                              FILED
                              October 4, 1999

                            Cecil Crowson, Jr.
                           Appellate Court Clerk
             IN THE COURT OF APPEALS OF TENNESSEE

                           AT KNOXVILLE




                                         E1999-01571-COA-R3-CV
TOWN OF HUNTSVILLE, TENNESSEE,          ) C/A NO. 03A01-9901-CH-00024
a Municipal Corporation of the          )
State of Tennessee and          )
STANLODGE, LLC,                 )
                                )
          Plaintiffs-Appellants, )
v.                              )
                                )
                                )
WILLIAM I. DUNCAN, RICHARD SMITH,)
LUKE COFFEY, JAMES R. POTTER,     )
all in their official capacity    )
as members of the Scott County    ) APPEAL AS OF RIGHT FROM THE
Election Commission;            ) SCOTT COUNTY CHANCERY COURT
WILMA JEFFERS, HOWARD JEFFERS,    )
FRED K. PHILLIPS, ALMA KOGER and )
GERALD FOSTER, all individually; )
THE TOWN OF HELENWOOD; and      )
PAUL G. SUMMERS in his official )
capacity as Attorney General of )
the State of Tennessee, pursuant )
to Tennessee Code Annotated     )
§ 29-14-107,                    )
                                ) HONORABLE BILLY JOE WHITE,
          Defendants-Appellees. ) CHANCELLOR


For Appellants                           For Appellees Wilma Jeffers,
                                           et al., Individually, and
ANDREW R. TILLMAN                          Town of Helenwood
Paine, Tarwater, Bickers
 & Tillman                               DAVID E. RODGERS
Knoxville, Tennessee                     Kramer, Rayson, Leake,
                                         Rodgers    & Morgan
                                         Oak Ridge, Tennessee

                                         For Appellees Scott County
                                           Election Commission and
                                           Attorney General & Reporter




                                                                         Page 1
                                  PAUL G. SUMMERS
                                  Attorney General and Reporter
                                  Nashville, Tennessee

                                  MICHAEL E. MOORE
                                  Solicitor General
                                  Nashville, Tennessee

                                  STEVEN A. HART
                                  Special Counsel
                                  Nashville, Tennessee

                                  ANN LOUISE VIX
                                  Senior Counsel
                                  Nashville, Tennessee

                          OPINION

REVERSED AND REMANDED                                   Susano, J.

          This litigation originated when the Town of

Huntsville (“Huntsville”) and Stanlodge, LLC (“Stanlodge”),

filed suit challenging the constitutionality of Chapter 1101

of the Public Acts of 1998.   The plaintiffs specifically

contest Section 9(f)(3) 1 of Chapter 1101, which permits

certain territories to hold incorporation elections even

though these territories do not satisfy the minimum

requirements for such elections as set forth in the general

law.   See T.C.A. § 6-1-201 (1998).   On cross motions for

summary judgment, the trial court granted summary judgment to

the defendants, finding that Section 9(f)(3) is

constitutional.   Huntsville and Stanlodge appeal, raising five

issues:



          1.   Does Section 9(f)(3) violate Article
          XI, Section 9 of the Tennessee
          Constitution by granting Helenwood and
          four other communities a special right to



                                                                     Page 2
         incorporate?


         2.   Does Section 9(f)(3) violate Article
         XI, Section 8 of the Tennessee
         Constitution by (a) creating a class of
         territories that can incorporate despite
         the general population and distance
         requirements applicable to municipalities
         statewide, (b) without any rational basis
         for the classification?


         3.   Does Section 9(f)(3) violate the
         separation of powers doctrine by
         attempting to nullify Tennessee Municipal
         League v. Thompson through a clause giving
         retroactive effect to a second
         incorporation election?


         4.   Does the subject of incorporation of
         tiny towns go beyond the restrictive
         caption of Chapter 1101?


         5.   Did the trial court err in holding as
         a matter of law that the legislature is
         not constrained by the Public Meetings Act?


                              I.



         In 1997, the General Assembly passed Chapter 98 of

the Public Acts of that year, which Chapter amended the

provisions of T.C.A. § 6-1-201, et seq.   Specifically, Section

7 of Chapter 98 lowered the minimum population requirement for

incorporation from 1,500 residents to 225 residents.     Section

8 of Chapter 98 deleted § 6-1-201(b)(1), a statute prohibiting

the incorporation of a territory within three miles of any

existing municipality or within five miles of an existing

municipality with a population of 100,000 or more.     Pursuant




                                                                   Page 3
to the then newly-enacted Chapter 98, the community of

Helenwood, an area of less than 1,500 residents that adjoins

the incorporated municipality of Huntsville, held an

incorporation election.     On November 20, 1997, a majority of

those exercising their franchise voted to incorporate the Town

of Helenwood.   The Scott County Election Commission later

certified the election.     The city limits of the new town

encompassed a portion of two areas adjoining the old city

limits of Huntsville.     In fact, those two areas, which

included the site of a Holiday Inn Hotel owned by the

plaintiff Stanlodge, had been the subject of an annexation

ordinance enacted by Huntsville two months prior to the

Helenwood incorporation election.



         In December, 1997, the Supreme Court, in the case of

Tennessee Municipal League v. Thompson, 958 S.W.2d 333 (Tenn.

1997), declared that Chapter 98 was unconstitutional, in that

it violated Article II, § 17, the so-called caption provision

of the Tennessee Constitution.     The effect of the ruling was

to reinstate the provisions of T.C.A. § 6-1-201 as they

existed prior to the enactment of Chapter 98.     Subsequently,

in May, 1998, the General Assembly passed Chapter 1101 of the

Public Acts of 1998, an act amending various statutes relating

to the growth of municipalities.     Section 9(f)(3) of Chapter

1101 provides as follows:



         (A)    Notwithstanding any other provision



                                                                  Page 4
         of law to the contrary, if any territory
         with not less than two hundred twenty-five
         (225) residents acted pursuant to Chapter
         98 of the Public Acts of 1997 or Chapter
         666 of the Public Acts of 1996 from
         January 1, 1996, through November 25,
         1997, and held an incorporation election,
         and a majority of the persons voting
         supported the incorporation, and results
         of such election were certified, then such
         territory upon filing a petition as
         provided in § 6-1-202, may conduct another
         incorporation election.

         (B) If such territory votes to

         incorporate, the new municipality shall

         have priority over any prior or pending

         annexation ordinance of an existing

         municipality which encroaches upon any

         territory of the new municipality.    Such

         new municipality shall comply with the

         requirements of Section 13(c) of this act.



         Pursuant to section 9(f)(3), the community of

Helenwood held a second incorporation election.    On August 6,

1998, a majority of Helenwood residents voted again in favor

of incorporation.   The Scott County Election Commission later

certified the results of that election.   Subsequently,

Huntsville and Stanlodge brought suit against the Town of

Helenwood (“Helenwood”), members of the Scott County Election

Commission, the individuals who signed the petition to

incorporate Helenwood, and the State Attorney General seeking

to invalidate the incorporation, a portion of which purports

to take in areas that Huntsville claims were previously



                                                                  Page 5
annexed into its boundaries.     The trial court found in favor

of the defendants, and dismissed the plaintiffs’ complaint by

way of summary judgment.    This appeal followed.



                                 II.



          We review the propriety of the trial court’s grant

of summary judgment under the standard set forth in Rule

56.04, Tenn.R.Civ.P., which provides that summary judgment is

appropriate where



          the pleadings, depositions, answers to

          interrogatories, and admissions on file,

          together with the affidavits, if any, show

          that there is no genuine issue as to any

          material fact and that the moving party is

          entitled to a judgment as a matter of law.



Id.   All of the material facts necessary to our determination

are undisputed.     Since our review involves only a question of

law, no presumption of correctness attaches to the trial court’

s findings.   Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44

(Tenn.App. 1993).



                                III.



          We begin with the presumption that Section 9(f)(3)



                                                                   Page 6
of Chapter 1101 is constitutional.   “There is a strong

presumption in favor of the constitutionality of acts passed

by the Legislature and its acts will not be held

unconstitutional merely for reasons of policy.”    Bozeman v.

Barker, 571 S.W.2d 279, 282 (Tenn. 1978)(citing Dennis v.

Sears, Roebuck & Co., 446 S.W.2d 260, 263 (Tenn. 1969).



         The plaintiffs allege that section 9(f)(3) suspends

a general law in violation of Article XI, Section 8 of the

Tennessee Constitution.   Specifically, as pertinent here, the

plaintiffs charge that section 9(f)(3) contravenes T.C.A. §§

6-1-201(a)(1) and (b)(1)(A), which provide that territories

seeking to incorporate must have at least 1,500 residents and

be at least three miles from an existing municipality. 2   The

defendants contend that section 9(f)(3) does not contravene a

general law and, in any event, is supported by a rational

basis.



         Article XI, Section 8 of the Tennessee Constitution

provides as follows:



         The legislature shall have no power to

         suspend any general law for the benefit of

         any particular individual, nor to pass any

         law for the benefit of individuals

         inconsistent with the general laws of the

         land; nor to pass any law granting to any



                                                                 Page 7
         individual or individuals, rights,

         privileges, immunitie [immunities], or

         exemptions other than such as may be, by

         the same law extended to any member of the

         community, who may be able to bring

         himself within the provisions of such law.

         No corporation shall be created or its

         powers increased or diminished by special

         laws but the General Assembly shall

         provide by general laws for the

         organization of all corporations,

         hereafter created, which laws may, at any

         time, be altered or repealed and no such

         alteration or repeal shall interfere with

         or divest rights which have become vested.



Tennessee courts have long recognized the similarity between

Article XI, Section 8, and the Equal Protection Clause of the

Federal Constitution, and have therefore applied an equal

protection analysis to constitutional challenges brought

pursuant to Article XI, Section 8.   Motlow v. State, 145 S.W.

177, 180 (Tenn. 1912); King-Bradwall Partnership v. Johnson

Controls, Inc., 865 S.W.2d 18, 21 (Tenn.App. 1993)(“the

Supreme Court of Tennessee ‘has adopted a virtually identical

equal protection standard or analysis under Article XI,

Section 8 of the Tennessee Constitution.’”).   The plaintiffs

do not argue, nor could they, that infringement of a



                                                                 Page 8
fundamental right is involved here, or that the legislature

has created a classification involving a “suspect” or “

protected” class, such as race or national origin.     Therefore,

the standard to be applied is the familiar “rational basis”

standard.    State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994);

City of Memphis v. International Bhd. of Elec. Workers Union

Local 1288, 545 S.W.2d 98, 102 (Tenn. 1976); King-Bradwall,

865 S.W.2d at 21.



                                 IV.



            Article XI, Section 8 is implicated in this case

because section 9(f)(3) contravenes the general law pertaining

to the incorporation of municipalities.     See Riggs v. Burson,

941 S.W.2d 44, 53 (Tenn. 1997), cert. denied, 118 S.Ct. 444

(1997)(“Article XI, section 8 is implicated when a statute ‘

contravene[s] some general law which has mandatory statewide

application.’”)(quoting Civil Serv. Merit Bd. v. Burson, 816

S.W.2d 725, 727 (Tenn. 1991)).     Section 9(f)(3)(A) enables

certain territories to hold elections even though they do not

have at least 1,500 residents and are within three miles of an

existing municipality.    Furthermore, Section 9(f)(3)(B) gives

these territories retroactive priority over any prior or

pending annexation ordinances of adjoining municipalities, a

priority not afforded to other territories seeking

incorporation.    Thus, Section 9(f)(3) creates a special

classification of territories that may hold incorporation


                                                                    Page 9
elections while other territories of similar size and location

cannot do so under the applicable general law.

          Having determined that Section 9(f)(3) creates a

classification in contravention of a general law, we now must

determine if there is a rational basis for this

classification.     A statute does not violate Article XI,

Section 8 unless the statute creates a classification which is

capricious, unreasonable, or arbitrary.     Civil Serv. Merit Bd.,

816 S.W.2d at 730.     To withstand scrutiny under the rational

basis standard, a classification must “have some basis which

bears a natural and reasonable relation to the object sought

to be accomplished, and there must be some good and valid

reason why the particular individual or class upon whom the

benefit is conferred, or who are subject to the burden

imposed, not given to or imposed upon others, should be so

preferred or discriminated against.”     State v. Nashville,

Chattanooga & St. Louis Ry. Co., 135 S.W. 773, 775 (Tenn.

1911); see also Knoxville’s Community Dev. Corp. v. Knox

County, 665 S.W.2d 704, 705 (Tenn. 1984)(“Where the provisions

of an act which is either local or local in effect do

contravene such a general law, however, the provisions of

Article XI, § 8, of the state constitution come into play, and

there must be some reasonable basis for the special provision.”

).   The reasonableness of a classification depends upon the

particular facts of the case.     Estrin v. Moss, 430 S.W.2d 345,

349 (Tenn. 1968).




                                                                     Page 10
         The defendants state in their brief that Section

9(f)(3) “allows individuals in certain territories who bore

the expense and the effort of holding an incorporation

election under certain laws subsequently found to be

unconstitutional to vote again.”   This obviously was the

motivation behind the enactment of Section 9(f)(3).    The

language of that legislative provision applies precisely to

the circumstances of the Helenwood community.   The record

suggests that the same language may apply to one or more other

small communities -- but not more than a handful –- who moved

quickly to incorporate under the invalid 1997 legislation.

When we search for the required “rational basis,” we are

unable to discern a rational difference between the community

of Helenwood on the one hand and the hundreds of other small

communities in Tennessee who are prohibited from seeking

incorporation because their communities lack 1,500 or more

citizens and/or are too close to an existing incorporated

municipality.   The record does not reflect any intrinsic

difference between the community of Helenwood and these other




                                                                 Page 11
small communities.   For this reason, we find and hold that

Section 9(f)(3) does not pass constitutional muster.       Equals

must be treated the same.   Our Constitution requires it.



         We simply do not find a rational basis for the

exemption embodied in section 9(f)(3).    The sole basis for

distinguishing Helenwood from other similarly-sized

territories   is that Helenwood took certain actions pursuant

to an invalid legislative enactment.     The mere fact that

residents of Helenwood expended money and effort to

incorporate cannot justify exemption from a general law

requiring more than six times the number of residents to

qualify for an incorporation election.    Nor can a void

election justify the grant of retroactive priority to

Helenwood over the annexation ordinance of Huntsville.



         By enacting Chapter 98 in 1997, the Legislature

significantly lowered the population requirement and

eliminated the distance requirement for incorporation.

Shortly after the Tennessee Supreme Court’s decision in

Tennessee Municipal League v. Thompson, the Legislature

enacted Section 9(f)(3) of Chapter 1101, which permits

territories that had held successful incorporation elections

under Chapter 98 to hold another election.     For whatever

reason, the Legislature did not see fit when drafting Chapter

1101 to amend § 6-1-201 to permit all communities with 225 or

more residents, regardless of location, to incorporate, as was



                                                                    Page 12
the case under the earlier-enacted, but later-declared-invalid

Chapter 98.    Instead, the Legislature created a special

classification of territories, and the only basis for

distinguishing these territories is that they had held

incorporation elections under a unconstitutional statute.          We

find that by creating this exception to the general law, the

Legislature made an arbitrary classification.       We can find no

rational basis to justify it.



                                 VI.



            We therefore find that section 9(f)(3) of Chapter

1101 of the Public Acts of 1998 is unconstitutional because it

offends Article XI, Section 8 of the Tennessee Constitution.

For this reason, we do not reach the other issues raised by

the appellants.     The decision of the trial court is hereby

reversed.     The plaintiffs are hereby granted summary judgment

on their motion.     All costs on appeal, as well as those at the

trial level, are taxed against the appellees.       This case is

remanded for such further proceedings as may be required,

consistent with this opinion.



                                       __________________________
                                       Charles D. Susano, Jr., J.

CONCUR:



________________________
Houston M. Goddard, P.J.



                                                                        Page 13
________________________
Herschel P. Franks, J.




                           Page 14
