                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                  September 20, 2005 Session

           WALTER BAILEY, ET AL. v. COUNTY OF SHELBY, ET AL.

                                Chancery Court for Shelby County
                                       No. CH-04-0550-3




                   No. W2005-01508-COA-R3-CV - Filed November 22, 2005


                                              DISSENT

CRAWFORD, P.J., W.S.

        I must respectfully dissent from the majority Opinion. The issue presented for review, as
stated by the Appellants is:

                Whether the Chancery Court correctly held that County Charter,
                Article II, § 2.03(g)(the “Charter”and the “Amendment”), which
                provides that no County Mayor or County Commissioner is eligible
                to be elected to or to hold office for more than two consecutive four-
                year terms, is valid in accordance with the third paragraph of
                Tennessee Constitution, Article VII, Section 1 and Tenn. Code Ann.
                § § 5-1-201, et seq.

        The majority correctly determines that the term limits provided for in the Shelby County
Charter relate to the qualifications of the candidate. It is undisputed that Shelby County uses a
charter-form of government as authorized by T.C.A. § 5-1-201 et seq., which, in turn, is authorized
by the Tenn. Const. art. VII, § 1. The crux of the dispute is whether the enabling legislation, in
particular T.C.A. § 5-1-210 (4), is unconstitutional by virtue of Tenn. Const. art. VII, § 1, as amended
in 1978, which provides:

                Sec. 1. County government – Elected officers – Legislative body
                – Alternate forms of government. – The qualified voters of each
                county shall elect for terms of four years a legislative body, a county
                executive, a Sheriff, a Trustee, a Register, a County Clerk and an
                Assessor of Property. Their qualifications and duties shall be
                prescribed by the General Assembly. Any officer shall be removed
                for malfeasance or neglect of duty as prescribed by the General
                Assembly.
                       The legislative body shall be composed of representatives
               from districts in the county as drawn by the county legislative body
               pursuant to statutes enacted by the General Assembly. Districts shall
               be reapportioned at least every ten years based upon the most recent
               federal census. The legislative body shall not exceed twenty-five
               members, and no more than three representatives shall be elected
               from a district. Any county organized under the consolidated
               government provisions of Article XI, Section 9, of this Constitution
               shall be exempt from having a county executive and a county
               legislative body as described in this paragraph.

                      The General Assembly may provide alternate forms of county
               government including the right to charter and the manner by which a
               referendum may be called. The new form of government shall replace
               the existing form if approved by a majority of the voters in the
               referendum.

        The majority determined that although the third paragraph of the constitutional provision
allows the legislature to provide alternate forms of County government, any such alternate form of
County government must conform to the requirements of the first paragraph of Tenn. Const. art. VII,
§ 1. The majority holds that the provision of the enabling statute permitting the County charter to
determine qualifications of the legislative body is unconstitutional. I do not so interpret the
constitutional provision and the legislative enactment.

        In dealing with questions of constitutionality of a statute enacted by a legislature, we must
be ever mindful of the presumption of constitutionality, which has been embedded in our law from
time immemorial. In State ex rel., Maner v. Leach,588 S.W.2d 534 (Tenn. 1979), the Court said:

                       It is the duty of this constitutional court of last resort to
               resolve every reasonable doubt in favor of the constitutionality of a
               legislative enactment, Blankenship v. Old Republic Insurance Co.,
               539 S.W.2d 23 (Tenn. 1976); indeed there is a strong presumption in
               favor of their constitutionality. Bozeman v. Barker, 571 S.W.2d 279
               (Tenn. 1978). This thrusts upon those who attack a statute a heavy
               burden. West v. Tennessee Housing Agency, 512 S.W.2d 275 (Tenn.
               1974).

                       It has been said that statutes must be construed “with the
               saving grace of common sense.” Our courts have repeatedly held that
               absurdities should be avoided, Roberts v. Cahill Forge & Foundry
               Co., 181 Tenn. 688, 184 S.W.2d 29 (1944); that the courts should not
               place upon a statute a construction which would work to the prejudice
               of the public interest, Burns v. Duncan, 23 Tenn. App. 374, 133


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              S.W.2d 1000 (1939), and a construction which impairs, frustrates or
              defeats the object of a statute should be avoided, First National Bank
              v. McCanless, 186 Tenn. 1, 207 S.W.2d 1007 (1948). These holdings
              are analogous to the instant case.

Id. at 540.

       The Maner Court also acknowledged the significant change that the 1978 amendment to the
Constitution made as it relates to local government. The Court said:

                     It is evident that, in broad form, our Constitution now
              provides for three types of county government:

                     a. Article VII government wherein the basic units of
                     government are the county executive and the county
                     legislative body.

                     b. A consolidated form of government commonly
                     known as Metropolitan or “Metro.” See Article XI,
                     Section 9, last paragraph. Any county having such a
                     government is exempt from Article VII government.

                     c. An alternate form of government – either chartered
                     or unchartered – created by the General Assembly.
                     Under this proviso the legislature is specifically
                     authorized to create diverse forms of county
                     government without regard to the general type
                     established in Article VII.

                      When the legislature authorizes any deviation from Article VII
              government its action must be ratified by the people in a referendum
              called for that purpose.

Id. at 537.

       Our Supreme Court also noted, in Leech v. Wayne County, 588 S.W.2d 270 (Tenn. 1979),
the sweeping change that was made by the Constitutional amendment concerning local government.
The Court said:

                      The General Assembly has very broad powers and discretion
              with respect to the structure of local governments, including some
              special authority which was added in Article VII of the state
              constitution, as revised in 1978. That Article, in part, provides:


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                               “The General Assembly may provide alternate
                       forms of county government including the right to
                       charter and the manner by which a referendum may be
                       called. The new form of government shall replace the
                       existing form if approved by a majority of the voters
                       in the referendum.”

Id. at 272 (emphasis in original).

        The Constitution quite explicitly authorizes, in the third paragraph of Tenn. Const. art. VII,
§ 1, the establishment of an alternate form of government which “shall replace the existing form if
approved by a majority of voters in the referendum.” Id.

        “Alternate” is defined as “a choice between two or among more than two objects or courses.”
“Alternative” is also defined as “offering a choice of two or more things; offering for choice a second
thing or proposition or other things or propositions.” Webster’s Third New International Dictionary,
p. 63 (Merriam-Webster, Inc. 1993).

         The Constitutional provision is quite clear that the alternate form of County government as
chosen shall replace the existing form of government, if it is so approved by the voters, and there can
be little argument that “replaces” means to put in place of or to substitute for what was in existence.


       The legislature enacted T.C.A. § 5-1-201 et seq. with full knowledge of the constitutional
provision in Tenn. Const. art. VII, § 1. T.C.A. § 5-1-203 provides:

               Authority to adopt charter form. – (a) Each county in this state may
               adopt a charter form of government as provided in this part.
               (b) Such charter when complete shall result in the creation and
               establishment of an alternate form of county government to perform
               all the governmental and corporate functions previously performed by
               the county.
               (c) Such charter form of government shall replace the existing form
               if approved by a majority of the voters in a referendum.

         The legislature then, in great detail, provided for the charter commission and the submission
of a charter to referendum of the electorate. T.C.A. 5-1-210 provides for the charter content and
states in pertinent part:

               Charter contents. – The proposed county charter shall provide: (1)
               For the creation of an alternative form of county government vested
               with any and all powers that counties are, or may hereafter be,
               authorized or required to exercise under the Constitution and general


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               laws of the state of Tennessee, and any and all powers and duties of
               such county that are required or authorized by private acts effective
               on the date of ratification of such charter, as fully and completely as
               though the powers were specifically enumerated therein;

               (2) That such chartered county government shall be a public
               corporation, with perpetual succession, capable of suing and being
               sued, and capable of purchasing, receiving and holding property, real
               and personal, and of selling, leasing or disposing of the same to the
               extent as other counties;

               (3) For a county legislative body, which shall be the legislative body
               of the county and shall be given all the authority and functions of the
               legislative body of the county being chartered, with such exceptions
               and with such additional authority as may be specified elsewhere in
               this part;

               (4) For the size, method of election, qualification for holding office,
               method of removal, and procedures of the county legislative body
               with such other provisions with respect to such body as are normally
               related to the organization, powers and duties of governing bodies in
               counties; . . .

         The majority states that there is nothing in the language of paragraph three of Tenn. Const.
art. VII to indicate that paragraph three should be read as a stand-alone paragraph. I must disagree
with such a reading of the provisions. Paragraph three specifically provides that any new form of
government to replace the existing form must be approved by a majority of voters by referendum.
The third paragraph of Tenn. Const. art. VII, § 1 means what it says when it provides for a new form
of government when replaced by a majority of the voters. It is somewhat ludicrous to say that the
County can have a new form of government, but it is controlled by the old form of government that
the new form replaces. We should not overlook the fact that the constitutional provision is quite
explicit that there must be approval by a majority of the voters and this, in turn, is referenced by
Tenn. Const. art. I, § 1, which provides:

               All power inherent in the people – Government under their
               control. – That all power is inherent in the people, and all free
               governments are founded on their authority, and instituted for their
               peace, safety, and happiness; for the advancement of those ends they
               have at all times, an unalienable and indefeasible right to alter,
               reform, or abolish the government in such manner as they may think
               proper.




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        Our Supreme Court recognized that significant change could be made under the third
paragraph of Tenn. Const. art. VII, § 1. In Southern Contractors, Inc. v. Loudon Cnty. Bd. of
Education, 58 S.W.3d 706 (Tenn. 2001), the Court was commenting about the theory of “Dillon’s
Rule,” which viewed local governments as having narrowly defined powers under the state
constitution. In so doing, our Supreme Court stated:

               As an important corollary to this principle, where the General
               Assembly grants comprehensive governmental power to the local
               authority without either enumerating the powers or expressly limiting
               the scope of the authority, that "general provision [will] be liberally
               construed." See Linck, 80 Tenn. (12 Lea) at 508 (emphasis in
               original). One example of a comprehensive grant of power may be
               seen in the charter government provisions for counties authorized by
               Article VII, section 1 of the Tennessee Constitution and Tennessee
               Code Annotated sections 5-1-201 to 5-1-214. Under a charter form of
               government, counties are authorized to "pass ordinances relating to
               purely county affairs," subject only to the exceptions that these
               ordinances "shall not be opposed to the general laws and shall not
               interfere with the local affairs of any municipality within the limit of
               such county." Counties organized under charter government,
               therefore, are not strictly limited to those powers otherwise granted by
               the General Assembly, and they possess broad authority for the
               regulation of their own local affairs. Consequently, when the issue
               concerns the scope of a general grant of power such as this, Dillon's
               Rule cannot be applied to narrowly limit the exercise of that power by
               a local authority.

Id. at 713.

         Significantly, the third paragraph of Tenn. Const. art. VII, § 1 does not contain any
prohibition on the County being authorized to set the qualification for the legislative body. To
the contrary, Tenn. Const. art. VII, § 1 grants a broad and sweeping power to the County to
replace the existing government in favor of an alternate form of government, in which the new
government can set the qualifications of its legislative body. This interpretation is especially true
in light of the fact that the constitutional provision requires the affirmative vote of the people for
such replacement government. This is in keeping with Tenn. Const. art. I, § 1 providing that “all
power is inherent in the people.” I feel that the majority has overlooked the duty of this Court in
failing to reconcile and give meaning to the provisions of the Constitution and the statute enacted
by the legislature in furtherance thereof. I would find that T.C.A. § 5-1-210(4) is not
unconstitutional.




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        Under the constitutional provision in question and the statute enacted by the legislature in
furtherance of the constitutional provision, I believe the trial court correctly ruled that summary
judgment should be granted for the County, and I would affirm the chancery court.




                                      _______________________________________________
                                      W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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