Tennessee Municipal League v. Thompson

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
(Heard at Johnson City, Tennessee) FILED
December 10, 1997
FOR PUBLICATION
TENNESSEE MUNICIPAL LEAGUE, )
et al., ) Filed: DecemberCecil W. Crowson
10, 1997
) Appellate Court Clerk
Plaintiffs/Appellants, ) Davidson Chancery
)
) Hon. Irvin H. Kilcrease, Jr.,
Vs. ) Chancellor
)
)
BROOK THOMPSON, in his official ) Supreme Court
capacity as the State Election ) No. 01S01-9711-CH-00242
Coordinator, et al., )
)
Defendants/Appellees. )

For Appellants, Tennessee For Appellees, Brook Thompson,
Municipal League: et al.:
George E. Barrett John Knox Walkup
Phillip A. Purcell Attorney General and Reporter
BARRETT, JOHNSON & PARSLEY
Nashville, Tennessee Michael E. Moore
Solicitor General
For Appellants, City of Memphis:
Leo Bearman, Jr. Michael W. Catalano
Allan J. Wade Associate Solicitor General
David L. Bearman
BAKER, DONELSON, BEARMAN Ann Louise Vix
& CALDWELL Senior Counsel
Memphis, Tennessee Office of the Attorney General
Nashville, Tennessee

For Intervenor Appellees, David Sanders, David Lynn Ranson,
James E. Blount, III, and James F. Leatherwood, III:
Val Sanford
GULLETT, SANFORD, ROBINSON & MARTIN, PLLC
Nashville, Tennessee

Gordon B. Olswing
LAW OFFICES OF CHARLES R. PERKINS
Memphis, Tennessee

Lee L. Piovarcy
MARTIN, TATE, MORROW & MARSTON, PC
Memphis, Tennessee

For Amicus Curiae, For Amicus Curiae,
City of Elizabethton: Town of Oakland:
Charlton R. DeVault, Jr. Edward B. Johnson
Kingsport, Tennessee Somerville, Tennessee

OPINION
REVERSED. Anderson, C.J.
 We granted this expedited appeal pursuant to Tenn. Code Ann. § 16-3-

201(d) to determine a question of unusual public importance - whether 1997 Tenn.

Pub. Acts, ch. 98 (“the Act”), which dramatically changed requirements for municipal

incorporation, violates the Tennessee Constitution. The Chancery Court held that

the Act is constitutional. We conclude, however, that the Act violates Article II, §17

of the Tennessee Constitution and is, therefore, void because the body of the Act is

broader than its restrictive caption. Accordingly, we reverse.

BACKGROUND

During the 1997 legislative session, the General Assembly passed 1997

Tenn. Pub. Acts, ch. 98, which was signed into law by the Governor on April 16,

1997. The Act amended the municipal annexation provisions in Tenn. Code Ann.

§§ 6-1-201, et seq. The caption of the Act provided as follows:

An ACT to amend Tennessee Code Annotated, Title
6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and
Title 6, Chapter 30, Part 1, relative to the distribution
of situs-based tax collections after new municipal
incorporations and the timing of elections to
incorporate new municipalities.

Sections 7 through 11 of the Act are of particular relevance to the issue of

whether the body of the Act is broader than its caption. They provide as follows:

Specifically, Section 7 of the Act lowered the population requirement for

municipal incorporation of territory of Tenn. Code Ann. § 6-1-201(a)(1) from 1,500

persons to only 225 persons.

Section 8 of the Act completely deleted Tenn. Code Ann. § 6-1-201(b)(1),

which prohibited incorporation of a new municipality within three miles of an existing

municipality or within five miles of an existing municipality with a population of

100,000 or more.

-2-
 Section 9 of the Act replaced subsection (h) of § 6-1-201, and provided:

Notwithstanding the requirements of §§ 6-1-202, 6-1-203,
and 6-1-209, or any other provision of law to the contrary,
the petition for incorporation may consist of a letter from
a resident of the territory desiring to incorporate to the
county election commission requesting that the question
of incorporating the territory be placed on the ballot. The
letter shall describe the exact boundaries of the
proposed municipality and indicate the name of the
proposed municipality. The letter shall be treated as a
petition meeting all of the requirements of the law if such
petition is filed with the county election commission
before December 31, 1997.

Thus, a letter from a single resident may be used in lieu of a petition to incorporate

and is to be treated as a petition meeting all the requirements of the law if filed

before December 31, 1997. No plan of municipal services or five-year budget or

projected tax rate is required as a part of the petition. In contrast, §§ 6-1-202, 6-1-

203, and 6-1-209 had required a petition for incorporation signed by thirty-three and

one-third percent (33 1/3%) of the registered voters of the territory to be

incorporated, a plan of municipal services, a five-year budget with identified potential

revenue and expenses, and a projected tax rate.

Section 10 of the Act added subsection (j) to Tenn. Code Ann. § 6-1-201 and

provided that any territory that has conducted an election under this section before

April 16, 1997, is deemed to have satisfied the requirements for incorporation. New

subsection (j) also provided that any ordinance of annexation by another

municipality for any territory within the corporate limits of such new municipality is

void. Section 10 also added new subsection (k) to Tenn. Code Ann. § 6-1-201 and

provides that, if a territory has proposed to be incorporated pursuant to Tenn. Code

Ann. § 6-1-201 after January 1, 1996, that new municipality shall have priority over

any annexation ordinance of an existing municipality which encroaches upon any

territory of the new municipality.

-3-
 Section 11 of the Act provided that sections 7 and 8 of the Act remain in

effect for one year from the effective date of the Act, and that at the expiration of

that one year period, the statutory language in place immediately before the Act

took effect will be revived and will again be in effect.

On July 25, 1997, a suit was filed seeking a declaratory judgment that

sections 7 through 11 of the Act are unconstitutional under various provisions of the

Tennessee Constitution.1 The plaintiffs are the Tennessee cities of Memphis,

Clarksville, Harriman, Pulaski, Jackson, Lakesite and Collegedale, and the

Tennessee Municipal League. The defendants are Brook Thompson, State

Coordinator of Elections; the members of the Tennessee State Election

Commission; and the members of the County Election Commissions of Shelby,

Montgomery, Roane, Giles, Madison, and Hamilton Counties. John Knox W alkup is

sued in his official capacity as Attorney General. Subsequently, the trial court

allowed Forest Hills Associates and Dan B. Turley Company to intervene as

plaintiffs in order to press their claim that the Act impairs contracts they had entered

into. Intervening defendants are individuals who filed or signed petitions to

incorporate the Towns of Fisherville, New Berryhill, New Forest Hills, and

Independence.

During the pendency of the trial court proceedings, an order was in effect

restraining the holding of elections pursuant to the Act. Subsequently, a hearing on

the merits of this case was held on September 8, 1997, before Chancellor Irvin

Kilcrease.

1
In their complaint, the plaintiffs challenged the constitutionality of the Act as (1) violating the
caption provision of Tenn. Const., Art. II, § 17; (2) violating Article II, § 18 of the Tennessee
Constitution because it was not passed on three different days in each House; (3) impairing the
obliga tion o f the p laintiff s’ con tract ual rig hts a nd re troac tively de privin g the m o f a ve sted right in
violation of Article 1, § 20 of the Tennessee Constitution; (4) violating Article I, § 8 and Article XI, § 8
of the Tennessee Constitution because it suspends the general law for the benefit of individuals and
violate s equ al pro tectio n; (5) violatin g Artic le XI, § 9 whic h pro vides that th e Ge nera l Ass em bly sha ll
provide the exclusive methods by which municipalities may be created; and (6) violating Article I, § 5
of the Tennessee Constitution providing that elections are to be free and equal and the right of
suffrag e is not to be denied.

-4-
 Following the hearing, the Chancery Court rejected all of the plaintiffs’ claims

and found the Act to be constitutional. The plaintiffs appealed to the Court of

Appeals and filed a motion requesting that this Court use its “reach down” authority

and assume jurisdiction of the appeal pursuant to Tenn. Code Ann. § 16-3-201(d).

Because the issues presented are matters of unusual public importance in which

there is a special need for expedited decision and which involve issues of

constitutional law, this Court granted the Motion to Assume Jurisdiction and heard

oral argument.

The Caption Provision of Tenn. Const., Art. II, § 17

Article II, § 17 of the Tennessee Constitution provides:

Sec. 17. Origin and frame of bills. - Bills may originate
in either House; but may be amended, altered or rejected
by the other. No bill shall become a law which embraces
more than one subject, that subject to be expressed in
the title. All acts which repeal, revive or amend former
laws, shall recite in their caption, or otherwise, the title or
substance of the law repealed, revived or amended.

The caption of the Act at issue provides:

An ACT to amend Tennessee Code Annotated, Title 6,
Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6,
Chapter 30, Part 1, relative to the distribution of situs-
based tax collections after new municipal incorporations
and the timing of elections to incorporate new
municipalities.

1997 Tenn. Pub. Acts, ch. 98.

The plaintiffs contend that this caption violates Article II, § 17 in three

respects. They contend that the body of the Act is broader than its restrictive

caption, that the Act embraces more than one subject, and that the body of the Act

is in direct conflict with the caption. We agree that the body of the Act is broader

than its restrictive caption.

-5-
 The second and third sentences of Article II, § 17, which form the basis for

the plaintiffs’ arguments, were added when the Constitution of 1870 was adopted.

They were not present in the two previous Constitutions of 1796 and 1834.

In 1872, in its first opportunity to construe the new language, this Court held

that the language was mandatory. Cannon v. Mathes, 55 Tenn. 504, 518 (1872).

We also held that if an act at issue embraces more than one subject or if the title

does not express the subject of the act, the law is unconstitutional and invalid. Id. at

518-19. The Court further noted that the purpose of the provision was to “prevent

surprise or fraud upon the Legislature, by means of provision in bills of which the

titles gave no intimation, and which might therefere (sic) be overlooked, and

carelessly and unintentionally adopted.” Id. at 521.

The Constitutional language was “to prohibit so-called ‘omnibus bills’ and bills

containing hidden provisions which legislators and other interested persons might

not have appropriate or fair notice.” State ex rel. Blanton v. Durham, 526 S.W.2d

109, 111 (Tenn. 1975). Nonetheless, the provision was to be liberally construed, so

that the General Assembly would not be “unnecessarily embarrassed in the exercise

of its legislative powers and functions.” Memphis St. Ry. Co. v. Byrne, 119 Tenn.

278, 287, 104 S.W. 460, 461 (1907).

This Court also recognized early that titles to acts may be general and broad

or restrictive and narrow, and that the legislature has the right to determine for itself

how comprehensive the object of the statute will be. Moreover, if the title is general

or broad and comprehensive, all matters which are germane to the subject may be

embraced in the act. If the matters are naturally and reasonably connected with the

subject expressed in the title, then they are properly included in the act. Id. at 288-

289. See also Chattanooga-Hamilton County Hospital Authority v. City of

Chattanooga, 580 S.W.2d 322, 326 (Tenn. 1979), and cases cited therein. If, on

-6-
the other hand, the legislature has adopted a restrictive title where a particular part

or branch of a subject is carved out and selected, then the body of the act must be

confined to the particular portion expressed in the limited title. Byrne, 119 Tenn. at

289, 104 S.W. at 461.

In the years shortly after the pronouncement in Cannon v. Mathes, there were

numerous examples of acts which the Court declared void due to the restrictive

nature of their captions and the broad nature of the body of the act. For example, in

Jackson v. Weis & Lesh Mfg. Co., 124 Tenn. 421, 137 S.W. 757 (1911), the Court

held that a caption entitled “[a]n act to make it unlawful to employ a child less than

twelve years of age in workshops, mines, mills, or factories in this State” was

restrictive. The Court held that the legislation at issue was void under Article II, § 17

because the text of the bill dealt with children 17 years of age and younger and was,

therefore, broader than its limited caption. In Ledgerwood v. Pitts, 122 Tenn. 570,

125 S.W. 1036 (1910), the Court struck down a statute that described the selection

process for presidential electors, the selection of delegates to a national convention

and the formulation of party platforms when the caption was limited to “a compulsory

system of legalized primary law, for the political nomination, to create the agencies

for its operation and penalize its violation.” The view has been followed. See, e.g.,

Armistead v. Karsch, 192 Tenn. 137, 143, 237 S.W.2d 960, 962 (1951)(finding

unconstitutional an act which in its body provided benefits to widows of all city

employees and to children and mothers under certain circumstances when the

restrictive provision of the caption stated that the Act was “to provide certain benefits

for widows of pensioned employees”).

When a law is enacted to amend a previous enactment of the legislature, it is

generally deemed consistent with Article II, § 17 if the caption recites the title or

section of the law to be amended. State ex rel. Blanton v. Durham, 526 S.W.2d at

111; Pharr v. Nashville C. & St. L. Ry., 186 Tenn. 154, 160, 208 S.W.2d 1013, 1015

-7-
(1948). However, beginning in 1925 with the case of Hays v. Federal Chemical Co.,

151 Tenn. 169, 268 S.W. 883 (1925), this Court recognized that “[w]here the title of

the amendatory act recites the title of the act to be amended and also specifies the

amendments to be made, the legislature is limited to the amendments specified and

anything outside of these is void.” Id. at 175 (emphasis added). Chief Justice

Grafton Green explained:

If the title of an amending act merely indicates generally
that amendments of the original act are to be made, then
it rests upon all those affected by the original act to
investigate, and see in what respects the original act is to
be changed. If the title of the amending act, on the
contrary, sets out the particular amendments that are to
be made to the original act, it may be reasonably
concluded that no amendments other than those stated
are to be attempted. It would promote deception, if,
under a caption undertaking to specify amendments to
be made, other and different amendments were included
in the body of the act.

Id. See also Woods v. Phillips, 558 S.W.2d 825, 829 (Tenn. 1977); Tennessee

Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 517, 114 S.W.2d 441,

445 (1937).

Similarly, this Court has held that when the caption is restrictive in that it

“relates” to a specific subject, the body of the act must be germane to the restrictive

portion of the caption. The phrase “relative to” means “relevant to; concerning;

about; corresponding to; in proportion to.” Webster’s New World Dictionary (2d ed.

1980). Thus, when used in the caption to an act, it has been held in several

Tennessee cases to have a restrictive or narrowing effect. See, e.g., State v.

Chastain, 871 S.W.2d 661 (Tenn. 1994)(finding that caption stating “An Act to

amend Tennessee Code Annotated, Title 55, Chapter 10, Part 4, and Title 53,

Chapter 11, relative to the confiscation of motor vehicles of certain offenders” was a

“narrow” caption); Farris v. State, 535 S.W.2d 608 (Tenn. 1976)(holding that body of

act requiring that the trial judge charge the jury on parole consideration not germane

-8-
to a caption which referred to an amendment “relative to verdict and sentence in

felony conviction”).

Applying the foregoing principles to the case before us, it is apparent that the

Legislature has employed the use of a “restrictive” caption in Chapter 98, Public

Acts 1997. While the caption refers to only one overall subject2, the amendment of

Title 6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6, Chapter 30, Part 1,

it purports to amend the statutes “relative to” only two subparts: 1) the distribution of

situs-based tax collections after new municipal incorporations; and 2) the timing of

elections to incorporate new municipalities.

Sections 7 through 11 of the Act are not within the caption which is restricted

to the above two specific subparts. Sections 7 through 11 reduce the population of

territories that may incorporate from 1,500 to 225; repeal the prohibition against new

incorporations within 5 miles of large cities and within 3 miles of smaller cities; relax

the qualifying requirements for the petitioning of an incorporation election; grant

territories proposing to incorporate after January 1, 1996, priority over “any

annexation ordinance” of an existing municipality; and place time limitations on

when portions of the Act will remain in effect. Although these provisions clearly

amend the code sections referred to in the caption, they do not directly or indirectly

relate to the “distribution of situs-based tax collections” or the “timing of elections to

incorporate new municipalities.”

Accordingly, Sections 7 through 11 of Chapter 98 of the 1997 Tennessee

Public Acts are broader than and outside the caption of the Act, and, under the

controlling authority discussed hereinabove, the Act must be declared void pursuant

to Article II, § 17 of our state Constitution.

2
Sinc e the Act e nco mp ass es on e sub ject, w e reje ct the argu me nt tha t the A ct viola tes A rticle
II, § 17 because it embraces more than one subject. We likewise reject the notion that the Act
violates Article II, § 17 because the body of the Act is in direct conflict with its caption, except to the
extent that the body is broader than the caption.

-9-
 The purpose of Article II, § 17, is to prevent “surprise and fraud” and to inform

legislators and the public about the nature and scope of proposed legislation. The

constitutional purpose is effectively thwarted when a restrictive caption is employed

and then legislation is adopted which is broader than the caption. In this case,

although we are convinced the General Assembly’s action was in good faith, the

restrictive caption failed to adequately inform the members of the General Assembly

and the citizens of this state about the nature and scope of the legislation that

eventually passed.

-10-
 CONCLUSION

We therefore conclude that the Act violates Article II, § 17 of the Tennessee

Constitution and is, therefore, void. Having reached this conclusion, all other issues

are pretermitted. The judgment of the Chancery Court for Davidson County is

reversed. Costs are taxed against the defendants.

RILEY ANDERSON, Chief Justice

CONCUR:

Drowota, Reid, Birch, and Holder, JJ.

-11-