Knoxville Power & Light Co. v. Thompson

Mr. Chibe Justice Green delivered the opinion of the Court. This case involves the constitutionality of chapter 129 of the Acts of 1925. The chancellor held the act invalid. It is as follows: *225 “An act entitled an act to prohibit, the operation of street ears within the State of Tennessee, except in cities of less than thirty thousand population, on which only one operator is in charge and to provide penalties for the violation of this act. “Section 1. Be it enacted by the General Assembly of the State of Tennessee, that it is hereby declared unlawful for any person, firm or corporation to operate, or cause to be operated, within this State, except in cities of less than thirty thousand (30,000) population, any street car on which only one operator is ip charge generally known as ‘one-man’ cars. “Section 2. Be it further enacted, that any person, firm or corporation found guilty of the violations of section one of this act shall be fined not less than $100 nor more than $500 for each offense.” Cities of “less than 30,000 population” are excepted from the operation of this act. The extent of its application is too indefinite to permit of its enforcement, unless we may assume that the legislature had in mind some standard of population to which reference may be made. Riggins v. Tyler, 134 Tenn., 577, 184 S. W., 860. In that case it was held that a designation of the territory to which an act applied as a county of stated “population” without more meant a county of the stated population according to the last federal census. This interpolation identified Montgomery • county, and saved the act under consideration, for it dealt directly with that county in its governmental capacity. Special laws of this kind are valid. Montgomery county might have been called by name. Todtenhausen v. Knox County, 132 Tenn., 169, 177 S. W., 487, and cases cited. *226 The act before ns, however, deals with street car companies, not with municipal corporations, and it would not be helped by invoking the rule of Riggins v. Tyler, 134 Tenn., 577, 184 S. W., 860. If we say the legislature meant to except cities of less than 30,000 population by the last census, the census of 1920, or, stating it differently, that only cities of 30,000 and over by the census of 1920 were included, then we have a void enactment. Although Jackson or Johnson City might hereafter grow away out of this classification, street car companies operating therein would escape the burdens of this legislation, because these were cities of less than 30,000 according to the census of 1920. Sutton v. State, 96 Tenn., 697, 36 S. W., 697, 33 L. R. A., 589; Woodard v. Brien, 14 Lea (Tenn.), 520. Such legislation has been held vicious in this state for forty years, and necessarily so. Jackson might grow larger than Memphis, but would still be exempt from such an act, because the exemption is based on the population shown by one particular census. We are asked now to go beyond Riggins v. Tyler, 134 Tenn., 577, 184 S. W., 860, and to consider the exempting clause as though it read “except in cities of less than 30,000 population by the federal census of 1920 or any subsequent federal census.” That is, to supply the words italicized. The justification for adding words to a legislative enactment is to carry out the intention of the lawmakers. If we read the act as suggested, it is likely that we would make a law rather than effectuate one intended by the legislature. *227 The exception of the smaller cities of the State from the operation of this act was obviously made to remove opposition to the bill from senators and representatives from those cities. See journals. Who can say that these legislators would have supported the hill had it been so framed as to probably include some of their rapidly growing towns within the next five years? Who then can say it was the legislative will to pass such an act as it is urged we should make of this? An act of the legislature will, of course, never be declared unconstitutional if it is possible to avoid so doing. In order to save such an act, however, the court is not authorized in so reading it, or adding to it, as to make of it a new law, which it is to be doubted the legislature ever designed. Where the intent of the lawmakers is clear, the court will exercise it ingenuity to give effect thereto. Where this intent is doubtful, the court must be more cautious. Rather a narrow margin now separates some of the excepted cities from the bounds of their class. Some of them will likely attain a population of 30,000 by the next census in 1930. In view of the history of the act before us; it would be a violent assumption for us to say the legislature intended that the act might operate in the excluded territory at so early a day. We cannot hazard a perversion of the legislative intent even to save the constitutionality of its enactment. Such intent does not invariably conform to constitutional limitations. It follows that chapter 129 of the Acts of 1925 is bad. As it stands, it is too indefinite to be administered, Riggins v. Tyler, supra. If we read it as referring to the census of 1920, an arbitrary classification results. *228 If we read it as referring to that and any subsequent census, we judicially legislate. The decree of the chancellor will be affirmed.