                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 18, 2003 Session

      CITY OF OAKLAND, TENNESSEE v. LENITA McCRAW, ET AL.

                A Direct Appeal from the Chancery Court for Fayette County
                No. 12253   The Honorable William H. Inman, Special Judge



                    No. W2002-01552-COA-R3-CV - Filed March 17, 2003


        This is a municipal incorporation case which tests the constitutionality of Chapter 129, Public
Acts of 2001, codified as T.C.A. § 6-1-210(b) and also presents the issue of whether the action
instituted by an adjoining incorporated municipality to invalidate the incorporation of the
neighboring area is an election contest governed by the limitation period established by T.C.A. § 2-
17-105. The trial court held that Chapter 129, Public Acts of 2001, is unconstitutional and further
held that the incorporated municipality’s action to invalidate the unincorporated area’s referendum
election and to revoke its charter is not an election contest governed by T.C.A. § 2-17-105. The
territory seeking incorporation appeals, and the county election commission that certified the election
appeals by the Tennessee Attorney General, defending the constitutionality of the subject Act. We
affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

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

Brian L. Kuhn and Thomas J. Walsh, Jr., For Appellants, Town of Hickory Withe, Tennessee and
Mayor David Shelton

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Ann Louise
Vix, Senior Counsel, Nashville, For Appellant, Members of the Fayette County Election
Commission

Richard J. Myers, Memphis, For Appellee, City of Oakland

                                             OPINION

       This case involves, inter alia, an analysis of the constitutionality of Chapter 129, Public Acts
of 2001, codified as T.C.A. § 6-1-210(b) (“Chapter 129”). Defendant, Town of Hickory Withe,
Tennessee (“Hickory Withe”), is a territory of 2,574 people located in Fayette County. Plaintiff, city
of Oakland, Tennessee (“Oakland”), is an existing municipality adjoining the proposed boundaries
of Hickory Withe. On August 1, 1996, the residents of Hickory Withe held an incorporation election
pursuant to the amendments posed in Chapter 666, Public Acts of 1996, to T.C.A. § 6-1-201, for the
explicit purpose of voting on whether to incorporate the town. The result of the election was a
majority vote in favor of incorporation. Soon thereafter, the Chancery Court of Fayette County,
Tennessee declared Chapter 666 unconstitutional.1

       In 1997, the Tennessee General Assembly amended T.C.A. § 6-1-201 through Chapter 98,
Public Acts of 1997. The 1997 amendments reduced the number of actual residents required for the
incorporation of a territory from 1,500 to “not fewer than two hundred twenty-five.” Additionally,
the 1997 amendments added the following subsections under Section 10 of the statute:

                  (j) Any territory that has conducted an election under this section
                  before the effective date of this act is deemed to have satisfied the
                  requirements for incorporation under this chapter, including without
                  limitation, any petition, time, notice and distance requirements of this
                  chapter; any action of such newly incorporated municipality in such
                  territory is hereby validated, ratified and confirmed, and no additional
                  election under subsection (a) need be held. In addition, any ordinance
                  of annexation by another municipality for any territory within the
                  corporate limits such new municipality is void and of no effect.

                  (k) If a territory has proposed to be incorporated under the provisions
                  of this section after January 1, 1996, the new municipality shall have
                  priority over any annexation ordinance of an existing municipality
                  which encroaches upon any territory of the new municipality.

The 1997 amendments to T.C.A. § 6-1-201 were subsequently declared void pursuant to Article II,
Section 17 of the Tennessee Constitution, as the Supreme Court determined that “Sections 7 through
11 of Chapter 98 of the 1997 Tennessee Public Acts are broader than and outside the caption of the
Act.” Tennessee Mun. League v. Thompson, 958 S.W.2d 333, 338 (Tenn. 1997).

      In 1998, the General Assembly again entertained and approved amendments to T.C.A. § 6-1-
201. Chapter 1101, Section 9(f)(3) of the Public Acts of 1998 provided:

                  (A) Notwithstanding any other provision of law to the contrary, if any
                  territory with not less than two hundred twenty-five (225) residents
                  acted pursuant to Chapter 98 of the Public Acts of 1997, or Chapter


         1
           According to the brief filed by the Attorney General on behalf of defendant members o f the Faye tte County
Election Commission, the chancery court concluded that Chapter 666 was an “unconstitutional special act that violated
Article 11, Section 9 of the Tennessee Constitution.”

                                                         -2-
                    666 of the Public Acts of 1996 from January 1, 1996 through
                    November 25, 1997, and held an incorporation election, and a
                    majority of the persons voting supported the incorporation, and
                    results of such election were certified, then such territory upon filing
                    a petition as provided in § 6-1-202, may conduct another
                    incorporation election.

                    (B) If such territory votes to incorporate, the new municipality shall
                    have priority over any prior or pending annexation ordinance of an
                    existing municipality which encroaches upon any territory of the new
                    municipality. Such new municipality shall comply with the
                    requirements of Section 13(c) of this act.

Soon after its passage, Chapter 1101, Section 9(f)(3) of Public Acts of 1998 was ruled an
unconstitutional violation of Article XI, Section 8 of the Tennessee Constitution because it created
a special classification in contravention of a general law, not supported by a rational basis.2 Town
of Huntsville v. Duncan, 15 S.W.3d 468, 473 (Tenn. Ct. App. 1999).

        The residents of Hickory Withe petitioned to hold a second referendum on incorporation in
September 1998. Acting under the authority of T.C.A. § 6-1-201 and the amendments espoused in
Chapter 1101, Hickory Withe held a second incorporation election on October 24, 1998.3 Hickory
Withe again returned a majority vote in favor of incorporation, and approved a mayor-aldermanic
charter. Defendant David Shelton (“Shelton”) was elected mayor in the inaugural elections of
January 1999.

      Defendants concede that the “geographic area describing the proposed corporate limits of the
Town of Hickory Withe includes territory within three miles of the boundaries of the Town of
Oakland.” The Attorney General, acting on behalf of the members of the Fayette County Election

         2
             In its examination of this section, the court noted:

                    Section 9(f)(3)(A) enables certain territories to hold elections even though they do
                    not have at least 1,500 residents and are within three miles of an existing
                    municipality. Furthermore, Section 9(f)(3)(B) gives these territories retroactive
                    priority over any prior or pending annexation ordinances of adjoining
                    municipalities, a priority not afforded to other territories seeking incorporation.
                    Thus, Sectio n 9(f)(3) creates a special classification o f territories that may hold
                    incorporation elections while other territories of similar size and location cannot do
                    so under the applicable general law.

Id. at 472 (emphasis in original).


         3
          As part of the incorporation and petitioning process, “Hickory Withe representatives prepared and submitted
a Proposed Plan of Services ... which set forth the services to be provided, along with projected revenues and
expenditures for the incorporated territory.”

                                                             -3-
Commission (“Election Commission”), further acknowledges that “[t]he Town of Oakland annexed
territory within the proposed corporate limits of the Town of Hickory Withe.” According to the
Affidavit of defendant Shelton, Hickory Withe has continuously operated as a municipal corporation
since the October 1998 election.

       In April 2001, the General Assembly undertook to amend T.C.A. § 6-1-210 via Chapter 129,
Public Acts of 2001, adding the following subsection:

               (b) Notwithstanding any provision of this chapter or any other law to
               the contrary,

               IF the registered voters of any unincorporated territory approved a
               mayor-aldermanic charter and elected municipal officials, acting
               pursuant to the provisions of this chapter on or before December 31,
               1999; AND

               IF, from the election of such officials until the effective date of this
               act, the territory has continuously functioned as a mayor-aldermanic
               municipality; AND

               IF the territory, between the date of such election and the effective
               date of this act, received and expended state funding allocated for
               municipalities; THEN

               The adoption of such charter, the incorporation of such territory as a
               mayor-aldermanic municipality and the election of such officials are
               hereby ratified and validated in all respects; and no flaw or defect or
               failure to comply with any requirement of incorporation, set forth in
               § 6-1-201(b), shall invalidate the territory’s status as an incorporated
               municipality or invalidate any ordinance passed by the board.

Chapter 129, Public Acts of 2001.

Chapter 129 was codified as T.C.A. § 6-1-210(b), and took effect on April 26, 2001, while this
action was still pending.




                                                 -4-
        Oakland filed its original Complaint for Injunction and Declaratory Relief against defendants
Lenita McCraw, Fayette County Administrator of Elections,4 the Election Commission,5 Shelton,
and Hickory Withe on December 18, 1998. At the heart of Oakland’s complaint is the allegation that
Hickory Withe was incorporated pursuant to an unconstitutional Public Act, therefore rendering the
town’s election, and subsequent incorporation, invalid. Oakland advanced several arguments
attacking the constitutionality of Chapter 1101, including assertions that this act violated Sections
8 and 9 of Article XI of the Tennessee Constitution.6

        The Attorney General filed a Motion for Partial Dismissal pursuant to Tenn. R. Civ. P.
12.02(6), or, in the alternative, a Motion for Partial Summary Judgment. As the basis for these
motions, the Attorney General rebuffed plaintiff’s claims that Chapter 1101 was unconstitutional,
and further asserted that “Section 9(f)(3) of the Act is a general law, does not interfere with vested
rights, and is supported by a rational basis.”

       Mayor Shelton and the Town of Hickory Withe filed a joint Answer to Oakland’s Complaint
on February 26, 1999. In addition to denying plaintiff’s allegations that Chapter 1101 was
unconstitutional, defendants affirmatively pled that the action should be controlled by T.C.A. § 2-17-
105 as an election contest. Defendants set forth the following affirmative defenses:

                    38. This Complaint should be dismissed for lack of standing of the
                    Plaintiff.

                    39. The Complaint should be dismissed for lack of jurisdiction due to
                    Plaintiff’s failure to timely file a petition for writ of certiorari.

                    40. The Complaint should be dismissed for failure to be filed
                    pursuant to Tennessee Code Annotated 2-17-101, et seq. and for
                    failure to file within the time limit set forth in that statute.7

                    41. The Complaint should be dismissed based upon the equitable
                    principles of estoppel and laches.

         4
          Plaintiff voluntarily dismissed this cause of action as to defendant McCraw in July 2001, said dismissal being
granted by the court in an Order entered July 12, 2001.

         5
          The following individuals were sued in their official capacity as Election Commission members: Michael
Thoma s, Erne stine B rown, Maxine M iddlecoff, Alice P. M cClanahan, and W illiam P. Yan cey.

         6
           Oakland properly notified the Attorney General of the State of Tennessee of its intent to question the
constitutionality of Chapter 1101, Public Acts of 1998.

         7
             T.C.A . § 2-17-105 (1994) provide s:

                    Time for filing compla int. – The complaint contesting an election under § 2-17-
                    101 shall be filed within ten (10) days after the election.

                                                          -5-
On August 2, 1999, the Tennessee Supreme Court entered an Order designating Judge William H.
Inman to hear the case “to its conclusion.”

        The Attorney General filed a Motion to Continue Trial on October 25, 1999. The Attorney
General sought continuance on the grounds that defendant was planning to appeal the Court of
Appeals’ decision in Town of Huntsville v. Duncan, in which the court found that “Section 9(f)(3)
of Chapter 1101 of the Public Acts of 1998 is unconstitutional because it offends Article XI, Section
8 of the Tennessee Constitution.” The trial court granted defendant’s motion, recognizing that “[a]
principal issue in this litigation involves the constitutionality of Section 9(f)(3) of Chapter 1101,
Public Acts of 1998.”

        On November 1, 1999, the Attorney General filed a joint Motion for Partial Summary
Judgment asserting that defendants were entitled to judgment as a matter of law “as to the allegations
that these Defendants violated T.C.A. § 6-1-202(a).” In May 2000, Oakland countered with its own
Motion for Summary Judgment, insisting that Huntsville v. Duncan was controlling authority with
regard to the issue of whether Chapter 1101 was constitutional. As further support for this assertion,
Oakland noted that the Tennessee Supreme Court had recommended the Eastern Section’s amended
opinion in Huntsville for publication.

        Upon the Supreme Court’s Order of May 1, 2000 designating Huntsville for publication, the
Attorney General filed a Notice of Withdrawal of defendants’ motions for partial dismissal and
partial summary judgment. Defendants, moreover, stipulated and agreed that “Section 9(f)(3) of
1998 Tenn. Pub. Acts Ch. 1101 is unconstitutional because it establishes a classification that is not
supported by a rational basis as required by Article XI, Section 8 of the Tennessee Constitution.”
The trial court subsequently granted Oakland’s Motion for Partial Summary Judgment to the extent
that “Section 9(f)(3)(B) of Chapter 1101 of the 1998 Public Acts is unconstitutional as held by the
Court of Appeals in Town of Huntsville et al. v. Duncan, C/A 03A01-9901-CH-00024.”


       On April 26, 2001, Chapter 129 was signed into law. Immediately thereafter, Oakland
amended its complaint8 to challenge the constitutionality of Chapter 129 and to further request that
the court grant the following relief:

                  The Court declare [Chapter 129] unconstitutional generally, and/or as
                  it applies to the Plaintiff particularly and therefore void, and
                  permanently enjoin enforcement of said Act.

                  The Court grant plaintiff a permanent injunction prohibiting
                  defendants from conducting any further elections of any kind for the
                  Town of Hickory Withe.


         8
           The court permitted Oakland to amend its complaint pursuant to a Consent Order entered M ay 9, 2001 . We
note that Oakland properly notified the Attorney General of its intent to challenge the constitutionality of Chapter 129.

                                                          -6-
       Defendants Shelton and Hickory Withe filed a joint Answer in response to Oakland’s
amended Complaint in May 2001.9 As part of their answer, defendants affirmatively pled “that the
passage and signing into law of House Bill 1930/Senate Bill 1903, Chapter 129 of the Public Acts
of 2001 (the “Ratification Act”) has cured any alleged violations of T.C.A. 6-1-201 et seq. that
occurred during the incorporation of Hickory Withe....”
       On February 15, 2002, Oakland filed a Motion for Partial Summary Judgment challenging
the constitutionality of Chapter 129 on the following basis:

                 For grounds, Oakland will show that Chapter 129 is unconstitutional:
                 pursuant to Const. Art. 11, § 9, because it is a special law regarding
                 the incorporation of a municipality; and, pursuant to Const. Art. 11,
                 § 8, because it is a special law in contravention of a general law that
                 creates an arbitrary class, and whose status as such has already been
                 adjudicated in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn.
                 Ct. App. 1999). There is thus no genuine issue of material fact that
                 as a matter of law Oakland is entitled to partial summary judgment
                 that Chapter 129 is unconstitutional and thus void.

The Attorney General filed a response to plaintiff’s motion, defending the constitutionality of
Chapter 129. Specifically, the Attorney General argued that Chapter 129 does not create a special
class, as it “validates the incorporation of every city that has incorporated in Tennessee since June
30, 1991 and is still actively operating.” Alternatively, the Attorney General suggested that if
Chapter 129 does, in fact, create a special class, such class is justified by a rational basis.

       On April 15, 2002, the court entered an Order granting Oakland’s Motion for Partial
Summary Judgment. In concluding that Chapter 129 was an unconstitutional violation of Article XI,
Section 9 of the Tennessee Constitution, the court noted:

                         The intended effect of Chapter 129 is to validate the
                 incorporation of various small territories – such as Hickory Withe –
                 whether the general laws for incorporation were complied with or not.
                 Stated differently, Chapter 129 undertook to remove the shadow of
                 Duncan from various small towns whose creation and existence were
                 mirror images of Helenwood, the town involved in Duncan. Chapter
                 129 thus squarely offends Article 11 Section 9 of the Constitution
                 which declares “[t]he 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.” See Frost v. City of Chattanooga, 488
                 S.W.2d 370 (Tenn. 1972).



       9
           The Attorney General filed an Answer to Oakland’s Amended Complaint on May 25, 2001.

                                                     -7-
                          Oakland correctly points out that only those territories
                  incorporated under Chapter 98 of the 1997 Public Acts, which was
                  declared unconstitutional in Tenn. Mun. League v. Thompson, 958
                  S.W.2d 333 (Tenn. 1997), would require validation, if possible, and
                  that the only difference between Chapter 129 (in controversy here)
                  and Section 9(f)(3), (in controversy in Duncan), is “that the latter
                  made the [various small towns] continued existence contingent upon
                  another vote, while the former simply decrees it.” Chapter 129 is a
                  special law creating a number of small towns in stark contravention
                  of the Constitution.

        Seven days after the filing and entrance of this Order, Hickory Withe filed a motion seeking
clarification of the status of the case, and the April 15 Order. The basis for Hickory Withe’s motion
was its assertion that the trial court’s April 15 Order did not provide a final judgment or resolution
on the following issues: (1) “whether the Court had jurisdiction of this matter because the Complaint
was not filed within ten (10) days of the election pursuant to T.C.A. §§ 2-17-101 et seq., and
specifically T.C.A. § 2-17-105 (1998);” (2) “whether or not laches and estoppel applied to the Town
of Oakland Complaint;” and (3) “whether or not it should have been filed as a Petition for Certiorari
within the proper deadline set forth in the Petition for Certiorari statute being T.C.A. § 27-9-101 et
seq.”

        On May 13, 2002, the Attorney General, acting pursuant to T.R.C.P. 54.02, moved for entry
of a final judgment on the constitutionality of Chapter 129. The Attorney General’s motion was
granted by Order of the trial court on June 10, 2002. Shortly thereafter, the Attorney General filed
a Motion to Revise the June 10 Order, citing concern that the “Order may not be sufficient to support
an appeal under Rule 54.02.”

         The Attorney General filed a Notice of Appeal, appealing the trial court’s April 15 Order on
June 27, 2002. Defendants Shelton and Hickory Withe followed the Attorney General’s lead, and
filed a joint Notice of Appeal on July 5, 2002, challenging the court’s April 15 ruling. The Attorney
General filed a Revised Notice of Appeal on July 9, 2002.

      On October 9, 2002, the trial court entered a Final Order on the remaining issues10 raised by
Hickory Withe and Oakland in their cross motions for summary judgment. The court, in its
Memorandum Opinion, stated with regard to these issues:

                          Hickory Withe, in a fall-back position of sorts, argues that if
                  it cannot prevail under the Ratification Act (declared invalid by this
                  Court) its efforts to incorporate under prior law must be


         10
            The following issues were withdrawn prior to entry of the Final Order: (1) whether the Plan of Services
subm itted by H ickory W ithe complied with applicable statutory guideline s; and (2) whether O akland ’s complaint was
properly brought under T.C.A. § 29-35-101.

                                                         -8-
               acknowledged as valid, notwithstanding its (1) admitted violation of
               the three mile limit, (2) its assertion that it did not rely exclusively
               upon a particular statute, (3) its concession that the boundaries of
               Hickory Withe cannot be judicially redrawn to obviate the three mile
               violation. Hickory Withe argues that the Oakland complaint is
               untimely because not filed within the familiar ten day period
               regarding election contests.

                       Keeping within the parameters of Rule 56, the undersigned is
               of the opinion that (1) T.C.A. §§ 2-17-101 et seq. is not implicated in
               this case, which does not involve an election contest. See, e.g.,
               Brown v. Vaughn, 310 S.W.2d 444 (Tenn. 1957), and Forbes v. Bell,
               816 S.W.2d 716 (Tenn. 1991). The standing to sue issue is clearly
               not a defense to this action, see, e.g., Collierville v. Fayette County
               Election Commission, 539 S.W.2d 334 (Tenn. 1976), and neither is
               the equitable principle of laches.

Based on these findings, the court granted Oakland’s Motion for Summary Judgment, denied the
motion of defendant Hickory Withe, and ordered the immediate dissolution of Hickory Withe’s
Charter.

       On October 16, 2002, defendants Shelton and Hickory Withe filed a joint Notice of Appeal,
challenging the Final Order of October 9. Defendants noted:

               [T]hey currently have an appeal pending from a prior order of this
               Court in this case, that being an appeal from the Court’s Order of
               April 15, 2002, as made final by the Court’s order of June 10, 2002,
               holding that the Tennessee Ratification Act, Tenn.Code Ann. § 6-1-
               210(b), violates Article XI, Section 9 of the Tennessee Constitution.
               The Final Order which is the subject of the present appeal addresses
               other issues in the case. Approximately concurrently with the filing
               of this Notice of Appeal, a joint motion is being filed with the Court
               of Appeals on behalf of all parties to both appeals, moving the Court
               of Appeals to consolidate the two appeals and to expedite their
               resolution.

        Therefore, on appeal, defendants Hickory Withe, Shelton, and Attorney General (acting on
behalf of Election Commission) present the following issue for review: Whether Chapter 129, Public
Acts of 2001, violates Article XI, Section 9, of the Tennessee Constitution. Defendants Hickory
Withe and Shelton present for review the additional issue of whether the court lacks jurisdiction over
this matter, “because the complaint was not filed within 10 days of the election in question, as
required by T.C.A. § 2-17-101 et seq. governing election contests.”



                                                 -9-
        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court said:

               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant trial. In this regard, Rule 56.05 provides that the
               nonmoving party cannot simply rely upon his pleadings but must set
               forth specific facts showing that there is a genuine issue of material
               fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

                                                  I.

        Because this court is required to abstain from ruling on the constitutionality of a statute
unless such a ruling is absolutely necessary, we begin by examining Hickory Withe’s second issue,
the question of whether the trial court lacks jurisdiction over this matter “because the complaint was
not filed within 10 days of the election in question, as required by T.C.A. § 2-17-101 et seq.
governing election contests.”

        In arguing that Oakland’s complaint is time barred as an election contest under the 10-day
statute of limitations set forth in T.C.A. § 2-17-105, Hickory Withe relies primarily on the Tennessee
Supreme Court’s decision in Dehoff v. Attorney General, 564 S.W.2d 361 (Tenn. 1978). Dehoff
involved a referendum election, posing to voters the question of whether the term of the Rutherford
County judge should be changed from an eight-year term to a four-year term. Id. at 62. A majority
of the votes cast were for the four-year term. Id. More than three months following the election,
citizens and registered voters of Rutherford County filed a declaratory judgment suit seeking to have
the election declared invalid for, among other things, constitutional reasons. Id. The defendant
denied that there were any grounds for declaring the election invalid and asserted the further defense


                                                 -10-
that the action should be dismissed because it was not filed within the ten-day statute of limitations
as required by then T.C.A. § 2-1705. Id. at 362-63. The Supreme Court, in affirming the decision
of the chancellor that the action was in reality an election contest and was barred because it was not
timely filed, stated:

                       Accordingly, in the case at bar, it is clear that insofar as the
               plaintiffs seek to contest the election of May 2, 1974, the applicable
               period of limitations is the ten day period prescribed by T.C.A., § 2-
               1705, and since the suit was not filed within that ten day period, it is,
               to that extent, barred as held by the Chancellor.

                       The election code of this State does not specifically define
               “election contest.” However, in Hatcher v. Bell, Tenn., 521 S.W.2d
               799 (1974), this Court, speaking through Mr. Justice Cooper, has
               given a broad interpretation to the words “election contest” as they
               are used in the election code. Thus, we said:

                       There is no question but that a suit which attempts to
                       go behind the election returns, to recount the votes or
                       otherwise assail the manner and form of the election
                       is an election contest. (Citations omitted). But an
                       election contest is not limited to an attack on the
                       integrity of the election process, nor is it limited to an
                       attack by a candidate who makes claim to the office.

                                       *                *               *

                       We also said in the Hatcher case that the target of an election
               contest is the validity of the election.

Id. at 363.

        Concerning contested elections, T.C.A. § 2-17-101 (1994) provides:

               2-17-101. Jurisdiction - Standing. - (a) Except as otherwise
               expressly provided in this chapter, election contests shall be tried in
               the chancery court of the division in which the defendant resides. The
               chief justice of the supreme court shall assign a chancellor from a
               different division to decide a contested election of chancellor.

               (b) The incumbent office holder and any candidate for the office may
               contest the outcome of an election for the office. Any campaign
               committee or individual which has charge of a campaign for the


                                                 -11-
               adoption or rejection of a question submitted to the people may
               contest the election on the question.

        We believe that Hickory Withe’s reliance on Dehoff is misplaced. Under Dehoff, the
plaintiffs had standing to file an election contest. See Brackin v. Sumner County, 814 S.W.2d 57,
61 (Tenn. 1991); Rodgers v. White, 528 S.W.2d 810, 811 (Tenn. 1975).

        Oakland, in contrast, has no standing to proceed in an election contest concerning a
referendum involving the citizens of the community of Hickory Withe. The City of Oakland is not
qualified to vote in that referendum, and it is not a “campaign committee or individual which has
charge of a campaign for the adoption or rejection of a question submitted to the people.” T.C.A.
§ 2-17-101(b). To adopt Hickory Withe’s argument would effectively deny Oakland a remedy while
it obviously has a remedy in a quo warranto proceeding. See Corp. of Collierville v. Fayette County
Election Comm’n, 539 S.W.2d 334 (Tenn. 1976) (wherein the town of Collierville, Tennessee filed
a proceeding to declare invalid the incorporation of Piperton for violation of the statute proscribing
encroachment within two miles of Collierville’s boundaries). The opinion presented the question:
“Does the existing city have standing to sue to invalidate the charter of the proposed city when the
two-mile provision and the resulting 15-month mandatory waiting period are ignored.” Id. The
Supreme Court answered this question in the affirmative. Id. at 336. The trial court had sustained
a motion to dismiss, holding that since this was a quo warranto proceeding, Collierville had no
standing to sue, as it would have to be brought in the name of the district attorney general. Id. at
335. The Supreme Court’s ruling was premised on its finding that Collierville, as an existing city,
was an “‘arm of the state,’and a repository of a portion of the state’s sovereign power,” which in turn
conferred the right to sue to challenge the corporate existence of Piperton. Id. at 337.

        From the above authorities, we conclude that Oakland’s suit to challenge the corporate
existence of Hickory Withe is not an election contest, and therefore not barred by the ten-day
limitation provision established for election contests in T.C.A. § 2-17-105.

                                                  II.

         The second issue presented for review is whether Chapter 129, codified as T.C.A. § 6-1-
210(b) (2002), violates the Municipal Boundaries Clause of Article XI, Section 9. Statutes enacted
by the legislature are presumed constitutional. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856,
858 (Tenn. 1996). Thus, we must “indulge every presumption and resolve every doubt in favor of
constitutionality.” Id.

        Oakland alleges that Chapter 129 is a special law in violation of Article XI, Section 9, of the
Tennessee Constitution as it validates the corporate existence of a “handful class” of municipalities,
despite said municipalities’ failure to comply with the three mile incorporation requirement set forth
in T.C.A. § 6-1-201(b). Defendants counter that Chapter 129 is a general law under the Municipal
Boundaries Clause and, in the event that Chapter 129 creates a special classification, the
classification is valid as it is supported by a rational basis.


                                                 -12-
       The Municipal Boundaries clause of Article XI, Section 9 of the Tennessee Constitution
provides:

               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.

Tenn. Const. art. XI, § 9 (emphasis added).

        Under T.C.A. § 6-1-201, a territory is entitled to incorporate if it complies with certain
requirements. Included among these requirements is the provision that “no unincorporated territory
shall be incorporated within three (3) miles of an existing municipality....” It is undisputed that
Hickory Withe violated T.C.A. § 6-1-201(b) by incorporating within three miles of Oakland’s
corporate limits. Despite this infraction, Hickory Withe maintains that its corporate existence is
validated by Chapter 129.

       To reiterate, Chapter 129, codified as T.C.A. § 6-1-210(b) (2002), provides:

               Notwithstanding any provision of this chapter or any other law to the
               contrary,

               IF the registered voters of any unincorporated territory approved a
               mayor-aldermanic charter and elected municipal officials, acting
               pursuant to the provisions of this chapter on or before December 31,
               1999; AND

               IF, from the election of such officials until April 26, 2001, the
               territory has continuously functioned as a mayor-aldermanic
               municipality; AND

               IF the territory, between the date of such election and April 26, 2001,
               received and expended state funding allocated for municipalities;
               THEN

               The adoption of such charter, the incorporation of such territory as a
               mayor-aldermanic municipality and the election of such officials are
               hereby ratified and validated in all respects; and no flaw or defect or
               failure to comply with any requirement of incorporation, set forth in
               § 6-1-201(b), shall invalidate the territory’s status as an incorporated
               municipality or invalidate any ordinance passed by the board.




                                                -13-
        We turn to this court’s decision in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn. Ct.
App. 1999) for guidance in determining whether Chapter 129 is a special law in violation of the
Municipal Boundaries Clause of Article XI, Section 9.11 Although Huntsville was not decided upon
the same constitutional provision as the one before this court, the factual and legal analysis instituted
by the Huntsville court is analogous to the situation at bar. In Huntsville, the plaintiffs filed suit
challenging the constitutionality of Chapter 1101, Public Acts of 1998. Id. at 469. Defendant town
of Helenwood, an adjoining territory of less than 1,500 people, held an incorporation election in
November 1997 pursuant to Chapter 1101. Id. at 470-71. A majority of voters voted in favor of
incorporation, and Helenwood was thereby incorporated despite the fact that it had less than 1,500
citizens and was situated within three miles of Huntsville. Id. at 471.




         11
            Defendants appear to contend that Hu ntsville is not controlling authority because the statute involved in that
case was ruled unconstitutional and invalidated on the basis that the “act created a classification that was not supported
by a rational basis under Article XI, Section 8 of the Tennessee Constitution.” Because Hu ntsville involved the
application of Section 8, not Section 9, defendants suggest that Huntsville is not dispositive of the issue of whether
Chapter 1 29 violates the Municipal Bo unda ries Clause of Section 9.

         Article XI, Section 8 pro vides:

                  The Legislature shall have no power to suspend any general law for the benefit of
                  any particular individual, nor to pass any law for the b enefit of ind ividuals
                  inconsistent with the general laws of the land; nor to pass any law granting to any
                  individual or individuals, rights, privileges, immunitie, [immunities] or exemptions
                  other than such as may be, b y the same law extended to any member of the
                  com munity, who m ay be a ble to bring himself within the provisions of such law.
                  No corp oration shall be created or its powers increased or diminished by special
                  laws but the General Assembly shall provide by general laws for the organization
                  of all corporations, hereafter created, which laws may, at any time, be altered or
                  repealed, and n o such alteration or rep eal shall interfere w ith or divest rights
                  which have become vested.

Tenn. Const. art. XI, § 8 (emphasis added).

          According to the court in Hu ntsville, “Tennessee courts have long recognized the similarity between Article
XI, Section 8, and the Equal Protection Clause of the Federal Constitution, and have therefore applied an equal protection
analysis to constitutional challenges brought pursuant to Article XI, Section 8.” Id. at 472 (citations omitted). Section
8 is a broadly defined equal protection provision that assigns to the General Assembly the power to organize corporations
pursuant to ge neral laws, thereby prohibiting the cre ation o f corporatio ns through sp ecial laws.

         In contrast, Section 9 is a more direct and precisely defined equal protection provision that gives the General
Assembly the exclusive power to create municipalities by general law. However, because Hickory W ithe is currently
operating as a municipal corporation, and recognizing that Sections 8 and 9 are both equal protection provisions that
prohibit the creation o f corporatio ns and municipalities respectively, we find that Hu ntsville is, at a minimum,
persuasive authority with regard to the issue o f whether Chapter 1 29 is a special law in violatio n of the Municipal
Boundaries Clause.




                                                           -14-
        Plaintiff, Town of Huntsville, “specifically contest[ed] Section 9(f)(3) of Chapter 1101,
which permit[ted] certain territories to hold incorporation elections even though these territories
[did] not satisfy the minimum requirements for such elections as set forth in the general law.” Id.
at 469-70 (citing T.C.A. § 6-1-201 (1998)). The parties filed cross motions for summary judgment,
and the trial court granted summary judgment in favor of defendants, “finding that Section 9(f)(3)
is constitutional.” Id. at 470. Plaintiffs raised five issues on appeal, including the separate issues
of whether Section 9(f)(3) violated Article XI, Section 8, and Article XI, Section 9. Id.

         Considering first the issue of whether Section 9(f)(3) violated Section 8 by “(a) creating a
class of territories that can incorporate despite the general population and distance requirements
applicable to municipalities statewide, [and] (b) without any rational basis for the classification,” the
court of appeals concluded that “Article XI, Section 8 is implicated in this case because Section
9(f)(3) contravenes the general law pertaining to the incorporation of municipalities.” Id. at 471-72.
As support for this holding, the court noted that the statute in question enabled a specific class of
territories to hold incorporation elections despite their failure to comply with the population and
distance requirements set forth in T.C.A. § 6-1-201. Id. at 472. The court further noted:

                Section 9(f)(3) gives these territories retroactive priority over any
                prior or pending annexation ordinances of adjoining municipalities,
                a priority not afforded to other territories seeking incorporation.
                Thus, Section 9(f)(3) creates a special classification of territories that
                may hold incorporation elections while other territories of similar size
                and location cannot do so under the applicable general law.

Id., (Emphasis in original).

Based on its conclusion that Section 9(f)(3) created a special classification, unsupported by a rational
basis (a point that will be discussed in further detail later in this opinion), the court pretermitted all
other issues presented on appeal, including the issue of whether Section 9(f)(3) violated Article XI,
Section 9. Id. at 473.

         Similar to Chapter 1101, Chapter 129 enables a specific class of territories to incorporate
despite failure to comply with a particular provision established in T.C.A. § 6-1-201. Specifically,
Chapter 129 validates the corporate existence of certain territories, including Hickory Withe, even
though these territories violated the three mile requirement set forth in T.C.A. § 6-1-201(b). Further,
we note that Chapter 129 validates the corporate existence of territories that encroach upon the three
mile limit in violation of T.C.A. § 6-1-201(b), but does not validate the incorporation of territories
that fail to comply with the population provision of (a)(1), the plan of services requirement under
(a)(2), and the public hearing provision in (a)(3). By restricting the validation provision to those
territories that failed to comply with the distance requirement set forth in T.C.A. § 6-1-201(b), and
thereby refusing or neglecting to extend the same privilege or right to those territories whose only
incorporation flaw was its failure to comply with the population, plan of services, or public hearing



                                                  -15-
requirements of T.C.A. § 6-1-201(a), the legislature further limited the class of territories who are
entitled to benefit from Chapter 129.

        By Hickory Withe’s own admission, Chapter 129 currently applies to only ten municipalities
in Tennessee. Under the language of this statute, only territories in which registered voters
“approved a mayor-aldermanic charter and elected municipal officials, acting pursuant to the
provisions of this chapter on or before December 31, 1999,” fall within the purview of subsection
(b). (emphasis added). This date restriction effectively prohibits the inclusion of any new territory
into this group. Simply stated, subsection (b) only applies to the ten specific territories
acknowledged by Hickory Withe, as the restriction date precludes application to any territory that
was not approved as a mayor-aldermanic municipality by a majority of registered voters, in an
election held on or before December 31, 1999.

        For these reasons, we hold that Chapter 129 creates a special classification, and is therefore
a special law in violation of Article XI, Section 9.

        Having determined that Chapter 129 is a special law in violation of Article XI, Section 9, we
now consider whether there is a rational basis supporting the special classification created by this
statute. We begin by noting that there is no Tennessee case law directly stating that a special law
violating Section 9 is valid if supported by a rational basis. Moreover, we do not hold that a court
is required to conduct a rational basis analysis when considering the constitutionality of a statute
under Article XI, Section 9. However, we recognize that the Tennessee Supreme Court, in the 1990
case of Hart v. City of Johnson City, applied a rational basis analysis in determining whether
population classifications set out in an amendment to a statute authorizing municipal annexation
contests violated Article XI, Section 9 because the amendment was a special law. 801 S.W.2d 512,
515 (Tenn. 1990) (“[W]e have never upheld class legislation in annexation statutes. Such statutes
are subject to an entirely different constitutional prohibition, the Municipal Boundaries Clause found
in art. XI, § 9.”). We therefore proceed with an analysis of whether there is a rational basis to
support Chapter 129.

        “To withstand scrutiny under the rational basis standard, a classification must ‘have some
basis which bears a natural and reasonable relation to the object sought to be accomplished, and there
must be some good and valid reason why the particular individual or class upon whom the benefit
is conferred, or who are subject to the burden imposed, not given to or imposed upon others, should
be so preferred or discriminated against.’” Huntsville, 15 S.W.3d at 472 (citing State v. Nashville,
C. & S. L. R. Co., 124 Tenn. 1, 135 S.W. 773, 775 (1911); Knoxville’s Cmty. Dev. Corp. v. Knox
County, 665 S.W.2d 704, 705 (Tenn. 1984)). The reasonableness of a classification is determined
upon the facts of the particular case. Huntsville, 15 S.W.3d at 472 (citing Estrin v. Moss, 221 Tenn.
657, 430 S.W.2d 345, 349 (1968)).

        In his brief, the Attorney General asserts that Chapter 129 is clearly supported by a rational
basis, and further notes:



                                                -16-
                  The Ratification Act promotes predictability and protects the interests
                  of members of the public who have relied on the corporate existence
                  of these cities. It protects these cities from operating under the threat
                  that their existence may, any time in the future, be challenged and
                  even extinguished based on a technical failure many years in the past.

Hickory Withe echoes the rationale advanced by the Attorney General that Chapter 129 creates
predictability and stability, and further states:

                  In effect, the legislators exercised their judgment to declare that those
                  groups of citizens who have made a serious and sustained effort to
                  organize and function as a municipality, and who have been operating
                  as such for some period of time, deserve to be recognized as such.
                  Moreover, with the passage of time, such communities typically have
                  taken actions, have made contractual promises, have incurred debts,
                  have begun projects, and in general have created expectations, all of
                  which would be unduly disrupted if they are suddenly subject to
                  challenge. Indeed, in this very case, the challenge came on the eve of
                  the election of officers, after campaigns had been conducted.

        While we are sympathetic to the notion that Chapter 129 creates stability and predictability
for residents of the ten territories covered under this provision, including Hickory Withe, we must
also consider the interests of existing municipal corporations such as Oakland, who are also directly
affected by this statute. Under T.C.A. § 6-1-201, existing municipal corporations are entitled to a
protected three mile zone between their corporate boundaries and the boundaries of municipalities
seeking incorporation. By exempting specific territories from the three-mile incorporation
requirement set forth in T.C.A. § 6-1-201, Chapter 129 threatens the reasonable expectations of
existing municipal corporations.

        With regard to Hickory Withe’s assertion that the expenditure of time and money or the
creation of contracts in furtherance of, or reliance upon, incorporation provides a rational basis for
the statute in question, we note that Oakland filed its complaint challenging the validity of the
October 24, 1998 election less than two months after the election. There is no indication in the
record that Hickory Withe entered into any contracts or incurred any debts during this time. In his
affidavit, Mayor Shelton averred that he “spent a considerable amount of personal money and time
running for offices for the Town of Hickory Withe,” and noted that numerous citizens volunteered
“thousands of hours” in helping to organize the town. Mayor Shelton additionally suggested that the
town provided generous financial support to its volunteer fire department.12 In Huntsville, this court
determined that “[t]he mere fact that residents ... expended money and effort to incorporate cannot
justify exemption from a general law....” Town of Huntsville v. Duncan, 15 S.W.3d 468, 473


         12
           We note that the fire department was incorporated in February 1999, more than one year after Oakland filed
its complaint

                                                        -17-
(Tenn. Ct. App. 1999). On this basis, we find that the mere fact that Mayor Shelton and other
candidates spent time and money in campaigning for public office, even when combined with
evidence that several citizens volunteered thousands of hours toward the organization of Hickory
Withe, does not constitute a rational basis in support of the special classification established by
Chapter 129.

        As a final note, we are unable to “discern a rational difference” between Hickory Withe in
the one instance, and the hundreds of other small Tennessee communities who are prohibited from
seeking incorporation because these communities lack 1,500 or more citizens, encroach too closely
upon the boundaries of existing municipalities, or failed to comply with the plan of services or public
hearing requirements set forth in T.C.A. § 6-1-201. See Huntsville, 15 S.W.3d at 473. “The record
does not reflect any intrinsic difference between the community of [Hickory Withe] and these other
small communities.” Id. We find simply that there is no rational basis to distinguish Hickory Withe
from other similar small communities.
        Because we find no rational basis to support the special classification created by Chapter 129,
we hold that Chapter 129 is unconstitutional as it creates a special classification, unsupported by
rational basis, in contravention of Article XI, Section 9, of the Tennessee Constitution.

                                                 III.

        In conclusion, we affirm the trial court’s order granting partial summary judgment for
plaintiff, City of Oakland, holding that Chapter 129, Public Acts of 2001, violates Article XI, Section
9, of the Tennessee Constitution. We further affirm the trial court’s order granting Oakland’s
Motion for Summary Judgment holding that Oakland’s action to invalidate Hickory Withe’s
referendum election and to revoke its charter is not an election contest governed by the 10-day
limitation period for such actions. Costs of appeal are assessed against defendants Town of Hickory
Withe, David Shelton, and Members of the Fayette County Election Commission and their sureties.




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




                                                 -18-
