|Legal Opinion: |
Text of Document: January 24, 1994
You have the following question: Is a certain alderman qualified to remain a member of the board of mayor and aldermen? Under the facts related to me by city officials and the information reflected in the a local newspaper, he married a woman from another city on New Year's Eve, and subsequently bought a house in the other city in which he lives with his new wife. He, however, claims that his primary residence is at in your City, the place he lived before he married and moved to the other City, and which he apparently still rents. According to the newspaper article, he equates his ownership of his residential property in the other city with his ownership of other land in other counties, and declares that "Where I lay my head down is nobody's business but mine." He is clearly wrong on that point; it is definitely the law's business where he lays his head with respect to his continuing qualification for municipal office.
It is my opinion that the residency qualification for holding the office of aldermen in the City is a continuing requirement, and that under the facts related to me this person probably no longer meets that requirement. Finally, the city's charter mandates the board of mayor and aldermen to declare his office vacant.
Pertinent City Charter Provisions
Section 5 of the City Charter provides that individuals "who shall reside in" [Wards I, II, and III] shall be aldermen from those wards. Section 8 of the charter declares that:
The board of mayor and aldermen shall declare that a vacancy exists if the mayor or an aldermen resigns, dies, moves his residence from the city, moves residence from the ward from which such person was elected... [Emphasis is mine]
Such provisions are commonly called continuing residency requirements. That is, a person elected to office has to meet the residency requirements as a condition of taking office, and has to continue to meet them while holding office. Under such provisions, it matters a great deal where a person hangs his hat.
Is the Alderman a "Resident" of the City for the Purpose of the City Charter's Continuing Residency Requirement?
The law controlling that question appears to be Bailey v. Greer, 468 S.W.2d 327 (1971). There two justices of the peace were trying to hold on to their offices against several challenges by other members of the old quarterly county court. Among the challenges was that the two justices of the peace had removed from the district in which they had been elected. One of justices of the peace, Squire Bailey, defended himself against that challenge claiming that even though he had married and moved to another district he had not removed himself from the district in which he had been elected. The Court rejected his defense.
At issue in that case was the meaning and application of Article 6, Section 15 of the Tennessee Constitution [now repealed] which provided that, "Upon the removal of [the Justice of the Peace or Constable] from the district in which he was elected, his office shall become vacant from the time of such removal," and Tennessee Code Annotated, section 19-112 [now repealed] which provided that, "Justices of the Peace shall vacate their offices by removing from the districts in which they were elected."
Whether the two justices of the peace had removed from the districts in which they were elected was a question of fact, said the Court. Determining that there was no law in Tennessee specifically governing the meaning of the term "removal" from the district under Article 6, Section 15 of the Tennessee Constitution and Tennessee Code Annotated, section 19-112, the Court reviewed the case law in which other jurisdictions had interpreted the term. It concluded that "removal" meant a "change of place, especially of habitation." [at 335]
Turning to Squire Bailey, what the Court said about the facts and law that applied to him is almost exactly on point in the City's case and is worth quoting in full:
The evidence shows that from the time he was elected in August, 1966, until some time in 1967, Squire Bailey lived on a tract of land which he owned in the Sixth District in a community known as 'Daus'; that in 1967 he married and that he and his wife Maebell Bailey, purchased a residence in the Fourth Civil District about one mile north of Dunlap, the County Seat. This property was conveyed to them as tenants by the entireties on June 6, 1967, and since that time they have lived together as husband and wife on this property. [Emphasis is mine]
However, he continued to vote at Daus, to receive his mail there, and to do some farming and gardening on his property there and left his furniture and some of his clothing in the house at Daus and occasionally spent a night there. He had steady employment at a factory in Dunlap and for about three months he allowed a Mrs. Paterson and her family, who had lost their home by fire, to live in his house at Daus.
On cross examination he testified as follows:
"Q: Where did you take your meals and sleep during that time?
A: At home.
Q. That's right, at home here in Dunlap that you referred to just north of town, that's right, isn't it, and you've considered that your home and everybody in the county knows it, isn't that true?
A: No, it isn't.
Q: I know you maintain and everyone knows you maintain another home, all I'm saying is a home where a man lives and that's where you nodded your head northward on the stand just now, didn't you?
A: I guess so."
During the time in question he told several people he lived in Dunlap.
In her testimony, Mrs. Bailey referred to the place in the Fourth District near Dunlap as 'home' and referred to the place at Daus as "the other home." [at 334]
On the basis of those facts, even over Squire Bailey's testimony, the Court held that Squire Bailey had "removed" himself from the Sixth District from which he was elected, that he had changed his residence to a place outside the Sixth District, and that for those reasons he had vacated his office as justice of the peace. Said the Court:
We are convinced that under Article 6, Section 15 of the Constitution, T.C.A. Section 19-112 and 8-2891, a Justice of the Peace is required to reside in the district wherein he is elected in order to remain in office and upon his changing his place of residence to a place outside that District, the office to which he was elected thereupon becomes vacated and he is no longer entitled to perform the functions of such office. [at 336]
If the Alderman was elected as the alderman of Ward III on the basis of his residence in that ward, married, and bought a house in the other City where he lives with his new wife, it would stretch Greer beyond the breaking point to accept an argument that his "place of habitation" is in your City. I think that would be true even if the parties did not purchase the house as tenants by the entireties. In Greer Squire Bailey even owned a house in Daus, received his mail there, kept furniture there, voted there, and occasionally spent a night there. All of that did not make him a resident of Daus for the purpose of meeting the continuing residential requirement to remain a justice of the peace in that district; he had still changed his "place of habitation." He had married, bought a house north of Dunlap in another civil district, and had moved there. It was where he slept and took his meals.
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] However, the Tennessee constitutional provision and statute at issue there, particularly the former, provided for an automatic vacation of office. In Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (1948) the Jefferson City Charter contained some continuing residency requirements for the mayor and aldermen, but no provisions that if the aldermen removed from their wards they vacated their office. Under those facts, said the Court, "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."
Section 8 of the City Charter is somewhat in between: the charter prescribes continuing residency requirements for the mayor and aldermen and mandates the board of mayor and aldermen to declare vacant the office of a mayor or aldermen who does not meet those requirements. But Greer's statement that the vacancy in office "occurs usually at the happening of the event whose occurrence is by the statute the cause of the vacancy..." still applies to the City. The happening of the event is the declaration of the vacancy by the board of mayor and aldermen by the statute--Section 8 of the City Charter.
Of course, the Alderman can judicially contest the declaration of vacancy. Because under Greer the question of his "place of habitation" is a fact question, he can argue whatever facts he can muster to support his argument that the City is his place of habitation. It is my opinion that his argument would not likely succeed.
Sidney D. Hemsley
Senior Law Consultant