Vertrees v. State Bd. of Elections

• Decision Date: 26 July 1919
• Citation: 214 S.W. 737,141 Tenn. 645
• Parties: VERTREES ET AL. v. STATE BOARD OF ELECTIONS ET AL.
• Court: Tennessee Supreme Court

214 S.W. 737

141 Tenn. 645

VERTREES ET AL. v. STATE BOARD OF ELECTIONS ET AL.

Supreme Court of Tennessee.

July 26, 1919

Appeal from Chancery Court, Davidson County; James B. Newman Chancellor.

Bill by John J. Vertrees and others against the State Board of Elections and others. Decree for complainants, and defendants appeal. Reversed and bill dismissed.

Bachman J., dissenting.

Frank M. Thompson, Atty. Gen., Keeble & Seay, and E. N. Haston, all of Nashville, and G. T. Fitzhugh, of Memphis, for appellants.

John J Vertrees, John Allison, E. J. Smith, W. E. Norvell, Jr., and W. O. Vertrees, all of Nashville, for appellees.

GREEN J.

This bill was filed by Mr. Vertrees and other citizens and taxpayers of Davidson county against the members of the state board of elections, the comptroller of the state, and election commissioners of Davidson county. It alleged that the officers named as defendants were taking steps to effectuate chapter 139 of the Acts of 1919, known as the woman's suffrage law. It was averred that the said act was unconstitutional for various reasons stated, and it was sought to enjoin the several officials named from proceeding in the premises.

A demurrer was interposed by the defendants, which challenged the sufficiency of all the constitutional objections urged against the statute. The demurrer was overruled by the chancellor, and an injunction granted as prayed in the bill. From this decree the chancellor permitted an appeal to this court.

No question is made upon the right of the complainants to maintain this suit, if, indeed, any such question could be made.

Chapter 139 of the Acts of 1919 is set out in the margin. ^[1]

Generally speaking, it authorizes women of lawful age to vote in elections for municipal officers and to vote for electors for President and Vice President, and to vote upon all questions or propositions submitted exclusively to a vote of the electors of any municipality. Other provisions of the act will be noted in the course of the opinion.

It is said that the Legislature was without power to pass such an act under the Constitution of Tennessee, and it is further said that if such power be conceded to the Legislature, it was not exercised in this instance in a constitutional manner.

We think the question of the power of the Legislature to pass such a law is absolutely an open question in this state, and is not touched by any previous decision of this court.

There are certain expressions in the opinion of this court in Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036, upon which counsel for both sides have seized, as justifying their respective positions. The question for decision in Ledgerwood v. Pitts was the validity of a compulsory primary law. There was no occasion in that case for this court to make any declarations as to the bearing of the Constitution upon elections to any office, state or municipal. It was only necessary for the court to decide whether any provisions of the Constitution related to the selection of party nominees for office. Other things were dicta, and furnish no authority for the arguments of counsel in this case.

What are called the suffrage clauses of the Constitution of Tennessee are as follows:

Article 1, § 5: "That elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon a conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by a court of competent jurisdiction."

Art. 4, § 1: "Every male person of the age of twenty-one years, being a citizen of the United States, and a resident of this state for twelve months, and of the county wherein he may offer his vote for six months, next preceding the day of election, shall be entitled to vote for members of the General Assembly and other civil officers for the county or district in which he resides; and there shall be no qualification attached to the right of suffrage, except that each voter shall give to the judges of elections where he offers to vote, satisfactory evidence that he has paid the poll tax assessed against him for such preceding period as the Legislature shall prescribe, and at such time as may be prescribed by law; without which his vote cannot be received. And all male citizens of the state shall be subject to the payment of poll taxes and to the performance of military duty, within such ages as may be prescribed by law. The General Assembly shall have power to enact laws requiring voters to vote in the election precincts in which they may reside, and laws to secure the freedom of elections and the purity of the ballot box."

In addition to the sections above quoted, it is provided in article 3, § 2, that, "the Governor shall be chosen by the electors of the members of the General Assembly, at the time and places where they shall respectively vote for the members thereof." In article 6, § 3, it is provided that "the Judges of the Supreme Court shall be elected by the qualified voters of the state." In article 6, § 4, it is provided that "the judges of the circuit and chancery courts, and of other inferior courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned." In article 6, § 13, it is provided that clerks of inferior courts shall be elected by the "qualified voters" of their county or district. In article 6,§ 15, it is provided that justices of the peace or constables shall be elected by the "qualified voters" of their district. In article 7, § 1, it is provided that the sheriff, trustees, and register shall be elected in each county by the "qualified voters" thereof.

From the foregoing it is seen that the Constitution provides for the election of members of the General Assembly and civil officers of the county or district by "male persons." Likewise, the Governor must be elected by voters with the same qualification, that is to say, "male persons." It is provided with respect to the other elective officers mentioned in the Constitution that they shall be chosen by "qualified voters."

It is conceded by the defendants herein that the constitutional provision with reference to the qualifications of persons who may vote for members of the General Assembly and civil officers of the county or district is exclusive; that the Legislature may not add to these qualifications nor subtract therefrom; and that accordingly the Legislature cannot authorize any but male persons to vote in elections for these officers.

It is furthermore conceded that the phrase "qualified voters," as used in the Constitution, with respect to the election of officers therein named, means male voters. In other words, it is conceded that section 1, art. 4, of the Constitution, defines what "qualified voters" are, and that none but such voters can participate in the election of any officer who is required by the Constitution to be selected by "qualified voters." This, then, excludes female voters as to the election of all such officers.

The argument for the defendants is that inasmuch as no provision is made in the Constitution of Tennessee with reference to the selection of municipal officers, and with reference to the selection of electors for President and Vice President, it is competent for the Legislature to provide for the selection of such officers in any manner and by any means that the Legislature deems proper.

Our constitutional provisions are somewhat different from those of any other state. Most of the state Constitutions under which questions like the one before us have arisen provided that every male citizen should be entitled to vote in all elections, or in any election. Under such constitutional provisions as these, the majority of the courts have held that the elections referred to were elections for officers mentioned in the Constitution, and that as to elections for officers not named in the Constitution, it was permissible for the Legislature itself to prescribe the qualifications of voters, and therefore, when the particular question arose, permissible for the Legislature to authorize women to vote in elections for such officers. Scown v. Czarnecki, 264 Ill. 305, 106 N.E. 276, L. R. A. 1915B, 247, Ann. Cas. 1915A, 772; Hanna v. Young, 84 Md. 179, 35 A. 674, 34 L. R. A. 55, 57 Am. St. Rep. 396; State v. Hanson, 80 Neb. 724, 115 N.W. 294; State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L. R. A. 124; Spitzer v. Fulton, 172 N.Y. 285, 64 N.E. 957, 92 Am. St. Rep. 736, and other cases collected in the note Ann. Cas. 1915A, 802.

We are presented with no such problem of construction, however, under the Constitution of Tennessee. Our Constitution defines "qualified voters," and provides that certain officers shall be elected by such "qualified voters." We might with little difficulty, therefore, say that inasmuch as the Constitution has enumerated certain officers to be chosen by "qualified voters," such limitation upon the manner of the selection of officers not enumerated was impliedly excluded. But, as stated above, no problem of construction confronts us in the matter, and this is so by reason of the provisions of article 7, § 4, of our Constitution, as follows:

"The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct."

This section of the Constitution was considered by this court in Richardson v. Young, 122 Tenn. 471, 125 S.W. 664. The same provision was contained in the Constitution of 1834. Acting under such constitutional authority, it was shown in Richardson v. Young that for many years the Legislature had without question provided for the...