DISSENTING OPINION. ON PETITION TO REHEAR. A petition to rehear is presented by one of the defendants, H.A. Crox, as a member of the County Election Commission, challenging for the first time, the proposition asserted by complainants below, concurred in by all *Page 215 parties on the hearing in this Court, and adopted in our opinion without dissent, that the provision in our Constitution for a poll tax is mandatory.
Frankly conceding that the petition violates our rules of practice and precedent procedure in now raising this issue, learned counsel earnestly argue that an exception should be made, in view of the public interest involved; that the Court is thereby justified in overlooking "inadvertent" admissions and concessions, made by "oversight," and reopening the case for consideration of this question.
But, if we should disregard our rules and the motion of respondents to dismiss this petition, based thereon and on certain other grounds, and consider the petition, we are not of opinion that there was error in treating this provision as mandatory.
Petitioner's specific insistence is that too much emphasis has been given the use of the word "shall" and that the true import of the word "liable" has been overlooked. Selected definitions of "liable" and of "liability" are quoted and relied on to support an argument that the intention was to declare a contingent liability only, for this tax, to become fixed at the will and election of the Legislature; that merely authority to levy such a tax is conferred, without requiring or commanding such a levy. Query: If this is all that was intended, then, since the Legislature has the inherent power to tax (Vertrees v. StateBoard, 141 Tenn. 645, at page 658, 214 S.W. 737, at page 740), did not the constitutional framers do a wholly useless thing in providing therefor?
While we found it unnecessary to discuss this question, in view of the general concession and agreement above noted, we were not unmindful of the line of argument *Page 216 now advanced. The definitions and text books and the decision discussions of these terms, were examined and the conclusion reached that, in its context, the language as a whole clearly indicated an intention to lay down a mandatory poll tax requirement, with nothing left to the Legislature except the enactment of supplementary details of collection and enforcement. But for the delegation of these details the tax provision for the tax would have been fully self executing.
Petitioner quotes from Webster (and other lexicographers) a definition of "liable," as follows: "Exposed to a certain contingency or casualty, more or less probable." The argument is, therefore, that the use of this word does not signify "a perfected or fixed legal liability, but rather a condition out of which legal liability may arise." But, petitioner has passed by the first, or primary, definition given by Webster and quotes and relies on the secondary meaning. The definition reads: "Liable: 1. Bound or obligated in law or equity; responsible; answerable, etc. 2. Exposed to a certain contingency or casualty," etc.
It is as though the Constitution had read, shall be "bound or obligated in law" to pay a poll tax, etc. According to Bouvier's law dictionary, one who is "liable" is "bound in law and justice to do something which may be enforced by action," citing,McElfresh v. Kirkendall, 36 Iowa 224, 226; Wood v.Currey, 57 Cal. 208, 209; Joslin v. Car Spring Co.,36 N.J.L. 141, 145. This is the definition adopted by this Court in the opinion in Choate v. Quinichett, 59 Tenn. 427, at page 432.
But this question is not now an open one, not only because of the concessions and conclusions in the instant case, but because this Court has heretofore foreclosed *Page 217 the question in former decisions. For example, in his able opinion in the leading and carefully considered case ofVertrees v. State Board of Elections, 141 Tenn., at page 660, 214 S.W., at page 741, Mr. Justice GREEN, now Chief Justice, referring to this constitutional provision, Art. 2, Section 28 says: "That instrument mandatorily declares that all male citizens shall be liable to a poll tax." (Italics ours.)
This construction of this provision is in accord with expressions in our earlier cases and is sustained by the general rule that use of the word "shall" stamps a constitutional provision as mandatory. 11 Am. Jur., 686, 687; 16 C.J.S., Constitutional Law, sec. 61, p. 120.
A strong presumption supports such construction. Discussing the construction to be given constitutional provisions, this Court said in State ex rel. v. Burrow, 119 Tenn. 376, at page 381, 104 S.W. 526, at page 527, 14 Ann. Cas., 809: "The provisions of these solemn instruments are not advisory, or mere suggestions of what would be fit and proper, but commands which must be obeyed. Presumably they are all mandatory. Certainly no provision will be construed otherwise, unless the intention that it shall be unmistakably and conclusively appears upon its face."
A note to the text in C.J.S., above cited, quotes from our case of Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 366, 53 A.L.R., 821, the statement that the "Court is loath to say that any language of the Constitution is merely directory." And in that same case Chief Justice GREEN, elsewhere in his opinion, said that, while "in no case can the court directly compel the Legislature to perform its duty," i.e. carry out a mandate of the Constitution, "in a plain case the court can prevent the *Page 218 Legislature from transgressing its duty under the Constitution by declaring ineffective such a legislative act." This is the principle upon which the majority opinion in the instant case proceeds in declaring the legislative act before it, Chap. 37, Acts of 1943, "ineffective," upon the premise we adopted and now reaffirm, that this constitutional provision, Art. 2, sec. 28, that "all male citizens of this State over the age of twenty-one years," with the exceptions stated, "shall be liable to a poll tax," etc., is clearly mandatory. To transgress is to violate, or offend against. The majority opinion holds that the attempted repeal of statutes passed in compliance with this constitutional mandate, in order to more fully effectuate it, transgresses, offends against this mandate and is, therefore, violative of it and ineffective.
While it is true, as said in our opinion, that there is no direct decision authority for holding ineffective an act of the Legislature in the form of a repeal on the ground that it in effect transgresses and nullifies a constitutional mandate, no such question having heretofore arisen, it is equally true that no authority has been produced to the contrary; and we have found no pronouncement of the power of a Legislature to repeal an act of a former Legislature unaccompanied by the proviso that such power is subject to constitutional limitations and restrictions, either express or implied.
It is not inappropriate just here to refer to a contribution to this subject by that distinguished constitutional lawyer and teacher, Judge THOMAS H. MALONE, who was for years a leader of the Tennessee Bar and who sat repeatedly by appointment on this Court, published shortly before his recent lamented death, in which he reviewed our constitutional poll tax provisions and not only *Page 219 pronounced them plainly "mandatory," but declared that "no Legislature, nor series of Legislatures, can `abolish' the poll tax," that "to do this a constitutional amendment is required." This is an extrajudicial opinion entitled to much weight.
It may be added that, beginning with the leading case ofMarbury v. Madison, 1 Cranch., 137, 154, 2 L.Ed., 60, in which Chief Justice MARSHALL sailed an uncharted sea, and, citing no authority, relied alone on principle and reason, our Courts have not hesitated to strike down legislative action which disregarded, transgressed and defeated, either directly or indirectly, mandates of the organic and fundamental law laid down in the Constitution. This in the performance of their sworn duty, undeterred by clamor or criticism. It was in his opinion in this case that the great Chief Justice first announced the principle of the supremacy of written constitutions over legislative acts, affirming, as expressed by Alexander Hamilton, that "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents," and declaring that there is no escape from the conclusion that "a law repugnant to the Constitution is void."
The petition is dismissed, all concurring in this result.
PREWITT and GAILOR, JJ., concur in the opinion dismissing petition to rehear.
GREEN, C.J., and NEIL, J., concurred in dismissing the petition to rehear. *Page 220