MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
July 26, 2001
RE:
Elections
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 fouryear 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 217Bindeed
has not changed from 1911 through the present dateBare 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,Beach 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 AThe 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 AThe 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.