Corporation of Sevierville v. King

• Decision Date: 16 December 1939
• Citation: 184 S.W.2d 381,182 Tenn. 143
• Parties: CORPORATION OF SEVIERVILLE v. KING. KING v. CORPORATION OF SEVIERVILLE.
• Court: Tennessee Supreme Court

184 S.W.2d 381

182 Tenn. 143

CORPORATION OF SEVIERVILLE v. KING.

KING v. CORPORATION OF SEVIERVILLE.

Supreme Court of Tennessee.

December 16, 1939^[*]

Appeal from Chancery Court, Sevier County; Ben Robertson Chancellor.

Suit by the Corporation of Sevierville against A. J. King to enjoin defendant from obstructing a roadway, consolidated with a suit by A. J. King against the Corporation of Sevierville to enjoin the corporation from opening a disputed way or collecting taxes on property lying inside of the contested boundary. From an adverse decree, A. J. King appeals.

Affirmed.

G. L. Zirkle, Phillip A. Wynn, and O. M Connatser, all of Sevierville, for complainant.

James B. Wright, of Knoxville, and A. M. Paine, of Sevierville, for defendant.

CHAMBLISS Justice.

The corporation filed its petition to enjoin King from obstructing a roadway lying within the corporate lines as extended by Chapter 285, Private Acts of 1937. King presented several defenses; chief among them an attack on the constitutionality of the Act of 1937. Thereafter, King filed his bill directly raising this question and seeking an injunction restraining the corporation from opening the disputed way, or collecting taxes on his property lying inside of the contested boundary. The Chancellor consolidated the two causes and held the provision in Section 2 of the Act purporting to exempt from taxation farming lands within the extended boundary unconstitutional; but he further held that this section could be elided and the Act saved. He so decreed and dismissed King's bill. King has appealed.

The body of the Act in question reads:

'Section 1. Be it enacted by the General Assembly of the State of Tennessee, That the Charter of the Corporation of Sevierville, in Sevier County, Tennessee, the same being Chapter 291 of the Acts of the General Assembly of the State of Tennessee for the year 1901, the caption of which is recited in the caption hereof, be and the same are hereby amended, so that additional territory, or area, shall be included within the territorial limits of said corporation; and that the corporate limits or lines describing the territory included and constituting the corporate lines be and are described as follows: (Description omitted.)

'Sec. 2. Be it further enacted, That all farming lands within the boundary of the Corporation of Sevierville, as herein set out used for farming purposes and not subdivided into city lots are hereby relieved from taxation for any purpose by the Corporation of Sevierville.

'Sec. 3. Be it further enacted, That if for any reason any section, paragraph or clause of this Act should be held to be void, that the same shall in no way affect the valid portions of said Act.

'Sec. 4. Be it further enacted, That all laws and parts of laws in conflict with this Act be and the same are hereby repealed, and that this Act take effect from and after its passage, the public welfare requiring it.' Manifestly, the Chancellor was right in holding Section 2 of this Act unconstitutional and void. Constitution, Article II, Section 28; Jones v. Memphis, 101 Tenn. 188, 47 S.W. 138; Allen v. Board of Mayor & Aldermen of Smithville, 140 Tenn. 418, 419, 205 S.W. 124; Taylor v. Chandler, 56 Tenn. 349, 366, 24 Am.Rep. 308; and others. Was he also right in holding that it could be elided and the Act saved?

While elision has been applied in a number of our cases, as said in Edwards v. Davis, 146 Tenn. 615, 623, 'The upholding of a part of an act is not favored where a portion is unconstitutional. In such cases it will not be sustained unless that which remains is complete in itself, capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected. Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 121 Am.St.Rep. 1002.' Tested by this rule, in that case the Act as a whole was declared invalid.

Reelfoot Lake Levee District v. Dawson, 97 Tenn. 151, 36 S.W. 1041, 34 L.R.A. 725, is another illustration of an Act to which elision could not be applied. The Court in that case recognized the doctrine of elision as applicable in a proper case, saying (97 Tenn. at page 179, 36 S.W. at page 1048): 'It is not every act with unconstitutional provisions that must fail in toto. If, notwithstanding and without such provisions, there be left enough for a complete law, capable of enforcement, and fairly answering the object of its passage, the courts will reject only the void parts, and enforce the residue.' But, the Court proceeded, 'We regret that the act before us is not susceptible of such division and enforcement. Take out the taxing feature, and the act is completely emasculated. A levee district without a levee, or the means of constructing one, is a creature without force or power to exist.'

In Hunter v. Conner, 152 Tenn. 258, 278, 277 S.W. 71, 77, Mr. Justice Cook, speaking for the Court, said: 'It is clearly apparent that the provision in the last paragraph of section 4 [held to be unconstitutional] is detached and not interwoven with other provisions, and that the act can stand with it omitted. Elision of this part of the act does not make a casus omissus.'

The more recent case of Clay v. Buchanan, 162 Tenn. 204, 36 S.W.2d 91, opinion by the same Justice, in which amendments to the charter of the Town of Lebanon were considered, affords an illustration of what may and may not be elided and the Act saved. We quote the following (162 Tenn. at page 210, 36 S.W.2d at page 92):

'As originally enacted, the amendatory charter of 1929 contained so many farreaching unconstitutional provisions that it could not be reasonably inferred that the Legislature would have passed the act with those provisions omitted, and so the doctrine of elision could not have been applied, notwithstanding the legislative declaration found in section 14, of article 12, on page 2051 of the Private Acts of 1929, c. 685. 1 Lewis' Sutherland Statutory Construction, 583.

'But by chapter 1, Extraordinary Session of 1929, passed December 6, the Legislature struck out of the amendatory charter all of the provisions which complainants say rendered the act void, except sections 1 and 2 of article 1. These sections are distinct and readily severable and may be elided if they do in fact contravene constitutional rights as alleged in the bill. State v. Trewhitt, 113 Tenn. [561], 571, 82 S.W. 480.

'With sections 1 and 2 if, unconstitutional, elided, and with the other objectionable provisions stricken by the legislative amendment referred to, chapter 685 of the Private Acts of 1929 is valid and provides a new form of government by a city council composed of the mayor and aldermen.'

The case before us is not of the class referred to by Chief Justice Green in his opinion in Heymann v. Hamilton Nat. Bank, 151 Tenn. 21, 28, 266 S.W. 1043, 1045, when he said: 'Some of us do not believe that elision is permissible to save an act otherwise bad under the two-subject clause of the Constitution.' But it is subject to be tested by the general rule he lays down when he says: 'Certainly elision is not permissible in any case if the result so attained will defeat the legislative intent,' citing Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 121 Am.St.Rep. 1002; Spicer v. King Bros. & Co., 136 Tenn. 408, 189 S.W. 865; Edwards v. Davis, 146 Tenn. 615, 244 S.W. 359, and cases there cited.

As bearing on the test of 'legislative intent,' we think the saving clause in Section 3 must be given consideration as a declaration of such intent. It is true, as held in Arthur v. State, 148 Tenn. 434, 437, 256 S.W. 437 438, that even such an express declaration of legislative intent cannot be followed if the effect will be to 'defeat what appears to be the paramount legislative intent.' In the Arthur case, the...