Williams v. Carr

404 S.W.2d 522, 218 Tenn. 564, 22 McCanless 564, 1966 Tenn. LEXIS 649

• Court: Tennessee Supreme Court
• Decided: May 16, 1966
• Status: Published

Opinions

Mr. Justice Creson

delivered the opinion of the Court.

Appellees here, complainant below, James E. Williams, a citizen of Shelby County, Tennessee, Z. Cartter Patten, a citizen of Hamilton County, Tennessee, and Lewis D. Pride, a citizen of Davidson County, Tennessee, filed an original bill seeking a declaratory judgment and an injunction in the Chancery Court of Davidson County, on December 20, 1965. Named as defendants were appellants here, Joe C. Carr, Secretary of State of the State of Tennessee, Robert H. Roberts, Co-ordinator of Elections, State of Tennessee, and Louis J. Allen, G-eorge Thomas, Jr. and Carl Mclnturff, members of the State Board of Elections, State of Tennessee. Also named as a defendant was the Attorney General of the State of Tennessee, George F. McCanless, who appears in the Court as an appellee. The somewhat unusual posture of the State Attorney • General on this record is explained by the fact that under date of May 10, 1965, while the questioned legislation was in process, he rendered an opinion on same by request of tbe Speaker of tbe Senate. His opinion was that a portion of Chapter 3 of tbe Public Acts, Extraordinary Session of 1965, was violative of Article 2, Section 6 of the Constitution. Tbe particular offending Section is now codified as Tennessee Code Annotated Section 3-102. In tbe court below, three others were permitted to intervene as defendants, representing various interests throughout the State. They were John Chisolm, Ben West, Charles H. Anderson and Tennessee Farm Bureau Federation, Inc. During the pendency of the cause, Mr. Carmack Cochran, of the Nashville Bar, was appointed Amicus Curiae by the Chancellor. Mr. Cochran has also ably appeared in this Court.

The original bill averred that various defendants were officers of the State of Tennessee, and charged with certain duties in connection with elections of this State. The entire legislation, including that portion here in question, is now set forth in Tennessee Code Annotated in Sections 3-101 through 3-110. The real thrust of the original bill was that the portion of the legislation regarding the apportionment of Senators was unconstitutional, as violative of Article 2, Section 6 of the Tennessee Constitution.

In essence, the charge is that Article 2, Section 6 of the Constitution interdicts the division of single counties into Senatorial Districts.

On March 7, 1966, the Davidson County Chancery Court rendered an opinion in which it was held that T.C.A. Section 3-102 is in conflict with Article 2, Section 6 of the Constitution of the State of Tennessee. The rationale of the trial court’s decision is thus expressed:

‘ ‘ The constitutional provision considered in this cause is clear, unambigupus and free from doubt. Its meaning is‘clearly two-fold; first, when a senatorial district consists of more than one county the counties shall be adjoining; second, no county is to be divided in forming a senatorial district. There is no necessary relationship between these two thoughts’.”

Taking into account the severability clause contained in this legislation, the court below elided what was regarded as the offending provision and allowed the remainder to stand.

On March 8, 1966, the court below entered a decree which denied the injunctive relief sought but granted the relief of declaratory judgment as indicated heretofore. The case was tried below on bill and answer; and appeal has been perfected directly to this Court. Appellants’ single assignment of error is as follows:

“The Chancellor erred in holding and declaring that provisions of the Legislative Apportionment Act of 1965 are unconstitutional and violative of Article II, Section 6, of the Constitution of Tennessee, which divide Knox and Hamilton Counties each into two specific senatorial districts, Davidson County into four specific senatorial districts, and Shelby County into six specific senatorial districts; and in failing to hold and declare that the Legislative Apportionment Act of 1965, including the challenged provisions thereof, is valid and constitutional.”

At this point, it will serve the purpose of focus and clarity to quote, in full, that Section of the Constitution with which appellees contend T.C.A. Section 3-102 is in conflict:

Article 2, Section 6. “Apportionment of senators.— The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.”

Rather than quote, in full, T.C.A. Section 3-102, it will suffice to say that it divides Knox County, Hamilton County, Davidson County and Shelby County into several Senatorial Districts, each one of which districts is to elect one Senator.

The question which is presented here is whether or not the provisions of Section 2, Chapter 3, Acts of the Extraordinary Sessions of 1965 subdividing counties entitled to two or more senators into geographically separate senatorial districts, so as to permit the population of a geographical segment of a county to elect a senator, but to prevent them from voting upon other senators elected from other geographical segments of the same county, violate the provisions of Article II, Section 6, of the Constitution of Tennessee.

Appellants contend that there is no conflict between Article 2, Section 6 of the Constitution of Tennessee and T.C.A. Section 3-102. In support of this contention, appellants make the following arguments, (1) that the constitutional history of Article 2, Section 6 indicates that were it not for a scrivener’s error, a comma, rather than a semi-colon, would appear after the word “adjoining”; and, with this comma present, the last phrase in the last sentence of Article 2, Section 6 of the Constitution would apply only where the Senatorial District was to he composed of more than one county (2) that in light of similar constitutional provisions in other states, the last phrase of the last sentence of Article 2, Section 6, forbidding the division of a county in forming a district would apply only where the district is composed of two or more counties (3) that there has been no prior legislative interpretation of Article 2, Section 6 which militates against the interpretation placed upon this constitutional provision by the present legislature (4) that the constitution is to be given a broad and flexible interpretation (5) that multiple voting is undesirable; and therefore a system which allows persons in a Senatorial District within a county to vote for one Senator to represent them is desirable, and (6) that under the decision of this Court in Kidd v. McCanless (1956) 200 Tenn. 273, 292 S.W.2d 40, this Court is without jurisdiction to give the relief sought.

On the other hand, the appellees contend (1) that the history of the constitutional provision involved requires that it be read with the semi-colon, not the comma, and that the particular sentence in question expresses two separate and distinct concepts (2) that there is no conflict between this provision of the Tennessee State Constitution, as construed by them, and the equal protection clause of the Federal Constitution (3) that various well settled rules of construction support the insistence that Article 2, Section 6 of the Tennessee Constitution proscribes the division of a county in forming a senatorial district (4) that this Conrt cannot assume that a scrivener erred in replacing the comma in the Tennessee Constitution of 1796, in the Tennessee Constitutions of 1834 and 1870 (5) that the conditions at the time of the adoption of this constitutional provision in 1870 support their contention that Article 2, Section 6 forbids the division of a County in the formation of senatorial districts (6) that the question of whether or not multiple voting is desirable is not the concern of this Court, but is a legislative question (7) that decisions from other states interpreting constitutional provision similar to our own favor construing the particular sentence in question to prohibit the division of a county in the formation of senatorial districts, regardless of whether or not the district is composed of two or more counties, and (8) that the historic legislative interpretation of this constitutional provision is reflected by the fact that no prior legislature has attempted to divide a county into senatorial districts and that such should be accorded great weight in giving proper effect to the constitutional provision here involved.

Appellants’ first argument necessitates a brief analysis of the history of that sentence. The sentence in question appeared in the Constitution of 1796, as follows:

“When a district shall be composed of two or more counties, they shall be adjoining, and no county shall be divided in forming a district. ’ ’

It'is noted that after.the word “adjoining”, no semicolon appears, but, instead, a comma. There is some indication that the Constitutional Convention of 1834 intended to adopt the sentence as it appeared in the previ-ons Constitution but that, for some reason it was submitted to the people with the semi-colon in place of the comma, and this semi-colon appeared in the new Constitution. The Constitutional Convention of 1870 adopted Article 2, Section 6 of the Constitution of 1834 as a part of the Constitution of 1870. There seems to be no doubt that when this Constitution was submitted to the people for their approval, a semi-colon, and not a comma, followed the word “adjoining”. It is the fundamental law of this State that the supreme authority rests in the people. This is apparent upon reading Article 1, Section 1 of the Constitution of the State of Tennessee, as follows:

“All power inherent in the people — Government under their control. — That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness ; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper. ’ ’

It is their intent in adopting a constitutional provision that must prevail. This is emphatically recognized in the opinion of this Court in the case of Shelby County v. Hale (1956) 200 Tenn. 503, 292 S.W.2d 745, written for the Court by Mr. Justice Burnett, now Chief Justice:

“The Court, in construing the Constitution must give effect to the intent of the people that are adopting it, as found in the instrument itself, and it will be presumed that the language thereof has been employed with sufficient precision to convey such intent; and where such presumption prevails nothing remains except to enforce such intent.” (Emphasis supplied.)

Since this portion of the Constitution was twice adopted by the people in the form in which it now appears; that is, with the semi-colon present, instead of a comma, no valid argument can be made that this Section of the Constitution should be read as if a comma, rather than a semi-colon, were present. This is the position of the court below, appellees and amicus curiae, with which we must, and do, agree.

Appellants’ second argument is that in light of similar provisions in constitutions of other states, Article 2, Section 6 should be interpreted as proscribing the divisions of counties in the formation of Senatorial Districts only when the district is to be made up of more than one county. As the briefs of appellees point out, the other constitutions to which we are referred by appellants specifically spell out that the prohibition against dividing a county when forming Senatorial Districts applies only when the Senatorial District is to be made up of more than one county. This appeared conclusively to us when we examined the various constitutions brought to our attention in briefs and oral arguments.

From our consideration of the briefs of counsel and our own research, we have found little decisional authority applying a constitutional provision similar in language and intent to that of the Tennessee Constitution, other than White v. Anderson (1964) 155 Colo. 291, 394 P.2d 333, and Denney v. State (1896), 144 Ind. 503, 42 N.E. 929, 31 L.R.A. 726. In White v. Anderson, supra, the provision of the Constitution of Colorado under consideration was as follows:

“Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may he. No county shall be divided in the formation of a senatorial or representative district.”

The rationale of that Opinion appears from the following:

“It must be remembered that the constitution itself created the first senatorial and representative districts. The first sentence of Section 47 gave to the legislature the power to alter those districts when public convenience might require, but that power was subject to the interdictions that (1) in altering or forming districts the legislature must not join two counties which were not contiguous and (2) they must not divide a county. The language is clear and plain. A grant of power is given in the first sentence of Section 47 and limitations are placed upon that power by the last two sentences.

It will be noted that the first sentence provides for the alteration of such districts as public convenience may require. The second sentence provides for senatorial or representative districts composed of two or more counties which must be contiguous, and speaks in terms of whole counties. There is contained in the sentence the notion that a senatorial or representative district cannot be less than a county; in effect it means that if you add to a county other territory to make such district, the added territory must be a county or counties.

(3) The most all-inclusive proposition in the. three sentences is contained in the third. It provides that (n)o county shall be divided in the formation of a senatorial or representative district.’ ‘No county’ cannot be construed as meaning that one county, or two counties, or three counties, may be divided; it plainly directs that there is not one county in the state of Colorado that may be divided in the formation of a senatorial or representative district.”

“If the citizens desire to amend the constitution so as to permit such division, it is within their power to do so, but until they so act, neither legislature nor court can do it for them.

(4) There is a presumption that the language and structure of a provision in the constitution were adopted by choice, and that discrimination was exercised in the language and structure used. People v. May, 9 Colo. 80, 10 P. 641. Choice and discrimination in these respects give no solace to the Attorney General.”

A part of the reasoning used in the Indiana case as to a constitutional provision very similar to ours is applicable here, and is as follows:

“The people of a county have common interests and objects, peculiar to themselves, and intimate public relations with each other. Hence, when the constitution was formed, it was deemed of vital importance that the integrity of counties, in the formation of legislative districts, should be thus carefully guarded, ‘to the end that each county having sufficient population should have its own representatives in the legislature, ■chosen by its own electors, and them only, and owing no divided, perhaps conflicting, allegience to any other constituency.’ ”

We are impressed with, approve, and apply the reasoning of the Colorado and Indiana Supreme Courts on the constitutional question. It seems entirely consistent with the general constitutional principles enunciated in the decisions of this Court.

Appellants’ third contention is that while one or more counties in Tennessee have, for almost one hundred years, been entitled to and been represented by more than one Senator, and such Senators have been elected on a countywide basis, that this does not represent a legislative interpretation of this provision of the Constitution as interdicting the division of a county into Sena-toral Districts wholly within that county. While this Court does not rely heavily upon the fact that no prior Legislature has ever sought to divide a county into districts, it does seem to this Court to provide some indication that prior Legislatures have acted on the view that Article 2, Section 6 of the Constitution prohibited such action.

This Court is in full agreement with appellants’ argument four, that the Constitution is to be given a broad and flexible interpretation, where there is ambiguity; so that interpretation is necessary. In support of this argument, the appellants cite many rules of construction that are well known to the bench and bar. We are not in disagreement with any of these rules of construction, nor are we in disagreement with appellants’ propositions of law. What we say is that such rules are not determinative of the case at bar. This, for the reason that these rules of construction do not come into play until and unless ambiguity appears. It is not the function of this Court to create ambiguity and then to invoke rules of interpretation to resolve same. See State ex rel. Coates v. Manson (1900) 105 Tenn. 232, 58 S.W. 319. The following quote from State ex rel. Coates v. Manson, supra, sets out this well known and saintary rnle:

“The literal interpretation of a statute, according to Lieber’s definition, is finding out the true sense by making the statute its own expositor. If the true sense can thus he discovered, there is no resort to construction. * * * It is, beyond question, the duty of courts, in construing statutes, to give effect to the intent of the lawmaking power and seek for that intent in every legitimate way, hut * * * first of all, in the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation. ’ ’

The following from the case of Shelby County v. Hale, supra, is also particularly applicable here:

“As we have said once or twice above this provision clearly means one thing and when it does the judiciary should not give it another meaning. ’ ’

Again, this is the position of the court below, appellees and amicus curiae; and, again, we must, and do, agree.

The sentence of Article 2, Section 6, here in question, just as clearly means two things; and it is essential for this Court to apply the Constitution as we do in this case to give effect to the dual concepts embodied in this sentence. It is the opinion of this Court that Article 2, Section 6 unambiguously forbids the division of counties in forming Senatorial Districts; and therefore T.C.A. Section 3-102 is in conflict with this provision of the Constitution.

Counsel for appellees and amicus curiae Rave called to the Court’s attention certain rules long established in this State relating to statutory construction. So far as the issue here presented is concerned, there is no difference between rules applicable to statutory construction and to constitutional construction. These rules may be summarized as follows — the Legislature has unlimited power to act in its own sphere of legislation except so far as restrained by the Constitution of the United States and of the State, and when an Act of the Legislature is assailed, the specific provision of the Constitution which it is alleged to violate must be pointed out. See Henley v. State (1897) 98 Tenn. 665, 41 S.W. 352, 1104, 39 L.R.A. 126, The Judges’ Cases (1899) 102 Tenn. 509, 53 S.W. 134, 46 L.R.A. 567. There is a presumption in favor of the validity of legislative acts and the courts cannot declare them unconstitutional unless it is clearly shown that they contravene some provision of the Constitution. See Joyner v. Priest (1938) 173 Tenn. 320, 117 S.W.2d 9. However, the Constitution is the superior law and every Act in violation of the Constitution is void and the judiciary is obligated and empowered to so declare. See Peay v. Nolan (1928) 157 Tenn. 222, 7 S.W.2d 815, 60 A.L.R. 408, Henley v. State (1897) 98 Tenn. 665, 41 S.W. 352, 1104, 39 L.R.A. 126, and Marion County, Tenn., River Transportation Co. v. Stokes (1938) 173 Tenn. 347, 117 S.W.2d 740. A construction of the Constitution adopted by the legislative department and long accepted by the people is entitled to great weight and will be accepted as a correct interpretation unless some palpable error is shown. State ex rel. Weldon v. Thomason (1919) 142 Tenn. 527, 221 S.W. 491, State ex rel. Coleman v. Campbell (1875) 3 Tenn.Cas. 355, State ex rel. v. Nashville Baseball Club (1912) 127 Tenn. 292, 154 S.W. 1151, and LaFever v. Ware (1963) 211 Tenn. 393, 365 S.W.2d 44. This Court is in complete agreement with the rules thus contended for.

Appellants’ argument five suggests that the Court consider the desirability and wisdom of this legislation. It is well settled that this Court is without authority to consider the wisdom of Acts of the Legislature. Within its proper sphere of authority this Court can only determine, as it has here, whether or not that body has acted within the authority granted it in the Constitution of this State. See Peay v. Nolan, Henley v. State, and River Transportation Co. v. Stokes, supra.

Appellants’ sixth contention is a suggestion that this Court is without authority to declare this Act unconstitutional under the reasoning in the opinion of this Court in Kidd v. McCanless, supra. In answer to this contention, suffice it to say that, had the Court there held the Act apportioning the Legislature to be unconstitutional, it would have virtually destroyed the legislative branch of the State Government, and ultimately brought about the destruction of the State, itself. Here, no such calamity results, for that which we are declaring’ unconstitutional is only that portion of the Act which divides certain counties into several districts for the election of State Senators.

In conclusion, it is appropriate to note that there is at this time no serious question but that the Federal decisions recognize that if the ratio between population and representation is preserved, the mere fact that multiple representatives to one house are elected from one district does not violate the equal protection clause of the Federal Constitution. See Reynolds v. Sims (1964) 377 H.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Fortson v. Dorsey (1965) 379 U.S. 443, 85 S.Ct. 498, 13 L.Ed.2d 401.

The judgment of the trial court is affirmed, with costs against appellants.

The Court has been immensely aided in this case by the full and discriminating briefs and arguments of counsel on both sides of the issue; and takes this opportunity to express its appreciation.

Burnett, Chief Justice, concurs. "White, Justice, concurs separately. Dyer, Justice, dissents. Chattin, Justice, concurs separately.