June 30, 2008
Dear Mayor:
You have the following question: Where a private act provided that it be locally approved
by a two-thirds vote of the entire board of mayor and aldermen, did it pass when there were two
aye votes cast for its passage, one nay vote was cast against its passage, and one alderman
abstained from voting.
The answer is that Article XI, Section 9, of the Tennessee Constitution requires a twothirds vote of the “local legislative body” to locally approve private acts. For that reason, as that
provision has been interpreted by the Tennessee Supreme Court, the act was not locally approved
by the necessary two-thirds vote. A two-thirds vote would have required an affirmative vote of
three members of the Board of Aldermen.
Let me emphasize that Article XI, Section 9 of the Tennessee Constitution actually calls
for the approval of local acts by a two thirds vote of the “local legislative body,” not a two-thirds
vote of the board of mayor and aldermen. That distinction may be important in cases where the
mayor is clearly not a member of the city’s legislative body, or in cases where the mayor may be
a member of the city’s legislative body, but only for limited purposes. We shall see below in
State v. Torrence, that the Nashville Mayor was not a member of the Nashville City Council.
With respect to the City, under Article 4, Section 7 and Article 7, Section 1 of its charter, the
mayor can vote only in cases of ties, and under Article 7, Section 1, he does not even count
towards the calculation of the presence of a quorum. However, we need not deal with the
question of whether his limited legislative powers put him the same or similar position as was the
Mayor of Nashville in State v. Torrence, because the distribution of votes on the City’s private
act indicates that there was no tie vote for him to break.
But I will note, parenthetically, that if the Mayor is considered a member of the “local
legislative body” for the purposes of Article 11, Section 9, and if his membership increased the
City’s governing body from four to five for that purpose, and if the mayor could in that capacity
vote even if there were no tie vote, a two-thirds vote of the city’s “local legislative body” would
be four votes. (3.33 votes, which under the law governing factional votes must be rounded up to
four).
Application of Article 11, Section 9 of the Tennessee Constitution
The pertinent provision of Article XI, Section 9 of the Tennessee Constitution provides
that:
June 30, 2008
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... any act of the General Assembly private or local in form or
effect applicable to a particular county or municipality either in its
governmental or proprietary capacity shall be void and of no effect
unless the act by its terms either requires the approval by a twothirds vote of the local legislative body of the municipality or
county, or requires approval in an election by a majority vote of
those voting in said election in the municipality or county effected.
How is the two-thirds vote of the “local legislative body” calculated?
It is the law in Tennessee that where the charter or the general law contains no provisions
for how many votes are required to pass measures, the common law prevails. Under the common
law, measures pass (or fail) by a majority of those present and voting, assuming the existence of a
quorum. [See Collins v. Janey, 147 Tenn. 477, 249 S.W.801 (1923).] There are no provisions in
the City Charter that provide for how many votes are required to pass measures. For that reason,
the common law generally applies to the question of how many votes are required to pass
measures by the Board of Mayor and Aldermen. However, the Tennessee Supreme Court case of
State v. Torrence, 310 S.W.2d 425 (1958) declared that a statute or charter provision, and in that
case a constitutional provision, that provides for how many votes are required to pass measures
supersedes the common law rule. (That was not at all a revolutionary ruling; a legion of cases in
every jurisdiction holds that a statute on an issue supersedes the common law on the same issue,
in a variety of circumstances). As indicated above, Section 9 of the Tennessee Constitution
provides that a two-thirds vote of the “local legislative body” is required for the local approval of
private acts. .
State v. Torrence also analyzed the question of what constitutes a “two-thirds vote of the
local legislative body of the municipality” [Nashville] under Article 11, Section 9. In that case
the question was whether the two-thirds vote meant a two-thirds vote of the entire Nashville City
Council, or a two-thirds vote of the members of the Nashville City Council present and voting.
The answer, held the Court, was a two-thirds vote of the entire city council (of which the mayor
was not a part). But the Nashville City Charter in that case expressly provided that the “corporate
authority of the city was to be vested in a Mayor, who shall be the chief executive officer; a City
Council, which shall be the legislative body...,” [Article 5], and that “the legislative power of said
corporation...shall be vested in a legislative body which shall be designated as the City Council.”
[Article 10] In addition, in the Court’s own words, the Nashville City Charter provided that,
“[T]he City Council of Nashville consists of twenty-one members and that a majority vote of the
City Council is defined as eleven affirmative votes and a two-thirds vote of the Council is
defined in the Charter as fourteen affirmative votes.” [At 426.]
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Counting abstentions
The question of how abstentions are counted for the purpose of determining how many
votes constituted a two-thirds vote for the local approval of a private act was also an issue in
State v. Torrence, above. There the Court was faced with the question of how many votes of the
Nashville City Council were required to make up the two-thirds vote of the entire city council
required by Article 11, Section 9, of the Tennessee Constitution, for the local approval of a
private act. Applying a “man in the street” standard, the court scoffed at the proposition that
abstentions were counted as votes:
.... What person who votes, unless he has certain technical
knowledge, would ever arrive at the idea that two-thirds of the
‘local legislative body’ meant that if they were present and did not
vote at all that they would be considered to have voted? We think
that question answers itself because as we see it no one would
hardly reach such a conclusion. [At 428] [Emphasis is mine.]
State v. Torrence is also consistent with Robert’s Rules of Order, Newly Revised
(RRONR) on the counting of abstentions. Most cities have adopted RRONR, to govern the
conduct of their business “in all cases to which they are applicable and in which they are not
inconsistent with special rules in the municipal charter or adopted by the council and set out in
this code.” In Section 1-103 of the Municipal Code, the City has done the same thing. RRONR,
Section 4, declares that:
“The chair should not ask for abstentions in taking a vote, since the
number of members who respond to such a call are meaningless.
To abstain means not to vote at all, and a member who makes no
response if abstentions’ are called for abstains just as much as one
who responds to that effect.”
Abstentions under Torrence (and under RRONR) simply do not count as votes for the
simple reason they are not votes. For that reason, where the vote on the private act broke down to
two aye votes, one nay vote, and one abstention, the abstention cannot operate to make the vote a
tie vote.
I hope this letter answers your question. If it does not, let me know and we will have
another go at it.
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Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/