Rutherford v. City of Nashville

• Decision Date: 23 February 1935
• Citation: 79 S.W.2d 581
• Parties: RUTHERFORD v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

79 S.W.2d 581

RUTHERFORD v. CITY OF NASHVILLE.

Supreme Court of Tennessee.

February 23, 1935.

COPYRIGHT MATERIAL OMITTED

Appeal from Chancery Court, Davidson County; R. B. C. Howell, Chancellor.

Suit by James W. Rutherford, on behalf of himself and other taxpayers, against the City of Nashville. From an adverse decree, complainant appeals.

Affirmed.

Cornelius, McKinney & Gilbert, of Nashville, for appellant.

J. Washington Moore, Jack Keefe, and Robt. L. Alexander, all of Nashville, for appellee.

EDWARD J. SMITH, Special Justice.

The bill, which was filed by Rutherford as a taxpayer and resident of the city of Nashville on behalf of himself and other taxpayers, who, it was alleged, pay taxes the proceeds of which go into the general fund of the City, sought to enjoin a diversion of such funds for the purpose of putting into effect Ordinance 903, the validity of which was challenged on eleven grounds.

A temporary injunction was prayed and granted, restraining the city from arresting citizens or assessing fines for failure to have a driver's license while operating motor vehicles on the streets and thoroughfares of the city of Nashville.

By its answer, the city specifically denied each of the grounds on which the alleged invalidity of the ordinance was predicated.

On final hearing, on bill and answer, the court below held that the ordinance was valid, and as a denial of injunctive relief was an adjudication on the merits, dismissed the bill. Mengle Box Co. v. Lauderdale County, 144 Tenn. 266, 230 S. W. 963.

As the case does not involve a review or determination of facts, the appellant properly appealed directly to this court. Code, § 10618.

While ten errors formally are assigned, it is stated in the brief of counsel for appellant that four determinative questions are presented for decision: (1) That the ordinance was enacted in violation of charter requirements prescribing the mode of procedure to be pursued by the city council; (2) under guise of being an exercise of the police power, it attempted to levy a privilege tax in violation, both of the statutes of the state, and a charter limitation; (3) if it be considered an attempted exercise of the police power, its provisions, considered separately and together, are so unreasonable, cumbersome, discriminative, and oppressive as to render it invalid; and (4) that it contravenes the public policy of the state of Tennessee.

(1) The ordinance was passed by the city council on third and final reading on April 17, 1934, was approved by the mayor on April 19, 1934, was duly published as required by the charter, and filed with the record clerk of the city.

Admitting these facts, the appellant insists that the third and final reading on April 17, 1934, was invalid because, on that date, and in pursuance of a standing rule of procedure, theretofore adopted by the city council, which allowed any member, voting in the affirmative to move a reconsideration to be acted on at the next regular meeting, Councilman Briley's motion to reconsider was overruled by the presiding officer, and the ordinance passed on third and final reading on April 17, 1934.

While the bill admits that at the next regular meeting, held on May 1, 1934, Councilman Briley's motion to reconsider was overruled, the ordinance passed again on third and final reading, and approved by the mayor on May 2, 1934, it is insisted that the attempted third and final passage on May 1, 1934, was invalid because the ordinance was not then before the council, and on information and belief it is alleged that the apparent approval by the mayor, on May 2, 1934, was a forgery.

In view of the conclusion reached by the court, it is not necessary to consider what happened on May 1 and 2, 1934.

Chapter 125, of the Private Acts of 1923, as amended, is the charter of the city of Nashville.

By section 6 it is, among other things, provided that no bill shall become a law without first having been passed on three several readings by a majority vote, on the third of which readings a majority vote of the whole number of the members of the city council shall be required, and until said bill shall have been signed by the mayor, or become a law without his signature, as provided by the charter.

It is settled that charter requirements, prescribing the method to be pursued by a municipal body, are mandatory, and unless complied with, any attempted exercise of power is void. Memphis Street Ry. Co. v. Rapid Transit Co. et al., 138 Tenn. 594, 198 S. W. 890; State ex rel. v. City of Nashville, 166 Tenn. 191, 60 S.W.(2d) 161; 2 Dillon on Municipal Corporations (5th Ed.) § 576.

Tested by this rule, the charter requirements were complied with when the ordinance passed third and final reading on April 17, 1934, and was approved by the mayor on April 19, 1934.

Section 7 provides that the city council may determine its own rules of proceeding, and that its presiding officer shall have the power to enforce such rules as may be adopted by it.

The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure, adopted for the orderly conduct of business, and as security against hasty action. Bennett v. New Bedford, 110 Mass. 433; Holt v. Somerville, 127 Mass. 408, 411; City of Sedalia v. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany, 23 Wend. (N. Y.) 277, 280; Wheelock v. City of Lowell, 196 Mass. 220, 230, 81 N. E. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888; McGraw v. Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell v. Meacham Contracting Co., 145 Ky. 181, 186, 140 S. W. 159, Ann. Cas. 1913B, 802.

It follows that the ordinance was duly and legally enacted on April 17, 1934, in accordance with the charter provisions, and that the alleged violation of the rule regarding reconsideration did not affect its validity.

(2) Power to pass an ordinance to protect its citizens from injury and death, caused by intemperate, inexperienced, rash, and reckless drivers of motor vehicles on its streets and thoroughfares plainly is conferred by section 12, which provides that the mayor and city council of the city of Nashville shall have power by ordinance: (12) To license, tax, and regulate automobiles, automobile trucks, etc., and (40) to pass all ordinances necessary for the health, convenience, safety, and general welfare of the inhabitants of the city, and to carry out the full intent, corporate purpose, and meaning of the charter, as fully as if specifically authorized.

For the declared purpose of affording protection and security to its citizens, the city council enacted the challenged ordinance, which, on its face, shows that it was intended to subserve such a purpose, and the agencies and means provided for its enforcement reasonably are conducive to the declared end.

By its provisions, all drivers of motor vehicles on the streets and thoroughfares of the city are required on or before, June 1, 1934, to obtain a form of application from the city comptroller, and answer numerous questions printed thereon, concerning their age, temperate habits, knowledge of the traffic laws of the state of Tennessee, and the traffic ordinances of the city of Nashville, demonstrate their ability, if called on, to drive a motor vehicle in crowded traffic, or properly to turn corners, give a complete record of all accidents they have suffered, the number of times arrested within the past two years for the violation of any ordinance, and the disposition of each and every case.

If applicants satisfactorily stand the examination, it is made the duty of the city comptroller to issue to them a card of identification, to be kept in possession of the driver for the issuance of which a fee of 50 cents biennially is exacted.

It is provided that in cases of violations of the traffic laws, either of the state or of the city, the failure of drivers to have such cards in their possession will subject them to arrest and, if found guilty, to penalties to be imposed by the judge of the city court. It is made the duty of such judge, acting as supervisor of drivers' licenses, to indorse on the license card the nature of the violation, the amount of the fine imposed, and the date thereof, and in cases of revocation of the license, for a period not to exceed six months, and solely for the reasons stated in section 6, to notify the city...