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for less than par. The state debt was the chief political question for the decade and more following 1870.1

The legislature is expressly authorized "to regulate the wearing of arms with a view to prevent crime."2

To the passage of special legislation no additional restrictions were imposed except to prohibit the creation of corporations by private act. Experience with acts of the legislature embracing a most heterogeneous subject matter led to the provision that no bill shall embrace more than one subject, which subject shall be expressed in the title.*


The comptroller is made a constitutional officer; the cir cuit and chancery courts are made constitutional courts, and the election of the attorney general is taken from the people and vested in the judges of the Supreme Court,' the places of holding which are specified.8

The authorization of game and fish laws was not considered beneath the dignity of the state's organic law."

Religious liberty is given an additional safeguard in prohibiting the requirement of public service in time of peace from any person on the day set apart for rest by his religion.1

Finally, there was inserted a clause permitting the legisla ture at its discretion, to submit to the electorate the question of holding a constitutional convention, to be called if a majority of the votes should be favorable.2

Estimate of


The convention of 1870 accomplished its purpose. It com- 62. pleted the work of wresting from a minority the control of the Convention's state government and restoring to the former Confederates their rightful influence as citizens of the state. In doing this, however, it framed an instrument the effect of which was distinctly

'II, 33.

The question of the state debt is well treated by Caldwell, op. cit. Chap. 10, and by W. A. Scott, Repudiation of the State Debts, pp. 131ff.

21, 26.

3XI, 8. Does not apply to municipal corporations: Williams v. Nashville, 89 Tenn., 487 (1890), and other cases.

*II, 17. The chief effect of technical requirements of this type is to vest in the courts enormous power over the enactments of the legislature. See, e. g., Condon v. Maloney and State v. Condon, 108 Tenn., 83; 65 S. W., 87 (1901); Legerwood v. Pitts, 122 Tenn., 570; 125 S. W., 1036 (1909).

VII, 3.

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reactionary. Reaction against the arbitrary tactics of the reconstruction governments was natural. But that additional checks and balances should have been introduced into the governmental organization just at the time when railroads and other corporations were beginning to become so powerful as to call for state administrative control, when the number and complexity of governmental functions in other directions was on the eve of substantial increase and when responsible financial management was becoming rapidly more imperative, impresses one as peculiarly unfortunate. Experience has conclusively proven that a government planned with a view to inaction always plays into the hands of reactionary interests, whilst a government that can operate efficiently and that is given clear-cut leadership most often represents the public at large and accomplishes the popular will.

By the constitution of 1870 the governor-the natural leader in state government-was left with diminished powers and the powers of the legislature were made subject to increased limitations, yet no instrument was provided whereby the people might have any additional means of self-expression. The keynote of the convention's attitude toward the task of constitutionmaking, it should, however, in justice be noted, was expressed by one of its most distinguished members when he said,

Let us be careful; let us do no more than is absolutely necessary. ten years from now all this must be done again.o



Development of the State Since 1870.

The constitution of Tennessee has remained without formal alteration since 1870-a fact which, when considered in the light of the state's very considerable economic changes, betokens a high degree of political stagnation-primarily the result, most

The convention "proceded to curtail the powers of Governor, until now it makes very little difference who is Governor, so long as he is a good-looking fellow, with good manners, and can speak at country fairs and school commencements. He is the most harmless citizen of the State."-R. N. Hood, Proceedings of the Bar Association of Tennessee. VI, 184 (1887).

The veto, to be overruled by practically the same vote that passed the bill, was a check upon legislation rather than a means of strengthening the governor. Concerning the work of the convention, Caldwell says, "the changes and additions are mainly critical or explanatory notes, inserted in the text, or provisions which are too much dignified by places in the organic law, and should be relegated to their proper rank as statutes."-Proceedings of the Bar Association of Tennessee. XIII, 87 (1894).

Judge A. O. P. Nicholson. Quoted by Caldwell, Const. Hist. Tenn., 300.

probably, though also, perhaps, an accompanying cause, of the failure of Tennesseans to keep pace with the general progress of the country as a whole. In population, for instance, Tennessee has increased from 1,258,520 in 1870 to 2,184,789 in 1910 -seventy-eight per cent.,-but the population of the nation as a whole has much more than doubled, and in the production of wealth the divergence has been greater still. Meantime, however, the absolute growth of the state has been very considerable and its increasingly complex life renders more and more palpable the inadequacy of the government dictated by its constitution. Agriculture, though still predominant, has become relatively less important. The value of farm property increased between 1870 and 1910 from 227 to 613 millions of dollars,' about 170 per cent., but the capital employed in manufacturing establishments increased from 16 to 168 millions, or 950 per cent.,1 and that in mining from one to more than thirty-three millions3,200 per cent. At the same time there has been of late a centering of population in towns and a general tendency on the part of agricultural counties to decline in rural population. These brief illustrations fairly describe the change that has been taking place.

Attempts to

Meanwhile efforts have been made to change the state's 64. organic law. The legislature in 18962 passed an act for sub- Revise the mitting to the people the question of calling a convention, which was later repealed and another act substituted for it but the popular vote was a decisive negative. In 1904 seven amendments submitted by the legislature were likewise rejected. They proposed (1) a four-year term for the governor, (2) popular election of the secretary of state and (3) treasurer and comp

"In 1840 when Tennessee was the first corn producing state, 4,873,584 bushels were raised in 1870 it stood seventh, though producing 41,343,614; in 1909 it stood twelfth, though producing 67,682,489 bushels.

Concerning conditions in 1870, see Killebrew, J. B., Resources of Tennessee (1874). 72.6% of those gainfully employed were agriculturalists. See also Reports of Ninth Census.

"Implements and machinery 8 to 21 millions.

It is worthy of note that in 1870 more than half the horsepower employed was developed by water.

2Acts of Forty-ninth General Assembly, 2nd extra session, ch. 1. Chapter 2 provided for the election of delegates.

Acts of 1897, ch. 11; ch. 12 provided for the election of delegates.

*Acts of 1903, ch. 532. For constitutional amendments proposed by preceding legislature see Acts of 1901, ch. 73, 74, 79; Senate Joint Resolutions 12 and 50; House Joint Resolution 61, ch. 80, and Senate Joint Resolution 51 proposed amendments which were not concurred in by the 1903 legislature.

troller, with an increase in the terms of the latter from two to four years; (4) increasing the terms of certain county officers from two to four years and making them ineligible to succeed themselves; (5) that the legislature should have power to pass laws for the establishment and maintenance of public roads, for enclosing lands and lots and for the protection and control of domestic animals and make them applicable to particular counties; (6) that localities, by two-thirds vote of their legislative bodies should have power to exempt new manufacturing enterprises for not exceeding ten years and, finally, (7) that local indebtedness should be limited to ten per cent. of the average assessed value of their taxable property for the preceding period of ten years.

Popular interest in constitutional problems, both in 1897 and in 1904, was insufficient to overcome the purely selfish but always to be expected opposition of the office holders. In 1897 the Republican Party, chiefly from narrowly partisan motives, joined with the Democratic office holders to defeat the convention. Consideration of the proposed amendments of 1904 shows that, however desirable some of them may have been, they promised no change that would really solve any governmental problem. The needed administrative reorganization and centralization of responsibility could not have been accomplished merely by longer terms of office and certainly not by increasing the number of popularly elected officials. It is probable that more local self-government was wanted rather than expressly authorized legislative control of fence and stock laws. The propriety of tax exemption in order to attract new industries may be granted and the limitation of indebtedness insisted upon, but it must be admitted that neither of these proposals is of a kind to evoke widespread popular enthusiasm.

In 19155 enabling acts for calling a convention were again passed by the legislature. The people will vote upon the matter in August, 1916.

5Acts of 1915, ch. 110 and 111. For text, see, infra, Appendix 3.




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