Southern Ry. Co. v. Fowler

• Decision Date: 06 August 1973
• Citation: 497 S.W.2d 891
• Parties: SOUTHERN RAILWAY COMPANY and South Central Bell Telephone Company, Appellants, v. Hammond FOWLER et al., Appellees.
• Court: Tennessee Supreme Court

Page 891

497 S.W.2d 891

SOUTHERN RAILWAY COMPANY and South Central Bell Telephone Company, Appellants, v. Hammond FOWLER et al., Appellees.

Supreme Court of Tennessee.

Aug. 6, 1973.

Clyde W. Key, Knoxville, J. O. Bass, T. G. Pappas, Nashville, for appellants; Raymond Whiteaker, Jr., Nashville, Rexford L. Hawkins, Birmingham, Ala., Bass, Berry & Sims, F. Clay Bailey, Jr., Nashville, Dawson Hall, Chattanooga, Harry W. Laughlin, Memphis, of counsel.

David M. Pack, Atty. Gen., Milton P. Rice, Deputy Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Eugene W. Ward, General Counsel, Public Service Commission, for appellees.

Larry D. Woods, Nashville, for intervenor, Clifford Allen.

William J. Harbison, Nashville, amicus curiae.

OPINION

CHATTIN, Justice.

In 1968, the legislature, pursuant to the provisions of Article 11, Section 3 of the Tennessee Constitution, enacted Chapter 421, as amended by Chapter 597, of the Public Acts of 1968, which directed that a referendum be conducted at the general election to be held on November 5, 1968, to determine whether a limited constitutional convention should be called to alter, reform or abolish certain parts of the Tennessee Constitution in the particulars set out in each of five questions to be presented to the electorate. It was provided that if a majority of the votes cast in the general election were cast in favor of any of the five questions, an election of delegates was to be conducted at the general election to be held on August 6, 1970.

In the election held on November 5, 1968, a majority of the votes cast were against calling a constitutional convention on all of the five questions submitted, except question three, which called for a limited constitutional convention to alter and reform Article 2, Section 28, of the Tennessee Constitution in certain particular respects. Question three was approved by a majority of the votes cast in ninety-one of the State's ninety-five counties.

Pursuant to the terms of the call presented to the voters on November 5, 1968, an election of delegates was conducted on August 6, 1970. On August 2, 1971, a constitutional convention consisting of delegates elected by the voters convened in Nashville for the purpose of altering and reforming Article 2, Section 28, of the Constitution of Tennessee within the scope of the question three call. The convention duly met and conferred over a proposed amendment to Article 2, Section 28, and on September 14, 1971, adopted Resolution 74, which proposed to amend the constitution by deleting the existing Article 2, Section 28, and by substituting a new Section.

At the regular election held on August 3, 1973, the proposed amendment to Article 2, Section 28, of the Tennessee Constitution was submitted to a vote of the qualified voters for approval and ratification. A majority of those voting in the election voted in favor of the proposed amendment. By its terms, the amendment as ratified by the people became a part of the Tennessee Constitution on January 1, 1973.

On August 29, 1972, the complainant, Southern Railway Company, filed suit in the Chancery Court for Davidson County under provisions of the Declaratory Judgment Act seeking a declaration that in adopting Resolution 74 for submission to the people the limited constitutional convention exceeded its authority as set out in the convention call; and, therefore, the proposed amendment to Article 2, Section 28, of the Constitution is unconstitutional because Article 11, Section 3, of the Constitution prohibits any convention action 'unless within the limitations of the call.' At a later date, South Central Bell Telephone Company filed suit seeking the same relief and the suits were consolidated.

By way of answer, appellees and intervenor, Clifford Allen, asserted that all of the provisions of the proposed amendment were within the limitations of the call of the convention and therefore constitutional. The suit was heard upon a motion for a judgment on the pleadings pursuant to Rule 12.03 of the Tennessee Rules of Civil Procedure. The Chancellor, in a lengthy and well reasoned opinion, declared that the constitutional amendment was constitutionally adopted and, therefore, is valid. We affirm the decree of the Chancellor.

The appellants' argument points to several particular provisions in the constitutional amendment which appellants contend were unconstitutionally adopted because the questioned provisions exceed the 'limits of the constitutional call.'

The first contention of appellants is that the convention exceeded its authority as defined in the call by sub-classifying tangible personal property and in granting the legislature authority to sub-classify intangible personal property.

The relevant section of the call provides as follows:

'Question 3. Shall a convention be called to alter and reform Article 2, Section 28 of the constitution so as to require the classification of property into three classes for purposes of taxation to-wit:

'Real Property.

Intangible Personal Property.

Tangible Personal Property.

'Provided, that said convention shall classify real property only into four (4) sub-classifications, to-wit:

'(a) Public Utility Property, to be assessed at not less than forty-five per cent or more than fifty-five per cent of its value, the exact percentage to be fixed by the convention;

'(b) Industrial and commercial property, to be assessed at not less than thirty-five per cent or more than forty-five per cent of its value, the exact percentage to be fixed by the convention;

'(c) Residential property, to be assessed at not less than twenty-five per cent or more than thirty-five per cent of its value, the exact percentage to be fixed by the convention; and

'(d) Farm property, to be assessed at not less than twenty per cent or more than twenty-five per cent of its value, the exact percentage to be fixed by the convention.'

Appellants argue that the phrase 'provided, that said convention shall classify real property only into four (4) sub-classifications, to-wit:', clearly shows it was the intent of the legislature to authorize the convention to only sub-classify real property and thereby prohibit the sub-classification of tangible and intangible property by the convention.

In order to reach this conclusion, it is obvious appellants have lifted the phrase from context. It is clear the call limited the sub-classification of real property to four classes which are thereafter specifically named.

It is, also, clear the convention was authorized to require the classification of tangible and intangible personal property and to fix 'the ratio of assessment to value of property in each class or sub-class * * *.'

Furthermore, the Chancellor disagreed with the argument of appellants; and, we think, correctly concluded as follows:

'This detailed specificity of the terms immediately following the phrase 'real property only' indicates to this court that the legislature wanted to tie only the class of real property to this particular and detailed system of sub-classification.'

As pointed out by Counsel for defendants in their brief, there is no ambiguity in the words 'said convention shall classify real property only into four (4) sub-classifications, to-wit:'

However, appellants argue the legislature history of the Act providing for the call supports their position. They refer specifically to a speech of Senator Snodgrass, a sponsor of the amendment to the call, in which he said:

'Mr. Speaker, Lady Anderson and Members of the Senate, I cannot add a great deal to what the clerk has already read except to say * * * that this amendment just preempts the amehdment Senator Ewell is sponsoring and writes in and insists on writing in more definitive ways the safeguards which you've read or heard about in the last week or so. I want to say in all fairness that what we, or what 'I'm attempting to do in this amendment could certainly be done under the constitutional convention bill passed by the very fine 'Study Committee,' about which we are very well acquainted; the only difference is that this actually guarantees that it will be done. It writes the percentages into the subclassification of real property, it provides that there won't be any sub-classification of tangible personal property or intangible personal property and sets up a safeguard as to that effect * * *.'

If this suit involved simply the interpretation of an ambiguous statute, the consideration of controlling importance to this Court would be legislative intent. Senator Snodgrass' remarks would be one of many aids available to enable this Court to ascertain the legislative intent.

However, legislative intent is not the only consideration of importance when a constitutional amendment is involved. An individual legislator's remarks concerning a constitutional amendment are 'of less materiality than in that of an ordinary bill or resolution.' Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1899).

This is true because there is an important distinction between a legislative enactment which is an end product in and of itself and a legislative enactment which is but an initial step in a constitutional amendatory process. As stated above, in the former situation, legislative intent is a controlling factor in determining the meaning and effect of statutes, and principles of statutory construction have evolved as aids in determining legislative intent...