
    Thomas B. Cooke et al. v. John G. Gooch et als.
    
    Constitutiouaí Law. New Counties. Affirmative consent of two-thirds of the Voters required. The Constitution of 1870, art. 10, s. 4, in requiring the consent of two-thirds of the qualified voters of a fraction of an old county before it can be taken to form part of a new county, did not mean the assent of two-thirds of the votes cast at an election to ascertain the wishes of the qualified voters, but the consent of two-thirds of those qualified to vote afin-matively expressed before the fraction of the old county can be stricken off to make part of a new county.
    FROM EAYETTE.
    Appeal from May Special Term of Chancery Court at Somerville, 1871. James FbNtress, Ch.
    
      JOHN W. Harris for complainants,
    insisted: The Legislature has no right to construe the Constitution in relation to new counties any more than in relation to any other subject. The Court must first decide what the Constitution means and then enquire if the power given by the Constitution is followed by the Legislature and by those attempting to establish a new county. In construing the meaning of the Constitution, two different interests are involved. 1st. The ■ fraction to be taken off the old county (Fayette). 2d. The interest of the old county itself. In taking the vote under the law in the fraction to be taken off, the voters and tax-payers of the old county can not have any right of voting. This renders a strict ’construction of the Constitution proper, and should require two-thirds of the actually qualified voters in the fraction. No presumption can arise that those not voting in the fraction are in favor of the new county as against the citizens of the old county, whose rights are invaded and who have no protection but what the Constitution gives. The proceedings as to them are ex parte, and more than that, turning on evidence made out by others holding adverse interests. I beg leave to refer to Cooley on Constitutional Limitations, pp. 55, 56, and note. Constitution of 1834, art. 10, s. 4. New Constitution, art. 10, s. 4; art. 4, s. 1; art. 2, ss. 4, 11, 17, 18, 29. Act of 1870, e. 16. Interpretation, 1 Story on Constitution, ss. 400, 402, 405, 448, 451. Journals of Convention, pp. 372 — 3—5—6, 381 — 2—3—5, and 395. 1 Sneed, 637, etc., examined. Act of 1852, c. 117, p. 161; Id., c. 191, s. 12, p. 273. 2 Swan, 63, Mar
      
      shall v. King; 9 Hum., 152, 585; 2 Hum., 429; 1 Swan, 236; 1 Col., 259; Code, s. 85; 2 B. L. Dictionary, 126; 3 Atkins, 166; 5 Johns., 101. Answer must be direct and full: Story Eq[. PL, ss. 605-6-9, 684, 686, 565. 3 Scammon’s Pep., 367; 1 Story’s Rep., 296, 301; 2 Paige, 105; 16 Yesey, 382; 1 Johns. Ch., 103; Adams’ Eq., 401-2 and notes'; Freeman (Miss.), 385.
    R. W. Wood for defendants,
    who contended, when a State law is attacked as void, it is presumably valid in any case, and this presumption is a conclusive one, unless in the State or Federal Constitution we are able to discern it is prohibited: Cooley’s Con. Lim., 173, 168; Peck’s Rep., 269; 8 Hum., 1. The Constitution is silent on the question as to the mode of enumerating voters and ascertaining their will, hence the legislative power is unlimited: Idem. The usual and proper mode of determining such questions is by an election: Cooley on Con. Lim., 598.
    The fundamental principle of every association for self government is, that no one shall be bound except by his own consent, expressed by himself or representatives, but actual assent is immaterial, the assent of the majority being the assent of all, and this is actually true, for the will of .the majority shall in all cases be taken as the will of the whole. This rule is limited, of course, By positive regulations: Angel &> Ames on Corp., s. 499; 1 Kyd., 422; 2 Kent, 236; 1 Sneed’s Rep., 691, 692; 7 Serg. & Rawle, 517.
    After an election is properly proposed, whoever has a majority of tiróse wbo vote, the assembly being sufficient, is elected,- although the majority of the whole assembly abstain from voting: Angel & Ames on Corp., s. 127; 1 Parrish in Sudbury v. Stearns; 21 Pick. Pep., 154; Oldham v. Wainwright, 1 Black., 229; Rex v. Foxcrafi, 2 Bur. Rep., 1017.
    There is no way of defeating a candidate but by voting for another: Woodesson’s Lectures, Law Lib., v. 38, p. 260; 1 Bur., 570; 6 Tenn. R.. 430; 4 Tenn. R., 810. See 1 Sneed’s Rep., p. 691, for an authority on all the above points.
    The provision of old Constitution of 1834, as to formation of new counties out of old counties, same as in the Constitution of 1870, except that the consent of two-thirds and not a mere majority is required: See art. 10, s. 4. This clause of the old Constitution has been frequently construed by the Legislature of the State, and acted upon by the Legislature, Courts and people, and has been invariably construed as we contend the law is: See acts of Legislature, 1837-8, p. 33; 1839-40, p. 27; 1843-4, p. 42; 1843-4, p. 88; 1843-4, p. 231; 1849-50, p. 147'; 1851-2, p. 176, 1855-6, p. 161
    As to the weight which contemporaneous construction of a constitution should have: See Sto.ry on Con., s. 407, and authorities there cited; Cooley Con. Lim., p. 67; People v. Draper, 15 N. Y. Rep., 543; 1 Yerg. Rep., 360.
    Thos. R. Smith, also for defendant,
    said: What is the proper rule of construction to be applied?
    
      1. Tbe construction should be according to the settled meaning of the words: Cooley on Constitutional Limitations, 53, 54; Blackwell, pp. 606, 612, 617.
    2. We must arrive at the intention of the Convention from the Constitution itself: Sedgwick on Statutory and Constitutional Law, 242-3, 247, 253-4, 379, 382-3.
    3. The construction should be in harmony with the construction which the people everywhere, and' especially the bench and bar, have put upon the words — a for-tiori — it should be in harmony with the construction which our own Supreme Court has put upon like words, especially if that construction has been acquiesced in quietly by the people and the profession for many years. And this on that principle of stare deeisis which alone gives stability and certainty to our written law: Cooley Const. Lim., 49, 50; 1 Yer., 376.
    Such being the rule by which such a provision ought to be construed, we come naturally to the inquiry, what is the universal construction which has been placed upon such words? and if, as we contend, the construction has been that the majority of voters (whether a two-thirds majority or less be required) means the majority of those who choose to vote; and that non-voters are to be counted as consenting to the will of the majority, and that such construction is sustained by reason, and finds its warrant in the philosophy of popular government, then, I think, we may fairly claim that the clause under consideration should be so construed, and thereby that the construction of our organic law should be in harmony with both principle and precedent. Authorities are numerous; the principle underlying them all was laid down by Lord Mansfield, in Bex v. Foxeroft, 2 Burrows, 1021, as follows: “Whenever electors are present and do not vote at all [as they have done here] they virtually acquiesce in the election made by those who do and in the same case Mr. Justice Wilmot says: “Where, out of eleven voters, five voted and six refused, held, 'the six virtually consented.’” And this seems to have been even then well settled upon authority in England, for Mr. J. Wilmot, in that case, quotes Bex v. Withers.
    The text writers early adopted the principle, and we find it laid down in Wilcocks on Insur. Corp., p. 546; Angelí & Ames on Corporations.
    Both these authors using the following language; and the 1 Sneed case, hereafter referred to, quotes Angelí & Ames with approbation: “After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting; because their presence suffices to constitute the elective body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote. And such an election is valid, although the majority of those whose presence is necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes: the only manner in which they can effectually prevent his election is by voting for some other qualified person.” See also Grant on Corporations, 68-70; Bex v. Bailiff of Ipswich, 2 Salk., 434; Gosling v. Veley, 7 A. & E., 406; State v. Deliessline, 1 McCord, 52; State v. Huggins, Harp., 139; Police Jus. v. Landry, .12 La. Ann., 841.
    And in 37 Misso., p. 270, the case of The State v. Mayor of St. Joseph, where the charter of the city required the consent of two-thirds of the voters of the city to authorize the issuance of bonds, the Supreme Court say: “Where the mayor and council of a city were required to obtain a vote of two-thirds of the qualified voters of the city in order to create a debt, it. is sufficient to obtain a vote of two-thirds of those actually voting. This case is digested in 26 U. S. Dig., p. 550, s. 50.
    And in the case of First Parish of Sudbury v. Stearns, 21 Pick., 148, the Court use this strong language on page 154: “The cases referred to by the defendant’s counsel are decisive on this point. If necessary, many more might be added to them. The principle which runs through them all, and is founded in common sense, as well as supported by authority, is, that a majority of the legal voters who choose to vote always constitutes an election. It has been holden, that when a majority expressly dissent, but do not vote, the election by the minority is good. Oldlmow v. Wainwright, 1 Wm. Bl., 229. And in Bex. v. Foxcroft, 2 Burr, 1017, Lord Mansfield says, and it was the exact point adjudicated, “the protesting electors had no way to stop the election when once entered upon, but by voting for some other person than S., whereas they had only protested against any election at that time.”, “Whenever electors are present, and do not vote at all, they virtually acquiesce in the election made by those who do.” In Rex v. Withers, (referred to by Wilmot, J., in Rex v. Foxcroft,) there were eleven electors; six protested against proceeding, and did not vote; the candidate 'receiving the other five votes was declared to be duly elected, and the Court held that the six virtually consented to his election.”
    Such being then the authority, and the reason for it, we are not surprised to find the question is in truth res adjudieata in Tennessee. In the L. & N. R. R. Co. v. Davidson Go., 1 Sneed, 637, on p. 652, Judge Caruthers says: “ In cases of so much importance, involving, as these do, more than a million of dollars, and many millions more, perhaps, depending on the principles now to be settled in this State, it is gratifying to be able to announce that the Court concur in every material proposition embraced in the record and the arguments. This is their unanimous opinion.”
    The language of the act was “the majority of the voters of the county,” and the Court thus settle the question under discussion on page 692: “The question made is whether this act requires a majority of all the legal voters residing in the county at the time of the election, or only a majority of those who may attend the polls and actually vote. We are referred to the latest State and county elections to show the number of voters in the county, and then to the vote on this question, to prove that the number of affirmative voters falls very far short of a majority of legal voters in the county, though they exceed, by several hundred, the negative votes. How can we know how many legal voters there are in a couuty at any given time? We can not judicially know it. If it were proved that the vote was much larger in the last preceding political election, or by the last census, by the official returns, or the examination of the witnesses, it would only be a circumstance, certainly not conclusive, that such was the case at the time of this election. But we put our decision of that question upon a more fixed and stable ground. When a question or an election is put to the people, and is made to depend on the vote of a majority, there can be no other test of the number entitled to vote but the ballot box. If, in fact, there be some, or many, who do not attend and exercise the privilege of voting, it must be presumed that they concur with the majority who do attend, if indeed they can be known at all to have an existence. Certainly it would be competent for the Legislature to prescribe a different rule. But when they simply refer a question to the decision of a majority of “the voters of a county,” it can not be understood that they mean anything more than those who see fit to exercise the privilege. Suppose the vote should be very close, one, two or a dozen majority, one way or the other, how could the fact be ascertained but by the box of the exact number entitled to vote ? It can not be presumed that this or any other question submitted to the people was intended to be involved in such embarrassment.
    
      “"Whenever it is so intended by tbe law it will be expressed, and some convenient mode prescribed to settle any controversy that may arise. They might say, to be sure, that a number equal to a majority of those who voted at the last election for Governor, or for electors for President, or prescribe any other arbitrary test. Though this might not be the true test of the number then in the county, yet it would be a sufficient approximation to certainty to answer the purpose. This or any other prescribed test would be binding, though arbitrary, and of doubtful exepediency. But as none such, or any is given by the Legislature, we take it for granted, and so construe their language, that it was only intended to look to the ballot-box for the ‘ voters of the connty/ and from that allow no appeal.”
    This construction, so much in harmony with the decisions of other States, and with principle, has commanded the respect of the profession for many years, and has never been questioned. Shall . it be overturned now? An attempt was made in argument to impress upon this language a peculiar meaning, because :
    1. Other sections of "the Constitution speak of “majority of votes east,” etc.
    Answer. There were two acts of Assembly before the Supreme Court in the 1 Sneed case quoted above, differing from each other just in this particular; and the idea was pressed there, just as it is here, that this difference of expression indicated that a different rule of construction should prevail; but the Supreme Court held them to mean one and the same thing.
    2. It was argued that the fact that these words are used in a Constitution changes the rule of their construction.
    Answer. It would be a remarkable thing, and a proper matter to be corrected by “judicial legislation,” if a convention, composed mainly of lawyers, should use plain words, designing them to mean one thing in the Constitution, knowing they meant quite a different thing in the statute. Such a proposition will not bear examination. It must be believed that that intelligent body of men who framed the Constitution knew what had been the construction of similar words, both abroad and at home, and intended these words to have that well-settled meaning; but whatever may have been their private intention or knowledge about this or any other matter, can make no difference. The intention that is to govern must be looked for in the clause itself; and if we look there alone, we must give to the words their well-settled meaning, construing them in accordance with the decision of our Supreme Court, and with what it is confidently submitted is the universal construction of similar clauses. Not a single authority can be found to the contrary, either in England or America. The construction contended for on the other side would greatly tend to diminish the number of persons attending at the polls, thereby opening the door to fraud and corruption; for all that any person opposed to a measure would have to do would be to stay at home; his mere absence would be construed to be, not wbat all the authorities and reason say it ought to be— i. e., a virtual consent to abide by the will of the majority of those voting — but just as potent to express his dissent as though he had performed his duty as a citizen, and deposited his ballot; while the involuntary absence of a friend of the measure would be made to mean opposition to its passage, when, in truth, his intention was to abide by the will of the majority of those who voted.
    It is not unreasonable to demand of one who desires that his vote shall assist in outweighing the votes of men who are sufficiently in earnest to go to the polls, that he shall at least take enough interest in effecting his object to induce him to deposit his ballot. I feel satisfied that if it were an open question the Court would not give such a construction to this provision as would encourage a want of interest in our local elections; and, a fortiori, they will not render a decision which, in addition to that effect, so dangerous to republican liberty, will also have a tendency to unsettle the confidence of the people and the profession in the stability of all decisions.
    I have discussed this question at some length, not that I consider it difficult or doubtful, but because of the respect I have for the gentlemen on the other side, and out of regard for the difficulty which his Honor the Chancellor had in arriving at a satisfactory result; and I submit the question with entire confidence.
   TubNEY, J.,

delivered the opinion of the Court.

The Constitution of 1870, art. 10, s. 4, in its provision for the establishment of new counties, amongst •other things, declares: “No part of a county shall be taken off to form a new county, or a part thereof, without the consent of two-thirds of the qualified voters in such part taken off.”

On the 16th of December, 1870, the Legislature passed an act, entitled “ an act to establish the •county of Bell, in honor of that distinguished statesman, patriot and son of Tennessee, the late Hon. John Bell.”

This act defines in terms the boundaries of said ■county, and appoints commissioners, (the defendants,) prescribing their duties in the organization of said county, amongst them providing, “that said commissioners be and they are hereby directed to cause an election to be held, after giving twenty days’ notice at such time as they may deem best, in three or mo.re places in each of the fractions stricken off from Hardeman and Fayette and one in McNairy county, for the purpose of ascertaining whether a constitutional majority of the people residing in these fractions are in favor of or opposed to the establishment of Bell county; and all male citizens of the United States and of this State, of the age of twenty-one years, and being a resident in said fraction in which he may offer his vote six months next preceding the day of election, shall be entitled to vote,” etc., etc.

After having advertised the twenty days, the commissioners on 22d February, 1871, proceeded to hold an election as provided for in said act, with the result for “New Comity” 623 votes, for “Old Comity” 123 votes, making a total of votes cast 746.

In April, 1871, complainants, ^ Justices of the Peacé for Fayette county, filed this bill, charging, with other allegations, “that the facts show that two-thirds of the qualified voters living in said fraction taken from Fay-ette did not vote for the establishment of Bell county,” and praying that the commissioners be enjoined from further proceeding in the matter of organizing' the county, and that the fraction taken off from Fayette be restored, etc.

To this bill there was full answer, containing causes of demurrer, which were set for argument; those necessary to be noticed under the view we have taken, are:

1. Because all the material allegations are upon information and belief, and the affidavit is to the best of affiant’s knowledge, information and belief.

2. Because the Constitution does not require two-thirds of the whole number of voters who actually reside in the fraction, but only two-thirds of those who vote.

As to the first ground, the two parts making substantially the same ground, we answer, that if a matter essential to the determination of the plaintiff’s claim is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise allegation is not required. Such is the rule as announced by both Mitford and Story in their works on Equity Pleading.

The defendants come very clearly within it. They were the parties designated by law, witb tbeir duties defined to complete the establishment of the county. Certain facts are alleged which, if true, it is insisted makes them guilty' of a neglect or violation of duty, When they undertook the discharge of those duties, they were compelled to have done every thing necessary to their perfect execution; therefore the facts of commission or omission attending their action must of necessity be within- their knowledge.

If a contrary rule obtained it would frequently fall out that parties whose rights are being appropriated or trespassed upon by another, could find no relief by invoking the extraordinary aid of Courts of Equity restraining the injurious act until the right of property or possession could be determined by the Courts. As for instance, in cases of absence from the place at the time of the wrong complained of, individual ignorance of the facts constituting the wrong, the doing of an act injurious to another under the' pretence or even with the honest belief that it is done in pursuance of a lawful right or power; as where a party in interest may reasonably doubt of the legal construction to be given to the act, and the like, demonstrating the correctness of the rule we have repeated.

The second assignment will be noticed when we speak of the merits — it controls the case.

The Chancellor overruled the demurrer and the cause was heard upon an agreed state of facts, which is, that although more than two-thirds of those who voted on the 22d of February voted in favor of the new county, yet the number so voting was not equal to two-tbirds of tbe qualified voters in the part taken off. It is insisted by complainants that there must be at least an actual consent of an entire two-thirds of the qualified voters. And by defendants that two-thirds of the votes cast is the meaning of the Constitution, and must control without regard to those entitled to, but who do not vote.

Article 4, s. 1, of the Constitution, defines qualified voters to be: “Every male person of the age of twenty-one years, being a citizen of the United States and a resident of this State for twelve months, and of the county wherein he may offer his vote for sis months next preceding the day of election. * * * * And there shall be no qualification attached to the right of suffrage, except that each voter shall give to the judges of election where he offers his vote satisfactory evidence that he has paid the poll taxes,” etc.

The object, of construction as applied to a written Constitution is to give effect to the intent of the people adopting it. In the case of all laws, it is the intent of the law-giver that is to be enforced. But this intent is to be found in the instrument itself, It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what it has plainly expressed, and consequently no room is left for construction.

Possible or even probable' meanings, wben one is plainly declared in the instrument itself, the Courts are not at liberty to search for elsewhere: Cooley’s Constitutional Limitations, pp. 55-6.

It is the duty of Courts to apply this rule with all its force and meaning, to constitutional more especially, than to legislative enactments, the latter is the subject of ready and easy change, modifications, explanation or repeal. While the former is organic, the test by which all other law must be tried, the chart by which the law-making power must be governed, and is for wise reasons, slow, cumbrous and expensive in alteration or amendment.

The language of the clause is plain and unambiguous. “No part of the county shall be taken off without the consent of two-thirds of the qualified voters in such part.” The word “consent” here means the active concurrence, and can not be substituted for by a passive acquiescence. The argument that two-thirds of the votes cast, and the authorities persuasive to that view of the question can be of no service here. First, and mainly because it is not contemplated by the framers of the Constitution that the “consent” shall be ascertained by ballot any more than it was, that it should be arrived in any other mode the Legislature may have seen proper to adopt, and to hold that a two-thirds vote of those who attended the election and cast their ballots shall determine the matter, would be to hold that an election in the ordinary way, is the only mode in which the consent required may be obtained or made certain, this would place the Legislature above tbe Constitution and independent of tbe people. Tbe fact tbat tbe Constitution demands in general terms tbe consent of two-tbirds and fixes no means of getting at tbat consent, but leaves tbe means to an enabling act of tbe Legislature, is of itself conclusive tbat it intends its language to bave tbe active construction tbat two-tbirds shall speak affirmatively.

In the instrument itself we bave positive authority for tbe interpolation already given. In art. 2, s. 27, it is provided, “But tbe credit of. no county, city or town shall be given or loaned to or in aid of any person, company, association or corporation, except upon election to be first held by the qualified voters of such county, city or town, and tbe assent of three-fourths of the votes cast at said election, nor shall any county, city or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority.”

Here we have an expression for elections tbat shall be binding upon those not voting, and in it tbe milder term “assent” is used, because their actual approbation is not required as in tbe clause under consideration.

Having in this clause prescribed tbe mode in which tbe people may proceed to onerate themselves with burdens of taxation in terms understood by themselves without tbe aid of argumentative construction. We must conclude tbat tbe clause before us, being of a nature kindred to tbe one just referred to, was intended to be equally clear and certain, expressing on its face tbe full and true intent and meaning of the instrument containing it. We can not presume that the framers of the Constitution did not understand the force of this language, or that they meant 'the plain and unambiguous expressions employed to mean more or less than their face imparts.

In this connection, we may adopt the language of the Supreme Court of Indiana: “This power of construction in Courts is a mighty one, and unrestrained by settled rules, would tend to throw a painful uncertainty over the effect that might be given to the most plainly worded statute,” (here Constitution) “and render the Courts in reality the legislative” (here Constitution making) “power of the State.” In amplification of this idea, we appropriate the language of Mr. Justice Bronson in Peoples v. Purdy, 2 Hill. “In this way, a solemn instrument — for so I think the Constitution should be considered — is made to mean one thing by one man, and something else by another, until, in the end, it is in danger of being rendered a dead letter, and that, too, when the language is so plain and explicit that it is impossible to mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the boundless fields of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value, if their injunctions may be thus lightly overlooked, and the experiment of settling a boundary to power will prove a failure.”

If this warning — in language we are tempted to call prophetic — had been heeded, we might to-day, as did Judge Caruthers in 1854, have boasted: “There is no ‘higher law’ than the Constitution. This is the supreme and paramount law, before which all must bow with reverence.”

The case of Louisville & Nashville Railroad Company v. The County Court of Davidson et als., relied on by defendants, is not in conflict with this opinion. We fully concur in the argument of that ease, and think the construction given by it to the clause of the Constitution and Act of Assembly therein discussed the true one.

If, as insisted under the authority of that case, it were held in this that the consent of two-thirds meant those actually voting, it would be declaring that, if out of a population of more than twelve hundred qualified voters three only attended the election and voted, two for the new county and one against, such two-thirds vote established the new county.

The statement of the proposition overthrows it. Instead of presuming that those who did not vote in the election meant by their non-action to submit to the result of a count of the votes cast, we hold that a proper reading of the Constitution and enabling act authorizes those who did not vote to conclude that their votes against the project could avail nothing as a fixed, affirmative, numerical strength was absolutely necessary to the success of the new county. Such is the law.

The decree of the Chancellor disallowing the demurrer, and making the injunction perpetual, is affirmed.  