If the Tennessee legislature names a stretch of state highway as a memorial highway, can a city or county pass an ordinance removing the memorial signs?

Subject

Whether a Tennessee local government has the sole authority to name a state highway or bridge, whether it may override state legislation designating a segment as a memorial highway, and what enforcement options exist if a city or county removes state-mandated signage.

Plain-English summary

The legislature's authority over Tennessee's highways is broad and longstanding. Marshall v. State (1943) and Johnson Freight Lines v. Davis (1939) confirm that "the General Assembly has full authority over the highways of the State." That authority is sometimes delegated to local governments, but the legislature can revoke or limit those delegations by general law.

Two statutes set up the apparent conflict in this opinion:

• § 7-86-127(a): Delegates road-naming authority to county commissions (for unincorporated areas) and to municipalities (within incorporated boundaries), "unless expressly provided otherwise by law."
• § 3-2-112: "Expressly provid[es] otherwise" by retaining the General Assembly's power to "take formal action to give a name to or rename any road, highway, interstate highway, bridge, overpass or other public structure, facility or property" through legislation or joint resolution.

Read together, the local delegation is real but conditional. When the legislature exercises § 3-2-112, the local authority is preempted.

The opinion then handles a subtler question: if a state law designates a segment of a state highway as a memorial highway in honor of a specific individual (and directs TDOT to erect signs), can a city or county pass legislation removing those signs?

The AG's answer is no, but the analysis is more careful. Memorial-highway legislation doesn't actually rename the highway (it bestows an honorary name without changing addresses or assignments), so § 3-2-112's renaming power isn't directly engaged. But the broader principle still controls: state highways are state property, and TDOT has exclusive jurisdiction over the system (§§ 54-5-101, 54-5-201, -205). Local governments cannot countermand the state's decisions about what signage stands on state highway right-of-way.

The opinion also addresses an interesting Tennessee-Constitution point. Article XI, § 9 requires local approval for legislation "local in form or effect." Memorial-highway acts often look local in effect (one segment, one county). The AG concluded that art. XI, § 9 does not apply because state highways are a state matter, citing Roach v. Dossett, Roach v. Haynes, and State ex rel. Cheek v. Rollings.

Finally, on enforcement: § 54-1-134(a) gives the state a civil action when "any state highway structure" is damaged, and makes it a criminal offense for an unauthorized person to remove one. "State highway structure" includes signs and markers. The state, or the sponsoring entity that funded the sign, can pursue injunctive relief or damages.

What this means for you

City councils and county commissions thinking about removing memorial signs

Don't pass an ordinance directing removal of state-mandated signage on a state highway. The AG opinion says the ordinance would be invalid, and removing the signs would expose the city or county to a state lawsuit and possible criminal charges against whoever physically removes the structure (§ 54-1-134(a)).

If you object to a memorial designation, the right channel is the General Assembly: pass a resolution asking the legislature to repeal or modify the designation, or work with your local delegation to introduce repealing legislation.

City attorneys and county attorneys

Two clean rules:

• Road-naming authority within your jurisdiction is delegated to you under § 7-86-127, but it's a default that gives way when the legislature acts under § 3-2-112.
• State highways are state property. Local governments retain police powers over traffic on state highways routed through their jurisdictions (Collier v. Baker), but not authority to alter, remove, or override state-mandated signage on state highway right-of-way.

If a constituent or council member proposes removing a state memorial sign, advise that the proper path is a legislative request, not a unilateral ordinance.

TDOT officials

The opinion confirms your authority over signage on state highway right-of-way. If a local government attempts to remove a state-mandated memorial sign without authorization, you have an enforcement track through § 54-1-134(a). Coordinate with the AG's office for civil-action filings and with the local district attorney for criminal charges.

State legislators

This is your zone. § 3-2-112 expressly preserves your authority to name and rename state highways and bridges. The mechanism is a bill or joint resolution. Memorial-highway designations are honorary; they don't change addresses, assignment systems, or operational designations. The legislature can also expressly delegate naming authority to local governments by general law, and can revoke that delegation.

Civic memorial groups (veterans organizations, family memorials, public-figure honorings)

Once you secure a memorial designation through the legislature, the sign is protected by state law. If a local government later attempts to remove it, you may have standing to sue for injunctive relief under § 54-1-134(a) if you funded the signage. Document your funding contributions clearly and stay involved in the maintenance discussion if signs are damaged or vandalized.

Citizens following memorial-highway disputes

This opinion answers a question that comes up in Tennessee periodically: a community objects to who a highway is named after (sometimes for political or historical reasons) and tries to act through their city council. The legal answer is the council can't remove the sign on its own. The way to change a state-named highway is through the General Assembly.

Common questions

Q: Can a city rename a state highway running through its boundaries?

Generally no, if the legislature has named or renamed it. § 3-2-112 controls, and § 7-86-127 expressly defers when the legislature has acted. A city can name local streets it controls, but state highways are state property.

Q: Can a county refuse to maintain or repair a state-named highway?

Maintenance of state highways is TDOT's responsibility under §§ 54-5-201 to -205, not the city's or county's. Local governments don't generally maintain state highways unless they've contracted with the state to do so.

Q: What if the highway is a state highway running on a city street that the city built?

When a state highway uses a city street, TDOT and the city share certain responsibilities (§§ 54-5-201, -205), but the state retains plenary authority over the highway system. The city can't unilaterally remove state-mandated signage even on streets it owns and maintains, when the state has designated the route as part of the state system.

Q: Does this apply to sign removal by private citizens?

Yes. § 54-1-134(a) makes it a criminal offense for any unauthorized person to remove a state highway structure, which includes signs and markers. Civil damages are also available.

Q: Can a local government request that the state remove a memorial sign?

Yes. A request to the legislature or to TDOT is a proper channel. The state can voluntarily relocate or remove signage, but the local government cannot compel that result through ordinance.

Q: What about Tennessee Constitution Article XI, § 9?

Art. XI, § 9 requires local approval for legislation "local in form or effect." The AG concluded it doesn't apply to memorial-highway designations because state highways are a state matter. City of Knoxville ex rel. Roach v. Dossett, Roach v. Haynes, and State ex rel. Cheek v. Rollings support this state-matter exception.

Q: Who can sue if a city removes a state memorial sign?

The state of Tennessee can sue under § 54-1-134(a). The opinion also notes that the sponsoring entity or individuals who funded the signage may have standing for injunctive relief or to recover the cost of restoration. Standing analysis depends on the specific funding arrangements.

Background and statutory framework

§ 3-2-112 (legislature retains naming authority). Authorizes the General Assembly to "take formal action to give a name to or rename any road, highway, interstate highway, bridge, overpass or other public structure, facility or property" through legislation or joint resolution. The opinion treats this as the controlling provision when the legislature acts.

§ 7-86-127(a) (delegation to local governments). Default delegation: counties name roads in unincorporated areas, municipalities name them in incorporated boundaries. The delegation is conditional ("unless expressly provided otherwise by law"), and § 3-2-112 is one such "express provision otherwise."

§ 54-5-101 (state highway system). Authorizes TDOT to designate the state highway system. State routes have numerical designations and are state property.

§§ 54-5-201 to -205 (state-municipal maintenance). TDOT has "sole jurisdiction" over selecting municipal streets that carry state highway traffic, and it must maintain them, contract for maintenance, or allow the municipality to perform maintenance with state reimbursement.

§ 54-1-134(a) (signage protection). Authorizes a civil action in the state's name when a state highway structure is damaged knowingly or negligently, and creates a criminal offense for unauthorized removal of a state highway structure. § 54-1-134(a)(1) includes "sign[s] or marker[s] of any nature whatsoever erected upon or maintained within or adjacent to a state highway or the state highway right-of-way."

Tennessee Constitution Article XI, § 9. Requires local approval for legislation "local in form or effect." The AG's view is this doesn't apply to highway memorial designations because state highways are a state matter.

The state-control precedent. Marshall v. State (1943), Johnson Freight Lines (1939), BellSouth (Tenn. Ct. App. 2004), and Lewis v. Nashville Gas & Heating Co. (1931) consistently treat the General Assembly's authority over highways as plenary, with delegations to local governments revocable by general law. Metropolitan Government v. BellSouth (M.D. Tenn. 2007) reaffirmed the same in a contemporary context.

Citations

• Tenn. Const. art. XI, § 9 (local-form-or-effect requirement, not applicable to state matters)
• Tenn. Code Ann. § 3-2-112 (legislature's retained authority to name/rename roads, highways, bridges)
• Tenn. Code Ann. § 7-86-127(a) (default local road-naming authority)
• Tenn. Code Ann. § 54-1-126(a) (TDOT duty to maintain state highways)
• Tenn. Code Ann. § 54-1-134(a) (civil and criminal protection of state highway structures)
• Tenn. Code Ann. § 54-1-134(a)(1) (definition of state highway structure)
• Tenn. Code Ann. § 54-5-101 (TDOT designates state highway system)
• Tenn. Code Ann. §§ 54-5-201 to -205 (state-municipal highway relationships)
• Tenn. Code Ann. §§ 65-21-101 et seq. (utilities right-of-way; cited as analogous state preemption)
• Marshall v. State, 180 Tenn. 9 (1943) (full state authority over highways)
• Johnson Freight Lines v. Davis, 174 Tenn. 51 (1939) (state lays out and regulates highways)
• BellSouth Telecomms., Inc. v. City of Memphis, 160 S.W.3d 901 (Tenn. Ct. App. 2004) (delegation revocable)
• Metropolitan Gov't v. BellSouth Telecomms., Inc., 502 F. Supp. 2d 747 (M.D. Tenn. 2007) (state preemption)
• Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268 (1931) (state can authorize street use without city permission)
• City of Knoxville ex rel. Roach v. Dossett, 672 S.W.2d 193 (Tenn. 1984) (art. XI, § 9 inapplicable to state matters)
• Roach v. Jones v. Haynes, 221 Tenn. 50 (1968) (state-matter exception)
• State ex rel. Cheek v. Rollings, 202 Tenn. 608 (1957) (state-matter exception)
• Collier v. Baker, 160 Tenn. 571 (1930) (municipalities retain police power over traffic on routed state highways)
• Tenn. Att'y Gen. Op. 06-054 (Mar. 28, 2006) (prior local-naming opinion)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2022/op22-11.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 12, 2022
Opinion No. 22-11
Scope of Authority of Local Governments to Name State Highways
Question 1
Does a local government have the sole authority to name a state highway or bridge?
Opinion 1
No. Local governments do not have the sole authority to name state highways and bridges.
The General Assembly's power to name state highways and bridges supersedes the authority of
local governments to name state highways and bridges.
Question 2
When the General Assembly passes legislation that designates a segment of a state highway
as a memorial highway in honor of a specified individual and directs the Tennessee Department
of Transportation to erect signs designating that segment as a memorial highway, does a local
government in which that segment of the state highway is situated have authority to override the
state legislation by passing local legislation directing the removal of the signage from the right-of-
way adjacent to the state highway?
Opinion 2
No.
Question 3
If the answer to Question 2 is "no," may the State and/or the sponsoring entity or
individuals that funded the signage enforce the state legislation?
Opinion 3
The ability of the State and/or the sponsoring entity or individuals that funded the signage
to enforce the state legislation would depend on the particular facts and circumstances involved in
any given situation.
ANALYSIS
The General Assembly has "full authority over the highways of the State." Marshall v.
State, 180 Tenn. 9, 13, 171 S.W.2d 269, 270 (1943); Johnson Freight Lines v. Davis, 174 Tenn.
51, 56, 123 S.W.2d 820, 821 (1939). It has the power to "lay out the[] routes and regulate the[]
use" of the highways of the State and it may delegate that power to subordinate state agencies, id.,
and to local governments by proper legislative authority, BellSouth Telecomms., Inc. v. City of
Memphis, 160 S.W.3d 901, 912 (Tenn. Ct. App. 2004) (citations omitted).
Consistent with this authority, the General Assembly has vested the Tennessee Department
of Transportation with the responsibility of designating a "system of state highways" and
determining which roads are to be constructed, repaired, and maintained with state highway funds.
Tenn. Code Ann. § 54-5-101. Highways on the state system are commonly referred to as 'state
routes' or 'state highways' and have numerical designations assigned to them.
1. Local governments, though, have authority to name state highways. See Tenn. Att'y Gen.
Op. 06-054 (Mar. 28, 2006). In 1994, the General Assembly "delegated the authority to name
public and private roads and streets to the legislative bodies of counties for unincorporated areas
and to municipalities within their incorporated boundaries unless expressly provided otherwise by
law." Id. (citing Tenn. Code Ann. § 7-86-127) (emphasis original).
One such law "expressly provid[ing] otherwise," as Opinion 06-054 notes, is Tenn. Code
Ann. § 3-2-112, which allows the General Assembly to "take formal action to give a name to or
rename any road, highway, interstate highway, bridge, overpass or other public structure, facility
or property" provided that the General Assembly takes such action through enactment of
legislation or adoption of a joint resolution.
Accordingly, local governments do not have sole authority to name state highways. The
General Assembly, in conformance with Tenn. Code Ann. § 3-2-112, has the power to name state
highways and when the General Assembly chooses to exercise this power, its action is controlling.
2. Moreover, local governments may not override state legislation that designates a segment
of a state highway as a memorial highway in honor of a specified individual.
Because legislation passed by the General Assembly naming a specified stretch of a state
route in memory of a local citizen is different from legislation that names or renames an entire
highway, whether a local government may override this type of "honorary" naming by the State
warrants a different analysis, but the outcome is the same. This kind of state legislation, which
directs the department of transportation to erect signage or markers to identify the named portion
of the highway, is for honorary purposes only and does not name or rename the highway or
necessitate any change in addresses. Such legislation does not displace local governments'
authority to "name" roads under Tenn. Code Ann. § 7-86-127, and therefore Tenn. Code Ann. § 3-
2-112 does not apply if the legislation does not give a name to or rename the highway, but merely
bestows a name for honorary purposes only and does not require the alteration of any address, or
of the governmental system for assigning addresses in any local governmental entity.
As previously explained, the control of streets and highways in Tennessee primarily rests
with the General Assembly. Marshall, 180 Tenn. at 13, 171 S.W.2d at 270; BellSouth Telecomms.,
160 S.W.3d at 912. While that control may be delegated to local governments by proper legislative
authority, the General Assembly retains the power to restrict a local government's delegated
authority through the enactment of general laws. See Metropolitan Gov't of Nashville and
Davidson Cnty. v. BellSouth Telecomms., Inc., 502 F. Supp. 2d 747, 752-53 (M.D. Tenn. 2007).
Therefore, the General Assembly "has the power to enact laws that authorize the use of city streets
and rights-of-way 'without permission from the city.'" Metropolitan Gov't, 502 F. Supp. 2d at 752
(quoting Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 276, 40 S.W.2d 409, 411 (1931)).
Accordingly, when the General Assembly passes legislation that designates a segment of a
state highway as a memorial highway in honor of a specified individual and directs the Tennessee
Department of Transportation to erect signs designating that segment as a memorial highway, a
local government in which the segment of the state highway is situated does not have authority to
override the state legislation by passing local legislation directing the removal of the signage from
the right-of-way adjacent to the state highway. Such local legislation would contravene state law;
local governmental enactments are constrained by state law and must harmonize and be consistent
with it.
The kind of state legislation that names a specific segment of a state highway in honor of someone is arguably not a
"general law," as was the case in the references cited above, but rather one that is "local in form or effect" since such
legislation typically designates a segment of a state highway as a memorial highway in a single county or city. But
article XI, section 9 of the Tennessee Constitution, which requires local approval before legislation that is "local in
form or effect" can become law, does not appear to be implicated because it is well established that this constitutional
provision has no application when the subject of the legislation is a state matter. See City of Knoxville ex rel. Roach
v. Dossett, 672 S.W.2d 193, 195-96 (Tenn. 1984); Roach v. Jones v. Haynes, 221 Tenn. 50, 52-54, 424 S.W.2d 197,
198 (1968); State ex rel. Cheek v. Rollings, 202 Tenn. 608, 618-19, 308 S.W.2d 393, 397-98 (1957). And this is a
state matter because the State, through the Department of Transportation, has exclusive power to designate a system
of state highways, see Tenn. Code Ann. § 54-5-101, and has a duty to maintain such roads, see Tenn. Code Ann. § 54-
1-126(a).
3. The State and/or the sponsoring entity or individuals that funded the signage for a memorial
stretch of state highway could potentially enforce the state legislation depending on the particular
facts and circumstances in any given situation. Suit might be brought for injunctive relief to
prevent removal of the signage or to restore signage that has been removed. A suit for property
damage may be another potential enforcement mechanism. Tennessee Code Annotated § 54-1-
134(a) provides for a civil action in the name of the State when any state highway structure is
damaged knowingly or negligently and also makes it a criminal offense "for any person who is not
authorized to construct or repair a state highway structure to knowingly … remove any state
highway structure."
JONATHAN SKRMETTI
Attorney General and Reporter
ANDRÉE SOPHIA BLUMSTEIN
Solicitor General
LAURA T. KIDWELL
Assistant Solicitor General
Requested by:
The Honorable Mark Pody
State Senator
425 Rep. John Lewis Way N.
Cordell Hull Building, Suite 754
Nashville, Tennessee 37243
The Honorable Kelly T. Keisling
State Representative
425 Rep. John Lewis Way N.
Cordell Hull Building, Suite 150
Nashville, Tennessee 37243