DELTA LOAN & FINANCE CO. OF TENN., INC. v. JOHN R. LONG, JR., Cоmmissioner.
Nashville, December Term, 1959.
March 11, 1960
Petition to Rehear denied April 6, 1960. Second Petition to Rehear denied May 4, 1960.
337 S.W. 2d 606
MR. JUSTICE FELTS
THOMAS J. GRIFFIN and JAMES A. CRISLIP, Memphis, for respondent.
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 (
On October 7, 1959, John R. Long, Jr., Commissioner of the Department of Insurance and Banking, State of Tennessee, under authority of the statute (
The Company, on October 30, 1959, filed a рetition against Commissioner Long in the Chancery Court, Part I of Shelby County, asking that court to issue the writs
“That this cause be heard de novo and that upon the hearing hereof, this Honorable Court permanently decreе that said cease and desist order is illegal and that the defendant be required to vacate said order.”
The Commissioner filed a motion in that court to quash the writ of certiorаri and dismiss the petition upon the ground that the court had no jurisdiction of the matter. The court overruled the motion.
The Commissioner filed his petition in this Court for the writs of certiorari and supersedeas to that court to reverse and supersede its action, upon the ground that, since his official residence is fixed by law at Nashville, Davidson County, and the matter cоmplained of was an official order issued at such residence, the Chancery Court of Shelby County had no jurisdiction of the matter.
We think the Commissioner‘s petition must be sustained and the relief prayed, granted.
Petitioner, as stated, is Commissioner of the Department of Insurance and Banking, State of Tennessee, and is thus the head of a department of our Statе Government.
“Each department shall maintain a central office at the capitol, which shall be the official residence of each commissioner, or head of department. The commissioner of each department may in his discretion and with the approval of the governor, establish and main-
tain at places other than the sеat 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 аt 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 deрartment 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 casеs 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 certiorаri. 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,
“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 tribunаl, and 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
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 аrgument 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 Bоard‘s action “shall not be subject to review by any other body or tribunal under section 9008 of the Code or otherwise.”
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 actiоn 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,
On Petition to Rehear
FELTS, JUSTICE.
Delta Loan & Finance Company of Tennessee, Inc., has filed an earnest petition to rehear, and learned counsel for it have made an able argument. It is, however, only a reargument of matters already thoroughly argued by counsel, and considered and determined by us.
The petition points out no matter of law or faсt overlooked but only reargues matters which counsel say were erroneously decided by us after argument and full consideration.
“The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration” (Louisville & N. Railroad Co. v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 691, 148 S.W. 671, 680. Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, 476, 187 S.W.2d 777, 780; Colbaugh v. State, 188 Tenn. 103, 112, 216 S.W. 2d 471.)
The petition to rehear is denied at petitioner‘s cost.
The Delta, Loan & Finance Company of Tennessee, Inc., has filed a second petition to rehear, asserting that our decision denied it its day in court and deprived it of due process undеr the Constitutions of the United States and of Tennessee.
Petitioner sought a review of the official action of respondent, as head of a department of our State Government, located at the Capitol, whose official situs and residence is in Davidson County. Petitioner could have had its day in court and pursued its remedy of review by suing the Commissioner in the county of his official residence.
Instead, petitioner filed against respondent in Shelby County a petition for the statutory writ of certiorari, for a review “de novo” of the оfficial action of respondent Commissioner, whose situs is in Davidson County. Under the rule long established by our decisions, this statutory writ of certiorari could be maintained only in the county of the situs of respondent, as the tribunal or board whose action was sought to be reviewed. McKee v. Board of Elections, 173 Tenn. 269, 272-273, 117 S.W.2d 752, and the numerous cases these cited.
We think petitioner had no constitutional right to have this long-established rule overruled for its benefit and that in following that rule, we did not deny petitioner any constitutional right.
The second petition to rehear is overruled at petitioner‘s cost.