Who runs Lewis County, Tennessee's Highway Advisory Commission, and what does the chair earn?

Subject

Opinion No. 12-74, Lewis County Highway Advisory Commission, July 19, 2012

Plain-English summary

State Representative Joey Hensley asked seven mechanical questions about how the Lewis County Highway Advisory Commission is staffed, chaired, replaced, and paid. The commission was created by a 1937 private act of the General Assembly (1937 Tenn. Priv. Acts, ch. 395) that applies only to a county within a narrow population bracket (5,250–5,265 by the 1930 federal census), which captured Lewis County. The private act has been amended repeatedly, including by 1996 Tenn. Priv. Acts, ch. 153, whose local ratification status drove most of the pay question.

The AG answered each question in turn:

1. Who chairs the commission and how? The chair is one of the three members and is elected every two years by majority vote of the three members.
2. Who are the members? The county mayor (ex officio, by virtue of holding the office formerly called "county judge"); one member of the county legislative body (formerly the "quarterly county court"); and one private citizen and freeholder who holds no public office and has no official county connection. The legislative body elects the two non-mayor members.
3. Does the mayor automatically chair the commission if elected chair of the county legislative body? No. The two roles are independent; the commission's chair is chosen by the commission itself.
4. Can the mayor send a designee? Yes. Under Tenn. Code Ann. § 5-6-106(b)(2), the mayor may designate a staff member or a member of the county legislative body, including the chair pro tempore, to serve in the mayor's place. If the commission has elected the mayor as its chair, the designee also chairs any meeting the mayor misses.
5. When are new members appointed? The county mayor becomes a member when elected and qualified. The other two are elected by the county legislative body at its October meeting every two years, taking office the following November 1.
6. How do you challenge a member's right to hold office? Through a quo warranto action under Tenn. Code Ann. §§ 29-35-101 to -121, typically brought by the district attorney general.
7. What's the pay? Two-track answer: If Lewis County ratified 1996 Tenn. Priv. Acts, ch. 153 by December 1, 1996, members get $40 per day and the chair $300 per month. If the county did not ratify by that date, the 1996 act never took effect and the 1974 act (Tenn. Priv. Acts, ch. 334) still controls: up to $20 per day for members and up to $100 per month for the chair, with exact amounts set by county resolution. The county commission minutes provided to the AG indicated the ratifying vote did not happen until December 16, 1996, which would be too late under Tenn. Code Ann. § 8-3-202.

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.

Background and statutory framework

The Lewis County Highway Advisory Commission has an unusual lineage. The 1937 private act created it for a single county defined by a narrow population bracket. Over the next 75 years it was repeatedly amended:

• 1943 Tenn. Priv. Acts, ch. 198
• 1949 Tenn. Priv. Acts, ch. 409
• 1951 Tenn. Priv. Acts, ch. 407
• 1961 Tenn. Priv. Acts, ch. 69
• 1963 Tenn. Priv. Acts, ch. 255
• 1965 Tenn. Priv. Acts, ch. 281
• 1970 Tenn. Priv. Acts, ch. 323
• 1973 Tenn. Priv. Acts, ch. 77
• 1974 Tenn. Priv. Acts, ch. 334
• 1984 Tenn. Priv. Acts, ch. 177
• 1990 Tenn. Priv. Acts, ch. 134
• 1991 Tenn. Priv. Acts, ch. 31
• 1996 Tenn. Priv. Acts, ch. 153

The titles named in the private act ("county judge," "quarterly county court") have since been replaced statewide by the modern equivalents:

• "County judge" → "county mayor" (Tenn. Code Ann. § 5-6-106(a))
• "Quarterly county court" → "county legislative body" / "county commission" (Tenn. Code Ann. § 5-5-101(b))

So Chapter 395 must be read alongside the modern general statutes. The county mayor is the ex officio commission member from the executive side. The county legislative body elects the other two.

Chair selection (Question 1)

Section 2 of Chapter 395 says the commission meets on the second Monday of each month, "and at such other times as it may be called by the chairman, who shall be elected biennially by a majority vote of said Commission." "Commission" in that sentence refers to the Highway Advisory Commission itself, not the county legislative body. So the three commission members pick their own chair every two years.

Composition (Question 2)

The three seats are: the mayor (ex officio), one legislative-body member, and one private citizen who holds no public office and has no official county connection. The "private citizen" qualifier is meaningful, it cannot be filled by another county employee or official.

Mayor as legislative-body chair (Question 3)

Tenn. Code Ann. § 5-5-103(b) allows a county legislative body to elect the county mayor as its chair. That is separate from the commission chair. Chapter 395 says the commission picks its chair; nothing converts a legislative-body chairmanship into a commission chairmanship automatically.

Designee authority (Question 4)

Tenn. Code Ann. § 5-6-106(b)(2):

In those circumstances not addressed by the provisions of subdivision (b)(1), the county mayor may designate, from time to time, a professional staff member with appropriate training or a member of the county legislative body to sit in the county mayor's place on any board, authority or commission that the county mayor serves upon by virtue of holding the office of county mayor. Any such designee shall have the powers, including the power to vote, as are otherwise conferred upon the county mayor when serving upon such board, authority or commission.

The provision applies because Chapter 395 itself does not address designees. The chair pro tempore of the county legislative body is a member of that body and so qualifies. The designee even chairs commission meetings if the mayor is the commission chair and is absent.

Member appointment timing (Question 5)

The mayor seat fills automatically when the county mayor is elected and qualifies. The other two seats are elected by the county legislative body at its October meeting every two years, starting October 1938. Members take office November 1.

Challenging a member's seat (Question 6)

Tennessee uses quo warranto (Tenn. Code Ann. §§ 29-35-101 to -121) to challenge an officeholder's right to office. The action is typically brought by the district attorney general (§ 29-35-109; Snow v. Pearman).

Compensation (Question 7)

This is the most technical part of the opinion. Under Tenn. Code Ann. § 8-3-202, in effect when 1996 Tenn. Priv. Acts, ch. 153 passed, a private act requiring local ratification but without a specified deadline had to be approved by December 1 of the year it was passed; otherwise it never took effect. Chapter 153 did require ratification by Lewis County (§ 2) and did not specify a deadline.

The Secretary of State's compilation of 1996 private acts did not show a ratification on file. The AG's office obtained Lewis County Commission minutes showing approval on December 16, 1996, which is past the December 1 statutory cutoff. If that is the actual record, Chapter 153 never took effect and the controlling act is 1974 Tenn. Priv. Acts, ch. 334 (members up to $20/day; chair up to $100/month). If the county did somehow approve Chapter 153 timely, members get $40/day and the chair $300/month, and the county chair should certify the resolution to the Secretary of State.

Common questions

Why does a county-specific 1937 statute still set the rules for a 2012 commission?
Tennessee allows private acts (laws passed by the General Assembly that apply only to a specific county) to coexist with general statutes. The legislature can amend or repeal them, but absent that they keep operating. The Lewis County Highway Advisory Commission has been governed by the same private-act framework, with thirteen amendments, since 1937.

What's the difference between the county mayor sending a "designee" and the commission electing a new chair?
Designation is temporary, the mayor is still the underlying member. Election picks the actual chair from among the three sitting members. A designee can sit in for the mayor at meetings and even chair them if the mayor is the elected chair, but the designee does not become the chair in their own right.

Who has standing to bring a quo warranto action about a Lewis County commission seat?
Tenn. Code Ann. § 29-35-109 says it's ordinarily brought by the district attorney general. Snow v. Pearman is the case the AG cites for that practice. Private citizens generally don't have standing unless the AG or DA declines.

Citations

Statutes and private acts:

• 1937 Tenn. Priv. Acts, ch. 395 (creating the commission, as amended)
• 1974 Tenn. Priv. Acts, ch. 334 (most recent ratified compensation amendment if 1996 not ratified)
• 1996 Tenn. Priv. Acts, ch. 153 (compensation amendment; ratification timing disputed)
• Tenn. Code Ann. §§ 5-5-101(b), 5-5-103(b), 5-6-106(a), 5-6-106(b)(1), 5-6-106(b)(2) (modern county-government framework)
• Tenn. Code Ann. §§ 29-35-101 to -121 (quo warranto procedure)
• Tenn. Code Ann. §§ 8-3-202, 8-3-205 (local ratification deadlines for private acts)

Cases:

• Snow v. Pearman, 222 Tenn. 458, 436 S.W.2d 861 (1968)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-074.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

July 19, 2012

Opinion No. 12-74

Lewis County Highway Advisory Commission

QUESTIONS

1. Who may serve as chair for the Lewis County Highway Advisory Commission (the "Advisory Commission"), created by Chapter 395 of the 1937 Tennessee Private Acts, as subsequently amended, and how is the chair selected?

2. Who are the members of the Advisory Commission?

3. If the county mayor is elected chair of the county legislative body under Tenn. Code Ann. § 5-5-103(b), does the county mayor automatically serve as chair of the Advisory Commission?

4. May the mayor appoint the county legislative body chair pro tempore to serve as an Advisory Commission member in his or her place?

5. When are new members of the Advisory Commission appointed?

6. What is the proper procedure to challenge an individual's right to hold a seat on a county committee?

7. What is the statutory pay of Advisory Commission members?

OPINIONS

1. The chair of the Advisory Commission is one of the three members of the Advisory Commission, and is elected every two years by a majority vote of the three Advisory Commission members.

2. The Advisory Commission has three members: the county judge (now the county mayor), a member of the quarterly county court (now the county legislative body), and a private citizen and free-holder holding no public office or position and having no official connection with the county. The mayor serves by virtue of his or her office, while the county legislative body elects the two remaining Advisory Commission members.

3. No.

4. Under Tenn. Code Ann. § 5-6-106(b)(2), the county mayor may appoint a staff member or member of the county legislative body to act in his or her stead as an Advisory Commission member. Since, under Tenn. Code Ann. § 5-5-103(b)(1), the county chair pro tempore is also a member of the county legislative body, the county mayor may designate the chair pro tempore to carry out this function. If the Advisory Commission has elected the county mayor as its chair, then any designee named by the mayor to serve on the Advisory Commission in his or her stead would also serve as chair for any Commission meetings attended in place of the mayor.

5. The county mayor becomes an Advisory Commission member when he or she is elected and qualifies for the office of county mayor. The two remaining members are elected by the county legislative body every two years at its October meeting, beginning in October, 1938. The two members elected by the county legislative body take office on November 1 after the October meeting where they are elected.

6. The proper method by which to challenge the right of a public official to hold office is by quo warranto action under Tenn. Code Ann. §§ 29-35-101 to -121.

7. If the Lewis County Commission ratified 1996 Tenn. Priv. Acts, ch. 153 by December 1, 1996, then the members of the Advisory Commission receive $40.00 a day for their services rendered, and the chair receives $300.00 per month. The chair of the Lewis County Commission should provide the Tennessee Secretary of State certified copies of the resolution or minutes reflecting such approval. If the County Commission did not ratify 1996 Tenn. Priv. Acts, ch. 153 by December 1, 1996, then that act never took effect, and the private act then in effect continues to govern. The private act in effect prior to Chapter 155 was 1974 Tenn. Priv. Acts, ch. 334, which provides that members of the Advisory Commission are entitled to not more than $20.00 per day for their services actually rendered and that the chairman of said commission shall receive not more than $100.00 per month. The exact amount of the compensation is to be determined by resolution of the Lewis County Commission.

ANALYSIS

This opinion addresses several questions regarding the Lewis County Highway Advisory Commission (the "Advisory Commission"). The Advisory Commission was created under 1937 Tenn. Priv. Acts, ch. 395, as subsequently amended (hereinafter "Chapter 395"). Chapter 395 applies in any county having a population of not less than 5250 and not more than 5265 according to the federal census of 1930 or any subsequent federal census. 1937 Tenn. Priv. Acts, ch. 395, § 1. Lewis County falls within this population bracket. Section 2 of Chapter 395 provides in relevant part:

That there is hereby created a County Highway Advisory Commission, composed of three members, one of whom shall be the County Judge; one of whom shall be a member of the Quarterly County Court to serve only while he shall be a member of the Quarterly County Court; and the other shall be a private citizen and free-holder holding no public office or position and having no official connection with the county. The Quarterly County Courts of counties coming within the provisions of this Act shall elect the two members of this Commission to serve with the County Judge at the regular session of the Quarterly County Court in April 1937, and said Commission shall serve until November 1, 1938, and shall perform such duties as may be hereinafter set out in this Act. At the regular meeting of the Quarterly County Court in October, 1938, and biennially thereafter, the two members of the Commission mentioned above shall be elected by said Quarterly County Court, and said members along with the County Judge as ex-officio member of said Commission shall take office on November 1, 1938, and biennially thereafter and hold office for a period of two years or until their successors are elected and qualified. It is expressly provided and it is the legislative intent that said County Highway Advisory Commission assume the duties of office from and after the election of the members of said Commission at the regular meeting of the Quarterly County Court in April, 1937, and that said Commission shall work in conjunction with the present Commissioner of Roads, and with the Commissioner who is to be elected by the Quarterly County Court at its regular meeting in January, 1938, to serve until September 1, 1938, and/or any Highway Commissioner duly elected thereafter.

The county judge referenced in Chapter 395 was the title of the chief executive officer of Lewis County when Chapter 395 was enacted. The chief executive officer now has the title of county mayor, who has all the powers and duties formerly exercised by the county judge under general, special, local, or private acts. Tenn. Code Ann. § 5-6-106(a). Similarly, the quarterly county court referenced in Chapter 395 has been abolished and all its legislative powers are now vested in the county legislative body, or county commission. Tenn. Code Ann. § 5-5-101(b). Chapter 395, therefore, must be read together with the current statutes of general applicability governing these county offices. Tenn. Code Ann. § 5-6-106(b)(1) provides in part that "[t]he county mayor or the county mayor's designated representative shall serve as a nonvoting ex officio member of each committee of the county legislative body and of each board, commission or authority of the county government, except as provided by law or by action of the county legislative body." (Emphasis added). Since Chapter 395 designates the county mayor a voting member of the Advisory Commission, Tenn. Code Ann. § 5-6-106(b)(1) does not apply.

1. The initial question is who serves as Advisory Commission chair and by what authority the chair is designated. As cited above, Section 2 of Chapter 395 provides that the county mayor serves as a voting member of the Advisory Commission. Section 2 of Chapter 395 provides in relevant part that "[s]aid County Highway Advisory Commission shall meet in the office of the commissioner of highways upon the second Monday in each month and at such other times as it may be called by the chairman, who shall be elected biennially by a majority vote of said Commission." (Emphasis added). The term "Commission" in Chapter 395 refers to the Advisory Commission and not the county legislative body. The chair of the Advisory Commission, therefore, is elected every two years by a majority vote of the Advisory Commission members.

2. The composition of the Advisory Commission is established by Section 2 of Chapter 395, which provides that the Advisory Commission has three members: the county judge (now the county mayor), a member of the quarterly county court (the county legislative body which is now the county commission), and a private citizen who is a free-holder holding no public office or position and having no official connection with the county. The mayor serves by virtue of his or her office, while the county legislative body elects the two remaining Advisory Commission members.

3. Under Tenn. Code Ann. § 5-5-103(b), a county legislative body may elect the county mayor to be its chair. However, under Chapter 395, a county mayor elected as chair of the county legislative body does not automatically become the chair of the Advisory Commission. As discussed above, Chapter 395 provides that the members of the Advisory Commission elect the chair.

4. The county mayor may designate the county legislative body's chair pro tempore to serve in his or her stead as an Advisory Commission member. Tenn. Code Ann. § 5-6-106(b)(2) sets forth the general authority of the county mayor as follows:

(2) In those circumstances not addressed by the provisions of subdivision (b)(1), the county mayor may designate, from time to time, a professional staff member with appropriate training or a member of the county legislative body to sit in the county mayor's place on any board, authority or commission that the county mayor serves upon by virtue of holding the office of county mayor. Any such designee shall have the powers, including the power to vote, as are otherwise conferred upon the county mayor when serving upon such board, authority or commission. At any such meeting attended by the county mayor, only the county mayor shall exercise voting power.

(Emphasis added). Chapter 395 does not address the mayor's authority to designate anyone to act in his or her stead as an Advisory Commission member. Thus, under Tenn. Code Ann. § 5-6-106(b)(2), the county mayor may appoint a staff member or member of the county legislative body to act in his or her stead as an Advisory Commission member. Since, under Tenn. Code Ann. § 5-5-103(b)(1), the county chair pro tempore is also a member of the county legislative body, the county mayor may designate the chair pro tempore to carry out this function. Should the Advisory Commission elect the county mayor as its chair and the mayor appoint someone to act in his or her stead pursuant to Tenn. Code Ann. § 5-6-106(b)(2), then the mayor's designee would act as chair of the Advisory Commission when attending meetings of the Advisory Commission in place of the county mayor. See Tenn. Code Ann. § 5-6-106(b)(2) (stating that "[a]ny such designee shall have the powers, including the power to vote, as are otherwise conferred upon the county mayor when serving upon such board, authority or commission").

5. Section 2 of Chapter 395, as previously quoted, addresses the election of members of the Advisory Commission. Under Section 2, the county mayor becomes an Advisory Commission member when he or she is elected and qualifies for the office of county mayor. The two remaining members are elected by the county legislative body every two years at its October meeting, beginning in October, 1938. The two members elected by the county legislative body take office on November 1 after the October meeting where they are elected.

6. Tennessee's quo warranto statutes, codified at Tenn. Code Ann. §§ 29-35-101 to -121, set forth the procedure to seek to challenge an individual's right to hold a seat on a county committee. Under Tennessee law, a public officer's title to office may be tried under the quo warranto statutes. Id. A quo warranto action regarding local public officials is ordinarily brought by the district attorney general. See Tenn. Code Ann. § 29-35-109. See also Snow v. Pearman, 222 Tenn. 458, 463, 436 S.W.2d 861, 864 (1968).

7. The final question regards the statutory pay of members of the Advisory Commission. Under 1996 Tenn. Priv. Acts, ch. 153, members of the Advisory Commission receive $40.00 per day for their services rendered, and the chair of the Advisory Commission receives $300.00 per month. This act, however, was subject to approval by a two-thirds vote of the legislative body of Lewis County. 1996 Tenn. Priv. Acts, ch. 153, § 2. The Secretary of State's compilation of 1996 private acts does not indicate that the act was locally approved. This Office has, however, received copies of the Lewis County Commission minutes showing that the Commission approved the act on December 16, 1996.

Under Tenn. Code Ann. § 8-3-202, in effect when Chapter 153 was enacted, where an act requiring local approval and notification of the Secretary of State under Tenn. Code Ann. § 8-3-205 contains no deadline for such action, "a failure to approve by December 1 of the year the act was passed shall render it null and void and of no effect whatsoever." Chapter 153 of the 1996 Private Acts contains no deadline for its local approval and, therefore, needed to be locally approved by December 1, 1996. If the Lewis County Commission ratified Chapter 153 by December 1, 1996, then the members of the Advisory Commission receive $40.00 a day for their services rendered, and the chair receives $300.00 per month. The chair of the Lewis County Commission should provide the Secretary of State with certified copies of the resolution or minutes reflecting that the Commission did approve Chapter 153 by the required December 1, 1996 date.

If the County Commission did not ratify 1996 Tenn. Priv. Acts, ch. 153 by December 1, 1996, then that act never took effect, and the prior private act that was in effect at that time continues to govern. Under 1974 Tenn. Priv. Acts, ch. 334, § 1, (the prior act in effect), members of the Advisory Commission are entitled to "not more than $20.00 per day for their services actually rendered and the chairman of said commission shall receive not more than $100.00 per month with the exact amount of the compensation of the members and chairman to be determined by resolution of the quarterly county court." The Secretary of State has certified that Chapter 153 of the 1974 Tennessee Private Acts was locally approved.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Joey Hensley, MD
State Representative
106 War Memorial Building
Nashville, Tennessee 37243