The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
HOME BUILDERS ASSOCIATION )
FILED
OF MIDDLE TENNESSEE, )
) December 15, 1998
Plaintiff/Appellee, ) Maury Chancery No. 96-487
) Cecil W. Crowson
v. ) Appellate Court Clerk
) Appeal No. 01A01-9706-CH-00259
MAURY COUNTY, TENNESSEE, )
)
Defendant/Appellee, )
)
CHARLES W. BURSON, State of )
Tennessee Attorney General, )
)
Defendant/Appellant. )
APPEAL FROM THE CHANCERY COURT OF MAURY COUNTY
AT COLUMBIA, TENNESSEE
THE HONORABLE JIM T. HAMILTON, JUDGE
For the Plaintiff/Appellee, For the Defendant/Appellant:
Home Builders Association of
Middle Tennessee:
L. Bruce Peden John Knox Walkup
Columbia, Tennessee Charles L. Lewis
Forrest B. Bigham
Nashville, Tennessee
REVERSED AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCURS:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
OPINION
This case is a challenge to the constitutionality of a county tax. After authorizing the tax, the
county adopted a resolution that the tax would not be imposed, and no such taxes have been
collected. The trial court denied the State’s motion to dismiss. We reverse, finding that there is no
justiciable controversy.
On May 30, 1991, the Maury County Adequate Facilities Tax was passed by the General
Assembly, and enrolled as Chapter No. 118 of the 1991 Private Acts. This Act authorizes the Maury
County Board of Commissioners (“the Commission”) to impose a tax on new development in Maury
County.
Pursuant to the Act the Maury County Commission ratified and set the tax. However, it later
adopted a resolution declaring that the tax would not be imposed “at this time.” In July 1991, the
Commission formally set the tax rate at $0.00 for both residential and non-residential development,
and also resolved to refund any taxes previously collected. The tax has not been reinstated since
1991, and the evidence in the record establishes that no tax was collected under the Act during the
short period in which the Commission had set a rate.
Plaintiff/Appellee Homebuilders Association of Middle Tennessee (“Homebuilders”) filed
this action against Maury County under the Declaratory Judgment Act, Tennessee Code Annotated
§§ 29-14-101 to 113, seeking a declaratory judgment that the tax is unconstitutional, and seeking an
injunction prohibiting Maury County from implementing or collecting taxes under the Act. The suit
also names the State Attorney General as a defendant, because the suit challenges the
constitutionality of an act of the General Assembly.
The Defendants filed a motion to dismiss. In the motion, Defendants note that the
Declaratory Judgment Act applies to an actual case or controversy. They maintain that the
challenged tax has never been imposed, and that there is no real threat that it will be imposed.
Therefore, they argue that the case does not involve a justiciable controversy and should be
dismissed. Defendants also argued that the suit should be dismissed because the exclusive statutory
remedy for challenging a county tax is by paying under protest and bringing suit within six months
for a refund, and that Homebuilders failed to do this. See Tenn. Code Ann. §§ 67-1-901; 67-1-912.1
1
We note that Tennessee Code Annotated § 67-1-901 and § 67-1-912 were deleted as
obsolete by the Code Commission in 1998 after the parties in this case submitted their appellate
briefs.
The trial court denied Defendants’ motion, but granted their request for interlocutory appeal to this
Court.
Because this issue involves a question of law, our review is de novo, with no presumption
of correctness. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
The Tennessee Declaratory Judgment Act grants courts broad powers to construe legislation:
Any person interested under a deed, will, written contract, or other writings
constituting a contract, or whose rights, status, or other legal relations are affected by
a statute, municipal ordinance, contract, or franchise, may have determined any
question of construction or validity arising under the instrument, statute, ordinance,
contract, or franchise and obtain a declaration of rights, status or other legal relations
thereunder.
Tenn. Code Ann. § 29-14-103 (1980). However, these powers may be exercised only in cases in
which the parties can establish the existence of a justiciable controversy. See, e.g., Oldham v.
ACLU, 910 S.W.2d 431, 435 (Tenn. App. 1995); Parks v. Alexander, 608 S.W.2d 881, 891-92
(Tenn. App. 1980); Story v. Walker, 218 Tenn. 605, 607-08, 404 S.W.2d 803, 804 (1966); Miller
v. Miller, 149 Tenn. 463, 474, 261 S.W. 965, 972 (1924). The Tennessee Supreme Court has
described a justiciable controversy as follows: “‘[T]he question must be real and not theoretical; the
person raising it must have a real interest, and there must be some one [sic] having a real interest in
the question who may oppose the declaration sought.’” Cummings v. Beeler, 189 Tenn. 151, 223
S.W.2d 913, 915 (1949) (quoting Miller v. Miller, 149 Tenn. 463, 261 S.W. 965, 972 (1924)); see
Oldham v. ACLU, 910 S.W.2d 431, 435 (Tenn. App. 1995).
In Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949), the Court considered
an act of the legislature that required a state official, the Secretary of State, to spend public funds to
hold a special election. Because the Act had been passed and would otherwise be enforced, the court
held that the Act’s constitutionality was not merely a theoretical question. See id. at 915. The
Cummings Court found that a justiciable controversy existed. In that case, the court found that the
Secretary of State:
must either obey the mandatory provisions of this law which the Attorney General
has previously publicly declared as unconstitutional or he must disregard the law
entirely. If the Secretary of State decides to follow the mandates of the statute and
spend the public funds and then it develops that the Attorney General was correct in
his opinion in holding that the law was invalid and unconstitutional, the Secretary of
State would have spent public funds under the authority of a law which was illegal
and without effect.
Id. at 915-16. As in this case, the plaintiff in Cummings challenged a statute that had not yet been
2
enforced. However, in Cummings, there was no doubt that the challenged statute would have been
enforced. Therefore, the threat of enforcement was genuine, not theoretical, creating a justiciable
controversy. In this case, before the tax can be collected, it must first be set above a rate of zero
by the Commission. There is no indication in the record that the Commission will choose to raise
the rate above zero and enforce the tax statute.
In Parks v. Alexander, 608 S.W.2d 881, 892 (Tenn. App. 1980), the court stated that “[i]f
the controversy depends upon a future or contingent event or involves a theoretical or hypothetical
state of facts, the controversy is not justiciable under the Tennessee Declaratory Judgments Act.”
(citing Story v. Walker, 218 Tenn. 605, 607-08, 404 S.W.2d 803, 804 (1966); United States Fidelity
& Guaranty Co. v. Askew, 183 Tenn. 209, 212-13, 191 S.W.2d 533, 534-35 (1946)). “The
Declaratory Judgments Act does not give the courts jurisdiction to render advisory opinions to assist
the parties or to allay their fears as to what may occur in the future.” Id.
In this case, the challenged tax has not been imposed, and there is no indication in the record
that it will be imposed. Therefore, at this time, a controversy exists only in a theoretical sense.
Consequently, there is no justiciable controversy under the Tennessee Declaratory Judgment Act.
The trial court erred in denying the Defendants’ motion to dismiss, and this decision is reversed.
The remaining issues on appeal are pretermitted by this holding. The cause is remanded to
the trial court for entry of an order granting Defendants’ motion to dismiss.
The decision of the trial court and is reversed and remanded as set forth above. Costs are
assessed against the Appellee, for which execution issue, if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
3