MEMORANDUM
TO:
Bob Schwartz, MTAS Executive Director
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
March 5, 2004
RE:
Status of Existing “Tiny Towns”
It is well-known that both the first and second “tiny town” laws have been declared
unconstitutional by the Tennessee Supreme Court and various Tennessee Courts of Appeal. [See
Tennessee Municipal League v. Thompson, 958 S.W.2d 333 (Tenn. 1997); Town of Huntsville
v. Duncan, 15 S.W.3d 468 (Tenn. Ct. App. 1999) (Appeal to Tenn. Supreme Court denied,
January 24, 2000); Summers v. Town of Walnut Grove, 2001 WL 434867 (Tenn. Ct. App.
2001); City of Oakland v. McCraw, 2003 WL 1618089 (Tenn. Ct. App. 2003).]
Two towns incorporated under those laws are still in existence. What is their legal
status?
Several cases in Tennessee support the proposition that an unconstitutional law is not a
law at all. [See State v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952); O’Brien v. Rutherford
County, 199 Tenn. 642, 288 S.W.2d 708 (1956); Lynn v. Polk, 76 Tenn. (8 Lea) 121 (1881);
Henry County v. Standard Oil, 167 Tenn. 485, 71 S.W.2d 683 (1934); Matill v. Chattanooga, 175
Tenn. 65, 132 S.W.2d 201 (1939); Board of Education v. Shelby County, 207 Tenn. 330, 339
S.W.2d 569 (1960); In re. Boyd, 189 F. Supp. 113 (M.D. Tenn. 1959), aff’d sub.nom. Bomar v.
Boyd, 281 F.2d 195 (6th Cir. 1960).]
An unconstitutional law is voidable, not void. [Cumberland Capital Corp. v. Patty, 56
S.W.2d 516 (Tenn. 1977)] But the cases contained in the first paragraph above make it clear that
the laws under which the two towns are incorporated have already been declared void, and afford
them no protection. With respect to any claim that those two towns have to equitable protection,
it is even said in Merchant’s Bank v. State Wildlife Resources Agency, 567 S.W.2d 476 (Tenn.
Ct. App. 1978), that:
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The chancellor, without passing on the constitutionality of the
statute, apparently attempted to make an equitable disposition of
the lawsuit in light of what he perceived to be an unjust situation.
We hold that an unconstitutional statute cannot be given an
equitable application; it must not be applied at all to the extent
that it is violative of the constitution. [At 481] [Emphasis is mine.]
The above cases also appear to support the theory that city officials of a municipality
which has been unconstitutionally incorporated are not de jure officers. More important, those
cases also make it questionable that they are even as de facto officers. If they are neither de jure
nor even de facto officers, their acts may not be generally entitled to legal recognition.
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