Biggs v. Beeler

173 S.W.2d 144, 180 Tenn. 198

• Court: Tennessee Supreme Court
• Decided: July 3, 1943
• Status: Published

Opinions

Me. Justice Chambliss

delivered the opinion of the Court.

The constitutionality of Chapters 37 and 38, Public Acts of 1943, is challenged on various grounds. Chapter 37 repeals Code Sections 1082, as amended, 1558 and 1559, which levy an annual poll tax of one dollar for school purposes on every inhabitant between the ages of twenty-one and fifty years, with certain exceptions based on incapacity, and provide for collection thereof by the County Trustee.

The second Act, Chapter 38> prescribes certain qualifications for voters, provides for state-wide ¡registration of voters and removal of requirements of payment of a poll tax as a prerequisite to voting, and repeals existing' laws relating thereto.

Complainants are taxpayers, owners of real and personal property, only one of whom is shown to be liable for a poll tax, whose burden would bé increased by the repeal, by Chapter 37, of Statutes which levy such tax, and by the added expense of administration of the registration regulations enacted by Chapter 38. No question is raised in the pleadings or briefs as to the right of complainants to bring this suit, but it is proper to remark that the Courts take knowledge of the fact that this poll tax is levied on many who own no property and pay no taxes otherwise, and whom its abolishment would operate to exempt from taxation altogether, necessitating an increase of taxes from other sources, including the property of complainants, to meet the deficit thus created. They pray for an injunction restraining execution of the provisions of Chapter 38 and for a declaratory judgment as to the validity of both Acts alleged to contravene certain constitutional mandates set forth in named sections of the constitution of 1870. The defendants are State and County officials charged with the duty of enforcing said Chapter 38.

We consider first the validity of Chapter 37 — first in order of passage, and because, by Section 26 of Chapter 38, it is expressly provided that, “the operation of this Act shall be suspended at all times said Code Section [1082] is in effect and operation,” etc. In other words, should Chapter 37 be held invalid and the repeal thereby provided for inoperative. Chapter 38> automatically becomes suspended. The operation of this second Act is thus-conditioned upon the validity of the first.

As has been seen, Chapter 37 deals only with the requirement that a poll tax shall be paid for school purposes. In considering its validity we are not, therefore, concerned with the requirement, sometimes confused with it, of the pre-payment of a poll tax as a condition of voting.

Overruling a demurrer, the Chancellor held that this legislation contravened a positive, mandatory provision of the Constitution. We quote from Section 28 of Article 2 of the Constitution of 1870, the following:

“All male citizens of this State over the age of twenty-one years, except such persons as may be exempted by law on account of age or other infirmity, shall be liable to a poll tax of not less than fifty cents, nor more than one dollar per annum. ’ ’

Appealing, appellants frankly concede that this provision of the fundamental law is mandatory, as is likewise that part of Section I of Article IV which provides that all males shall pay a poll tax, but say that they are not self-executing, to -which proposition their exhaustive brief is mainly directed; that the execution of this mandate is for the Legislature, and that the Courts are without power to enforce its execution by the exercise of control over that body; also, that having the power delegated to it to execute the constitutional mandate, it- has the reserved power to reconsider and by repeal undo that which it has done in compliance with this mandate.

This we conceive to be the determinative question: When the Legislature, in execution of a trust conferred on it by the Constitution, has, by appropriate legislation, executed that trust and put into operation and effect a constitutional mandate, may the Legislature, at a subsequent session, revoke and nullify that which it had done ?

Strangely enough, learned counsel confess failure to find any reported case directly in point; any case in which the Courts of any state have had occasion to consider the power of a Legislature, the creature of the Constitution, to strike down a constitutional mandate which the Legislature, in proper obedience to such mandate, and in exercise of the power vested in it by the Constitution, has put in execution and effect; any case where, after this mandate has been for many years a recognized and enforced part of the body of the law, a repeal has been attempted of such existing law, thereby nullifying th,e constitutional requirement. Having, therefore, presented to us a case without direct precedent, we turn for guidance to principle and reason.

This historical comment is pertinent: The Constitution of 1834 called for a tax on polls, reading: “A tax on white polls shall be laid, in such manner- and of such an amount as may be prescribed by law, ’ ’ Section 28; Article II. The Code of 1858, sec. 553, fixed the tax at twenty-five cents — an amonnt equal at tfie time in purchasing value to the one dollar later fixed. The Constitution of 18701, as has been seen, commanded an annual levy of “not less than fifty cents nor more than one dollar.”

At its first session following the adoption of the Constitution of 1870' now in force, in express recognition of this mandate of the Constitution, the Legislature fixed the amount at one dollar, the age limitations at twenty-one and fifty years, and provided exemptions based on physical incapacity. They thus grafted the constitutional mandate into the statute, and rendered it operative' and enforceable. The Code of 1932 incorporated this law, with amendments extending its application to ‘ ‘ every inhabitant” (subject, as theretofore, to limitations as to age and exemptions) and providing added means of enforcing collection, into the Code Sections which Chapter 37, Acts of 1943 purports to repeal.

Thus for more than one hundred years, by constitutional mandate and executing legislative enactment, collection of a poll tax for purposes of public education, conceived by our forefathers to be necessary and just, has been a part of the organic law of this State. Has not the Court the authority and the sworn duty to declare void this Act of 1943 which affirmatively sets aside and nullifies this constitutionally commanded and legislatively approved law?

In these days, when many men and some Courts treat lightly the constitutional limitations and commands our forefathers thought wise to engraft upon the body of our law, it is well to recall such expressions as the following from the opinion of a former Chief Justice of this Court:

“Constitutions are expressions of the sovereign will of the people, the fountain of all power and authority. The several' departments of the government are created and vested with their authority by them, and they must exercise it within the limits and in the manner which they direct. The provisions of these solemn instruments are not advisory, or mere suggestions of what would be fit and proper, but commands which must be obeyed. . . . The supremacy and permanency of republics depend upon the maintenance of the fundamental law, in its-integrity, as written in Constitutions adopted by the people.; and it is the solemn duty of all those temporarily vested with power, in all departments of the state, to do this. The necessities of a particular case will not justify a departure from the organic law. It is by such insidious process and gradual encroachment that constitutional limitations and government by the people are weakened and eventually destroyed.” State ex rel. v. Burrow, 119 Tenn., 376, 104 S. W., 526, 527, 14 Ann. Cas., 809.

It must never be forgotten that the Legislature, like the Court, is subject to the mandates of the Constitution. Mandatory provisions are imperative commands that must be obeyed, and may not be disregarded or repudiated. A wide distinction, exists between a mandatory non-self-executing provision of a constitution and one that is directory or permissive only. The Legislature is left free to execute and act on the latter, or not, at its pleasure, and, it perhaps has the power to repeal and revoke its execution thereof by such action as it may from time to time elect to take; but a mandatory non-self-executing constitutional provision delegates to the Legislature the execution of a power coupled with a command which, it is true, the Legislature may disregard and the Courts are without authority to enforce performance of by affirmative decree. But, when the constitutional command has been carried into execution, and incorporated into operative law, the Courts, which may not say shall, have the authority and solemn obligation to say shall not. The power of the Courts to declare void and restrain an affirmative act which contravenes and nullifies the higher law is beyond question in this jurisdiction.

The only answer offered to the view above indicated is the invoking of application of the general rule that a succeeding Legislature may revoke by repeal, that is, “abrogate or destroy” (2 Bouvier’s Law Diet., Rawle’s Third Rev., p. 2887), the act of a former. We recognize this to be the general rulé, but we here deal with an exception, which we conceive to be sound in principle and compelled by a controlling constitutional mandate. We look through form to" substance. In form this Act repeals former acts of the Legislature, but who can deny that in substance, in effect, it renders inoperative a constitutional command, to the extent, at least, of a tax of fifty cents on ‘ ‘ all male citizens of this State over the age of twenty-one years, except such persons as may be exempted by law on account of age or other infirmity.” Article II, Section 28. To hold otherwise, as well expressed by a member of this Court (in conference touching the instant case), “would make this constitutional provision meaningless, while appellants freely concede that it is mandatory. It can hardly be conceived that the framers of the Constitution of 1870 would engage in such meaningless laborsi” And, as well said by another, “I certainly do not feel that this Court is precluded from protecting the public revenue and the educational funds of the State, when, to do so merely necessitates upholding the Constitntion and its plear mandate.” In Nashville, C. & St. L. Ry. v. Marshall County, 161 Tenn., 236, at page 239, 30 S. W. (2d), 268, at page 270, this Court said: ‘ ‘ Every new .General Assembly is a law unto itself, within constitutional limitations only.” We italicize language most pertinent here.

Conceding’, as we have done for instant purposes, although plausible argument may be made to the contrary, that the instant mandate is not effectively self-executing, and that, as said by Cooley (Constitutional Limitations, 7th Ed., 121), “Bights in such a case may lie dormant until Statutes shall provide for them,” or, as said elsewhere, “remain inoperative until rendered effective .by supplemental legislation,” (16 C. J. S. Constitutional Law, sec. 48, p. 100 citing Kiernan v. Portland, 57 Or., 454, 111 P., 379, 112 P., 402, 37 L. R. A. (N. S.), 332, 12 C. J. 720, note 57), or, as expressed by this Court in Friedman v. Mathes, 55 Tenn., 488, at page 498, they are “dormant and quiescent until some statute brings them into life and operation,” we have here a case where a constitutional mandate, if originally “dormant” and “inoperative;” has had vitality breathed into it, has been “rendered effective by supplemental legislation,” is now a live, active, operative thing, and to kill and destroy it requires affirmative action, which may be taken only by its creator through constitutional amendment, or convention, not by either the Legislature or the Courts.

This constitutional mandate has been so “welded into intimate and permanent union” (Webster) with the statute that the two have become one and indivisible, and the statute may not now be divorced and destroyed. The necessary effect wonld be to nullify and defeat operation of the- constitutional mandate also.

It is true that, in so far as these Code sections extend the tax beyond ‘ ‘ all male citizens, ’ ’ as provided in the Constitution, this repeal does not violate the express constitutional mandate, but we find no indication of an intention on the part of the Legislature to have this repealing* Act apply to women, if the Act is held inoperative as to males. We think it obvious that the legislative intent was to relieve all alike, not a portion only of those liable for this tax. No intention to effect a discrimination between the sexes can be implied. Therefore, being void in an essential part, the repealing act fails all together. Elision may not therefore be applied. Daniel v. Larsen, 157 Tenn., 690, at 694, 12 S. W. (2d), 386; Spring Hill Cemetery v. Lindsey, 162 Tenn., 420, at 426, 37 S. W. (2d), 111.

For the reasons indicated, Chapter 37 must be declared invalid, contravening and nullifying as it does, an express mandate of the Constitution, “For the will of the people, as declared in the Constitution, is the final law, and the will of the Legislature is only law when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen. ’ ’ Quoting and approving these words from Judge Cooley, this Court said in State v. McCann, 72 Tenn., at page 11, and repeated in Webb v. Carter, 120 Tenn., 182, at page 204, 165 S. W., 426, at page 432, “These are words of wisdom from the pen of the ablest constitutional Jurist now in bur midst,’ and well deserve to be pondered by those whose duty it is to administer the law, and enforce its mandates, especially in the court of last resort.”

And, as said by Mr. Justice Cook in Peay v. Nolan, 157 Tenn., 222, at page 229, 7 S. W. (2d), 815, at page 816, 60 A. L. R., 408, citing- many authorities, “Every act viola-tive of the intent and meaning- of the Constitution is void, and the judicial department, ... is empowered to so declare.”

In conclusion, .we add this word of reminder: If it be the will of the sovereign people that the time has come to change these or other provisions of the organic law, the way is open, as already suggested, by methods prescribed by that law itself. But such changes, however desirable they may appear to be, must be made in orderly and authorized manner. Until then, neither the Legislature nor the Courts, sworn to observe the Constitution as written, may make or condone such changes.

As we endeavored to make plain in the outset, this Act, Chapter 37, with which we deal relates only to the poll or capitation tax, as such; neither it, nor what we now decide has to do with the exaction of payment of the tax as a condition of voting. That is dealt with in Chapter 38, which, as before stated, we do not reach, since by the express terms of Section 26 of that Act, its operation is conditioned on the validity of Chapter 37.

The decree of the Chancellor, in so far as it declares unconstitutional Chapter 37, is affirmed.

G-Reest, C. J., and Neil, J., dissent.