July 26, 2012
Dear City Attorney:
You have several questions related to a proposed adoption of a sales tax increase by the City:
1. If the county’s sales tax referendum fails on August 2, 2012, can the City immediately call for a referendum on an increase in the city’s sales tax, the referendum to be held on November 6, 2012, the date of the general state election?
It is my opinion that if the county’s sales tax referendum fails on August 2, 2012, the city can immediately call for a referendum on an increase in the city’s sales tax to be held on November 6, 2012.
Tennessee Code Annotated, § 67-6-703(a)(1) provides that, “The levy of the tax by a count shall preclude, to the extent of the county tax, any city or town within such county from levying the tax, but a city or town shall at any time have the right to levy the tax at a rate equal to the difference between the
county tax and the maximum rat authorized by this chapter.” It is difficult to read the italicized portion of that paragraph in any way except by what it says: that a city has the right any time to levy the tax in an amount prescribed by that statute. If the county’s sale tax referendum fails on August, “any time” would seem to authorize the city to begin proceedings to put the sales tax referendum on the ballot on
November 6.
There is, of course, the question of whether Tennessee Code Annotated, S 67-6-706(b)(2)(A), intercepts the city’s sales tax referendum on November 6. That statute provides that,” Except as provided in subdivision (b)(2)(B), should any county, city or town hold an election under this section, and the ordinance or resolution is rejected, no other election shall be held by such county, city or town for a period of six (6) months from the date of the holding of such prior election” In my opinion, that statute is not ambiguous. It is triggered against only the Individual County, city, or town that held the rejected referendum. Even if the phrase “such county, city or town…” were ambiguous, the rules of statutory construction would apply to achieve reconciliation between Tennessee Code Annotated, §§ 67-6-
703(a)(1) and 67-6-706(b)(A)(2) to give both of them meaning. It does not seem to me that it matters that city voters also voted in the county-wide sales tax referendum on August 2; the election was a county election.
2. Is the ordinance publication requirement contained in Tennessee Code Annotated, § 67-6-
702(a)(2) a general publication requirement?
In my opinion, the answer is that the ordinance adoption and publications requirements contained in that statute apply only to the change in the bases of the sales tax. Tennessee Code
Annotated, § 67-6-702(a)(2) provides that the $5 or $7.50 tax limit on the sale or use of an single article

of personal property may be removed by counties by resolution and by cities by ordinance, and imposed in the amounts provided in § 67-6-702(a)(1) That whole subsection (a) speaks of how county resolutions and city ordinances for that purpose must be adopted and published. The concluding sentence of that subsection (a)(2) says: “The ordinance increasing the base of the county-wide tax within the municipality shall be adopted as required in this subdivision (a)(2). “ Nothing in the whole of Tennessee
Code Annotated, § 67-6-702, nor any other provision of the Local Option revenue Act suggests that the same passage and publication requirements apply to sales tax increase ordinances in general.
3. Is the timeline for the referendum on the sales tax proposed to be held on the date of the general state election on November 6 correct?
The timeline appears to be correct under the calculation of time statute at Tennessee Code
Annotated, § 1-3-102, and the elections on question statute at Tennessee Code Annotated, § 2-3-204(b).
Under the statutory rules of statutory construction found in Tennessee Code Annotated, § 1-3-
101 et seq., § 1-3-102 says that, The time within which any provided by law is to be done shall be computed by excluding the first day and including the last day, unless the last day is a Saturday, a
Sunday, or a legal holiday, and then it shall also be excluded.” In Koella v.State ex rel. Moffet, 405
S.W.2d 184 (Tenn. 1966), nominating petitions for gubernatorial candidates in a party primary were required to be filed at least 60 days prior to the election. In this case, the nominating petition was filed on June 6, 1966, for the August 4, 1966, general state election. The court held that held that the nominating petition had not been timely filed. Applying the computation of time statute found in
Tennessee Code Annotated, § 1-3-102, the court declared that:
There is no doubt that if one counts, as one must, from August 4, 1966, backward, excluding the first day but including the last, or for that matter, if one counts forward, there are only fifty-nine (59) days between August 4 , 1966, and June 6, 1966, the sixtieth day being
Sunday, June 5. Thus, the question squarely presented, whether or not the fact that the sixtieth day falls on a Sunday, allows a potential candidate to file on the following Monday, fifty-nine days prior to the date of the election.” [At 635] The answer was no, held the court.
You do not have the weekend or holiday problem in computation of the 60 days; otherwise that case is directly on point.
Likewise, in Hanover v. Boyd, 121 S.W.2d 120 (Tenn. 1938), the court, citing that statute (which is reflective of the common law), held that where Article 7, § 5 of the Tennessee Constitution and a statute required that a vacancy in certain offices be filled at the next biennial election “more than 30 days after the happening of the vacancy,” the state general election held on august 4, was 31 days after the death of the attorney general on July 4. The court reasoned that:
Applying the rule, the period of thirty days from July 4 expired on August 3.
It was thirty days from July 4 to August 4. Since thirty-one days is more than

thirty days, the general election, recurring on August 4, was a general election recurring more than thirty days after McLain’s death. If August 3 was the last day of the thirty day period, August 4 was beyond that period.
[At 121]
Sincerely,
Sidney D. Hemsley
Legal Consultant