Gibson County Special School District v. Palmer

DROWOTA, Justice,

concurring and dissenting.

I concur in part and dissent in part for the following reasons.

I concur with the majority opinion in holding that the referendum provisions of Chapter 240 and Chapter 241 of Tennessee Private Acts of 1984 are unconstitutional on two grounds. First, a private act is an unconstitutional delegation of legislative authority when its efficacy is dependent upon a referendum in which the people who will be subject to the private act can vote *553 on the question of the adoption of that law. Arthur v. State, 148 Tenn. 434 , 256 S.W. 437 (1923). The private acts in question apply only to the Bradford Special School District and the Gibson County Special School District. The legislation provides for an election to determine whether the Act becomes effective. This amounts to a referendum to the voters of the Special School Districts on the question of the adoption of the law. Thus, the Acts are an inappropriate delegation of legislative power and are unconstitutional. Arthur v. State, supra.

Secondly, the legislation is an improper delegation of the legislature’s taxing powers. The legislature cannot delegate the taxing power beyond the extent expressly designated by the Constitution. As the majority opinion points out, there being no express provision in the Tennessee Constitution which permits the legislature to re-delegate its taxing power to voters of a special school district, the Acts in controversy are clearly unconstitutional.

The majority opinion having held the referendum provisions unconstitutional then finds the doctrine of elision applicable, thus giving effect to the remaining provisions of the Acts. I cannot agree that the doctrine of elision should apply in this case. The majority opinion admits that the question “in the case at bar is an extremely close one.” However, the majority opinion seems to place great emphasis on the fact that the Acts in question contained a sever-ability clause which “reinforces the conclusion that the legislature intended the valid portions of this legislation to be given effect in the event that the referendum provisions were found to be unconstitutional.”

A similar severability clause existed in the legislation before the Court in Arthur v. State, supra, and Chief Justice Grafton Green in refusing to apply the doctrine of elision stated:

Just what effect is to be given such clauses in acts of the legislature we need not determine. We think it clear, however, that they must not be construed so as to defeat what appears to be the paramount legislative intent.

The legislature conditioned the life of the act before us upon the result of the election provided for. There can be no mistake about this. It would be a palpable contempt of the legislative will for us to strike out the election provision from the act and give effect to the act regardless of the election.

148 Tenn. at 437 , 256 S.W. at 438.

It is well established in this state that the doctrine of elision is not favored. The trial judge in this case specifically found “that neither act would have been introduced into nor passed by the Tennessee General Assembly without the provision requiring voter approval by the citizens affected by the increase in tax liability contained in each act.”

I think it is clear that the legislature would not have passed these acts without the referendum provisions. To eliminate from the act the requirement for a referendum will do violence to the clear legislative purpose and intent. I would therefore hold both Acts unconstitutional in their entirety.

I am authorized to state that Justice FONES concurs in this opinion.