text:
    NORTH ELECTRIC COMPANY, Plaintiff-Appellant, v. SATALLITE COMMUNICATIONS and Be Mac Transportation Company, Defendants-Respondents.
    No. 41108.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 2, 1979.
    William F. Sindel, Sindel, Sindel & Sin-del, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Gerre S. Langton, St. Louis, for defendants-respondents.
   GUNN, Judge.

Plaintiff-appellant North Electric Co. filed a petition in St. Louis Circuit Court seeking a judgment for materials furnished to Satallite Communications for construction of a building on property alleged to be owned by respondent Be Mac Transport Company, Inc. The petition prayed for judgment against Satallite for $9,315.86 and that it be declared a lien on Be Mac’s property which was described in the petition.

Default judgment was obtained against Satallite for the full amount prayed, but Be Mac’s motion to dismiss North Electric’s petition against it was granted without prejudice. The substance of Be Mac’s motion to dismiss was based on three contentions: that North Electric failed to comply with § 429.080, RSMo 1969 in failing to timely file a proper mechanic’s lien statement with the circuit clerk’s office; that North Electric’s petition failed to properly incorporate the statement of account by reference; that the petition was indefinite in failing to include a statement of account. We reverse and remand.

North Electric’s petition in pertinent part states:

Plaintiff [North Electric] states that the defendant, SATALLITE COMMUNICATIONS, is justly indebted to pay the sum of $9,315.86 for materials furnished from March 23 to April 15, 1977, at the request of defendant, SATALLITE COMMUNICATIONS, as per the following account showing the items furnished, together with the prices charged therefor, which said account is as follows:
That said materials were furnished for and were actually used for the construction of a certain two-story office building, which said building is situated on the following described lot, tracts, or parcels of land, to wit: * * * (emphasis added)

A description of Be Mac’s real estate then followed. Attached to the petition were three invoices in the net sum of $9,315.86 showing certain items of materials “shipped to Be Mac Transport, Inc. c/o Satalite [sic] Comm”. Then followed the allegation that demand became due on April 15, 1977 and within four months thereafter an account for purposes of a mechanic’s lien was filed in the St. Louis circuit clerk’s office; that more than ten days prior to the filing of the account, North Electric gave written notice to Be Mac of its claim against the real property. Be Mac’s motion to dismiss the plaintiff’s petition was granted with this appeal following.

In viewing a petition under attack by motion to dismiss, we give it the benefit of every reasonable intendment favorable to the pleader and judge it with broad indulgence. Tyler v. Whitehead, 583 S.W.2d 240 (Mo.App.1979); Butler v. Circulus, Inc., 557 S.W.2d 469 (Mo.App.1977). In so doing, we find that North Electric’s'petition and claim for mechanic’s lien sufficiently alleges facts necessary for securing a mechanic’s lien as required by § 429.180, RSMo 1969. This is not to state, of course, that North Electric is relieved of its responsibility to prove the allegations contained in its petition. We only find, for the reasons which follow, that the petition itself states a justiciable claim.

The invoices of items of account for materials allegedly furnished by North Electric were attached as exhibits to the petition. Giving broad meaning to the words of the petition “as per the following account showing the items thereof and the details of all said materials so furnished, together with the prices charged therefor, which account is as follows . . .”, we view the invoices as forming an integral part of North Electric’s petition. Burckhardt v. General Am. Life Ins. Co., 534 S.W.2d 57 (Mo.App.1975). While no paradigm to follow as it could and should have been more precise in its reference to the invoices, the petition is sufficient to state a cause of action. We are not so finicky as to require — as Be Mac urges — that the petition must contain specific and explicit use of such words as “incorporated by reference” in referring to exhibits forming a part of the petition. However, the use of such words disdained by North Electric would be meaningful and helpful in this circumstance, and we do acknowledge that the proper practice is to make specific reference to exhibits in the petition. But, the reference here was enough to indicate that the invoices attached to the petition were intended to form a part of it and that Be Mac could not have been misled or had understanding otherwise.

What we have said regarding the invoices forming a part of the petition is also true with respect to the invoices forming a part of the lien statement which was timely filed with the circuit clerk’s office. These invoices, too, were attached to the statement and referred to “as follows” as being “a just and true account of the demand due”.

Nor do we find, as Be Mac requests, that the descriptions of the items furnished in the invoices were so vague and indefinite as to render the lien statement deficient of the statutory requirement of stating “a just and true account”. The purpose of filing “a just and true account” is:

. so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper. Wadsworth Homes, Inc. v. Woodridge Corp., 358 S.W.2d 288, 291 (Mo.App.1962). Accord: Cork Plumbing Co. v. Martin Bloom Associates, 573 S.W.2d 947 (Mo.App.1978).

Here, the invoices designate the items and cost of the materials furnished. In this regard the invoices forming a part of the account are readily distinguishable from those relied on in Bernard v. Merrick, 549 S.W.2d 561 (Mo.App.1977). In Bernard, only the item number was supplied as a designation of the material furnished. That is not the situation here as there is a description of every item, albeit some of the items are described in trade terms and abbreviations. But that does not matter; a description in a lien statement of the items furnished in trade terms and abbreviations is in compliance with the statutory requirement of “a just and true account”. State ex rel. O’Malley v. Reynolds, 266 Mo. 595, 182 S.W. 743 (1916); Wilson-Reheis-Rolfes Lumber Co. v. Ware, 158 Mo.App. 179, 138 S.W. 690 (1911); Kneisley Lumber Co. v. Edward B. Stoddard Co., 113 Mo.App. 306, 88 S.W. 774 (1905). We also observe that the trial court did not indicate that it had dismissed North Electric’s petition on the basis of deficient materials descriptions, although evidence at trial on remand may establish that such descriptions are, in fact, inadequate. Further, if needed, evidence would be admissible to fully explain the trade terms and abbreviations. Wilson-Reheis-Rolfes Lumber Co. v. Ware, supra.

The judgment is reversed and remanded.

REINHARD, P. J., and CRIST, J., concur.

      . See e. g., 5 Wright & Miller, Federal Practice and Procedure, Civil § 1327 at 493 (1969), interpreting Fed.R.Civ.P. 10(c), which is analogous to Rule 55.12 V.A.M.R.


source: Caselaw Access Project

author: TITUS, Presiding Judge.

license: Public Domain

text:
    The EMPIRE DISTRICT ELECTRIC COMPANY, a Kansas Corporation, Plaintiff-Respondent, v. Wendell F. COX and Marie L. Cox, his wife, Defendants-Appellants.
    No. 10861.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 4, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 17, 1979.
    Application to Transfer Denied Nov. 14,1979.

      David E. Dwyer, Spencer, Scott & Dwyer, Joplin, Robert L. Hawkins, Jr., James C. Swearengen, Hawkins, Brydon & Swearen-gen, P. C., Jefferson City, for plaintiff-respondent.
    Eugene E. Andereck, Allen W. Baker, Stockard, Andereck, Hauck, Sharp & Evans, Jefferson City, for defendants-appellants.
   TITUS, Presiding Judge.

Defendants are owners of a 104 acre tract of land (approximately) located adjacent to Missouri Highway 76, near Branson, Taney County, Missouri.

Plaintiff is a public utility licensed to do business in Missouri. Also, plaintiff is certified by the Missouri Public Service Commission (P.S.C.) to provide electrical utility service in specified areas in southwest Missouri.

On July 16, 1974, plaintiff filed a petition in condemnation of defendants’ property in the Circuit Court of Taney County. Plaintiff sought to condemn, for use as an elec-trie utility line easement, a strip of land, (30' X 3303') lying on the easternmost edge of defendants’ property.

The Circuit Court of Taney County entered its order condemning the property of defendants. Exceptions to the appointed commissioners’ report were filed by both parties. Following trial, after transfer to the Circuit Court of Polk County on the exceptions, the jury assessed damages in favor of defendants of $12,000.00.

It is this order of condemnation, and the subsequent judgment entered upon the jury verdict, from which the defendants appeal.

Defendants’ first point relied on [labeled “Points and Authorities”, in contravention of the mandates of Rule 84.04(d)] , is: “The Court erred in ignoring the expressed legislative direction of section 393.170(3) (that unless exercised within a period of two years from the grant thereof that authority conferred by a certificate of convenience and necessity issued by the commission shall be null and void) . . . .” Following this general statement of error are listed six sub-points defining with particularity the manner in which defendants have been allegedly aggrieved, with citations to 23 authorities in support of their contentions. Defendants’ three major sub-points asseverate, in substance, that (a) defendants were deprived of their property without just compensation because plaintiff held no valid certificate of convenience and necessity upon which its condemnation action could be supported, (b) defendants were deprived of their property without due process of law because the court’s decision permitted plaintiff to take and damage defendants’ property without requiring plaintiff to produce and prove a valid certificate of convenience and necessity, and, (c) defendants were deprived of the contract rights which they had or were entitled to have under the deeds to their property because the court allowed plaintiff to take and damage their property without requiring plaintiff to produce and prove a valid certificate of convenience and necessity. All of the three major sub-points are followed by a single sub-point, each alleging that defendants have been deprived of the forum in which to challenge plaintiff’s claim of a need for public use of defendants’ land as contemplated in Chapter 393.

When reduced to essentials, it is apparent that defendants’ first point relied on is bottomed on the premise that plaintiff was acting in disregard to the dictates of § 393.170(3) which require plaintiff to obtain a certificate of convenience and necessity before beginning construction of an “electric plant”, as defined in § 386.020(12), under which, by definition, both parties agree, plaintiff’s construction of power lines across defendants’ land would be included. In addition, § 393.170(3) requires that, “[u]nless exercised within a period of two years from the grant thereof authority conferred by such certificate of convenience and necessity issued by the commission shall be null and void.”

Plaintiff’s actions in the condemnation proceedings and the subsequent construction of electric lines across defendants’ land were based on a certificate of convenience and necessity validly issued to plaintiff by the P.S.C. in 1937, pursuant to an order issued by it in Case Number 9420. Thus, for a period of many years, plaintiff has, pursuant to the “area certificate” issued in 1937, continued to furnish electric service in specified areas in southwest Missouri, including Taney County, the county in which defendants’ property is located.

The central issue presented by defendants’ first point relied on, and each sub-point thereto, is: Does a certificate of convenience and necessity issued to a public utility by the P.S.C. pursuant to § 393.170, and exercised within a period of two years from the grant thereof, become null and void after two years? Or, stated another way, does § 393.170 require, at minimum, a reexamination every two years of each certificate of convenience and necessity issued by the P.S.C. and a concomitant showing by the public utility that there still exists a “public convenience and necessity” which would warrant allowing the utility to continue its operations as mandated by the certificate issued by the commission two years previously?

While orders of the P.S.C. are subject to judicial review (§ 386.510) the court is confined upon review to a determination of whether, on the facts before it, such order is reasonable and lawful. If the reviewing court finds the order both reasonable and lawful, its duty is to affirm it. If the order be found to be either unreasonable or unlawful, it should be set aside. State ex rel. Interstate Transit Lines v. Public Service Commission, 234 Mo.App. 554, 562, 132 S.W.2d 1082, 1086[3, 4] (1939). The court below has no authority to interfere with reasonable orders of the P.S.C. when supported by facts found on competent evidence [State ex rel. City of St. Louis v. Public Service Commission of Missouri, 329 Mo. 918, 927, 47 S.W.2d 102, 104[3] (banc 1931)], nor may it weigh evidence or substitute its judgment for that of the commission. State ex rel. Webb Tri-State Gas Co. v. Public S. Com’n, 452 S.W.2d 586, 588[2] (Mo.App.1970).

In applying the two-pronged “lawful and reasonable” test, we are given guidance in determining whether the commission’s actions meet these criteria in State ex rel. Utility Consumers Council v. Pub. Serv. Com., 562 S.W.2d 688, 692[2, 3] (Mo.App.1978). Here the court interpreted § 386.-510, in providing for judicial review of administrative action to determine the “reasonableness or lawfulness” of the action, to mean that an administrative order is lawful if the commission had statutory authority to issue it and the order is reasonable if it is supported by competent and substantial evidence on the whole record. See also, State ex rel. Ozark Electric Co-op. v. Public Service Com’n, 527 S.W.2d 390, 392[1, 2] (Mo.App.1975) and cases cited therein.

The defendants admit, in their brief and on oral argument, that the order issued by the commission in 1937 was lawful. We find, too, that issuance of an “area” or “blanket” certificate by the P.S.C., as was the subject certificate here, is an appropriate use of the powers delegated to it by the legislature. State ex rel. Harline v. Public Service Commission of Missouri, 343 S.W.2d 177, 182[8] (Mo.App.1960); State ex rel. Webb Tri-State Gas Co. v. Public S. Com’n, supra, 452 S.W.2d at 588[4],

The burden of proving that the commission acted unreasonably or unlawfully was clearly on defendants. § 386.430; State ex rel. City of St. Louis v. Public Service Commission of Missouri, 335 Mo. 448, 73 S.W.2d 393, 397[2] (banc 1934). In admitting that the 1937 certificate was issued lawfully, defendants fail to shoulder the burden of proving that at least one tine of the two-pronged test is not met by the commission. The only remaining test, then, is to determine whether the commission acted reasonably.

In order for this court to find that the commission acted unreasonably, thereby finding that the P.S.C. failed at least one prong of the test of acting “lawfully and reasonably”, we must find that, when issued, the 1937 order and its accompanying certificate of convenience and necessity were not supported by competent and substantial evidence on the whole record. State ex rel. Ozark Electric Co-op. v. Public Service Com’n, supra, 527 S.W.2d at 392[1]. This we cannot do. Proper notice and hearing were provided. Evidence was taken. A record was made. Much investment has been made pursuant to, and benefit derived from, the issuance of this 1937 order and certificate. We are unable to hold now that the commission’s 1937 finding was not supported by competent and substantial evidence when made and therefore was “unreasonable.”

In the face of analysis which unsuccessfully establishes that the commission acted contrary to statute in issuing the 1937 order and certificate, defendants next ask the court to find that the commission’s (and the circuit court’s) interpretation of § 393.-170(3), specifically in regard to the two year provision, is incorrect. “The interpretation given an ambiguous statute [assuming, ar-guendo, that § 393.170(3) is ambiguous] by an agency or branch of government charged with its execution or administration is entitled to great weight in judicially ascertaining legislative intent, and, concomitantly, in resolving the statutory ambiguity.” State ex rel. School Dist. of Kansas City v. Young, 519 S.W.2d 328, 333[5] (Mo.App.1975); Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197[3] (Mo. banc 1972); see also State ex rel. Curators of Univ. of Mo. v. Neill, 397 S.W.2d 666 (Mo. banc 1966).

The courts of this state have held that once a public utility has been certificated to serve a defined area, then the utility need not seek a new certificate each time an extension within that certificated area is deemed necessary in order to effectively serve the dictates of “public convenience and necessity” within that defined and certificated area. Public Service Commission v. Kansas City P. & L. Co., 325 Mo. 1217, 1226, 31 S.W.2d 67, 71[6] (banc 1930); State ex rel. Doniphan Telephone Company v. Public Service Commission, 377 S.W.2d 469, 474[5] (Mo.App.1964); State ex rel. Harline v. Public Service Commission of Missouri, supra, 343 S.W.2d 177. See also State ex rel. Utility Consumers Council v. Pub. Serv. Com., supra, 562 S.W.2d 688. Plaintiff, in 1937 and to this day has operated within the area certificated to it by the 1937 order and certificate.

Alternatively, defendants urge that we find implied in § 393.170(3) a requirement that public utilities serving our state must come before the P.S.C. every two years, reestablish or reassert the “public convenience and necessity” which they propose to serve and become, if again qualified, re-certificated or re-approved to continue operations in the area in which they had been serving. This would allow, it is urged, the P.S.C. to more effectively serve as a guardian of the public “convenience and necessity.” It is not within the province of this court to impose such an additional requirement on the P.S.C. nor on the public utilities which it seeks to regulate. Attention is drawn again to this court’s function on review, as discussed supra. We are not, nor should we be, in the business of imposing our views, absent lawlessness or unreasonableness, on the functioning of the commission. “In providing for a review by the courts of these administrative orders, the Legislature did not intend that the reviewing court should put itself in the place of the commission, try the matter anew as an administrative body, weigh the evidence and substitute its finding and judgment on the merits for that of the commission. Upon review the court is ‘not concerned with the expediency or wisdom of the order made,’ and we have no authority to set it aside on our own conception of its wisdom. The sole matter for a court’s determination is whether the order complained of is reasonable and lawful, and, if it appears that the order is ‘both reasonable and lawful,’ it must be affirmed.” State ex rel. Kansas City Power & Light Co. v. Public Service Commission, 335 Mo. 1248, 1265, 76 S.W.2d 343, 350-351 (1934).

Defendants urge that lack of specific review of a certificate of convenience and necessity issued to a public utility over forty years ago, especially in view of the drastically changed circumstances taking place in the certificated area during this span of time, is, in and of itself, sufficient reason to require a new public hearing and issuance of a new order and certificate if supported by the evidence. It is on these public policy bases that it is urged that the judgment of the lower court be overturned. Defendants’ philosophical position is not without merit. However, in deciding this type of public policy question, the proper forum would be the state legislature, not these courts.

Defendants’ first point is denied.

Defendants’ final two points relied on complain of the method used to arrive at a valuation of the property condemned by plaintiff for public use. Point II asserts that testimony was improperly heard which valued the subject property based on more than one use of the property. Point III asserts that plaintiff’s witnesses valued defendants’ condemned property, and testified as to its value, based, in part, on information which they received from third parties. Defendants claim this information was not gathered and verified by plaintiff’s own witnesses, but consisted instead of the statements of third parties made to plaintiff’s witnesses in regard to sales and selling prices of land situate similarly to that of defendants. This, defendants assert, introduced incompetent hearsay testimony into evidence.

Defendants claim error in their second point relied on in that the court allowed plaintiff’s witnesses to testify concerning the fair market value of defendants’ property based upon more than one use. A careful reading of the trial transcript reveals, however, that defendants, in putting on their case first, elicited from their expert witness that the subject property could be put to “commercial and residential, or . all commercial [use] . [d]epend[ing] on who develops it and what he wants to develop it into.” Defendants clearly established and developed in their own case-in-chief the very thing complained of on appeal. Additionally, during cross-examination of this witness on the subject of more than one use of the subject property, counsel for defendants made no objection. No complaint will lie now.

As this court has had occasion before to state, in State ex rel. State Highway Commission v. Mink, 292 S.W.2d 940, 944[7] (Mo.App.1956), “The law is that in determining the award for condemnation, it is proper for the jury to take into consideration all uses for which condemnees’ property is suitable and adaptable, having regard to existing business or wants of the community, or such as may be reasonably expected in the immediate future.” (emphasis supplied). See also State ex rel. Board of Regents for Central Missouri State College v. Moriarty, 361 S.W.2d 133, 135-136 (Mo.App.1962) and Missouri Edison Company v. Gamm, 379 S.W.2d 166, 171 (Mo.App.1964).

Defendants’ second point is denied.

Mindful as we are of the need to prevent incompetent evidence from being introduced into the record, we must consider the context, as well as the content, of the allegedly prejudicial evidence as admitted. Defendants’ third point relied on asserts error at trial was made by admitting prejudicial hearsay testimony into evidence. Following a conference held on the record, counsel for defendants had opportunity to make and explain a continuing objection to the introduction into evidence of specific sale prices of tracts of land situate similarly to that of defendants. Over this continuing objection by defendants, plaintiff’s expert witness testified as to the value of defendants’ property and recited on numerous occasions the sales price for these other similarly situate parcels of land. It is this recitation to which defendants object as being hearsay and grounds for error on this appeal.

The learned judge at trial, as well as counsel for both parties, was well aware of, and made reference to, the dispositive case on this very issue, State ex rel. State Hwy. Com’n v. Jasper, 544 S.W.2d 554, 555 (Mo. banc 1976). The issue in this case was identical to the instant case: “The court erred in admitting over proper objection hearsay evidence by [plaintiff’s] expert witnesses as to the purchase prices of comparable sales.”

Though it is a basic rule of evidence that a witness may not narrate supposed facts told to him by another, when such evidence is offered to prove the truth of the matter asserted, nevertheless an expert testifying on values may base his opinions in part upon investigation and inquiries concerning other sales. In this context, these things merely enter into the witness’ general qualifications and experience, and constitute background material. State ex rel. State Highway Commission v. Barron, 400 S.W.2d 33, 38[17] (Mo.1966). Testimony given by an expert in explaining the basis of his opinion of value, even when logically relevant, tends to suggest collateral considerations. Yet, any disadvantage which might result from the use of such evidence is more than compensated by the advantage of a more enlightened basis for its ultimate determination of value. It is therefore within the wise discretion of the trial judge to establish the boundaries within which this type of testimony will be heard [see State ex rel. State Highway Commission v. Barron, supra; State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20, 24 (Mo.App.1964)], and to exercise care that false issues are not suggested and that the jury is not otherwise misled. In re Armory Site in Kansas City, 282 S.W.2d 464, 472[17] (Mo.1955).

The ultimate issue for consideration here is whether the circumstances surrounding the admission of this testimony concerning “comparable sales” were such that these sales were properly identified as being only one of the background factors upon which the expert witness had based his opinion and thus were in conformity with existing law. The record before us reflects that this was the case and that no error on this point may be found.

In eliciting the sales price of “comparable sales” from its expert witnesses, on each occasion counsel for plaintiff prefaced his inquiry regarding price, or incorporated in his questioning of the witness, a question almost identical to the following: “Did you use the price of this [comparable] sale to establish background information and as a guideline in reaching your opinion concerning the value of the [defendants’] property?” No fewer than seven times during the questioning of one witness alone did counsel incorporate these or similar words to establish that the witness was using many factors, including prices of comparable sales, to formulate the basis of his expert opinion. This fact could not have been lost on the jury. The trial court undoubtedly took these circumstances into consideration in making its ruling. We find no error. Defendants’ third point is denied.

Judgment affirmed.

All concur, except FLANIGAN, C. J., re-cused.

      . References to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to Revised Statutes of Missouri 1969, V.A.M.S.


author:
HARBISON, Justice.
      HENRY, Justice.

text:
    William M. LEECH, Jr., the Attorney General, et al., Appellants, v. WAYNE COUNTY et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 24, 1979.
    Rehearing Denied Oct. 22, 1979.
    William M. Leech, Atty. Gen. in pro. per., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for appellants.
    George G. Gray, Charles J. Barnett, Waynesboro, for appellees.
   OPINION

HARBISON, Justice.

This case involves the constitutionality of certain provisions of Chapter 934 of the Public Acts of 1978, providing for the restructure of county governments.

Under the terms of the act, in Wayne County a county executive was to be elected in 1978, but the county judge remained in office for the remainder of his term for the purpose of performing judicial duties. Thereafter these duties were to be transferred to the county executive. Also, the county legislative body was subjected to special statutory restrictions not imposed upon such bodies generally. The trial judge held all of the special provisions of the 1978 act applicable to Wayne County invalid and impermissible class legislation under Article XI, § 8 of the state constitution.

In the case of Waters v. State ex rel. Schmutzer, 583 S.W.2d 756 (Tenn.1979), the Court considered some of the provisions of this statute which are involved in the present litigation, particularly those conferring judicial authority upon the county executive. In the Waters case the provisions of Chapter 934 of the Public Acts of 1978 purporting to transfer the judicial functions of the county judge or county chairman to the county executive were held to violate Article VI, § 4 of the state constitution. For that reason, a significant part of the structure or plan for county government contained in the 1978 statute cannot and will not be implemented.

With some exceptions, the legislation contemplated the election in 1978 of a county executive in those counties which had formerly had a county chairman, county administrator or county manager as the chief executive or fiscal officer. There were some nineteen of these counties. Seventy-four counties, prior to the 1978 legislation, had incumbent county judges, many of whose terms of office did not expire until 1982. In some of these, however, the county judge had been divested of judicial duties by private acts and the term of office reduced to four years. The 1978 legislation permitted most of the county judges, except in some of the larger counties and except in Wayne and Roane Counties, to remain in office until the expiration of their terms, performing both judicial and executive, or fiscal, duties. In Wayne and Roane Counties, a county executive was to be elected in 1978, as in those counties formerly having county chairmen, but judicial functions were not conferred upon the county executive and were not to be transferred until 1982 or until the death or resignation of the county judge. In most of the other counties having a county judge, judicial functions were to be transferred to the county executive in 1982, or sooner in the event of the death, resignation or removal from office of a county judge.

As a result of the holding of this Court in the Waters case, the provisions of the 1978 legislation respecting the transfer of judicial functions have been invalidated. The decision in that case does not affect the legislative plan to have county executives elected in most of the counties, but it does require that a separate or special provision be made for the judicial functions of the county-paid judge or judges holding the juvenile and/or monthly county courts in all counties where county executives were given judicial duties either in 1978 or in future years. In effect, unless the legislature revises the entire scheme, after Waters there will have to be separate officials in each county, one or more performing judicial functions and another those of the county executive.

This is what the legislature has already provided in Roane and Wayne Counties in the 1978 Act.

According to the 1970 census Wayne County had a population of 12,365 and Roane County 38,881.

In or before August 1978 county executives were elected in twenty-four counties. In six of these, other than Wayne and Roane Counties, there formerly had been county judges. These six counties and their respective populations are:

Giles 22,138
Hamilton 255,077
Overton 14,866
Rutherford 59,428
Sevier 28,241
Van Burén 3,758

In the following counties, county executives were chosen to replace former county chairmen, administrators or managers. Population figures are from the 1970 census.

Anderson 60,300
Cannon 8,467
Chester 9,927
Cocke 25,283
Crockett 14,402
Dyer 30,426
Fayette 22,692
Hamblen 38,696
Jefferson 24,940
Johnson 11,569
Meigs 5,219
Moore 3,568
Putnam 35,487
Rhea 17,202
Unicoi 15,254
Washington 73,924
White 16,329

The foregoing tables do not include Wayne and Roane Counties where county executives were called for in 1978 to replace the county judge except for judicial duties. An election was held in Wayne County, but has not yet been held in Roane.

It is apparent that, pursuant to the 1978 legislation, many counties having approximately the same populations as Wayne and Roane were required to elect county executives to replace their former chief county officers. It is also apparent that in those counties where judicial duties were transferred to the county executive, there will have to be special provisions made by the local legislative bodies to choose someone else to perform those duties, pursuant to the Waters decision, until remedial legislation is provided. Accordingly, Wayne and Roane Counties are not alone in having a county executive without judicial duties, nor are they treated differently by the 1978 legislation from many other counties close to them in size and population.

The statutory provisions pertaining to Wayne and Roane Counties, insofar as they affect the county judge and the county executive, are part of a transitional plan made necessary by recent constitutional changes. In our opinion, they are not part of any general, mandatory uniform scheme of county government. Rather, these two counties were classed with twenty-three other counties having a county chairman, a similar chief officer or outgoing county judge. The net effect of the 1978 legislation was that twenty-four county executives had been elected by August 1978 and some sixty-nine others will be elected in 1982 or sooner in the event of a vacancy in the office of county judge.

The General Assembly has very broad powers and discretion with respect to the structure of local governments, including some special authority which was added in Article VII of the state constitution, as revised in 1978. That Article, in part, provides:

“The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum.” (Emphasis added).

It is apparent that the constitution does not mandate a uniform structure of county governments across the state. It specifically authorizes legislation creating different forms of local organization. In our opinion Chapter 934 of the Public Acts of 1978, particularly after the Waters decision, does not involve the creation of rigid patterns or norms. The General Assembly did move toward more uniformity than previously existed, but the statute contains numerous special provisions affecting local government in particular counties. It apparently sought to achieve some uniformity by 1982, but not immediately. Only transitional features of the legislation are involved with respect to the Wayne and Roane County executives.

In T.C.A. § 5-551 there are a number of special provisions concerning forms of government previously established by private acts. These provide, among other things, that in McMinn County, having a county manager form of government, the General Assembly shall establish an alternate form of county government which by referendum shall be submitted to the qualified voters. Incumbent members of the legislative body, however, shall remain in office until 1982 or until the alternate form of government is established. If an alternate form of government is not established prior to January 1, 1982, then the county government shall be determined in accordance with the more general provisions of Chapters 1, 5 and 6, Title 5, Tennessee Code Annotated.

It is apparent that the General Assembly did not intend for McMinn County, initially at any rate, to be embraced within the more general scheme provided in other parts of the 1978 statute. It had had a county manager form of government previously, but it is not treated in the act like other counties having that form of government or other counties with similar populations.

There are also special provisions for the transitional governments of knox and Polk Counties, while Shelby and Davidson Counties are generally excepted from the provisions of the 1978 legislation.

With respect to county executives, as treated in Chapter 6 of Title 5, little, if any, general scheme or uniform structure appears, insofar as their compensation is concerned. These officials are to be selected in nearly all of the counties in the years between 1978 and 1982. The County executive as financial agent is given a minimum salary in T.C.A. § 5-613, but a large number of local variations, by population bracket, are appended thereto.

In our opinion, the 1978 statutes, insofar as they involve the county judge and county executive of Wayne County, are not violative of Article XI, § 8 of the state constitution. In order for the provisions of that Article to come into play, an act which is either local or local in effect must contravene some general law which has mandatory statewide application. See Rector v. Griffith, 563 S.W.2d 899 (Tenn.1978). In view of the transitional nature of the statutory provisions regarding the county executive and the county judge, together with the invalidation in the Waters case of significant portions of the governmental structure created by the 1978 statute, we are of the opinion that an invidious discrimination violative of Article XI, § 8 of the state constitution has not been demonstrated with respect to the county executive and county judge of Wayne County. It must be remembered that the 1978 statute was a restructuring act for county governments, enacted to effectuate changes made in the state constitution in 1978. It was necessary that there be, in many instances, special temporary provisions made in a number of counties, and we do not find that the provisions here under consideration violate any general mandatory statewide scheme existing prior to the 1978 legislation or created within it. The trial judge erred in holding to the contrary.

A somewhat different problem is presented by the provisions of the 1978 statute relating to the legislative body of Wayne County. As directed by new constitutional provisions in Article VII, the act created a county legislative body as the basic legislative unit in each county of the state, except in counties having metropolitan governments. Such a legislative body was to be created in every other county of the state, effective September 1, 1978, except for counties specially provided for in T.C.A. § 5-551 and in counties organized under the consolidated government provisions of Article XI, § 9.

T.C.A. § 5-502 provides generally for the county legislative body in all of the counties except those few not governed by it. It provides for the composition, the number of districts, the qualification of members, their terms of office and the date of their election. In each county the legislative body is given discretionary authority “to determine whether each office in multi-member districts will be separately designated on the ballot with candidates required to run and to be elected on the basis of separately designated offices within the district.”

There is, however, a proviso which purports to except from the provision just quoted two counties by population bracket, one of these being Wayne County. In Wayne County the statute requires that “each office in multi-member districts shall be separately designated on the ballot, and candidates shall run and be elected on the basis of such separately designated offices within the district.” This special provision resulted from an amendment sponsored by the Wayne County representative in the House of Representatives.

The trial judge held that this separate provision violated Article XI, § 8 of the state constitution.

While a strong argument can be made in support of this conclusion, in view of the broad powers which the General Assembly has with reference to the structure of local governments and their agencies, we are reluctant to rest our decision on that provision of the state constitution nor do we find it necessary to do so. In all likelihood the General Assembly could, by local act, adopt such a provision as to a particular county. The powers which the General Assembly previously possessed respecting local governments were reinforced and strengthened as to county governments by the 1978 amendment to Article YII of the state constitution. That article, however, did not repeal or modify those provisions of Article XI, § 9 popularly known as the “Home Rule” provisions, which, insofar as pertinent here, are as follows:

“. . . any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.”

Indeed, Article VII itself contemplates referenda when particular “alternate” forms of county government are proposed by the General Assembly.

In our opinion, the home rule provisions of Article XI, § 9 and the referendum requirements of Article VII would not be applicable to the general statewide restructuring provisions in the 1978 legislation, made necessary by recent constitutional amendments. Where, however, the General Assembly has made a permanent, general provision, applicable in nearly ninety of the counties, giving the local legislative bodies discretion as to the method of election of their members, we do not think it could properly make different provisions in two of the counties, by population bracket, in the manner attempted here. Insofar as Wayne County is concerned, this amounted to nothing more than a private act relating to the composition of its county legislative body, without any statement of reasons and without requirement of a local referendum. In our opinion, neither Article VII nor Article XI, § 9 authorizes this type of legislation, nor can it be justified as being a transitional part of a general restructuring scheme.

Accordingly, the judgment of the trial court is affirmed insofar as it held unconstitutional the provisions of T.C.A. § 5-502 relative to Wayne County.

The cause is remanded to the trial court for further proceedings consistent herewith. Costs incident to the appeal will be taxed one-half to appellants and one-half to ap-pellees; costs in the trial court will be adjudged there.

BROCK, C. J., and COOPER, J., concur.

HENRY and FONES, JJ., dissent.

HENRY, Justice.

I respectfully dissent from the majority opinion.

While other and lesser questions lurk in the record, the principle issue is whether a county constitutionally may be exempted from the application of a significant provision of a general law applicable to all other counties similarly situated, by the use of a population bracket exception, absent a rational basis for the exemption.

I.

Constitutional Background

Article VII, Section 1 of the Constitution of 1870 enumerated the various county officers and Section 2 determined the proper method for filling vacancies. Its provisions were somewhat meager; it was silent on the structure of county government.

The Constitutional Convention of 1977 extensively rewrote these sections and provided a general framework for the government of Tennessee counties. A wholly new office of county executive was created and, in place of the quarterly court, the new constitution provides for a legislative body. In pertinent part, Article VII, Section 1, now provides:

The legislative body shall be composed of representatives from districts in the county as drawn by the county legislative body pursuant to statutes enacted by the General Assembly.

There follows a provision for decennial reapportionment and an exemption in favor of counties organized under Article XI, Section 9 of the State Constitution.

The ensuing paragraphs provide a method for the selection of alternate forms of county government and a prohibition against the diminution of an officeholder’s term as a result of the adoption of the article.

It was evident that legislative action was required to give vitality to these skeletal provisions. The legislature responded with a carefully considered and comprehensive plan of implementation, to wit: Chapter 934 of the Public Acts of 1978, which appears in the Official Code as Chapters 5 and 6 of Title 5 (Section 5-501, et seq., and Section 5-601, et seq.)

II.

The Implemental Legislation

The Legislature was faced with a twofold problem.

First, it had to provide the specifics of the new basic structure for county government in Tennessee.

Secondly, it had to provide an orderly method of transition.

After recognizing the “complexity” of county government in Tennessee, the necessity for its “continuity,” the constitutional considerations involved, and the myriad problems posed by the provisions of general and private acts establishing the duties and responsibilities of such officeholders, the Legislature declared that these considerations:

dictate a transition in county government in which the smaller counties continue the incumbent county judge for the remainder of his term as the chief executive officer of such counties to exercise the authority and duties for which they were elected. (Emphasis supplied) 1978 Public Acts, Ch. 934, § 42.

Further, the Legislature declared:

It is the intention of the General Assembly by this act to create a uniform system of county government by the establishment of the county legislative body and the office of county executive as the basic units of government, while providing a reasonable period of transition for certain counties to avoid the disruptive effects of rapid change in their government. (Emphasis supplied) Id.

Thus, the stated intention of the Legislature and the declared public policy is that the county judges of the smaller counties, for the remainder of their terms, perform the duties of county executives and that there be a uniform system of county government with an orderly period of transition.

It must be borne in mind that there is no constitutional requirement that all Tennessee counties be dealt with in precisely the same manner. Our Constitution is satisfied when all counties similarly situated are treated uniformly. When a county is exempted from the general law the exemption must have a rational basis. Section III, infra.

Our Constitution specifically permits the General Assembly to “provide alternative forms of County Government.” From the beginning of Tennessee time our courts have recognized this right. This provision adds nothing to existing law; it merely constitutionalizes formally and explicitly that which formerly rested on decisional law.

This is not the question.

The Legislature, by this Act, has established the same form of government in all counties of Tennessee except those having a metropolitan government. Sections 5-501 and 5-601, T.C.A. It contains transitional provisions for McMinn (County Manager), Knox (Commissioners), and Polk (County Council) counties. Section 5-551, T.C.A. The nature of a metropolitan government and its similarity to the form of government created by Chapter 934 of the Public Acts of 1978 make the exceptions reasonable and the reasons therefor apparent. The transitional provisions for McMinn, Knox, and Hamilton counties show facially that they are in harmony with the stated purposes of the Act and are rationally based.

It is important to remember that Chapter 934 does not exempt Wayne County from the form of government created by the Act; it is exempted solely from Section 5-602 governing the date of the election of the County Executive and the commencement of his term, and from Section 5 — 502 relating to the designation on the ballot of candidates for the legislative body in multi-member districts.

The majority opinion is premised to a substantial extent upon the proposition that the Act does not adopt a “general mandatory statewide scheme.” This is precisely what the Act does; but the majority wholly fails to recognize the critical distinction between the form of government on the one hand, and the mechanics of its inauguration on the other. With this prelude we examine the Act.

Three sections of the statute present troublesome issues which are critical to this controversy.

Section 8, codified as a portion of Sec. 5 — 502, T.C.A., relates to the county legislative body. It governs composition, the number of districts, the qualification of members, their terms of office, the date of their election, and officially designates the legislative body as the Board of County Commissioners. The body is clothed with the discretion “to determine whether each office in multi-member districts will be separately designated on the ballot with candidates required to run and to be elected on the basis of such separately designated offices within the district.” But, there is a proviso, which forms a substantial part of this lawsuit:

Provided, however, that in any county having a population of not less than 12,-350 nor more than 12,400 according to the 1970 federal census or any subsequent federal census, each office in multi-mem-ber districts shall be separately designated on the ballot, and candidates shall run and be elected on the basis of such separately designated offices within the district.

This exception applies only to Wayne County, which had a population of 12,365 persons under the census of 1970, and is the only county within the stated population bracket. The situation would be precisely the same had Wayne County appeared by name.

This proviso was incorporated in the bill as a result of an amendment presented by Representative Davidson of Wayne County. (Amendment 23, 1978 House Journal at 3515-3516). The Senate concurred. (Amendment 23, 1978 Senate Journal at 2919-2920).

Section 16 of the Public Act, codified as Sec. 5-601 through Sec. 5-603, relates to the county executive. It is provided that in Class I counties, Class 2 counties having a county coucil form of county government, “counties having a population of not less than 12,350 nor more than 12,375 or not less than 38,800 nor more than 38,900 by the federal census of 1970 or any subsequent federal census,” and those having a chairman of the county court, “the county executive shall be elected in the regular August election in 1978 and every four (4) years thereafter.” Sec. 5-602(1), T.C.A.

Again, the emphasized language identifies Wayne County. This language came by amendment proposed in the House, (Amendment 8,1978 House Journal at 3508) and concurred in by the Senate. (Amendment 8, 1978 Senate Journal at 2915).

Except for these counties, Section 16(b)(2) provides that:

in counties having an incumbent county judge elected in 1974 for a term of eight (8) years, the incumbent county judge shall serve as county executive until the regular August Election in 1982, at which time, and every four years thereafter, a county executive shall be elected.
Sec. 5-602(2), T.C.A.

The final subsection of 5-602 is a catchall provision covering county judges with a four year term of office and counties with administrators or managers:

In all other counties, the county executive shall be elected in the regular August election in 1978 and every four (4) years thereafter.
Sec. 5-602(3), T.C.A.

It is stipulated, and is a verified fact, that there are 69 counties “which now have County Judges, exercising Judicial and Administrative functions, and as in Wayne County, they were elected in 1974 and their terms do not expire until 1982.”

Therefore, the result of this Act is that Wayne County, one of the “smaller” counties of the State and Roane County are the only two counties in the State having county judges that are required to have both a county judge and a county executive for the four year period beginning September 1, 1978 and ending August 31, 1982. And this by virtue of a population bracket exception to a general law designed to be uniform and in the face of legislatively declared public policy that in “smaller counties the county judge serve out the remainder of his term before a county executive is elected.

Wayne County is also excepted by population bracket from Section 17 of the Act, (Sec. 5-606, T.C.A.) which vests the county executive with all the judicial authority formerly exercised by the county judge, or an official exercising similar powers. Although this portion of the Act was declared to be unconstitutional by this Court in Waters v. State of Tennessee, ex rel. Schmutzer, 583 S.W.2d 756 (Tenn.1979), it has no effect on the issues involved in this controversy.

The majority seeks to bolster its conclusion by the citation of various county compilations. All are based upon the erroneous premise that we are presented with a question as to the constitutionality of a legislative enactment creating a form of county government. We are not; Wayne County is not exempted from the form of government established by the Act.

At first blush these compilations are persuasive; upon analysis they are not pertinent.

The first compilation lists six (6) counties in which county executives were elected in August 1978, where “there formerly had been county judges.” This statement is true, as far as it goes. We look to the enumerated counties.

1. Giles County. By Chapter 158, Private Acts of 1973, the judicial duties of the county judge were transferred to the General Sessions Court, and his term of office was reduced to four years. As a result of Chapter 934, Giles County elected a county executive in 1978 when the county judge’s term of office expired.

2. Hamilton County. Chapter 934 converted its county council to the county legislative body. Transitional provisions are properly contained in the Act for this metropolitan (not one of the “smaller” counties) county. The Act had no immediate effect on this county.

3. Overton County. By Chapter 228, Private Acts of 1974, the office of county judge was abolished and the judicial functions transferred to the General Sessions Court. The county judge was replaced by a county manager with a four (4) year term. Subsequently, Chapter 16 of the Private Acts of 1975 changed the title of the office to county judge. When his term of office expired in 1978, a county executive was elected pursuant to Chapter 934.

4. Rutherford County. As in Giles and Overton Counties, the judicial functions of the county judge were vested in the General Sessions Court by Chapter 187 of the Private Acts of 1974. The county judge’s term of office was reduced to four (4) years, and upon expiration of the office in 1978, a county executive was elected under Chapter 934.

5. Sevier County. Upon the death of the county judge in 1978, the office was filled by a temporary appointment. Pursuant to Section 16(c) of Chapter 934, the vacancy was filled by the election of a county executive in the 1978 election.

6. Van Burén County. The incumbent county judge of Van Burén County resigned in 1977. A temporary appointment was made to fill the office until 1978, at which time a county executive was elected under the provisions of Chapter 934.

None of these counties was required to elect a county executive under Chapter 934 and continue in office a county judge. None was excepted from its application, except to the extent of the transitional provisions of the Act. Hence, this compilation is meaningless; there is no analogy to Wayne County.

It is next asserted by the majority that in seventeen (17) listed counties, county chairmen, administrators, or managers were replaced by county executives. The inclusion of these smaller counties with those re-qüired to elect in 1978 rests upon a rational basis, because in each case the term of the chief executive officer expired that year.

Thus, a rational basis exists for the four metropolitan counties and for those counties having a county chairman or other officer whose term expired in 1978.

The majority opinion, in reference to Roane and Wayne counties, asserts:

these two counties were classed with twenty-three other counties having a county chairman, a similar chief officer or outgoing county judge.

This simply is not an accurate statement. Wayne County did not have a county chairman, a similar chief officer, or an outgoing judge. It had a county judge whose term of office did not expire until 1982 as in 69 other counties. In the absence of a stated or discernible rational basis for distinguishing Wayne County from the other 69 similarly situated counties, the classification is unconstitutional.

The rational — and uniform — scheme of the Act is that in those counties where the chief executive officer’s term expires in 1978, an election is conducted in 1978. In all other counties, where the incumbent judge’s office does not expire until 1982, an election is conducted that year. This comports with the mandate of Art. 7, Sec. 1, of the State Constitution that “[n]o officeholder’s current term shall be diminished” as a result of this article. Moreover the Act so provides. Chapter 934, Section 37.

This is the theme and theory of the Act. It is the Legislature’s way of abiding the Constitution. Providing for the election of a county executive in Wayne County in 1978, prior to the expiration of the incumbent county judge’s term of office, is a clear departure from the pattern of transition and the stated intention of the Act.

The practical effect of the Act is to require Wayne County to continue to have a county judge exercising judicial functions, and simultaneously to have a county executive performing the non-judicial duties imposed by the Act. The fortuitous circumstance that Waters, supra, operates to make this scheme of practical utility is of no consequence to the determination of the issue at hand.

HI.

Tennessee Constitutional Considerations

I examine the questioned portions of the implementing statute in light of pertinent provisions of the Constitution of Tennessee.

Article I, Section 8
That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.
Article XI, Section 8 (in pertinent part)
The Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. (Emphasis supplied)

The “law of the land” clauses of these two sections are substantially equivalent to those contained in the “due process” and “equal protection” clauses of the federal constitution. Motlow v. State, 125 Tenn. 547, 590, 145 S.W. 177 (1911). As a general rule, that which violates the one would also violate the other. Railroad v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892).

It is settled law that a special act affecting a county in its governmental capacity is valid so long as it does not contravene the general law. Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454 (Tenn.1973); Donathan v. McMinn County, 187 Tenn. 220, 213 S.W.2d 173 (1948).

Numerous cases draw a distinction between special or private acts affecting a county in its governmental capacity when there is no general statute, and those attempting to impose liabilities or create exemptions not sanctioned by the general law.

An often quoted and correct statement of applicable general principles will be found in Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336 (1950), wherein Justice Gailor, writing for the Court, said:

Our cases make a clear distinction between (1) Private Acts which confer special benefits and impose special burdens on the citizens of one county, when there is no general statute, and when before the Private Act, there was only the common law, and (2) those Private Acts which undertake to amend or abrogate a prior general statute in its application to a particular county or class of counties. Private Acts of the former class have been upheld, and those of the latter class struck down. (Emphasis supplied) 190 Tenn. at 657-58, 231 S.W.2d at 338.

Exceptions or exemptions contained in a general act, or an act amendatory thereto are in precisely the same category and must be tested by the same rules. There must be a valid justification and a rational or reasonable basis for the distinction.

A most excellent articulation of this general rule will be found in the landmark case of Town of McMinnville v. Curtis, 183 Tenn. 442, 192 S.W.2d 998 (1946), wherein then Special Justice Tomlinson recognized that many acts had been upheld which affected particular counties in their governmental or political capacities, but pointed out that the act “either was not in conflict with the provisions of the general law, or the classification was upon a reasonable basis.” 183 Tenn. at 447, 192 S.W.2d at 999.

Justice Tomlinson tersely and thoroughly translated the precedents established by this Court:

[T]he well settled law [is] that the legislature may constitutionally enact a special act affecting one particular county or municipality alone in its political or governmental capacity, provided such special act is not contrary to the provisions of a general law, applicable to all the counties or municipalities. 183 Tenn. at 448, 192 S.W.2d at 1000.

Our cases uniformly hold that an act, general or private, which suspends the general law must be dependent for its constitutionality upon the existence of a reasonable basis for the exclusion. Brentwood Liquors Corp. of Williamson County v. Fox, supra; Crewse v. Beeler, 186 Tenn. 475, 212 S.W.2d 39 (1948).

It is a matter of public record that exemptions or exceptions from public acts are frequently accomplished by the expedient of identifying counties by population brackets. This is not per se a pernicious practice. Indeed, in much legislation, Tennessee counties are classified according to their population, e. g. Sec. 8-2402, T.C.A., et seq., relating to the compensation of county officers. But these acts affirmatively show a rational scheme of classification. When general acts binding on all counties throughout the state, or on all that are similarly situated, contain exceptions that remove an otherwise affected county from the reach of the enactment, such exclusions are suspect. This situation becomes particularly acute when general bills are modified by floor amendments.

This Court has addressed the exemption of counties from general laws on numerous occasions, and uniformly has required a rational or reasonable basis.

Thus, in the landmark case of State ex rel. Bales v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618 (1936), the Court had under consideration an act wherein Hamilton County, by population provisions, was required to pay its teachers in a manner inconsistent with the general law. Chief Justice Green wrote for the Court:

These acts are not saved because Hamilton county is designed therein by reference to its population. Unless the act relates to a matter in respect of which a difference in population would furnish a rational basis for diversity of laws, classification on such a basis will not be upheld. (Emphasis supplied) 170 Tenn. at 375, 95 S.W.2d at 619.

As noted in Davidson County v. City of Nashville, 190 Tenn. 136, 228 S.W.2d 89 (1950), when legislation deals with a county as a governmental agency a classification of the county by reference to population is not of controlling significance, but an act is not valid merely because it deals with a county in its governmental capacity. It is in making this insistence that the brief of the Attorney General falls wide of the mark. As noted in Davidson County, the “discrimination must be upon a reasonable basis.” 190 Tenn. at 139, 228 S.W.2d at 90.

Another significant holding is Board of Education of Memphis v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569 (1960), in which the Court held that a population based exception to a general or uniform law violates Article XI, Section 8 of the Constitution of Tennessee.

A most excellent articulation of this issue appears in State v. Shelby Co. Election Commission, 209 Tenn. 289, 352 S.W.2d 809 (1961), wherein the Court again held that legislation affecting particular counties or municipalities in their governmental capacities does no violence to our constitution, when there is no conflict with general law or the classification is on a reasonable basis.

While we did not labor the issue in the recent case of Pirtle v. City of Jackson, 560 S.W.2d 400 (Tenn.1977), we struck down a portion of Section 6-310, T.C.A. containing a population based exception to the state zoning law. Justice Cooper spoke for the Court:

No rational basis has been suggested, nor does any occur to us, to justify the exclusion of a few chosen municipalities from the burden of proving the reasonableness of their annexation ordinances when such a burden is placed upon all other municipalities by the general law of this state. 560 S.W.2d at 402.

I would reaffirm these principles and hold that a population based exception to a general law is offensive to Article I, Section 8 and Article XI, Section 8 of the Constitution of Tennessee in those cases where there is no sound reason and no rational basis for the exclusion.

In the instant case the Act recites no basis for the variance in favor of Wayne County, nor are we cited to any, nor does any occur to us. Wayne County is excepted from significant provisions of a mandatory statewide law and from an Act specifically declared by the Legislature to be passed pursuant to a legislative intent to “create a uniform system of county government . while providing a reasonable period of transition,” leaving the Act in an internally inconsistent posture. The arbitrary nature of the exclusion is revealed by the fact that 26 counties smaller than Wayne County and 68 larger (less those having other recognized forms of government) are covered.

I would, therefore, hold that so much of Sections 8, 16, 17, and 18 of Chapter 934 of the Public Acts of 1978, as operate to exempt Wayne County, or place it on a different footing from other counties similarly situated, is unconstitutional and void under Article I, Section 8, and Article XI, Section 8 of the Constitution of Tennessee.

The same considerations operate to render those portions of those sections offensive to the Fourteenth Amendment to the Constitution of the United States. Again, the test must be the reasonableness of the classification. We so held in an extensive opinion in Harrison v. Schrader, 569 S.W.2d 822 (Tenn.1978), in which we pointed out that if the reasonableness of the class is “fairly debatable” it must be upheld. Here, it is not fairly debatable. We further pointed out that the classification would be upheld if it had a reasonable or natural relation to the legislative intent. Here, to the extent of Wayne County, it defeats the legislative intent to “create a uniform system of county government.”

While I agree with the conclusion reached by the majority with respect to the constitutionality of the provision governing election of the legislative body, I do not agree that a different legal situation exists, nor do I place any significance upon the provisions being transitional as opposed to permanent. I know of no rule of law that permits a temporary violation of a constitutional imperative.

Section 5-502, T.C.A. is unconstitutional as it relates to Wayne County for the same reasons that invalidate those provisions requiring Wayne County to elect a county executive in 1978. These provisions are either both constitutional or both unconstitutional — and for the same reasons. Any different conclusion rests upon a flawed foundation.

At the very outset of its opinion, the majority summarized the Act as follows:

The 1978 legislation permitted most of the county judges, except in some of the larger counties and except in Wayne and Roane Counties, to remain in office until the expiration of their terms, performing both judicial and executive, or fiscal, duties. In Wayne and Roane Counties, a county executive was to be elected in 1978, as in those counties formerly having county chairmen, but judicial functions were not conferred upon the county executive and were not to be transferred until 1982 or until the death or resignation of the county judge. In most of the other counties having a county judge, judicial functions were to be transferred to the county executive in 1982, or sooner in the event of the death, resignation or removal from office of a county judge. (Emphasis supplied)

I adopt the summary. From its recitation, there emerges the inescapable conclusion that these provisions are constitutionally unsound.

FONES, J., concurs in this dissent.

        See Tenn.Pub.Acts, 1978, ch. 934, § 35(c); in the codification of this section, reference is made to Hamilton, rather than Polk, County. T.C.A. § 5-551(c) (Supp.1978).

      . Article VII, as amended in 1978, by its terms does not apply to counties organized under those provisions of Article XI, § 9.

      . An identical provision excepts Bledsoe County by population bracket.

       See Chapter 934, Acts 1978, § 35(c); in the codification of this section, reference is made to Hamilton, rather than Polk County. Sec. 5-551(c) (Supp.1978).

      . An identical proviso excepts Bledsoe County by population brackets.

      . Counties having a population of 400,000 or more. (Sec. 8-2402, T.C.A.) Davidson and Shelby are in this category.

      . Hamilton and Knox are in this population category. Only Hamilton has a county council form of government. It has both a county judge and a county executive.

      . The second population bracket identifies Roane County.

      . There were fourteen (14) such counties, i. e. Cannon, Chester, Cocke, Crockett, Dyer, Fa-yette, Hamblen, Jefferson, Johnson, Meigs, Morgan, Rhea, Unicoi and Washington. Additionally, Anderson, Moore and White had administrators and Putnam had a county manager.

      . There are 26 counties having a smaller population and 68 having a greater population.

      . Roane County, with a 1970 population of 38,-881, is the 17th largest county in the State.

      . This enumeration should have included Morgan County.

      . It is irrelevant to the question under consideration that the Wayne County Judge’s term of office is not diminished.

      . Chapter 934, Acts of 1978 affects Tennessee counties in their governmental or political capacities.


author: FONES, Justice.

text:
    OVERTON COUNTY, Tennessee, et al., Appellants, v. The STATE of Tennessee ex rel. E. C. HALE et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 9, 1979.

      Fred D. Thompson, Thompson, Crawford & Rodgers, Nashville, for appellants.
    J. H. Reneau, III, Reneau & Reneau, Celina, John R. Officer, Livingston, for appel-lees.
   OPINION

FONES, Justice.

Nine county officials of Overton County brought suit to collect the annual salary adjustments provided by the Legislature tied to the consumer price index as published by the United States Department of Labor, Overton County having paid plaintiffs only the maximum base salaries in effect on September 1, 1974.

The learned Chancellor held that the payment of the annual salary adjustments was mandated by the Legislature in enacting the respective applicable statutes, and rejected all of the contentions of Overton County seeking to avoid, or in the alternative reduce, the amounts sought by plaintiffs. We affirm except for one minor modification.

The time period involved was September 1, 1974, through August 30, 1978, although not all of the plaintiffs were office holders on September 1, 1974. The offices involved are County Trustee, Sheriff, the Clerks of the Circuit and County Courts, County Assessor, Superintendent of Roads, the County Judge who has no judicial duties and is in effect the County Manager, and the General Sessions Judge. Two persons held the office of Circuit Court Clerk during the period.

I.

The compensation of all officers other than the General Sessions Judge are determined directly or indirectly by a number of lengthy and complicated statutes found in Title 8, Chapters 21, 22, and 24 of the Tennessee Code Annotated. We will not undertake the task of articulating all of the compensation options the Legislature has granted to Tennessee counties. The undisputed fact in this case is that Overton. County had elected to pay its county officers and clerks the maximum salary prescribed in T.C.A. § 8-2403, regardless of the relationship between fees collected and salaries and expenses of the respective fee-generating offices. Defendant’s own witness, Fred White, a member of the County Court since 1970, so testified, confirming the testimony of Mr. Harvey of the State Comptroller’s Office, Division of County Audits. The Legislature has clearly and unequivocally granted that option to counties in T.C.A. § 8-2204. The quid pro quo to the county which so elects is that its clerks and county officials must pay all fees collected to the County Trustee, monthly, rather than at less frequent intervals, as would otherwise be the case. T.C.A. § 8-2204. It necessarily follows that the fact issues raised by defendant with respect to whether the County Court Clerk and the Circuit Court Clerk generated sufficient fees to pay the salaries and expenses of their respective offices are irrelevant and immaterial.

T.C.A. § 8-2403 directly controls the compensation of the Trustee, Sheriff and Clerks of the County Court and Circuit Court and indirectly the compensation of the Tax Assessor, the Road Superintendent and the County Judge, where a county, as here, has made the election to pay the maximum salary.

T.C.A. § 8-2403 provides, in relevant part, as follows:

“Maximum compensation of clerks and county officers. — The officers enumerated in § 8-2201 may receive maximum compensation per year as follows:
(E) In counties of the fifth class: County trustees, sheriffs, clerks and masters of chancery courts, clerks of county courts, clerks of probate courts, clerks of circuit courts, register of deeds, clerks of criminal courts and clerks of general sessions courts . $12,650
The compensation set out herein shall be the base maximum annual salaries, beginning September [2,] 1974 and shall be adjusted on September 1, 1975 to reflect the per cent of change in the average consumer price index (all items — city average) as published by the United States department of labor, bureau of labor statistics, between that figure for the calendar year 1974 and the calendar year 1973. Each succeeding September 1, a similar adjustment shall be made, based on the per cent of change in the average consumer price index between the two (2) calendar years preceding September 1 of the year in which the adjustment is made. No adjustment shall be made to reduce any such base salaries below the amounts provided in subdivisions (A) through (H) of this section.
No annual salary adjustment as provided by this section shall be made after September 1, 1978.”

Defendant argues that the legislative use of the permissive word “may” in the first sentence of the statute gives all counties the continuing option each year to pay or not to pay the annual adjustment, subject only to the proviso that the actual amount paid falls between the adjusted maximum and the adjusted minimum provided in § 8-2405.

We think it clear that the Legislature used the word “may” in the first sentence of the statute for the reason that payment of the maximum salary structure is an option available to counties, and is only mandatory (1) when the fees collected exceed all salaries and expenses of the office; and (2) for the office of sheriff. T.C.A. § 8-2404. It is equally clear that when a county becomes subject to T.C.A. § 8 — 2403, by election or the mandates of T.C.A. § 8-2404, it has no discretion whatever in varying from the amount of compensation fixed therein, which mandatorily includes the annual salary adjustment. The paragraph providing the annual salary adjustment uses the word “shall” in both appropriate places, with the effect that the annual cost of living adjustment must be made to determine the maximum compensation figure intended by the Legislature. The annual percentage change reflected by the consumer price index, applied in accord with the statute, produces a fixed sum each year and all counties subject to that statute must pay that sum. Cf. Hobbs v. Lawrence County, 193 Tenn. 608, 247 S.W.2d 73 (1952).

II.

Next, Overton County says that the general appropriations bills enacted by the Legislature in 1975 and 1976 limited the annual salary adjustments of county officers for those years to two and one-half percent and nine percent, respectively, instead of the cost of living index figures which were stipulated to be eleven percent and 9.1 percent, respectively.

Section 7 of both the 1975 and 1976 acts purported to limit the annual salary adjustment of members of the general assembly, state commissioners, district attorneys, state judges and other state officials as well as county officers. Immediately following the percentage limitation for the respective years, the following sentence appears in each of the acts.

“If any portion of this paragraph is invalidated and/or held to be unconstitutional with respect to the amount of annual salary authorized to any of the officials referred to and/or enumerated, it is the legislative intent that this entire paragraph is void and that no sentence, clause, or phrase of this paragraph would have been enacted without the invalid portion.”

The limitation sought to be imposed upon members of the General Assembly violated Tennessee Constitution Article II, Section 23, in that the reduction in salary was required to take effect in the year of passage of each act, rather than after the next general election, following passage of the act.

The limitation sought to be imposed upon incumbent members of the state judiciary violated Tennessee Constitution Article VI, Section 7, in that the decrease in salary was enacted during the constitutional term, to take immediate effect. See Section IV of this opinion for further discussion of that constitutional provision.

It follows that the salaries of county officials contained in the 1975 and 1976 general appropriations bills were void, by express declaration of legislative intent.

III.

Overton County interposes the defense of laches. These suits were filed August 24, 1978. For most of the nine plaintiffs, the first annual adjustment period began September 1, 1975, although one of the Circuit Court Clerks did not take office until September 1, 1977.

The rationale of the doctrine of laches and the usual situations in which it may be applied is succinctly stated in Gibson’s Suits in Chancery, 5th Edition, § 81:

“The neglect of a person to make complaint, or bring suit in due season, he being sui juris and knowing the facts, or having the means of knowledge, is called laches; and where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in adverse rights, Courts of Equity refuse to interfere, they acting either by analogy to the statutes of limitations, or upon their own inherent doctrine of discouraging antiquated demands. .
The Court frowns upon attempts to unsettle what has long been at rest, first, because of the difficulty, if not impossibility, of making proof; second, because, in uprooting an ancient matter, innocent persons are liable to be injured; third, because the defendant, even if originally in the wrong, may, as a result of the complainant’s laches, have acquired such affirmative rights that he cannot be placed in statu quo ; and fourth, because the delay raises a presumption that originally there was, if not a good defense, at least a better one than can now be made.
Laches will bar suits (1) to open accounts and settlements long acquiesced in; (2) to change a boundary line long recognized; (3) to correct an alleged fraud, accident or mistake long submitted to; (4) to have a nuisance abated that has long existed; (5) to have a contract either rescinded or specifically enforced, when by delay the parties cannot be placed in statu quo; (6) or to have any transaction uprooted, or any business unravelled, when, in consequence of long acquiescence, the chances are that material evidence has been lost, that the memory of the facts has become dimmed, that parties or witnesses have died or removed, and that new rights have sprung up that should not be unsettled.” Id. at 101 — 103.

No question of fact is involved in this suit and the controversy is purely a question of statutory construction about which there is little room for a valid difference of opinion. Thus the principal foundation upon which the doctrine is predicated, to wit, the difficulty or impossibility of making proof because material evidence has been lost and the memory of facts has become dimmed, is not present here.

The minutes of the Overton County Quarterly Court Meeting held on June 30, 1975, made an exhibit in this case, reveal that the County Judge “brought before the Court the fact that the Legislature had passed eleven percent increase in county official’s salary, effective September 1, 1975.” A member of the Court moved not to pay the increase in salary and the motion carried 14 to 0 with one abstention.

Fred T. White, an optometrist, was a member of the Overton County Quarterly Court at the time of that meeting and at the time of the trial. He testified that he spoke in favor of the motion because his conscience would not let him give the county judge a $1,500 raise and other office holders a $1,400 raise when the “poor school teachers” were going to get $150 and that the members of the Court went along with him. He was asked if the 1975 general appropriations bill limiting the annual salary adjustment to 2V2 percent influenced the Court and he first answered in the affirmative and later in the negative. We interpret his ambiguous testimony on the question of what consideration was given to the legal aspects of the issue to be that the Overton County official’s salaries, without any annual adjustment, would fall somewhere between the minimum and maximum prescribed by the applicable statutes, and implicitly, that complied with the law.

But, the significance of the actions of the Overton County Quarterly Court on June 30, 1975, on the issue of laches, is that they confronted the legal question and made a decision not to pay any annual salary adjustment. Inherent in that decision was the necessary recognition that the county faced a contingent liability to its officials for the annual salary adjustment that would continue until such time as the statute of limitations of six years would bar their claims.

Overton County says that if the plaintiffs had filed their suits immediately and prevailed, the tax rate increase necessary to pay the salaries would have been smaller than that required after approximately three years accumulation of annual salary adjustments. That argument is neutralized by the fact that the County may now pay the same principal sum with deflated dollars. Based upon the figures in this record, approximately 17 cents per one thousand dollars of assessed valuation of Overton County property would be involved in satisfying the claims of the plaintiffs in this case.

The only Tennessee case cited by Overton County is State ex rel. Ball v. City of Knoxville, 177 Tenn. 162, 147 S.W.2d 97 (1941). Plaintiff was a civil service employee who was transferred four times and in the case of three of the transfers her salary was below the scale she had attained prior to the first transfer. Under the civil service system then in effect, the municipality could not reduce her salary without preferring charges and according her a hearing thereon. She made no protest and sought no hearing at the time of any of the four transfers, and the Court designated her period of acquiescence as eighteen months. The Court made no mention whatever of the doctrine of laches in disposing of that issue as follows:

“The fact is that during that long period she led the officials to believe that these transfers met with her approval. This, in effect, constituted new contracts between the parties, resulting in the abrogation of the old ones. We hold, further, that by such delay relator has forfeited her rights to be reinstated in her former positions, as well as to recover additional compensation.” Id. at 166, 147 S.W.2d at 98.

We agree with the general principle that where public employees or elected officials are allegedly illegally removed or suspended or otherwise deprived of both an office and the compensation attached thereto, due diligence should be exercised in asserting their rights. Ordinarily, such cases involve the possibility of double compensation for a single office and other considerations not present here. There is no issue in this case involving the right to any public office. The sole issue is the correct amount of compensation due elected county officials of Overton County as prescribed by statute and, in our opinion, the delay in bringing suit to resolve a purely legal issue between the plaintiffs and Overton County does not justify application of the doctrine of laches.

IV.

Overton County asserts that the annual salary adjustment applicable to the General Sessions Judge would violate Tennessee Constitution Article VI, Section 7, which provides that the compensation of judges, “shall not be increased or diminished during the time for which they are elected.”

The annual salary adjustment applicable to General Sessions Judges was enacted by the Legislature as Chapter 808, Public Acts 1974 [T.C.A. § 16-1109(D)] to take effect September 1, 1974, the beginning date of the term. The General Sessions Judge of Overton County who is one of the plaintiffs in this case took office on September 1, 1974, and the annual salary adjustments involved in this case all fall within the term for which he was elected in 1974.

It is universally recognized that the rationale undergirding such constitutional provisions is the maintenance of judicial independence from legislative action to punish or reward judges for decisions that produce a favorable or unfavorable reaction. The key words of the Tennessee constitutional provision are “during the time” which obviously means legislative action taken within the time period of a judicial term of eight years, to increase or diminish compensation.

The holding of Shelby County v. Judges, 3 Shannon Cases 508 (1875) was squarely to that effect. By section 11 of Chapter 28 of the Acts of 1869-70, the Legislature authorized the County Court of Shelby County to increase the salaries of its state judges and chancellors, by a sum not exceeding $2,000, in addition to the uniform state-wide salary of $2,500. The Shelby County judges were elected in May 1870, and subsequent thereto the County Court of Shelby County appropriated the additional $2,000, later rescinded it, then reinstated it, thereafter reduced it, and lastly disallowed it altogether. The judges brought suit seeking reinstatement of the full $2,000 increase.

The Court dealt with the constitutional issue presented, as follows:

“These judges, or four of them, were elected and qualified before any action of the county court in regard to their salaries. Their salaries, as then fixed by law, was $2,500. When, and how was it increased? It seems to us clear that if it was ever increased to $4,500, it was when the county court made the allowance of $2,000 which was during the term for which they were elected. .
The object of this clause of the constitution against increasing or diminishing the salaries of the judges during the time for which they are elected was intended to make them independent — above the temptation of resorting to any device inconsistent with their official duty to have their salaries increased, and beyond the danger of being intimidated by a fear of having their salaries reduced. Mr. Story, on the subject, quotes from The Federalist as follows: ‘Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’ Story on the Constitution, § 1629. After these judges came into office, they were dependent upon the county court, composed of all the justices of the county, for an increase of their salaries, and the act by which they are to get the increase, if at all, occurred during their term, and it seems to us clear that the spirit as well as the very letter of this provision of the constitution would be violated by this increase of salary.” Id. at 514-15.

In Gaines v. Horrigan, 72 Tenn. 608 (1880), the plaintiff judge was appointed to fill an unexpired term. Subsequent to the beginning of the constitutional term, but prior to plaintiff’s appointment, the salary of state judges was reduced. The issue presented was whether Judge Horrigan stood, in all respects, in the place and stead of the judge whose term he was appointed to fill and was thus entitled to the salary in effect at the beginning of the term. The Horrigan Court employed the same basic reasoning found in Shelby County v. Judges, supra, as follows:

“[Ljooking to the reasons upon which this clause of the constitution was doubtless adopted it must be apparent that the object was to prevent the increase or diminishing of a Judge’s salary while he is in office, so as to relieve him as far as possible from improper influences, and promote an independent discharge of his duties.
If the change takes place before the Judge is elected or appointed, the evils intended to be guarded against cannot well result as to him. He accepts the office with a knowledge of the salary as fixed, and no injustice is done him.” 72 Tenn. at 614-615.

However, because of the use of the word “time” when, as the Horrigan Court noted the word “term” could have been used, the Court narrowed the construction of Article VI, Section 7, so that, if legislative action changing the salary during a term precedes the election or appointment of a judge, he is subject to that change, even though it is ineffective as to all judges in office at the beginning of the term or preceding legislative action. We expressly reserve any comment on that aspect of Horrigan which differs from the holding in Shelby County v. Judges, supra, because we are not confronted with that factual situation. The rationale of Horrigan that any change after a judge is in office subjects him to improper influences and interferes with the independent discharge of his duties, is consistent with Shelby County v. Judges, supra, and requires the same result under the facts of this case.

Overton County insists that the dollar amount cannot be changed during the term and cites as authority for that interpretation, State ex rel. Goodwin v. Rogers, 217 S.E.2d 65 (W.Va.1975) and a companion case Delardas v. County Court of Monongalia County, 217 S.E.2d 75 (W.Va.1975). The issue in Rogers involved the salary of a member of the county commission of Boone County, West Virginia, whose six year term of office commenced January 1, 1971. At that time his salary was fixed by statute at $2,400. Subsequent to the beginning of his term the West Virginia Legislature classified counties into seven classes and provided the salaries to be paid members of the county commission in each class, resulting in an increase of Goodwin’s salary as a member of the Boone County Court. The constitutional provision involved provides, in relevant part, “nor shall the salary of any public officer be increased or diminished during his term of office.” W.Va.Const. art. VI, § 38. Without any discussion of purpose or objective of such provisions the Court simply held that Goodwin’s salary could not be increased without violating the constitution.

Delardas involved another section of the same 1972 Act of the West Virginia Legislature at issue in Rogers. The act classified all of the counties of West Virginia by means of a table providing minimum and maximum assessed valuation of all classes of property. The section also provided that each West Virginia County should determine each year whether its valuation of all classes of property placed it within a class above or below the class “in which the county then is.” Upon approval by the State Tax Commissioner of a certification that a county had moved to another class, the statute directed the county court to make the necessary salary adjustments of public officials.

The West Virginia Court held that, “ * * * normal fluctuations in assessed valuations of property within a given county will cause changes which, if the statute were to be applied as written, would result in automatic salary increases for incumbent county officials in a manner prohibited by West Virginia Constitution, Article VI, Section 38.” 217 S.E.2d at 78. Again without any discussion the Court held that that section of the act was in conflict with the West Virginia Constitution prohibiting change in the salary during the term of office. Delar-das as well as Rogers was in the context of a legislative act passed after the term of office had commenced, undertaking to change the salaries immediately and for a current term of office. Neither the language employed nor the results reached in the West Virginia cases contradict the interpretation of the Tennessee Constitution that we have indicated heretofore.

The theory behind hinging an annual change in salary to the consumer price index is that the index accurately measures the change in the purchasing price of the dollar, with the result that by “indexing” judicial salaries, the “compensation” remains constant. That theory has a solid foundation in fact. The Tennessee Legislature has no power over the amount of the index change and thus no power over the will of judges. In our opinion, the annual salary adjustment provided in T.C.A. § 16-1109(D) as applied to the General Sessions Judge of Overton County, who took office on September 1, 1974, does not violate Tennessee Constitution Article VI, Section 7.

The base salary of the General Sessions Judge of Overton County is $8,000. T.C.A. § 16 — 1109(D). By Chapter 20 of the Private Acts of 1967, the General Sessions Judge of Overton County also serves as Probate Judge for which that act prescribes an additional salary of $2,500. The trial judge awarded the Overton County General Sessions Judge an annual salary adjustment based upon the combined total of the two salaries, $10,500. There exists no statutory basis for including the $2,500 salary for services as Probate Judge in the amount of the annual salary adjustment and the decree of the trial court must be modified accordingly.

The decree of the trial court is affirmed, except for the inclusion of $2,500 in the annual salary adjustment of the General Sessions Judge and this cause is remanded for the entry and enforcement of an appropriate decree. Costs are adjudged against Overton County, Tennessee.

BROCK, C. J., and COOPER, HENRY and HARBISON, JJ., concur.

      . 1975 Tenn.Pub. Acts ch. 380.

      . 1976 Tenn.Pub. Acts ch. 732.

      . For example, class one counties, minimum 600 million to a no-limit maximum. Class seven counties were those with assessed valuations falling between 0 and $14,999,999.