Can the Wilson County Commission stop collecting the $2-per-head domestic animal tax authorized by a 1980 private act, even though the voters approved the tax?

Subject

Opinion No. 15-51, Wilson County Domestic Animal Tax, June 9, 2015

Plain-English summary

In 1980, the Tennessee General Assembly passed a private act (Chapter 242) "authorizing" Wilson County to impose a $2-per-head domestic animal tax, to be collected by whoever vaccinated the animal. The act was conditioned on voter approval, and the voters approved it. The county actually levied and collected the tax until the end of 2013, when the county commission voted to stop. Senator Beavers asked the AG whether the commission could lawfully stop, given that the voters had said yes to the act.

The AG (re-affirming a 2013 AG opinion on the same act) said yes. "Authorize" means to give power. The legislature authorized the commission to impose the tax; it did not require the commission to impose it. When the voters approved the 1980 act, they were approving a grant of discretion to the commission, not imposing the tax themselves. So the commission's decision to stop collecting is fully within its authority. It can re-impose the tax later under the same authority too. The act itself remains on the books and can only be repealed by the General Assembly.

Currency note

This opinion was issued in 2015. 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.

Common questions

Why does this matter beyond Wilson County?

The reasoning applies to a lot of Tennessee private acts that authorize counties to impose specific local taxes. The default rule the AG applies: if the act uses "authorize," the local government has discretion to impose or not. If the act uses "shall" or "is required," that is mandatory.

Did the AG need to second-guess voter approval?

The AG emphasized that the voters approved the act, not the tax. The act granted the commission discretionary authority. By voting yes, the public delegated the choice to the commission. So the commission's exercise of that discretion (either way) does not undo the voters' approval.

Can the county repeal the private act itself?

No. Counties cannot repeal private acts. Only the General Assembly can amend or repeal one. The 2013 commission action stopped collection but left the act intact, which is why the commission can pick the tax back up later if it wants to.

What's Dillon's Rule and how does it apply here?

Dillon's Rule is a canon of statutory construction that says a local government has only the powers expressly granted to it by the state, plus those "necessarily implied or necessarily incident to the powers expressly granted." The AG cited Southern Constructors v. Loudon Cnty. Bd. of Educ. for the proposition that the power to impose a discretionary tax necessarily includes the power to rescind or not impose. That implicit power flows from the explicit grant.

What does this mean for the animal-tax collectors (vets)?

The original act made vaccinators (typically veterinarians) the collection point. While the tax was suspended, they had no collection obligation. If the commission re-imposes the tax, the collection mechanism in the act would presumably revive automatically.

Background and statutory framework

1980 Tenn. Priv. Acts, ch. 242, authorized the Wilson County Commission to impose a $2-per-head domestic animal tax (collected by whoever vaccinated the animals), conditioned on majority voter approval. The voters approved the act on May 6, 1980. The county commission imposed and collected the tax until the end of 2013, when it voted to stop.

The AG had previously addressed the same question in Tennessee Attorney General Opinion 13-40 (May 23, 2013), concluding that "the Wilson County Commission may, by resolution, cease to impose the domestic animal tax authorized by Chapter 242." The 2015 opinion re-affirms that conclusion. The AG relied on Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001), which restated Dillon's Rule that a local government has powers "necessarily implied or necessarily incident to the powers expressly granted." The act's authorization to impose carries with it the implied power to decline to impose, or to rescind.

The act itself can only be repealed by the General Assembly. Biggs v. Beeler, 180 Tenn. 198, 206, 173 S.W.2d 144, 147 (1943); Demoval v. Davidson County, 87 Tenn. 214, 224, 10 S.W. 353, 356 (1889). See also Tenn. Att'y Gen. Op. 04-167; Tenn. Att'y Gen. Op. 00-059; Tenn. Att'y Gen. Op. 78-393.

Citations

• 1980 Tenn. Priv. Acts, ch. 242 (Wilson County domestic animal tax)
• Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001)
• Biggs v. Beeler, 180 Tenn. 198, 173 S.W.2d 144 (1943)
• Demoval v. Davidson County, 87 Tenn. 214, 10 S.W. 353 (1889)
• Tenn. Att'y Gen. Op. 13-40 (May 23, 2013)
• Tenn. Att'y Gen. Op. 04-167 (Nov. 19, 2004)
• Tenn. Att'y Gen. Op. 00-059 (Oct. 23, 1978)
• Tenn. Att'y Gen. Op. 78-393

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-51.pdf

Original opinion text

June 9, 2015
Opinion No. 15-51
Wilson County Domestic Animal Tax

Question

Can the Wilson County Commission, consistent with the provisions of Chapter 242 of the 1980 Tennessee Private Acts approved by a majority of the number of qualified voters of Wilson County, cease imposition and collection of the tax that Chapter 242 authorizes the Wilson County Commission to impose?

Opinion

Yes.

ANALYSIS

Chapter 242 of the 1980 Tennessee Private Acts (the Act) provides "that the Wilson County Commission be and is hereby authorized to impose a $2.00 per head domestic animal tax" to be collected by whoever vaccinates domestic animals. 1980 Tenn. Priv. Acts, ch. 242, §§ 1-6. The Act is not effective unless and until it is approved by a majority of the qualified voters of Wilson County. Id., § 6. The Act was duly approved by the voters on May 6, 1980, and the Secretary of State has certified that Chapter 242 "was properly ratified and approved."

According to the opinion request, the tax authorized by the Act was in fact imposed and collected until the end of 2013 when the Wilson County Commission voted to stop the collection of the tax. The Wilson County Commission apparently took this action in reliance on Tennessee Attorney General Opinion 13-40, which states in relevant part:

The Wilson County Commission may, by resolution, cease to impose the domestic animal tax authorized by Chapter 242. Section 1 of Chapter 242 provides that "the Wilson County Commission be and is hereby authorized to impose a $2 per head domestic animal tax." Chapter 242, § 1. Thus, Chapter 242 authorizes but does not require Wilson County to impose the tax. For this reason, the County Commission may, by resolution, cease to impose and collect this tax.

Tenn. Att'y Gen. Op. 13-40, at 7 (May 23, 2013).

As Opinion No. 13-40 points out, the Act "authorizes" the Wilson County Commission to impose the tax, but does not require that the tax be imposed. "Authorize" means to "give legal authority," "empower," or "sanction." Merriam Webster Collegiate Dictionary (10th ed.). It does not, however, include a requirement that the authority or the power be exercised. That would be accomplished, for example, if the Act had said "that the Wilson County Commission be and is hereby required to impose a $2.00 per head domestic animal tax."

When the voters of Wilson County voted their approval, they were approving the Act; they were voting only "on the question of whether or not the act should be approved." 1980 Tenn. Priv. Acts, ch. 242, § 6. They approved the Act, and the Act that the voters approved gives the County Commission the authority—the power, the legal ability—to impose the specified tax if the Commission so decides. In other words, approval of the Act was a vote to authorize the tax, not a vote to impose the tax. By approving the Act, the voters were not imposing the tax, rather, they were giving the Wilson County Commission the power—the discretion—to impose (or not impose) the tax. Apparently, the Commission exercised that discretion in favor of imposing the tax until the end of 2013 when it exercised its discretion against imposing the tax.

The authorization to decide to impose the tax necessarily includes the power to decide to rescind or to not impose the tax at some later date. See Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001), quoting Merriam v. Moody's Ex'r, 25 Iowa 163, 170 (1868) (noting that Dillon's Rule, a canon of statutory construction, provides that a local government has any power "necessarily implied or necessarily incident to the powers expressly granted").

The Wilson County Commission's 2013 decision to no longer impose this tax does not affect the continued viability of the Act. The Act remains the law of Tennessee until it is repealed or amended by the Tennessee General Assembly. See Biggs v. Beeler, 180 Tenn. 198, 206, 173 S.W.2d 144, 147 (1943); Demoval v. Davidson County, 87 Tenn. 214, 224, 10 S.W. 353, 356 (1889). See also Tenn. Att'y Gen. Op. 04-167 at 1 (Nov. 19, 2004) ("[a] county is not authorized to repeal a private act"); Tenn. Att'y Gen. Op. 00-059 at 82-270 at 1 (Oct. 23, 1978) ("[s]ince the City of Benton was created pursuant to private act . . . it is clear that the only method by which the [Benton] charter may be abolished is through [the General Assembly] repealing" the private act); Tenn. Att'y Gen. Op. 78-393 at 1 (opining that only the General Assembly could repeal a wheel tax and an education tax imposed by private acts). Accordingly, the Wilson County Commission continues to have the authority, as granted by the Act, to re-impose this tax at a later date.

In sum, the finding in Opinion No. 13-40 that the Wilson County Commission may rescind the tax authorized by Chapter 242 remains the opinion of this Office.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

WILLIAM E. YOUNG
Associate Attorney General

Requested by:
The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243