|Legal Opinion: |
Text of Document: January 10, 1996
In AG Opinion 95-114 you opined that territory of the state could be incorporated as a municipality by a private act of the General Assembly. In so opining, you overlooked article XI, section 9 of the Tennessee Constitution, which, among other things, provides that, "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."
That provision was part of Amendment 7 of the 1953 amendments to the Tennessee Constitution. Although Amendment 7 is the so-called "Home Rule Amendment," the sentence it contained cited above clearly applies to the creation of all municipalities, home rule and otherwise. The Tennessee Supreme Court in Frost v. Chattanooga, 488 S.W.2d 370 (Tenn. 1972) held that a private act disguised as a general law relating to annexation [alteration of boundaries] was unconstitutional. In doing so, it spoke of article XI, section 9 as "mandatory," and of the "unambiguous mandatory language of our Constitution," and declared that, "The Constitution in very clear language prohibits the Legislature from prescribing any method of altering municipal boundaries except by general law." 
Citing Frost, the Court reached the same conclusion in Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990). Holding that a population classification in the state annexation statute did not rise to the level of a general law, the Court distinguished earlier cases in which it had upheld some population classifications:
However, we have never upheld class legislation in annexation statutes. Such statutes are subject to an entirely different constitutional prohibition, the Municipal Boundaries Clause [of article XI, section 9] is couched in "unambiguous mandatory language," and was adopted to remedy "the great evils that have arisen in regard to the legislature enacting legislation affecting only one county or municipality."  [Citing Frost, 373]
The Municipal Boundaries Clause is a part of the sentence in Amendment 7 [Article XI, section 9 of the Tennessee Constitution] that requires the General Assembly by general law to provide the exclusive methods by which “municipalities may be (1) created, (2) merged, (3) consolidated, (4) dissolved, and (5) their boundaries altered. The cities of Chattanooga and Johnson City are both home rule cities, but that was a coincidence. That issue never arose, and the Court never mentioned, that fact in either Frost or Hart, for good reason: The Boundaries Clause did not apply to Chattanooga and Johnson City because they were home rule cities; it applied to them because they were cities. The Boundaries Clause cannot be separated from the remainder of the sentence in which it sits, and the Court made no attempt to do so. In fact, it pointed to that sentence in footnote 1 of Hart: “The General Assembly shall by general law [The court’s added emphasis.] provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered. 
Because of that sentence in article XI, section 9 of the Tennessee Constitution, it has been unconstitutional since 1953 to incorporate municipalities by private act. Nothing in article XI, section 9 prohibited the continuation of private act cities, and the amendment of their charters by private act. Around two-thirds of Tennessee cities continue to be private act cities, and their charters are regularly amended by private act. However, no city has been created by private act since 1953 for the reason that such a creation would be illegal and void.
Sidney D. Hemsley
Senior Law Consultant