If a Tennessee bill's caption says 'An Act to amend Title 4, relative to lotteries,' can the body of the bill amend the Charitable Gaming Implementation Law in Title 3 because of the constitutional 'or otherwise' clause?

Subject

Opinion No. 10-122, Constitutionality of Captions under Article II, Section 17, of the Tennessee Constitution, December 30, 2010

Plain-English summary

Article II, Section 17 of the Tennessee Constitution has two distinct requirements for an amendatory act. First, the bill must embrace only one subject, and that subject must be expressed in the title. Second, an act that repeals, revives, or amends a former law must recite "in their caption, or otherwise, the title or substance of the law repealed, revived or amended." The Lieutenant Governor asked whether the "or otherwise" language lets the body of a bill expand to amend statutes that are not mentioned in the caption.

The AG concluded that "or otherwise" cannot do that work. It is a notice rule for amendatory acts, not a workaround for the single-subject requirement. A bill drafter can satisfy the second sentence (the amendment-recital sentence) either by reciting the amended law in the caption or by reciting it in the body, but the bill must still satisfy the first sentence (the single-subject rule) on its own. If the caption's subject is the amendment of one statutory scheme, the body cannot reach a different statutory scheme just because the body recites the other law.

The opinion ran two hypothetical bills, both under the caption "An Act to amend Tennessee Code Annotated, Title 4, relative to lotteries":

• An explicit amendment to the Tennessee Charitable Gaming Implementation Law in Title 3, Chapter 17. The AG concluded this would violate Article II, Section 17 because the body is broader than the caption. The Title 4 "relative to lotteries" caption naturally points readers to the Tennessee Education Lottery Corporation in Tenn. Code Ann. §§ 4-51-101 et seq.; charitable gaming statutes in Title 3 are not within that scheme.
• A free-standing new section that begins "Notwithstanding any provision of § 3-17-110(b) to the contrary . . ." and directly references statutes in Title 3. The AG concluded this would also violate Article II, Section 17 for the same reason. An implied amendment to Title 3 charitable gaming, slipped into a Title 4 lottery bill, is both broader than the caption and embraces more than one subject.

The AG relied on State v. Chastain, where the Tennessee Supreme Court struck down a vehicle-confiscation act that, while amending statutes named in the caption, also irreconcilably conflicted with the Post-Conviction Procedure Act, effectively amending statutes the caption did not name. The court held that the caption failed to give legislators notice that other statutes were being amended.

Currency note

This opinion was issued in 2010. 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

What does the "or otherwise" clause actually do?

It permits flexibility about where the amended law is identified. If a bill is amending a former law, the new bill has to make clear which law is being amended. Reciting that law in the caption is the cleanest way to do it, but the bill can also do it inside the body. "Or otherwise" is about the form of disclosure, not the scope of the bill.

So can the body of a bill amend statutes not listed in the caption?

Only if the caption is broad enough that the unlisted amendments fall within the subject the caption states. The "or otherwise" clause solves the amendment-disclosure problem but does not solve the single-subject problem. As the AG put it: a former law does not necessarily have to be mentioned in the caption, if the caption is otherwise adequate to give notice of the subject; but if the caption is restrictive (e.g., "to amend Title 4, relative to lotteries"), the body cannot reach statutory schemes outside that subject.

What was the problem with Chastain?

In State v. Chastain, 871 S.W.2d 661 (Tenn. 1994), an act captioned as amending Title 55 and Title 53 "relative to the confiscation of motor vehicles" included provisions that conflicted with and effectively amended the Post-Conviction Procedure Act's statute of limitations and jurisdictional provisions. The Tennessee Supreme Court found the caption "failed to comply with the notice requirements of Article II, § 17" because legislators had "no indication by the language of the bill that additional statutes not mentioned in the caption . . . were being amended without being repealed in their entirety."

Is an "express" amendment treated differently from an "implied" one?

Not really. Both would have the same constitutional defect in the hypothetical the Lieutenant Governor proposed. The AG's free-standing-section hypothetical (a new section that directly references Title 3 by its statute numbers) would still be unconstitutional because the body strays from the caption's single subject and effectively embraces two subjects.

How does this affect bill drafters?

Drafters need to think about the caption first. A narrow "relative to" clause locks the body of the bill to a defined scope, and any amendment that touches a different statutory scheme has to either fit within that scope or be cut. Broadening the caption is the right move when the bill needs to reach related-but-different statutes, not relying on "or otherwise" as a back door. Companion AG Opinion 10-121 walks through how broad or narrow a caption can be.

Background and statutory framework

Article II, Section 17 of the Tennessee Constitution provides:

Origin and frame of bills.--Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

Tennessee courts read the section as imposing two separate requirements on amendatory acts: a single subject expressed in the title, and a recital of the amended law in the caption or otherwise. Shelton v. State, 32 S.W. 967, 967-68 (Tenn. 1895); Steele v. Louisville & N.R.R., 285 S.W. 582, 585 (Tenn. 1926). Both must be satisfied.

The section is to be liberally construed, and a court will presume the caption adequately expresses the subject of the body. Tennessee Municipal League v. Thompson, 958 S.W.2d 333, 336-37 (Tenn. 1997); Chattanooga-Hamilton County Hospital Authority v. City of Chattanooga, 580 S.W.2d 322 (Tenn. 1979). Whether the provisions of an act are germane to the subject expressed in the title is largely a question of fact, applying settled rules of construction and the court's own knowledge of affairs. Frazier v. Railroad, 12 S.W. 537 (Tenn. 1889); House v. Creveling, 250 S.W. 357 (Tenn. 1923); Tennessee Electric Power Co. v. City of Chattanooga, 114 S.W.2d 441 (Tenn. 1937).

The leading recent decisions on amendatory captions:

• TML v. Thompson: caption that amended specified portions of Title 6 "relative to" municipal-incorporation tax distributions and election timing. The court held the subject was the amendment of those portions, with the "relative to" clause restricting the body.
• State ex rel. Tipton v. City of Knoxville: caption amending eight Code titles "relative to growth." Upheld; "growth" supplied the single subject.
• State v. Chastain: caption amending Title 55 and Title 53 "relative to the confiscation of motor vehicles" that effectively amended the Post-Conviction Procedure Act in Title 40. Held unconstitutional for failing notice requirements.

The footnote in this opinion noted that an act may survive a single-subject challenge if, in addition to amending a specified statute, it also adds sections to the same statutory scheme that are germane to the subject of the act. Op. Tenn. Att'y Gen. 01-106 (June 27, 2001).

Applying that framework, the AG concluded:

1. The "or otherwise" clause is about amendment-disclosure, not subject expansion. A bill amending a former law not mentioned in the caption is fine if (and only if) the caption is broad enough to cover the amendment as part of its single subject. If the caption restricts the bill to one statutory scheme, the body cannot reach a different scheme by reciting the other law in the body.
2. Under the hypothetical "An Act to amend Tennessee Code Annotated, Title 4, relative to lotteries," both an explicit amendment to Title 3, Chapter 17 (the Charitable Gaming Implementation Law) and a free-standing new section that directly references § 3-17-110(b) and § 3-17-102(2) would violate Article II, Section 17 because the body would be broader than the caption and would embrace more than one subject.

Citations

• Tenn. Const. art. II, § 17 (single subject and amendment-recital requirements)
• Tenn. Code Ann. §§ 3-17-101, et seq. (Tennessee Charitable Gaming Implementation Law)
• Tenn. Code Ann. § 3-17-102(2) ("annual event" definition)
• Tenn. Code Ann. § 3-17-110(b) (cash prize provisions)
• Tenn. Code Ann. §§ 4-51-101, et seq. (Tennessee Education Lottery Corporation)
• Tenn. Code Ann. §§ 40-30-102 to -103 (Post-Conviction Procedure Act limitations and jurisdiction)
• Shelton v. State, 96 Tenn. 521, 32 S.W. 967 (Tenn. 1895)
• Steele v. Louisville & N.R.R., 154 Tenn. 208, 285 S.W. 582 (Tenn. 1926)
• Frazier v. Railroad, 88 Tenn. 138, 12 S.W. 537 (Tenn. 1889)
• House v. Creveling, 147 Tenn. 589, 250 S.W. 357 (Tenn. 1923)
• Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (Tenn. 1937)
• Pharr v. Nashville C. & St. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013 (Tenn. 1948)
• State v. Chastain, 871 S.W.2d 661 (Tenn. 1994)
• Tennessee Municipal League v. Thompson, 958 S.W.2d 333 (Tenn. 1997)
• State ex rel. Tipton v. City of Knoxville, 205 S.W.3d 456 (Tenn. Ct. App. 2006)
• Op. Tenn. Att'y Gen. 01-106 (June 27, 2001)
• Chattanooga-Hamilton County Hospital Authority v. City of Chattanooga, 580 S.W.2d 322 (Tenn. 1979)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-122.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

December 30, 2010

Opinion No. 10-122

Constitutionality of Captions under Article II, Section 17, of the Tennessee Constitution

QUESTIONS

Article II, Section 17, of the Tennessee Constitution provides in relevant part that "[n]o bill shall become a law which embraces more than one subject, that subject to be expressed in the title." This provision also requires that, "[a]ll acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended."

1. Does the term "or otherwise" allow the body of a bill to amend code provisions that are not mentioned in the caption?

2. As an example, consider a bill with the following caption:

"An Act to amend Tennessee Code Annotated, Title 4, relative to lotteries."

a. Could the body of this act explicitly amend the provisions of the Tennessee Charitable Gaming Implementation Law in Title 3, Chapter 17, of the Tennessee Code Annotated?

b. Could the body of the bill add a free-standing statutory section that is more likely than not to be codified in Title 3 if the bill becomes a law?

OPINIONS

1. The substance of a bill may amend code provisions not expressly mentioned in its caption if the caption does mention the subject matter and is not restricted to a different code section. But generally, if the subject of an act recited in the title is the amendment of a certain statute or statutory scheme, then the body of the act may not amend a different statute or statutory scheme.

2.a. No. An act with this title, the body of which contains an explicit amendment to Tenn. Code Ann. §§ 3-17-101, et seq., would violate Article II, Section 17, because it is broader than its caption.

b. No. An act with this title, the body of which contains an implied amendment to Tenn. Code Ann. §§ 3-17-101, et seq., would violate Article II, Section 17, because it is broader than its caption and because it embraces more than one subject.

ANALYSIS

This opinion concerns the meaning of the phrase "or otherwise" as used in Article II, Section 17, of the Tennessee Constitution. This section provides:

Origin and frame of bills.--Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

(emphasis added).

Article II, Section 17, is to be construed liberally, and a court will presume that the caption adequately expresses the subject of the body of the act. Tennessee Municipal League v. Thompson, 958 S.W.2d 333, 336-37 (Tenn. 1997); Chattanooga-Hamilton County Hospital Authority v. City of Chattanooga, 580 S.W.2d 322 (Tenn. 1979). Whether the provisions of an act are germane to the subject expressed in the title is largely a question of fact to be determined by applying settled rules of construction and the court's own knowledge of affairs. Frazier v. Railroad, 88 Tenn. 138, 12 S.W. 537 (Tenn. 1889); House v. Creveling, 147 Tenn. 589, 250 S.W. 357, 360 (Tenn. 1923); Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (Tenn. 1937).

The request asks whether the term "or otherwise" in the third sentence of Article II, Section 17, allows expansion of a bill beyond the code provisions explicitly recited in the caption of the bill. Under Article II, Section 17, of the Tennessee Constitution, every bill must have a single subject expressed in its title. In addition, an amendatory act must recite in its caption or otherwise the title or substance of the law repealed, revived, or amended. Thus, every amendatory act must satisfy two separate requirements under Article II, Section 17: first, it must have a single subject expressed in its title; and second, it must recite in its caption or otherwise the title or substance of the law it is repealing, reviving, or amending. Shelton v. State, 96 Tenn. 521, 32 S.W. 967, 967-68 (Tenn. 1895); Steele v. Louisville & N.R.R., 154 Tenn. 208, 285 S.W. 582, 585 (Tenn. 1926).

Whether a particular amendatory act satisfies both the single subject requirement and the requirement that an act recite in its caption "or otherwise" the title or substance of a law it is amending depends on its specific caption and body. An act, the title of which declares it is "An Act to amend" a certain part of the code has as its subject the amendment of that particular statute or statutory scheme. See, e.g., Tennessee Municipal League v. Thompson, supra (the subject of the act, as expressed in the caption, was "the amendment of Title 6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6, Chapter 30, Part 1," followed by a restrictive clause); State ex rel. Tipton v. City of Knoxville, 205 S.W.3d 456 (Tenn. Ct. App. 2006), p.t.a. denied (2006) (the subject of an act was the amendment of eight different titles of the Tennessee Code with the restrictive clause "relative to growth"). In that case, the body of the act must fall within the subject expressed in the caption. Generally, if the body of an act with such a title amends a statute that is not specified in the title, then it is subject to challenge as violating the single subject requirement of Article II, Section 17, of the Tennessee Constitution.¹ This would be the case even though it meets the separate requirement that an amendatory act recite in its caption "or otherwise" the title or substance of the law it amends. In other words, when a bill would amend a former law, that law does not necessarily have to be mentioned in the caption, if the caption is otherwise adequate to give notice of the subject. But the former law, if not mentioned in the caption, must be recited in the body of the bill, either by title or substance.

2. Examples Presented

a. The request provides the following caption as an example:

"An Act to amend Tennessee Code Annotated, Title 4, relative to lotteries."

The question is whether the body of this act may explicitly amend the provisions of the Tennessee Charitable Gaming Implementation Law in Title 3, Chapter 17, of the Tennessee Code Annotated. In this case, the subject of the act is the amendment of Title 4 of the code "relative to lotteries." While they fall within the restrictive clause "relative to lotteries," the laws on charitable gaming are not in Title 4. The subject, the amendment of Title 4 "relative to lotteries," suggests that the act is intended to address the Tennessee Education Lottery Corporation, governed by Tenn. Code Ann. §§ 4-51-101, et seq. When any section of the code is amended, the members of the Legislature are presumed to know the nature of the section sought to be amended. Pharr v. Nashville C. & St. L. Ry., 186 Tenn. 154, 159, 208 S.W.2d 1013 (Tenn. 1948).

The Tennessee Supreme Court addressed a similar issue in State v. Chastain, 871 S.W.2d 661 (Tenn. 1994). In that case, the district attorney general and the state attorney general challenged the constitutionality of 1991 Tenn. Pub. Acts ch. 344. This act had the following caption:

An Act to amend Tennessee Code Annotated, title 55, Chapter 10, Part 4, and Title 53, Chapter 11, relative to the confiscation of motor vehicles of certain offenders.

The body of the act directly amended the statutes addressed in the caption. But the amendments irreconcilably conflicted with, and therefore effectively amended, the statute of limitations and jurisdictional provisions of the Post Conviction Procedure Act, Tenn. Code Ann. § 40-30-102 and -103. The Court concluded that the caption of the act failed to comply with the notice requirements of Article II, § 17. The Court stated:

The members of the General Assembly were given no indication by the language of the bill that additional statutes not mentioned in the caption . . . were being amended without being repealed in their entirety.

871 S.W.2d at 666-67.

The caption and body of the bill addressed in Chastain differ from those in the example addressed here. In Chastain, the body of the bill indirectly amended statutes outside the caption. Neither the caption nor the body of the bill cited these statutes. In the example, the body of the bill would explicitly amend a statute outside the statutory scheme addressed in the title. In both cases, however, the subject, stated in the caption, is the amendment of a specific statutory scheme. In both cases, the body of the act amends statutes not included in the subject. For this reason, the example would violate Article II, § 17.

b. The request then asks whether the result would differ if the body of the bill added a free-standing statutory section that is more likely than not to be codified in Title 3 if the bill becomes a law. As an example, the request proposes a bill with the following language immediately preceding the effective date section of the bill:

Section 5. Notwithstanding any provision of § 3-17-110(b) to the contrary, all cash prizes or awards awarded at an annual event, as defined by § 3-17-102(2), exceeding twenty-five dollars ($25.00) shall be paid by check from a designated account of the organization to a named individual.

For slightly different reasons, adding this provision would create the same deficiencies as the direct amendment discussed above. The subject of the act is the amendment of Title 4 of the Tennessee Code Annotated, "relative to lotteries." The caption, read as a whole, suggests it is intended to address the Tennessee Education Lottery Corporation. But section 5 directly refers to a statute in Title 3 that addresses charitable gaming. Thus, the body of the Act is broader than its caption, which indicates that it amends only Title 4. Further, the Act would embrace more than one subject. For these reasons, the act would violate Article II, § 17.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

ANN LOUISE VIX
Senior Counsel

Requested by:
The Honorable Ronald L. Ramsey
Lieutenant Governor
One Legislative Plaza
Nashville, Tennessee 37243