American Chariot v. City of Memphis

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief June 24, 2004

AMERICAN CHARIOT, ET AL. v. CITY OF MEMPHIS, TENNESSEE,
ET AL.

Direct Appeal from the Chancery Court for Shelby County
No. CH-02-1350-3 D. J. Alissandratos, Chancellor

No. W2004-00014-COA-R3-CV - Filed August 19, 2004

Plaintiffs, horse-drawn carriage operators, filed a declaratory judgment action challenging the
constitutionality of a provision of one section of an ordinance adopted by the Memphis City Council.
The trial court elided the provision as an unlawful delegation of the City’s police power and enforced
the remainder of the ordinance. Plaintiffs appeal, asserting the trial court erred in its application of
the doctrine of elision. Defendants cross-appeal, asserting the trial court erred by finding the elided
portion unconstitutional. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P. J., W.S.,
and HOLLY M. KIRBY , J., joined.

Dan M. Norwood, Memphis, Tennessee, for the appellants, American Chariot; Memphis Carriage;
Inc.; Dancing Horse Carriages, Inc.; Uptown Carriage Tours; and Downtown Carriage Tours.

Allan J. Wade and Lori Hackleman Patterson, Memphis, Tennessee, for the appellees, City of
Memphis, Tennessee; the Memphis City Council; Willie Herenton, Mayor of the City of Memphis,
Tennessee; Richard Merrill, City Traffic Engineer; and Walter Crews, Chief of Police.

OPINION

American Chariot; Memphis Carriage, Inc.; Dancing Horse Carriages, Inc,; Uptown Carriage
Tours; and Downtown Carriage Tours (“Plaintiffs”) operate horse-drawn carriages in the city of
Memphis, Tennessee. Pursuant to its police power, the City of Memphis regulates the operation of
the carriages. Operations are regulated by Section 39-71, et seq., of the Code of Ordinances (“the
City Code”). In May 2002, the Memphis City Council (“the Council”) approved Ordinance No.
4941 (“the Ordinance”) which, amended, inter alia, Section 39-119(a) (“the Section”) of the City
Code. The Section provided:
 By amending Section 39-119(a) to read as follows:

Private or other vehicles for hire shall not at any time occupy the space upon the
streets that have been established as horse drawn carriage stands.

From and after July 21, 2002, said horse drawn carriage stands shall
at all times be restricted to a minimum distance of one hundred (100)
feet from the threshold of any establishment or enterprise whose main
business is the serving of restaurant clientele or food serving
processes, unless said restaurant owner gives his consent that a horse
drawn carriage may be located within the one hundred (100) feet
minimum distance from its threshold, and all written consents to go
to the City’s department of engineering.

In July 2002, Plaintiffs filed a complaint for declaratory judgment in the Shelby County
Chancery Court against the City of Memphis; the Memphis City Council; Willie Herenton, Mayor;
Richard Merrill, City Traffic Engineer; and Walter Crews, Chief of Police (collectively, “the City”).
In their complaint, Plaintiffs challenged the constitutionality of this Section and sought an injunction
against its enforcement. Plaintiffs asserted that the action taken by the City Council to amend
Section 39-119(a) is arbitrary, capricious and contrary to law and, if enforced, would cause
immediate and irreparable harm to their businesses. They further asserted that the Section
discriminates between classes of businesses without any legitimate basis, and is an unlawful restraint
of trade in violation of the Fourteenth Amendment to the Constitution of the United States and in
violation of the Constitution of the State of Tennessee. Plaintiffs also complained that the portion
of the Section which waives the distance requirement where a “restaurant owner gives his consent
that a horse drawn carriage may be located within the one hundred (100) feet minimum distance
from its threshold, and all written consents to go to the City’s department of engineering”
(hereinafter “the consent provision”) unlawfully delegates the police power of the City to individual
restaurant owners.

On August 15, 2002, the trial court granted Plaintiffs’ application for temporary injunction
and enjoined the City from taking any action to implement or enforce the Section. Following a
hearing on the merits, the trial court entered its final judgment in October 2003. The trial court
denied Plaintiffs’ application for permanent injunction but determined the consent provision was an
unlawful delegation of legislative and/or police power. The trial court determined the Section was
not unconstitutional absent the consent provision. Accordingly, the trial court elided the consent
portion and enforced the remainder of the Section, thereby restricting horse-drawn carriage stands
to a minimum distance of 100 feet from the threshold of a restaurant or food serving process.
Plaintiffs filed their notice of appeal to this Court on November 17, 2003. We affirm.

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 Issues Presented

On appeal, Plaintiffs contend the trial court erred in applying the doctrine of elision to elide
the unconstitutional consent provision and in enforcing the remainder of the Section as constitutional
and effective. The City raises the issue of whether the trial court erred in ruling that the consent
provision was an improper delegation of the City’s legislative or police power and, accordingly, in
eliding that portion. The City argues, in the alternative, that if the consent provision is an improper
delegation of authority, the trial court properly applied the doctrine of elision.

Standard of Review

We review a trial court’s findings of fact de novo upon the record, accompanied by a
presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. 13(d). Our review of a trial court’s determinations on questions of law, however, is de novo, with
no presumption of correctness. Gonzalez v. State Dep’t of Children’s Servs., 136 S.W.3d 613, 616
(Tenn. 2004).

Analysis

Plaintiffs assert that the unlawful consent provision was an integral and necessary part of the
Section, and that the City Council would not have enacted the Section without it. They submit that
the trial court, therefore, erred by applying the doctrine of elision to strike the consent provision and
enforce the remainder of the Section. Plaintiffs argue that since the unlawful provision cannot be
elided from the Section, the entire Section must be found unconstitutional. Plaintiffs do not raise
the issue of whether the Section is unconstitutional absent the consent provision in this Court.

The City, on the other hand, asserts the consent provision is not an unlawful delegation of
authority. It accordingly agrees with Plaintiffs that the trial court erred by eliding the provision, but
asserts the Section is a constitutional and lawful exercise of the City’s police power in its entirety.
In the alternative, the City submits that if the consent provision is unlawful, the trial court properly
elided it and enforced the remainder of the Section.

We must begin our analysis by determining whether the consent provision, which allows
individual restaurant owners to waive the minimum standing distance requirement, is an unlawful
delegation of the City’s police power. The City acknowledges that it may not delegate its police or
legislative powers to private citizens. However, it relies on Davis v. Blount County Beer Board, 621
S.W.2d 149 (Tenn. 1981) to argue that “to allow an adjoining landowner or those in a shared
locality to consent to an otherwise illegal or improper use is not an invalid delegation of police
powers.”

In Davis v. Blount County, the Tennessee Supreme Court considered the constitutionality of
a county resolution requiring a beer board to deny an otherwise qualified applicant a permit to sell
beer within 300 feet of a residential dwelling where the owner of the residence appeared in person

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before the beer board to object to the issuance of the permit. Davis v. Blount County Beer Bd., 621
S.W.2d at 150. The court held the resolution was not an unlawful delegation of authority as “[t]he
protesting owner . . . exercises no legislative power; he merely protests or fails to protest. He can
neither grant nor deny a permit for the sale of beer.” Id. at 152. The court acknowledged that “the
effect of a protest is to deny the permit,” but concluded “that effect is derived from the legislative
enactment and the ordinance passed pursuant thereto, not from the residence owner.” Id.

In reaching its holding in Davis, the court analyzed several cases from other jurisdictions,
including the leading case of Cusack Company v. Chicago, 242 U.S. 526, 37 S.Ct 190, 61 L.Ed. 472
(1917). In Cusack, the United States Supreme Court upheld an ordinance which required the written
consent of the owners of a majority of the frontage property on both sides of the street before any
billboard above a specified size could be erected in a block in which one-half of the buildings were
used exclusively for residential purposes. Id. at 151-152. The Cusack court stated,

[t]he ordinance in the case at bar absolutely prohibits the erection of any billboards
in the blocks designated, but permits this prohibition to be modified with the consent
of the persons who are to be most affected by such modification . . . [it] permits one
half of the lot owners to remove a restriction from the other property owners. This
is not a delegation of legislative power, but is, as we have seen, a familiar provision
affecting the enforcement of laws and ordinances.

Id. at 152 (quoting Cusack, 37 S.Ct. at 192). The Davis court further noted that the Blount County
resolution “does not unlawfully delegate the power to grant licenses or make arbitrary or unjust
discrimination between applicants; nor is it objectionable as conferring arbitrary powers on property
owners[.]” Id. (quoting 45 Am. Jur. 2d Intoxicating Liquors § 156 (1969) at 599).

The City asserts that the consent provision in the case at bar is not an improper delegation
of authority where it allows those most affected by the Ordinance to waive the prohibition. We
disagree. The Ordinance at bar prohibits horse-drawn carriages from standing within 100 feet of a
restaurant not for the protection of the restaurant business per se, but as a matter of public health and
welfare. As the trial court noted,

[a]lthough the City Council has mindfully structured rules that allow for the inclusion
of these animals in the downtown are of the City, the City Council was also mindful
of the issues of smell, urination and sanitation when it created and passed Ordinance
4941. These issues constitute a rational basis for regulating horse-drawn carriages
and for prohibiting horse-drawn carriage stands from being located within 100 feet
of the threshold of “any establishment or enterprise whose main business is the
serving of restaurant clientele or food serving processes.”

Further, the Section is part of a lengthy ordinance which regulates not only horse-drawn carriages,
but vehicles for hire (including taxicabs and limousines) in general. Other provisions of the
Ordinance relating to horse-drawn carriages provide, inter alia, for limiting the number of horse-

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drawn carriages to no more than 50; for the issuance and revocation of Certificates of public
convenience; for the training of carriage drivers; for the conditions relating to carriage driver
permits; for a driver dress code; and for inspection of carriages and horses. Thus, the Section is part
of an overall regulatory scheme affecting matters of public health and welfare.

Unlike the ordinances in Davis and Cusack, the Ordinance at bar is not primarily for the
benefit of property owners, but their clientele and the general public. The City Council has
determined that citizens and visitors who must traverse the pathways of horse-drawn carriage stands,
with their attendant odors, refuse, and pests, in order to attempt to enjoy a meal while separated from
those odors only by frequently open doors and windows, are best protected by prohibiting these
animals from standing within 100 feet of the threshold of a restaurant. The consent provision
permits restaurant owners to waive a restriction which serves to protect the public health and welfare.
Further, although the provision requires such consent to be in writing and sent the City’s department
of Engineering, it contains no standards for determining when such a waiver is appropriate or for
review by the City of whether the waiver adversely affects those the Section protects.

The consent provision in the Ordinance at bar permits private citizens to determine whether
a specific use of public thoroughfares would be detrimental to the public health and welfare. It
permits private citizens to arbitrarily and capriciously waive an otherwise legal restriction which
serves the public welfare. Accordingly, we agree with the trial court that the consent provision
unlawfully delegates the City’s police and legislative powers to private citizens.

We next turn to Plaintiffs’ assertion that the doctrine of elision is not applicable to the
Section and that, accordingly, the unlawful consent provision renders the entire Section unlawful.
The doctrine of elision permits a court, under appropriate circumstances, to elide a portion of a
statute or legislative act which it finds unconstitutional, and to enforce the remainder as
constitutional and effective. Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1,
22 (Tenn. 2000) (quoting State ex. rel Barker v. Harmon, 882 S.W.2d 352, 355 (Tenn. 1994)).
Unconstitutional portions may be elided when doing so would not undermine the legislative intent
of the statute. Id. The doctrine of elision is not applicable where the legislature would not have
enacted the statute without the provision determined by the court to be unconstitutional. Id.; Ford
Motor Co. v. Pace, 335 S.W.2d 360, 369 (Tenn. 1960). However, when the court concludes that the
legislature would have enacted the legislation without the unconstitutional provision, elision is
appropriate. In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999).

The inclusion by the legislature of a severability clause in the statute is evidence of the
legislature’s intent that valid portions of the statute be enforced where the court determines that other
portions are unconstitutional. State v. Tester, 879 S.W.2d 823, 830 (Tenn. 1994). However, there
must be enough left of the statute “for a complete law capable of enforcement and fairly answering
the object of its passage.” Id. Further, “[w]here a clause is so interwoven with other portions of an
act that we cannot suppose that the legislature would have passed the act with that clause omitted,
then if such clause is declared void, it renders the whole act null.” Id. (quoting Hart v. City of
Johnson City, 801 S.W.2d 512, 517 (Tenn. 1990)). The courts have often applied the doctrine of

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elision where statutes include severability clauses unless such application would undermine or
frustrate the object of the act. Lowe’s Cos., Inc. v. Cardwell, Comm’n of Revenue, 813 S.W.2d 428,
431 (Tenn. 1991).

We note that the Ordinance at bar includes a broad severability clause which provides: “If
any of these sections, provisions, sentences, clauses, phrases or parts are held unconstitutional or
void, the remainder of this Ordinance shall continue in full force and effect.” Plaintiffs assert,
however, that the doctrine of elision is not applicable to the Section despite this severability clause.
They contend the doctrine of elision cannot be applied to the Section because the consent provision
is the result of a compromise reached by the City Council, that it was an inducement to the passage
of the Section, and that the City Council would not have passed the Section without the provision.

After reviewing the entire Ordinance and the transcriptions of relevant parts of the official
audio tapes maintained by the City Council from City Council Public Safety Committee and
Memphis City Council meetings, we disagree. The meeting minutes reflect that the Ordinance was
part of lengthy effort to address the regulation of all vehicles for hire, not just horse-drawn carriages.
The portions pertaining to horse-drawn carriages addressed the health and safety issues raised by
those carriages, as well as the operation of the carriages as one type of vehicle for hire. Although
the consent provision was added to the Section after opposition to the restrictions on horse-drawn
carriages was voiced by Plaintiffs at the meetings, we agree with the trial court that it was not
inducement to the passage of the Section. Rather, it is a minor clause of a lengthy and sweeping
ordinance amending the regulation of vehicles for hire in general, and horse-drawn carriages in
particular. Clearly, the Section fulfills its objective of protecting the public health and welfare absent
the consent provision. We accordingly affirm the application of the doctrine of elision to this case.

Holding

In light of the foregoing, we affirm the judgment of the trial court in all respects. Costs of
this appeal are taxed to the Appellants, American Chariot; Memphis Carriage, Inc.; Dancing Horse
Carriages, Inc.; Uptown Carriage Tours; Downtown Carriage Tours; and to their sureties, for which
execution may issue if necessary.

___________________________________
DAVID R. FARMER, JUDGE

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