Act 294 of 1942 does not in terms levy the tax upon farmers or growers of sweet *Page 895 potatoes. It merely levies the tax, as a license tax, upon shipments of sweet potatoes, or, as an occupation tax, upon the business of shipping sweet potatoes.
The defendant in this case did not formally claim the exemption allowed by Section 8 of Article X of the Constitution to "those engaged in * * * agricultural * * * pursuits", but pleaded that the statute violated that section of the Constitution, in that it levied the tax upon those engaged in agricultural pursuits. When the court found that the defendant was not engaged in an agricultural pursuit, — and hence was not entitled to the exemption allowed by Section 8 of Article X of the Constitution, — that should have put an end to the plea that the statute violated that section of the Constitution.
It might be argued that the defendant, although not engaged in an agricultural pursuit, had an interest in pleading and hence the right to plead that, if the statute violated Section 8 of Article X of the Constitution, the unconstitutionality of the statute in that respect rendered all of its provisions unconstitutional. Hence it might be argued that for that reason the defendant had an interest in pleading, and hence the right to plead — even though he was not engaged in an agricultural pursuit — that the statute did violate Section 8 of Article X of the Constitution. The obvious answer to that is that, when the court found that the statute might violate Section 8 of Article X of the Constitution without being otherwise unconstitutional, there was no necessity for deciding whether the statute *Page 896 did violate Section 8 of Article X of the Constitution.
If it be argued that the judgment declaring the statute "unconstitutional, null and void in so far as it levies and imposes a tax on farmers or the growers of sweet potatoes" is a judgment in favor of those interveners who are growers of sweet potatoes, the answer is that an intervener who joins a defendant in his defense of a suit has no right to inject into it a defense which is unavailing to the defendant.
Besides, the allegations of the petition of intervention in this case were never put at issue. The petition of intervention was not answered by either the plaintiff or the defendant; nor was a judgment taken by default — nor even a preliminary default entered — on the petition of intervention. No evidence was offered to support the allegation in the petition of intervention that the interveners — or some of them — were "growers" of sweet potatoes. Nor was any evidence offered to sustain any other allegation in the petition of intervention.
The rule which should forbid the court in this case to declare Act 294 of 1942 unconstitutional in so far as it might be construed to levy a tax on farmers or growers of sweet potatoes is that a court should never declare a statute unconstitutional unless it is necessary to do so in order to decide a matter in contest between the litigants. The rule is universally recognized It is stated in Cooley's Constitutional Limitations, 8th Ed., Vol. 1, Ch. 7, Sec. II and III, pp. 338-340, — thus: *Page 897
"II. Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. * * * In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.
"III. Nor will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it. * * * The statute is assumed to be valid, until some one complains whose rights it invades."
The judicial declaration from which I dissent, in this case, might be considered obiter dictum and hence unimportant if it appeared only in the opinion rendered by the court; but being a part of the court's decree is what makes the declaration objectionable. The plaintiff, against whom the decree to that extent is rendered, cannot get rid of it without asking for a rehearing; and yet a petition for a rehearing might seem out of place where — as in this case — the plaintiff has obtained a judgment for all that the plaintiff prayed for. *Page 898