dissenting.
I must respectfully dissent from the Opinion of my colleagues.
Section 4 of the Act is as follows:
“The bonds herein authorized shall not be issued until the issuance thereof has been approved by a majority of the qualified voters, who are residents and/or land owners of the district, in the special school district voting in a referendum called for such purpose by the Election Commissioners of Gibson County. The referendum shall be held at a time agreed upon between the Election Commission and the school board. Such referendum shall be held in the same manner and by the same officials as general elections are required to be held in Gibson County and notice thereof shall be given at least twenty (20) days prior to the date of said election by publication of an appropriate notice not less than one time in a newspaper of general circulation in such special school district. At such referendum election, the ballot shall state briefly the maximum amount of bonds authorized and the purpose of which such bonds are to be issued and shall contain the words ‘for the issuance of bonds’ and ‘against the issuance of bonds’. Opposite each of said phrases shall be a hollow square and the elector shall indicate his vote ‘for the issuance of bonds’ or ‘against the issuance of bonds’ by inserting a mark in the square opposite the appropriate phrase. The Election Commissioners of Gibson County shall canvass the returns of such referendum election and determine and declare in writing the results thereof. Such declaration shall constitute conclusive evidence of the results of the referendum election.”
Section 5 of the Act is as follows:
“This Act shall have no effect unless the proposition to issue the bonds herein authorized shall have been approved by a simple majority of the qualified voters residing in the area and/or landowners embraced within the Bradford Special School District voting in such referendum election. But upon such approval of the proposition, this Act shall be deemed to have been approved by such voters and shall be in full force and effect. The Election Commissioners of Gibson County shall certify the approval or nonapproval of this Act to the Secretary of State and to the Board of Education of the Bradford Special School District. The qualification of voters shall be that as provided by the General Election Laws of the state.”
Section 7 of the Act is as follows:
“Except as otherwise provided herein, this Act shall take effect upon becoming a law, the public welfare requiring it.”
First, with due deference, I do not agree with the majority’s statement regarding the contention of the appellants. I do not understand the appellants’ contention to be *609that Section 4 of the Act is unconstitutional because it makes the issuance of the bonds conditional upon a majority vote in the district. I believe the appellants would agree that making the issuance of the bonds conditional upon obtaining a majority vote would in no way affect the validity of Section 4 or any other Section of the Act. As I understand the complaint, Section 4 is attacked only because of alleged non-compliance with its notice provisions.
Section 5 is the one attacked as an improper delegation of power and I fear properly so. It is not the vote on the issuance of the bonds that creates the constitutional infirmity; but it is that part of Section 5 which clearly, to me at least, creates an unconstitutional delegation of legislative power to the general public. That constitutionally offensive delegation is found in the words, “This Act shall have no effect unless” and . . . “upon such approval of the proposition, this Act shall be deemed to have been approved by such voters and shall be in full force and effect.” These are the words whereby the Legislature unconstitutionally delegated its authority.
The declaration of the effective date of an Act is a non-delegable legislative function. Section 7 of the instant Act, when read with Section 5, is a delegation of that function to the people of Gibson County.
It is my position that in Wright v. Cunningham (1905) 115 Tenn. 445, 91 S.W. 293, the Supreme Court held that just such attempted delegations as set out in the Act under scrutiny are unconstitutional. I do not believe that the holding, in Wright v. Cunningham has been watered down by any subsequent decision of the Supreme Court dealing with the issue here presented.
In Wright v. Cunningham, supra, the Act called the “small stock Act” in essence provided:
This act shall only apply to such counties as may adopt the same by a majority vote by tickets which shall provide for those favoring the small stock law; “for the small stock law” and for those opposing the small stock law; “against the small stock law”.
The Court held such Act to be an unlawful delegation of power because it “leaves to the people the power to say whether, when such a rule has been enacted, it shall ever become operative.”
The Court further held:
“We are of the opinion that, under our constitution, no legislative act can be so framed as that it must derive its efficacy from a popular vote. To be valid it must leave the hands of the legislature complete; not in the sense that it must go into effect at once, it is true, but it must at its birth bear the impress of sovereignty, and speak the sovereign will.”
In closing the Wright Court noted:
“It is said in some of the cases that the vote is the effect of the law, and not the law the effect of the vote; but we think this is a mere play on words, since it is clear that, if all laws were made dependent upon such a contingency, representative constitutional government would be destroyed.”
Following the 1905 Opinion in Wright v. Cunningham, supra, we have the 1912 Opinion in Weil v. Newbern, 126 Tenn. 223, 148 S.W. 680. It is my opinion that the Weil Opinion deals with the problem of whether the issuance of local bonds, not the efficacy of the Act, may be left to a popular vote. The Court held that portion of the Act which permitted a vote on whether bonds would or would not issue was not a delegation of legislative authority. This in no way weakened the Wright v. Cunningham, supra, Opinion as the problem in Wright was whether the efficacy of the Act could be delegated to the people.
The Act in Weil, supra, provided as follows:
“ ‘An act to amend the charter of the town of Newbern and all the acts heretofore passed amendatory thereof, so as to empower the mayor and aldermen of said town to issue coupon bonds in an amount not to exceed fifty thousand dollars in excess of the present bonded indebtedness of the town.
*610‘Section 1. Be it enacted by the general assembly of the State of Tennessee, that the charter of the town of Newbern and all acts amendatory thereof be, and the same are hereby, so amended that the mayor and aldermen of said town shall be vested with power and authority to issue fifty thousand dollars of coupon bonds of said town as follows: To issue twenty-five thousand dollars of said bonds for the purpose of erecting and furnishing school buildings for the benefit of the children of school age in said town, ten thousand dollars of coupon bonds to improve and extend the water and light system of said town, and fifteen thousand dollars for paving or graveling the streets of said town.
‘Sec. 2. Be it further enacted, that all bonds issued under this act shall be of such denomination, bear such rate of interest, not exceeding six per cent per annum, and be due in such time not less than twenty — nor more than thirty— years from date, and be payable at such times and places as the mayor and aider-man may determine.
‘Sec. 3. Be it further enacted, that the said bonds shall not be issued or used unless so ordered by a vote of a majority of the qualified voters of the town of Newbern at any time and as many timés as the mayor and aldermen may deem necessary.
‘Sec. 4. Be it further enacted, that this act take effect from and after it (sic) passage, the public welfare requiring it.
‘Passed March 13, 1907.’ ”
If the Act sub judice provided as did the Weil v. Newbern Act, supra, I would agree that the present attack is unfounded. But, unfortunately, the present Act does not. Section 3 of the Act in Weil v. Newbern, supra, provides “said bonds shall not be issued or used unless so ordered by a vote of a majority . . . .” This is not the same as saying the Act shall not have effect until the bond issue is approved. Section 4 of the Weil v. Newbern Act, supra, provided “that this act take effect from and after it (sic) passage . . . It did not leave it up to a popular vote as to the time when the Act of the Legislature shall become effective.
Next, in 1923 we have Arthur v. State, 148 Tenn. 434, 256 S.W. 437. The Act therein held unconstitutional provided:
“ ‘If a majority of the lawful voters voting at said election vote “for the circuit court” then this act shall take effect; but if a majority of the lawful voters at said election vote “against the circuit court,” then this act shall not take effect and shall not become a law.’ ”
This is exactly, as far as I can perceive, what the present Act provides. The words “and shall not become a law” are surplus-age because if the law never takes effect, it shall never become a law. In addition, the Legislature may not leave it to popular vote to determine what the Legislature must determine, that is, when the Act shall take effect. The Constitution, Article 2, Section 20 gives to the Legislature the prerogative of setting the effective date of an Act and it may not be done by referendum.
Then we have in 1926 Kee v. Parks, 153 Tenn. 306, 283 S.W. 751. The Act there under consideration provided that the bonds shall not issue until approved by vote. The holding in this case is the same as that in Weil v. Newbern, supra. The Act under consideration was not unconstitutional. It left to the people to decide whether the bonds would issue. It did not attempt to permit the people to vote on when an Act of the Legislature shall take effect.
The majority Opinion quotes a portion from the Kee v. Parks, supra, decision. However, it should be understood that the “submission feature” spoken of in the quote is that feature of the Act which submits to a popular vote the question of whether or not the bonds shall issue. It did not submit to a vote the efficacy of the Act itself.
Two cases appeared in 1938. The first is Clark v. State 172 Tenn. 429, 113 S.W.2d 374. The question there was: Could the Legislature authorize the people of a county to vote on whether a general law should apply to that County (possession of intoxicating beverages)? That is not the issue *611now before us. But in the Clark case the Court discussed Wright v. Cunningham, supra, and held that the Act then under consideration did not run counter to the prohibitions announced in Wright v. Cunningham. The Clark Court first noted that the Act before it
. . was a complete law when it passed through the several stages of legislative enactment and, by its terms, took effect from and after its passage. It required nothing further to give it validity.”
The Clark Court then approved Wright v. Cunningham, supra, and noted that there the Act was unconstitutional because:
“The act did not provide any time when it should go into effect, other than the favorable vote for the law by the voters of Rhea county.”
In Clark v. State, supra, the Act was not dependent upon a favorable vote before the Act went into effect. In the present case it is.
The second case to appear in 1938 was Buena Vista Special School Dist. v. Board of Election Com’rs of Carroll County, 173 Tenn. 198, 116 S.W.2d 1008. While not giving the exact verbiage of the Act under question, Justice Green speaking for the Court noted:
“[1] While the Act is framed somewhat differently from others previously invalidated by the court, it is obvious that the Act will derive any efficacy it may have from a favorable popular vote. An unfavorable vote leaves the Act nugatory. The case, therefore, falls within the authority of Wright v. Cunningham, 115 Tenn. 445, 91 S.W. 293, and Arthur v. State, 148 Tenn. 434, 256 S.W. 437, in which cases it was held that no legislative Act can be so framed as that it must derive its efficacy from a popular vote.”
It is my opinion that this is the exact prohibited situation presented by the Act now under consideration by this Court.
Melvin v. Bradford Special School Dist. (1948) 186 Tenn. 694, 212 S.W.2d 668, simply held an Act which provided that bonds were not to be issued until the people voted on. them was constitutional. I have no quarrel with it as it appears to me to be a reiteration of Weil v. Newbern, supra. However, it does not touch the problem as I see it, raised by this appeal.
My analysis of the pertinent cases leads me to believe that Wright v. Cunningham, supra, has not been softened by any later decision, but on the other hand, has been reaffirmed.
The majority would hold that even if my views on the subject were correct, the offensive words could be elided, and rely upon Davidson County v. Elrod (1950) 191 Tenn. 109, 232 S.W.2d 1, as an authority. With this position I do not agree. In my opinion the Act under consideration and the words sought to be elided in Davidson County v. Elrod, supra, are in no way similar or germane to the Act and words we must now consider. In Arthur v. State, supra, the same words now suggested by the majority to be the subject of elision were sought to be elided. The Court held it could not be done and stated:
“The legislature conditioned the life of the act before us upon the result of the election provided for. There can be no mistake about this. It would be a palpable contempt of the legislative will for us to strike out the election provision from the act and give effect to the act regardless of the election.”
Therefore, I believe elision is impermissible.
It may well be that the school bond issue is needed in Gibson County. It very well may be that the Legislature, through oversight, has made a poor choice of words and it did not intend to let the effective date of the Act be determined by popular vote. However, as noted in Wright v. Cunningham, supra:
“All legislative acts, regardless of their contents or of their relative importance, must pass the same ordeal; not one, from a constitutional standpoint, being entitled to more consideration, or subjected to more stringent limitations, or to be treated with more leniency than any other.
*612All must be measured with the same measure.”
For these reasons, I dissent and am constrained to declare the Act unconstitutional.