
    Jas. M. Cannon v. J. Harvey Mathes.
    1. Privilege Tax. Increase of. The act of July 7th, 1870, o. 74, s. 4, increasing by fifty per cent, the tax on privileges is valid.
    2. Constitutional Law. Legislative bill. Subject and, title. Art 2, s. 17 of the Constitution, prohibiting laws from being passed which embrace more than one subject, that subject to be expressed in the title, is mandatory and prohibitory, and not directory.
    3. Same. Subject. A law embracing taxation on property and privileges, does not violate the provision by embracing two subjects.
    
    4. Same. Title. A title, purporting that an act is to impose a tax on property, is sufficient to support a law embracing taxes on privileges as well as on property.
    FROM SHELBY.
    Appeal by Mathes, privilege tax collector, from a judgment of the Second Circuit Court of Shelby county, January Term, 1872. Irving Halsey, J., quashing a distress warrant for privilege tax.
    Attorney-General Heiskell for the State,
    argued that the provision in our Constitution is different from that of any other State.
    The general phraseology places the suhstanee and the title on the same footing, no law shall embrace more than one subject, (or object) which shall be expressed in the title. In construing such a clause, it is impossible to distinguish the two objects which the Convention mean to reach, for they have expressed the same idea in the same language as to both. Both must therefore, though naturally of very different degrees of importance, be directory — or • both imperative.
    But the Constitution of Tennessee distinguishes these two things, and I maintain designedly. “No bill shall become a law which embraces more than one subject; that subject to be embraced in the title.” Why depart from the phraseology of the Constitutions of fourteen States where similar provisions prevail, unless a different thing was intended? No doubt an adoption of the phraseology would carry with it a strong argument that the established meaning had been adopted with the phraseology. But the converse of the proposition carries an argument also. The failure to use an established formula, argues that the departure is not without a reason. What is the reason for a departure?
    The title of an act was the most' inconsequential part of it by the usage of legislatures and courts— the body of it was everything. Now by a sudden 
      bouleversement, to make the title control the body of an act, is a thing not to be looked for in a wise body of men. To prohibit, under the penalty of invalidity, the log-rolling statutes of former days, the riders by which the constitutional law of legislation was evaded, is to strike at a great evil with adequate weapon, but to apply the same remedy to the title, is -ito waft a feather or to drown a fly.” Therefore, I maintain, that when the Conventions of other States put these things on the same footing, they did that which it was proper to avoid. If she has avoided it, let us not lose the fruits, for want of a proper construction.
    Look at the instances. In other States they have held acts void where the title, undertaking to enumerate divers particulars, omitted some, when it was admitted that the substance of the acts was not objectionable — where a proper act is passed, to have parts of the law held void because not enumerated in the bill, is a monstrous result. We must look to experience in judging of what is practicable in legislation. Every man capable of generalizing at all, must have observed the tendency of the human mind to particularize. The Old Constitution provided for vacancies by death, resignation or removal — why not vacancies without more. Now, nine cases out of ten in which this question will arise, will be found to depend upon this principle. Legislatures will attempt to particularize, and fail: See the instance of The State v. Powers, 14 Ind., 195, where the act was homogeneous, but the title defective in particularizing: See also McWMrier v. Price, 11 Ind., 199; Ryman v. 
      Willey, 16 Mich., 269. In the construction of the substance of acts there is no difficulty, the courts never fail to sustain what is substantially right. In the title — heret in cortiee. See the instances quoted: Cooley 145, s. 3.
    If the substance is wrong, the whole act is void. If the title is wrong, only so much as is not in the title. By what reason ? If the clause is so imperative, and a failure avoids, why does one avoid in toto— the other pro tanto ? ' Each is alike a disobedience of the law. Why does not each make it invalid alike? It is read as if it declared that every act shall be void which embraces more than one subject, and in which that subject is not stated in the title. Yet it is not so held as to the matter stated in the title. But if both matters appear in the title, then the whole act is void. Truly, the whole virtue is gone out of the thing and made to reside in the name. The deficiency in the title is made to cure the fatal defect in the substance, for if two things incongruous are put together, and the title describes one, that one is good, and the other is lopped off; whereas, if both are in the title, both are void. Can not this Constitution have attributed to it a grain of wisdom, in advance beyond those whose construction has resulted in such disatrous absurdities? »
    
      “ No bill shall become a law which embraces more than one subject; that subject to be expressed in the title.” The first part of this clause is imperative as language can make it. No bill shall become •a law— not no bill shall be passed, but being passed and approved, it shall not be law. This is as strongly expressed as is possible. But the conditional part ceases where this .member of the sentence ends; “which embraces more than one subject,” but the next member is in a different form entirely, to construe this imperative it should read, “or the subject of which is not expressed in the title,” but how different the actual mode of expression; “that subject to be expressed in the title.” Are we to suppose that this striking change in the mode of expression is accidental. It was drawn by one of the most careful and accurate scholars, one of the most astute and far-seeing of men. Now did it mean the wise thing which it seems to express by plain language, or did it simply by accident seem to express what was not in the mind of any one. If it be ’ accidental then it is providential, and we must construe the . words as we find them. But the law of other States having been found to work badly in making these two things, so unlike in substance— equal in grade, we are bound to presume that the change was adopted with design.
    The whole act is upon one subject: revenue, its receipt and disbursement; which might well be made the subject of one bill or act; but with a circumscribed title, “to fix the State tax on property.”
    By reference to Cooley, p. 146, it will be seen that the liberal scope o.f construction on this point, allows a wide range in the subject, sufficiently so to cover the whole subject of revenue, its collection and disbursement.
    
      Jarnagin & Frazer for plaintiff in error.
    The form of the law and the assessment, make it the duty of the collector to issue licenses to retail liquor dealers in Memphis, only upon payment of $150 to the State, and the same to the county.
    The amount to be paid for the privilege, is affected by the number of inhabitants in the town or city. Only $50 are required in the country generally, and in towns of less than 5,000 inhabitants. This inequality is charged to be unconstitutional. This question has been settled in Tennessee: Schlier v. State, 3 Heis., 284.
    The second ground of complaint is based on the caption of the act, under which this tax is assessed.
    Section 17, art. 2, of our Constitution, is as follows: “No bill shall become a law which embraces
    more than one subject; that subject to be expressed in the title.”
    This is “An act to fix the State tax on property.”
    The first section fixes the tax at 40 cents on each $100 worth of property.
    Section 2 repeals a former article which had fixed it at 20 cents.
    Section 3 repeals a former article defining the duties of the Treasurer and Comptroller, and provides a new rule for disbursing the taxes realized under this law.
    The fourth section increases the tax on privileges, by adding 50 per cent, to the amount of the former tax.
    The objection is, that this privilege tax is not indicated in the caption; that it is incongruous, and that it is unconstitutional.
    We reply:
    
      1. As a taxable thing, a privilege is the creature of statutory law. It is recognized in the Constitution as a possibility: Art. 2. s. 28.
    But a statute must define, so as to give it practical existence.
    • When a privilege has been granted to the citizen, it is a property right, and may be the subject of taxation.
    Any franchise, even the right of voting, may be regarded as property: Staten v. State, — Col.
    Taxing a privilege is taxing the property used or sold under the privilege granted. It was so declared in Brown v. The State of Maryland, 12 Wheaton 419, where the distinction between property and privilege was denied, as a matter of law under our system of taxation.
    The United States collected an import duty. The State assessed a tax for the privilege of selling the same goods. It was adjudged that this was a second tax, and therefore illegal.
    2. But there is no incongruity. The caption indicates a bill upon the subject of taxation. It is a revenue bill. The obnoxious section fixes the State tax on privileges.
    The word property, as already ai’gued, may be used in its most general sense; and courts will not fail to effectuate the interest of the Legislature, unless required by plain duty. They will not unnecessarily embarrass legislation: Cooley on Con. Lim., 146, and note 8.
    As between the State and the citizen in the matters of taxation, there can be no complication • of rights— there are no third parties or conflicting interests. The right to ■ tax is absolute, and as to privileges, without restriction. The right and power to make and enforce this law, can not be seriously questioned.
    There is therefore, no need for strict construction of mere words or forms, in this case.
    All of these sections tend to the same purpose— they fix taxation — raise revenue.
    No reason can be given for requiring two separate acts; and the courts will not clog the State in matters of revenue, by supplying doubts as to the technical propriety of a certain form of words: State v. Miller, 45 Mo., 495.
    3. The courts are relieved in some extent, in the matter of vigilance, by that provision of our Constitution which gives the veto power to the Governor. The section under consideration, provides that “no bill shall become a law,” etc.
    By art. 3, s. 18, the Governor is required to pass upon the form and substance of every bill, and is bound to veto every unconstitutional measure.
    It is not contended, that the power of this Court is abridged by this new feature in our Constitution; but where a co-ordinate branch of the government has authoritatively passed upon the sufficiency of a matter of form, it will be proper for a suitor to move the conscience of the Court, before he should have relief against a matter of form.
    4. The words “final hearing of any cause in the Court of last resort,” plainly excludes the idea that the purpose of avoiding payment, can be effectual by certiorari and supersedeas, or any other method. The officer is not to be restrained.
    In this cause he was prevented from collecting the tax. His motion to quash and dismiss were overruled by the Court below, and the officer had to appeal, being restrained in the meantime.
    The proviso shows that the proceeding by the collector is to operate as an injunction against the dealer, his business is to stop. In this case the collector is stopped, and the dealer goes on.
    Geo. Gantt for defendant said:
    The defendant in error, is a retail liquor dealer in the city of Memphis. The county and State claim the right to increase his privilege' tax fifty per cent, by virtue of the fourth section of an act passed July 6th, 1870, and approved July 7th, 1870: See acts of 1870, pp. 120, 121.
    The title of said act is in these words, viz.: “An act to fix the State tax on property.”
    Section 1 fixes the State tax on every $100 worth of property at 40 cents.
    Section 2 repeals the act fixing it at 20 cents.
    Section 3 is upon a wholly different subject.
    
    Section 4 is upon a wholly different matter, viz.: an increase of “privilege taxes of fifty per cent.”
    
    This act in its title and in the body of it, is plainly obnoxious to sec. 17, art. 2, of the Constitution of 1870, whioh is in the following words, viz.: “ no bill- shall become a law which embraces more than one subject; that subject to be expressed in the title.”
    Judge Halsey held the act void. He did right. The constitutional provision referred to, is mandatory and not directory: Cooley on Con. Lim., pp. 78-81, 141, note 4, 142-8, 150-2, and cases cited in these notes.
    Professor Cooley is of opinion that no constitutional provision should be held directory. This is a sound view. But we must not rest the case on this ground. It is enough that constitutional provisions like the one being considered, are held- mandatory by the great weight of authority.
    An ingenious effort is made to separate the fourth section, into a mandatory and a directory element. The mandatory going to the body of the statute, and the directory to the title. This is merely plausible. The language differs in both features from that employed in other State Constitutions. But it is sufficiently emphatic to leave no doubt. It never entered into the minds of the convention-makers, that this provision was to be destroyed by declaring that it had a hard and a soft side; that it was to be a hybrid; a legislative plaything. The evils to be remedied by this provision are considered by Cooley, 142.
    The particularity required in stating the subject in the title of the act, is critically examined in connection with decided cases: Cooley, 144. If the title embraces more than one object, the whole act is void: Cooley, 147.
    It would seem that where the act is broader than the title, that so much may stand as the title covers: Cooley, 148.
    
      But as our Constitution declares that no bill containing more than one subject, shall become' a law, is the effect not to invalidate the whole? Such is the view of the learned Attorney-General. And he admits that the third section is totally different from the first. This, then, on his own view, is conclusive against the act. Felo de se. I agree that a liberal construction shall be allowed, so as not to embarrass legislation: Cooley, 146, and note 8. But this act is a palpable infringement of the rule. To see how distinct “property” and “privileges” are, I refer to 2 Head, pp. 365, 366. The Legislature creates privileges, but not property: 3 Head, 414.
    "What is a privilege? 4 Sneed,,193; 5 Sneed, 258.
    As this is a case of first impression in this State, I submit that the Court shall set its face against legislative trifling with the Constitution, under the pretext of directory provisions. It is a dangerous doctrine. It will give rise to infinite mischief. It is an invitation to hold the fundamental law in light esteem.
    I concede that under a suitable title, the entire subject of privileges might be regulated. I concede that whatever is dependent upon, or grows out of the main subject, may be embraced under the general title. The title of the act may be restrictive, as to exclude matters that might under proper title be embraced: Cooley, 149. There is no decided ease that will sustain that statute, except as to the first section, in any State where the mandatory construction prevails.
    I call special attention to the following cases: State 
      v. Bowers, 14 Ind., 195; Memberton v. Price, 11 Ind., 199; Pyerson v. TJttery, 16 Mich., 269. These cases are believed to be in point, or so nearly so, as to control the case in hand. The several constitutional provisions will be seen: Cooley, 141, note 4. Assuming that section 4 is void, or that the whole act is void, then a distress warrant issued under it would be a nullity. ' A void act is no act: Cooley, 188. The remedy by supersedeas in such a case is proper.
   Nicholson, C. J.,

delivered the opinion of the Court.

This case commenced by petition for supersedeas, in which it is alleged, that defendant as collector of privilege taxes for Shelby county, issued a distress warrant against the property of petitioner, a licensed liquor dealer, for failure and refusal by him to pay the State and County tax assessed against him, under the act of July 7th, 1870, by which the tax on all privileges was increased 50 per cent, upon the basis then existing. It is alleged in the petition, that this act of the Legislature is void, because it violates a ft. 2. s. 17, of the Constitution of the State, which provides that “ no bill shall become a law which embraces more than one subject; that subject to be expressed in the title.” The Circuit Judge held the act unconstitutional, and quashed the distress warrant. From this judgment the State and county have appealed.

The title of the act of July 7th, 1870, is as follows: “An act to fix the State tax on property.” The first section fixes the State tax on every $100 worth of property at 40 cents.

Section 2 repeals the act of February 25th, 1870, which fixes the State tax at 20 cents.

Section 3 amends sec. 4 of the act of February 25th, 1870, as to the manner and order in which the Comptroller and Treasurer were directed to pay out the money in the treasury.

Section 4 increases the tax on all privileges 50 per cent, upon the existing basis.

It is insisted that this act violates sec. 17 of art. 2 of the Constitution of the State, which is as follows: “Sec. 17. Bills may originate in either house; but may be amended, altered, or rejected by the other. No bill shall become a law which embraces more than one subject; that subject to be expressed in title. All acts which repeal, revive, or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived, or amended.”

The particular portion of this section on which the question, in the present case is raised, is the following: “No bill shall become a law which embraces more than one subject; that subject to be expressed in the. title.”

Similar provisions have been introduced, of late years, into many of the State' Constitutions, and frequent occasions have arisen for their construction by the courts. In several States the courts have construed the provisions to be only directory to the Legislatures, and held that their acts are not invalid, although not conforming to the directory requirements of their Constitution. But the courts of most of the States have construed the provisions to be mandatory or imperative, and therefore, that the acts not passed in conformity therewith, are invalid and void.

The language adopted in our Constitution differs, in some respects, from that used in other States. “No bill shall become a law which embraces more than one subject.” This is a direct, positive and imperative limitation upon the power of the Legislature. It matters not that a bill has passed through three readings in each house, on three different days, and has received the approval of the Governor; still it is not a law of the State if it embraces more than one subject. It is, therefore, a plain, absolute and unconditional limitation upon legislative power. But while it is ■conceded that a bill which embraces more subjects than one can not become a law, because of the imperative or mandatory character of the language, yet it is suggested, that the remaining portion of the provision — ■ to-wit: “that subject to be expressed in the title,” was not intended to be mandatory but only directory; and, therefore, that a bill may become a law, although the subject of the bill may not be expressed in the title.

In the present case, we do not deem it necessary to express an opinion as to the question, whether any provision of a Constitution, can be properly treated otherwise than as mandatory. The essential nature and object of constitutional law, being restrictive upon the powers of the several departments of government, it is difficult to comprehend how its provisions can be regarded as merely directory. But, however this may be as to other provisions of the Constitution, we can see no reason for placing a different construction on the language used in the latter portion of the provision under consideration, from that placed on the first portion. The language “that subject to he expressed in the title,” can not merely be regarded as directory. The command is positive that no law shall embrace more than one subject, and is equally positive •that that subject is to be, or shall be expressed in the title. To constitute a valid law under this provision, the bill must not embrace one subject alone, but that subject must be embraced in the title.

Plausible reasons might be given to show, that it was not essential to the object which the Convention sought to accomplish, that the subject of legislation should be imperatively indicated in the titles of bills, but where there is no real ambiguity in the language employed, we have no right to fritter away the obvious import of that language by construction. The Convention evidently designed to cut up by the roots, not only the pernicious system of legislation, which embraced in one act incongruous and independent subjects, but also the evil practice of giving titles to acts which conveyed no real information as to the objects embraced in its provisions. To accomplish both purposes, the Convention deemed it wise to withhold from the Legislature, any power to enact a law which either embraced more than one subject, or which failed to express the fact in its title.

It follows that if the act of July 7th, 1870, either embraces more subjects than one, or if the title does not express the subject of the act, the law is unconstitutional and invalid. This brings us to consider these two questions.

It is said by Judge Cooley, at page 144 of his work on Constitutional Limitations, that “the general purpose of these provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means neccessary or convenient for the accomplishment of this general object, to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible.” He adds: “The generality of a title is no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. The Legislature must determine for itself, how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it.” "We concur in these general views as sound and practical, and by them the validity of the act in question must be tested.

The first inquiry is, does the act in question embrace more than one subject? As we have seen, the first section provides for raising revenue by a tax on property; the second repeals a former law as to the manner and order of paying out the revenue from the treasury, and the fourth provides for raising revenue by a tax on privileges.

The general subject of the act is revenue — and each and every section has direct reference to the subject of revenue in its different phases. It can not be said that there is the least incongruity among the provisions of the four sections. They have • a natural, if not a necessary connection with and dependence upon each other. Revenue is the general subject of- the act; its amount and its disbursement from the treasury are the special objects provided for. It is clear that the act is not obnoxious to the objection that it embraces more subjects than one: 14 Ind., 195; 2 Iowa, 280; 19 N. Y., 119; Cooley’s Con. Lim., 145.

But the next .question is, does the title of the act express its subject? The title is, “An act to fix the State tax on property.” We have seen that the subject of the act is revenue; the raising of it by taxation on property and privileges, and its disbursement from the treasury. The title indicates that the subject of the act is the fixing of the State tax on property. We have seen that the fixing of the State tax on privileges, and the mode and order of disbursing the revenue were germane to the fixing of the State tax on property, and therefore, that the several subjects embraced in the act were not incongruous. The question then arises, is the subject of the act sufficiently expressed by the title, which describes it as “An act to fix the State tax on property ” ? In answering this question, it is necessary to look to the object to be accomplished, by requiring the subject of the act to be expressed in the title. In the case of The People v. Mahaney, 13 Mich., 494, it is said: “that the object was to put an end to a practice, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies, whose members were not generally aware of their intention and effect, and to require that in every ease, the proposed measure should stand upon its own merits, and that the Legislature should be fairly satisfied of its design when required to pass upon it.” Judge Cooley, Con. Lim., 145, states the object of the provision, as deduced from numerous cases, to be: “ to prevent surprise or fraud upon the Legislature, by means of provisions in bills of which the titles gave no intimation, and which might therefere be overlooked, and carelessly and unintentionally adopted.”

Such being the object of the constitutional provision, when a bill was introduced with the announcement, that it was “a bill to fix the State tax on property,” with a section in it, fixing the tax on privileges, could it be said with reason or plausibility, that the title gave no intimation as to the provisions of the bill, in regard to taxing privileges as well as property? In 25 Ill., 181, it was held, that an act to incorporate a railroad company, may authorize counties to subscribe to its stock, or otherwise aid the construction of the road. After citing a number of similar cases, Judge Cooley concludes as follows: “many other cases are referred to in the note which will further illustrate the views of the courts upon this subject. There has been a general disposition to construe the constitutional provisions liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted:” Cooley’s Con. Lim., 146.

It is not to be denied, that there is some seeming conflict in the authorities on this subject, but upon a careful examination of the several cases, we are satisfied that the conflict is more apparent than real. In the case of Ryerson v. Utley, 16 Mich., 278, which is the most important' authority relied on, by the counsel for the petitioner, Judge Cooley distinctly recognizes the rule of construction which we have adopted. In that case, he said: “ the only object mentioned in the title to this act, is the preservation of the Muskegon River Improvement; for which purpose the act authorizes tolls to be levied and expended. The payment of Beard’s claim is in no way connected with this object; and the title to the act would apprise neither the Legislature nor the public, that it covered provisions under which a large sum was to be collected and disbursed to pay for the original construction of the work.” It being clear that the title of the act had no reference to, or connection with the payment of Beard’s claim, he held the act unconstitutional. But he reiterated what he had held in the The People v. Mahany, 13 Mich., 494, that if the title covered the object, of the act, the degree of particularity with which it should be set out, was for the Legislature to determine. In support of this position he cites 8 Iowa, 82 ; 11 Iowa, 482; 7 Ind., 681; 14 Ind., 195; 2 Iowa, 280; 19 N. Y. 116, and 3 Met. Ky., 566, in which last named case it was held, that “the constitutional provision should receive a reasonable construction, and any provision of the act directly or indirectly relating to the subject expressed in the bill, and having a natural connection therewith, and foreign the'reto, should be deemed embraced in it. We approve, says Judge Cooley, of the principle thus stated.

The cases of Mewherter v. Price, 11. Ind., 199, and The State v. Bowers, 14 Ind., 195, were decided upon the ground, that the provisions in the acts declared void, were not embraced in, but were clearly excluded from the titles of the acts. The subjects of those provisions had no relation, directly or indirectly, to the subject expressed in the title, but were foreign thereto, of consequence void under the Constitution of Indiana.

It is obvious, therefore, that the true rule of the construction, as fully established by the authorities, is, that any provision of the act, directly or indirectly relating to the subject expressed in the title, and having a natural connection thereto, and not foreign thereto, should be held to be embraced in it. Following this rule, we hold that in the case before us, the fourth section of the act, fixing the tax on privileges, has a ' natural connection with the subject expressed in the the title of the act, and that the same is constitutional and valid.

The judgment of the Circuit Court is therefore reversed, and judgment will be rendered here upon the supersedeas bond..  