August 19, 2003
Re: Election of Aldermen
Dear Madam:
You asked for an opinion on whether the Aldermen from your Town should be elected by
the voters of the wards they represent or whether they are elected at large but have a ward
residence requirement. There is nothing in the present or previous charters that indicates that
there is simply a ward residence requirement but that Aldermen should be elected by the voters
of the entire Town. It is almost certain that if the General Assembly had intended this method of
election it would have said so. Rather, the clear implication of all Charter language is that the
election will be by the voters of the wards the Aldermen represent.
You also asked how to get back to this method of election if indeed this should be the
method. I think just a statement of intent by the Board of Mayor and Aldermen would be
sufficient since this is what the Charter seems to require anyway. This could take the form of a
resolution addressed to the election commission or an ordinance with a copy to the election
commission. Also it might be a good idea to clarify this one way or the other by Charter
amendment passed by next year’s session of the General Assembly.
You also inquired about the status of Aldermen elected at large with a ward residence
requirement. Of course it can be argued that the Aldermen elected at large have been validly
elected and are therefore de jure as well as de facto officers. Assuming for argument’s sake that
they were elected under an invalid method, however, still leaves them as de facto Aldermen and
does not invalidate their actions as Aldermen. Technical problems with the right to hold an office
have no effect on the validity of the official acts of the person holding the office. State v. Kelly,
697 S.W.2d 355 (Tenn. Cr. App. 1985). See also State ex rel. Inman v. Brock, 622 S.W.2d 36
(Tenn. 1981) and Country Clubs, Inc. v. City of Knoxville, 395 S.W.2d 789 (Tenn. 1965).
The cardinal rule of statutory construction is to give effect to the legislative intent, which
is to be derived generally from the ordinary meaning of the words used. Boarman v. Jaynes, 109
S.W.3d 286 (Tenn. 2003). In situations such as the one here, previous versions of the Charter can
also be looked at to help determine what the wording of the present Charter means. Maney v.
State, 74 Tenn. 218 (1880). I have found nothing in the present wording that provides for
elections at large but with a ward residence requirement. I also found nothing in previous charters
or amendments to the present Charter that would mandate that the method of election should
have changed from what it was when the Town was first incorporated.
The present Charter is Chapter No. 40, Private Acts of 1997. This Act incorporates
amendments that were made to the previous Charter, which was Chapter No. 482, Private Acts of
1911. Article I, ' 3 of the present Charter says:
Wards may be created by ordinance. 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 ordinary result of creating wards would be that the Aldermen would be elected from these
wards by voters in the wards. To require that the wards serve merely as a way of restricting the
residence of Aldermen would require wording that does not appear in the Charter. Article II, ' 1
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 term of office shall be four (4) years.
This section goes on to provide for a four (4) year term for succeeding Aldermen. This provision
was included in the previous Charter by Chapter No. 217, Private Acts of 1978. The purpose of
this amendment was to lengthen the term of office from two (2) years to four (4) years, no doubt
to save the Town money in holding elections. The Town at this time had ten (10) Aldermen, two
(2) from each ward. The language “one (1) from each ward” in reference to the 1978 election
buttresses the interpretation that the Aldermen are to be elected from wards. But why is this
language left out with reference to the 1979 election? I believe it was because the drafter, and
therefore the General Assembly, felt this language was unnecessary with reference to that
election. Since there were two (2) Aldermen from each ward and the 1978 election applied to
“one (1) from each ward,” that ipso facto left only one (1) from each ward to be dealt with in the
1979 election. So it appears that the purpose of the 1978 Act was only to lengthen the term of
office and not to change the method of election.
Article II, ' 4 of the present Charter also indicates that Aldermen are to be elected from
wards. It provides:
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.
***
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 . ...
Chapter No. 63, Private Acts of 1963, increased the number of wards from four (4) to five (5)
and the number of Aldermen from eight (8) to ten (10). This Act includes language that “Mr. A.
and Mr. B shall serve as Aldermen for the Fifth Ward” until they are replaced by election. All
this language indicates a close connection between the Aldermen and the wards and lends
support to the idea that they should be elected from the wards.
Before the Town was incorporated under Chapter No. 482, Private Acts of 1911, it was
incorporated under Chapter No. 425, Private Acts of 1909. Article I, ' 3 of this Act says the town
“shall be divided into four wards as heretofore established by the charter, laws, and ordinances .
...” Article II, ' 3 provides that:
[O]n the 1st Saturday in October, 1909, an election shall be held in the town for the
election of four aldermen, one alderman for each ward, to succeed the present four
aldermen whose terms of office expire under the charter and laws heretofore
incorporating the town ... .
Article II, '' 2 and 3 also refer to “one alderman from each ward.” The 1911 Act, which served
as the basic charter until 1997, carried forward this language but referred to elections to be held
in 1911 and 1912. This language is strikingly similar to language in the present Charter, which
should be given the same construction now as it was then.
Article VII, ' 5 of the 1909 Act indicates the Town was incorporated under the general
law until the 1909 private act was passed. This means the Town was incorporated under what
became the general law Mayor-Aldermanic Charter. This general law charter was derived mainly
from Chapter No. 92 of the Public Acts of 1875. This and other acts comprising this charter, as
codified in Shannon’s Annotated Code of Tennessee, also provided for the division of
municipalities into wards and the election of aldermen “for each ward.” See Shannon’s
Annotated Code of Tennessee, '' 1908, 1942, 1944, 1958, and 1978. This charter, as codified
today in Tennessee Code Annotated, ' 6-1-101, et seq., continues to provide for wards and for
election of aldermen from those wards. The only way for a municipality incorporated under that
charter to have what is in effect an at large election of aldermen is if the municipality has only
one (1) ward.
The ordinary meaning of the language requiring an election of aldermen “from each
ward” or “for each ward” is that the Alderman would be elected by the voters of that particular
ward rather than at large. This is particularly so since there is no provision in the Town’s present
or past charters for the at large election of Aldermen merely based upon residence in the ward.
I hope this is helpful. If I may be of further assistance, please contact me.
Sincerely,
Dennis Huffer
Legal Consultant