“[A] constitutional limitation upon the power of taxation will never be inferred or implied.... [T]he legislative power in this respect can only be restrained by a distinct and positive expression in the fundamental law.”
How later courts described this case
- “[A] constitutional limitation upon the power of taxation will never be inferred or implied.... [T]he legislative power in this respect can only be restrained by a distinct and positive expression in the fundamental law.”
Written by the judges who cited it.
The opinion
BachmaN, J.
(dissenting).
While it is clear that the legislature may, under the provisions of our Constitution, and especially by virtue of section 4 of article 7 thereof, extend the right of suffrage to women in elections for officers not contemplated by the Constitution, I am of the. opinion that the suffrage act under consideration (chapter 139 of the Acts of 1919) does not present a constitutionally valid ■ exercise of legislative authority, for the reason that it is discriminatory and violative of article 11, section 8, of the Constitution. Under our Constitution women may be lawfully subjected to the payment of poll taxes. Article 2, section 28, as pointed out, contains no positive inhibition against the power of the legislature to impose poll taxes on women, and, as applicable to the power of taxation, such limitation cannot be implied, but must be definitely and positively expressed. The reason of the right of the state to im *670 pose a poll tax is because of the protection afforded by the government to the individual. (Gardner v. Hall, 61 N. C., 22 ; Kuntz v. Davidson County, 6 Lea [74 Tenn.], 65), and, as stated in the latter case, the imposition is considered to be a wise one, as constituting a qualification for the privilege of exercising the elective franchise.
It is not to be doubted that, in order to Be valid, any attempted regulation of the right of suffrage must not only be reasonable, but must be uniform and impartial in its application to all classes of voters alike. Cooley’s Constitutional Limitations (7th Ed.), 907; Morris v. Powell, 125 Ind., 281 , 25 N. E., 221 , 9 L. R. A., 326; Brewer v. McClelland, 144 Ind., 423 , 32 N. E., 299 , 17 L. R. A., 845; Kinneen v. Wells, 144 Mass., 497 -503, 11 N. E., 916 , 59 Am. Rep., 105 ; Lyman v. Martin, 2 Utah, 145 ; Attorney General v. City of Detroit, 78 Mich., 545 , 44 N. W., 388 , 7 L. R. A., 99, 18 Am. St. Rep., 458 ; In re Appointment of Supervisors (C.C.), 52 Fed., 261 .
It is to be noted that the majority of the foregoing authorities present the question of registration as a qualification 'of the right to vote, but the same are particularly applicable in principle to the question before us. All citizens with reference to the exercise of the elective franchise — a privilege as distinguished from a right — whether qualified under constitutional provision, or legislative grant, should stand equal before the law, and the conferring of equal privinleges which all in the same class should possess imposes equal burdens and obligations which all should be made to assume. As stated in Morris v. Powell, supra: “One class of voters cannot be required to possess qualifi *671 cations which are not required of all others.” One voter must possess the same qualifications as another. He need possess no more.
“Indeed, it is true, if a State of the American Union prescribes for a portion of its citizens otherwise entitled to vote, prerequisites for voting from which other citizens are relieved, to that extent the State ceases to maintain a republican form of government. . .
In re Appointment of Supervisors, supra.
Section 8 of article 11 of the Constitution provides, in substance, that the legislature shall have no power to pass any law granting to individuals any rights, privileges, immunities, or exemptons, other than such as may be by the same law extended to any member of the community who shall be able to bring himself within the provisions of such law. I am clearly of the opinion that section 3 of the act under consideration is violative of the above provision. In so far as the same applies to municipal elections, or the voting upon propostions submitted to a vote of the electors of municipalities, women are authorized to vote without any requirement as to the payment of poll taxes, or the furnishing of evidence of the payment of same; while, as a prerequisite to the same right to vote in the same elections, with women, men are required to pay and furnish evidence of the payment of poll taxes. Thus an inequality repug nant to the mandates of our organic law is created by the statute, an immunity directly prohibited is conferred,, and a forbidden exemption is sought to be authorized.
While section 3 of the act provides that in elections for electors for President and Vice President women *672 shall furnish evidence of the payment of poll taxes assessed against them in the same manner required by law of other voters, this cannot be held to obviate the unlawful discrimination prohibited, for the reason that, while the legislature may require women to pay poll taxes, it has not yet done so, and the requirement in the future of a qualification not warranted by any existing law is a nullity, and imposes no obligation. In other words, the legislature cannot by indirection constitutionally do that which it may not do directly. To require that evidence of the payment of poll taxes as a right to vote be furnished by women, when none can be lawfully collected, is a vain and idle requirement. It is not that the legislature has failed to impose poll taxes on women which renders the act obnoxious to the Constitution ; but that the act, as passed, is discriminatory, in that for the exercise of the same right one class is relieved from burdens mandatorily required of another. The fact that some men, because of age or other infirmity, are permitted to vote without the payment of poll taxes, cannot be made the basis for argument that it is no discrimination for women to vote without making such payment and exhibiting evidence thereof, for the reason that such exemption is expressly made by the Constitution and cannot be complained of. Women, as a class, are subject to the assessment and payment of poll taxes, and upon their being assessed therefor the constitutional exemptions would apply to individual cases the same as to men. Further than this, they can claim as a class, no constitutional immunity. I am unable to see wherein the attempted classification is not purely arbitrary and wholly lacking in that rea *673 sonableness necessary to maintain it as a constitutional enactment.
“If the classification is made under article 11, section 8, of the Constitution, for the purpose of conferring upon a class the benefit of some special right, . . . immunity, or exemption, there must be some good and valid reason why that particular class should alone be the recipient of the benefit. Stratton Claimants v. Morris Claimants, 89 Tenn., 534 , 15 S. W., 95 , 12 L. R. A., 70.
And, as stated by the present Chief Justice in Fleming v. Memphis, 126 Tenn., 337 , 148 S. W., 1058 , 42 L. R. A. (N. S.), 493, Ann. Cas., 1913D, 1306:
“But this classification must not be mere arbitrary selection. It must have some basis which bears a natural and reasonable relation to the objects sought by the legislation.”
So in Malone v. Williams, 118 Tenn., 437 , 103 S. W., 810 , 121 Am. St. Rep., 1002 , in passing upon discrimin: atory legislation with reference to elections in the city of Memphis, Judge Neil says:
“No good reason can be conceived why the city of Memphis should be elevated above the other communities covered by the act, or depressed below those communities, as the case may be, and placed in a class by itself, whereby, in the use of the elective franchise, it is relieved of the burdens imposed upon other communities by the provisions of the act referred to, and of those acts which the latter act amends, or why its people should be deprived of the safeguards vouchsafed to other communities by the said act of 1897, and its congeners.”
*674 The difference in sex, or the fact that only limited suffrage is granted by the act, cannot he made the basis of classification. . The case of Coggeshall v. City of Des Moines, 138 Iowa, 730 , 117 N. W., 309 , 128 Am. St. Rep., 221 , cited in support of the reasonableness of the classification attempted to he made by the act of 1919, is not applicable. The right there conferred upon women was limited to participation in the determination of questions of municipal indebtedness, and, as pointed out, when exercised was advisory only. Here is granted the right to equally participate in many elections, choosing most important State and municipal officials, in whose selection the votes of all are of equal weight and effect, and finally and definitely determine incumbency to office. Section 8 of article 11 of the Constitu' tion recognizes no degrees of immunities or exemptions. That women cannot participate in all elections is be* cause of the inhibitions of the Constitution. In those elections where they may vote, their rights, qualifications, and privileges should be the same as other voters; no more, no less.