I am constrained to enter my dissent from the majority opinion in this case and in expressing my views upon the questions involved I do so with great deference to my associates.
The sole question before the Court is as to the constitutionality of Chapter 602 of the Private Acts of 1945, which provides that in all elections held in the Town of McMinnville, general or special, "for election of officers, or for any other municipal purpose, the payment of a poll tax as a prerequisite for the privilege of voting in such elections shall not be required."
I do not think the act is in contravention of Article XI, section 8, of the Constitution, which provides that the legislature shall have no power to suspend any general law for the benefit of any particular individual, etc. The provision here involved has no application to municipal corporations. In State v. Wilson, 80 Tenn. 246, it was expressly held that this section "clearly relates only to *Page 451 the conferring of rights, etc., upon individuals, and the limitations of the second clause are so manifestly directed to the same object, the scope and purpose of the entire sectionhaving no possible bearing upon municipal corporations, . . ." The language I have italicized is important. The case was reaffirmed in Williams v. Nashville, 89 Tenn. 487, 15 S.W. 364, and again in the Redistricting Cases, (Grainger County v.State), 111 Tenn. 234, 271, 80 S.W. 750, also in Furnace Co. v. Tennessee Cent R. Co., 113 Tenn. 697, 722, 87 S.W. 1016, 1022 wherein it was said that, "Since the case of State v.Wilson [supra], it has been the settled law of this state that special legislation as to municipal corporations is not within the inhibition of article 11, section 8, of the Constitution of 1870."
This section of the Constitution could not refer to laws that may be enacted for the purpose of carrying out in detail the objects of government. All municipal charters relate to the exercise of sovereignty by the town or locality that is incorporated. In Com. ex rel. Elkin v. Moir, 199 Pa. 534, 49 A. 351, 352, 53 L.R.A. 837, 85 Am. St. Rep. 801, municipalities are said to be "merely an agency instituted by the sovereign for the purpose of carrying out in detail the objects of government." When, therefore, a town is incorporated by the legislature and clothed with special governmental powers, its charter does not suspend any general law for the benefit of individuals, because the act is in aid of the sovereign and not for the benefit of individuals residing within the locality affected.
The statement to the contrary made by Mr. Justice M.M. NEIL inMalone v. Williams, 118 Tenn. 390, 437, 103 S.W. 798, 121 Am. St. Rep. 1002, is not true as a matter of law and is highly controversial as a matter of fact. *Page 452
It is no concern of the public that the citizens of one town elect their city officials without being required to exhibit a poll tax receipt when voting. What interest have the voters in other towns and cities in how the people of McMinnville elected their city officials and otherwise carry on their local government?
It cannot be doubted that the legislature has the authority to establish municipal governments in Tennessee, and even deny to the people affected in said localities the right to vote on municipal questions either with or without exhibiting a poll tax receipt. The validity of a city's corporate existence is in no way determined by who votes in an election or upon what condition, or whether there is in fact any election at all. In 37 Am. Jur., Municipal Corporations, Sec. 83, it is said: "In other words, how far the people of a municipality may be allowed to participate in the choice of officers who are to administer the affairs of local government is, in most jurisdictions, regardedas a matter exclusively within the discretion and judgment of theLegislature." (Italics mine.)
Under the general law and according to the weight of authority, the legislature has full power and control over municipal officers and the method of their selection or appointment. 37 Am. Jur., Municipal Corporations, Sec. 83.
The question made on this appeal relates solely to the qualification of voters in municipal elections. In Richardson v. Young, 122 Tenn. 471, 125 S.W. 664, and again in Vertrees v. State Board of Elections, 141 Tenn. 645, 214 S.W. 737, 739, it was held that, since municipal officers are not "referred to in the Constitution," they may be "[selected] in such manner as the Legislature shall direct." In these cases the Court rested its opinion *Page 453 upon Article VII, section 4, of the Constitution, which reads 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."
In Vertrees v. State Board, supra, the Court had under consideration the validity of Chapter 139, Pub. Acts of 1919, which conferred upon women the right to vote for electors for President and Vice President of the United States. The act was sustained upon the ground that our Constitution made no provision as to the manner of their election and hence the election of such officers could be "made in such manner as the Legislature shall direct." Now what was said with reference to the election of electors for President and Vice President is applicable to the election of municipal officers as well as elections touching municipal affairs, since there is no provision made in the Constitution for the manner of electing such officers, and it is clearly true that there is no provision in the Constitution relating to legislation as to the administration of municipal affairs. The result is the legislature itself may elect the officers of a municipal corporation, or provide some other manner of their selection within its discretion.
Reference is made in the majority opinion to Code, sections 2027 and 2029. Section 2027 provides, "Every person in this state, who is otherwise a qualified voter under the constitution and laws," etc., is required to pay a poll tax as a condition precedent to voting. Section 2029 provides that "satisfactory evidence to be furnished by the voter to the judges of the election, whether general or special, whether national, state, county, or municipal, that he has paid the poll tax comtemplatedby *Page 454 the Constitution, assessed against him, . . . shall consist of the original poll tax receipt." (Italics mine.)
It thus expressly appears that only those who are qualified voters under the Constitution and laws are required to exhibit a poll tax receipt. There is nothing to be found in either the Constitution or the laws prescribing who shall be qualified to vote in a municipal election; and yet it is erroneously insisted that, in order to vote in a city election, the voter must be a qualified voter under the Constitution, that is, exhibit a poll tax receipt to the judges of the election, even though the legislature has by the act here assailed eliminated it as a condition precedent to vote for city officials. The authorities are abundant, and we have cited many in this opinion, that the legislature may provide for the election of municipal officers by persons who are not qualified voters according to constitutional requirements.
It would be a Herculean task to examine the charters of the various municipalities of the state as to who are qualified to vote in the respective cities, but an examination of only a few discloses the fact that in a number (eleven charters were amended in 1943) it is provided that voters shall not be required to exhibit a poll tax receipt as a condition precedent to voting in the municipal election. In one large city (Memphis) the charter was amended to provide that voters are not required to have a poll tax receipt in order to vote for the president and members of the city board of education. The poll tax law remains in effect as to the election of all other public officials. The City of Chattanooga has amended its charter by eliminating the poll tax as a condition precedent to voting. Under another charter (Knoxville), provision is made for the passage and repeal of city ordinances by voters in an initiative and referendum election, this being *Page 455 in addition to the enactment of ordinances by the city council.
It is impossible to determine the number of city charters that would be invalidated if the act in question should be held unconstitutional. It might also result in invalidating many municipal bond issues, as where they have been approved in an election in which voters participated without being required to exhibit a poll tax receipt.
Under the rule deducible from the majority opinion, unexpected and embarrassing consequences are bound to follow. For instance: Many of our municipalities have charter provisions authorizing non-residents owning property in such municipalities to vote in city elections. Section 1938 of the Code provides: "All voters shall be required to vote in the civil district or ward or precinct in which they reside, except as hereinafter provided; and any person violating these provisions shall be guilty of a misdemeanor, and be fined not less than twenty dollars nor more than fifty dollars." Many municipal elections have been held in which, among other things, bond issues were-authorized. According to the rule announced by the majority, these elections would be void, as we have pointed out; officers chosen in them would be interlopers and bonds issued invalidated. Weil, Roth Co. v.Town of Newbern, 126 Tenn. 223, 148 S.W. 680, L.R.A. 1915 A, 1009, Ann. Cas. 1913E, 25.
Moreover, all persons voting in these elections without a poll tax receipt would be subject to prosecution.
The majority relies upon Clark v. Vaughn, 177 Tenn. 76,146 S.W.2d 351, as controlling the instant case. While my views as herein expressed seem to run counter to the holding of the Court in that case, I do not think *Page 456 it is at all necessary to overrule it. There are many reasons why it should be sustained.
With entire respect to the views of the majority, it seems to me they entirely misconceive the effect of the statute here under consideration. They treat the statute as if it purported to relieve qualified voters in McMinnville of the duty of paying poll tax and of exhibiting satisfactory evidence of such payment to the judges of election. The statute does nothing of the kind. These duties are still exacted of qualified voters who participate in elections provided by the Constitution and general laws of the state. *Page 457