Kidd v. McCanless
| Decision Date | 05 April 1956 |
| Citation | 292 S.W.2d 40,200 Tenn. 273,4 McCanless 273 |
| Parties | , 200 Tenn. 273 Gates KIDD et al. v. George F. McCANLESS, Attorney General of the State of Tennessee et al. |
| Court | Tennessee Supreme Court |
Knox Bigham, James M. Glasgow and Jack Wilson, Asst. Attys. Gen., for appellants.
Haynes Miller and Mayne Miller, and Kent Herrin, Johnson City, Peter Hampton, Elizabethton, Hobart F. Atkins, Knoxville, Maclin P. Davis, Jr., and Barksdale, Hudgins & Osborn, Nashville, for appellees.
This is an appeal by the Attorney General from a decree overruling certain grounds of appellants' demurrer to the original bill, and declaring that the legislation providing for the apportionment of Senators and Representatives in the General Assembly, the same being Chapter 122 of the Public Acts of 1901, as amended, now codified as Sections 3-101 et seq. of Tennessee Code Annotated, has expired and is no longer effective.
The ultimate question involved is obviously of great public importance, and we have given the same the study to which the question is entitled. Examination of the Chancellor's opinion discloses that he likewise gave the matter serious and extended study and consideration.
In the view that we take of the matter, however, it will not be necessary to state at length and in detail the various pleadings filed by the numerous parties involved in the litigation, nor will it be necessary to discuss the numerous questions of law raised by the demurrers and passed upon by the Chancellor.
The suit was filed on March 8, 1955, by Gates Kidd and four other voters and residents of Washington County, Tennessee, along with six voters and residents of Carter County, and two voters and residents of Davidson County, against the Attorney General of Tennessee, the Secretary of State, the members of the State Board of Elections, the members of the Republican State Primary Election Commission, the members of the Democratic State Primary Election Commission, the members of the Washington County Election Commission, the Carter County Election Commission, and the Davidson County Election Commission. By their bill they prayed, in addition to process and general relief, a declaratory judgment of the court declaring the Apportionment Act of 1901, as amended, to be unconstitutional for the following reasons: (1) no census of qualified voters was made as required by Section 4 of Article II of the Constitution; (2) the Act was unconstitutional and discriminatory when enacted; (3) the Senate Joint Resolution adopted by the Legislature in 1901 was not followed when said Act was enacted by the General Assembly; (4) the Apportionment Act of 1901 became unconstitutional and obsolete in 1911 because a new enumeration and apportionment was not made in that year; and (5) because the three counties where the complainants reside and vote are now entitled to greater representation in the Legislature than is afforded them by said Act. The bill alleges and charges because of this last assigned reason the respective complainants who reside and vote in their respective counties are denied the right to equal franchise and suffrage. The bill further alleges in support of these charges that a minority of approximately 37% of the voting population of the State now elects and controls 20 of the 33 members of the Senate; that a minority of 40% of the voting population of the State now controls 63 of the 99 members of the House of Representatives. The bill alleges also that the defendants will continue to conduct elections for members of the General Assembly according to said Act unless they are restrained by the court.
The bill seeks an injunction restraining the defendants from holding any election under said alleged unconstitutional Act either in 1956 or thereafter. In the alternative the bill prays either (a) that a writ of mandamus issue ordering and compelling the defendants, State Board of Election, Democratic and Republican Primary Election Commission, and the County Election Commissioners of Carter, Washington and Davidson Counties to prepare for a general election at large in 1956, wherein every qualified voter of the State would have an equal right to vote for every Representative and every Senator to serve in the 1957 General Assembly or any subsequent General Assembly, or (b) that by decree this Court mathematically reapportion the State of Tennessee and order the defendant Election Commissioners to prepare for and conduct the 1956 election of Representatives and Senators of the State in accordance with the decree mathematically reapportioning the State.
There was an answer and cross-bill filed by the Republican State Primary Election Commission and others seeking virtually the same relief as prayed for in the original bill.
The cross-bill was dismissed on demurrer of some of the defendants and on motion as to others.
The Attorney General filed a demurrer setting out 14 grounds, some of which the court sustained, and some of which were overruled.
The Chancellor correctly denied the relief prayed for under the alternative prayers (a) and (b), supra. There is no provision of law for election of our General Assembly by an election at large over the State. The citation of Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795, is not in point, because the case dealt with the election of members of the National House of Representatives which is controlled by Article I, Section 2, under which an election at large is permitted in the absence of a redistricting act.
Quite clearly, also, the Governor has no power to reapportion the State for election of our General Assembly.
The Chancellor entertained the bill, however, for the purpose of rendering a declaratory judgment and thereby overruled the tenth and fourteenth grounds of the Attorney General's demurrer which are respectively that the court will not declare a statute unconstitutional if the result will be to disrupt the orderly processes of government, and that the present legislation providing fot the apportionment of the Senators and Representatives in the General Assemby is not unconstitutional for any of the reasons stated in the bill.
In his opinion the Chancellor said:
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Butcher v. Rice
...1 L.Ed.2d 157, where the issues raised were very similar to those presented in the instant case, the Supreme Court of Tennessee (200 Tenn. 273, 292 S.W.2d 40) refused to a suit challenging the constitutional validity of legislation providing for apportionment of election districts for Senat......
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Reynolds v. Sims Vann v. Baggett Connell v. Baggett
...dismissed the appeal 'for the want of a substantial federal question.' 342 U.S. 916, 72 S.Ct. 368, 96 L.Ed. 685. In Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40, the Supreme Court of Tennessee dismiss d an action for a declaratory judgment that the Tennessee Apportionment Act of 1901 was......
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Scholle v. Hare
...the plaintiff's rights under the Fourteenth Amendment were violated, particularly by the legislative failure to reapportion. 47 200 Tenn. 273, 292 S.W.2d 40, motion to dismiss granted and appeal dismissed, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157, per curiam. In this case the plaintiff sou......
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Butcher v. Rice
...1 L.Ed.2d 157, where the issues raised were very similar to those presented in the instant case, the Supreme Court of Tennessee (200 Tenn. 273, 292 S.W.2d 40) refused to entertain a suit challenging the constitutional validity of legislation providing for apportionment of election districts......
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The redistricting cases: original mistakes and current consequences.
...of the Court). (8.) See id. at 262-64 tbl.1 (Clark, J., concurring). (9.) See id. at 253. (10.) See id. (11.) See Kidd v. McCanless, 292 S.W.2d 40 (Tenn. (12.) See Reynolds v. Sims, 377 U.S. 533, 589 & n.2 (1964,) (Harlan, J., dissenting) (noting that, under the Court's standard, "all b......