                                                                        FILED
                   IN THE COURT OF APPEALS OF TENNESSEE                  December 18,
                       WESTERN SECTION AT NASHVILLE                          2001

                                                                  Cecil Crowson, Jr.
KENTUCKY-TENNESSEE CLAY                 )                          Appellate Court Clerk
COMPANY,                                )
                                        )
      Plaintiff/Appellee                ) Davidson Chancery No. 93-2669-III
                                        )
VS.                                     ) Appeal No. 01A01-9508-CH-00347
                                        )
JOE HUDDLESTON, COMMR. OF               )
REVENUE, STATE OF TENNESSEE             )
                                        )
      Defendant/Appellant.              )


        APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                      AT NASHVILLE, TENNESSEE
            THE HONORABLE ROBERT S. BRANDT, CHANCELLOR




CHARLES W. BURSON
Attorney General and Reporter

SEAN P. SCALLY
Assistant Attorney General
Nashville, Tennessee
Attorney for Appellant


H. ROWAN LEATHERS, III
MANIER, HEROD, HOLLABAUGH & SMITH
Nashville, Tennessee
Attorney for Appellee

RICHARD L. DUNLAP, III
THE DUNLAP LAW FIRM
Paris, Tennessee
Attorney for Appellee




REVERSED



                                                      ALAN E. HIGHERS, JUDGE


CONCUR:

DAVID R. FARMER, JUDGE

WILLIAM H. WILLIAMS, SR. J.

      In this case, we are presented with the issue of whether a private act is invalid as
being in conflict with the general law addressing the same subject.



       The Commissioner of Revenue for the State of Tennessee, Joe B. Huddleston,

("Commissioner") assessed mineral severance taxes against Plaintiff, Kentucky-

Tennessee Clay Co., pursuant to a 1991 private act authorizing such taxes in the Bradford

Special School District. Following a hearing, the trial court granted summary judgment in

favor of Plaintiff, holding that the private act had been repealed by the general law. It is

from this judgment that the Commissioner appeals. For the reasons stated herein, we

reverse the trial court's judgment.



       Plaintiff is a corporation engaged in the business of mining and processing clay. On

January 6, 1992, the Commissioner assessed mineral severance taxes against Plaintiff in

the amount of $5,143.84, plus interest, pursuant to the authority of Chapter 137 of the

Private Acts of 1991. Private Chapter 137 provides in part:

                  Section 1. A severance tax is hereby levied in the Bradford
                  Special School District on sand, gravel, clay, and all other
                  minerals that are severed from the earth for private commercial
                  purposes...However, the tax levied by this act shall not apply
                  to minerals severed and taxed by the county in which the
                  Bradford Special School District is located pursuant to the
                  provisions of general law...


       At the hearing on the matter, Plaintiff attacked the validity of Private Chapter 137

on two bases. First, Plaintiff asserted that the Act directly conflicts with T.C.A. § 67-7-201

et seq. and was, therefore, repealed by T.C.A. § 67-7-209. Additionally, Plaintiff argued

that the Act was unconstitutional pursuant to Article 11, Sec. 8 of the Tennessee

Constitution.1



       The relevant statutes establishing the general law on mineral severance taxes



       1
           Article XI, Section 8 of the Tennessee Constitution provides:

                  G eneral Law s on ly to be pa sse d. The Legislature sha ll have n o po wer to
                  suspend any general law fo r the bene fit of any particu lar individu al, 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 individual or individuals,
                  rights, privileges, imm unitie [imm unities] or exemptions other than such as
                  may be, by the same law extended to any mem ber of the comm unity, who
                  may be able to bring himself within the provisions of such law.

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provide as follows:

              67-7-201. Tax authorized - Use and benefit - Allocation.--(a)
              Any county legislative body by resolution is authorized to levy
              a tax on all sand, gravel, sandstone, chert and limestone
              severed from the ground within its jurisdiction. The tax shall be
              levied for the use and benefit of the county only, to be
              allocated and applied to its county road fund, and all revenues
              collected from the tax except deductions for administration and
              collection provided for herein, shall be allocated to the county.

T.C.A. § 67-7-201 (Supp. 1995).

              67-7-209. Conflicting private or local acts.-- Any private or
              local acts in conflict herewith are hereby repealed except as for
              those purposes set forth in Section 67-7-210 (repealed).

T.C.A. § 67-7-209 (1993).


       The trial court held that Private Chapter 137 was repealed by T.C.A. § 67-7-209.

Accordingly, summary judgment was entered in favor of Plaintiff.



       The Commissioner has appealed from this judgment and has presented to this

Court several arguments in support of his position that Private Chapter 137 was not

repealed. The Commissioner first contends that Private Chapter 137 does not conflict with

the general law because the general law taxes the minerals themselves, while Private

Chapter 137 taxes the privilege of severing minerals from the ground.               Next, the

Commissioner argues that the general law does not tax clay, and, therefore, there is no

conflict. Finally, the Commissioner argues that Private Chapter 137 provides that no tax

shall be levied on minerals if that mineral is taxed pursuant to the provisions of general law.

According to the Commissioner, this provision alleviates any conflict between the general

law and Private Chapter 137.



       In contrast, Plaintiff contends that there exists a conflict on the face of the laws

because many of the minerals that are taxed pursuant to Private Chapter 137 are also

subject to tax pursuant to T.C.A. § 67-7-201. Furthermore, according to Plaintiff, the

general law codified at T.C.A. § 67-7-201 et seq., provides the exclusive means through

which a mineral severance tax may be levied, and a private act may not impinge upon

those means. Finally, Plaintiff argues that Private Chapter 137 is unconstitutional because



                                              3
the legislature may not pass any law that is inconsistent with the general law. Tennessee

Constitution, Article XI, Sec. 8.



       We will address only one of the Commissioner's contentions because, as explained

below, we find it to be dispositive of this case. The Commissioner contends that there is

no conflict between Private Chapter 137 and the general law because the General

Assembly took express action in Private Chapter 137 to remedy any potential conflict by

providing that minerals that are taxed under the general law are not subject to tax under

the Private Act. The Commissioner's argument proceeds as follows:

               Indeed, the Legislature in enacting Chapter 137 sought to
               ensure that no minerals taxed by the general law would be
               taxed by Chapter 137 by expressly providing that the tax levied
               in the Bradford Special School District shall not apply to
               'minerals severed and taxed by the county in which the
               Bradford Special School District is located pursuant to the
               provisions of general law.' Thus, it is impossible to perceive
               any conflict between Chapter 137 and the general law of this
               State.


         Plaintiff argues that the clause in Private Chapter 137, which provides that the tax

does not apply to minerals taxed by the county pursuant to general law, does not serve to

rectify the apparent conflict between the two acts. Plaintiff concedes that Private Chapter

137 does not purport to tax minerals if those minerals are taxed by the county pursuant to

the authority of T.C.A. § 67-7-201 et seq. According to Plaintiff, however, the counties

have the power to decide whether minerals will be taxed under Private Chapter 137.

Consequently, the provision in Private Chapter 137 excepting a tax on minerals when the

minerals are taxed pursuant to general law is an unconstitutional delegation of legislative

power.



       This argument is unpersuasive. It is true that "[t]he power to make laws is conferred

upon the legislative branch of government and that power 'cannot be delegated by that

department to any other body or authority.'" Menefee Crushed Stone Co. v. Taylor, 760

S.W. 2d 223, 227 (Tenn. App. 1988).



         However, cases holding that there has been an unconstitutional delegation of

                                              4
legislative authority generally address situations where the legislature has left it up to the

counties or to popular vote as to whether the law will take effect. In fact, both of the cases

upon which Plaintiff relies are inapposite for this reason. In Gibson County Special School

District v. Palmer, 691 S.W. 2d 544 (Tenn. 1985), a private act levied a property tax, but

the act was not to go into effect until approved by a majority of voters. Id. at 546. The

Tennessee Supreme Court held that the Private Act was an unconstitutional delegation of

legislative authority because the law did not become effective unless a majority of voters

approved the act. Id. at 548. Gibson is clearly distinguishable from the present case. In

this case, the tax went into effect and was complete upon leaving the hands of the

legislature. The act did not derive its efficacy from a popular vote, nor did it delegate to the

school district the authority to tax. Here, the legislature established and levied a tax in a

special school district. This action is clearly permissible as the legislature is expressly

authorized to tax within a special school district. See, T.C.A. § 549-2-107; Gibson County

Special Sch. Dist., 691 S.W. 2d at 547.



       The second case cited by Plaintiff is Williamson v. McClain, 147 Tenn. 491, 249

S.W. 811 (1923). In Williamson, the private act under attack delegated authority to the

board of commissioners to levy a tax. Id. at 812. The Court held that this was an

unconstitutional delegation of legislative power.     Id. at 813. As previously mentioned,

however, the General Assembly did not delegate the authority to tax to anyone in the

present case. The tax was clearly promulgated by the General Assembly and was

complete as written.



       We commence our legal evaluation of the Commissioner's argument by iterating

several well-established principles of law. The cardinal rule in interpreting legislative acts

is that courts endeavor to ascertain and give effect to the intent of the General Assembly.

Marion County Bd. of Comm'rs. v. Marion County Election Comm'n., 594 S. W. 2d 681,

685 (Tenn. 1980). In order to ascertain legislative intent, a court should initially evaluate

the natural and ordinary meaning of the language of the statute. Azbill v. Azbill, 661 S.W.

2d 682, 686 (Tenn. App. 1983). Where the language of the statute is plain, clear, and



                                               5
unambiguous, the statue will be given full effect without need to resort to rules of

construction. Gabel v. Lerma, 812 S.W. 2d 580, 582 (Tenn. App. 1990).



       We agree with the Commissioner that the legislature's intent in enacting Private

Chapter 137 was to impose taxes only on those minerals that are not taxed under the

general law. Furthermore, as noted recently by this Court in Nolichuckey Sand Co. v.

Huddleston, 896 S.W. 2d 782 (Tenn. App. 1994), "[T]he legislature has made its support

for a mineral severance tax abundantly clear." Id. at 791.



       In addition to the initial inquiry as to legislative intent, we are guided by established

principles applicable to cases where there is an alleged conflict between two legislative

acts. Although private acts are superseded as far as necessary in order to give effect to

a general statutory scheme of statewide applicability, Strader v. Word, 508 S.W. 2d 539,

547 (Tenn. 1974), if by a reasonable construction, two acts can stand together, there is no

implied repeal. A repeal will only occur where there is an act with terms and operation that

cannot be harmonized with an earlier act. Jenkins v. Loudon County, 736 S.W. 2d 603,

607 (Tenn. 1987). Repeals are not favored by the law and will be found "only where there

is manifest repugnance and irreconcilable conflict between statutes, and will not be found

where any fair or reasonable construction will permit the statutes to stand together."

Goldsmith's Division, Federated Dept. Stores, Inc. v. City of Memphis, 484 S.W. 2d 538,

541 (Tenn. 1972). It is this Court's duty to reconcile conflicting provisions to give them a

consistent meaning and harmonize the purposes of each. Dingman v. Harvell, 814 S.W.

2d 362, 366 (Tenn. App. 1991).



       In the present case, there is no manifest repugnance or irreconcilable conflict

between Private Chapter 137 and T.C.A. § 67-7-201 et seq., because taxes may not be

assessed under the private act when the counties in which the special school district is

located levy taxes on the minerals.



       We further note that there exists a strong presumption that an act promulgated by



                                               6
the legislature is valid. Board of Education of Memphis City Schools v. Shelby County, 339

S.W. 2d 569, 575 (Tenn. 1960). The legislature was presumed to know that the general

law and the private act at bar addressed the same subject matter. Trotter v. City of

Maryville, 235 S.W. 2d 13, 18 (Tenn. 1950). In Private Chapter 137, the legislature

expressly exempted from taxation those minerals that are taxed under the general law.

An exception generally delineates the extent of the general provision and this Court is not

at liberty to diminish an express exception. Perry v. Sevier County Beer Comm'n, 181

Tenn. 696, 184 S.W.2d 32, 34 (1944).



       Special legislation that affects particular counties or municipalities in their

governmental or political capacities may properly be enacted without violating Article XI,

Section 8 of the Constitution, as long as the special act is not contrary to the provisions of

the general law. Town of Arlington v. Shelby County Election Comm'n, 352 S.W. 2d 809,

813 (Tenn. 1961). It is our opinion that nothing appears on the face of Private Chapter 137

to conflict with the provisions of general law addressing the same subject matter.



       After due consideration, we are persuaded that Private Chapter 137 is constitutional

and was not repealed by the general law. We therefore reverse the decree of the trial

judge and hold that the mineral severance tax may properly be levied against Plaintiff.

Costs on appeal are taxed to the Plaintiff.



                                                         HIGHERS, J.

CONCUR:




FARMER, J.




WILLIAMS, SR. J.




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