Opinion
Opinion filed March 26, 1932.
1. STATUTES. Words and phrases. "According to the Federal census" held to mean current Federal census.
Where the caption of an act of 1929 provides that it shall apply to counties having a specified population according to the Federal census of 1920 and the body of the Act makes it applicable to counties having the specified population according to the Federal census, there is no material discrepancy between the caption and the body because the reference to the Federal census in the body of the Act could only mean the Federal census then current. (Post, p. 262.)
2. CONSTITUTIONAL LAW. Statutes. Act referring to county by population and affecting county in governmental capacity is construed as if county named.
When an act affecting the county in its governmental capacity refers to such county and to no other county according to population classification, it is enforced and construed as if it had referred to the county by name. (Post, p. 263.)
Case approved: Railroad v. Marshall County, 161 Tenn. (8 Smith), 236.
3. CONSTITUTIONAL LAW. Statutes. Construction of constitutional provision requiring amended or repealed act to be recited in caption.
An act which does not expressly amend or purport to amend previous laws in conflict with it, but which repeals or amends former laws only by implication, need not recite in its caption the title or substance of any laws repealed or amended by implication. (Post, p. 263.)
Case approved: Wright v. Donaldson, 144 Tenn. (17 Thomp.), 255.
4. CONSTITUTIONAL LAW. Officers. County superintendent is civil officer within the meaning of the constitutional provision.
The office of county superintendent of public instruction is a civil office within the meaning of the constitutional references to such office, one of which directs that the term of such officers shall be be computed from the first day of September next succeeding his election. (Post, p. 263.)
Constitution cited: Article VII, sec. 5.
Case approved: State ex rel. v. Davis, 159 Tenn. (6 Smith), 692.
5. CONSTITUTIONAL LAW. Statutes. Officers. Act creating office and fixing term contrary to Constitution may be enforced eliding invalid statutory term.
If a statute creates an office and fixes the term contrary to the express provision of the Constitution, the provisions of the statute creating the office may be enforced with the constitutional term substituted for the invalid statutory term. (Post, p. 264.)
Cases approved: Maxey v. Powers, 117 Tenn. (9 Cates), 381; State v. Leonard, 86 Tenn. (2 Pick.), 485; State ex rel. v. Maloney, 92 Tenn. (8 Pick.), 62.
6. CONSTITUTIONAL LAW. Statutes. Applicable constitutional provisions are read into statute.
In the construction of a statute the applicable provisions of the Constitution are to be considered as written into and made a part of the statute under consideration, giving effect to the terms of the Constitution when inconsistent with the terms of the statute. (Post, p. 265.)
Case approved: Maxey v. Powers, supra.
7. STATUTES. Act creating office and containing invalid provision fixing term held valid with constitutional term substituted.
Where a statute creates the office of county superintendent to be elected by the people on the first Thursday in August for a term of two years and provides that the person elected shall take office on January 1 following his election, the Act is valid in so far as it creates the office, but invalid in so far as it provides when the term of office shall begin, because the constitutional provision that the term of office shall be computed from the first day of September next succeeding the election controls and will be read into the Act in lieu of the invalid statutory provision fixing the beginning of the term of office. (Post, p. 265.)
Act held constitutional: Private Acts of 1929, ch. 551.
8. CONSTITUTIONAL LAW. Officer. Officer deprived of no property right held not to be entitled to attack statute as abridging term of office.
An incumbent of the office of county superintendent was elected under a statute providing that her term expire on January 1, 1931. A later act created the office of county superintendent, the term beginning in accordance with the constitutional provision on September 1, 1930. A person was elected under such later act but did not undertake to qualify or demand the office until January 1, 1931. Held: the incumbent under the former act was deprived of no property right and was not entitled to challenge the validity of the latter act on the ground that it shortened her term of office. (Post, p. 266.)
Case cited: Smith v. Sells, 156 Tenn. (3 Smith), 539.
FROM GRUNDY.Appeal from the Chancery Court of Grundy County. — HON. T.L. STEWART, Chancellor.
JOSEPH HIGGINS, for complainant, appellee.
JEFF D. FULTS, for defendant, appellant.
This is an action for the writ of mandamus, to compel the defendant, Mrs. Ritzius, incumbent of the office of County Superintendent of Grundy County, to surrender the office to the relator, claiming title thereto by virtue of his election at a regular election held in August, 1930. From a decree sustaining the title of the relator, the defendant has appealed to this court.
While the original contention of Mrs. Ritzius appears to have been grounded upon an alleged lack of qualification on the part of the relator to hold the office, the assignments of error made in this court present only the contention that the relator's election was void because the statute under which it was held, Private Acts 1929, chapter 551, is unconstitutional and void. The constitutionality of this Act is, therefore, the only question before this court on the appeal.
We are of the opinion that the statute is a valid enactment. The decree of the chancellor therefore will be affirmed.
The caption of the Act under consideration describes it as providing for the election of a county superintendent in counties "having a population of more than 9,750 and less than 9,755 according to the Federal Census of 1920 or any subsequent Federal Census."
In the first section of the body of the Act this quoted language is repeated, except the word and figures "of 1920" are omitted. We do not think this discrepancy between the caption and body is material or of any consequence. Reference in the body of the Act to the population of the counties to be affected "according to the Federal Census" could only mean the Federal census then current, which was the Federal census of 1920. It is the duty of the court to give meaning to the words employed, and this is the only reasonable meaning which could be accorded to the language used.
The reference in both the caption and body of the act is to Grundy County which, according to the Federal census of 1920, had a population of 9,753. The Act affects the county in its governmental capacity, and is therefore to be enforced and construed as if it had referred to Grundy County by name. Railroad v. Marshall County, 161 Tenn. 236, and cases therein cited. So construed, the Act does not violate the provisions of the Constitution, article 1, section 8, and article 11, section 8.
The Act does not expressly amend, or purport to amend, previous laws in conflict with it. It was, therefore, not necessary that it recite the title or substance of any law repealed or amended by implication. This is made clear by Wright v. Donaldson, 144 Tenn. 255, 264-265, and the cases there cited.
The office of county superintendent of public instruction is a civil office, within the meaning of the constitutional reference to such offices. State ex rel. v. Davis, 159 Tenn. 692. The Constitution of Tennessee, article 7, section 5, directs that elections for civil offices shall be held on the first Thursday in August, and that "the term of each officer so elected shall be computed from the first day of September next succeeding his election." Section 1 of the Act under consideration directs that the county superintendent "shall be elected by the qualified voters of such counties at the regular election to be held on the first Thursday in August, 1930, and every two years thereafter, and whose term of office shall begin on January 1, 1931, and continue for two years and until his successor shall be elected and qualified."
This provision of the statute clearly directs that the term of the County Superintendent for Grundy County shall be two years, beginning on the first day of January next succeeding his election. In this provision the statute is plainly in conflict with the constitutional provision above quoted.
It does not follow, however, that the statute must be destroyed by decree of this court because of this conflict. There is ample authority for giving effect to the constitutional provision and the enforcement of the other portions of the statute. In Maxey v. Powers, 117 Tenn. 381, 400, this court said: "The constitution is the fundamental law of the State, and every statute enacted by the general assembly must be construed in the light of its provisions. Those provisions applicable to the particular legislation in hand are to be considered as written into it and a part of it."
In State v. Leonard, 86 Tenn. 485, 488, a statute was under consideration which created a county judge and fixed his term of office at four years, contrary to the direction of the constitution that the term of each judge of an inferior court should be eight years. With respect to this discrepancy between the statute and the constitution, this court said: "This, however, is an immaterial matter. The Act being otherwise valid, the Constitution would regulate the term, although a different term was intentionally fixed; and the Judge, being duly elected, would hold for eight years, the constitutional term."
In State ex rel. v. Maloney, 92 Tenn. 62, 68, a similar statute, creating an office of county judge and fixing the term at a period shorter than that prescribed by the constitution, was construed and given effect as in State v. Leonard, supra. The court said: "In such a conflict, the Act being otherwise valid, the words of the Constitution must prevail, and those of the statute, to the extent of the antagonism, must be entirely disregarded as null and void. . . . The limitation of the term, by the first section of the Act under consideration, is, therefore, inoperative and void, and Maloney is entitled to hold his office without reference thereto, and just the same as if no such limitation had been incorporated in the statute."
These cases establish the constitutional principle that if a statute creates an office and fixes the term contrary to the express provisions of the constitution, the provisions of the statute creating the office may be enforced, with the constitutional term substituted for the invalid statutory term.
Applying this principle to the statute under consideration, it seems obviously our duty to give effect to the provisions prescribing the mode of election, and to substitute for the statutory direction as to the time of the beginning and ending of the term the constitutional direction with respect thereto. In so doing we merely follow the rule stated in Maxey v. Powers, supra, that the applicable provisions of the constitution are to be considered as written into and made a part of the statute under consideration, giving effect to the terms of the constitution when inconsistent with the terms of the statute.
So construed, the statute must be given effect as providing for the election of a county superintendent, to take office on the first day of September following his election, and holding two years therefrom and until his successor is elected and qualified.
It is contended for the appellant that this construction of the statute would not save it in this instance, for the reason that it would then deprive her of a portion of the term to which she had been elected, and thus be void under the constitutional rule given effect in Smith v. Sells, 156 Tenn. 539, and like cases. Appellant had been elected by the quarterly county court under statutory provisions which extended her term of office to January, 1931.
We think appellant is not entitled to make this objection to the validity of the statute, for the reason that the relator did not undertake to qualify for the office or to demand that it be surrendered to him until the time of the expiration of the term to which appellant had been elected. Since she was not called upon to surrender the office until the expiration of her term, she was deprived of no property right, and in so far as the present controversy is concerned, any question as to the shortening of her term of office is moot, and therefore need not be considered.
We therefore concur with the learned chancellor in holding that there is no constitutional obstacle to the enforcement of the Act under consideration.