Can the Tennessee Historical Commission pay for journals published by private historical societies?

Subject

Opinion No. 12-53, Authority of the Tennessee Historical Commission, May 21, 2012

Plain-English summary

Senator Jim Summerville asked the Tennessee AG whether the Tennessee Historical Commission has the statutory authority to contract with private organizations to publish their history magazines and journals when those publications circulate exclusively to the organizations' members. The Commission was, at the time, hiring or retaining an editor and paying the printing and mailing costs for three journals: the Journal of East Tennessee History (East Tennessee Historical Society), a similar publication of the West Tennessee Historical Society, and the Tennessee Historical Quarterly (Tennessee Historical Society). The journals were distributed to dues-paying members.

The AG concluded that the Commission's authority under Tenn. Code Ann. § 4-11-103(b)(2) to "[a]dminister funds made available from public sources for historical purposes" is broad enough to cover this kind of arrangement. The journals serve a "historical purpose" because they discuss and preserve Tennessee history. The AG did not need to decide whether § 4-11-103(b)(2) is limited to Tennessee history, because all three journals satisfy that narrower reading anyway.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The Tennessee Historical Commission

The Commission is created by Tenn. Code Ann. §§ 4-11-101 to -111. The statute gives it duties tied to the evaluation, acquisition, preservation, and operation of Tennessee historic property (§§ 4-11-104, -107, -108, and -111) and authority to "create such positions and employ such personnel as are deemed necessary to conduct its affairs" (§ 4-11-105). Under § 4-11-103(b)(2), the Commission also is "[t]o administer funds made available from public sources for historical purposes."

The agency-authority frame

Tennessee law is well settled that "the departments, agencies, and commissions of government have no inherent or common-law power of their own" (State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, quoting General Portland). They have only the powers expressly granted to them by statute and those "required by necessary implication to enable them to fulfill their statutory mandate" (Sanifill of Tennessee). So the question for the AG was whether § 4-11-103(b)(2) supplies the authority.

What "historical purposes" means

The Tennessee Code does not define "historical purpose" in this section. Tennessee courts, in such cases, draw on dictionary definitions to find the natural meaning (State v. Majors; English Mountain Spring Water v. Chumley). The American Heritage Dictionary defines "historical" as "of or relating to history; concerned with past events" and "used in or providing evidence of the past."

The AG read § 4-11-103(b)(2) as a broad grant. The only restriction the statute placed on the Commission's administration of public funds was that the funds be used for a "historical purpose." Publication of journals devoted to Tennessee history satisfies that limit. Each of the three named journals identifies its mission as discussing and preserving Tennessee history: the East Tennessee Historical Society's Journal of East Tennessee History (promoting interest in the history of Tennessee and the Appalachian South), the West Tennessee Historical Society's papers (concerning historical events in West Tennessee and the Mid-South), and the Tennessee Historical Society's Tennessee Historical Quarterly (chronicling the state's history).

Statutory-construction discipline

The AG applied standard rules: give effect to legislative purpose without exceeding statutory scope (Hayes v. Gibson County), and when the language is unambiguous, give it its natural and ordinary meaning (State v. Flemming). Section 4-11-103(b)(2) was unambiguous on its face: administer funds for a historical purpose. Journal funding fit.

The narrower question left undecided

The AG did not decide whether § 4-11-103(b)(2) restricts the Commission's authority to Tennessee historical purposes specifically, or whether it could fund historical purposes more broadly. Because the three journals concerned Tennessee history, the narrower reading would still authorize the funding. The opinion stopped at what it needed to.

Common questions

Does this opinion let the Historical Commission fund any historical society's magazine?

The AG opinion authorized the Commission to fund the three journals identified, all of which dealt with Tennessee history. The opinion did not reach the question of whether the Commission could fund history journals unrelated to Tennessee. A society wanting Commission funding for a non-Tennessee-history publication would have to take the further argument.

Does the journal have to be public or freely distributed?

No. The journals in the opinion circulated to dues-paying members of the relevant historical societies. The AG did not see member-only distribution as defeating the "historical purpose" of the funding.

Can the Historical Commission hire editors and pay printing and mailing costs directly?

The Commission was already doing both at the time of the opinion, and the AG saw that arrangement as within § 4-11-103(b)(2). The Commission's separate authority to "create such positions and employ such personnel" under § 4-11-105 supports the staffing piece.

What if the legislature changed § 4-11-103(b)(2)?

The opinion analyzed the 2012 version of the statute. Tennessee statutes are amended over time. Anyone relying on this opinion to support a current funding decision should verify the current statutory text and any later AG opinions or court decisions.

Is this Commission funding subject to any constitutional limit on giving public money to private organizations?

The AG opinion did not address Tennessee constitutional limits on private benefit from public funds. It treated the question as a statutory-authority question only. A separate constitutional analysis (for example, under Tenn. Const. art. II, § 31, or other applicable provisions) would have to be done independently.

Could the Commission stop funding a journal that drifted away from Tennessee history?

The opinion ties the authority to the journals' historical purpose. A publication that ceased to serve that purpose could lose its qualifying basis under § 4-11-103(b)(2).

Citations

• Tenn. Code Ann. §§ 4-11-101 to -111 (Tennessee Historical Commission)
• Tenn. Code Ann. § 4-11-103(b)(2) (administer funds for historical purposes)
• Tenn. Code Ann. § 4-11-104 (Commission powers)
• Tenn. Code Ann. § 4-11-105 (create positions, employ personnel)
• Tenn. Code Ann. § 4-11-107 (historic property)
• Tenn. Code Ann. § 4-11-108 (preservation)
• Tenn. Code Ann. § 4-11-111 (additional duties)
• State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001)
• General Portland Inc. v. Chattanooga Hamilton County Air Pollution Control Bd., 560 S.W.2d 910 (Tenn. Ct. App. 1976)
• Sanifill of Tennessee, Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807 (Tenn. 1995)
• Hayes v. Gibson County, 288 S.W.3d 334 (Tenn. 2009)
• State v. Flemming, 19 S.W.3d 195 (Tenn. 2000)
• State v. Majors, 318 S.W.3d 850 (Tenn. 2010)
• English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144 (Tenn. Ct. App. 2005)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-053.pdf

Original opinion text

May 21, 2012
Opinion No. 12-53
Authority of the Tennessee Historical Commission

QUESTION

Does Tenn. Code Ann. §§ 4-11-101 to -111 permit the Tennessee Historical Commission to contract with private organizations to pay for the publication of those organizations' magazines or journals related to Tennessee history, which circulate exclusively to the members of those organizations?

OPINION

Tenn. Code Ann. § 4-11-103(b)(2) is sufficiently broad to authorize the Tennessee Historical Commission to pay for the publication of magazines or journals of private organizations related to Tennessee history, which circulate exclusively to the members of those organizations, given such publications concern "historical purposes."

ANALYSIS

Tenn. Code Ann. §§ 4-11-101 to -111 create the Tennessee Historical Commission ("the Commission"). The Commission is granted various responsibilities regarding the evaluation, acquisition, preservation and operation of Tennessee historic property. Tenn. Code Ann. §§ 4-11-104, -107, -108 & -111. The Commission is also authorized to "[a]dminister funds made available from public sources for historical purposes." Tenn. Code Ann. § 4-11-103(b)(2).

The question posed is whether Tenn. Code Ann. § 4-11-103(b)(2), or any other statutory provision governing the Commission, permits the Commission to contract with private organizations to pay for the publication of these organizations' magazines or journals related to Tennessee history, which circulate exclusively to their members. The request states the Commission currently hires, or retains, an editor, and pays the printing and mailing costs for three historical journals published by the East Tennessee Historical Society, the Tennessee Historical Society, and the West Tennessee Historical Society. Per the request, each of those groups is a private organization, and the receipt of the groups' journals is the largest incentive for their members to pay dues.

Initially the Commission must have the requisite statutory authority to contract to pay for these publications. Tennessee law is well established that "the departments, agencies, and commissions of government have no inherent or common-law power of their own." State ex rel. Comm'r of Transp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 768-69 (Tenn. Ct. App. 2001) (citing General Portland Inc. v. Chattanooga Hamilton County Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976)). Governmental agencies have only the powers expressly granted to them by statute and those powers "required by necessary implication to enable them to fulfill their statutory mandate." Id. at 769 (citing Sanifill of Tennessee, Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn. 1995)).

The Commission's enabling statutes include the power to "create such positions and employ such personnel as are deemed necessary to conduct its affairs" and to "[a]dminister funds made available from public sources for historical purposes." See Tenn. Code Ann. §§ 4-11-105 & -103(b)(2). In construing these statutes, the primary goal is to give effect to the purpose of the legislature without exceeding these statutes' intended scope. Hayes v. Gibson County, 288 S.W.3d 334, 337 (Tenn. 2009). When a statute is unambiguous, its meaning should be construed from the natural and ordinary meaning of the words chosen. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).

By its plain language, Tenn. Code Ann. § 4-11-103(b)(2) broadly empowers the Commission to administer its funds with the sole restriction that the funds are used for a "historical purpose." Tennessee statutes and case law have not defined what constitutes a "historical purpose" in the context of Tenn. Code Ann. § 4-11-103(b)(2). In such cases, it is appropriate to refer to dictionary definitions to ascertain the natural meaning of the term "historical purpose." See State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010); English Mountain Spring Water Co. v. Chumley, 196 S.W.3d 144, 148 (Tenn. Ct. App. 2005). The term "historical" is commonly defined as "[o]f or relating to history; concerned with past events" and "[u]sed in or providing evidence of the past." The American Heritage Dictionary, 5th ed.

The Commission's funding of journals of the West Tennessee Historical Society, East Tennessee Historical Society, and Tennessee Historical Society would serve a "historical purpose." Each of these journals identifies its mission as discussing and preserving Tennessee's state history. Accordingly, the Commission is statutorily authorized to administer funds available from public sources for the publication and distribution of these journals.

This opinion need not address whether Tenn. Code Ann. § 4-11-103(b)(2) requires that the "historical purpose" relate solely to Tennessee history, given the three journals in question all concern Tennessee history.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MARTHA A. CAMPBELL
Deputy Attorney General

Requested by:
Honorable Jim Summerville
State Senator
301 Sixth Avenue North
Nashville, TN 37243