                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 21, 2008 Session

                 LEE HAYES v. GIBSON COUNTY, TENNESSEE

                 Direct Appeal from the Chancery Court for Gibson County
                 No. 18296    Roy B. Morgan, Judge Sitting by Interchange



                     No. W2007-01849-COA-R3-CV - Filed April 29, 2008


This appeal arises from a declaratory judgment action in which Plaintiff sought a declaration of his
rights under Tennessee Code Annotated § 8-24-102 as amended in 2001. Plaintiff asserted that the
2001 amendments to the general statute repealed by implication a 2000 private act establishing the
compensation of the Gibson County Juvenile Court Clerk. The trial court determined the
amendments to the statute superseded the private act, and that the salary for the juvenile court clerk
should be established according to Tennessee Code Annotated § 8-24-102 as amended in 2001. We
reverse.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S., and
HOLLY M. KIRBY , J., joined.

Floyd S. Flippin and Terri S. Crider, Humboldt, Tennessee, for the Appellant, Gibson County,
Tennessee.

J. Mark Johnson, Trenton, Tennessee, for the appellee, Lee Hayes.


                                             OPINION

        The facts giving rise to this lawsuit are undisputed. The General Assembly created the
Gibson County Juvenile Court by Chapter 307 of the Private Acts of 1982. This 1982 private act
provided that the county clerk would also serve as the juvenile court clerk. In 2000, however, the
General Assembly amended the 1982 private act by Chapter 142 of the Private Acts of 2000, creating
the office of Gibson County Juvenile Court Clerk. This 2000 private act (“the private act”) is at the
center of this controversy.

      Section 4(d) of the private act provided that the juvenile court clerk would be elected in the
August 2002 general election. Section 4(e) of the private act further provided that the Gibson
County Commission would appoint a clerk to serve from July 1, 2000, until the elected clerk took
office on September 1, 2002. Further, although Tennessee Code Annotated § 8-24-102 as it existed
in 20001 established the general salary levels for “various county officers,” including juvenile court
clerks, based on county population, the private act specifically established the compensation of the
juvenile court clerk for Gibson County. Section 4(f) of the private act stated:

         The juvenile court clerk appointed and elected pursuant to the provisions of
         subsection (e) of this section shall receive compensation of thirty-two thousand
         dollars ($32,000) each fiscal year. The juvenile court clerk shall also receive any
         annual raises given to county employees by the Gibson County Commission.




         1
             Section 8-24-102 provided:

         Compensation of county officials. (a) For the purposes of determining the compensation to be
         received by the various county officers, "general officers" includes assessors of property, county
         clerks, clerks and masters of chancery courts, clerks of probate courts, clerks of circuit courts, clerks
         of general sessions courts, clerks of criminal courts, juvenile court clerks, county trustees and registers
         of deeds. "Highway official" refers to the "chief administrative officer;" as defined under the
         Tennessee County Uniform Highway Law; as provided in § 54-7-103.
                   (b) Beginning July 1, 1996, county officers shall receive compensation per year as follows:

         County                       General            Sheriff & Highway            County
         Population                   Officers           Officials                    Executive

         400,000 and more             $84,000            $92,400                      $97,020
         275,000 to 399,999            77,500             85,250                       89,513
         250,000 to 274,999            72,000             79,200                       83,160
         225,000 to 249,999            69,000             75,900                       79,350
         200,000 to 224,999            66,000             72,600                       76,230
         175,000 to 199,999            63,000             69,300                       72,765
         150,000 to 174,999            60,000             66,000                       69,300
         125,000 to 149,999            57,000             62,700                       65,835
         100,000 to 124,999            54,000             59,400                       62,370
         65,000 to 99,999              52,500             57,750                       60,638
         50,000 to 64,999              50,000             55,000                       57,750
         35,000 to 49,999              45,000             49,500                       51,975
         23,000 to 34,999              43,000             47,300                       49,665
         12,000 to 22,999              39,000             42,900                       45,045
         5,000 to 11,999               33,500             36,850                       38,693
         less than 5,000               31,000             34,100                       35,805

Tennessee Code Annotated § 8-24-102 (Supp. 2000).

Section 8-24-102 as it existed in the 1993 code similarly set the compensation level of “clerks and county officers,” as
enumerated in § 8-22-101, based on county population according to the 1970 federal census. Tenn. Code Ann. §§ 8-24-
101 & 102 (1993). The “clerks and county officers” enumerated in section 8-22-101(1993) included the juvenile court
clerks.

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Thus, when initially passed, the private act both established the office of juvenile court clerk and set
the clerk’s salary at an amount distinct from that set by the general statute.

       After passage of the 2000 private act, in 2001 the General Assembly amended Tennessee
Code Annotated § 8-24-102 to increase the pay scale for county officers, effective July 1, 2001.
2001 Tenn. Pub. Acts, ch. 405. Currently codified at Tennessee Code Annotated § 8-24-102 (2002
& Supp. 2007), the amended pay scale for county officers governed by the general statute is based
on county population as determined by the 2000 federal census. Tenn. Code Ann. § 8-24-102(b) &
(c). The 2001 amendments to the general statute were silent, however, with respect to whether the
amended general statute superceded compensation provisions otherwise established by private acts.2

       Plaintiff/Appellee Lee Hayes (Mr. Hayes) was elected Gibson County Juvenile Court Clerk
in 2002, and was re-elected in 2006. Since 2002, Gibson County has compensated Mr. Hayes


        2
            The code currently provides, in pertinent part:

        (a) For the purposes of determining the compensation to be received by the various county officers,
        "general officers" includes assessors of property, county clerks, clerks and masters of chancery courts,
        clerks of probate courts, clerks of circuit courts, clerks of general sessions courts, clerks of criminal
        courts, juvenile court clerks, county trustees and registers of deeds.
                  (b) Beginning July 1, 2001, general officers shall receive minimum compensation per year
        as follows:

                             County                                 General
                             Population                             Officers

                             920,000 and more                       $94,805
                             500,000 to 919,999                     89,805
                             400,000 to 499,999                     85,805
                             275,000 to 399,999                     83,305
                             250,000 to 274,999                     77,805
                             225,000 to 249,999                     74,805
                             200,000 to 224,999                     71,805
                             175,000 to 199,999                     68,805
                             150,000 to 174,999                     65,805
                             125,000 to 149,999                     62,805
                             100,000 to 124,999                     59,805
                             65,000 to 99,999                       58,305
                             50,000 to 64,999                       55,805
                             35,000 to 49,999                       50,805
                             23,000 to 34,999                       48,805
                             12,000 to 22,999                       44,805
                             less than 11,999                        39,305

                 (c) The population of counties, for purposes of this section, shall be determined by the 2000
        federal census or the most recent succeeding federal census or a special census as provided in this
        subsection (c). . . .

Tennessee Code Annotated § 8-24-102 (2002 & Supp. 2007)

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according to the provisions of the private act, and he has received salary increases commensurate
with those received by other county employees. In late 2003 or early 2004, however, Mr. Hayes
became aware of the discrepancy between the pay scales provided by the private act and the general
statute. He advised the Gibson County attorney and the Administrative Offices of the Court
(“AOC”) of the discrepancy.

        In August 2004, the chief legal consultant of University of Tennessee County Technical
Assistance Service advised the Gibson County attorney that, in his view, the private act was “in
unconstitutional conflict” with the general statute and that the juvenile court clerk should have been
paid in accordance with the general statute from July 1, 2001. In 2004, the AOC sought an opinion
from the Tennessee Attorney General regarding whether Mr. Hayes’ compensation was properly set
in accordance with the private act or should be determined as prescribed by Tennessee Code
Annotated § 8-24-102. In January 2005, the Attorney General opined that, for the period July 1,
2000, until the 2001 amended general statute became effective on July 1, 2001, the clerk should be
paid under the private act and that, beginning July 1, 2001, the clerk should be paid under section
8-24-102 as amended. The Attorney General’s opinion stated, “we think a court would conclude that
the 2001 amendment repealed the 2000 private act by implication.”

        In January 2007, Mr. Hayes filed a declaratory judgment action and petition for writ of
mandamus against Gibson County in the Chancery Court for Gibson County. In his petition, Mr.
Hayes asserted that the amended general statute supercedes the private act. He asserted he was,
therefore, entitled to compensation under the general statute as amended. Mr. Hayes prayed for a
declaratory judgment and/or writ of mandamus declaring that he was entitled to compensation
pursuant to Tennessee Code Annotated § 8-24-102 retroactive to September 1, 2002; a judgment in
the amount of the additional compensation due under the general statute retroactive to September
1, 2002; prejudgment interest in the amount of ten percent; costs; and attorney’s fees. Mr. Hayes
additionally prayed for punitive damages in an amount not to exceed three times the amount of
compensatory damages to which he asserted he was entitled.

         Following a hearing on June 19, 2007, the trial court entered judgment in favor of Mr. Hayes,
holding that the salary for the Gibson County Juvenile Court Clerk should have been established
according to Tennessee Code Annotated § 8-24-102. The trial court awarded Mr. Hayes back pay
in the amount of $95,773.83, which the parties have agreed reflects the cumulative difference in
salary for the period September 1, 2002, to June 30, 2007. The trial court also awarded Mr. Hayes
pre-judgment interest in the amount of ten percent per annum, and attorney’s fees in the amount of
$9,075. The trial court denied Mr. Hayes’ claim for punitive damages. The trial court entered final
judgment in favor of Mr. Hayes on July 24, 2007, and Gibson County filed a timely notice of appeal
to this Court. In August 2007, the trial court stayed execution of the judgment pending appeal. We
reverse.

                                          Issue Presented

       Gibson County presents the following issue for our review:


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        Whether the trial court erred in its determination and ruling that the general law as
        opposed to the Private Act is applicable to the issue of which salary act should be
        used to calculate Plaintiff’s salary in his capacity as Gibson County Juvenile Court
        Clerk.

                                         Standard of Review

        The construction of a statute is a question of law which we review de novo, with no
presumption of correctness attached to the determination of the trial court. Hill v. City of
Germantown, 31 S.W.3d 234, 237 (Tenn. 2000). When construing a statute, the court’s primary
purpose is “to ascertain and give effect to the intention and purpose of the legislature.” Knox County
Educ. Ass’n v. Knox County Bd. of Educ., 60 S.W.3d 65, 74 (Tenn. Ct. App. 2001)(quoting Carson
Creek Vacation Resorts, Inc. v. Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993)). Insofar as
possible, we determine legislative intent from the natural and ordinary meaning of the words chosen
by the legislature, “read in the context of the entire statute, without any forced or subtle construction
which would extend or limit its meaning.” Id. (quoting National Gas Distribs., Inc. v. State, 804
S.W.2d 66, 67 (Tenn. 1991)).

                                               Analysis

        We begin our analysis by noting that the trial court based its judgment on two distinct
findings. First, it found that a constitutional conflict existed between the 2000 private act and
Tennessee Code Annotated § 8-24-102, as amended in 2001, and that there is “no rational basis” for
the private act to differ from the “general salary law.” Second, it determined that the amended
general statute superceded the private act. We note, however, that the issue of whether the private
act is unconstitutional was not properly raised in the trial court. Under Tennessee Code Annotated
§ 29-14-107 and Tennessee Rule of Civil Procedure 24.04, a party seeking to challenge the
constitutionality of a statute must serve notice on the Attorney General. The failure to provide notice
of a constitutional challenge to the Attorney General as mandated by Tennessee Code Annotated §
29-14-107 and Tennessee Rule of Civil Procedure 24.04 is fatal “except to the extent the challenged
statutes are so clearly or blatantly unconstitutional as to obviate the necessity for any discussion.”
In re Adoption of E.N.R., 42 S.W.3d 26, 28 (Tenn. 2001). The same notice requirement must be met
by a party seeking to challenge the constitutionality of a private act. See Hoover, Inc. v. Rutherford
County, 885 S.W.2d 67, 68 n.1 (Tenn. App. 1994). We do not believe the private act in this case,
which established not only the salary of the juvenile court clerk but the office itself, is blatantly
unconstitutional on its face.

        We accordingly turn to whether the 2001 amendments to Tennessee Code Annotated § 8-24-
102 repealed the private act by implication. We begin our analysis by noting that, despite the
addition of the word “minimum” to subsection (b) of section 8-24-102, the 2001 amendments did
not change the character or purpose of the statutory section, which clearly provides the general
minimum compensation levels for county officials. As noted above, section 8-24-102 as it existed
prior to the 2001 amendments, and when the General Assembly enacted the private act establishing


                                                  -5-
the office of juvenile court clerk for Gibson County, established the general pay scale for juvenile
court clerks based on county population. Therefore, when the General Assembly enacted the 2000
private act, the pay scale established by that act specifically for the juvenile court clerk differed from
the pay scale set by the general statute. We further note that when resolving conflicts between
statutory provisions, including conflicts between private acts and general statutory provisions
contained in the public acts, we presume the general assembly knows the state of the law when
enacting later legislation. State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005). Accordingly, relying
on this presumption, we seek to determine whether a challenged private act can be construed so as
to coexist harmoniously with the provisions of the general public statutes, notwithstanding a
deviation from the general statutory scheme. In Re Estate of Nelson, No. W2006-00030-COA-R3-
CV, 2007 WL 851265, at *8 (Tenn. Ct. App. Mar. 22, 2007)(no perm. app. filed)(citing State v.
Davis, 173 S.W.3d at 415). With these observations in mind, we turn to whether the 2001
amendments to section 8-24-102 repealed the 2000 private act by implication.

        As a general rule, “a private act is superseded as far as is necessary to give effect to a general
statutory scheme of statewide application.” Knox County Educ. Ass’n v. Knox County Bd. of Educ.,
60 S.W.3d 65, 74 (Tenn. Ct. App. 2001)(citing Kentucky-Tennessee Clay Co. v. Huddleston, 922
S.W.2d 539, 542 (Tenn. Ct. App.1995)). However, Tennessee law disfavors repeal by implication.
Id. A repeal by implication will be “recognized only when no reasonable construction allows the
subject acts to stand together.” Id. (Citing Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995)).
A statutory construction placing one act in conflict with another must be avoided. Id. Accordingly,
the courts must resolve apparent conflicts between acts “so as to provide a harmonious operation of
the laws.” Id. The court will find a repeal by implication only when inescapable conflict exists. Id.
(citing Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 954 (Tenn. Ct. App.1995));
See also In Re Estate of Nelson, No. W2006-00030-COA-R3-CV, 2007 WL 851265 (Tenn. Ct. App.
Mar. 22, 2007)(no perm. app. filed).

        We do not find the 2000 private act establishing the office and compensation for the Gibson
County Juvenile Court Clerk to be in “inescapable conflict” with the general statute. As noted
above, the 2000 private act established not only the compensation of the juvenile court clerk, but
established the office itself. Section 4(c) of the private act also set out specific requirements for the
office, including requiring that the juvenile court clerk be a citizen of Gibson County and
continuously reside within the county. Further, neither Mr. Hayes nor Gibson County assert that
2000 private act was repealed by implication in its entirety. Indeed, we do not believe either party
would desire such a result, which would eliminate the office of juvenile court clerk for Gibson
County. Additionally, contrary to the opinion of the Attorney General, in section 4(f) of the 2000
private act the General Assembly did not differentiate between the compensation package to be
provided to the appointed clerk and that provided to the clerk to be elected in the general election
in August 2002. Rather, section 4(f) specifically established the compensation package for the
juvenile court clerk to be “appointed and elected” (emphasis added). The section additionally
provided that “[t]he juvenile court clerk shall also receive any annual raises given to county
employees by the Gibson County Commission.” Thus, the private act not only established the initial



                                                   -6-
salary level for the newly created office of juvenile court clerk, but also provided the mechanism by
which that salary level was to be increased consistently with that of other county employees.

        Moreover, as noted, the provisions of Tennessee Code Annotated § 8-24-102 were not
originally enacted in 2001. The general statutory scheme existed when the General Assembly
established the office and compensation package of the juvenile court clerk by private act in 2000.
The 2001 amendments to the general statute did not alter the character or purpose of the statutory
scheme. In light of the General Assembly’s presumed knowledge of the provisions of the general
statute when it enacted the private act in 2000, and in light of its presumed awareness of the private
act when it amended the general provisions of section 8-24-102 in 2001, coupled with the absence
of any language in the 2001 amendments to Tennessee Code Annotated § 8-24-102 repealing this
or any similar private act, we hold that the 2001 amendments to Tennessee Code Annotated § 8-24-
102 did not repeal the 2000 private act by implication. Additionally, as noted above, the private act
is not blatantly unconstitutional on its face, and the issue of whether it is unconstitutional under
Tennessee Code Annotated § 8-24-102 was not properly raised in the trial court where the Attorney
General was not served with notice of this litigation.

                                               Holding

        In light of the foregoing, the judgment of the trial court is reversed. Costs of this appeal are
taxed to the Appellee, Lee Hayes.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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