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). 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 City of Knoxville ex rel. Roach v. Dossett 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. Whether the state or a sign sponsor can enforce the designation depends on the facts. The opinion identifies possible suits for injunctive relief or property damage.

What this means for you

City councils and county commissions thinking about removing memorial signs

The opinion holds that a local government cannot override state memorial-highway legislation by passing local legislation directing removal of the signage; such local legislation "would contravene state law." It notes § 54-1-134(a) provides a civil action in the state's name when a state highway structure is damaged, and makes unauthorized removal of a state highway structure a criminal offense.

City attorneys and county attorneys

The opinion holds two things. Road-naming authority is delegated to local governments under § 7-86-127 "unless expressly provided otherwise by law," and § 3-2-112 is such an express provision, so the legislature's naming action controls when it acts. Separately, state highways are a state matter under TDOT's jurisdiction (§ 54-5-101), and the opinion holds a local government cannot override state-mandated signage on state highway right-of-way.

TDOT officials

The opinion treats signage on state highway right-of-way as a state matter and identifies § 54-1-134(a) as the enforcement provision: a civil action in the state's name for damage to a state highway structure, and a criminal offense for unauthorized removal.

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)

On enforcement by a sponsoring entity or the individuals who funded the signage, the opinion expressly declined to give a categorical answer, holding that the ability to enforce the legislation "would depend on the particular facts and circumstances involved in any given situation." It identifies injunctive relief or a property-damage suit as possible mechanisms, without resolving who could bring them. Tenn. Code Ann. § 54-1-134(a) provides a civil action in the state’s name for damage to a state highway structure.

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: Does this apply to sign removal by private citizens?

Yes. § 54-1-134(a) makes it a criminal offense for an unauthorized person to knowingly remove a state highway structure, which includes signs and markers. The provision also allows a civil action in the state's name for knowing or negligent damage.

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 and State ex rel. Cheek v. Rollings support this state-matter exception.

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

Tenn. Code Ann. § 54-1-134(a) provides a civil action in the state’s name for damage to a state highway structure. The opinion says the state, a sponsor, or individuals who funded the signage could potentially enforce the legislation depending on the facts, and identifies injunctive relief and property damage as possible claims.

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.

§ 54-1-134(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 Gov’t of Nashville and Davidson Cnty. v. BellSouth Telecomms., Inc. (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)
• 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 of Nashville and Davidson Cnty. 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)
• State ex rel. Cheek v. Rollings, 202 Tenn. 608 (1957) (state-matter exception)
• 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