Taylor v. Armentrout

OPINION ON PETITION TO REHEAR

DROWOTA, Justice.

The contestants of the election have petitioned for a rehearing in this cause, and in response we file this addendum to the foregoing opinion.

I.

One of contestants’ principal points in their petition is that this Court’s holding adds another qualification to the right to vote — the duty of a citizen to keep abreast of his registration and to communicate his desire to vote in one particular precinct as opposed to another precinct. They rely upon several eases decided by the United States Supreme Court. We have thoroughly studied these cases, as well as conducted independent research, and hold that such cases are not analogous to or dispositive of the case at bar. In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1975), Texas statutes carved out a group of people, military personnel stationed in Texas, and provided that so long as they were in the military they could not register to vote. In Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Virginia Constitution required payment of a poll tax as a prerequisite to voting, thus preventing an identifiable group from voting, on the basis of their wealth. In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), Ohio statutes made it practically impossible for a new political party, or an old but small party, or an independent candidate, to get on the ballot in Presidential and Vice-Presidential elections. In Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), otherwise qualified voters were prohibited by New York statutes from voting for school board members, unless they owned or leased property or had children attending the public schools. In Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), Louisiana statutes prohibited people who did not pay property taxes from voting on the issuance of municipal utility revenue bonds. In Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970), Maryland statute prohibited residents of a federal compound within the state from registering to vote. In Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the former Tennessee election code required bona fide residents of the state (and county) to fulfill a durational residency requirement as a prerequisite to registering.

In all of these cases, the state has taken systematic, conclusive action, before the fact, which resulted in a complete deprivation of groups of citizens of the right to *122vote. Such groups were singled out in advance, thus creating classifications which resulted in invidious discrimination. There was nothing which a citizen within the class could do to acquire the right to vote.

The voters who complain in this case are in a drastically different posture from those in the foregoing cases. Neither this Court nor the Tennessee statutes have created any class of otherwise qualified voters who are nevertheless systematically prevented from voting. We have merely construed the law as to (1) what constitutes, in the context of the issues of this case, proper registration to vote and (2) whether or not the conduct of the officials, which was admittedly in good faith and not fraudulent or willful, was proper under all of the circumstances. Indeed, there was no action which denied the vote to any group of people. Only a few individuals were affected and took no action on their own behalf.

All of the above Supreme Court cases recognize the rights of the states reasonably to regulate the franchise. See Oregon v. Mitchell, 400 U.S. 112, 124-131, 91 S.Ct. 260, 264-268, 27 L.Ed.2d 272 (1970), wherein the Court invalidated the portion of the 1970 Voting Rights Act which lowered the voting age from 21 to 18 in state elections.

II.

In addition to the above argument, contestants urge us to decide two questions which the Chancellor specifically refrained from deciding. Because of the length of time which has already passed since the referendum, and in order to avoid additional delays, confusion and uncertainty about the outcome of the referendum, we shall deal with contestants’ other two grounds for arguing that the referendum failed or is void.

A. Contestants claim that the referendum has to pass by a majority of the 14,942 votes cast in the general election rather than a majority of the 13,286 votes cast in the referendum itself. The referendum, held under TCA § 57-4-103, was conducted according to the provisions of § 57-3-106. That section, in turn, requires that such referendum pass “by a majority vote at an election held as hereinafter provided.” It is express within both §§ 57-4^103 and 57-3-106 that the “election” referred to is the local option election, regardless of what other questions may share the ballot. Such interpretation comports with the case law of this, as well as other, jurisdictions.1 This issue is entirely without merit.

B. Contestants also make a constitutional objection to TCA §§ 57-4-103 and 57-3-106, arguing that they “discriminate against small municipalities”2 in violation of Art. 11, § 8 of the Tennessee Constitution. This section, of course, generally prohibits legislation for the benefit of any individuals).

On the other hand, too many cases to cite hold that the Legislature may reasonably create classifications; if such classifications are not arbitrary, they are constitutional.

Contestants do not explain how they would claim to have standing to argue that these statutes discriminate against “small municipalities,” since they are certainly not members of a class discriminated against.

In any case, we hold that the statutes are constitutional. Contestants cite to üs two cases in support of their proposition: Frost v. City of Chattanooga, 488 S.W.2d 370 (Tenn.1972) and Pirtle v. City of Jackson, 560 S.W.2d 400 (Tenn.1977). These cases are not dispositive. For one thing, they *123deal with a different section of the Constitution, Art. 11, § 9, which provides in part that “[t]he General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.” Such section is therefore more restrictive than that relied upon herein. As we recognized in Frost, supra, classifications may be made in many instances, but Art. 11, § 9 specifically requires that laws relating to alteration of municipal boundaries be general. Although we did not go so far as to hold that the Legislature may not alter municipal boundaries by an act valid under the classification doctrine, yet the Court could not conceive of any case in which the same would be valid.

Similarly, in Pirtle, supra, cities of a certain size and those with a metropolitan government were exempted from a statutory requirement that they be able to demonstrate the reasonableness of annexation ordinances. No one was able to suggest to this Court, nor did any occur to us, a rational basis for the exemption. Therefore, it was arbitrary and unreasonable.

We hold that the Legislature could have had a reasonable justification for including only certain counties and municipalities within TCA § 57 — 4-103. Perhaps it was considered that entities within those classifications were more likely to attract travelers, business people, tourists, and others going to the listed types of establishments for recreational and entertainment purposes than entities of smaller populations. It is also suggested that the administrative burdens occasioned by governmental regulations of the liquor industry are more easily borne by entities with larger populations. We note that under § 57-3-101 et seq., entities with small populations may qualify for the privilege of selling alcohol at package stores.

Since we are able to conceive of valid reasons for the classifications set up in § 57 — 4-103, and since contestants have asserted no reason why the classifications should be held unjust, arbitrary and invalid, we hold that such section is constitutional under Art. 11, § 8 of our Constitution.

We therefore state again that we reverse the holding of the Chancellor and we further reject the contestants’ additional arguments concerning the majority of votes cast, and the constitutionality of the referendum statute. The contestants have made known their intention to petition in the United States Supreme Court for a writ of certiorari and as alternative relief seek a stay of judgment and mandate. TRAP 42(c). We therefore stay the mandate for thirty days pending the filing of such a petition, and thereafter until the Supreme Court rules on the petition.

Justices Brock and Cooper adhere to the views expressed in their original dissenting opinion. As to the majority of votes cast issue and the constitutionality of the referendum statute issue, they concur with the majority.

HARBISON, C. J., and FONES, J., concur. BROCK and COOPER, JJ., dissent in part and concur in part.

. Cf. State v. City of Miami Beach, 257 So.2d 25 (Fla.1971); State ex rel. Cashmore v. Anderson, 160 Mont. 175, 500 P.2d 921 (1972); Derryberry v. State Bd. of Election Comm’rs, 150 Tenn. 525, 266 S.W. 102 (1924).

. Section 57-4-103 makes that chapter effective in (a) counties with over 60,000 people, (b) municipalities with over 110,000 people, (c) municipalities with over 20,000 people which are in a county with over 60,000 people, (d) municipalities with over 28,000 people located in 2 or more counties, with 55% or more of their property owned by the federal government. What is authorized under that chapter, in proper cases, is selling alcoholic beverages for consumption on the premises of hotels, restaurants, commercial airlines and passenger trains, premier type tourist resorts, clubs, convention centers, historic performing arts centers, and permanent facilities at urban park centers.