                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

        FRANK BARRETT v. METROPOLITAN GOVERNMENT OF
               NASHVILLE AND DAVIDSON COUNTY

                 Direct Appeal from the Circuit Court for Davidson County
                         No. 98C-1095     Walter C. Kurtz, Judge



                   No. M1999-01130-COA-R3-CV - Decided June 22, 2000


The Circuit Court of Davidson County held that the General Sessions Court could not assess a $500
penalty for the violation of a municipal ordinance absent a waiver of the defendant’s right to a jury
trial. We reverse the judgment below.

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

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH and CAIN , JJ. joined.

Karl F. Dean, Director of Law, Kimberly M. Frayn and Courtney E. Knight, Nashville, Tennessee,
for the appellant, Metropolitan Government of Nashville and Davidson County.

John E. Herbison, Nashville, Tennessee, for the appellee, Frank Barrett.


                                            OPINION

                                                 I.

        Frank Barrett allegedly violated Title 16 of the Code of Laws of the Metropolitan
Government of Nashville and Davidson County (Metropolitan Code) by repairing a building without
a building permit and by failing to comply with a stop work order. The Metropolitan Government
served Mr. Barrett with five civil warrants issued by the Davidson County General Sessions Court
alleging violations of § 16.28.010 and § 16.04.110 of the Metropolitan Code. On each of the
warrants the general sessions court gave the Metropolitan Government a judgment of $500 and costs.

       The power to impose a penalty in that amount is derived from Tenn. Code Ann. § 7-3-507,
where the legislature gave metropolitan governments in Tennessee the power to set a penalty of up
to $500 for each violation of certain metropolitan ordinances. Pursuant to that power, the
Metropolitan Council passed Ordinance No. 095-1329 which, among other things, made the
violation of Title 16 of the Metropolitan Code subject to the $500 penalty. In Section 12 of the
Ordinance the council actually amended § 16.04 to say that for violations of Title 16, where no
specific penalty is provided, the violation shall be punishable by a “fine” not to exceed $500.

       The reference to a “fine” turned out to be an unfortunate choice of words, because Article
VI, § 14 of the Tennessee Constitution provides:

       No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless
       it shall be assessed by a jury of his peers, who shall assess the fine at the time they
       find the fact, . . . .

        The Davidson County Circuit Court granted Mr. Barrett’s petition for a writ of certiorari and
held that the general sessions court had exceeded its jurisdiction. The trial judge found the Council’s
choice of words significant and held that Article VI, § 14 prevented any court from imposing a fine
greater than $50, absent a valid waiver of the right to a jury.

                                                   II.

        On appeal, the Metropolitan Government insists that the $500 “fine” in the ordinance is a
civil penalty, regardless of the council’s choice of words. Mr. Barrett insists that the trial judge was
correct in finding it to be a criminal fine, and that it would have been a criminal fine even if the
council called it a penalty. Thus, both sides urge us to put substance over form.

      This debate is not new. In City of Chattanooga v. Myers, 787 S.W.2d 921 (Tenn. 1990), our
Supreme Court surveyed at least twenty cases going back to 1858 and concluded that

        “[F]or 130 years proceedings to recover fines for the violation of municipal
        ordinances have been considered civil for the purposes of procedure and appeal,
        although the principles of double jeopardy have recently been determined to apply
        in such cases . . . . The basis of the cases, accepted in Allen-Briggs, is that an appeal
        to circuit court of a judgment of a municipal court -- even when the defendant is the
        appellant -- is an appeal in a civil action brought by the municipality to recover a
        ‘debt’.”

787 S.W.2d at 928.

        The Allen-Briggs reference was to Metropolitan Government v. Allen, 529 S.W.2d 699
(Tenn. 1975) and Briggs v. City of Union City, 531 S.W.2d 106 (Tenn. 1975). In both cases, the
Court concluded “that cases involving violation of city ordinances are not criminal prosecutions; that
they are civil in nature having as their object the vindication of domestic regulations.” 529 S.W.2d
at 707; 531 S.W.2d at 107.




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       The Myers Court traced the Allen-Briggs rule back to Meaher v. Mayor and Aldermen of
Chattanooga, 38 Tenn. 75 (1858), in which the Court said:

               If the fine, forfeiture or penalty – for the name is not so material – is fixed by
       the ordinance, for any particular thing, that may be recovered by warrant, and the
       only proof required is that the offence, or act to which such fine or forfeiture is
       attached, has been committed.

38 Tenn. at 76 (emphasis supplied).

         The Myers Court also recognized that in Metropolitan Government of Nashville and
Davidson County v. Miles, 524 S.W.2d 656 (Tenn. 1975), the Court had held that to allow a
municipality to appeal the dismissal of a charge of violating an ordinance would violate the state and
federal prohibitions against double jeopardy. See State v. Jackson, 503 S.W.2d 185 (Tenn. 1973);
United States v. Halper, 109 S.Ct. 1892 (1989). The cited cases held that under some circumstances
a civil penalty is “punishment” for the purposes of double jeopardy analysis. See Fifth Amendment
to the United States Constitution and Article I, § 10 of the Tennessee Constitution.

       The Myers Court also took note of this court’s decision in O’Dell v. City of Knoxville, 388
S.W.2d 150 (Tenn. App. 1964), where the court decided the issue involved here and held that a
penalty of more than $50 could be assessed by the court for the violation of a city ordinance without
offending Article 6, § 14 of the Tennessee Constitution. Where the court in Miles said that O’Dell
had been impliedly overruled by State v. Jackson, in Myers the court unanimously held that the Miles
language was “overbroad” and that there was no conflict between the two decisions (Miles and
O’Dell).

       As we see it, when the dust settled after the Myers decision, O’Dell was still the leading case
on whether a jury had to impose a fine/penalty of more than $50 for the violation of a municipal
ordinance. In addition, the courts have adhered to the Meaher holding that the name given the
punishment in the ordinance – whether fine, forfeiture, or penalty – is not material; it is still in the
nature of a civil debt, recoverable in a civil action. Myers, supra; City of Nashville v. Baker, 73
S.W.2d 169 (Tenn. 1934); Guidi v. City of Memphis, 263 S.W.2d 532 (Tenn. 1953). Therefore, the
imposition of the $500 penalties by the general sessions court did not violate Article 6, § 14 of the
Tennessee Constitution.

        The puzzling part of this whole exercise appears when we realize that Mr. Barrett could have
had a jury trial by simply appealing the judgment of the general sessions court and demanding a jury
pursuant to Article I, § 6 of the Tennessee Constitution. That was the whole point made by the
Myers Court. Instead, he chose to file a petition for certiorari to attack the judgment as being beyond
the jurisdiction of the lower court. We think the writ was improvidently granted and Mr. Barrett
should have used the appeal process provided in Tenn. Code Ann. § 27-5-108. See Clark v.
Metropolitan Government of Nashville and Davidson County, 827 S.W.2d 312 (Tenn. Ct. App.
1991)(concurring opinion).


                                                  -3-
       The judgment of the circuit court is reversed and the cause is remanded to the Davidson
County General Sessions Court for the enforcement of its judgments. Tax the costs on appeal to the
appellee, Frank Barrett.




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