                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                           November 14, 2005 Session

   STATE OF TENNESSEE, ex rel., DARRELL L. TIPTON, MICHAEL L.
         ROSS, and DALE M. ROSS v. CITY OF KNOXVILLE

                  Direct Appeal from the Chancery Court for Knox County
                    No. 152487-2     Hon. Daryl R. Fansler, Chancellor



                No. E2004-01359-COA-R3-CV - FILED JANUARY 17, 2006


In this quo warranto action contesting annexation by the City, the Trial Could held landowners were
not entitled to a jury trial and they had the burden of proof to contest in the annexation. Following
trial, the Court held landowners had carried the burden of proof to invalidate the annexation. On
appeal, we affirm the Trial Court’s preliminary rulings, but reverse the invalidation of the
annexation.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and
Reversed in Part.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and NORMA MCGEE OGLE, J., joined.

Debra C. Poplin, Knoxville, Tennessee, for appellant, City of Knoxville.

David L. Buuck, Knoxville, Tennessee, for appellees.



                                            OPINION


                 In this quo warranto action, the Chancellor voided defendant’s ordinance annexing
plaintiffs’ real estate, and the City has appealed.

             The Complaint attacked the constitutionality of the annexation statutes and the
Attorney General was allowed to intervene to defend. Before trial, the Chancellor granted a partial
summary judgment, upholding the constitutionality of the annexation statutes, and a bench trial was
held during several days in September 2003. Subsequently, the Trial Court entered an Memorandum
Opinion which concluded that plaintiffs could choose one of two burdens of proof under Tenn. Code
Ann. § 6-58-111, i.e., the plaintiffs could either prove that the Ordinance was unreasonable, or they
could prove that material retardation would not occur in the absence of such annexation. Then the
Trial Court entered an Order holding that “the Plaintiffs have carried their burden of proof as
required under T.C.A. § 6-58-111(a) in establishing that the health, safety, and welfare of the citizens
and property owners of the municipality and ‘territory’ will not be materially retarded in the absence
of such annexation.” The Court voided the Ordinance, and the City noticed an Appeal.

             Our standard of review is well described in Keaton v. Hancock County Bd. of Educ.,
119 S.W.3d 218, 222-23 (Tenn. Ct. App. 2003), as follows:

                This is a non-jury case and, as such, is subject to our de novo review upon the record
                of the proceedings below. As mandated by Tenn. R. App. P. 13(d), there is a
                presumption that the trial court’s findings of fact are correct and we must honor that
                presumption unless the evidence preponderates to the contrary. Union Carbide Corp.
                v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). There is no presumption as to the
                correctness of the trial court’s conclusions of law. See Campbell v. Florida Steel
                Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

                 The City argues that the Trial Court erred in its interpretation of T.C.A. § 6-58-111(a)
as to the applicable burden of proof to be carried by the plaintiff. This issue turns on the
interpretation and coordination of the two statutes: Tenn. Code Ann. § 6-51-103 and Tenn. Code
Ann. § 6-58-111. Section 6-51-103 is part of the older statutory framework enacted in 1955. 1955
Tenn. Pub. Acts, ch. 113, § 2. The older framework authorizes municipalities to expand their
corporate boundaries either (1) in response to a petition from a majority of the residents and property
owners of the affected territory or (2) upon its own initiative if failure to expand would materially
retard the prosperity of the municipality and territory and would endanger the safety and welfare of
the inhabitants and property in the municipality and territory. Tenn. Code Ann. § 6-51-102(a)(1)
(2005). Section 6-51-103 allows an aggrieved owner of property lying within the annexed territory1
to file suit in the nature of a quo warranto proceeding to contest the validity of the annexation
ordinance. § 6-51-103(a)(1)(A); Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990). When
an aggrieved property owner files suit, the city proposing the annexation has the burden of proving
“that [the] annexation ordinance is reasonable for the overall well-being of the communities
involved.” § 6-51-103(c). The Supreme Court has interpreted § 6-51-103 to the effect that the
General Assembly intended the issue of reasonableness to be tried by a jury unless some
disqualifying condition applied. State ex rel. Moretz v. City of Johnson City, 581 S.W.2d 628, 631
(Tenn. 1979).

        1
         Although § 6-51-103(a)(1)(A) states that an aggrieved owner of property bordering or lying
within the annexed territory has standing to contest the annexation ordinance, the Tennessee
Supreme Court held that only owners of property lying within the territory have such standing. Hart
v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990).

                                                  -2-
               Section 6-58-111 is part of the newer statutory framework enacted in 1998. 1998
Tenn. Pub. Acts, ch. 1101, § 12. This enactment is entitled the “Comprehensive Growth Plan,” and
was enacted to establish a comprehensive growth policy for the state that

                (1) Eliminates annexation or incorporation out of fear;

                (2) Establishes incentives to annex or incorporate where appropriate;

                (3) More closely matches the timing of development and the provision of public
                services;

                (4) Stabilizes each county’s education funding base and establishes an incentive for
                each county legislative body to be more interested in education matters; and

                (5) Minimizes urban sprawl.

Tenn. Code Ann. § 6-58-102 (2005).

                This new statutory scheme requires the local governments in each county to develop
a county growth plan through a coordinating committee. Tenn. Code Ann. § 6-58-104 (2005). The
plan would allocate the county’s unincorporated land to urban growth areas,2 planned growth areas,3
and rural areas.4

               Once a county and its municipalities adopt a growth plan and it is approved by the
local government planning advisory committee, all land use decisions in the county must conform
to the growth plan. Tenn. Code Ann. § 6-58-107. Municipal governments in such counties are still
permitted to annex territory upon their own initiative pursuant to § 6-51-102(a)(1), but they may only
do so within their urban growth boundary. § 6-58-111(a). Where a municipality annexes territory
within its urban growth boundary and a quo warranto action is filed to challenge the annexation,


        2
        An urban growth area includes territory contiguous to the existing boundaries of a
municipality into which the municipality is expected to grow during the next twenty years and to
which the municipality is better able to provide services than are other municipalities. Tenn. Code
Ann. § 6-58-106(a)(1) (2005).
        3
        A county’s planned growth area consists of territory in which residential and nonresidential
growth is expected to occur over the next twenty years and which is not part of any municipality or
urban growth area. Tenn. Code Ann. § 6-58-106(b)(1) (2005).
        4
        A county’s rural area consists of territory which is not in any urban growth or planned
growth area and which is to be preserved for uses such as agriculture, forestry, recreation, or wildlife
management. Tenn. Code Ann. § 6-58-106(c)(1) (2005).

                                                  -3-
the party filing the action has the burden of proving that:

                (1) An annexation ordinance is unreasonable for the overall well-being of the
                communities involved; or

                (2) The health, safety, and welfare of the citizens and property owners of the
                municipality and territory will not be materially retarded in the absence of such
                annexation.

§ 6-58-111(a). Such an action is tried by a circuit judge or chancellor without a jury. § 6-58-111(b).

               Thus, the judicial review procedures outlined in the older framework (§ 6-51-103)
and the newer framework (§ 6-58-111) have significant differences. First, under § 6-58-111(a), the
newer framework shifts the burden of proof from the annexing municipality to the party contesting
the annexation. Second, under § 6-58-111(b), the newer framework removes any right to a jury trial.
An issue presented in this case is whether there is another significant difference, i.e., whether the
burden of proof was not only shifted, but whether both grounds set forth in the statute must be
proven.

                 The crux of this issue is the meaning of the word “or” as it is used in § 6-58-
111(a)(1)-(2). The City argues that construing “or” in its disjunctive sense would cause § 6-58-111
to provide for two alternate burdens of proof, (1) unreasonableness or (2) no material retardation,
while § 6-51-103 only provides one burden of proof, reasonableness. The City also argues that this
would make the two statutes irreconcilable, and that “or” should be construed as the conjunction
“and.” Plaintiffs argue that this issue is not appropriate for review because it was not properly raised
before the trial court, and they argue that “or” should be construed in its disjunctive sense.

                At the beginning of the trial, the Plaintiffs made clear that they did not intend to prove
that the Ordinance was unreasonable; rather, they intended to prove that the health, welfare, and
safety of both the City and the annexed territory would not be materially retarded if the territory was
not annexed. During the bench trial the Plaintiffs focused on this issue, and the City focused on
whether the Ordinance was reasonable. Due to this apparent disconnect between the evidence
presented by the parties, the Trial Judge gave the parties two weeks in which to submit briefs
discussing the correct burden of proof set forth in Tenn. Code Ann. § 6-58-111. Subsequently, the
Chancellor, in his Memorandum Opinion, concluded that the Plaintiffs could choose one of the two
burdens of proof, and could either prove that the Ordinance was unreasonable or they could prove
that material retardation would not occur in the absence of annexation.

                  Plaintiffs argue this issue should not be reviewed on appeal because it did not arise
until after the trial. “In the non-jury case, until the matter has been finally submitted to the trial judge
for decision, the ‘trial’ of the case has not been concluded. The trial judge may order further proof
to be taken, may reopen the proof for various purposes, extend the time for filing briefs, and the
like.” Weedman v. Searcy, 781 S.W.2d 855, 857 (Tenn. 1989).


                                                    -4-
              Based on the foregoing, the “trial” of this case did not end until the Trial Judge’s two
week deadline for post-trial briefs had passed. Thus, the issue was properly raised before the Trial
Court.

             While the City argues the Chancellor erred in construing “or” in its disjunctive sense,
the Supreme Court has instructed:

               Legislative intent or purpose is to be ascertained primarily from the natural and
               ordinary meaning of the language used, without forced or subtle construction that
               would limit or extend the meaning of the language.

Carson Creek Vacation Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). The
City argues the meaning of the word “or” in § 6-58-111(a)(1)-(2) is ambiguous, and that the word
“or” in its disjunctive sense will render T.C.A. §§ 6-58-111 and 6-51-103 irreconcilable.5 The City’s
argument is based on the incorrect view that the issue of reasonableness required by § 6-51-103(a),
(c), (d) applies to all annexation contests, including contests of annexations within an approved
urban growth boundary.

                Section 6-58-111 applies to quo warranto proceedings contesting an annexation of
territory by a municipality within its approved urban growth boundary. § 6-58-111(a). When the
General Assembly enacted § 6-58-111 it created incentives to encourage local governments to
develop approved growth plans. §§ 6-58-109 to -110. Thus, the General Assembly intended for all
counties to eventually develop growth plans with the result that § 6-58-111 would eventually apply
to all annexation proceedings. Since the provisions allowed for a period of time for approving
growth plans, it followed that some counties would not. Thus, § 6-51-103(a), (c), (d) was retained
to govern annexation contests in counties without approved growth plans.

                A disjunctive construction of the word “or” in § 6-58-111(a)(1)-(2) does not render
§§ 6-58-111 and 6-51-103 irreconcilable because the burdens of proof established in these statutes
are not applied simultaneously. Section 6-58-111(a) applies to annexations of territory within a
municipality’s approved urban growth boundary and § 6-51-103(a), (c), (d) applies to annexations
that occur in counties without an approved growth plan. These sections are reconciled because they
apply to different situations, and are not ambiguous.

                 Finally, on this issue, the City argues the legislative history of § 6-58-111(a)(1)-(2)
demonstrates that the use of the word “or” is a typographical error. However, there is no need to
resort to the statute’s legislative history, because the natural and ordinary meaning of the statute is
not ambiguous. Moreover, if the use of legislative history was appropriate here, the legislative

       5
        The City argues that construing “or” in its disjunctive sense would cause § 6-58-111(a) to
provide for two alternate burdens of proof, (1) unreasonableness or (2) no material retardation, while
§ 6-51-103(a), (c), (d) only provide one burden of proof, reasonableness. According to the City, this
makes the two statutes irreconcilable.

                                                  -5-
                history does not show that the use of the word “or” was a typographical error.

                The parties have stipulated that the land to be annexed is within the City’s approved
urban growth boundary. Therefore, § 6-58-111(a)(1)-(2) applies, and Plaintiffs need only prove that
either (1) the Ordinance is unreasonable or (2) that “the health, safety, and welfare of the citizens and
property owners of the municipality and territory will not be materially retarded in the absence of
such annexation.” The Plaintiffs chose the latter as their preferred burden of proof.

                In this regard, the Trial Court held that “by a preponderance of the evidence the
plaintiffs have proven that the health, safety, and welfare of the citizens and property owners of the
municipality and the ‘territory’ will not be materially retarded in the absence of such annexation.”

                In this case, the burden of proof on this issue was upon plaintiffs. Language similar
to that in § 6-58-111(a)(2) can be found in § 6-51-102(a)(1), which states that a municipality may
annex unincorporated territory upon its own initiative “when it appears that the prosperity of such
municipality and territory will be materially retarded and the safety and welfare of the inhabitants
and property endangered.” § 6-51-102(a)(1) (2005). The General Assembly’s decision to borrow
language from § 6-51-102(a)(1) and use it in § 6-58-111(a)(2)’s burden of proof must have furthered
some purpose. Tidwell v. Servomation-Willoughby Co., 483 S.W.2d 98, 100 (Tenn. 1972).

              The Tennessee Supreme Court has described the pre-annexation deliberations
required of municipal legislative bodies by § 6-51-102(a)(1) as follows:

                [T]he Act is saying that the legislative body should consider what adverse conditions
                would result from a failure to act, and to consider what benefits would follow
                affirmative action. It follows as a matter of logic that if by affirmative action the
                “safety and welfare” of the community would be benefitted, then by failure to act
                “the safety and welfare” would be endangered. Thus, it appears to this Court that the
                legislative body is required by the statute to consider the effects of both positive and
                negative action, and to then act or fail to act as in its discretion is best for the
                community.

State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 893 (Tenn. 1974). In other words, if
annexation would benefit a municipality and territory, failure to annex the territory would necessarily
harm that municipality and territory. See, e.g., Mulrooney v. Town of Collierville, No. W1999-
01474-COA-R3-CV, 2000 WL 34411151, at *3 (Tenn. Ct. App. 2000). Interpreting § 6-58-
111(a)(2) in conjunction with § 6-51-102(a)(1) leads to the conclusion that proving lack of material
retardation necessarily requires proof that annexation will not materially benefit the municipality and
territory. Therefore, under § 6-58-111(a)(2), Plaintiffs were required to prove that annexation would
not materially benefit the health, safety, and welfare of the citizens and property owners of the City
and the affected territory.

                Whether annexation is materially beneficial to the affected territory depends not only


                                                  -6-
upon what services the municipality will provide after annexation, but also upon those services the
municipality already provides to the affected territory. The fact that an affected territory already
receives municipal services demonstrates that the affected territory benefits from those services and
that the welfare of the property owners in the affected territory is enhanced by those services.
Bowevil Express, LLC v. City of Henderson, No. W1999-02137-COA-R3-CV, 2001 WL 204211,
at *5 (Tenn. Ct. App. 2001); see also Cox v. City of Jackson, No. 02A01-9701-CH-00002, 1997 WL
777078, at *6 (Tenn. Ct. App. 1997).

                The territory affected by the Ordinance (the “Territory”) is a single parcel of land
owned by plaintiffs and entirely surrounded by the City. The Territory is located at 8426 Kingston
Pike, and according to the City’s Director of Engineering, Kingston Pike’s average daily traffic
volume is between 32,000 and 33,000 cars per day. The current lessee of the Territory testified that
the traffic volume on Kingston Pike is “an asset to that location.”

                 Kingston Pike is a state highway, and the Tennessee Department of Transportation
and the City work together to maintain the portion of Kingston Pike within the City. Under the
contract governing this relationship, the State reimburses the City for maintenance of the road
surface, but does not provide the City with funds for storm drainage, traffic control signs and signals,
street lighting, and street name signs. The Territory is located along the south side of Kingston Pike
between the intersections of Kingston Pike with Gallaher View Road and Walker Springs Road.
Along this portion of Kingston Pike there are about twenty street lights, one of which is directly in
front of the Territory. There are also three traffic signals along this portion of Kingston Pike, one
near the middle of the block and one on either end. According to the City’s Mayor, the City pays
for the installation and maintenance of those street lights and signals as well as for the necessary
electricity. Plaintiff Michael Ross admitted that the street lights are “a good thing”, and that the
traffic signals are helpful for customers trying to enter the Territory from Kingston Pike. The current
lessee of the Territory testified that lighting like that provided by the street lights helps to deter crime
and that “to some degree” the traffic signals provide breaks in traffic which help customers entering
and exiting the Territory.

               Additionally, the Territory is surrounded by City storm drains, and according to the
City’s Director of Engineering, all rain water falling on the Territory flows into the City’s storm
drain system. The City bears the cost of the installation, inspection, and maintenance of these storm
drains.

                As the City completely surrounds the Territory, the City’s police patrol the area
surrounding the Territory. The City’s Police Department describes the three square miles
surrounding the Territory as a “primary beat.” There is at least one officer on patrol in this area at
all times. According to the City’s Deputy Chief of Police, the “high visibility patrols” conducted in
this area deter crime. Although the Territory is not part of the City and City police have no
jurisdiction there, 911 dispatchers have dispatched City police to the Territory on 51 separate
occasions between 1999 and 2003.



                                                    -7-
                Plaintiffs contracted with Rural Metro Fire Department to provide firefighting
services to the Territory, but the fire hydrants near the Territory are owned by the Knoxville Utilities
Board and were installed at the expense of the City’s fire department. The water that flows through
these fire hydrants is paid for by the City. Fire organizations other than the City’s fire department
may use these hydrants, but they do not reimburse the City for the cost of water. According to the
City’s Fire Chief, the plaintiffs’ building within the Territory is only ten feet away from the nearest
building within the city, and regardless of Rural Metro’s response, the City’s fire department
responds to any fire in the Territory in order to prevent damage to nearby buildings within the City.

                The City’s proposed Plan of Services for the Territory states that on the date of
annexation all of the City’s police resources will be available to the Territory, and the City’s police
department will respond to all calls for service from the territory. The City’s police department has
approximately 406 certified law enforcement officers, including 245 patrol officers. In contrast, the
Knox County Sheriff’s Department has approximately 440 certified law enforcement officers,
including 200 patrol officers, whose primary response area is outside of the City, and away from the
Territory. The unincorporated area of responsibility consists of 420 square miles, vis a vis, the City’s
responsibility of approximately 100 square miles. Thus, annexation is likely to lead to a more rapid
response to the Territory’s law enforcement needs.

                The City’s Plan of Services also states that on the date of annexation the City’s fire
department will answer all calls for service from the Territory. According the City’s Fire Chief, the
department has 50 pieces of fire suppression equipment, has 328 full time firefighters, and at any
given time there are approximately 97 on duty. Those who are not on duty are considered on call in
cases of significant emergency. These resources are stationed at eighteen fire stations throughout
the City, and the firefighters have an average response time of four minutes to any location within
the City. According to the City’s Fire Chief, the average response time to the Territory would be
approximately three and a half minutes.

                In contrast Rural Metro Fire Department has 31 pieces of fire suppression equipment
and 28 full time firefighters located at 14 stations in the unincorporated portions of the county. The
department also has 128 reservists who are part-time employees of the department. These reservists
are notified of a call for service via pager. Based upon these facts and the fact that the Territory is
an unincorporated enclave surrounded by the City, annexation would lead to a more rapid response
to the Territory’s firefighting needs.

                Based upon all of the foregoing, we conclude that the preponderance of the evidence
establishes the territory would materially benefit from annexation. This conclusion flows from the
improved services that the Territory will receive after annexation and from the material benefits the
Territory already receives from the City. Due to the Territory’s unique geographic position, it is
already a de facto part of the City.

               The issue thus becomes whether the proposed annexation would materially benefit
the City.


                                                  -8-
                 The County designates the Territory as a “CA” general business zone. The City has
zoned the parcels surrounding the Territory as “C4" (highway and arterial commercial district), “C3"
(general commercial district), or “PC-1" (retail and office park district). Land uses permitted within
the County’s “CA” zone which are not permitted in the above City zones include: single family and
two family residences, armories, undertaking establishments, canneries, farming, transient mobile
home parks, portable sawmills, retail poultry businesses, demolition landfills, and commercial
telecommunications towers. “[A city] has a vital concern in guarding against the helter-skelter
establishment of commercial activities that may not be in harmony with those already in operation.
Indeed, the prevention of incompatible commercial enterprises is a high municipal duty.” State ex
rel, Collier v. City of Pigeon Forge, 599 S.W.2d 545, 547 (Tenn. 1980). After annexation, the City
will be able to place an appropriate land use zone upon the Territory (subject to grandfathering).
This will benefit the surrounding City property owners by guaranteeing land use consistency
throughout the area.

               The fact that the Territory is an unincorporated enclave surrounded by the City
complicates the provision of emergency services in the City. The City’s Mayor described the
problem as follows:

               [F]rom a service delivery standpoint [the Territory’s location] creates a certain degree
               of confusion and uncertainty which frankly places at risk persons who might be doing
               business [in the Territory,] [a]nd it just seems to me from a safety standpoint it made
               a lot of sense to recommend [the Territory] come into the city.

The Division Chief of the Rural-Metro Fire Department admitted that if the call for service does not
originate from the Territory there could be confusion as to the proper agency to dispatch. According
to the 911 dispatch center’s records specialist, dispatch errors would be reduced if the Territory were
made part of the City. Surrounding property owners would benefit from improved dispatch of
emergency services to the Territory. This is especially true of firefighting services, given the close
proximity of the Territory to surrounding buildings in the City.

               After annexation, the City would be able to guarantee harmonious land uses
throughout the area surrounding the Territory. In addition, the City will be able to better respond to
emergencies in that area. Based on these facts, the preponderance of the evidence establishes that
the City would materially benefit from the annexation.

                Based upon the evidence heretofore analyzed, the preponderance of the evidence
shows that (1) the Territory currently, materially benefits from services provided by the City, (2) the
Territory would materially benefit from the additional post-annexation services which the City would
provide, and (3) the City will materially benefit from annexation. If the Territory and City will
materially benefit from annexation, then it follows that the failure to annex the Territory would
materially retard the health, safety, and welfare of the citizens and property owners of the City and
Territory. See State ex rel. Wood v. City of Memphis, 510 S.W.2d 889, 893 (Tenn. 1974); Mulrooney
v. Town of Collierville, No. W1999-01474-COA-R3-CV, 2000 WL 34411151, at *3 (Tenn. Ct. App.


                                                 -9-
2000). We conclude the Plaintiffs failed to carry their burden of proof under Tenn. Code Ann. § 6-
58-111(a)(2), and the evidence preponderates against the Trial Court’s finding of fact. Tenn. R. App.
P. 13(d).

              Conditioned upon our ruling, the plaintiffs raised the issue on appeal that T.C.A. §6-
58-111 is unconstitutional in depriving plaintiffs of the right to a jury trial.

                Plaintiffs base this claim on five arguments: (1) The statute is a unconstitutional
classification violating Article XI, Section 9 of the Tennessee Constitution, (2) the caption of 1998
Tenn. Pub. Acts, ch. 1101 does not meet the requirements of Article II, Section 17 of the Tennessee
Constitution, (3) the right to a jury trial in quo warranto actions is guaranteed by Article I, Section
6 of the Tennessee Constitution, (4) the Tennessee Supreme Court has held that owners of property
annexed into a municipality by ordinance have a constitutional right to a jury trial when contesting
that annexation, and (5) the right to a jury trial is guaranteed by Rule 38.01 of the Tennessee Rules
of Civil Procedure.

                 Plaintiffs argue that § 6-58-111(b) creates an unconstitutional classification because
it applies only to annexations of territory within a municipality’s approved urban growth plan. They
further argue that local governments are not required to adopt approved growth plans, and they
conclude that “it is possible” that there are counties which do not have such approved growth plans.
They argue that based upon this “possibility,” and in those counties without such plans, challengers
to annexation would have access to a jury trial under § 6-51-103.

                Article XI, Section 9 of the Tennessee Constitution states in relevant part: “The
General Assembly shall by general law provide the exclusive methods by which municipalities may
be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.”
Tenn. Const. Art. XI, § 9 (the “Municipal Boundaries Clause”). According to the Tennessee
Supreme Court, the Municipal Boundaries Clause was adopted to prevent “the great evils that had
arisen in regard to the Legislature enacting legislation affecting only one county or municipality.”
Frost v. City of Chattanooga, 488 S.W.2d 370, 373 (Tenn. 1972). The Court has invalidated
amendments to municipal annexation statutes when such amendments apply in only one or relatively
few counties. See Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990) (invalidating an
amendment to the quo warranto statute which only applied in 14 counties); Vollmer v. City of
Memphis, 730 S.W.2d 619 (Tenn. 1987) (invalidating an amendment which used narrow population
brackets to define the scope of its application); Pirtle v. City of Jackson, 560 S.W.2d 400, 402 (Tenn.
1977) (invalidating an amendment to the quo warranto proceeding’s burden of proof which applied
in only a “few chosen municipalities”); Frost, 488 S.W.2d at 371 (invalidating an amendment which
applied only to the City of Chattanooga).

                Unlike the statues invalidated in these cases, § 6-58-111(b) was not enacted as a
special rule for a few chosen local governments. Rather, it was enacted with the intention that it
would apply to most and eventually all annexations. This intention is evidenced by the General
Assembly’s creation of a coordinating committee within every county. Tenn. Code Ann. § 6-58-


                                                 -10-
104(a)(1)-(2) (2005). The statutory scheme demonstrates the General Assembly enacted Chapter 58,
intending that every county would have a growth plan and thus every municipality would have an
approved growth boundary. Because § 6-58-111(b) is not an attempt to create a rule that applies only
to one or a few chosen local governments, it does not rise to the evil which Article XI, Section 9 was
intended to remedy. We conclude this section does not violate the Municipal Boundaries Clause.


                Next, plaintiffs argue the caption of 1998 Tenn. Pub. Acts, ch. 1101 does not meet
the requirements of Article II, § 17 of the Tennessee Constitution. The Section of the Act states,
“AN ACT to amend Tennessee Code Annotated, Title 4; Title 5; Title 6; Title 7; Title 13, Title 49;
Title 67; and Title 68, relative to growth.” Section 12 of Chapter 1101, codified at Tenn. Code Ann.
§ 6-58-111, states that when a quo warranto action is filed to challenge an annexation within a
municipality’s approved urban growth boundary, that action is tried without a jury. Thus, the
plaintiffs’ argue that this caption does not satisfy the requirements of Article II, § 17 because the
caption does not specifically mention the effect which 1998 Tenn. Pub. Acts, ch. 1101, § 12 has on
annexations, quo warranto proceedings, and jury trials. Article II, § 17 of the Tennessee Constitution
states,
                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 Supreme Court has held that this provision is “to be liberally construed, so that
the General Assembly [will] not be ‘unnecessarily embarrassed in the exercise of its legislative
powers and functions.’” Tennessee Mun. League v. Thompson, 958 S.W.2d 333, 336 (Tenn. 1997)
(quoting Memphis St. Ry. Co. v. Byrne, 104 S.W. 460, 461 (1907)). When a caption is analyzed
under this Article, the courts “will presume that the caption adequately expresses the subject of the
body of an act and avoid a technical or narrow construction of the caption.” Chattanooga-Hamilton
County Hosp. Auth. v. City of Chattanooga, 580 S.W.2d 322, 326 (Tenn. 1979). The principal
question in this analysis is whether the “[s]ubject matter of the act is germane to that expressed in
the [caption].” Id. (quoting S. Photo & Blue Print Co. v. Gore, 114 S.W.2d 796, 798 (1938)).

               The overall subject of the challenged act is the amendment of eight specified Titles
of the Tennessee Code Annotated. See Tennessee Mun. League, 958 S.W.2d at 337-338 (describing
a caption’s similar list of Titles to be amended as the overall subject of that act). The overall subject,
however, is limited by the phrase “relative to growth.” Id. (stating that “relative to” has a restrictive
or narrowing effect). Accordingly, any provisions which are germane to “growth” and which amend
one or more of the specified Titles are a proper part of the act.

               The challenged act amended Title 6 of the Tennessee Code Annotated by creating
Chapter 58, and § 12 is part of this new Chapter. 1998 Tenn. Pub. Acts, ch. 1101, § 2. Section 12
is germane to the overall subject of the challenged act because it is part of the amendment to Title


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6. In addition, § 12 governs both annexations by municipalities with approved urban growth
boundaries and quo warranto challenges to such annexations. Annexations and quo warranto
proceedings challenging such annexations both affect the growth of municipalities, and both are
germane to the “growth” of municipalities. Although the act’s caption does not specifically mention
§ 12's effect on annexations, quo warranto proceedings, or jury trials, Article II, § 17 does not
require that a caption express the means or instrumentalities used to accomplish the purpose of an
act. Chattanooga-Hamilton County Hosp. Auth., 580 S.W.2d at 326. Since § 12 is germane to the
act’s expressed subject, it is a proper part of the challenged act and does not violate Article II, § 17.

                  Plaintiffs also argue that Article I, § 6 of the Tennessee Constitution guarantees a
right to a jury trial in a quo warranto proceeding. Article I, § 6 states, “That the right of trial by jury
shall remain inviolate, and no religious or political test shall ever be required as a qualification for
jurors.” Tenn. Const. art. I, § 6. The Tennessee Supreme Court has described the scope of this
guarantee as follows:

                Article I, section 6 of our Constitution does not guarantee the right to a jury trial in
                every case. . . . This right has been interpreted to be a trial by jury as it existed at
                common law, or more specifically, “the common law under the laws and constitution
                of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”
                For rights and remedies created after the formation of our Constitution, the legislature
                is free to enact procedures that do not include jury trials.

Helms v. Tennessee Dept. of Safety, 987 S.W.2d 545, 547 (Tenn. 1999) (quoting Patten v. State, 426
S.W.2d 503, 506 (Tenn.1968)). In 1827 the Tennessee Supreme Court described the quo warranto
proceeding as follows:

                The old writ of quo warranto had fallen into disuse in England, prior to the passage
                of the North Carolina Act of 1715, ch. 31, sec. 6, adopting the English common law.
                Neither that writ, nor an information in the nature of it, is known by us to have ever
                been used in the colony of North Carolina, and was not, therefore, incorporated into
                our code by the Act of 1778, ch. 5, sec. 2, which did not adopt such parts of the
                common law as had not been in force and in use in the colony, or were inconsistent
                with the new form of government, or which had been abrogated, repealed, expired,
                or become obsolete.

State v. Turk, 8 Tenn. 287, 1827 WL 667 at *4 (1827). Quo warranto actions did not exist in this
State until “the Legislature of 1845-1846 passed the first statute on this subject.” City of Fairview
v. Spears, 359 S.W.2d 824, 825 (Tenn. 1962). Because the quo warranto action is a remedy “created
after the formation of our Constitution,” Article I, § 6 of the Tennessee Constitution does not
guarantee a jury trial in such a proceeding. Helms, 987 S.W.2d at 547.

                Next, plaintiffs argue that under the Tennessee Supreme Court’s holding in State ex.
rel. Moretz v. City of Johnson City, 581 S.W.2d 628 (Tenn. 1979) they have a constitutional right


                                                   -12-
to a jury trial. In Moretz, the Tennessee Supreme Court interpreted Tenn. Code Ann. § 6-51-103(d)
and held that the General Assembly intended that the issue of an annexation’s reasonableness would
be tried by a jury unless some disqualifying condition applied. The Moretz Court did not find a
constitutional right to a jury trial when contesting an annexation. Rather, it simply interpreted the
legislative intent behind § 6-51-103(d), a statute which does not apply to the facts of this case. This
case involves the annexation of territory within a municipality’s approved urban growth boundary;
therefore, § 6-58-111 applies to this case, not § 6-51-103.

                 Finally, plaintiffs argue that Rule 38.01 of the Tennessee Rules of Civil Procedure
entitles them to a jury trial. Rule 38.01 states, “The right of trial by jury as declared by the
Constitution or existing laws of the State of Tennessee shall be preserved to the parties inviolate.”
This rule does not guarantee a right to jury trial in all cases. Instead, the rule only guarantees the
right to a jury to the extent that this right is granted by the Constitution or the existing laws of the
State. As we have discussed, the Tennessee Constitution does not guarantee the right to a jury trial
in quo warranto proceedings. Moreover, the existing law which applies to the facts of this case, §
6-58-111(b), specifically denies the right to a jury trial.

                 We hold that the evidence preponderates against the Trial Court’s conclusion that
plaintiffs carried their burden of proof under the statute, because the preponderance of the evidence
demonstrates that the absence of annexation will cause material retardation of the health, safety, and
welfare of the citizens of the City and the property owners and occupants of the Territory. We
reverse the Trial Court on this issue, and affirm the Trial Judge’s decision that there is no
constitutionally protected right to a jury trial in a quo warranto proceeding.

               The costs of the appeal are assessed to Darrell L. Tipton, Michael L. Ross, and Dale
M. Ross, jointly.




                                                        ______________________________
                                                        HERSCHEL PICKENS FRANKS, P.J.




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