‘Law of land’ forbids city’s Airbnb ban

Phil Noblett, city attorney, back right, is burdened with civilly prosecuting property holders under Chattanooga’s 2-year-old Internet ban imposed on thousands of city residents. At center is Russell Gilbert, who voted for the ordinance. (Photo David Tulis)

An ancient Tennessee court case condemns the sort of ordinance that took effect Oct. 1, 2017, in Chattanooga, its STVR ordinance.

The ruling by Judges Peck and Catron calls it “a partial law, tending directly or indirectly to deprive a corporation or an individual of rights to property, or to the equal benefits of the general and public laws of the land.”

They say such a law “is unconstitutional and void, we do not doubt. Our entire approbation is accorded to the decisions cited in the causes of Dartmouth College vs. Woodward, (4 Whea. R. 518,) and Holden vs. James, (11 Mass. 396). Our constitution, art. 11, sec. 8, declares, “That no free man shall be deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land.” 

‘Equally binding’ on all

The clause “LAW OF THE LAND,” means a general and public law, equally binding upon every member of the community. Our colonial history will best teach its meaning. Our ancestors were taught it by being transported across the Atlantic for trial; by the Boston port-bill, and other British Legislation. A careful examination of Marshall’s history of the Colonies, particularly the 13th and 14th chapters, and of Smollett’s and Bissett’s history of England *** will greatly tend, it is apprehended, to change the opinion of the counsel of the plaintiff, who contended in argument, that this term had no definite meaning; at least not the one here ascribed to it; and that it answered no useful purpose in the constitution.

Notwithstanding the provision, is it to be supposed the Legislature, equally with the Governments of France, Russia or Turkey, is sovereign in this respect, even retaining the powers of individual proscription extending to banishment, as well as power to legislate partially in reference to particular individuals, affecting their rights by partial and extraordinary remedies. The right to life, liberty and property, of every individual, must stand or fall by the same rule or law that governs every other member of the body politic, or “LAND,” under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. [Emphasis added]

Were this otherwise, odious individuals and corporate bodies, would be governed by one rule, and the mass of the community who made the law, by another. 

Cause of American revolution

The idea of a people through their representatives, making laws whereby are swept away the life, liberty and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name. Such abuses resulted in the adoption of Magna Charta in England, securing the subject against odious exceptions, which is, and for centuries has been the foundation of English liberty. 

Its infraction was a leading cause why we separated from that country, and its value as a fundamental rule for the protection of the citizen against legislative usurpation, was the reason of its adoption as part of our constitution. See 2 Inst. 46, and the Dec. of American Independence. HN3[ ] A general and public law prescribing remedies and modes of redress to enforce existing liabilities, can certainly be constitutionally passed. 

The case is Vanzant vs. Waddell, 10 Tenn. 260 *; 1829 Tenn. LEXIS 7 **; 2 Yer. 260.

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.