State ex rel. Kercheval v. Mayor & City Council of Nashville

• Decision Date: 31 December 1885
• Citation: 83 Tenn. 697
• Parties: THE STATE ex rel. T. A. KERCHEVAL v. THE MAYOR AND CITY COUNCIL OF NASHVILLE et al.
• Court: Tennessee Supreme Court

83 Tenn. 697

THE STATE ex rel. T. A. KERCHEVAL

v.THE MAYOR AND CITY COUNCIL OF NASHVILLE et al.

Supreme Court of Tennessee.

December Term, 1885.

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson County. FRANK T. REID, J.

JOHN RUHM and SAMUEL WATSON for Kercheval.

J. C. BRADFORD and A. S. COLYAR for Nashville.

COOPER, Sp. J., delivered the opinion of the court.

The relator in this case, T. A. Kercheval, is the present mayor of the city of Nashville. He seeks, by mandamus, to compel the city council to place the amount of compensation, or salary, claimed by him as mayor for 1886, in the budget for the expenses of the city for said year; and also to compel the comptroller of the city treasury to place his name on the list of the city creditors, and to issue warrants on the city treasurer for the amounts claimed to be due him as mayor for October and November, 1885.

His Honor, the circuit judge, was of opinion that the relator was entitled to the relief sought, and directed peremptory writs of mandamus to be issued accordingly. From this judgment defendants, or some of them, have prosecuted an appeal in error to this court.

The record indicates that the relator was elected mayor of Nashville on October 8, 1885, and inducted into office on the 13th day of the same month. It was suggested in argument, by defendant's counsel, that the proceedings in the court below were in some respects irregular. But it is sufficient to say, as to this, that the course pursued in that court was in substantial compliance with the practice approved or suggested, in the case of The State ex rel., v. Board of Inspectors, 6 Lea, 18.

The real grounds of defense relied upon in the demurrer and answer, are these: I. That the city council, by ordinance adopted in May, 1885, declared that upon the expiration of the term of office of the then mayor, that the mayor of the city should not receive any compensation, that this ordinance is valid, and therefore the present incumbent is not entitled to any compensation. 2. That if this ordinance is for any reason invalid, still the relator is estopped from claiming and receiving any compensation, because in his canvass for said office he declared that if elected he would not claim any compensation for his services as mayor. The determination of these questions decides the controversy. As to the first of these questions, on March 21, 1883, the Legislature of the State passed an act (the same being approved March 26, 1883), which repealed the charter of the city of Nashville, said act taking effect on the second Thursday of October, 1883. On the same day the Legislature passed another act, (which was approved March 27, 1883), providing “for the creation and organization and defining the powers of municipal corporations embracing territories of cities having a population of 36,000 and upward, according to the federal census of 1880, whose charters have been abolished.” This act also took effect on the second Thursday of October, 1883, and under it the present city government of Nashville is organized, and had its birth at an election held on the day the act went into effect. An examination of the provisions of this act is necessary to the determination of the validity of the ordinance already referred to. Indeed, an inspection of the entire act is needful to obtain a just comprehension of its intention, spirit and purposes. It has been argued for the defendants that this act is a general law, and that it should not be tested by the same rules of construction that are applied to special charters. To this view we cannot accede. While the act is, in one sense, a general law, it is, for all practical purposes, the charter of Nashville, and is so designated in the city code recently compiled. It is the grant of power. From it the city government derives its life and vigor; and to its restrictions and limitations the municipality is subject. Under this grant of authority the agents and officials of the city have no more power than they would have if it were a special charter instead of the general law, and as to the rules of construction of special charters there has been no contention in the argument.

By the terms of this charter act a city council of ten members is provided for, and the powers of this council are largely, if not chiefly, legislative in their character. It also provides for a mayor, whose duties are chiefly, but not wholly, executive. The act further provides for the creation of a board of public works and affairs of three members, and the duties of this board may be said to be chiefly administrative. So the act fairly divides the city government into three departments, and these may be conveniently classified as the legislative, executive and administrative departments, and in the rights and duties of each are specifically pointed out.

The judicial department of the act treats as a subsidiary matter.

The system of city government devised by this charter act seems to have been thoroughly considered, and there appears to be no good reason why, in practice, it should not prove to be a successful form of government. There are thus three departments, all important and each having its sphere of action, and the checks and balances provided for are well suited to prevent mal-administration. As said, the powers of each department are designated, and one is not allowed to encroach upon the domain of the co-ordinate departments. Such is the general scope and purpose of the charter act, and the intention of the Legislature, as to the powers of the co-ordinate departments, seems to be clearly manifested.

Sections three to eight, both inclusive, relate to the city council, and the last sentence of section eight of said charter act, is this: “Councilmen shall receive no compensation.” Here it is clearly expressed that the city's officers in this department of the government were to serve without pay. Whether this provision is a wise one experience alone will demonstrate. But the duties of the council, while important, are not necessarily onerous, after the government is once fully organized and a system of ordinances adopted. A majority make a quorum for business, and hence, by arrangement, each councilman can be absent from four-tenths of the meetings of the council if he so desires.

The ninth section enumerates many of the duties of the mayor, and near the end of that section occurs this clause: “The compensation of the mayor shall be $2,400 per annum, and may be changed by ordinance, but not during his term of office.” The twenty-sixth and twenty-seventh sections of said act provide for the election of the board of public works and affairs by the city council, their qualification, etc., and the twenty-eighth section, is this: “That the members of said board of public works and affairs shall devote their time and attention to the duties of their office, and shall not engage actively in any other business. The compensation of said board of...