State ex rel. Hudson v. City of Chattanooga

• Decision Date: 29 July 1974
• Citation: 512 S.W.2d 555
• Parties: STATE of Tennessee ex rel. Lucius P. HUDSON et al., Appellants, v. CITY OF CHATTANOOGA et al., Appellees.
• Court: Tennessee Supreme Court

Page 555

512 S.W.2d 555

STATE of Tennessee ex rel. Lucius P. HUDSON et al., Appellants, v. CITY OF CHATTANOOGA et al., Appellees.

Supreme Court of Tennessee.

July 29, 1974.

Schoolfield & Taylor, Shattuck & Payne, Chattanooga, for appellants.

Eugene N. Collins, Randall L. Nelson, Chattanooga, for appellees.

OPINION

CHATTIN, Justice.

This appeal is from an adverse decree of the Chancellor upholding the validity of three ordinances enacted for the purpose of annexing certain areas of Hamilton County to the City of Chattanooga.

The suit was filed by Lucius P. Hudson and other residents and citizens of the affected areas under the authority of T.C.A. Section 6--310 seeking to have the annexation proceedings declared unreasonable and unnecessary for the welfare of the residents and property owners of the affected areas as well as the residents and property owners of the City of Chattanooga.

Relators, appellants, demanded a jury to try the cause.

Appellees filed an answer in which they denied the annexation of the areas is not reasonable or necessary for the welfare of the residents and property owners of the affected areas and the residents and citizens of the City.

Appellees filed depositions, affidavits and exhibits in support of their answer.

Appellants filed a motion for summary judgment that questioned the proposed plans of services which was denied. The Chancellor likewise denied appellants' demand for a jury.

Appellants offered the testimony of a number of witnesses in their behalf, after which appellees moved the Chancellor to sustain the annexation ordinances. The Chancellor granted the motion and dismissed appellants' suit.

Appellants perfected this appeal and have assigned four alleged errors on the part of the Chancellor.

Appellants first insist the Chancellor erred in overruling appellant's motion for summary judgment based on the City's proposed plans of services.

In support of this assignment, appellants insist that, although the City did submit plans of services under the Annexation Act of 1971 using the variable tax structure, the Act authorizing a variable tax was held unconstitutional and, therefore, the plan is void. We disagree.

T.C.A. Section 6--309 sets forth two requirements to be met by the City in annexing adjacent areas. It must adopt a plan setting forth at a minimum the identification and projected timing of a municipal services proposed to be extended into the area.

Secondly, the plan must be submitted to the local planning commission for study and written comment.

The record shows there were three resolutions adopted by the City Commission, which set forth and identify the specific services to be rendered to the areas and project the time of furnishing the services to each area. The resolutions were adopted on January 25, 1972.

The record further shows, and appellants admit, that the plans of services were submitted to the planning commission. The record, also, shows the planning commission studied the plans and approved them as being adequate on December 13, 1971. The record shows the annexation ordinances were passed on final reading on February 2, 1972.

Thus, the record is clear the City complied with the requirements of T.C.A. Section 6--309.

However, appellants insist the resolutions submitting the plans of services are void because they provide in the event the Variable Tax Act is held to be unconstitutional, the City shall request its engineering consultant to prepare the plan of services under the Act of 1961 which has not been done.

To the contrary, the record shows each resolution adopted by the commission on January 25, 1972, states:

'That if Chapter 420, Public Act of 1971 should be declared invalid, or otherwise not applicable so that separate ad valorem taxes may not be levied and collected for services actually rendered said territory, then all services will be rendered to the territory as soon as practical, immediately in some instances, but not later than the plan of services set out hereinabove.'

Thus, the resolutions adopted the plan of services and maintain and project timing of the services to be extended whether the Act of 1971 was declared unconstitutional or not.

Furthermore, the Act of 1971 did not directly deal with plans of services. The constitutionality of the Act is immaterial to the issue of whether there was a compliance with T.C.A. Section 6--309 insofar as the plans of services were legally adopted.

Finally, the plans of services are based not upon the financial ability to provide same, but rather upon the physical ability to provide them within the projected time.

We think T.C.A. Section 6--309 was complied with and overrule the assignment.

Next, appellants insist T.C.A. Sections 6--309 and 6--310 and appellees' action thereunder violated the Fifth and Fourteenth Amendments and Article IV, Section 4 of the Federal Constitution, and Article 1, Sections 2, 8 and 21, and Article 2, Sections 27 through 29, and Article 11, Section 8 of the Constitution of Tennessee. We overrule the assignment.

'It is clear . . . that Hunter precludes constitutional challenge under the Fourteenth Amendment to annexations by municipal corporations of adjoining territory on the basis of the procedure employed or authorized by the state or because of the pecuniary repercussions in the form of the ordinary incidents of city taxation.' Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321, cert. denied 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467 (1967).

In the case of State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968), this Court said:

'As to the contention the ordinance conflicts with certain provisions of our state and federal constitutions, this Court, in the case of Williams v. Nashville, 89 Tenn. 487, 15 S.W. 364 (1891), said: 'It is contended that this act is void because in conflict with the fifth amendment of the constitution of the United States, which provides that: 'No person shall be . . . deprived of life, liberty, or property without due process of law, nor shall private property to taken for public use without just compensation;' and also because of in conflict with similar provisions of the constitution of the State of Tennessee, 'that no man shall be deprived of his life, liberty, or property but by the judgment of his peers or the law of the land.' (Article 1, Section 8); and 'that no man's particular services shall be demanded, or property taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor." Article I, § 21.

"As a matter of course, the act would be inoperative, null, and void, if, in fact, it violated any of those provisions. But it cannot be that it does so. The extension of corporate limits so as to include additional territory is in no sense an impairment of the owner's liberty, nor is it a taking of private property for public use. If it were held to be so, then no municipal corporation could be established or enlarged, and none of these valuable instrumentalities of the State would have a lawful existence.

'Even the statutes of annexation to which complainants ascribe the sanctity of general laws, woule be utterly unavailable for the same reason.

"Placing property within the corporate limits of a given town or city, where it will be subjected to the additional burden of municipal taxation and supervision, is not a taking of the property at all."

Again, in the case of Stall v. City of Knoxville, 211 Tenn. 271, 364 S.W.2d 898 (1962), this Court said:

'Relators cite as error the action of the Trial Judge in sustaining demurrers to their attacks on the constitutionality, under both the State and Federal...