Cannon v. Mathes

• Decision Date: 25 May 1872
• Citation: 55 Tenn. 504
• Parties: JAS. M. CANNON v. J. HARVEY MATHES.
• Court: Tennessee Supreme Court

55 Tenn. 504

JAS. M. CANNON

v.J. HARVEY MATHES.

Supreme Court of Tennessee.

May 25, 1872.

FROM SHELBY.

Appeal by Mathes, privilege tax collector, from a judgment of the Second Circuit Court of Shelby county, January Term, 1872. IRVING HALSEY, J., quashing a distress warrant for privilege tax.

ATTORNEY-GENERAL HEISKELL, for the State, argued that the provision in our Constitution is different from that of any other State.

The general phraseology places the substance and the title on the same footing, no law shall embrace more than one subject (or object) which shall be expressed in the title. In construing such a clause, it is impossible to distinguish the two objects which the Convention mean to reach, for they have expressed the same idea in the same language as to both. Both must therefore, though naturally of very different degrees of importance, be directory--or both imperative.

But the Constitution of Tennessee distinguishes these two things, and I maintain designedly. “No bill shall become a law which embraces more than one subject; that subject to be embraced in the title.” Why depart from the phraseology of the Constitutions of fourteen States where similar provisions prevail, unless a different thing was intended? No doubt an adoption of the phraseology would carry with it a strong argument that the established meaning had been adopted with the phraseology. But the converse of the proposition carries an argument also. The failure to use an established formula, argues that the departure is not without a reason. What is the reason for a departure?

The title of an act was the most inconsequential part of it by the usage of legislatures and courts--the body of it was everything. Now by a sudden bouleversement, to make the title control the body of an act, is a thing not to be looked for in a wise body of men. To prohibit, under the penalty of invalidity, the log-rolling statutes of former days, the riders by which the constitutional law of legislation was evaded, is to strike at a great evil with adequate weapon, but to apply the same remedy to the title, is “to waft a feather or to drown a fly.” Therefore, I maintain, that when the Conventions of other States put these things on the same footing, they did that which it was proper to avoid. If she has avoided it, let us not lose the fruits for want of a proper construction.

Look at the instances. In other States they have held acts void where the title, undertaking to enumerate divers particulars omitted some, when it was admitted that the substance of the acts was not objectionable--where a proper act is passed, to have parts of the law held void because not enumerated in the bill, is a monstrous result. We must look to experience in judging of what is practicable in legislation. Every man capable of generalizing at all, must have observed the tendency of the human mind to particularize. The Old Constitution provided for vacancies by death, resignation or removal--why not vacancies without more. Now, nine cases out of ten in which this question will arise, will be found to depend upon this principle. Legislatures will attempt to particularize, and fail: See the instance of The State v. Powers, 14 Ind., 195, where the act was homogeneous, but the title defective in particularizing: See also McWhirter v. Price, 11 Ind., 199;Ryman v. Willey, 16 Mich., 269. In the construction of the substance of acts there is no difficulty, the courts never fail to sustain what is substantially right. In the title-- heret in cortice. See the instances quoted: Cooley 145, sec. 3.

If the substance is wrong, the whole act is void. If the title is wrong, only so much as is not in the title. By what reason? If the clause is so imperative, and a failure avoids, why does one avoid in toto--the other pro tanto? Each is alike a disobedience of the law. Why does not each make it invalid alike? It is read as if it declared that every act shall be void which embraces more than one subject, and in which that subject is not stated in the title. Yet it is not so held as to the matter stated in the title. But if both matters appear in the title, then the whole act is void. Truly, the whole virtue is gone out of the thing and made to reside in the name. The deficiency in the title is made to cure the fatal defect in the substance, for if two things incongruous are put together, and the title describes one, that one is good, and the other is lopped off; whereas, if both are in the title, both are void. Can not this Constitution have attributed to it a grain of wisdom, in advance beyond those whose construction has resulted in such disastrous absurdities?

“No bill shall become a law which embraces more than one subject; that subject to be expressed in the title.” The first part of this clause is imperative as language can make it. No bill shall become a law--not no bill shall be passed, but being passed and approved, it shall not be law. This is as strongly expressed as is possible. But the conditional part ceases where this member of the sentence ends; “which embraces more than one subject,” but the next member is in a different form entirely, to construe this imperative it should read, “or the subject of which is not expressed in the title,” but how different the actual mode of expression; “that subject to be expressed in the title.” Are we to suppose that this striking change in the mode of expression is accidental. It was drawn by one of the most careful and accurate scholars, one of the most astute and far-seeing of men. Now did it mean the wise thing which it seems to express by plain language, or did it simply by accident seem to express what was not in the mind of anyone. If it be accidental then it is providential, and we must construe the words as we find them. But the law of other States having been found to work badly in making these two things, so unlike in substance-- equal in grade, we are bound to presume that the change was adopted with design.

The whole act is upon one subject: revenue, its receipt and disbursement; which might well be made the subject of one bill or act; but with a circumscribed title, “to fix the State tax on property.”

By reference to Cooley, p. 146, it will be seen that the liberal scope of construction on this point, allows a wide range in the subject, sufficiently so to cover the whole subject of revenue, its collection and disbursement.

JARNAGIN & FRAZER, for plaintiff in error.

The form of the law and the assessment, make it the duty of the collector to issue licenses to retail liquor dealers in Memphis, only upon payment of $150 to the State, and the same to the county.

The amount to be paid for the privilege, is affected by the number of inhabitants in the town or city. Only $50 are required in the country generally, and in towns of less than 5,000 inhabitants. This inequality is charged to be unconstitutional. This question has been settled in Tennessee: Schlier v. State, 3 Heis., 284.

The second ground of complaint is based on the caption of the act, under which this tax is assessed.

Section 17, art. 2, of our Constitution, is as follows: “No bill shall become a law which embraces more than one subject; that subject to be expressed in the title.”

This is “An act to fix the State tax on property.”

The first section fixes the tax at 40 cents on each $100 worth of property.

Section 2 repeals a former article which had fixed it at 20 cents.

Section 3 repeals a former article defining the duties of the Treasurer and Comptroller, and provides a new rule for disbursing the taxes realized under this law.

The fourth section increases the tax on privileges, by adding 50 per cent. to the amount of the former tax.

The objection is, that this privilege tax is not indicated in the caption; that it is incongruous, and that it is unconstitutional.

We reply:

1. As a taxable thing, a privilege is the creature of statutory law. It is recognized in the Constitution as a possibility: Art. 2, sec. 28.

But a statute must define, so as to give it practical existence.

When a privilege has been granted to the citizen, it is a property right, and may be the subject of taxation.

Any franchise, even the right of voting, may be regarded as property: Staten v. State, -- Col.

Taxing a privilege is taxing the property used or sold under the privilege granted. It was so declared in Brown v. The State of Maryland, 12 Wheaton, 419, where the distinction between property and privilege was denied, as a matter of law under our system of taxation.

The United States collected an import duty. The State assessed a tax for the privilege of selling the same goods. It was adjudged that this was a second tax, and therefore illegal.

2. But there is no incongruity. The caption indicates a bill upon the subject of taxation. It is a revenue bill. The obnoxious section fixes the State tax on privileges.

The word property, as already argued, may be used in its most general sense; and courts will not fail to effectuate the interest of the Legislature, unless required by plain duty. They will not unnecessarily embarrass legislation: Cooley on Con. Lim., 146, and note 8.

As between the State and the citizen in the matters of taxation, there can be no complication of rights--there are no third parties or conflicting interests. The right to tax is absolute, and as to privileges, without restriction. The right and power to make and enforce this law, can not be seriously questioned.

There is therefore, no need for strict construction of mere words or forms, in this case.

All of these sections tend to the same purpose--they fix taxation--raise revenue.

No reason can be given for requiring two separate acts; and the courts will not clog the State in matters of revenue, by supplying doubts as to the technical propriety of a certain form of words: State v. Miller, 45 Mo., 495.

3. The courts are relieved in some extent, in the matter of vigilance, by that provision of our Constitution...