Dissenting Opinion
MR. Justice Dyer.I most respectfully dissent from the majority opinion filed in this case. As I understand Appellants’ position they contend the last sentence in Article II, Section 6 can be plausibly construed in either of two ways. Appellants’ brief states this in the following manner:
FIRST:
The quoted sentence can be construed, as we construe it, to refer only to districts composed of two or more counties. In such districts, the counties shall be adjoining and shall not be portions of a county. In other words, recognizing that senatorial districts are frequently composed of two or more counties, this provision was inserted to assure that a county shall not be dismembered, with a portion of it being placed with some counties to constitute a district and other portions thereof being placed with other counties to constitute another district. The provision requires that county lines be respected so that portions of a county will not be joined with other counties or portions of other counties to form one district, while other portions of the same county form another district.
SECOND:
The sentence quoted from the Constitution can also be construed to require that in counties having two or *583more senators they shall be chosen by the entire connty electorate, with connty-wide voting for multiple candidates and with no identifiable constituencies in the county.
(Appellants’ Brief)
In support of their position Appellants, among others, cite the following cases:
It is a fundamental rule that an act of the legislature will be upheld if it can be justified upon any rational ground. McConnell v. City of Lebanon, 203 Tenn. 498, 314 S.W.2d 12 (1957)
There is a presumption in favor of the validity of Acts passed by the legislature and the courts cannot strike them down unless it is clearly shown they contravene some provision of the Constitution. Joyner v. Priest, 173 Tenn. 320, 117 S.W.2d 9 (1938).
In passing upon the validity of legislative enactments, as we are here called upon to do, courts do not assume that the Legislature intentionally passed an invalid act, because legislators, as well as judges, are bound by the law, and it is understood that they weighed the constitutionality of the act while it was before them and held it valid. Wherefore it is the rule that every reasonable doubt must be resolved in favor of the act, and the courts cannot adjudge it invalid unless the violation of the constitution is in their judgment clear, complete, and unmistakable.
Bank of Commerce v. Senter, 149 Tenn. 569, 576, 260 S.W. 144 (1923); Koen v. State, 162 Tenn. 573, 39 S.W.2d 283 (1931)
*584This sentence was a part of our original Constitution of 1796. In the Constitution of 1796 before the word “and” preceding the last clause of this sentence there was a comma. Upon adoption of the Constitution of 1834 this comma was replaced by a semi-colon and such remains today. The reason, if any, for this change is not explained. From an examination of the Journal of the Constitutional Convention of 1834 it could be said such was an error on the part of the scrivener, or a judgment on the part of the scrivener, that a semi-colon would be more proper punctuation than a comma. The Journal of 1834 does not show this change in punctuation was made in order to change the original meaning of this sentence as adopted in 1796. Even so we do not think whether there be a comma or a semi-colon at this point is material in the construction of this sentence. The court should not strike down an Act of the Legislature on the grammatical difference between a comma and a semi-colon. This is one sentence and we will have to treat it as such.
Inasmuch as this sentence has remained, virtually intact, in our Constitution from the beginning and has never been judicially construed, then we should consider the state of things existing when this provision originated in 1796. Peay v. Nolan, 157 Tenn. 222, 7 S.W.2d 815, 60 A.L.R. 408 (1938). In 1796 no county was entitled to more than one senator and seventy five years would pass before such would be the case. There is no ambiguity in this sentence viewed in the light of conditions existing in 1796. This sentence contains two prohibitions. First, against forming a district with other than adjoining-counties. Second, against forming a district by using only part of a county. In 1796 both of these prohibitions would necessarily relate to the first part of the sentence which reads: “When a district shall be composed of *585two or more counties.” The evils this was intended to prevent are obvious and no doubt, the above construction of this sentence is all the framers of the language had in mind.
The United States District Court in Nashville, sitting as a three-judge statutory court, has been dealing with this matter of apportionment for some over six years. In the majority opinion of Baker v. Carr, 247 F.Supp. 629 (1965) Judge Miller gives a history of the litigation. In the Baker case sub-districting was attacked as in conflict with the Tennessee Constitution. The Federal Court declined to rule on this question but did make the following observation.
“As mentioned above, the plaintiffs primarily attack sub-districting as a violation of the State Constitution. The alleged Constitutional prohibition occurs in Article II, Section 6, which refers only to the apportionment of the Senate, and which reads, in part, as follows:
When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district.
There are several possible interpretations of this sentence. One interpretation, urg’ed by the intervening defendant, is based on the fact that the original Constitution contained a comma rather than a semi-colon before the last clause, and that the transition from a comma to a semi-colon may be nothing more than a scrivener’s mistake. This interpretation would uphold sub-districting even under the State Constitution.” 247 F.Supp. 629.
I agree with the Federal Court this sentence is subject to several possible interpretations and this is particularly *586true, when the sentence is read in light of conditions existing today, where one county is entitled to more than one senatorial district.
The Appellees rely upon White v. Anderson, 155 Colo. 291, 394 P.2d 333 (1964). In this case a divided court held a multi-district county could not be sub-districted under the following section of the Constitution of Colorado.
Section 47.
‘ ‘ Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district. ’ ’
In this opinion the Colorado Court observed:
The Attorney General would have us construe the section to read, in effect, as follows: “No county shall be divided in the formation of a senatorial or representative district composed of two or more counties, but may be divided for other purposes.” This argument might have some weight if the second and third sentences of Section 47 were joined by a semi-colon and the word “but” inserted. We would then have a sentence reading as follows: “When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be; but no county shall be divided in the formation of a senatorial or representative district’’ or “in the formation of such senatorial or representative district.” (Italics supplied.)
*587As I understand this language -by the Colorado Court they are saying: If their Constitution contained the language, indicated by the above italicized sentence used by the Colorado Court as an example in answer to argument, then there would be some weight to the argument the language of their Constitution, prohibiting the division of a county, applied only to districts composed of two or more counties. This italicized language is almost identical with the language found in the Tennessee Constitution. If the last clause in this sentence of the Tennessee Constitution, prohibiting the division of a county, was a separate sentence we would have a different situation, as the Colorado Court has noted.
The Appellees rely upon the case of Denney v. State of Indiana, 144 Ind. 503, 42 N.E. 929, 31 L.R.A. 726 (Ind. 1896). This is an able and well reasoned opinion, on the constitutionality of an Indiana Apportionment Act, where several issues were raised and decided; but not the issue of sub-districting a county entitled to more than one senator. Their reliance on this opinion is contained in the following language from the Denney opinion:
The people of a county have common interest and objects, peculiar to themselves, and intimate public relations with each other. Hence, when the constitution was formed, it was deemed of vital importance that the integrity of counties, in the formation of legislative districts, should be thus carefully guarded, “to the end that each county having sufficient population should have its own representatives in the legislature, chosen by its own electors, and them only, and owing no divided, perhaps conflicting, allegiance to any other constituency.” 31 L.R.A. 735.
*588In the Denney case one of the chief objections to the Apportionment Act was its establishment of “double districts.” This was done by combining two or more counties, neither or none of which have a voting population equal to the ratio necessary for a senator or representative, and giving the district so formed more than one senator or representative. The Court found under this method a county having a ratio less than the ratio entitling it to be represented by one senator is nevertheless given a voice in the election of two senators. The Court found this in the language of the opinion ' ‘ odious. ’ ’ It was under these facts the Indiana Court made the statement copied above from their opinion and it is clear the language has no reference to sub-districting a multi-district county. The reference is to the common interests found in one county as opposed to the common interests of another county.
Even so the Appellees contend the political integrity of a county would be destroyed by division into legislative districts all within the county. This is the gist of the dissenting opinion by Judge Boyd in Baker v. Carr, supra. On this argument of political integrity of a county I can follow Judge Boyd’s logic, since he is talking about both representative and senatorial districts. In the case sub judice we are only dealing with senatorial districts with the knowledge the Act in question divides the same counties for representative districts. It takes the action of both houses of the legislature to enact legislation and, if the political integrity of a county is destroyed by dividing it into .senatorial districts, then by the same logic its political integrity is destroyed by division for representative districts. The argument loses its meaning if applied to only one house of a bicameral legislature.
*589The failure of the Tennessee Constitution to' prohibit the division of a county entitled to more than one representative district supports the position of Appellants such is also true of senatorial districts.
Prior to the passage of the Act in question the legislature, in previous apportionment acts, had not chosen to sub-divide a county for either senatorial or representative districts. The Appellees allege this amounts to a legislative finding, long accepted, that the Constitution prohibits sub-districting of a county into senatorial districts. The Appellant’s argument here is that the legislature in multi-senator counties has the option to either sub-district or to allow county wide voting. If such be true the legislature by choosing one method would not be mailing a legislative construction of the Constitution the other method was prohibited. Further in the passage of this Act the legislature saw fit to express its intent, including its intent, in sub-districting counties for both senate and house seats. There is an express legislative finding certain counties are sub-districted in order, “minimize the dilution or cancellation of the voting-strength of various ethnic, political, economic, or several elements of the population within such counties.” It has been called to this Court’s attention the legislature in passage of this Act had knowledge of the case of Forston v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). The Forston ease contains clear language, even though it be dictum, that failure to sub-district a multi-district county will be in violation of the Constitution of the United States, when such failure would minimize or cancel out the voting strength of racial or political elements of the population. Under these circumstances the legislature not only had reason to sub-district but, if such finding be true and they are unchallenged in this record, *590it may well have been their duty. I do not find any merit in this argument by the Appellees.
I agree with Appellees the desirability of this legislation is no concern of the courts and give this argument of Appellants no weight.
I think there are three facts supporting the construction given this sentence by Appellants. First, this is necessarily the only meaning the framers of the language in 1796 could have had in mind. If the framers of this language had intended the last clause in the sentence was to refer to other than the opening condition of the sentence, they could easily have made it a separate sentence as was done in the Colorado Constitution. Second, the grammar of the sentence supports the conclusion these two prohibitions relate to the opening condition of the sentence. In the normal use of the English language clauses relating to each other are put in the same sentence. Third, the failure of the Constitution to prohibit the sub-districting of a multi-district county, as to representative districts, supports a conclusion the same is true for senatorial districts.
I realize reasonable and plausible arguments can be made to support either, the theory this sentence unambiguously forbids the division of a county in forming multi-senatorial districts within the county, or that reasonable and plausible arguments can be made the prohibition against division of a county for senatorial districts applies only where the district is composed of two or more counties; but the fact such is the case supports the Appellants’ position.
We have here a lawfully enacted statute with a presumption in favor of its validity. It is not shown that the *591statute, or any part, clearly, completely and unmistakably conflicts with, the Constitution of Tennessee. While reasonable minded men may differ on the interpretation to be given the Constitutional provision under consideration, the legislative interpretation is a reasonable and rational one, and under the legal principles hereinabove mentioned I would give approval to that interpretation which would uphold the entire Act.
On Petition to Rehear
Me. Justice Cbesost.
Since the release of our original opinions in this cause, we have been presented with a petition to rehear on behalf of the State of Tennessee, Amicus Curiae, and appellants. This petition brings to our attention what is designated as “new authority”, represented by the opinion of the Iowa Supreme Court of April 15, 1966, in the case of Kruidenier et al. v. McCulloch et al., Iowa, 142 N.W.2d 355. The facts are that this opinion was originally made available to us by supplemental brief filed with us by the present petitioners. This occurred while our original decision was in the process of release, though after preparation of the original opinion. At that time, we thoroughly examined and studied the opinion of the Iowa Supreme Court.
We became convinced then that there were distinctions between the case presented to this Court and that before the Iowa Supreme Court; particularly so in that other provisions of the Iowa Constitution than that provision concerned alone with senatorial subdistricting were given substantial effect. Such provision of the Iowa Constitution has no counterpart in the Constitution of Tennessee. However, had the Supreme Court of Iowa considered *592only its provision with respect to senatorial subdistrict-ing, we did not, and do not now, agree with that Court’s reasoning. On the subject involved in this case, the people of Tennessee have repeatedly spoken in terms unmistakably clear. It is the duty of this Court to accept and enforce that mandate.
The petition to rehear is denied.