Delta Loan & Finance Co. of Tenn., Inc. v. Long

Mb. Justice Felts

delivered the opinion of the Court.

The Delta Loan & Finance Company of Tennessee, Inc., located in Memphis, is a loan and thrift company, operating under our statutes regulating the conduct of such companies (T.C.A. secs. 45-2001 — 45-2015).

On October 7, 1959, John It. Long, Jr., Commissioner of the Department of Insurance and Banking, State of Tennessee, under authority of the statute (T.C.A. sec. 45-2014), issued an order upon that Company to cease and desist its violations of the statutes, particularly the section (T.C.A. sec. 45-2010) which prohibits such companies making any loan for a longer period than three years.

The Company, on October 30, 1959, filed a petition against Commissioner Long in the Chancery Court, Part I of Shelby County, asking that court to issue the writs of certiorari and supersedeas, to review, reverse, and supersede the Commissioner’s order of October 7; tbe principal prayer of tbe petition being as follows:

“That this cause be beard de novo and that upon tbe hearing hereof, this Honorable Court permanently decree that said cease and desist order is illegal and that tbe defendant be required to vacate said order.”

Tbe Commissioner filed a motion in that court to quash tbe writ of certiorari and dismiss tbe petition upon tbe ground that tbe court bad no jurisdiction of tbe matter. The court overruled tbe motion.

Tbe Commissioner filed bis petition in this Court for the writs of certiorari and supersedeas to that court to reverse and supersede its action, upon tbe ground that, since bis official residence is fixed by law at Nashville, Davidson County, and tbe matter complained of was an official order issued at such residence, tbe Chancery Court of Shelby County bad no jurisdiction of the matter.

We think the Commissioner’s petition must be sustained and tbe relief prayed, granted.

Petitioner, as stated, is Commissioner of tbe Department of Insurance and Banking, State of Tennessee, and is thus tbe head of a department of our State Government. T.C.A. secs. 4-301- — 4-315. Tbe statute (T.C.A. sec. 4-404) provides:

“Each department shall maintain a central office at tbe capitol, which shall be tbe official residence of each commissioner, or bead of department. Tbe commissioner of each department may in bis discretion and with tbe approval of tbe governor, establish and maintain at places other than the seat of government, branch offices for any one or more functions of his department. ’ ’

Thus, while this permits the maintenance of branch offices at other places than at the seat of government, it locates each department, and fixes the commissioner’s official residence, at the capitol in Nashville, Davidson County. The situs of such department and official residence, is therefore, local like that of a municipal corporation. Cf. Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, and cases there cited.

Though the statutes make some exceptions not here material, the rule is that a commissioner or head of a department of state government may be sued as such only in the county of his official residence; and a number of cases have held that such a suit may not be maintained as a transitory action in another county. Lyons v. Lay, 179 Tenn. 388, 166 S.W.2d 778; Deaton v. Evans, 192 Tenn. 348, 241 S.W.2d 423; Roney v. Luttrell, 200 Tenn. 403, 292 S.W.2d 411.

We think that rule applies in this case. The Company sought in the Chancery Court of Shelby County a writ of certiorari to have the Commissioner’s order reviewed or “heard de novo”; that is, the statutory writ of certiorari in lieu of an appeal, not the common-law writ of certiorari. Williams v. Southern Bell Tel & Tel. Co., 164 Tenn. 313, 316, 47 S.W.2d 758; McKee v. Board of Elections, 173 Tenn. 269; 272, 117 S.W.2d 752, 753.

In the McKee case, supra, the statutory writ of certiorari in lieu of appeal was sought in the Circuit Court of Shelby County, to review an order of the Board of Elections, whose situs was at the capitol in Nashville, Davidson County. It was Reid that the courts in Shelby County had no jurisdiction to grant this statutory writ to review the action of the Board, since its situs was not in Shelby County. This holding was based on this rule:

“The revisory power of a higher court is limited to the correction of errors of tribunals located within the territorial jurisdiction of the appellate body. It is the situs of the lower tribunal, cmcl not the residence of the parties, that points out the proper appellate tribunal” (italics ours). 173 Tenn. 272, 117 S.W.2d 754.

In the McKee case, this Court referred to the statutes (1932 Code secs. 9008 et seq. [now T.C.A. sec. 27-901 et seq.]), providing for a review of actions of boards, etc., by chancery and circuit courts by certiorari, and providing the petition therefor may be filed in “any county in which any one or more of the petitioners, or any one or more of the material defendants reside, or have their principal office”; and the Court held that these provisions did not apply to the statutory writ of certiorari in lieu of an appeal; that such a case was governed not by these provisions but by the rule above quoted.

Respondent Company invokes these provisions of the statute, as supporting its right to certiorari in the Chancery Court of Shelby County, the county in which it has its principal office. As we have seen, such an argument was rejected by this Court in the McKee case; and we. think what was there said is a sufficient answer here.

Respondent also seeks to distinguish the McKee case on the ground that the statute (ch. 2, sec. 7, Acts 1937; Third Extra Session) provided that the Board’s action “shall not be subject to review by any other body or tribunal under section 9008 of the Code or otherwise. ’ ’

While the Court referred to this quoted provision, its opinion shows that the basis of its decision was that, apart from such provision, Code secs. 9008 et seq. did not apply to a statutory certiorari in lieu of an appeal, but that such a case was governed by the rule above quoted.

The principle applied in the McKee case has been approved in later cases. In Lyons v. Lay, supra, the Court, referring to the McKee case, pointed out that the Court had there held that the Circuit Court of Shelby County had no jurisdiction to grant certiorari to review the action of the Board, because “under the statute creating the Board of Elections the official office and residence of the Board was declared to be at Nashville, Davidson County. To the same effect is the case of City of Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404.” [179 Tenn. 388, 166 S.W.2d 779.]

In City of Nashville v. Webb, supra, it was held that, since the situs of a municipal corporation is local, it cannot be sued in another county in a transitory action for personal injuries; that the court of such other county has no jurisdiction of such a suit.

In Roney v. Luttrell, supra, a petition for certiorari and supersedeas was filed in Obion County against the Commissioner of Safety, to review the latter’s action in revoking petitioner’s license for his truck under the Financial Responsibility Law, T.C.A. sec. 59-1201 et seq. The Court, construing the applicable statutes, held that the Circuit Court of Obion County had no jurisdiction of the petition, and that exclusive jurisdiction of it was in “the Chancery Court of Davidson County, the residence of the Commissioner”; and the Court cited the McKee case approvingly.

For these reasons, a decree will be entered here granting to the Commissioner the writs of certiorari and supersedeas as prayed, discharging the writ issued by the Chancery Court of Shelby County and dismissing the proceedings therein. The costs of the cause are adjudged against respondent Delta Loan & Finance Company of Tennessee. Inc., and the sureties on its cost bond.