Leech v. Wayne County

588 S.W.2d 270, 1979 Tenn. LEXIS 516

Opinions

OPINION

HARBISON, Justice.

This case involves the constitutionality of certain provisions of Chapter 934 of the Public Acts of 1978, providing for the restructure of county governments.

Under the terms of the act, in Wayne County a county executive was to be elected in 1978, but the county judge remained in office for the remainder of his term for the purpose of performing judicial duties. Thereafter these duties were to be transferred to the county executive. Also, the county legislative body was subjected to special statutory restrictions not imposed upon such bodies generally. The trial judge held all of the special provisions of the 1978 act applicable to Wayne County invalid and impermissible class legislation under Article XI, § 8 of the state constitution.

In the case of Waters v. State ex rel. Schmutzer, 583 S.W.2d 756 (Tenn.1979), the Court considered some of the provisions of this statute which are involved in the present litigation, particularly those conferring judicial authority upon the county executive. In the Waters case the provisions of Chapter 934 of the Public Acts of 1978 purporting to transfer the judicial functions of the county judge or county chairman to the county executive were held to violate Article VI, § 4 of the state constitution. For that reason, a significant part of the structure or plan for county government contained in the 1978 statute cannot and will not be implemented.

With some exceptions, the legislation contemplated the election in 1978 of a county executive in those counties which had formerly had a county chairman, county administrator or county manager as the chief executive or fiscal officer. There were some nineteen of these counties. Seventy-four counties, prior to the 1978 legislation, had incumbent county judges, many of whose terms of office did not expire until 1982. In some of these, however, the county judge had been divested of judicial duties by private acts and the term of office reduced to four years. The 1978 legislation permitted most of the county judges, except in some of the larger counties and except in Wayne and Roane Counties, to remain in office until the expiration of their terms, performing both judicial and executive, or fiscal, duties. In Wayne and Roane Counties, a county executive was to be elected in 1978, as in those counties formerly having county chairmen, but judicial functions were not conferred upon the county executive and were not to be transferred until 1982 or until the death or resignation of the county judge. In most of the other counties having a county judge, judicial functions were to be transferred to the county executive in 1982, or sooner in the event of the death, resignation or removal from office of a county judge.

As a result of the holding of this Court in the Waters case, the provisions of the 1978 legislation respecting the transfer of judicial functions have been invalidated. The decision in that case does not affect the legislative plan to have county executives elected in most of the counties, but it does require that a separate or special provision be made for the judicial functions of the county-paid judge or judges holding the juvenile and/or monthly county courts in all counties where county executives were given judicial duties either in 1978 or in future years. In effect, unless the legislature revises the entire scheme, after Waters there will have to be separate officials in each county, one or more performing judicial functions and another those of the county executive.

This is what the legislature has already provided in Roane and Wayne Counties in the 1978 Act.

According to the 1970 census Wayne County had a population of 12,365 and Roane County 38,881.

In or before August 1978 county executives were elected in twenty-four counties. In six of these, other than Wayne and Roane Counties, there formerly had been county judges. These six counties and their respective populations are:

Giles 22,138

Hamilton 255,077

Overton 14,866

Rutherford 59,428

Sevier 28,241

Van Burén 3,758

In the following counties, county executives were chosen to replace former county chairmen, administrators or managers. Population figures are from the 1970 census.

Anderson 60,300

Cannon 8,467

Chester 9,927

Cocke 25,283

Crockett 14,402

Dyer 30,426

Fayette 22,692

Hamblen 38,696

Jefferson 24,940

Johnson 11,569

Meigs 5,219

Moore 3,568

Putnam 35,487

Rhea 17,202

Unicoi 15,254

Washington 73,924

White 16,329

The foregoing tables do not include Wayne and Roane Counties where county executives were called for in 1978 to replace the county judge except for judicial duties. An election was held in Wayne County, but has not yet been held in Roane.

It is apparent that, pursuant to the 1978 legislation, many counties having approximately the same populations as Wayne and Roane were required to elect county executives to replace their former chief county officers. It is also apparent that in those counties where judicial duties were transferred to the county executive, there will have to be special provisions made by the local legislative bodies to choose someone else to perform those duties, pursuant to the Waters decision, until remedial legislation is provided. Accordingly, Wayne and Roane Counties are not alone in having a county executive without judicial duties, nor are they treated differently by the 1978 legislation from many other counties close to them in size and population.

The statutory provisions pertaining to Wayne and Roane Counties, insofar as they affect the county judge and the county executive, are part of a transitional plan made necessary by recent constitutional changes. In our opinion, they are not part of any general, mandatory uniform scheme of county government. Rather, these two counties were classed with twenty-three other counties having a county chairman, a similar chief officer or outgoing county judge. The net effect of the 1978 legislation was that twenty-four county executives had been elected by August 1978 and some sixty-nine others will be elected in 1982 or sooner in the event of a vacancy in the office of county judge.

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:

“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.” (Emphasis added).

It is apparent that the constitution does not mandate a uniform structure of county governments across the state. It specifically authorizes legislation creating different forms of local organization. In our opinion Chapter 934 of the Public Acts of 1978, particularly after the Waters decision, does not involve the creation of rigid patterns or norms. The General Assembly did move toward more uniformity than previously existed, but the statute contains numerous special provisions affecting local government in particular counties. It apparently sought to achieve some uniformity by 1982, but not immediately. Only transitional features of the legislation are involved with respect to the Wayne and Roane County executives.

In T.C.A. § 5-551 there are a number of special provisions concerning forms of government previously established by private acts. These provide, among other things, that in McMinn County, having a county manager form of government, the General Assembly shall establish an alternate form of county government which by referendum shall be submitted to the qualified voters. Incumbent members of the legislative body, however, shall remain in office until 1982 or until the alternate form of government is established. If an alternate form of government is not established prior to January 1, 1982, then the county government shall be determined in accordance with the more general provisions of Chapters 1, 5 and 6, Title 5, Tennessee Code Annotated.

It is apparent that the General Assembly did not intend for McMinn County, initially at any rate, to be embraced within the more general scheme provided in other parts of the 1978 statute. It had had a county manager form of government previously, but it is not treated in the act like other counties having that form of government or other counties with similar populations.

There are also special provisions for the transitional governments of knox and Polk

Footnotes

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* Counties, while Shelby and Davidson Counties are generally excepted from the provisions of the 1978 legislation.

With respect to county executives, as treated in Chapter 6 of Title 5, little, if any, general scheme or uniform structure appears, insofar as their compensation is concerned. These officials are to be selected in nearly all of the counties in the years between 1978 and 1982. The County executive as financial agent is given a minimum salary in T.C.A. § 5-613, but a large number of local variations, by population bracket, are appended thereto.

In our opinion, the 1978 statutes, insofar as they involve the county judge and county executive of Wayne County, are not violative of Article XI, § 8 of the state constitution. In order for the provisions of that Article to come into play, an act which is either local or local in effect must contravene some general law which has mandatory statewide application. See Rector v. Griffith, 563 S.W.2d 899 (Tenn.1978). In view of the transitional nature of the statutory provisions regarding the county executive and the county judge, together with the invalidation in the Waters case of significant portions of the governmental structure created by the 1978 statute, we are of the opinion that an invidious discrimination violative of Article XI, § 8 of the state constitution has not been demonstrated with respect to the county executive and county judge of Wayne County. It must be remembered that the 1978 statute was a restructuring act for county governments, enacted to effectuate changes made in the state constitution in 1978. It was necessary that there be, in many instances, special temporary provisions made in a number of counties, and we do not find that the provisions here under consideration violate any general mandatory statewide scheme existing prior to the 1978 legislation or created within it. The trial judge erred in holding to the contrary.

A somewhat different problem is presented by the provisions of the 1978 statute relating to the legislative body of Wayne County. As directed by new constitutional provisions in Article VII, the act created a county legislative body as the basic legislative unit in each county of the state, except in counties having metropolitan governments. Such a legislative body was to be created in every other county of the state, effective September 1, 1978, except for counties specially provided for in T.C.A. § 5-551 and in counties organized under the consolidated government provisions of Article XI, § 9.¹

T.C.A. § 5-502 provides generally for the county legislative body in all of the counties except those few not governed by it. It provides for the composition, the number of districts, the qualification of members, their terms of office and the date of their elec tion. In each county the legislative body is given discretionary authority “to determine whether each office in multi-member districts will be separately designated on the ballot with candidates required to run and to be elected on the basis of separately designated offices within the district.”

There is, however, a proviso which purports to except from the provision just quoted two counties by population bracket, one of these being Wayne County. In Wayne County the statute requires that “each office in multi-member districts shall be separately designated on the ballot, and candidates shall run and be elected on the basis of such separately designated offices within the district.” ² This special provision resulted from an amendment sponsored by the Wayne County representative in the House of Representatives.

The trial judge held that this separate provision violated Article XI, § 8 of the state constitution.

While a strong argument can be made in support of this conclusion, in view of the broad powers which the General Assembly has with reference to the structure of local governments and their agencies, we are reluctant to rest our decision on that provision of the state constitution nor do we find it necessary to do so. In all likelihood the General Assembly could, by local act, adopt such a provision as to a particular county. The powers which the General Assembly previously possessed respecting local governments were reinforced and strengthened as to county governments by the 1978 amendment to Article YII of the state constitution. That article, however, did not repeal or modify those provisions of Article XI, § 9 popularly known as the “Home Rule” provisions, which, insofar as pertinent here, are as follows:

“. . . any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.”

Indeed, Article VII itself contemplates referenda when particular “alternate” forms of county government are proposed by the General Assembly.

In our opinion, the home rule provisions of Article XI, § 9 and the referendum requirements of Article VII would not be applicable to the general statewide restructuring provisions in the 1978 legislation, made necessary by recent constitutional amendments. Where, however, the General Assembly has made a permanent, general provision, applicable in nearly ninety of the counties, giving the local legislative bodies discretion as to the method of election of their members, we do not think it could properly make different provisions in two of the counties, by population bracket, in the manner attempted here. Insofar as Wayne County is concerned, this amounted to nothing more than a private act relating to the composition of its county legislative body, without any statement of reasons and without requirement of a local referendum. In our opinion, neither Article VII nor Article XI, § 9 authorizes this type of legislation, nor can it be justified as being a transitional part of a general restructuring scheme.

Accordingly, the judgment of the trial court is affirmed insofar as it held unconstitutional the provisions of T.C.A. § 5-502 relative to Wayne County.

The cause is remanded to the trial court for further proceedings consistent herewith. Costs incident to the appeal will be taxed one-half to appellants and one-half to ap-pellees; costs in the trial court will be adjudged there.

BROCK, C. J., and COOPER, J., concur. HENRY and FONES, JJ., dissent.

See Tenn.Pub.Acts, 1978, ch. 934, § 35(c); in the codification of this section, reference is made to Hamilton, rather than Polk, County. T.C.A. § 5-551(c) (Supp.1978).

1

. Article VII, as amended in 1978, by its terms does not apply to counties organized under those provisions of Article XI, § 9.

2

. An identical provision excepts Bledsoe County by population bracket.