikewise, we have no doubt that nothing press terms, the Texas primary law provides was further from the minds of any one havfor the exclusion from participation in partying a part in framing the suffrage provisions primaries of persons granted the constitu- of our Constitutions or further from the tional right of suffrage, if the constitutional minds of the voters by whom same grant extends to primary suffrage. The def- adopted than to prevent nominations by inition in our statutes of a "primary election" means of party primaries. excludes therefrom all save "the members of an organized political party." The test prescribed and authorized, as to which the Constitution is silent, operates still more restrictively. Articles 3085, 3096, 3093, Vernon's Sayles' Texas Civil Statutes. We think it fallacious to argue that our primary election laws regulate, but do not restrict, the right of suffrage. It is true they regulate, but the first and essential step in the regulation is to restrict. Most of the states, as above noted, have primary election systems, established under constitutional provisions similar to ours. Hence, if our primary system is affected by constitutional infirmity, so would be most of the primary systems of our sister states. Indeed, in the light of the history of party nominations by conventions and by primaries in this state, the conclusion seems inevitable that the people in voting on section 2 of article 6 of the Constitution of 1876, and on the amendment adopted in 1902, could not have contemplated or intended for the original section or amendment to have any relation whatever to party primaries. The idea of subjecting parties to restraint in the matter of selecting nominees and of declaring and accomplishing party aims is one which arose after the words were put into the Constitution, which are now claimed to govern the qualifications of participants in primaries. It seems to us that due consideration for the opinions of the appellate courts of other [1] No matter how far-reaching and disas- states, construing similar constitutional protrous would be the consequences of declar- visions, relating to elections and to electors, ing primary suffrage within the scope of our must at least make doubtful whether the constitutional provision, we would not decline language of section 2 of our article 6 could be to make the declaration if such was believed properly held to refer to primary elections to be the true intent of the language of the and to those participating therein. Our obliConstitution. It is a proper inquiry, how-gation to carefully consider such opinions, in ever, in ascertaining whether a certain interpretation should be given to the language of the Constitution, to consider whether its framers and the voters by whom it was adopted intended the consequences which must follow such interpretation. Scott v. Sandford, 19 How. 426, 15 L. Ed. 691; Maxwell v. Dow, 176 U. S. 602;1 Ass'n v. New York, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 792. In Kelso v. Cook, 184 Ind. 180, 191, 110 N. E. 990, 993 (Ann. Cas. 1918E, 68), it was contended that a primary election came within the purview of section 2 of article 2, of the Constitution of Indiana, which reads: "In all elections not otherwise provided for by this Constitution every male citizen of the United States, of the age of 21 years * * who shall have resided in the township sixty days, and in * * the precinct thirty days, immediately preceding such elec tion * * shall be entitled to vote in the * precinct where he may reside, if he shall have been duly registered. * 218 S.W.-31 determining constitutional questions, is plainly announced by this court in the opinion of Chief Justice Hemphill in the early case of De Cordova v. Galveston, 4 Tex. 476. It was said by the Supreme Court of West Virginia in the case of Baer v. Gore, 79 W. Va. 58, 90 S. E. 533, L. R. A. 1917B, 728: "By many text-books and decisions an important distinction is noted between a general election merely as a substitute for a nominatand a primary election. They treat a primary ing caucus or convention and not as an election within the meaning of that term as used in Constitutions. So treated, it is a mere matter of statutory regulation within a reasonable exercise of the police power of the state, predicated on rights reserved by the people, when not forbidden by the organic law of the municipality. This principle is especially emphasized with reference to the qualifications of electors and tests of party membership prescribed by primary laws." In State v. Flaherty, 23 N. D. 323, 136 N. W. 81, 41 L. R. A. (N. S.) 132, it is stated: 120 Sup. Ct. 448, 494, 44 L. Ed. 597. "Many courts lay down the broad rule that such constitutional provisions are applicable only to general elections, and therefore do not apply to primary elections. As illustrative we quote from Riter v. Douglass, 32 Nev. 400, 109 Pac. 444: "That a primary election of candidates is not an election of officers within the meaning of the constitutional test has been sustained by an overwhelming weight of authority in states with similar constitutional provisions to those contained in the Constitution of Nevada'-citing Line v. Election Canvassers (Line v. Waite) 154 Mich. 329, 18 L. R. A. (N. S.) 412, 117 N. W. 730, 16 Ann. Cas. 248; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; State ex rel. Gulden v. Johnson, 87 Minn. 222, 91 N. W. 608, 840; State ex rel. Webber v. Felton, 77 Ohio St. 554-578, 84 N. E. 85, 12 Ann. Cas. 65; Dooley v. Jackson, 104 Mo. App. 21, 78 S. W. 333." There is another line of authorities which excludes from the purview of such constitutional provisions as ours all elections provided for by statute only, and not by the Constitution. Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915B, 253, Ann. Cas. 1915A, 772; Riter v. Douglass, 32 Nev. 400, 109 Pac. 444; State v. Nichols, 50 Wash. 508, 97 Pac. 728; Schostag v. Cator, 151 Cal. 600, 91 Pac. 502; State v. Flaherty, 23 N. D. 313, 136 N. W. 76, 41 L. R. A. (N. S.) 132; Hanna v. Young, 84 Md. 179, 35 Atl. 674, 34 L. R. A. 55, 57 Am. St. Rep. 396; Coggeshall v. Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 229; Buckner v. Gordon, 81 Ky. 665; State ex rel. v. Dillon, 32 Fla. 545, 14 South. 383, 22 L. R. A. 124; State v. Johnson, 87 Minn. 223, 91 N. W. 604, 841. See, also, Baer v. Gore, 79 W. Va. 50, 90 S. E. 533, L. R. A. 1917B, 728; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; Wheeler v. Brady, 15 Kan. 26; State v. Monahan, 72 Kan. 492, 84 Pac. 130, 115 Am. St. Rep. 224, 7 Ann. Cas. 661; Harris v. Burr, 32 Or. 348, 52 Pac. 17, 39 L. R. A. 768; State v. Board of Elections, 9 Ohio Cir. Ct. R. 34; State v. Felton, 77 Ohio St. 554, 84 N. E. 85, 12 Ann. Cas. 65; Re Carragher, 149 Iowa, 225, 128 N. W. 352, 31 L. R. A. (N. S.) 322, Ann. Cas. 1912C, 972; Seaman v. Baughman, 82 Iowa, 216, 47 N. W. 1091, 11 L. R. A. 354; Mayor v. Shattuck, 19 Colo. 104, 34 Pac. 947, 41 Am. St. Rep. 208; People v. English 139 Ill. 622, 29 N. E. 678, 15 L. R. A. 131; Plummer v. Yost, 144 Ill. 68, 33 N. E. 191, 19 L. R. A. 110; Ackerman v. Haenck, 147 Ill. 514, 35 N. E. 381; Landis v. Ashworth, 57 N. J. Law, 509, 31 Atl. 1017; State v. Board, 57 N. J. Law, 605, 31 Atl. 1033; Opinion of Justices, 115 Mass. 602; Olive v. School Dist., 86 Neb. 135, 125 N. W. 141, 27 L. R. A. (N. S.) 522; State v. Cones, 15 Neb. 444, 19 N. W. 682; Belles v. Burr, 76 Mich. 1, 43 N. W. 24; Menton v. Cook, 147 Mich. 540, 111 N. W. 94; In re Gage, 141 N. Y. 112, 35 N. E. 1094, 25 L. R. A. 781; In re Inspectors of Elections (Sup.) 25 N. Y. Supp. 1063; Spitzer v. Ful ton, 172 N. Y. 285, 64 N. E. 957, 92 Am. St. Rep. 736; Leflore County v. State, 70 Miss. 769, 12 South. 904. A number of the above cases announce con clusions similar to Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915B, 247, Ann. Cas. 1915A, 776, which involved the validity of an Illinois statute of 1913, known as the Woman's Suffrage Act, and which, though it did not mention party primaries, granted to women the right of suffrage as to certain officers and as to certain other subjects therein mentioned, some of which were, and some of which were not, covered by provisions of the Constitution of Illinois. The line of cleavage was very clearly drawn and strictly followed, as of determinative force. by the Supreme Court of that state, in an opinion holding said statute in part invalid and in part valid. In that opinion, after reviewing previous decisions of the Illinois Supreme Court, it is said: "By these decisions the rule is settled that section 1 of article 7 of the Constitution refers only to elections provided for by that instrument. The qualifications of voters at such elections are fixed by the Constitution and the Legislature cannot change them. Other elections, however, provided for only by statute and not by the Constitution, are wholly within the control of the Legislature." The Court of Civil Appeals at Austin determined in a carefully considered opinion, in the case of Hamilton v. Davis, 217 S. W. 431, in which all the judges concurred, that the legislative act mentioned in the certified question was not violative of the Constitution. If the decisions referred to, and others in line with them, should not be accepted as conclusive in so far as they bear on the precise question under consideration, as we are inclined to regard them, it seems to us that they must at least raise grave doubt as to whether our constitutional provision and similar clauses in other Constitutions were meant to prescribe the qualifications of participants in party primaries. [2] Nothing is plainer than our duty when such doubt exists. Judge Brown was very particular in laying down the principle which has ever guided and must ever guide this court, under such conditions, when he said, in Brown v. Galveston, 97 Tex. 9, 75 S. W. 492: "If there be doubt as to the validity of the law, it is due to the co-ordinate branch of the government that its action should be upheld and its decision accepted by the judicial department. In his work on Constitutional Lim"The itations (page 218), Mr. Cooley says: question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be un |