Can a Tennessee city dissolve, by ordinance, an airport authority it created under the Airport Authorities Act, and can the General Assembly fix the gap by private act?

Plain-English summary

A state representative asked two related questions about airport authorities in Tennessee:

1. Could a city organized by private act simply pass an ordinance to dissolve an airport authority it had previously created under the Airport Authorities Act (Tenn. Code Ann. §§ 42-3-101 to -205)?
2. If not, could the General Assembly fix that by passing a private act giving the city dissolution authority?

The AG answered both questions. As to the first, the answer was no. Tennessee municipalities have only the powers the legislature gives them, a rule codified in Dillon's Rule and reaffirmed by the Tennessee Supreme Court in cases like Arnwine v. Union County Board of Education. The Airport Authorities Act gave municipalities the power to create airport authorities, treated those authorities as separate public corporations, and gave them their own powers (to sue, contract, hold property, issue bonds). Nowhere did the Act give the municipality a general power to dissolve. The only exception was the narrow 2009 amendment in Tenn. Code Ann. § 42-3-103(d), which lets a county legislative body dissolve a municipal airport authority that had improperly relabeled itself "regional." In contrast, the Metropolitan Airport Authority Act (Title 42, Chapter 4) explicitly contemplates dissolution at Tenn. Code Ann. § 42-4-113, which the AG read under the canons of statutory construction (in pari materia and expressio unius) as confirming the omission from the Airport Authorities Act was deliberate.

As to the second question, the General Assembly could enact a private act, but the act had to comply with Tenn. Const. art. XI, § 8. That section bars private legislation suspending general law for the benefit of a particular individual, county, or city unless there is a rational basis for the classification. The AG advised that any such private act should articulate the reasons dissolution was necessary, and noted that practical contractual obligations of the airport authority (debt service, leases) could independently constrain dissolution.

Currency note

This opinion was issued in 2016. 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

Tennessee gives municipalities three different statutory routes to provide for airports: the Municipal Airport Act (cities can run airports themselves, Tenn. Code Ann. §§ 42-5-101 to -205), the Airport Authorities Act (cities or counties can create a separate municipal authority, Tenn. Code Ann. §§ 42-3-101 to -205), and the Metropolitan Airport Authority Act (larger cities and metropolitan governments, plus participating municipalities, can create a metropolitan authority, Tenn. Code Ann. §§ 42-4-101 to -117).

The opinion's analysis turned on the differences between these statutes. Under the Airport Authorities Act, the authority is "a public body corporate and politic." Tenn. Code Ann. § 42-3-105(a)(2). It has its own commissioners, its own powers to sue and be sued, contract, acquire and dispose of property, issue bonds, and seek federal or state aid. The creating municipality keeps a parallel set of aiding-and-cooperation powers in Tenn. Code Ann. § 42-3-117, but those are powers to support the authority's operations, not to undo its existence.

The Metropolitan Airport Authority Act looks similar in many ways, but Tenn. Code Ann. § 42-4-113 contains an explicit dissolution mechanism: when the creating and participating municipalities each find by resolution that the authority's purposes have been substantially accomplished, all bonds and other obligations have been paid, and the parties have agreed on the distribution of remaining property, they execute and file a joint certificate of dissolution with the Secretary of State.

The Airport Authorities Act contains no parallel mechanism, with a single 2009 exception. After commissioners of one airport authority improperly altered their certificate to relabel themselves a "regional" authority, the General Assembly added Tenn. Code Ann. § 42-3-103(d), which permits a county legislative body, by two-thirds vote at two separate readings at least 30 days apart, to dissolve the offending airport authority.

The AG applied three statutory-construction principles:

• Dillon's Rule. Southern Constructors v. Loudon County Board of Education, 58 S.W.3d 706 (Tenn. 2001), describes the rule and stresses that doubts about municipal power are resolved against the municipality, quoting City of Nashville v. Linck, 80 Tenn. 499 (1883).
• In pari materia. Statutes on the same subject (here, the three airport statutes) are read together. Owens v. State, 908 S.W.2d 923 (Tenn. 1995); Lyons v. Rasar, 872 S.W.2d 895 (Tenn. 1994).
• Expressio unius est exclusio alterius. The express enumeration of one item implies the exclusion of others. Rich v. Tennessee Board of Medical Examiners, 350 S.W.3d 919 (Tenn. 2011). Because the legislature spelled out dissolution in the Metropolitan Airport Authority Act and only one narrow form of it in the Airport Authorities Act, the omission of a general dissolution power from the Airport Authorities Act was treated as deliberate.

The AG also addressed the implied-power argument from State ex rel. Patton v. Mayor and Board of Aldermen, 626 S.W.2d 5 (Tenn. 1981), which said the power to repeal an ordinance is generally as broad as the power to enact it. The court itself in Patton recognized limits, including where the underlying entity is contractual in nature or where the legislature has fixed the manner and time of the action. An airport authority is a separate public corporation, not an in-house department of the municipality, as the Court of Appeals indicated in City of Memphis v. Civil Service Comm'n, 2004 WL 3021120 (Tenn. Ct. App. 2004). "Corporations are creatures of and sired by statute they must also be eliminated or dissolved by statute." Owens v. Bricks, Inc., 703 S.W.2d 147, 150 (Tenn. Ct. App. 1985). The implied-power doctrine did not let a municipality bypass the absent statutory dissolution mechanism.

The 2011 amendment to the Airport Authorities Act, codified at Tenn. Code Ann. § 42-3-118(a) and providing that the Act's powers are "in addition to those conferred by any other law," did not change the result. Tenn. Code Ann. § 42-3-103(b)(3) makes clear that an authority's certificate of incorporation is issued "pursuant to this chapter," so its dissolution must be governed by a statute applicable to Chapter 3 of Title 42, not by the general business corporation laws at Tenn. Code Ann. §§ 48-11-101 et seq.

On the second question, the AG explained that because a municipality organized by private act is not a home-rule municipality under Tenn. Const. art. XI, § 9, the General Assembly is not constitutionally barred from passing a private act affecting it. But the private act must be approved either by a two-thirds vote of the local legislative body or by a majority of voters in a local election. More importantly, it must satisfy art. XI, § 8: a private act that contravenes a general law of statewide application is unconstitutional unless there is a rational basis for the classification. Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990); Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). The proposed act should therefore articulate, on its face, the reasons that dissolution is necessary for the specific airport authority. Tenn. Att'y Gen. Op. U90-128 (Sept. 6, 1990) was superseded to the extent it conflicted with this opinion.

Common questions

Q: Why can a metropolitan airport authority be dissolved but not a "regular" airport authority?
A: Because the legislature wrote a dissolution mechanism into the Metropolitan Airport Authority Act (Tenn. Code Ann. § 42-4-113) but did not write a comparable one into the Airport Authorities Act. The AG read that omission as deliberate under expressio unius.

Q: Doesn't the 2009 amendment let a county dissolve an authority?
A: Only in one narrow case: when a municipal airport authority improperly altered its certificate of incorporation to call itself a "regional" airport authority. Tenn. Code Ann. § 42-3-103(d). The provision was not a general grant of dissolution authority.

Q: Could the municipality and the authority just stop operating and let it wither?
A: Practically that creates risk for bondholders, employees, vendors, and federal grant compliance. The opinion noted contractual obligations may independently prevent dissolution unless provision is made for fulfillment. Operationally winding down an authority is not a substitute for a legal dissolution.

Q: What does article XI, § 8 require of a private act?
A: It bars the legislature from suspending a general law for an individual or particular city/county unless there is a rational basis. A private act enabling one specific municipality to dissolve its airport authority would have to identify why the dissolution is justified for that municipality and not for others similarly situated.

Q: What's the difference between Dillon's Rule and home rule?
A: Under Dillon's Rule (the default), municipalities have only the powers expressly granted, fairly implied, or essential to declared purposes. Home-rule municipalities (those operating under a charter adopted under Tenn. Const. art. XI, § 9) have broader self-governing authority, and the General Assembly cannot adopt private acts affecting them in the same way. A municipality organized by private act is not home-rule.

Citations and references

Statutes and constitutional provisions (as cited in the opinion):

• Tenn. Code Ann. §§ 42-3-101 to -205 (Airport Authorities Act)
• Tenn. Code Ann. § 42-3-103(a)(1), (b)(3), (d)
• Tenn. Code Ann. § 42-3-105(a)(2)
• Tenn. Code Ann. § 42-3-107(c)
• Tenn. Code Ann. § 42-3-108(a)(1)(A), (2), (3)
• Tenn. Code Ann. § 42-3-110
• Tenn. Code Ann. § 42-3-111
• Tenn. Code Ann. § 42-3-114
• Tenn. Code Ann. § 42-3-117
• Tenn. Code Ann. § 42-3-118(a)
• Tenn. Code Ann. §§ 42-4-101 to -117 (Metropolitan Airport Authority Act)
• Tenn. Code Ann. § 42-4-113 (dissolution)
• Tenn. Code Ann. §§ 42-5-101 to -205 (Municipal Airport Act)
• Tenn. Code Ann. §§ 48-11-101 et seq. (general corporation dissolution)
• 1957 Tenn. Pub. Acts, ch. 375 and ch. 376
• 1969 Tenn. Pub. Acts, ch. 174
• 2009 Tenn. Pub. Acts, ch. 446, § 1
• 2011 Tenn. Pub. Acts, ch. 139, § 3
• Tenn. Const. art. XI, § 8; § 9

Cases:

• Arnwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804 (Tenn. 2003)
• City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1988)
• Southern Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706 (Tenn. 2001)
• Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009)
• City of Nashville v. Linck, 80 Tenn. 499 (1883)
• State ex rel. Patton v. Mayor and Board of Aldermen, 626 S.W.2d 5 (Tenn. 1981)
• Keeble v. Loudon Utils., 212 Tenn. 483, 370 S.W.2d 531 (1963)
• City of Memphis v. Civil Service Comm'n, 2004 WL 3021120 (Tenn. Ct. App. Dec. 29, 2004)
• Owens v. Bricks, Inc., 703 S.W.2d 147 (Tenn. Ct. App. 1985)
• Owens v. State, 908 S.W.2d 923 (Tenn. 1995)
• Lyons v. Rasar, 872 S.W.2d 895 (Tenn. 1994)
• Rich v. Tennessee Bd. of Medical Exam'rs, 350 S.W.3d 919 (Tenn. 2011)
• Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013)
• Hart v. City of Johnson City, 801 S.W.2d 512 (Tenn. 1990)
• Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-014.pdf

Original opinion text

Dissolution of a Municipal Airport Authority Created Under the Airport Authorities Act

Question 1
Is a municipality organized by private act authorized to pass an ordinance to dissolve an
airport authority that it created under the Airport Authorities Act?

Opinion 1
No.

Question 2
If such a municipality is not authorized to pass an ordinance to dissolve an airport authority
that it created under the Airport Authorities Act, could the General Assembly confer the necessary
legal authority upon the municipality by private act or must the Airport Authority Act be amended
to confer the necessary legal authority?

Opinion 2
The General Assembly could pass a private act allowing the municipality to dissolve the
airport authority; however, the act must have a rational basis for suspending the general law in
order to comport with article XI, section 8 of the Tennessee Constitution. Accordingly, a private
act permitting the municipality to dissolve an airport authority that it created under the Airport
Authorities Act must articulate the reasons that the dissolution is necessary.

ANALYSIS

In 1957, the General Assembly enacted sweeping legislation to allow municipalities to
establish, operate, regulate, and maintain airports. Under the Municipal Airport Act,
municipalities were allowed to perform these functions themselves. See 1957 Tenn. Pub. Acts,
ch. 375 (codified as amended at Tenn. Code Ann. §§ 42-5-101 to -205). Alternatively, under the
Airport Authorities Act, the General Assembly gave municipalities permission to create municipal
and regional airport authorities to perform these functions. See 1957 Tenn. Pub. Acts, ch. 376
(codified as amended at Tenn. Code Ann. §§ 42-3-101 to -205).

In 1969, the General Assembly enacted the Metropolitan Airport Authority Act to provide
an additional option to "any city or metropolitan government having a population of not less than
one hundred thousand (100,000), or any county including such city" that desired to create an
airport authority. See 1969 Tenn. Pub. Acts, ch. 174 (codified as amended at Tenn. Code Ann.
§§ 42-4-101 to -117).

Under the Airport Authorities Act, a municipality desiring to create an airport authority
proceeds by ordinance (if a city or town) or by resolution (if a county). Tenn. Code Ann. § 42-3-
103(a)(1). Once incorporated, the airport authority is "a public body corporate and politic." Tenn.
Code Ann. § 42-3-105(a)(2). The authority has powers to sue and be sued, contract, acquire
property by purchase, gift, devise, lease, or eminent domain, dispose of its property, borrow money
and issue bonds, and seek federal or state aid. See Tenn. Code Ann. §§ 42-3-108, -110, -111, -114.

The powers of the municipality, following the creation of an airport authority, are
contained in Tenn. Code Ann. § 42-3-117, which authorizes a municipality to aid and cooperate
with the authority in planning, undertaking, constructing or operating airports, including by
lending or donating money, transferring tax revenues, conveying property, and entering
agreements. Notably, none of these provisions provides that a municipality may dissolve an
airport authority that it has created.

In contrast, the General Assembly did address the dissolution of an airport authority when
it enacted the Metropolitan Airport Authority Act. The Metropolitan Airport Authority Act
specifically provides at Tenn. Code Ann. § 42-4-113 that, whenever the governing bodies of the
creating municipality and the participating municipalities each by resolution determine that the
purposes for which the authority was created have been substantially accomplished, that all of the
bonds and other obligations of the authority have been fully paid, and that the municipalities have
agreed on the distribution of the funds and other properties of the authority, the executive officers
of the municipalities shall execute and file for record with the secretary of state a joint certificate
of dissolution.

It was not until 2009 that the General Assembly addressed the dissolution of a municipal
airport authority under the Airport Authorities Act, and only in a narrow circumstance. The Act
now permits a county legislative body to dissolve a municipal airport authority that altered its
certificate of authority to refer to itself as a regional airport authority. Tenn. Code Ann. § 42-3-
103(d).

1. You have asked whether a municipality organized by private act has the authority to
   pass an ordinance to dissolve an airport authority that it created under the Airport Authorities Act.
   For the reasons that follow, we are of the opinion that such a municipality does not.

It is well established that municipalities in Tennessee have no authority other than that
granted by the legislature. Arnwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804, 807 (Tenn.
2003); City of Lebanon v. Baird, 756 S.W.2d 236, 241 (Tenn. 1988); Nichols v. Tullahoma Open
Door, Inc., 640 S.W.2d 13, 18 (Tenn. Ct. App. 1982). Thus, "absent some indication to the
contrary, the General Assembly must be presumed to have endowed local governments with only
as much authority as it has granted through the language of its delegation." Southern Constructors,
Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 712 (Tenn. 2001).

In determining the authority of a municipality, it is proper to apply Dillon's Rule. See
Shorts v. Bartholomew, 278 S.W.3d 268, 276 (Tenn. 2009); Arnwine, 120 S.W.3d at 807. Dillon's
Rule provides that a municipal government has the authority to act only when the power is granted
in the express words of the statute, private act, or charter creating the municipal corporation; when
the power is necessarily or fairly implied in, or incident to, the powers expressly granted; or when
the power is otherwise implied as essential to the declared objects and purposes of the corporation.
Southern Constructors, 58 S.W.3d at 710-11. "Any fair, reasonable doubt concerning the existence
of the power is resolved by the courts against the [municipal] corporation and the power is denied."
Id. at 711 (quoting City of Nashville v. Linck, 80 Tenn. 499, 504 (1883)).

A municipality has express authority to create an airport authority under the Airport
Authorities Act. But there is no express authority for the municipality to dissolve an airport
authority, except in the limited circumstance in Tenn. Code Ann. § 42-3-103(d). The next question
is whether the municipality has the implied power to do so. Generally, the power to repeal an
ordinance is as broad as the power to enact it. State ex rel. Patton v. Mayor and Board of
Aldermen, 626 S.W.2d 5, 6 (Tenn. 1981). But this general power has limits where the underlying
arrangement is contractual or where the legislature has fixed the manner and time of the action,
and may be limited by the terms of the grant itself.

Unlike municipal electric plants, airport authorities created under the Airport Authorities
Act are corporate entities that are separate, distinct entities from the municipalities that create
them. Compare Keeble v. Loudon Utils., 212 Tenn. 483, 489 (1963), with City of Memphis v. Civil
Service Comm'n, 2004 WL 3021120, at *6 (Tenn. Ct. App. Dec. 29, 2004); Tenn. Att'y Gen. Op.
81-220 (Apr. 6, 1981). Because "corporations are creatures of and sired by statute they must also
be eliminated or dissolved by statute." Owens v. Bricks, Inc., 703 S.W.2d 147, 150 (Tenn. Ct.
App. 1985).

The Metropolitan Airport Authority Act provides a statutory dissolution procedure; the
Airport Authorities Act does not, except in the narrow scenario in § 42-3-103(d). Statutes "in pari
materia" are construed together, Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); Lyons v.
Rasar, 872 S.W.2d 895, 897 (Tenn. 1994), and under expressio unius est exclusio alterius the
expression of one thing implies the exclusion of others. Rich v. Tennessee Bd. of Medical Exam'rs,
350 S.W.3d 919, 927 (Tenn. 2011). Together with Dillon's Rule, these principles lead to the
conclusion that a municipality is not empowered to dissolve an airport authority under the Airport
Authorities Act except as specified in § 42-3-103(d).

The 2011 amendment to the Airport Authorities Act (Tenn. Code Ann. § 42-3-118(a))
providing that the Act's powers are in addition to those conferred by any other law does not change
the result. Tenn. Code Ann. § 42-3-103(b)(3) makes clear that an airport authority's certificate of
incorporation is issued "pursuant to this chapter." Dissolution must therefore be governed by a
statute that applies to Chapter 3 of Title 42, not by general business-corporation laws.

Therefore, a municipality organized by private act does not have the implied authority to
pass an ordinance to dissolve an airport authority created under the Airport Authorities Act. A
city may not pass an ordinance that ignores the State's own regulatory acts or grants a right that
state law denies. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 426 (Tenn. 2013); State ex
rel. Beasley v. Mayor and Aldermen, 196 Tenn. 407, 415-16 (1954). Tenn. Att'y Gen. Op. U90-
128 (Sept. 6, 1990) is superseded to the extent it conflicts with this opinion.

2. The General Assembly, though, could pass a private act to allow the municipality to
   dissolve the airport authority. Because a municipality organized by private act is not a "home
   rule" municipality, the General Assembly is not constitutionally prohibited from passing a private
   act affecting it. See Tenn. Const. art. XI, § 9. But the private act must either require approval by
   a two-thirds vote of the local legislative body of the municipality or require approval in an election
   by a majority of those voting in the municipality affected. Id.

Moreover, the proposed private act must comport with article XI, section 8 of the
Tennessee Constitution, which prohibits the legislature from suspending any general law for the
benefit of a particular individual or granting rights or privileges to individuals inconsistent with
the general laws of the land. Through judicial interpretation, this provision applies to counties
and cities as well as individuals. Hart v. City of Johnson City, 801 S.W.2d 512, 515 (Tenn. 1990).
In order to trigger application of article XI, section 8, a statute must contravene some general law
with mandatory statewide application. Riggs v. Burson, 941 S.W.2d 44, 53 (Tenn. 1997). If a
statute contravenes general law for the benefit of an individual, municipality, or county, the statute
violates article XI, section 8, if there is no rational basis for the classification.

The Airport Authorities Act does not authorize a municipality to dissolve an airport
authority, except in one limited circumstance. The proposed private act would therefore be
inconsistent with the Act and contravene general law. Thus, absent a rational basis for suspending
the law for one municipality, the proposed private act would be unconstitutional under article XI,
section 8 of the Tennessee Constitution. Accordingly, any proposed act to authorize the
municipality to dissolve the airport authority that is created under the Airport Authorities Act
should articulate the reasons why such dissolution is necessary.

Finally, the validity of a proposed private act would depend on the facts and circumstances
surrounding the dissolution of the municipal airport authority. There may be contractual
obligations of the municipal airport authority that prevent dissolution unless provision is made for
the fulfillment of those obligations.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
The Honorable Kevin Brooks
State Representative
103 War Memorial Building
Nashville, Tennessee 37243