|Legal Opinion: |
Text of Document: June 15, 1994
Your question is, can a non-resident of the town hold the office of alderman? Under the facts you related to me, the answer is no.
You told me that a certain person elected to the office of aldermen does not live in the city. You said that some residents of the town think he does, but told me that he lives in another county, and that there is no record of his residence ever being in the city, by annexation or otherwise.
Section 4 of the city's charter provides that, "No person shall be eligible for the offices of Mayor, Alderman, or Town Magistrate, unless he is a qualified voter of said town, and shall have resided within the corporate limits thereof, at least twelve (12) months continuously prior to his election." Section 4 also provides that, "In case of death, removal or resignation of any Alderman, or Mayor, during the term for which he was elected, the remaining members of the Board of Mayor and Aldermen at a regular session thereof shall have the power to fill such vacancy for the unexpired term." Section 4 makes it pretty clear that a person who does not reside in the city is not entitled to be elected to the office of aldermen, and that if one of those officeholders "removes" his residency, he is disqualified from continuing in office. [See Bailey v. Greer, 468 S.W.2d 327 (1971); Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (1948)].
The following question arises from that fact: When does the alderman's office become vacant?
The Greer Court, citing two earlier Tennessee cases said, "A vacancy in office for any of the causes enumerated in the statutes, occurs usually at the time of the happening of the event whose occurrence is by the statute the cause of the vacancy, and no judicial determination that a vacancy has occurred is necessary." [at 336] The Tennessee constitutional provision and statute at issue there, particularly the former, provided for an automatic vacation of office. On the other hand, in Brimer the Jefferson City Charter contained what the Court concluded were continuing residency requirements for the mayor and aldermen, but "no provisions to the effect that by his removal to another ward he thereby vacates his office." That fact was the basis of the Court's next declaration that, "We think until his office is adjudged to be vacated by a competent tribunal his official acts are binding on the municipality as a defacto officer." The "competent tribunal" of which the Court spoke appears to be the board of mayor and alderman. Thus, we have the question of whether the office of the aldermen in question is automatically vacated, or whether the board of mayor and aldermen has to declare it vacant.
In my opinion, Greer governs the answer because under the Section 4 of the City Charter the vacancy more or less appears to occur at the time the officeholder becomes a non-resident. It says that upon the death, removal or resignation of certain officers, including aldermen, "the remaining members of the Board of Mayor and Aldermen at a regular session thereof shall have the power to fill such vacancy for the unexpired term." That section does not give the board the power to declare the office vacant, only to fill the vacancy.
However, the question of whether the office of the alderman in question is automatically vacated or whether the board of mayor and alderman has to declare it vacant may be a minor point because two things can happen if you announce to the board that the office is vacant. The board may not want to recognize that the office of alderman is vacant and refuse to fill the vacancy, or the alderman in question may not want to voluntarily surrender his office. In the first case someone would have to file a quo warranto action challenging the alderman's right to hold office. In the second case, the alderman in question would have to challenge his "removal." From a practical standpoint, it would have been better for someone to have challenged the alderman's right to run for office before the election.
Incidently, under Section 4 of the charter only residents of the city are entitled to vote in city elections; therefore, the alderman in question is not even entitled to vote in elections of the city in which he claims the office of alderman.
Sidney D. Hemsley
Senior Law Consultant