Crenshaw v. Blanton

Citation606 S.W.2d 285,101 S.Ct. 310
PartiesCornelia CRENSHAW, Plaintiff-Appellant, v. Honorable Ray BLANTON, Governor of Tennessee, and Gentry Crowell, Defendants-Appellees.
Decision Date28 March 1980
CourtCourt of Appeals of Tennessee

Hubert Patty, Maryville, for plaintiff-appellant.

Everett Falk, Deputy Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, for defendants-appellees.

ABRIDGED OPINION

(With the concurrence of participating judges, the original opinion has been abridged for publication.)

TODD, Judge.

The plaintiff, Cornelia Crenshaw, has appealed from the Chancellor's decree dismissing her suit challenging the validity of Chapter 848, Public Acts of 1976, being the action of the General Assembly providing for a referendum upon the calling of a constitutional convention.

The immediate precipitating cause of the dismissal was plaintiff's failure to properly respond to defendant's demand and the Chancellor's order for discovery. Appellant makes no question of the final action of the Chancellor, but asserts as error the previous action of Chancellor in overruling plaintiff's motion for summary judgment. That is to say, plaintiff insists that the Chancellor should have granted summary judgment in her favor and that, had he done so, there would have been no occasion for the subsequent dismissal.

Plaintiff's original pleading, filed on March 15, 1978, was entitled, "Complaint to Contest Election", and sought an injunction to restrain the Governor from issuing a proclamation of the results of an election held on March 7, 1978, to ratify certain constitutional amendments proposed by the Limited Constitutional Convention of 1977. The grounds of the complaint were:

1. Failure of the Governor to sign the legislation authorizing the call of the convention.

2. Illegal acts of the convention.

3. Illegalities in the election.

On April 17, 1978, plaintiff was permitted to amend her complaint to allege that the Speakers of the House and the Senate failed to sign the bill authorizing the convention in the manner provided by the constitution.

Contrary to the statements in the complaint, above, and of plaintiff's motion, below, Chapter 848, Public Acts of 1976, did not authorize a constitutional convention. It merely authorized a public referendum to see whether the voters favored a convention.

All grounds alleged in the complaint and amendment were denied in the answer.

On May 12, 1978, plaintiff filed the following motion:

In this cause comes the plaintiff and moves the Court for summary judgment in this cause and all of the relief sought in the Complaint upon the following grounds:

The basis for the Limited Constitutional Convention of 1977, and its resulting action therefrom depended upon the validity of the Public Acts of 1976, Chapter 848.

That Act is void inasmuch as it was not signed or approved by the Governor of Tennessee, which is required by the Constitution of Tennessee, nor properly signed by the Speakers of the House and Senate.

"Bill approved by the Governor.-Every Bill which may pass both Houses of the General Assembly shall, before it becomes a law, be presented to the Governor for his signature."

"Every joint resolution or order (except on questions of adjournment and proposals of specific amendments to the Constitution) shall likewise be presented to the Governor for his signature." Tenn.Const. Art., Sec. 18 (Art. 2, Sec. 18)

"No Bill shall become a law, until it shall have been read and passed, ... and shall have been signed by the respective speaker in open session, the fact of such signing to be noted on the Journal; and shall have received the approval of the Governor, or shall have been otherwise passed under the provisions of this constitution." Tenn.Const. Art. 2, Sec. 18

All other Acts calling for Constitutional Conventions have been signed by the Governor.

"Every Bill, joint resolution, or order, except on questions of adjournment and proposals of specific amendments to the Constitution, shall after the same has been passed, enrolled, and signed by the speakers of both Houses of the General Assembly, be presented by the Committee on enrolled Bills of that House wherein such Bill, joint resolution or order originated to the Governor for his signature." T.C.A. 3-203

"Approval of Governor.-If the Governor approved the bill, joint resolution, or order, he shall write upon the same, to the left of and below the signature of the speaker of the Houses, the two fact and date of his approval, as follows: 'Approved , 19 ,' and shall sign the same as follows: ' , Governor.' " T.C.A. 3-203

The attached certificate of the Secretary of State, the affidavits of the speakers of the House and Senate indicate that the governor did not sign nor in any manner approve Chapter 848, of the Public Acts of 1976, or that the speakers properly signed said act.

No affidavit of the Speaker of the House is found in the record. On June 23, 1978, a certificate of the Secretary of State was filed, contents of which will be hereafter discussed in detail. An affidavit of the Speaker of the Senate was filed on July 5, 1978, as follows:

I, John S. Wilder, being duly sworn according to law, depose and say:

1. That he is the duly elected Speaker of the Senate of the Ninetieth General Assembly.

2. That several bills passed the Senate on the last day of the Session one of which being House Bill 290.

3. That it is not known exactly when House Bill 290 was signed, but as a practical matter it would have been impossible for that bill to have been engrossed prior to the adjournment; therefore, it is verily believed that House Bill 290 was signed after the Ninetieth General Assembly adjourned sine die.

The affidavit of the Speaker of the Senate, above, does not assert that the enactment was not signed by him in accordance with the constitutional requirement, but that "it is not known when ... as a practical matter it would have been impossible ... it is verily believed that House Bill 290 was signed after the Ninetieth General Assembly adjourned sine die." This is convincing, but not conclusive evidence of the tardy signing of the bill.

The Legislative Journals record the proper signing of the bill.

In this state of the record, the Chancellor was certainly justified in ruling that there was an issue of fact as to the time when the bill was signed in the Senate, and this Court concurs in his ruling.

The certificate of the Secretary of State, referred to above, is, in some respects, a curious document. The certificate itself, is in the usual form, attesting that

"the annexed is a true copy of Public Chapter 848 of the Public Acts of 1976 (House Bill 290, Senate Bill 388) the original of which is now on file and a matter of record in this office."

The first six pages attached to the certificate purport to be photostatic copies of pages from the published reports of the Public Acts of the General Assembly. However, on the first page in the margin is printed with pen and ink the following:

"This Bill was enacted pursuant to Article II, Section 3 of the Constitution, and does not require the approval of the Governor."

On the sixth page of the attachment, the text of the act ends abruptly at the conclusion of Section 12, without any date of enactment or signatures, as is usual in the preparation, printing and publication of legislative acts. The seventh page of the attachment consists simply of a typed repetition of the quotation above of the marginal note on the first page. The eighth page of the attachment consists of a letter from Robert H. Roberts, "Advocate General", on the letterhead of the Attorney General of Tennessee.

The ninth page consists of a letter from the Chief Engrossing Clerk of the House of Representatives to the Secretary of State instructing that House Bill 290 be filed without referring same to the Governor for action.

The tenth page of the attachment purports to be another letter from the same Robert H. Roberts on the letterhead of the Attorney General of Tennessee advising that a call for a constitutional convention need not be...

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