In disposing of this case the Court has applied some novel tests to chapter 37 of the Acts of 1943. The result reached is supported by no authority and I do not think it is sound in principle. *Page 210
First, the Court entertains an assault by taxpayers upon a statute which relieves them of a burden. This overlooks the well-settled rule that one not adversely affected by a statute cannot question its validity. It does not seem to me that the possibility of increased taxation by some other statute following the repeal of this one is sufficient to take the case out of the rule.
The majority opinion proceeds on the theory that the poll tax provision of Section 28 of Article II of our Constitution is not self-executing but must, in order to be effective, be implemented by a legislative Act fixing the amount of the tax and methods for its collection.
If in the first instance the Legislature had refused to give force to the constitutional mandate and levy the poll tax, it is conceded that this Court could have done nothing to remedy the situation. Just what gives the Court the right to interfere if a subsequent Legislature refuses to heed the mandate is not apparent.
If a constitutional provision requires the support of a statute in order to operate, it cannot function when that support is withdrawn — when the statute is repealed. The Legislature has power to repeal any statute unless restrained by some limitation of the Constitution such as the prohibition against any law impairing the obligation of a contract. No such interdiction is suggested as applicable here.
When the Legislature passes a law which transgresses a constitutional prohibition the Court will not enforce the law because it conflicts with a higher law — the Constitution. When, however, the Legislature refuses to pass a law which the Constitution requires of it, no question of justiciable conflict of laws arises. It is merely a case of legislative dereliction which the Court is powerless to correct. *Page 211
Stripped of its eloquence and ethics, the substance of the majority opinion is that obedience to a mandate of the Constitution by one Legislature introduces into that instrument a warrant to this Court to compel obedience to the mandate by a subsequent Legislature. But the Legislature cannot amend the Constitution nor can it bind future Legislatures.
I had supposed inasmuch as the Constitution only requires the levy of the poll tax upon "male citizens" that the repeal of the Act which levied the tax upon "every inhabitant" was certainly good in so far as it exonerated women. We are justified in believing that the legislative purpose being to repeal the taxin toto, if that was not permissible, was to repeal it in so far as it could within the Constitution.
In perpetuating the poll tax sections of the Code after they were repealed by the Legislature, I fear that the Court was too little mindful of Article II of our Constitution which divides the powers of government into three distinct departments, the legislative, executive and judicial, and adds that:
"No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted."