Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-03-21
THE TIPPLING LAW.
Argument Of Col. COlyar I'm Favor OF
the Constitutionality Of Its Pas.

NASHVILLE, March 20.-A discussion
before the public of the constitutionality of
the tipping law would not now be resorted
to, but for the article in your paper this
morning, declaring the legislation on this
bill clearly, Enthusiastically unconstitutional.
With all due respect, deny that 'this leg
islation is clearly, Enthusiastically unconsti-
tutional;" this is q question of authority.
agree to the facts as stated in the UNION
AND AMERICAN. Senate bill 240 was
read three times on three several days in
the Senate and was passed in due formj it
was sent to the House and was adopted in
lieu of House bill No. 304 while on its third
reading, and then passed, the bill whose
place It took, having been twice passed on
two several previous days. This bill in
lieu, retaining the Senate number, was re-
turned to the Senate and has been regularly
signed by the Speakers, and goes to the
Executive. The question now Is, who can
gainsay this mode Of passing bill? That
this identical bill passed the Senate (the
house in which it originated) three several
times, upon three several days, and upon
three several reading, is fact not to be de-
MED. Did it pass the House? This in
wolves the effect of adopting in lieu the Sem
ate bill. When the Senate bill was adopted
In lieu, technically and by parliamentary
law and even within the meaning Of Or
ganic rules for the government of legis-
lative bodies it was the same bill whose
place it took, and though technically it had
become the House bill, and was no longer
the Senate bill, yet in good faith this identi-
cal bill had regularly and In due form
ha 10 mil "a
with the constitutional provision, because
in fact it passed.the Senate and in law the
House is the exclusive judge of the pro-
priety of adopting one bill in lieu of another,
and making it take the place of the other on
the third reading.
This is practically done In almost every
bill passed. 1t is the every day practice
Of legislative bodies, when q bill
is on its third reading either in the
house where it originated or in
the other house, to make amendments
which make it different bill, often total
ly changing the character Of the bill; and in
neither case is it required that there shall
be three readings on three several days of the
changed bill. Again, the practice is well nigh
universal to dispense with two of the read
ings required by the constitution, by read
ing only the title of the bill.
This all proves that these constitutional
provisions as to the mode Of legislation are
simply Intended as permanent rules for the
body in enacting laws, but not for revision
or correction by the other departments of
the government.
The identical question now under con.
sideration came before the Supreme Court
of Ohio in 1854, in the case of Miller &
Gibson vs.. the Stste. Chief Justice Thur
man, in that case, after holding that the
presumption was that the bill
had been read three times unless
the journal affirmatively showed that it had
not, said: "But suppose, for arguments
sake, it be admitted that the bill as amend
ed was read put once in the Senate, is the
act for that reason void? That, counting
the two readings before the amendment
and the final reading, the bill was resd three
times is conceded, for three readings arc
shown by the journal; and it is also conced
ed that in general three readings of an
amendment are not necessary. But mas
much as the amendment in this case is
styled in the journal a 'neto bHl,' it is said
that three readings were necessary. Why
necessary? The amendment was none the
less an amendment because of the name
given it. It is not unusual in parliamentary
proceedings to amend bill by striking out
all after the enacting clause and inserting
new bill. Jefferson's Manual, sec. 35."
Chief Justice Thurman again says in ref
erence to the pro vision of their Constitution
like ours, "This is an important provision,
but there is much reason for saying it is
merely directory in its character, and that
its observance by the Assembly is secured by
their sense of duty and their official oaths,
and not by any supervisory power Of the
courts" The Chief Justice in this case
takes the true distinction, as the whole case
when read will show that the mode or man
ner of passing laws, though prescribed by
the Constitution, cannot be revised; that
this is permanent rule prescribed, but the
Legislature alone are the judges as to what
is meant.
The same question again came before
the Supreme Court of Ohio in Price VS..
Nicholson, 6 Ohio 176, and was re-afirmed
in strong language.
In the first of these cases the Chief JUS
tics, after quoting from Jefferson's manual
to show that bill may be amended upon
the third reading, by striking out all after
q
bill, says "when the subject or proposition
of the bill is wholly changed, it would
seem to be proper to read the amended bill
three times and on different days, but
when there is no such Dital alter alton three
readings of the amendment are not neces-
sary."
This is what the Chief Justice says about
striking out all after the enacting clause,
and inserting neaU bill; and the balance
of the decision shows that The Legislature
must determine for themselves whether
the proposition Of the bill is s'wholly
changed" If either of the other depart
ments of the Government had the power
to inquire into this question, it would be
found that the bill adopted IN lieu did not
wholly change the proposition.
Both bills were to amend the tippling
laws; both provide for forbidding tippling
except upon license; both provide that the
license may be granted by a vote of the
people; both provide that the election shall
be held by order of the County Court, and
only upon application of the party asking
the license; both provide in substance for
the same endorsements on the ballot; and
both are what is generally kno Tn as a dis
trict law imposing penalties, etc. No fair
man can say the proposition is "wholly
changed" That the rule laid down by the
Supreme Court of Ohio is the true rule, is
manifest upon looking at the reasoning of
the two able judges who delivered the
opinions.
The Senate actually had read and passed
this identical bill three several times on
three several days, and the House, in the
exercise of discretion accorded to it by
parliamentary law, seeing the similarity of
the two bills, and having read one of them
twice, adopted the other in lieu, and read
IL once. This was q full compliance with
the spirit of the constitution, aud was no
frsui. Will not this kind of three readings
do when a bill may be read twice by the
title and the third time materially, and in
important things, amended?
The purpose and spirit of the ConsLitu-
ton have been fully met in the passage of
this bill; the law makers were satisfied with
the mode; they considered it compliance
with the spirit Of the Constitution, and
who shall interpose the letter against the
spirit? Who shall destroy substance with
form? QI hgret in literd hGret in cor
tice, is the familiar maxim Of the law. A
stronger maxim is, however, "The letter
killeth, but the spirit maketh alive.n
But, Mr. Editor, why not raise this ques-
ton before? This identical question might
have been raised at The last session when
the apportionment bill from the House was
oAaptad IN, liar, Of Sanata hill Tnon tha third