Gates v. Long , 172 Tenn. 471 ( 1938 )

This suit involves the validity of chapters 1, 2, and 3 of the Second Extra Session of the General Assembly of 1937, the immediate attack being on chapter 2. The chancellor overruled the demurrer to the bill and permitted the defendants to appeal.

The journal of the House of Representatives disclosed that the votes of certain of its members, the right of each of whom to a seat in that body was questioned, were cast for these measures. These votes were required to make up a constitutional majority for the bills. The first proposition of complainants accordingly is that none of these bills was legally passed by the House.

In State of Tennessee ex rel. v. Shumate, 172 Tenn. 451,113 S.W.2d 381, just announced, we held that Shumate, one of the members of the House whose eligibility was challenged, remained a de jure member of that body in consequence of the specific decision of the House of Representatives to that effect. We understand from the record and from statements at the bar that a like decision was made by the House as to the status of the other members whose eligibility is challenged and such decision is equally conclusive of their right to participate in the deliberations of that body.

Apart from the foregoing, the only serious constitutional questions are with respect to the validity of section 3 of chapter 2 of the Acts of the Second Extra Session of 1937. To present the entire picture, we make brief reference to chapter 1 and chapter 3 of the same session.

Chapter 1 repeals outright sections 2180-2227 of the Code of Tennessee embodying chapter 118 of the Public Acts of 1917 and amendatory acts. These statutes provided a compulsory system of primary elections for party nominations of candidates for members of the General Assembly, Governor, railroad commissioners, and Representatives and Senators in the United States Congress.

Chapter 3 is an act providing for a system of compulsory legalized primary elections for making party nominations of candidates for members of the state General Assembly and for Representatives in the United States Congress. The act provides agencies for putting said system into operation and effect, makes provision for the expenses of said primary elections and prescribes penalties for violations of the act.

Chapter 2 is entitled "An Act to establish and provide for a system of compulsory legalized primary elections for making nominations of candidates for Governor, United States Senator and Railroad and Public Utilities Commissioner, to create necessary agencies and instrumentalities for putting said system into operation and effect; to provide for the payment of the expenses of said primary elections; and to prescribe penalties for violations of this Act."

Speaking generally, chapter 2, in 28 sections and in some detail, undertakes to set up such a system as is indicated by its caption.

Section 3 of the act is as follows:

"Be it further enacted, That nominations provided by this Act for candidates elected by the electors of the entire State, to-wit, Governor, United States Senator and Railroad and Public Utilities Commissioner, shall be determined on the county unit basis. For the purposes of this Act the county unit basis shall mean that the candidate who receives the highest number of popular votes in any given county shall be considered to have carried such county and shall be entitled to the full county unit vote of such county. Subject to the limitation of the next paragraph, each county shall have as its county unit vote that number of votes, divided by one hundred, which such county in the last general election cast for the party nominee for governor. In such computation a fraction shall be considered one vote.

"The maximum county unit vote of any county, irrespective of total vote cast, shall be one-eighth of one per cent. of the population of such county according to the latest officially proclaimed Federal Census as of the date of said primary election. In such computation a fraction shall be considered one vote.

"If in any county two or more candidates shall tie for the highest number of popular votes received, the county unit vote of such county shall be equally divided between the candidates so tying. The candidates receiving the highest total number of county unit votes in the State in said election shall be declared the party nominee in the manner prescribed by this Act. In computing such total there shall be counted for each candidate the county unit votes of all counties carried by such candidate. If two or more leading candidates receive the same number of county unit votes, that one who received the highest number of popular votes in the State shall be declared the nominee."

The Legislature had no intention of abandoning compulsory legalized primaries. While chapter 1 repealed the former primary law, the provisions of that law were substantially re-enacted in chapter 2 and chapter 3. As to certain offices, the primary law was altered so as to make the county unit system applicable but the unmistakable purpose of the General Assembly in this legislation was to retain the system of the party nominations in compulsory legalized primaries. Such intention was declared in the captions of chapter 2 and chapter 3 both.

With respect to their right to vote in the primary elections of their party, the Supreme Court in the Texas cases has three times said that citizens were entitled to the protection of the Fourteenth Amendment to the Federal Constitution. Nixon v.Herndon, 273 U.S. 536, 47 S.Ct., 446, 71 L.Ed., 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct., 484, 76 L.Ed., 984, 88 A.L.R., 458; Grovey v. Townsend, 295 U.S. 45, 55 S.Ct., 622, 79 L.Ed., 1292, 97 A.L.R., 680. For the same reasons they would be entitled to the protection of section 8 of article 1, and section 8 of article 11, of the Constitution of Tennessee, the equal protection of the law. That is to say the state cannot confer this right upon one class of voters and deprive another class of voters of such right unless the discrimination can be justified on some rational basis.

Neither, we take it, can the state without reason abridge this right in one class of voters and leave the right whole in another class of voters. The one-eighth of 1 per cent. limitation in those counties which it reaches amounts to excluding some of the voters from their party's primary or of debasing the ballots of all the voters.

Is there a valid reason to justify this distinction made in counties where the total vote in a party primary exceeds one-eighth of 1 per cent. of the county's population and in a county where the total vote falls below one-eighth of 1 per cent. of the population?

In our form of government a large vote in a constitutional election cannot be regarded as an evil, and dealt with as such under the police power of the state. On the contrary, universal exercise of the right of suffrage must be regarded as the ideal support of democratic institutions.

So, as said by this court in Ledgerwood v. Pitts,122 Tenn. 570, 125 S.W. 1036, 1039, "The object of this modern invention [a party primary] is primarily for the purpose of permitting and requiring the entire electorate of that party to participate in the nomination of candidates for political office." And again, in the same case, following People v.Democratic General Committee of Kings County, 164 N.Y. 335,58 N.E. 124, 51 L.R.A., 674, this court said that primaries were designed to put into effective operation "the underlying principle of democracy which makes the will of an unfettered majority controlling."

So it is, that restraint upon plenary participation, and the effect of such participation, in a primary election, as well as in a regular election, is destructive of the very basis of either system.

Devaluation of full participation in primary elections cannot be justified as a commonplace exercise of the police power. Such participation in itself does not menace the safety, health, nor morals of the state. Discrimination against the citizens of a particular county cannot be sustained on the bare ground that they took a large part in a primary election.

If such discrimination can be upheld it must rest upon another principle, as the argument of appellants seems to concede. That is, the discrimination must be rested on the principle that an activity, innocent in itself, may be prohibited or regulated, if things frequently done in the pursuit of that activity tend toward a pernicious end, or if the pursuit of that activity frequently offers opportunities for fraud. This is a valid doctrine announced by this court in State v. Mill Co.,123 Tenn. 399, 131 S.W. 867, Ann. Cas., 1912C, 248, elaborated inMotlow v. State, 125 Tenn. 547, 145 S.W. 177, L.R.A., 1916F, 177, and applied in other cases.

There is, however, this limitation upon the rule thus announced, stated in different ways in Motlow v. State,supra, and the decisions therein reviewed. If looking at the substance of the matter, the end sought to be reached, the court can see that the prohibition or regulation of the particular innocent activity has no real or substantial relation to the object of the legislation, such a prohibition or regulation will be stricken down as an infringement of rights secured by the fundamental law.

Now, bearing in mind that the unmistakable and avowed purpose of the Legislature in the enactment of chapter 2 and chapter 3 was to re-establish and continue in force "a system of compulsory legalized primary elections," and bearing in mind that the object of such elections "is primarily for the purpose of permitting and requiring the entire electorate" of the party to participate, we are driven to the conclusion that the one-eighth of 1 per cent. limitation has no reasonable relation to the true objective of the laws. The limitation must therefore be regarded as an arbitrary abridgment of the rights of citizens of the counties affected and accordingly unconstitutional and void.

The one-eighth of 1 per cent. limitation is contained in the second paragraph of section 3 of chapter 2. The first paragraph of that section provides for the determination of nominations upon the county unit basis. The county unit basis is adopted, however, in the first paragraph "subject to the limitation of the next (the second) paragraph." The provision for the county unit basis and the provision for the one-eighth of 1 per cent. limitation are inseparable. We cannot say that the Legislature would have adopted the county unit basis without the one-eighth of 1 per cent. limitation. That would be perversion of the words of the lawmakers. It follows, therefore, that, if the limitation is to be stricken down, the county unit plan goes with it.

It does not result, however, that chapter 2 is unconstitutional as a whole. Section 3 is easily separable from the remainder of the act. That the Legislature designed the act to remain in force, regardless of the validity of section 3, is made obvious by section 27. The latter section embodies the most unequivocal rescue clause contained in any statute we have seen:

"That the provisions of this act are hereby declared to be severable. If any of its sections, provisions, exceptions, sentences, clauses, phrases or parts be held unconstitutional or void, the remainder of this act shall continue in full force and effect, it being the legislative intent now hereby declared, that this act would have been adopted even if such unconstitutional or void matter had not been included therein."

This language must be taken into account, unless observance of section 27 would frustrate the dominant legislative intent.

Section 3 being elided from chapter 2, we may look to section 3 of chapter 3 for the provision as to how nominations are to be determined. Section 3 of the latter act provides "that party nominations made pursuant to this Act shall be by popular vote; and candidates receiving the highest number of votes in said elections shall be declared the party nominees in the manner prescribed by this Act."

We might assume, when a statute provides for electing party nominees in a state-wide primary election, that the candidates receiving the highest number of votes in the state would be declared the nominees, whether there was a specific provision to that effect in the statute or not. This seems a necessary implication.

However, we are relieved of all difficulty on this point, because chapter 2 and chapter 3 were companion acts passed at the same session of the Legislature and on the same subject — compulsory legalized primaries. The rule of construing statutesin pari materia is of peculiar force when such statutes are enacted at the same session of the Legislature. "This being so, and the statutes having been passed at the same session of the Legislature, they should be construed as one act." Hill v.Roberts, 142 Tenn. 215, 217 S.W. 826, 828; Bird v. State,131 Tenn. 518, 175 S.W. 554, Ann. Cas., 1917A, 634.

We can look, therefore, to one act to supply any deficiencies or omissions in the other. This is common practice in statutory construction.

"Where two acts in pari materia are construed together, and one contains provisions omitted from the other, the omitted provisions will be applied in the proceeding under the act not containing such provisions, where not inconsistent with the purposes of the act." 59 C.J., 1050.

The statutes providing for the acquisition of rights-of-way by condemnation for public highways provide no remedies for the owner to obtain compensation for his land taken. These statutes, standing alone, would have been unconstitutional for that reason. The court, however, construed them in connection with the Code sections providing proper remedies for the landowner and the Highway Acts were upheld. State Highway Department v.Mitchell's Heirs, 142 Tenn. 58, 216 S.W. 336.

Another statute providing for the exercise of the right of eminent domain, but affording the owner no remedy, was sustained by the court, in a similar manner in Southern Railroad Co. v.Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (N.S.), 828, Ann. Cas., 1913E, 153.

We have very many statutes providing that a certain thing shall be a misdemeanor but stipulating no penalty to be inflicted for the commission of the misdemeanor. Standing alone such statutory provisions would be meaningless, but they are construed with section 10756 of the Code making general provision for the punishment of misdemeanors.

Illustrations like the foregoing might be multiplied but it seems unnecessary. Section 4 of chapter 3 provides in as many words that such act shall be construed in pari materia with chapter 2.

Other constitutional objections urged to chapter 2 are not substantial.

The act is assailed because the expenses of holding the primary elections thereunder are placed upon the several counties. It is urged that this, in effect, requires the different counties to levy taxes for a purpose other than a county purpose in violation of section 29 of article 2.

Chapter 2 and chapter 3 cover the same ground that was covered by the general primary law repealed. Code, sections 2180-2227. These sections of the Code, as before stated, were taken from chapter 118 of the Pub. Acts of 1917. That statute, like the statutes before us, imposed the expense of holding the primaries upon the counties of the state.

For more than 20 years various state and county officials, charged with the enforcement of the act of 1917, have regarded the imposition of the expense of primary elections upon the counties as a constitutional exercise of delegated authority. So far as we know, the different counties of the state have all the while acquiesced in this view. We are not inclined after such long period to take a different view.

The same officials have charge of the primary elections under chapter 2 and under chapter 3 and the same ballots, poll lists, and tally sheets are used with additional names of candidates for offices, under chapter 3, printed on the same ballots.

While the Governor, the railroad and public utilities commissioners, and members of the General Assembly are state officers, and United States Senators and Representatives in Congress are federal officers, still all of these officials render much service to the counties. Members of the Legislature and Congressmen, particularly, render the greater part of their service to the counties included in their districts.

We think that expense for the holding of a primary election is an expense for a public purpose and that the primary elections provided by chapter 2 and chapter 3 serve a purpose common to both state and county. This being true, a county tax may properly be levied for such a purpose. Hancock v. DavidsonCounty et al., 171 Tenn. 420, 104 S.W.2d 824; DavidsonCounty v. Kirkpatrick, 150 Tenn. 546, 266 S.W. 107; Hill v. Roberts, 142 Tenn. 215, 217 S.W. 826; Ransom v.Rutherford County, 123 Tenn. 1, 130 S.W. 1057, Ann. Cas., 1912B, 1356.

It is also argued that the body of chapter 2 contains matter not within the scope of its caption in violation of section 17 of article 2 of the Constitution. We have examined the act carefully and do not find that it is subject to this objection. A detailed discussion of the matter would not be of profit.

On the whole case we conclude that with the elision of section 3, chapter 2 of the Acts of the Second Extra Sesson of the General Assembly of 1937 is valid, as are chapters 1 and 3 of the acts of the same session.

The decree of the chancellor is reversed, but the bill herein is sustained to the extent indicated. The costs of the cause will be divided between the complainants and the defendants.

COOK, DeHAVEN, and CHAMBLISS, JJ., concur.

DISSENTING OPINION