# Pepper v. Smith > Tennessee Supreme Court · December 15, 1885 · 83 Tenn. 551 URL: https://www.frixlaw.com/law-library/cases/8297864 ## Case - **Full name:** W. B. Pepper v. W. C. Smith - **Court:** Tennessee Supreme Court - **Decided:** December 15, 1885 - **Citations:** 83 Tenn. 551 - **Precedential status:** Published - **Opinion:** On rehearing by Turkey - **Judges:** Coopes, Turkey - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8297864 ## Opinion text Upon petition to rehear, Turkey, J., said: It is conceded by the entire court that the language of the act, literally taken, means what is claimed for it in the opinion delivered on a former day of the term, but argued that it was not the intention of the Legislature to give' it the circumscribed operation its language imports. Let us see whether such is the fact. That part of the act before us is in the eleventh section of the act of 1881, passed April 1, and is as follows: “ On the petition of a majority of the voters within the limits of any such town or city, at the time of the repeal or surrender of its charter to the county court, said court shall appoint three commissioners for the government of said town or city. To ascertain whether a majority of the voters have petitioned, the number of votes cast at the last municipal election preceding the abrogation of the charter shall be taken as the number of legal •voters within the territory.” It is argued the clause last quoted shows it to *564 have been the purpose of the Legislature to allow any voter who might be within the limits at the time of presenting the petition, to make one of the-number constituting a majority of the votes cast at the last election. To the contrary, I think it clearly means the reverse. We must construe this and the preceding clause together. The term “ a majority of the voters in the-second clause does refer to the “majority of the voters within the limits,” in the first claitse, etc. Construing them together, they will read: When a majority of the voters, within the limits, etc., at the time of repeal or surrender, etc., shall petition, etc. The character and qualifications of voters being defined in the first, the language of the second clause .must be understood to refer to it, as declaring out of what voters the majority shall be obtained. This section was amended by the tenth section of the act of 1885, chapter 82, pamphlet acts, page 162,. as follows: Providing for .“notice of time and place of election to ascertain whether a majority of the legal voters within the boundaries of such district desire the organization of the same, at which time and place said commissioners shall open and hold an election,” etc. “ Those in favor of the organization of such district, shall have written or printed on their tickets-the words ‘for the taxing district/ and those opposed to the organization of such district, the words ‘ no-taxing district.’ That the legal voters of said election shall be the same that were legal voters at the time of the abolition of the former charter,” etc. *565 Thus we have one Legislature saying the petition shall be “ of a majority of the voters within the limits. at the time of the repeal or surrender of the charter,” and the amendatory act saying, “that the legal voters of said election shall he the same that were legal voters •at the time of the abolition.” We then inquire into the purpose of the amendment and its extent. It is too plain for argument that the object was to make the question of having ■a taxing district elective, and at the same time give to the voters who had abolished one form of government the right to establish another by the votes of those who had been entitled to vote under the former •charter. The latter purpose was to do away with the restriction, by the first act, of legal voters to a majority of those who had voted at the last election, and give the right to all who were entitled to vote at the time the charter was surrendered, whether they had or had not voted at the last municipal election, both intending (as suggested in the first opinion) that the abolition of one government and the establishment of another should be as nearly simultaneous as possible. Both Legislatures are legislating for the same communities, viz.: Voters within defined limits at the times respectively designated in their acts, the only difference being in their modes of ascertaining who those voters were. Upon the fact of being voters within prescribed territorial boundaries, at specified anterior periods of time, there is no difference. The .amendatory act extends the elective franchise to a later day and larger population, but does not inter *566 fere with the original apt in its local restrictions; on the contrary, expressly retains them in the plainest and most comprehensive words. It is apparent, the Legislature of 1885 understood the language of the one of 1881 to be restrictive, both as to places- and persons. It allows that as to place not only to stand but repeats it, and enlarges as to persons. Both acted upon the idea that it was proper policy to confine the voters in the effort to establish a taxing district to those who had held but surrendered another form of municipal government. The original law had been accepted with the understanding of its restriction for four years. Its-policy had of course been considered until a second-legislative body determined to amend it partially. The latter act is a construction by the law-making power of the language of the first. By its retention of the restriction now complained of, we see its-policy. Whether the policy of a law is wise or unwise, does not concern the courts. If the Legislature had authority to pass it, and did so, it is our duty to enforce it, and not construe it to meet our views of what the law ought to be. If we hold the Legislature did not intend what it said in the-first act, we must of course hold it did not mean it in the second, and this, it seems to me, would be rather a bold undertaking against two Legislatures, composed, in part, of some of the ablest lawyers in the State. It would be remarkably strange, indeed,, that two Legislatures, speaking four years apart, and. acting upon the same idea of popular government, *567 attempting to legislate upon tbe same subject, for the same communities, and composed respectively of different representatives of the people, largely interspersed with sound and painstaking lawyers, should so far misunderstand simple and common place expressions as to employ language almost identical in the original and- amendatory acts, and still intend a meaning-the exact reverse of the words employed. The presumption is certainly in favor of their understanding of the terms used. To put it beyond doubt that the Legislature of 1885 did understand the language of the Legislature of 1881, in its literal and restrictive sense, a reference to the eighth section of their act is, in my opinion, sufficient. In that, in providing for the abolition of taxing districts, they enact that upon a petition presented to them, signed by two-thirds of the legal voters of the district asking for it, the commissioners shall abolish their taxing district by resigning, etc. There are no restrictive words in this section, ■ so gives the right to every legal voter who may be such at the time of petition, without regard to whether he was so at any time before. Limitation and restriction are purposely avoided in this instance, and purposely placed in the other. A Legislature incapable of construing, is certainly incompetent to amend an act. Legislative constructions are certainly as high authority as many of the law writers we cite daily. Luring the four years of the original act, this is the first and only case arising in which it was insisted the law meant other than is expressed in its clear, simple *568 terms. The people, the bar and the several Legislatures have thought of the statute in no other light than appears on its face, and after their experience of the four years of its workings, it is simply modified, as already indicated. It is, dangerous to be wise beyond what is written in the statute. To explain away clear expressions of legislative will, is to make a disturbing andn troublesome precedent. It is to hold, in effect, that no legislative act is a guide for the conduct of the citizen before it has passed through the construction processes of the courts. If, as conceded by the majority, the language of the act means what I claim it means, but, as they argue does not convey the intention of the Legislature, I ask what language could it have used to convey such intention if it had so desired ? How are we to know the purpose of that co-ordinate department, except by its language ? Our only safe rule is to declare the law as we find it written, unless it violates the constitution. That it may seem to us foolish or impolitic, should give us, as a court, no concern. That it may seem, absurd in its application and administration, is not a matter for our .consideration, but for that of the people, through the Legislature, While I entertain a profound respect for the opinion of the majority, it has failed to create in my mind the slightest doubt of the correctness of my construction,, and I adhere to the opinion first delivered, and file it as part of this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8297864. Public record. Not legal advice.