Gates v. Long

Decision Date12 February 1938
Citation113 S.W.2d 388,172 Tenn. 471
PartiesGATES et al. v. LONG et al.
CourtTennessee Supreme Court

Appeal from Chancery Court, Davidson County; R. B. C. Howell, Sr. Chancellor.

Suit by Charles A. Gates, trustee of Shelby County, and others against Mitchell Long and others, attacking the constitutionality of an act of the Second Extra Session of the General Assembly of 1937. From a decree overruling a demurrer to the bill, defendants appeal.

Decree reversed, and bill sustained in accordance with opinion.

McKINNEY J., dissenting.

Chas. L. Cornelius, Thos. H. Malone, J. H. Ballew, and Wm. J. Wade, all of Nashville, and Edwin F. Hunt and Dudley Porter, Jr., Asst. Attys. Gen., for appellants.

W. O. Hake, of Dickson, W. L. Frierson and J. J. Lynch, both of Chattanooga, R. R.

Kramer, of Knoxville, Roberts & Roberts, K. T. McConnico, and Jay G. Stephenson, all of Nashville, and Chas. M. Bryan, F. H. Gailor, and William Gerber, all of Memphis, for appellees.

GREEN Chief Justice.

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 journals 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, 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 in Motlow v. State, 125 Tenn. 547, 145 S.W. 177, L.R.A.1916F, 177, and...

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6 cases
  • Crew One Productions, Inc. v. State
    • United States
    • Tennessee Court of Appeals
    • February 25, 2004
    ...omitted provisions will be applied to both acts unless that provision is inconsistent with the purposes of the act. Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388, 392 (1938). In Tennessee, it is primarily the legislature that determines public policy. Alcazar v. Hayes, 982 S.W.2d 845, 851 (T......
  • McCanless v. State ex rel. Hamm
    • United States
    • Tennessee Supreme Court
    • June 10, 1944
    ... ... Under this statute the judgment of ... the court becomes final after thirty days if the term should ... continue for so long and during the thirty days the court has ... the power to set aside its judgment and the grant of an ... appeal, although the appeal has been ... be regulated or prohibited if its pursuit frequently offers ... opportunity for fraud or deception. Gates v. Long, ... 172 Tenn. 471, 113 S.W.2d 388; Motlow v. State, 125 ... Tenn. 547, 145 S.W. 177, L.R.A.1916F, 177; State v. W. M ... Ausmus Mill ... ...
  • Kyle v. Marcom
    • United States
    • Tennessee Supreme Court
    • January 8, 1944
    ...it is our duty in giving full effect to the authority of the Legislature, to make the elision and not invalidate the entire Act. Gates v. Long, supra. is our duty, if such elision may be made without affecting the plain purpose of the legislation and if the elision does not render that part......
  • Donathan v. McMinn County
    • United States
    • Tennessee Supreme Court
    • July 17, 1948
    ... ...          The ... severability clause of Chapter 346 is much more liberal than ... the severability clause set out in Gates v. Long, ... 172 Tenn. 471, at page 480, 113 S.W.2d 388, 392. As to the ... clause referred to in that case, this Court said that it was ... 'the ... ...
  • Request a trial to view additional results

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