The opinion
Mu. Justice Neil,
(dissenting).
Article II, section 28, of the Constitution is the section relating- to the raising of revenue for proper maintenance of the.state government. It provides for taxation of real, personal, and mixed property, excluding certain property held by religious, charitable, scientific, and educational institutions. There is to be found in the same article the provision “All male citizens of this State, over the age
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of twenty-one years, except such persons as may be exempted by law on account of age or other infirmity, shall be liable to a poll tax of not less than fifty cents nor more than one dollar per annum.” Article XI, section 12, of the Constitution of 1870, amending the Constitution of 1834, relating to education, provides:
“And the fund called the common school fund, and all the lands and proceeds thereof, dividends, stocks and other property of every description whatever, heretofore by law appropriated by the General Assembly of this State for the use of common schools, and all such as shall hereafter be appropriated, shall remain a
perpetual fund,
the principal of which shall never be diminished by Legislative .appropriation; and the interest thereof shall be inviolably appropriated to the support and encouragement of common schools throughout the State, and for the equal benefit of all the people thereof; and no law shall be made authorizing said fund, or any part thereof, to be- diverted to any other use than the support and encouragement of common schools. The State taxes derived hereafter from polls shall be appropriated to educational purposes, in such manner as the General Assembly shall, from time to time, direct by law.”
I am constrained to hold that these constitutional provisions, while mandatory, are not self-executing. Following the adoption of the Constitution, the Legislature in 1870 passed a poll tax law, Ch. 26. It was enacted for the sole purpose of raising revenue for school purposes. When the framers of the Constitution incorporated into the organic law the provision that voters shall be liable to pay a poll tax and that such tax shall remain inviolate, as a separate fund for school purposes, it was considered a means of raising revenue. The Constitution does not set up any machinery for the collection of this tax, i. e.,
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who is to assess it, or when, or by whom it shall be collected. Its collection, as well as the method of collection, was left to the Legislature. In
Southern Express Co.
v.
Patterson,
122 Tenn., 279 , 123 S. W., 353 , it was held by this Court in an opinion prepared by Mr. Jnstice Shields that this section of the Constitution was not self-executing. If it is not, and the Legislature finds sources of revenue for school purposes otherwise than from poll taxes, as it has done, I think it may repeal the tax without doing violence to the State Constitution. No one can doubt that the Legislature has observed its sworn duty to provide adequate revenue for support of the state government, including’ proper maintenance of both elementary and high schools. The same Legislature (1943) that repealed the poll tax appropriated $10,568,000 for school purposes. It cannot therefore be seriously urged that the abandonment of the poll tax by the Legislature is subversive of constitutional government in Tennessee..
The majority opinion quotes at length a solemn admonition by a former Chief Justice of this Court regarding the necessity of preserving the Constitution. With this I find myself in full accord. But it has no relation whatever to the question now before us because in the instant ease no citizen has been denied any constitutional right or privilege.
The point is made by counsel for appellee that the revenue derived from poll taxes must be set aside as part of a sacred fund and- shall not be diverted to any other purpose; hence, the repeal of the tax is a violation of this constitutional provision. With all deference to counsel, I think this is a pure fiction. It is a well known fact that there has been no such fund in existence for more than fifty years. The Legislature has not thought of' the poll
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tax as a source of revenue for school purposes
“and set it aside as a perpetual fund”
for at least a generation.
Where constitutional provisions are not self-executing, as in the instant case, the courts are without power to put them into effect. And if statutes are enacted by the Legislature in pursuance of and in recognition of a sworn duty to uphold the Constitution and such statutes, are later repealed, leaving certain provisions unenforceable, there is nothing the courts can do about it.. The court is not the keeper of the conscience of the Legislature. We cannot substitute our-own idea of moral responsibility for that of the Legislature; nor can the court by any process known to the law compel the Legislature to perform a plain duty that is imposed upon it by the Constitution. We are here faced with the incongruity, if not absolute absurdity, of being called upon to yield obedience, and compel obedience, to a statute that has been repealed and a constitutional provision that is admittedly not self-executing. Such a thing is unknown to the history of English and American jurisprudence. When this case was argued at the bar of this Court, counsel for both appellant and appellee were called upon to cite authority that supports such a contention. It was admitted that none could be found. There is such abundant authority to support the view herein expressed, as well as that of the Chief Justice, that I deem it unnecessary to cite cases.