City of Cleveland v. Bradley County . ( 1999 )


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  •                                              I N    T H E C O U R T O F A P P E A L S
    A T K N O X V I L L E
    FILED
    APRIL 16, 1999
    Cecil Crowson, Jr.
    Appellate Court
    Clerk
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    W I L L I A M     P .     B I D D L E ,   I I I ,   O F       C L E V E L A N D           F O R     A P P E L L A N T
    J A M E S S .       W E B B     O F   C L E V E L A N D       a n d       B R I A N       L .     K U H N     O F    M E M P H I S     F O R
    A P P E L L E E
    O     P     I     N   I     O     N
    Goddard, P.J.
    This is a declaratory judgment action initiated by the
    City of Cleveland to determine whether the agreements it had with
    Bradley County concerning the division of one-half of the Local
    Option Revenue Tax were terminable.                                                       The City also sought its
    share of various Capital Outlay Notes issued by Bradley County
    for educational purposes.
    I.          FACTS
    The 1963 Local Option Revenue Act1 authorized a county
    to levy a local sales tax on all retail sales within the county.
    Bradley County levied a local sales tax of 2.25%.                                  This tax has
    been collected by the State of Tennessee, for distribution to
    Bradley County and the City by the Commissioner of Revenue for
    the State of Tennessee since 1967.
    T.C.A. 67-6-712 provides for one-half of the proceeds
    to be distributed in the same manner as the county property tax
    for school purposes.                             The second one-half is to be distributed
    according to where the tax was collected, either inside the City
    limits or outside in Bradley County.                                  T.C.A. 67-6-712(a)(2)(C)
    authorizes a county and city to enter into a contract to provide
    for other distribution of the second one-half of the tax
    collections.
    On March 7, 1967, the Board of Mayor and Commissioners
    of the City held a special called meeting dealing solely with the
    issue of whether to enter into an agreement whereby the second
    one-half of the collected tax receipts would be distributed in
    the same manner as the county property tax for school purposes.
    At that time most of the collected tax receipts would be
    collected outside the City limits.                                  The Notice and Waiver of Call
    Meeting was signed by all the Commissioners and the Mayor.                                  The
    resolution was unanimously adopted and was signed by the Mayor.
    On May 10, 1967, Bradley County and the City entered
    into a Contract for the distribution of the other one-half of the
    local sales tax receipts.                                  The contract in pertinent part
    provides for distribution as follows:
    1
    T . C . A .    6 7 - 6 - 7 0 1 ,   e t   s e q .
    2
    1. One-half of the net proceeds from the local sales
    tax received by Bradley County from the State of
    Tennessee shall be used exclusively for school purposes
    and shall be appropriated to Bradley County and the
    City of Cleveland for school operational purposes as
    provided in T.C.A. 67-3052(1).
    2. The remaining one-half of the net proceeds from the
    local sales tax received by Bradley County from the
    Department of Revenue of the State of Tennessee, being
    that portion distributable according to Section 67-
    3052(2) of Tennessee Code Annotated, shall be
    distributed between Bradley County and the City of
    Cleveland by reversing the percentages in Paragraph 1
    herein and distributing the same to the City of
    Cleveland and Bradley County in accordance with the
    reverse percentages of Paragraph 1.
    3. This formula for the distribution of the second
    one-half of the net proceeds from the local sales tax
    shall be used to distribute the same until such time as
    the average daily attendance of children in the two
    school systems shall reach 50% percent for each system
    at and from which time the second one-half of said
    proceeds shall be distributed by each system, taking
    the same per cent as it received in distribution of the
    first one-half of said proceeds.
    An amendment to the Contract was authorized by a
    resolution of the Board of Mayor and Commissioners of the City,
    at a regular meeting held on January 10, 1972.   On February 21,
    1972, the parties entered into an Amendment to the Contract,
    agreeing that the funds from an additional sales tax to be levied
    in Bradley County would continue to be divided in accordance with
    3
    the original Contract.                                                                         It was signed by the Mayor. The City’s
    Charter2 was silent as to the power to contract.
    Bradley County entered into a Contract for
    Administration of the Bradley County Local Sales and Use Tax with
    the Department of Revenue of the State of Tennessee.                                                                                                                                                                    The
    Contract was effective as of June 1, 1967,3 and provided for its
    termination in paragraph 7.4
    2
    T h e                C i      t y      ’ s C h a r t e r , w h i c h                        w a s    i n           e f f e c t             d u r i n g              t h e        r e l e v a n t                t i m e
    p e r i o d ,      p r           o    v i      d e      d a s f o l l o w s :
    A    r t i           c    l e         4
    L    e g i           s    l a      t i     v e b o d y t o b e B o a r d o                              f M a y o r a n d c o m m i s s i o n e r s
    T    h e             l    e g      i s     l a t i v e p o w e r o f T h e C                            i t y o f C l e v e l a n d s h a l l b e e x e r c i s e d
    b    y t             h    e        B o     a r d o f M a y o r a n d c o m m                            i s s i o n e r s e l e c t e d u n d e r t h e
    p    r o v           i    s i      o n     s o f t h e c h a r t e r o f s                              a i d C i t y .
    *      *             *
    A    r t i           c    l   e        1   8
    G    e n e           r    a   l        O   r d     i n a n c e P o w e         r
    T    h e             B    o   a    r   d     o     f M a y o r a n d               C   o m m i s s i o n           e   r s s h a           l   l     h a      v   e s      u    c   h p o w e r a n d
    a    u t h           o    r   i    t   y     t     o p a s s a l l             b   y   l a w s a n d               o   r d i n a n         c   e   s n        e   c e s    s    a   r y t o e n f o r c e
    t    h e             p    o   w    e   r   s       h e r e i n g r a n         t   e   d a s i s n                 o   t i n c o           n   s   i s t      e   n t      w    i   t h t h e
    C    o n s           t    i   t    u   t   i o     n a n d l a w s             o   f     t h e U n i t             e   d S t a t           e   s   , t        h   e S      t    a   t e o f
    T    e n n           e    s   s    e   e   ,       o r t h e p r o v           i   s   i o n s o f t               h   i s c h a           p   t   e r .
    A    r       t i c l          e        1   9
    P    a       s s a g          e        o   f       O r d i n a n c e s a n d R e s o l u t i o n s
    T    h       e s t            y    l   e       o   r i n t r o d u c t o r y c l a u s e o f a l l o r d i n a n c e s s h a l l b e : “ B e
    i    t         o r d          a    i   n e     d     b y t h e B o a r d o f M a y o r a n d C o m m i s s i o n e r s o f T h e C i t y o f
    C    l       e v e l          a    n   d .     ”
    E    v       e r y            o    r   d i     n   a n c e a n d r        e s o l u t i o n u p o n f i                            n   a   l p         a   s s a g e s              h a l l     b   e       s   i   g n e d
    i    n         o p e          n        m e     e   t i n g b y t h        e M a y o r o r M a y o r                                p   r   o t         e   m a n d a                t l e a     s   t       o   n   e
    o    t       h e r            C    o   m m     i   s s i o n e r , a      n d i t s h a l l t h e r e                              u   p   o n         b   e d e l i v              e r e d     t   o       t   h   e
    C    i       t y C            l    e   r k     ,     w h o s e d u t      y i t s h a l l b e t o                                  c   o   p y         i   t i n a                  b o o k     t   o       b   e     k e p t
    f    o       r t h            a    t     p     u   r p o s e , t o g      e t h e r w i t h t h e s i                              g   n   a t u       r   e o f t h                e M a y     o   r       a   n   d
    c    o       m m i s          s    i   o n     e   r s . . . .
    3
    I t              w a s             e x e c u t e d           b y   t h e           p a r t i e s         o n         J u n e           1 3 ,           1 9 6 7 .
    4
    7      .           C A N C E L L A T I O N O F C O N T R A C T . I t i s u n d e r s t o o d a n d                                                                                      a g r e e d t h a t t h i s
    c o n t r a c t              m a y b e c a n c e l e d u p o n t h e o c c u r r e n c e o f a n y o n e o f                                                                                           t h e f o l l o w i n g
    e v e n t s :
    a .         T h          e        D e     p    a r     t   m e   n t o r        C o u n    t y        m a    y   g i v     e t        h e      o t h       e   r     p    a r   t    y s i        x     m o n   t h ’ s            n o t i c e
    t h          a   t      i     t      n     o     l   o n g e r      d e s i    r e s        t    h e a g       r e e      m e n    t t         o       b e      e   f    f e c t      i   v e .
    b .         T h          e        D e     p    a r     t   m e   n t s h      a l l h      a v e        t    h e r i       g h t        t o      c a       n   c   e l      t   h    i s a        g   r e e m   e   n   t     i    m   m e   d i   a t e l y
    u p          o   n      a     n    y       b   r e   a c h b      y t h e        C o      u n    t y o f         a n      y p      r o v       i   s   i o    n     o    f t h        i   s a g     r   e   e   m e    n   t ,     o   r o f
    a n          y        p r     o    v i     s   i o   n   c o n    t a i n e    d i        n      t h e s       t a t      u t e    , r         e   s   o l    u t   i    o n o        f     a d o   p   t   i   o n    ,     r   u l   e s
    a n          d        r e     g    u l     a   t i   o n s p      e r t a i    n i n      g      t h e r e     t o ,        o r      t h       e       t e    r m   s      o f        t   h i s     a   g   r   e e    m   e n   t .       I n
    t h          e        e v     e    n t         o f     s u c h      c a n c    e l l      a t    i o n b       y t        h e      D e p       a   r   t m    e n   t    , t h        e     D e p   a   r   t   m e    n   t ’   s
    o b          l   i    g a     t    i o     n     s   h a l l      e x t e n    d o        n l    y   t o       m a k      e c      o l l       e   c   t i    o n        o f t        h   e l o     c   a   l     t    a   x     f o   r   t h e
    r e          m   a    i n     d    e r         o f     t h e      c u r r e    n t        m o    n t h ,       a n d        m a    k e         t   o     t    h e        c o u n      t   y a       p   r   o   p e    r
    d i          s   t    r i     b    u t     i   o n     w i t h      r e s p    e c t        t    o   s u c     h c        o l l    e c t       i   o   n .
    c .         T h          e        r e     s    o l     u   t i   o n i m      p o s i n    g t        h e      l o c a     l s        a l e    s o         r       u s    e     t a x           s h a l l       b e         r e p e a l e d ,            a s
    p r          o   v    i d     e    d       f   o r     i n S      e c t i o    n 6        7 -    3 0 5 5 ,       T .      C . A    .
    4
    The City filed suit against Bradley County contending
    that if the proceeds had been distributed in accordance with
    T.C.A.   67-6-712(a)(2)(B), rather than according to the Contract
    and the Amendment, the City claims that it would have received
    from the sales tax collections the following additional amounts:
    FISCAL YEAR    ADDITIONAL REVENUES
    1992-1993           $    668,518
    1993-1994                 798,007
    1994-1995                 992,430
    1995-1996                 967,693
    TOTAL         $    3,417,646
    The City sought to have the trial court determine that
    the Contract was ultra vires or as an alternative that the
    Contract did not contain a termination clause and consequently it
    was a Contract in perpetuity and therefore against public policy.
    If the trial court so found, then the City would be able to
    terminate the Contract, which was it ultimate goal so that more
    monies would flow into its coffers under the statutory division
    of the second one-half of the tax proceeds.
    B.   THE CAPITAL OUTLAY NOTES
    Beginning in 1989, Bradley County issued Capital Outlay
    Notes for educational purposes pursuant to T.C.A. 9-21-101, et
    seq. the Local Government Public Obligations Law. Each of the
    Notes were issued pursuant to resolutions of Bradley County
    Commission. In each resolution, Bradley County “pledged its
    taxing power as to all taxable property in Bradley County,
    5
    Tennessee for the purpose of providing funds for the payment of
    the principal and interest on the notes.”
    DATE                 PURPOSE              AMOUNT
    2/20/89    Valley View School Project $      262,000
    9/18/89    Various School Projects           500,000
    1/25/91    School Capital Projects           750,000
    9/01/92    School Buses                      102,000
    2/26/93    School Capital Projects           775,000
    6/29/93    School Capital Projects         3,500,000
    12/05/94   School Capital projects           600,000
    TOTAL                         $ 6,489,000
    Bradley County repaid the Notes from tax revenues
    collected on all property in Bradley County, including property
    inside the corporate limits of the City.     None of the proceeds of
    the Notes was designated by Bradley County for the use of the
    schools operated by the City.
    T.C.A. 49-3-1001, et seq., grants counties the
    authority to issue bonds for educational purposes.     From the
    proceeds of any borrowing for school purposes, T.C.A. 49-3-
    1001(b)(1) requires the trustee of Bradley County to pay over to
    the City the amount of funds in the same ratio as the average
    daily attendance between the City’s school system and the Bradley
    County School System.      During the years in which the Notes were
    issued by Bradley County, the applicable average daily attendance
    of students in the City‘s School System as a percentage of the
    total enrollment of students in Bradley County was as follows:
    6
    ADA PERCENTAGE
    YEAR    CITY   COUNTY
    1986-87 32.48% 67.52%
    1987-88 31.81% 68.19%
    1988-89 32.27% 67.73%
    1989-90 32.34% 67.66%
    1990-91 32.33% 67.67%
    1991-92 32.90% 67.10%
    1992-93 32.99% 67.01%
    1993-94 33.62% 66.38%
    1994-95 33.61% 66.39%
    1995-96 33.98% 66.02%
    The City contended that it was entitled to $2,128.995,
    which is its share of the funds based on the ADA in its schools.
    YEAR     GROSS AMOUNT       ADA PERCENTAGE        CITY’S SHARE
    CITY      COUNTY
    1987-88    $    262,000      31.81%      68.19%         $ 83,342
    1988-89         500,000      32.27%     67.73%           161,350
    1989-90         750,000      32.34%     67.66%           242,550
    1990-91         102,000      32.33%     67.67%            33,558
    1991-92        4,275,000     32.90%     67.10%         1,406,475
    1992-93          600,000     32.99%     67.01%           201,720
    TOTALS    $ 6,489,000                               $ 2,128,995
    II.   HOLDING OF THE TRIAL COURT
    Both parties filed motions for summary judgments based
    upon the facts stated above and their respective theories.
    Chancellor Earl H. Henley, sitting by interchange, found in
    regard to the declaratory judgment portion of the complaint that
    Bradley County’s motion for summary judgment should be granted.
    The trial court found that the Contract was not ultra vires.
    Moreover, Chancellor Henley declared that the Contract was not a
    7
    Contract in perpetuity and that paragraph 3 of the Contract dated
    May 10, 1967, set a specific time or event that triggered
    termination of the Contract and the 1972 Amendment.   Accordingly,
    the Contract was not terminable by the City and should remain in
    full force and effect according to the Contract’s terms.
    As to the money judgment portion of the complaint,
    Chancellor Henley found that the City’s motion for summary
    judgment should be granted.   He entered a judgment in favor of
    the City against Bradley County in the amount of $2,128,995.
    This amount was the City’s pro rata share of the aggregate amount
    of Notes issued by Bradley County for educational purposes.
    The City appealed the portion of the judgment granting
    Bradley County’s motion for summary judgment concerning the
    Contract and the Amendment.   Bradley County appealed the portion
    of the final judgment denying Bradley County’s motion to dismiss
    and granting the City’s motion for summary judgment on the money
    judgment portion of the Complaint.
    III.       ISSUES
    Each party presents one main issue with many sub-issues
    for our consideration.
    The City primarily contends that the trial judge was in
    error in holding that the Contract and its subsequent Amendment
    concerning the disposition of a portion of the Local Option Sales
    Tax contained a specific time or event that triggered termination
    of the Contract; therefore, the Contract was not in perpetuity
    and terminable by the City.
    8
    Bradley County, however, claims that the Chancellor
    Henley was in error in his granting the City’s Motion for Summary
    Judgment as to the money judgment portion of the Complaint and in
    entering a judgment awarding the City its pro rata share
    ($2,128,995) of the aggregate amount of the Notes issued by
    Bradley County for educational purposes.
    IV.   LAW AND DISCUSSION
    Both of the awards by the Chancellor in this matter
    were based on motions for summary judgment. Since a motion for
    summary judgment involves only a question of law, no presumption
    of correctness attaches to the Chancellor’s decision. Our
    standard of review of a trial court's grant of summary judgment
    is well-settled:
    Tenn.R.Civ.P. 56.03 provides that summary judgment is
    only appropriate where: (1) there is no genuine issue
    with regard to the material facts relevant to the claim
    or defense contained in the motion, Byrd v. Hall, 
    847 S.W.2d 208
    , 210 (Tenn. 1993); and (2) the moving party
    is entitled to a judgment as a matter of law on the
    undisputed facts. Anderson v. Standard Register Co.,
    
    857 S.W.2d 555
    , 559 (Tenn. 1993). The moving party has
    the burden of proving that its motion satisfies these
    requirements. Downen v. Allstate Ins. Co., 
    811 S.W.2d 523
    , 524 (Tenn. 1991). When the party seeking summary
    judgment makes a properly supported motion, the burden
    shifts to the nonmoving party to set forth specific
    facts establishing the existence of disputed, material
    facts which must be resolved by the trier of fact.
    
    Byrd, 847 S.W.2d at 215
    .
    Nelson v. Martin, 
    958 S.W.2d 643
    , 646-647 (Tenn.1997).
    We shall view the record in this matter in the light of
    those requirements.
    9
    A.           The Contract and Amendment were Ultra Vires.
    The first sub-issue proffered by the City is that the
    Contract and Amendment are ultra vires because they were
    authorized by Resolution and not Ordinance as required by the
    City’s Charter and were not adopted in accordance with the
    provisions of the Charter.
    McQuillin Mun. Corp. § 15.01, Definitions (3rd Ed.)
    p.54, defines the term “ordinance” as designating “a local law of
    a municipal corporation, duly enacted by the proper authorities,
    prescribing general, uniform, and permanent rules of conduct,
    relating to the corporate affairs of the municipality...The
    passage of an ordinance is, of course, a legislative act, a
    legislative function, and equivalent to legislative action.”                                                                                              An
    ordinance prescribes some permanent rule of conduct or
    government, to continue in force until the ordinance is
    repealed.5
    A resolution can be any type of non-legislative action
    and in effect encompasses all actions of the municipal body other
    than ordinances. It deals with matters of a special or temporary
    character and is simply an expression of opinion or mind or
    policy concerning some particular item of business coming within
    the legislative body’s official cognizance, ordinarily
    ministerial in character and relating to the administrative
    business of the municipality.6
    5
    M c Q u i l l i n    M u n .   C o r p .    §     1 5 . 0 2 ,   R e s o l u t i o n s   a n d   O r d i n a n c e s   D i s t i n g u i s h e d
    ( 3 r d   E d . )
    6
    M c Q u i l l i n    M u n . C o r p .      §       1 5 . 0 2 , R e s o l u t i o n s a n d O r d i n a n c e s D i s t i n g u i s h e d ;
    §   1 5 . 0 8 , N a t u r e ,       R e q u i s i t e s       a n d O p e r a t i o n o f M u n i c i p a l O r d i n a n c e s ( 3 r d E d . ) .
    1 0
    Resolutions need not be, in the absence of some express
    requirement, in any set or particular form.                                                                                                                                             Julian v. Mayor,
    Councilmen & Citizens of Liberty City of Liberty, 
    391 S.W.2d 864
    (Mo. 1965); McQuillin Mun. Corp. § 15.08, Nature, Requisites and
    Operation of Municipal Ordinances, (3rd Ed.). A resolution,
    particularly when used to express a ministerial act, need not
    partake of any definite form and need not be a written
    instrument.                                           Steward v. Rust, 
    221 Ark. 286
    , 
    252 S.W.2d 816
    (1952).
    "Under Tennessee law, a municipal action may be
    declared ultra vires for either of two reasons: (1)
    because the action was wholly outside the scope of the
    city's authority under its charter or a statute, or (2)
    because the action was not undertaken consistent with
    the mandatory provisions of its charter or a statute."
    City of Lebanon v. Baird, 
    756 S.W.2d 236
    , 241 (Tenn. 1988).
    We have conducted an exhaustive review of the Charter
    as it was in 1967 and 1972.7 The Charter is totally silent as to
    the method of passing a resolution and as to the power to
    contract.8
    7
    S i n c e t h e n , t h e C i t y o f C l e v e l a n d h a s a n e w f o r m o f g o v e r n m e n t a n d a
    n e w C h a r t e r .      T h e n e w C h a r t e r s p e c i f i c a l l y p r o v i d e s t h a t b e f o r e t h e C i t y o f
    C l e v e l a n d c a n c o n t r a c t i t m u s t p a s s a n o r d i n a n c e t o d o s o .
    8
    A   r t     i c      l e        1       o   f         t     h e      C h a    r t    e r         p r o      v i    d e     s       f o r t h e T o w n o f C l e v e l a n d t o b e a
    “ b o d y p o      l i     t i      c     a       n d         c   o r      p o   r a t e     ”      a n    d      g i      v e    s          t h e C i t y t h e g e n e r a l p o w e r s t o r e c e i v e ,
    h o l d a n d         d    i s      p o   s       e o         f       p    e r   s o n a     l      p r    o    p e r      t y    .
    A r    t i     c l      e     5         r e       q   u i      r e   s t h       e      m e    m    b e r      s      o f          t h e      B   o   a r d     o f     M   a   y o   r   a n   d C o m m i s   s i o   n e r s
    t o h o l d        r e     g u      l a   r         m o       n   t h      l y      m e e    t i    n g    s    .          I t       i       s s i l      e   n   t a s       t   o     a   n y     c a l   l e d m e e t   i n g   s .
    H o w e v e r ,       A    r t      i c   l       e 2         0   ,        w h   i c h       d e    a l    s      w i      t h       f       r a n c h    i   s   e o r     d i   n a   n   c e   s , s     a y s t h a t     a
    f r a n c h i s    e       o r      d i   n       a n c       e       c    a n   n o t       b e       p   a    s s e      d      e x        c e p t      o   n     t h r   e e     r   e   a d   i n g s     w i t h “ n   o t     m o r e
    t h a n o n e         r    e a      d i   n       g a         t       t    h e      s a m    e      m e    e    t i n      g ,       o       r o n        a   n   y r e     a d   i n   g     a   t a n     y b u t a       r e g   u l a r
    m e e t i n g .    ”          T     h i   s         i m       p   l i      c i   t l y       i n    d i    c    a t e      s      t h        a t t h      e   r   e m a     y     b e       c a   l l e d     o r s p e c   i a l
    m e e t i n g s    .
    A r    t i     c   l e      1         8   g       i v     e s      t o      t    h   e B       o a    r   d      o f M             a   y o   r a n d C o m m i              s s i o n e r s t h e          p o w e r      t o
    p a s s a l l         b    y   - l    a w         s   a       n d       o    r d i n    a    n   c e s       n    e   c    e s s a r           y     t   o e n f o r c e t              h e p o w e r s i n            t h e
    C h a r t e r .            T   h e    r e           i s         n     o      m e n t    i    o   n o       f      r   e    s o l u t           i   o n   s .
    A r    t i     c   l e      1         9 d         e t     a i    l s t      h    e     p a     s s    a   g    e o f               o   r d   i n a n c e s , b i            l l s , a n d b y - l a w s .     W h i l e
    i t c i t e s         “    r   e s    o l         u t i       o n     s ”      i n      i    t   s h       e a    d   i    n g , t             h   e r   e i s n o r e f                e r e n c e t o r e s o l u t i o n s i n
    t h e b o d y         o    f     t    h e           a r       t i     c l    e .
    A r    t i     c   l e      2         1 e         n u     m e    r a t e    s t h e                m i s c e l l a n e o u s p o w e r s a n d a u t h o r i t y b y
    o r d i n a n c     e      o   f      t h         e B         o a     r d      o f      M a y o r              a n d C o m m i s s i o n e r s .    T h e p o w e r t o c o n t r a c t                                                 i s
    1 1
    Moreover, 19 Tenn. Juris., Municipal Corporations, §
    70, states the following:
    In determining the extent of the power of a
    municipal corporation to make contracts, and in
    ascertaining the mode in which the power is to be
    exercised, the importance of a careful study of the
    charter or incorporating act and of the general
    legislation of the state on the subject, if there be
    any, cannot be too strongly urged. Where there are
    express provisions on the subject, these will, of
    course, measure, as far as they extend, the authority
    of the corporation. The power to make contracts, and
    to sue and be sued thereon, is usually conferred in
    general terms in the incorporating act. But where the
    power is conferred in this manner, it is not to be
    construed as authorizing the making of contracts of all
    descriptions, but only such as are necessary and usual,
    fit and proper, to enable the corporation to secure or
    to carry into effect the purposes for which it was
    created; and the extent of the power will depend upon
    the other provisions of the charter prescribing the
    matters in respect of which the corporation is
    authorized to act. To the extent necessary to execute
    the special powers and functions with which it is
    endowed by its charter, there is, indeed, an implied or
    incidental authority to contract obligations, and to
    sue and be sued in the corporate name.9
    The general rule is that where a charter commits the
    decision of a matter to the council or legislative body alone,
    and is silent as to the mode of its exercise, the decision may be
    evidenced by resolution.                                 Eichenlaub v. City of St. Joseph, 
    113 Mo. 395
    , 
    21 S.W. 8
    (1893);                                     Keenan & Wade v. City of Trenton,
    
    130 Tenn. 71
    , 
    168 S.W. 1053
    (1914).                                               The rule unquestionably is
    applicable to the performance of a ministerial act or
    administrative business of a municipality.                                                       If there is not
    general provision a charter outlining what must be done by
    ordinance, and the charter does provide that some particular
    things shall be done by ordinance, the implication is that
    n o t   m e n t i o n e d .
    9
    M a y o r o f C i t y o f     N a s h v i l l e v . S u t h e r l a n d ,   9 2 T e n n . 3 3 5 , 2 1 S . W . 6 7 4
    ( 1 8 9 3 ) ; C r o c k e r v . T o w n      o f M a n c h e s t e r , 1 7 8 T e n n .     6 7 , 1 5 6 S . W . 2 d 3 8 3 ( 1 9 4 1 ) .
    [ f o o t n o t e i n o r i g i n a l . ]
    1 2
    matters which are not specifically required to be dealt with by
    ordinance may be dealt with otherwise.10
    Under the facts of this case, the municipal action was
    not outside the scope of the City’s authority because T.C.A. 67-
    6-712(a)(2)(C) provides that a county and city may contract to
    provide for other distributions of the one-half of the proceeds,
    which is not allocated to school purposes.                                                          Since the Charter was
    silent as to the contracting power of the City, but was specific
    in other instances, we deduce that the City’s mayor had the
    authority to enter into the Contract with Bradley County, since
    it was for a system of free schools and at that time was in the
    City’s best interest.                               19 Tenn. Juris., Municipal Corporations,
    § 89 (1985).                   We find no merit in the City of Cleveland’s
    assertion that the Contract is ultra vires.
    Secondly, the City argues that if the Contract is found
    not to be ultra vires then the term of the Contract is in
    perpetuity for there is no termination clause in the Contract.
    Bradley County takes the position that even if the Contact
    between the City and Bradley County contains no termination
    provision, then the contract between Bradley County and the State
    does and it was incorporated into the Contract between Bradley
    County and the City.                             We do not need to address that issue,
    however, because we are in agreement with the trial court that
    paragraph 3 of the Contract contains the Contract’s termination
    provisions.                  Paragraph 3 of the Contract provides that when the
    average daily attendance of children in the two school systems
    reaches fifty percent for each system then the distribution of
    1 0
    M c Q u i l l i n M u n i c i p a l C o r p o r a t i o n s , §    1 5 . 0 6 , N a t u r e ,   R e q u i s i t e s   a n d
    O p e r a t i o n o f M u n i c i p a l O r d i n a n c e s ( 3 r d E d .        R e v i s e d ) .
    1 3
    the proceeds would revert back to the division provided in the
    Code. The Contract contains no provision for a continuation of
    the division of proceeds after the point that the ADA equals 50%.
    That is, if the ADA at the City’s schools the year after the 50-
    50 year go to 60%, the City does not receive 60% of the second
    half of the tax proceeds. There is no further provision in the
    Contract for the Contract to continue in effect in any manner.
    At this point, in order to deviate from the Code provisions, a
    new contract would have to be negotiated.    We find that the
    Chancellor was correct in his holding that paragraph 3 was the
    Contract’s termination clause.
    Thirdly, the City argues that the trial court’s
    decision is against public policy in that future city council
    members would be tied to a contract relating to government
    matters.   In support of its position the City quotes from
    Shelbyville v. State ex rel. Bedford County, 
    220 Tenn. 197
    , 
    415 S.W.2d 139
    , 145 (1967) as follows:
    Thus, where the contract involved relates to
    governmental or legislative functions of the counsel,
    or involves a matter of discretion to be exercised by
    the council unless the statute conferring power to
    contract clearly authorizes the council to make a
    contract extending beyond its own term, no power of the
    council so to do exists.
    We do not agree, however, because our Tennessee
    Legislature was the empowering authority which granted the right
    to contract one-half of the proceeds of the local tax revenues.
    The Tennessee legislature also enacted T.C.A. 7-51-903 pertaining
    to long-term contracts, which provides:
    Except as otherwise authorized or provided by law,
    municipalities are hereby authorized to enter into
    long-term contracts for such period or duration as the
    1 4
    municipality may determine for any purpose for which
    short-term contracts not extending beyond the term of
    the members of the governing body could be entered;
    provided, that the provisions of § 7-51-902 shall
    govern the periods or terms of contracts, leases, and
    lease-purchase agreements with respect to capital
    improvement property.
    Our Supreme Court in 1985 addressed this issue in
    Washington County Board of Education v. MarketAmerica, 
    693 S.W.2d 344
    (Tenn. 1985).     The City’s argument is basically the same as
    was that of the plaintiff in Washington County Board of
    Education.    Justice Drowota opined:
    After carefully considering the respective
    arguments of counsel and the relevant legal
    authorities, this Court is of the opinion that the
    contract entered into between MarketAmerica, Inc. and
    the Washington County Board of Education is valid and
    binding upon both parties. Because of the importance of
    the issues in this case to local governments, we are
    compelled to elaborate on our reasons for this
    conclusion.
    * * *
    Plaintiff's argument that Chapter 186 of the
    Public Acts of 1983 acknowledged that counties were
    without authority to enter into long-term contracts
    prior to that legislation is not supported by the
    legislative history. Senator Cohen and Representative
    Burnett, the Senate and House sponsors of the bill,
    indicated that the bill "only clarifies what cities
    could always do." One sponsor further stated that the
    legislation was intended to clarify the law in this
    area because an opinion of the Attorney General had
    suggested that counties lacked the capacity to enter
    into contracts requiring payments beyond the current
    fiscal year. The new legislation and the debate
    concerning it illustrates that the legislature never
    intended that Chapter 2 of Title 49 serve as a
    limitation upon the authority of counties to enter into
    long-term contracts.
    Washington County Board of Education, at 348-349.     We also find
    that a valid Contract exists between the City and Bradley County.
    The City having received the benefit of its bargain in the early
    years of the Contract period, is obligated to honor its Contract
    with Bradley County during the period when Bradley County is
    1 5
    receiving its benefit.     The City’s argument falls far short of
    convincing us of any merit in its position on this issue.
    Fifthly, the City argues that since Article 20 of the
    Charter limits the power of the City to grant a franchise to only
    20 years that therefore the Contract at issue here is void.    By
    its own wording, Article 20 deals specifically with franchises
    and not to the disbursement of the local tax revenues at issue
    here.   Again, we find no merit in the City’s arguments on the
    Contract interpretation portion of this matter and affirm the
    Chancellor’s decision on this issue in toto.
    B.   AFFIRMATIVE DEFENSES FOR THE MONEY DEBT
    At the outset of our discussion we will address Bradley
    County’s affirmative defenses that the City’s complaint should be
    dismissed because (1) the trial court did not have jurisdiction
    because of the City’s failure to file a petition for writ of
    certiorari, and, (2) because the City failed to make all persons
    who have or claim any interest parties of this proceeding; and,
    (3) the statute of limitations codified at T.C.A. 28-3-109
    mandates the dismissal of the declaratory judgment action and
    claims on any capital outlay notes issued before 1991.
    1.
    We will first address the issue of the City’s filing a
    declaratory judgment rather than a writ of certiorari.     In Fallin
    v. Knox County Board of Commissioners, 
    656 S.W.2d 338
    (Tenn.1983)
    the Supreme Court held that T.C.A. 27-9-101, et seq., is not
    applicable unless there is a judicial or quasi judicial
    determination by the governmental board involved. The court,
    1 6
    treating the issue before it as one for declaratory judgment,
    quoted with approval from Holdredge v. City of Cleveland, 
    218 Tenn. 239
    , 
    402 S.W.2d 709
    (1966) as follows:
    The remedy by certiorari provided in T.C.A. 27-
    901, et seq., “was intended to have application only in
    a review of an order or judgment rendered after a
    hearing before a board or commission.” Stockton v.
    Morris & Pierce, 
    172 Tenn. 197
    , 
    110 S.W.2d 480
    (1927).
    402 S.W.2d at 712
    .
    We are convinced the validity of the ordinance
    amending the zoning ordinance may be tested under our
    Declaratory Judgment Act and that certiorari is not the
    exclusive 
    remedy. 402 S.W.2d at 713-14
    .
    Fallin, at p. 341-342.
    The issues before us here are not judicial or even
    quasi judicial determinations and therefore, T.C.A. 27-9-101, et
    seq., does not apply.
    2.
    Bradley County next claims that all parties necessary
    to this suit are not before this Court.    Relying upon Huntsville
    Utility District of Scott County v. General Trust Co., 
    839 S.W. 2d
    397, 400 (Tenn.App. 1992), Bradley County then argues that the
    Complaint should have been dismissed because all necessary
    persons were not before the court.    We disagree.
    All of the capital outlay notes have been repaid by
    Bradley County, therefore, the City’s Board of Education and the
    Bradley County School Board are not necessary or proper parties.
    The trustee of Bradley County is not a party to either the
    contract or the amendment.   No party is declaring that the
    capital outlay notes were improperly issued or that the Local
    1 7
    Public Obligations Act is unconstitutional. As in any contract
    action the parties to the contract are necessary parties, and the
    parties to the contract and the amendment are before the court.
    There is no merit to this argument.
    3.
    Bradley County’s third affirmative defense pertains to
    the statute of limitations codified at T.C.A. 28-3-109.                                      It
    relies upon Ferguson v. Peoples National Bank of Lafollette, 
    800 S.W.2d 181
    , (Tenn. 1990).                                      In this matter, however,   T.C.A. 28-3-
    109 has no application to either the Complaint for declaratory
    judgment and/or the Complaint for money debt by the City. City of
    Maryville v. Blount County, filed on January 6, 1993, an
    unreported opinion of our Court, held that a municipality acts as
    an arm of the state and is exempt from the statute of limitations
    when it seeks to recover local education funding which should
    have been allocated to it pursuant to state education
    legislation.                  Bradley County’s argument on this issue also fails.
    C.      CAPITAL OUTLAY NOTES
    Bradley County denies that it should share the proceeds
    of the Capital Outlay Notes, which were issued for educational
    purposes and declares that summary judgment is inappropriate.
    Bradley County claims that the Notes were issued pursuant to the
    Local Government Public Obligations Act,11 which does not require
    a sharing of the proceeds.
    1 1
    T . C . A .   2 9 - 2 1 - 1 0 1 ,   e t   s e q .
    1 8
    Its argument is predicated upon three cases: (1) Guffee
    v. Crockett, 
    315 S.W.2d 646
    (Tenn. 1958); (2) Board of Education
    of Memphis City Schools v. Shelby County, 
    207 Tenn. 330
    , 
    339 S.W.2d 569
    (1960); and, (3) Phillips v. Anderson County,
    Tennessee, 
    698 S.W.2d 76
    (Tenn.App. 1985).
    Bradley County avers that the trial court’s reliance
    upon Guffee was misplaced in that it only dealt with an intra-
    statutory interpretation of what was T.C.A. 49-701 (now T.C.A.
    49-3-1001, et seq.) dealing with the issuance of school bonds.
    Rather, it argues that the issue before us is the inter-statutory
    interpretation between two separate statutes - the Local
    Government Public Obligation Act12 and the School Bond Act.13
    Guffee was decided in 1958 prior to the adoption of the
    Local Government Public Obligation Act in 1986.                          Moreover, Board
    of Education of Memphis City Schools and Phillips were also
    decided before the adoption of the Local Government Public
    Obligation Act.                       Therefore, the court in those cases did not take
    the School Bond Act into consideration in its determination on
    any of the cases.
    We find that there is no conflict between the Local
    Government Public Obligation Act of 1986 and the School Bond Act
    and the cases cited by the parties.
    D. THE ATTORNEY GENERAL’S OPINIONS
    1 2
    T . C . A .   9 - 2 1 - 1 0 1 ,     e t     s e q .
    1 3
    T . C . A .   4 9 - 3 - 1 0 0 1 ,     e t     s e q .
    1 9
    Lastly, Bradley County argues that the Attorney
    General’s Opinions should carry great weight with this Court and
    that we should find that Bradley County has no obligation to
    share the Notes proceeds with the City.   In Washington County
    Board of 
    Education, 693 S.W.2d at 348
    , Justice Drowota, addressed
    the issue of an opinion by the Attorney General to the effect:
    It appears that the present lawsuit was precipitated in
    part by an opinion of the Attorney General for the
    State of Tennessee that concluded that the Washington
    County Board of Education was without the necessary
    authority to enter into the contract with
    MarketAmerica. That opinion, dated February 25, 1983,
    relied solely upon this Court's decision in Brown and
    previous opinions of the Attorney General. The Attorney
    General observed that the duration of the contract and
    the provision requiring documentation that future
    boards would be bound were the principal deficiencies
    of the contract. Although opinions of the Attorney
    General are useful in advising parties as to a
    recommended course of action and to avoid litigation,
    they are not binding authority for legal conclusions,
    and courts are not required or obliged to follow them.
    On this point, we find Judge John B. Hagler’s
    Memorandum Opinion in the City of Sweetwater v. Monroe County, an
    excellent review of the Attorney General’s Opinions, and directly
    to the point in this matter.   Judge Hagler stated:
    In arguing that the pro rata standard does not apply to
    a “loan,” Monroe County relies primarily, and
    reasonably, on a series of Attorney General Opinions
    going back to 1980. In 1980, the Attorney General
    opined that the proceeds of capital outlay notes
    (issued under T.C.A. 5-10-105, et seq., repealed in
    1988) need not be prorated even though all taxable
    property in a county was subject to a tax to retire the
    notes. Op. Atty. Gen. No. 80-290 (June 10, 1980).
    Relying upon this opinion, the Attorney General in 1988
    opined that “general obligation bonds” issued pursuant
    to the “Local Government Public Obligations Act of 1986
    (T.C.A. 9-21-101, et seq.) Which superseded all earlier
    statutes dealing with bonds and notes, are not subject
    to the mandated proration of T.C.A. 49-3-1003. Op.
    Atty. Gen. No. 88-110 (June 2, 1988). Likewise,
    relying on his 1980 and 1988 opinions, the Attorney
    General opined in 1989 and 1993 that the proceeds of
    capital outlay notes also issued under the new 1986
    2 0
    statute did not have to be shared. Op. Atty. Gen. No.
    U89-19 (March 10, 1989); U03-09 (February 2, 1993).
    Although opinions of the Attorney General do not carry
    the weight of court opinions, they must be accorded
    great consideration not only because of the expertise
    that office develops in advising state and local
    governments but also because of the reliance upon these
    opinions by governmental authorities.
    Nevertheless, the Court is forced to conclude that,
    while the 1980 opinion, dealing with certain specific
    language in the then-current “capital outlay notes”
    statute, may have been correct, the subsequent opinions
    in 1988, 1989, and 1993 are incorrect.
    A short analysis of these opinions is necessary to show
    that the Attorney General failed, after the 1980
    opinion, to take account of specific language in the
    1986 statute. The Attorney General in 1980, while
    recognizing the authority previously cited here, was
    impressed by the following language in T.C.A. 5-10-
    501(s)(7), which, at that time, governed the issuance
    of capital outlay notes:
    “The provisions of clause ‘one’ of the first
    Paragraph and the provisions of the second
    paragraph of this section (which related to
    school funding) shall be in addition to and
    supplemental to all other provisions of other
    laws of the State of Tennessee, provided that
    whenever the application of these provisions
    conflicts with the application of such other
    provisions, these provisions shall prevail.”
    Emphasis added. This special language convinced the
    Attorney General that this “separate authority” for the
    issuance of capital outlay notes was not subject to the
    requirement for allotting a portion of the note
    proceeds to municipal or special school districts even
    though the taxable property within such districts were
    subject to the county’s taxing power. Op. Atty. Gen.
    No. 80-290. The Attorney General acknowledged that
    this “creates risk” of double taxation within the
    school districts but noted that double taxation itself
    is not unconstitutional where it is “plain that the
    legislature intended such result.” 
    Id. However, the
    unreported Court of Appeals’
    decision,14 which resulted when the parties to whom the
    Attorney General rendered the opinion brought an action
    for Declaratory Judgment, declined to follow the
    Attorney General’s analysis. Although finding
    proration unnecessary with respect to capital outlay
    notes, the court reached this conclusion only by
    striking down that portion of the county’s resolution
    pledging a levy on all taxable property in the county.
    The Court was of the opinion that the statute, which
    authorized the issue of capital outlay notes prohibited
    the county from levying ad valorem taxes for the
    1 4
    T h e B o a r d o f T r u s t e e s o f t h e       T r e n t o n S p e c i a l S c h o o l D i s t r i c t v . T h e
    G i b s o n C o u n t y L e g i s l a t i v e B o a r d , e t   a l . , C t . A p p . W e s t e r n S e c t i o n , D e c e m b e r   4 ,
    1 9 8 1 , T A M 7 / 5 - 1 0 .
    2 1
    payment of such notes.15 The upshot is that the court
    left undisturbed the principle that pro rata allocation
    is necessary whenever there is a pledge to levy on all
    taxable property in the county.
    Following the 1980 opinion, the Attorney General
    opined in 1988, 1989, and 1993 that the proceeds of
    general obligation bonds and capital outlay notes,
    issued under the new Local Government Public
    Obligations Act of 1986, T.C.A. 9-21-101 et seq., are
    not subject to the pro rata distribution requirements
    of T.C.A. 49-23-1003. The Attorney General found, in
    each of the three opinions, that no provision of the
    new Act requires pro rata distribution among school
    systems within a county and that T.C.A. 9-21-124, like
    the earlier statute he construed in 1980, provides that
    if the “provisions of this law conflict with any other
    provisions of law or are inconsistent with any other
    provisions of law, the provisions of this chapter shall
    prevail with respect to all bonds and notes issued
    under this chapter.”
    Unfortunately, the Attorney General in each of
    these later opinions overlooked another provision in
    the Local government Public Obligations Act of 1986
    which was not in the “old capital outlay notes”
    statute:
    9-21-107. Powers of Local
    Governments./All local governments have the
    power . . .to:
    *******************************************
    (4) pledge the full faith, credit and
    unlimited taxing power of the local
    government as to all taxable property in the
    local government or a portion of the local
    government, if applicable, to the punctual
    payment of the principal of and interest on
    the bonds or notes issues to finance any
    public works project. . .
    ********************************************
    (5) in the case of a county or metropolitan
    government which contains within its
    boundaries a special school district and/or
    incorporated city or town maintaining a
    public school system separate from the county
    or metropolitan government public school
    system, the tax pledge authorized by
    subdivision (4), when pledged to the payment
    of bonds or notes issued to finance the
    construction of public schools of the county
    or metropolitan government serving outside
    the territorial limits of such special school
    district and/or incorporated city or town,
    may be a pledge of taxes to be levied only
    upon taxable property within that portion of
    the county or metropolitan government lying
    1 5
    I t i s p o     s s i b       l e      t h e c o u r t m     i s r e a d     t h i s p r o h i b i t i o n a s a p p l y i n g t o
    c a p i t a l o u t l a y     n o t e    s         w h e n , i n f a c     t , i t a       p p e a r s t o h a v e a p p l i e d o n l y t o “ g r a n t
    a n t i c i p a t i o n n o   t e s .    ”           T . C . A . § 5 -     1 0 - 5 0 1 (   b ) ( 6 ) .    O r , p e r h a p s t h i s c o u r t i s
    m i s s i n g s o m e l i     n k i      n         t h e l e g i s l a t   i v e c h a     i n .
    2 2
    outside the territorial limited of such
    special school district and/or incorporated
    city or town. . .”
    There could not be a clearer statement of the
    legislative intent that the only way to avoid
    proration, as required by T.C.A. 49-3-1003, is a pledge
    of taxes to be levied only upon taxable property within
    that portion of the county lying outside the
    territorial limits of a city. Therefore, there is
    no”conflict,” as existed with the earlier statute,
    between the statute relating to general public
    obligations and the statute relating to school
    financing, and reading them in pari materia, the result
    is that the proceeds of general obligation bonds,
    capital outlay notes, and all other bonds and notes are
    considered “school bonds” and are subject to the
    proration mandate of T.C.A. 49-3-1003.
    We affirm the decision of the Chancellor in respect to
    the decision requiring Bradley County to share the proceeds of
    the Notes with the City.
    V. CONCLUSION
    There being no dispute as to any material fact in this
    matter, the Trial Court correctly granted Bradley County’s motion
    for summary judgment on the declaratory judgment portion of the
    Complaint and correctly granted the City’s motion for summary
    judgment on the money debt.                               For the reasons stated above, the
    judgment of the Trial Court is affirmed and the cause remanded
    for collection of costs below.                                     Costs of this appeal are adjudged
    equally against the parties and their sureties.
    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
    H o u s t o n M . G o d d a r d , P . J .
    C O N C U R :
    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
    H e r s c h e l P . F r a n k s , J .
    2 3
    ( N o t P a r t i c i p a t i n g )
    D o n   T . M c M u r r a y , J .
    2 4