State ex rel. Schmittou v. City of Nashville

• Decision Date: 10 March 1961
• Citation: State ex rel. Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874, 12 McCanless 290 (Tenn. 1961)
• Parties: , 208 Tenn. 290 STATE ex rel. Mrs. Egbert SCHMITTOU, Complainant-Relator, v. CITY OF NASHVILLE et al., Respondent. STATE ex rel. Ernest W. COLBERT, Complainant-Relator, v. CITY OF NASHVILLE et al., Respondent.
• Court: Tennessee Supreme Court

Page 874

345 S.W.2d 874

12 McCanless 290, 208 Tenn. 290

STATE ex rel. Mrs. Egbert SCHMITTOU, Complainant-Relator, v. CITY OF NASHVILLE et al., Respondent.

STATE ex rel. Ernest W. COLBERT, Complainant-Relator, v. CITY OF NASHVILLE et al., Respondent.

Supreme Court of Tennessee.

March 10, 1961.

Rehearing Denied May 5, 1961.

Hooker, Keeble, Dodson & Harris, Nashville, for Mrs. schmittou.

John Cabler Corbitt, Nashville, for Ernest W. Colbert.

Robert H. Jennings, Jr., City Atty., Carmack Cochran, Sp. Counsel, Nashville, for city of Nashville.

SWEPSTON, Justice.

These two suits, along with others, were filed to contest the validity of Annexation Ordinance No. 60-94 of the City of Nashville. The two above named persons are the only ones involved in this appeal. A demurrer was filed in each of the above cases. For the sake of clarity, we will dispose of the Schmittou case first.

The demurrer in this Schmittou case was sustained by the Chancellor and upon appeal counsel for Mrs. Schmittou states that the only questions presented here are: (1) was the ordinance in question legally adopted over the veto of the Mayor of the City of Nashville, (2) does the original bill contain sufficient allegations to permit the introduction of proof to show that the annexation ordinance in question is 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.

With reference to the first question, said ordinance was passed on third reading on April 26, 1960, was vetoed and returned by the Mayor on April 27, 1960, and thereafter was passed over the Mayor's veto at a special meeting held April 29, 1960. The next regular meeting after the veto would have been May 3, 1960. No question is raised as to the regularity of the calling of the special meeting for the purpose of acting on the ordinance or for the purpose of acting on the question of the passage over the Mayor's veto.

It is insisted by appellant that the City Charter did not authorize the passage of the Mayor's veto at this special meeting but that same could only be done at the next regular meeting; on the theory that the following provision of the City Charter should be so interpreted:

'* * * It shall be the duty of the Mayor carefully to examine all resolutions and ordinances passed by the City Council and if the Mayor approves any resolution and ordinance the same shall be signed by the Mayor. Should either or any of them not meet with the Mayor's approval, such shall be returned to the next regular meeting of the City Council, with the Mayor's objection in writing. * * *' (Emphasis added). Sec. 14, Art. VI of the charter.

The Chancellor held in effect that this language when construed with Art. X, Sec. 29 means that the Mayor has until the next regular meeting to either approve or disapprove said ordinance or resolution and is thus a limitation upon the power of the Mayor, but not upon the power of the Council. Whereas it is insisted by appellant that the Mayor had no power or right to return the matter until the next regular meeting and that, therefore, any action by the Council on same before that time was void.

Now Art. X, Sec. 29 provides in part as follows:

'Special meetings of the Council may be called by the Mayor whenever in his judgment the good of the City requires it, and it shall be his duty to call a special meeting whenever requested in writing by a majority of the members of the Council. * * *'

When it is considered that Art. VI relates to the powers, duties and responsibilities of the Mayor and that Art. X, Sec. 29 relates to the legislative body, it seems rather clear that this assignment must be overruled. The realities of life normally require that the Mayor or any other executive charged with a duty of approving or disapproving legislative matters must have a reasonable time in which to act upon same, and conversely, must be limited as to the time which will be allowed him--to avoid unnecessary delay. Said Sec. 14 in fact further provides that if the Mayor fails to return a resolution or ordinance at the first regular meeting after its passage, the same shall be deemed to have been approved by him and shall become effective without further action.

In Johnson City v. Tennessee Eastern Electric Co., 133 Tenn. 632, 644-645, 652-653, 182 S.W. 587, 590, 592, the Court said:

'The intent of the framers of the Constitution was that the Governor should have 5 days' time within which to consider the bill and to determine whether he would approve and sign the bill, or refuse to sign it, and return it with his objections to the house in which it originated. * * *

'So far as we have any judicial knowledge of any practical construction of section 18 of article 3 in this state, in respect of the return of bills when disapproved by the Governor, it has been that such return could be made to the clerk of the house in which the bill originated during a temporary adjournment of that house, or a joint temporary adjournment of both houses.' (Emphasis supplied.)

We must assume, therefore, that when the Mayor called this special meeting, he did so because he thought that the good of the city required it, as stated in Art. X, Sec. 29, supra.

This assignment is accordingly overruled.

Referring to the second question, the Chancellor relying upon our recent opinion in Morton v. Johnson City, Tenn., 333 S.W.2d 924, said:

'This Court is of the opinion that the averments of the bills alone present a fairly debatable question. In view of the Morton v. Johnson City case (supra) it would seem a waste of time, effort and money on all parties to require the city to file an answer, for the city in denying the allegations alone would then present a debatable question and the Morton case would apply.'

It is insisted in behalf of appellant that a demurrer admits all matters well pleaded as well as all reasonable, legitimate and natural inferences to be drawn from the bill; that a demurrer admits all allegations of a challenged pleading, and generally is not favored and will be overruled if, by any fair and reasonable intendment, the pleading challenged states, however inartificially, a good case.

There is no question about the correctness of the foregoing fundamental rules when properly applied. The particular insistence here by the appellant is that a simple joinder of issue on pleadings does not present a debatable question on the reasonableness of an ordinance; a debatable question is presented only after evidence is introduced on an issue upon which reasonable minds might differ. Morton v. Johnson City, supra; and State ex rel. Southerland v. Town of Greeneville, 201 Tenn. 133, 297 S.W.2d 68.

On the other hand, it is the position of the City of Nashville, appellee, that the averments of the original bill as amended taken together with those matters of common knowledge and of public record, which the Court will judicially notice, create a debatable issue as to the unreasonableness of Ordinance No. 60-94.

The efficacy of this last statement in the present context depends upon whether this Court can take judicial notice of a certain printed report consisting of 201 pages, which came into being in the following manner. Ch. 241, Private Acts of 1951, created the Community Services Commission for Davidson County and the City of Nashville; Chs. 225 and 226 of the Private Acts for the same year, authorized respectively the County Court of Davidson County and the City Council of the City of Nashville each to appropriate public funds not to exceed $35,000 to be expended by the Community Services Commission, supra, for the purpose of making the survey of the City of Nashville and Davidson County which is popularly referred to in the local newspapers as creating a single metropolitan district. There is no question that we may take judicial notice of these Private Acts of the Legislature. Thornton v. Carrier, 43 Tenn.App. 615, 311 S.W.2d 208, 216.

Also it is established that we may take judicial notice of the municipal charter of Nashville, which is a public law. Johnson v. City of Jackson, 42 Tenn.App. 296, 309, 302 S.W.2d 355.

It is also well established that ordinarily our courts will not take judicial notice of the ordinances or by-laws of a corporate town because they are private laws and are admissible in evidence only upon proof that they are laws of the corporation. Where, however, as in the present suit the bill in equity refers to and incorporates a city ordinance and map as exhibits to the original bill, there is no need to take judicial notice of same and they are proper for consideration on testing a bill by demurrer. Brimer et al. v. Municipality of Jefferson City et al., 187 Tenn. 467, 477, 216 S.W.2d 1.

It is probable that the Chancellor was of opinion that the averments of the bill alone present a fairly debatable question by reason of the fact that this ordinance, which was a part of the original bill, contained in the preamble thereof, a statement in general terms of the reasons for the annexation, as set out in T.C.A. § 6-309. We doubt the correctness of his ruling in this respect, however, because it fails to afford the affected citizen an opportunity to show by evidence that said allegations in the preamble of the ordinance may have been wholly without any evidence to support such purported conclusions of fact. It will be recalled that in the Morton case, supra, voluminous proof was taken on both sides to support the respective contentions and as a result this Court held in the Morton case that a fairly debatable question was presented not by the pleadings but by the evidence.

Therefore, we come back to the determinative question whether we may take judicial notice of the report of the Community Services Commission created by Ch. 241, Private Acts of 1951. We think that we may and should so take judicial notice,...