Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-02
CITY LICENSES AND FINES.
Powers Of the Opinion of

Powers OF she RecOrder-opinion ~
Judge Cooper
Several petitions having been made 70
the City Council by persons in business in
relation to fines imposed uPou them in re-
gard to license, they were referred to
special committee for investigation and re-
port. The chairmane Of the committee
obtained the opinion OF Judge VIM. F.
Cooper on the legal questions involved,
which will be fonnd below The commit
tee failed to agree, and the Council referred
the reports back without reading, ia order
t. give the Recorder time 10 prepare a
statement in defense Of his course. The
whole matter will come Ep again on Moo
day night, and We reserve any comments,
simply giving the legal opinion Of Judge
c. as Of general interest 10 many Of our
readers:
ePIefoN OF JUDsE COOPER
Patrick Walsh, Esq, Nashyile-SIR: At
your request, have examined the charter Of the
city Of Nashville, and laws and ordinances passed
under the charter, with view 70 ascertain the
extent Of the power Of the Recorder 70 fine mer-
chants and others for failing 20 take ont license.
/ find by the 18th and 10Th sub-secticas of the
9Th section Of theact Ofls4S. reducing the several
acts Incorporating the city Of Nashville into one
act, that the Mayor and Aldermen are vested
With power, b. ordinance, to license, tax and
regulate mercbSnts and Others; and by sub
section, 9sst Of same section. to impose fines,
f0freitb-es and penaltie for the breach Of any
ordinance. add 10 prDEiuc i0r the recovery ana
appropriation, and % appoint an otcer for the
town. bging justice OF the peace, before whom
such recovery may be had,
By>the act Of $50, the Recorder Of the city Of
Nashville is invested with the concurrent iuris-
dicti0n 0t Justice OF the Peace in all cases otRIO
latlOn 0f the ordinances of the Mayor and Alder
men Of the city Gi Nashville within the limits Of
the city.
nances il IS made the special duty Of he City
Marshal and his deputies o. inquire OF all the
business men, etc, aud ali persons required 70
pay license ln their operations in the city, and
0u vestiyafion, if any Of the aforementioned
peuOus be t0gnd trausacting business without
hrst obtaining d corporation license they shall,
in every case. phy a hne of not lass than 81 nor
more than ~. for such violation Of the law. %
be recovered before the Recorder. when arrested
by the Marshal or his deputies and brought be-
fare that officer for fGai and L shall be the duty
Of the Recorder So furnish the Marshal aud has
deputies lst Of all the business men Of the city
who are paying as The law resgifes.'
By chapter -. section j. the Recorder Of the
corporation Of Nashville shall open and hold
court for the trial Of ai persons arrested by the
police 81 the city, for the violation of any ordi
names Of the corporation, etc Said court shall
boopened VI . o'clock, a. ~, Of each day. and
continue untlli all eases submitted for the inyes-
tiRation of the Recorder shall lhave been exam
ined aRd disposed Of"
fBy section b of the same chapter. an appeal
g. given from the decision Of the Circuit, Court
TO all persons So tried and convicted of any
misdemeunOr.'
Upon these provisions. it is very clear that the
corporation has the power 90 license, tax and
regulate merchants, etc. and 90 impose fines
upon them Tor failing 20 take out license OF
rather, Tor dong business without first having
taken out license; that they hare Fixed the fine
n such cases at not less than twenty five dollars
nor more than City dollars; that they have made
10 the duty of the Marshal aud his deputies 10
ascertain such delinquents, arrest 8nd bring
them before the Recorder. whose duty IL then Is
10 hear aud dispose of the ease in his judicial
c"p"cfp E" 1''n coa,i. an appeal lying from his
decision.
When a case bus been brought properly before
ihe Recorder, do not see how he can avoid
doiAg bis duty and enforcing the fine ixed BY the
CITY ordinance. But as I understand the law.
it is not made the duty OF the Recorder 10 search
out deinquents himself. or otherwise 10 act
upon their eases, except o. judioial officer IL
i' the duty Of the Marshal 20 hunt up the delin-
quents; and. for this purpose. he may demand
and receive from the Recorder list of those
persons who have complied with the law. Ii the
Recorder goes further. and not only performs his
Judicial and ministerial functions as above but
assuules g slo the duty % . Marshal n huuiiuE
uu delinquents, he Oyersieps the functions of bis
office just as much as o Criminal gudee who
should, in addition - trying criminals raurhi
before hIm, undertake. g have hem indicted "a
.
The Recorder. like Criminal judge etikht
o. be impartial in the matter. 81 as 10
hear enlmly and dispassenately The cases
hrouRm before hm-not act The part of a zeal-
Gus official, and then assume the functions Of M
impartial Justice. | an clearly of opinion that
the Recorder can, ia no ease. impose a fine for
misdeinennef az breach of the corporation orsii-
uauces tn such casu., eNCcpt BE- open court upon /
q regular arrest and trial
The very compiaiaF which the recent action
oi the Recorder has given rise Co.. show the inn
purtauco OF keeping the duties of the Marshal
and the Judge distinct. The Judge has no dis
cretiOn but must inheXibly and imPartinlly ad-
minister the law, when a person is properly
brought before him aud convicted. ... ..
The Marshal. however, like the Attorney Gene
raj in ordinary criminal cases, has discretion,
and may exercise 10 ln proper cases. He can make
"a distinction between a williul vioatOr of the
law. or one who Il evidently trying 10 evade H.
and an upright. honest and industrious citizen
who has committed casual oversight. or neg
lected for a few DAYS, through accident or for
Eetiulness, 70 wbicii We are all subject, 60 take
out his license. such a discrimination, every
one will say, Is just and proper and the Marshal
who would make Il would receive praise rsther
than blame The Recorder, as a J Judge, can make
no such determinations, and he ought not, f1r
that very reason, Go interfere with the functions
at an officer who can.
II does not seem 60 me that the laws aud ordi-
uances Of the city require any change. They
are now complete. wise and Just. The defect Il
there be any. Is In their two rigid administration,
while taking for granted that our oldest and best
citizens ere willtul wrong doers instead of being
persons subject % the ordinary iu6rmities Of
human nature. Few persons Ia their private
affairs can always recullect 20 an hour when p
thing should be done. Separate the duties af
Marshall md Recorder, and there will be no fur.
theT complaint Let the former hunt up delIn-'
quents, a. the city ordinances require, and the
latter pronounce judgment whom the delinquent
Is brought before him. and nll viii be right
respectfully, ". h. COOPER