Brent v. Town of Greeneville

• Decision Date: 06 December 1957
• Citation: 203 Tenn. 60,7 McCanless 60,309 S.W.2d 121
• Parties: Chester A. BRENT, Jr., et al. v. The TOWN OF GREENEVILLE et al. 7 McCanless 60, 203 Tenn. 60, 309 S.W.2d 121
• Court: Tennessee Supreme Court

Page 121

309 S.W.2d 121

Chester A. BRENT, Jr., et al. v. The TOWN OF GREENEVILLE et al.

7 McCanless 60, 203 Tenn. 60, 309 S.W.2d 121

Supreme Court of Tennessee.

Dec. 6, 1957.

Rehearing Denied Feb. 6, 1958.

William S. Todd and John R. Todd, Kingsport, for appellants.

Walter A. Curtis, Jr., Greeneville, for appellees.

PREWITT, Justice.

The complainants filed their bill seeking a declaratory judgment as to the effect of an ordinance passed by the Town of Greeneville, whereby certain territory was annexed to the Town, under authority of Chapter 113, Public Acts, 1955, now T.C.A. Sections 6-308, 6-319.

The defendants have appealed from a decision of the Chancellor overruling their demurrer to the bill.

There is only one question involved in this proceeding and that is to decide whether or not T.C.A. Section 28-106, gives the defendants the right to commence a new action to test the validity of the ordinance in question, within one year from the date of their voluntary non-suit in the Circuit Court proceedings.

The complainants contend that the right being exercised by the defendants was created by statute and the time in which the right could be exercised was limited by the same statute, that time was the essence and the Section above cited T.C.A. Section 28-106, is not operative, and cannot be invoked by the defendants.

The statute which authorizes annexation by municipalities under certain conditions is Chapter 113, of the Public Acts of 1955, and is now codified as T.C.A. Sections 6-308, 6-319.

T.C.A. Section 6-309 provides:

'Annexation by ordinance.--A municipality when petitioned by a majority of the residents and property owners of the affected territory, or upon its own initiative when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered, after notice and public hearing, by ordinance, may extend its corporate limits by annexation of such territory adjoining its existing boundaries as may be deemed necessary for the welfare of the residents and property owners of the affected territory as well as the municipality as a whole, provided said ordinance shall not become operative until thirty (30) days after final passage thereof.'

And T.C.A. Section 6-310, further provides:

'Quo warranto to contest annexation ordinance.--Any aggrieved owner of property lying within territory which is the subject of an annexation ordinance prior to the operative date thereof, may file a suit in the nature of a quo warranto proceeding in accordance with Secs. 6-308, 6-319 and chapter 28 of title 23, to contest the validity thereof on the ground that it reasonably may not be deemed necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole and so constitutes an exercise of power not conferred by law.

'If more than one (1) suit is filed, all of them shall be consolidated and tried as one (1) in the first court of appropriate jurisdiction in which suit is filed. Suit or suits, shall be tried on an issue to be made up there, and the question shall be whether the proposed annexation be or be not unreasonable in consideration of the health, safety and welfare of the citizens and property owners of the territory sought to be annexed and the citizens and property owners of the municipality. Should the court find the ordinance to be unreasonable, an order shall be issued vacating the same. In the absence of such finding an order shall be issued sustaining the validity of such ordinance, which shall then become operative thirty-one (31) days after judgment is entered unless an abrogating appeal has been taken therefrom.

'If on appeal judgment shall be against the validity of such ordinance, an order shall be entered vacating the same; otherwise, it shall become operative forthwith by court order and shall not be subject to contest or attack in legal or equitable proceedings for any cause or reason, the judgment of the appellate court being final.'

It is insisted by the defendants that the above sections constitute a statute of limitations, but we are of the opinion that the different statutes of limitation limit the time within which the remedy for a violation of an existing right must be...