Opinion
Opinion filed March 9, 1951.
1. STATUTES.
The caption of an act is ordinarily looked to as sign post or guide to Legislature, and others who might be interested in matter, to see what general subject of legislation is to be in body of act, and so long as sign post or guide sufficiently points out general subject to be considered, then if body of act is germane to caption, even though it covers a number of provisos and other things not mentioned in caption, just so long as they are germane and pertinent to what caption says is to be done, act does not violate constitutional provision that all subjects of act be expressed in title (Const. art. 2, sec. 17).
2. STATUTES.
Where Legislature is presented with a caption which says that it is to amend another act, Legislature, and those interested have notice of what other act is, but when amendatory act goes further and says that amendment is only to cover certain specified things, Legislature is told that only such specific things will be done by amendment and when amendatory act goes far afield and does things which would not necessarily come under the things pointed out, and other things which are done cannot be elided so as to retain integrity of act, amendatory act violates constitutional provision that all subjects of act be specified in title (Const. art. 2, sec. 17).
3. STATUTES.
Where caption of Chapter 348 of Private Acts of 1949, was entitled "an act to amend Chapter 246, Private Acts of 1947," so as to consolidate certain pension funds of City of Nashville, fix the contributions of employees thereto, and to provide certain benefits for widows of pensioned employees, and body of Chapter 348 attempted to strike section of article 48 of 1947 Act in its entirety and insert in lieu thereof a comprehensive act toward pensioning widows of pensioned employees, also widows of employees who were not pensioned and dependent mothers, and minor children under 16 years of age, Chapter 348 of Private Act of 1949 violated constitutional provision that subjects of an act be expressed in title (Priv. Acts 1949, c. 348; Const. art 2, sec. 17).
4. EVIDENCE.
Supreme Court judicially knows that widows of pensioned employees would be rather few in number while a pension for widows of all city employees could reach rather large proportions and that when pension is extended beyond that to certain minor children and dependent mothers, obligations on city pension fund would run all out of proportion to that as designated in caption of Act purporting to provide for widows of pensioned employees (Priv. Acts 1949, c. 348, Const. art. 2, sec. 17).
5. STATUTES.
Doctrine of elision should be applied sparingly and is not favored.
6. STATUTES.
Where caption of Chapter 348 of Private Act of 1949, was an act to amend Chapter 246, Private Acts of 1947, so as to consolidate certain pension funds of City of Nashville, fix contributions of employees thereto, and to provide certain benefits for widows of pensioned employees, but body of Chapter 348 provided for comprehensive plan for pensioning widows of deceased pensioned employees, widows of employees who are not pensioned and dependent mothers, and minor children, void portions of act could not be separated from valid portions under doctrine of elision and Act violated constitutional provision that all subjects of acts be expressed in title (Priv. Acts 1949, c. 348; Const. art. 2, sec. 17).
7. STATUTES.
Where caption of act of Chapter 348 of Private Acts of 1949, purporting to amend Chapter 246 of Private Acts of 1947, contained words "widows of pensioned employees" but body of act purported to set up comprehensive plan for widows of all city employees, and dependent children, terms "widows of pensioned employees" could not be stricken from caption as surplusage, as those words were sign post and directive which draftsman of Act told Legislature would be followed in body of Act (Priv. Acts 1949, c. 348; Const. art. 2, sec. 17).
8. STATUTES.
Where Chapter 348 of Private Acts of 1949, violated constitutional provisions that all subjects of acts be expressed in title, Chapter 604 of Private Acts of 1949 purporting to amend Chapter 348, was likewise unconstitutional (Priv. Acts 1949, cc. 348, 604; Const. art 2, sec. 17).
9. STATUTES.
If a statute is merely partly unconstitutional but has a title expressing a constitutional objective an amendatory Act may be passed striking out invalidating portions of provisions and thus making a valid constitutional amendment (Const. art. 2, sec. 17).
FROM DAVIDSON.DENNY, LEFTWICH GLASGOW, of Nashville, for appellants.
E.C. YOKLEY, City Attorney, of Nashville, for Civil Service Commission.
WILLIAMS, CUMMINGS WEST, of Nashville, for Ruth Franklin and others.
ARMISTEAD, WALLER, DAVIS LANSDEN, of Nashville, for S.C. Ritter and others.
Suit by Wirt M. Armistead, Sr., and others, under the Declaratory Judgment Law against George A. Karsch, Jr., etc., and others, for a determination as to the validity of Chapter 348 and Chapter 604 of the Private Acts of 1949. The Chancery Court, Davidson County, THOMAS A. SHRIVER, Chancellor, rendered a decree declaring Chapter 348 of the Private Acts of 1949 to be constitutional, and complainants appealed. The Supreme Court, BURNETT, J., held that Chapter 348 was unconstitutional as the caption of the act did not show the scope of the act, which went far beyond the caption, and that Chapter 604, being amendatory of Chapter 348, was also unconstitutional.
Cause reversed and dismissed.
The validity of Chapter 348 and Chapter 604 of the Private Acts of 1949 is attacked in this case on the ground that the Acts contain two subjects in violation of Section 17, of Article II, of the Constitution.
The caption of Chapter 348 is: "An Act to amend Chapter 246, Private Acts of 1947, being An Act entitled:" Then follows the caption of Chapter 246 of the Private Acts of 1947. Then the following: "so as to consolidate certain pension funds of the City of Nashville, fix the contributions of employees thereto, and to provide certain benefits for widows of pensioned employees."
The 1947 Act which is being amended by Chapter 348 of the 1949 Act is the Charter of the City of Nashville and as carried in the 1947 Act comprises over 300 pages of that Act and covers all features of a modern municipal government.
The body of Chapter 348 of the Act under attack attempts to strike Section 10 of Article 48 of the 1947 Act in its entirety and insert in lieu thereof a rather comprehensive Act toward pensioning "widows of pensioned employees, also widows of employees who were not pensioned at the time of the employee's death and to dependent mothers and where the employee leaves no widow but to minor children under 16 years of age." Thus it becomes rather obvious at the outset that the portion of Chapter 348 attempting to point out what is to be done by this amendment is far exceeded in the body of the Act.
The present suit was brought under our Declaratory Judgment law, Section 8835 et seq. of the Code of Tennessee. The Chancellor held Chapter 348 constitutional as to two intervenors, they being a widow of a pensioned employee and a widow of a nonpensioned employee. He based this decision on our recent case of Davidson County v. Elrod, 191 Tenn. 109, 232 S.W.2d 1. He in effect held that various other provisions in the body of the Act as to mothers and minor children etc., might be elided, and, that these provisions were not necessary of consideration because no parties thus interested in the controversy were before the court and consequently a justiciable issue was not presented. He held as to Chapter 604, in a memorandum, that said Act was unconstitutional but in the decree he pretermitted any decision on this Act because no one was before the court who was thus interested in the enforcement or non-enforcement of the Act. He was of the opinion, therefore, that no justiciable issue was presented.
The caption of an Act is ordinarily looked to as the sign post or guide to the Legislature, and others who might be interested in the matter, to see what the general subject of the legislation is to be in the body of the Act. So long as his sign post or guide sufficiently points out the general subject to be considered, then if the body of the Act is germane to the caption, even though it covers a number of provisions and other things not mentioned in the caption (just so long as they are germane and pertinent to what the caption says is to be done) then the Act does not violate Article II, Section 17, of the Constitution here invoked.
When the Legislature is presented with a caption which says that it is to amend another Act of the Legislature, of course, the Legislature and those interested have notice of what this other Act is because it is in force and spread on the books, but when this amendatory Act goes further and says that the amendment is only to cover certain specified things this is telling the Legislature that now the sign is pointing out to you a certain specific place or direction and that only such specific things will be done by this amendment. When the Act thus amended goes far afield and does things which would not necessarily come under these specific things pointed out, and these other things which are done cannot be elided so as to retain the integrity of the Act, then this is violative of Article II, Section 17 of the Constitution. The obvious reason for this is that when the Act is thus amended, and it is pointed out in the caption that it was doing certain things, the Legislature has a right to accept what is said to be done there as what is embodied in the body of the Act. Of course anyone else interested in the matter has exactly the same right. Thus when the body of the Act goes far afield and introduces things into the body of the Act which are incongruous with the caption of the Act then unquestionably said Act is violative of Article II, Section 17, of the Constitution. Hays v. Federal Chemical Co., 151 Tenn. 169, 268 S.W. 883; Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, and other cases there cited.
The restrictive provision in the caption of this Act is: "to provide certain benefits for widows of pensioned employees". The body of the Act goes far beyond this and provides benefits to widows of all city employees and to children and mothers under certain circumstances. Clearly these provisions other than "widows of pensioned employees" should not be embodied in the Act when the Legislature has been led to believe that insofar as this feature of the legislation was concerned that the Act would only "provide certain benefits for widows of pensioned employees". It is perfectly right and proper for us and we judicially know that widows of pensioned employees would be rather few in number while a pension for widows of all city employees could reach rather large proportions and then when it is extended beyond this to certain minor children and dependent mothers the obligations on this fund would run all out of proportion to that as designated in the caption of the Act, that is, to "widows of pensioned employees".
Can we elide the portions of the Act not thus pointed out by the caption and preserve the continuity of the Act? In the first place the doctrine of elision should be applied sparingly and it is not favored. Edwards v. Davis, 146 Tenn. 615, 224 S.W. 359. May we separate these void portions from the Act under this doctrine of elision and still have an Act which has continuity? It seems to us that an attempt to do so would be making the rest of the Act entirely unintelligible; to do so it would be necessary to go through paragraphs of the Act and blot out certain words and phrases to leave only the provisions as applying to "widows of pensioned employees" the only purpose insofar as this feature of the case is concerned that is pointed out by the caption of the Act. Clearly under the authority of the Elrod case, supra, the provision in reference to widowed mothers and dependent children would have to be elided as not covered by the caption to the Act. We, therefore, conclude that with the omission of the void portions, the Act has no continuity and is unenforceable and therefore violative of Article II, Section 17 of the Constitution. There is not enough left of the Act for a complete law "capable of enforcement and `fairly answering the object of its passage'", Elrod case, supra [232 S.W.2d 2].
It is argued that the limitation phrase used in the caption of the Act "widows of pensioned employees" may be stricken as mere surplusage. Of course if this were stricken the caption of the Act would have a very clear and definite meaning and these words are not particularly necessary to the meaning of the other part of the caption. That, though, cannot be done in the instant case because these words which are now suggested might be stricken as surplusage are the very sign post and directive which the draftsman of the Act told the Legislature would be followed in the body of the Act. When the body of the Act thus went so far beyond this certainly the Legislature could not be presumed to have known these things.
Chapter 604 of the 1949 Act which is attacked herein has as its caption only: "An Act to amend Chapter 348, Private Acts of 1949." The body of the Act then provides for striking certain words and phrases in Chapter 348 which we have considered above. Without further comment we think that it is perfectly obvious that since we have held Chapter 348 unconstitutional that then any amendment to an unconstitutional Act would likewise be of no validity. Of course if a Statute is merely partly unconstitutional but has a title expressing a constitutional objective an amendatory Act may be passed striking out the invalidating portions or provisions and thus making a valid constitutional amendment. Clay v. Buchanan, 162 Tenn. 204, 36 S.W.2d 91. This is not the question here. We have held for reasons satisfactory to us that the entire Act, Chapter 348, Acts of 1949, is unconstitutional. In arriving at this conclusion we have not considered one way or the other, as it does not concern us in this litigation, the merits or demerits of the body of the Act as passed. That is a legislative question and not a judicial one under the case as here presented.
For the reasons above stated we hold that Chapter 348 and Chapter 604 of the Private Acts of 1949 are unconstitutional. The cause will therefore be reversed and dismissed.
All concur.