|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: July 26, 2001
Your precise question is this: What does the City need to do to restrict the election of aldermen required under the charter to be elected from wards to the voters within the boundaries of the wards? Your e-mail indicates that in practice, the elections for all the aldermen are at large elections.
The answer is technically nothing. In my opinion, under the city’s charter, in spite of its ambiguity on that point, the election of all ten aldermen is by wards. However, it would be wise for the city to expressly clear up the ambiguity in its charter on that point. In the meantime, it should notify the county election commission that the election of aldermen is by wards by the voters of those wards. If the county election commission doubts on that point, it may want to ask the opinion of the Division of Elections in the Office of the Tennessee Secretary of State, and provide it with a copy of this memorandum.
Article I, Section 3, of the City Charter provides that “Wards may be created by ordinance.” The second paragraph of the same section says that,
The Board of Mayor and Aldermen may divide the town into wards and define their boundaries by ordinance, and may from time to time alter same; provided that the number of wards shall not be greater nor less than five (5).
The “may divide the town into wards” is misplaced at least with respect to five aldermen because Article II, Section 1, of the City Charter provides that:
On the first Saturday in October of 1978, an election shall be held in the Town for the election of five (5) aldermen, one (1) from each ward, whose term of office shall be three (3) years. On the first Saturday in October of 1979, an election shall be held in the Town for the election of five (5) aldermen whose terms of office shall be four (4) years. The successors of the aldermen elected in 1978 shall be elected on the first Saturday in October of 1981 for a four-year term, and thereafter the terms of all aldermen shall be four (4) years, half to be elected on alternate odd-numbered years.
Finally, Article III, Section 1, provides that “The legislative powers of the Town shall be vested in the Board of Mayor and Aldermen, consisting of a mayor and ten (10) aldermen, to be elected as provided in Article II herein.”
Obviously, Article II, Section 1, expressly requires the election of the five aldermen elected in 1978 to be elected “one from each ward.” There is no such express provision with respect to the five aldermen elected in 1979. Indeed, there is no express language anywhere else in the charter bearing on the questions of:
1. Whether five of the aldermen are elected from wards and five at large, or whether all ten of the aldermen are elected from wards.
2. Whether the aldermen elected from wards (whether five or all ten of them) are elected only by the voters of their wards or by the voters of the entire city.
But other language in the charter strongly implies that all ten of the aldermen are elected from wards. Article II, Section 4, provides that every officer of the city must have been a resident of the city not less than one year prior to his or her election and must continue to be a resident of the city during his or her term, and that “The aldermen shall reside in their respective wards for not less than sixty (60) days preceding their election, and shall continue to reside therein during their term of office.” The same section further says that, “Any officer moving from such officer’s ward, in the case of an alderman...during the term of office shall be presumed to have vacated the office, and it shall be declared vacant, and filled as provided in Article II, Section 7.”
It is true that those provisions pertaining to wards could be read to apply only to those five aldermen who are expressly elected from wards under Article II, Section 1. But my review of the charter from its inception in Private Acts 1911, Chapter 482, with respect to elections, does not support that reading. From 1911 until 1978, through changes in the number of aldermen, all the aldermen were expressly to be elected from wards. The present express language that five of them are to be elected from wards makes its appearance in Private Acts 1978, Chapter 217, which is also silent on the question of whether the remaining five aldermen were to be elected by wards or at large. However, what did not change with Private Acts 1978, Chapter 217–indeed has not changed from 1911 through the present date–are the other above references in the charter requiring all of the aldermen to be residents of their wards.
Under the rules of statutory construction, when there is an ambiguity in a statute all the statutes pertaining to the subject of that statute should be read together to clear up the ambiguity. In addition, the courts may also consider the old law as an aid to the meaning of the new law. State ex rel. Lockert v. Knott, 631 S.W.2d 124 (Tenn. 1982); Dingman v. Harvell, 814 S.W.2d 362 (Tenn. Ct. App. 1991); Carroum v. Dover Elevator Co., 80 S.W.2d 777 (Tenn. Ct. App. 1990); Hunter v. Harrison, 154 Tenn. 590 (1926).] The charter is certainly ambiguous on the above two questions. Reading all the provisions of the City Charter dealing with election from wards leads me to the conclusion that their very strong implication is that all the aldermen are to be elected from wards. The history of the development of the city’s charter provisions governing elections supports that conclusion.
As far as I can determine, there is only one case in the entire United States where a similarly ambiguous statute on the question of whether public officials were to be elected at large or from wards was at issue. State ex rel. McMillan v. Sadler, 58 P. 284 (1899). That old, but still good, case involved a number of election questions from all over the State of Nevada, but the one pertinent to your City dealt with the election of five council members in Reno. Section 5 of the act incorporating that city, provided that, “at the general election in November, 1898, and at each general election thereafter, there shall be elected one councilman in each ward, who shall be a resident of such ward...” That provision did not answer the question of whether the council members were elected by the voters in the wards or all the voters of the city.
The Nevada Supreme Court, declaring that it was “of one mind” on that question, held that they were elected by the voters in the wards. It pointed to Section 3 of the act, which provided that “the corporate powers of the city shall be vested in a city council, to consist of five members, who shall be actual residents and owners of real estate in the city, who shall be chosen by the qualified electors thereof, provided that no two or more of the five councilmen shall be residents of the same ward.” Standing by itself, said the Court, Section 3, might be read to mean that the councilmen were elected by all the voters of the city, but that reading would have rendered Section 5 surplus. “It is our duty,” said the Court:
to construe laws and give effect to legislative intention. Under well-settled rules of construction (so well-settled as not to require citation of authorities), to the effect that the courts will look into the statutes themselves (the language used by the lawmakers in the statutes), and, in order to give effect to all the provisions of the statutes, will consider the various sections thereof together, the question becomes plain and simple. Under these rules the councilmen of the city of Reno were to be chosen by the electors of the city,–each councilman by the electors of his ward. In other words, Section 3 provides for the election of the city councilmen ofthe city, and section 5 provides for the election of the city councilmen of the city, and section 5 provides for manner of their election, etc. [At 288]
I think the Tennessee courts would reach the same conclusion for similar reasons. Read together, Article III, Section 1, of the City Charter generally provides that the city council members will be elected by the voters of the city, and Article I, Section 3, and Article II, Sections 1, 2, 4, particularly provide that all ten of the individual aldermen will be elected from wards by the voters of their wards.
That result also gives meaning to Article II, Section 4, which does two things:
First, it provides that, “Every officer of the Town” must have been a resident of the town for not less than a year preceding his election and requires him to continue to be a resident during his term of office.
Second, it provides that “The aldermen shall reside in their respective wards for not less than sixty (60) days preceding their election, and shall continue to reside therein during their terms of office. net of the town of his term, which declares that “The aldermen shall reside in their respective wards for not less than sixty (60) days.
Article II, Section 4, speaks of, and applies to, all the city’s officers; it does not distinguish between the five aldermen expressly required by the charter to be elected from wards, and the five aldermen for whom no such express requirement is found in the charter. Any other reading would require this section to shift gears from all the officers with respect to the general residency requirement, to two classes of aldermen with respect to the ward requirement.