State ex rel. Balsinger v. Town of Madisonville

• Decision Date: 23 December 1968
• Citation: 26 McCanless 272,222 Tenn. 272,435 S.W.2d 803
• Parties: , 222 Tenn. 272 STATE of Tennessee ex rel. Carl BALSINGER, Plaintiff-in-Error, v. TOWN OF MADISONVILLE, Defendant-in-Error.
• Court: Tennessee Supreme Court

Page 803

435 S.W.2d 803

26 McCanless 272, 222 Tenn. 272

STATE of Tennessee ex rel. Carl BALSINGER, Plaintiff-in-Error, v. TOWN OF MADISONVILLE, Defendant-in-Error.

Supreme Court of Tennessee.

Dec. 23, 1968.

W. E. Badgett, Knoxville, for plaintiff in error.

Lee & Pennington, Madisonville, for defendant in error; J. D. Lee, Madisonville, of counsel.

OPINION

CHATTIN, Justice.

This is an appeal from an adverse judgment of the Circuit Court of Monroe County upholding the validity of an ordinance passed for the purpose of annexing a certain area to the City of Madisonville.

Relator, Balsinger, filed the suit under authority of T.C.A. Section 6--310 seeking to have the ordinance vacated as unreasonable and unnecessary in consideration of the health, safety and welfare of the citizens residing within the area to be annexed as well as those residing within the City. Relator demanded a jury to try the issues.

The trial judge, after hearing extensive evidence, dismissed the jury and decided the ordinance was reasonable and valid in all respects.

Relator assigns as error the following:

'1. The trial court erred in holding the annexation ordinance in question in this case was legally passed and adopted.

'2. The trial court erred in holding that the plan of services filed by defendant adequately set forth at a minimum the identification and projected timing of the municipal services proposed to be extended into the territory sought to be annexed.

'3. The trial court erred in taking this case from the jury and deciding that the ordinance was legal since the question of whether the annexation is reasonable or unreasonable is a fairly debatable question, for the reason that such action deprived relator of his rights to contest annexation as provided for under Section 6--310 Tennessee Code Annotated.

'4. The trial court erred by its action in taking the case from the jury and dismissing the cause, since it deprived relator of his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article 1, Sections 6 and 8 of the Constitution of Tennessee, by depriving him of due process of law and equal privileges and immunities guaranteed him under such law.

'5. The trial court erred in taking the case from the jury and in upholding the annexation ordinance, for the reason that such action violated relator's rights under the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article 1, Section 21 of the Constitution of Tennessee, in that it permitted the property of relator, and others similarly situated, to be taken for public use without just compensation, in that relator's property and that of others similarly situated would become liable for pre-existing and outstanding indebtedness of the old town as constituted prior to annexation.

'6. The trial court erred in taking the case from the jury and in upholding the annexation ordinance for the reason that by so doing the court deprived relator of his right to a trial by a jury, guaranteed him under the Fifth, Seventh and Fourteenth Amendments to the Constitution of the United States, and Article 1, Section 8 of the Constitution of Tennessee.

'7. There is no material or substantial evidence to support the judgment and decree in this cause.'

With respect to the first assignment of error, the record shows the Board of Mayor and Aldermen of the Town of Madisonville met at nine P.M., on May 30, 1966, and passed the ordinance on first reading. The Board adjourned until ten P.M., the same day, at which time the ordinance was passed on second reading. The Board then adjourned until the following day and passed the ordinance on third and final reading.

The charter of Madisonville does not make provision as to the number of readings necessary for the adoption of an ordinance. The charter does provide the regular meetings of the Board of Mayor and Aldermen shall be held quarterly; that is, four each year.

Relator insists the ordinance was not passed in accord with the following provision of the charter:

'* * * Provided, however, that meetings of the Council shall not be held oftener than once a week. The regular sessions of the Board of Mayor and Aldermen shall be held on the first Tuesday in January, April, July and October.'

The trial judge correctly found the ordinance had passed three separate readings at one meeting.

'An adjourned meeting of either a regular or a stated or special call meeting is but a continuation of the same meeting.' McQuillin on Municipal Corporations, Third Edition, Volume 4, Section 13.69, page 516.

'Where the law is silent as to the mode of procedure, no particular formality in the enactment of an ordinance need be adopted. 'In the absence of other requirements it is only necessary that there be sufficient proof of the will of the governing body.' In such case, the enacting body may choose its own method. Or it may choose between alternative methods, as, for example, between existing methods for establishing or securing a public improvement.' McQuillin on Municipal Corporations, supra, Volume 4, Section 16.10 at page 174.

Relator further contends the evidence shows prior Boards of the Town had consistently passed ordinances on three separate and distinct meetings and thus a practice or custom had been set which was binding in the instant case. We disagree.

'The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure adopted for the orderly conduct of business * * *.' Rutherford v. City of Nashville, 168 Tenn. 499, 79 S.W.2d 581 (1935).

There is a presumption in favor of the validity of an ordinance and those questioning this validity have the burden of proof. State ex rel. Senff v. City of Columbia, 208 Tenn. 59, 343 S.W.2d 888 (1961). There is no proof of fraud or bad faith on the part of the Board. Nor does the charter provide an ordinance must pass one reading at three separate meetings. We overrule the assignment.

By the second assignment of error, relator insists the resolution adopting the plan of services is vague, evasive, wholly inadequate and does not comply with T.C.A. Section 6--309.

In the case of State ex rel. Robbins v. City of Jackson, 218 Tenn. 322, 403 S.W.2d 304 (1966), this Court, speaking through Mr. Justice Creson, said:

'Appellants' second Assignment of Error urges that the trial court erred in holding that the proposed plan of services for the area to be annexed was reasonable. Suffice it to say, in connection with this Assignment of Error, that if there is evidence upon which reasonable men could differ as to the reasonableness of the proposed annexation, as is the case here, this Court will not substitute its discretion or judgment for that of the legislative body of the City. See Morton v. Johnson City (1960) 206 Tenn. 411, 333 S.W.2d 924; State ex rel. Senff v. City of Columbia (1961) 208 Tenn. 59, 343 S.W.2d 888; State ex rel. Hardison v. City of Columbia (1962) 210 Tenn. 514, 360 S.W.2d 39. The evidence contained in this record abounds with conflicting testimony as to the reasonableness or unreasonableness of the proposed annexation. In light of this, the Court must apply the rule as stated in Morton v. Johnson City, supra, as follows:

"* * * the court does not, in any sense, substitute its discretion or judgment as to the advisability or propriety of the annexation for that of the legislative body of the city, and that it does not review the legislative discretion; its consideration of 'reasonableness' is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive."

There is proof in the record services of fire protection, police protection, garbage disposal, erection of street signs, signals and markings would become effective as soon as the annexation ordinance became...