State ex rel. Stall v. City of Knoxville

• Decision Date: 07 September 1962
• Docket Number: DEANE-HILL
• Citation: 15 McCanless 271,211 Tenn. 271,364 S.W.2d 898
• Parties: , 211 Tenn. 271 STATE of Tennessee ex rel. Dr. B. G. STALL et al. v. CITY OF KNOXVILLE. STATE of Tennessee ex rel. the WEST KNOX UTILITY DISTRICT OF KNOX COUNTY, Tennessee, v. CITY OF KNOXVILLE. STATE of Tennessee ex rel. William E. BADGETT et al. v. CITY OF KNOXVILLE. STATE of Tennessee ex rel.COUNTRY CLUB, INC. and Dr. Ralph Monger et al. v. CITY OF KNOXVILLE.
• Court: Tennessee Supreme Court

Page 898

364 S.W.2d 898

15 McCanless 271, 211 Tenn. 271

STATE of Tennessee ex rel. Dr. B. G. STALL et al. v. CITY OF KNOXVILLE.

STATE of Tennessee ex rel. the WEST KNOX UTILITY DISTRICT OF

KNOX COUNTY, Tennessee, v. CITY OF KNOXVILLE.

STATE of Tennessee ex rel. William E. BADGETT et al. v. CITY OF KNOXVILLE.

STATE of Tennessee ex rel. DEANE-HILL COUNTRY CLUB, INC. and Dr. Ralph Monger et al. v. CITY OF KNOXVILLE.

Supreme Court of Tennessee.

Sept. 7, 1962.

Rehearing Denied Oct. 4, 1962.

G. Edward Friar, William A. Reynolds, Knoxville, for Dr. B. G. Stall et al.

Oscar M. Tate, Jr., Knoxville, for West Knox Utility Dist.

William E. Badgett, Knoxville, pro se and for Deane-Hill Country Club, Inc.

Dexter Christenberry, Knoxville, for Dr. Ralph Monger et al.

C. R. McClain, Knoxville, for appellee.

WHITE, Justice.

The City of Knoxville, acting through its governing body, enacted Ordinances No. 3049, 3050, 3052 and 3053 which annexed to the City the property therein described. These ordinances were passed under the provisions and in accordance with Chapter 113 of the Public Acts of 1955, appearing now as Sections 6-309 et seq. T.C.A.

On December 8, 1960 the complainants, Dr. B. G. Stall, et al., commenced an action in the First Circuit Court for Knox County in the nature of a quo warranto proceeding contesting the validity of all of said Ordinances. The Trial Court upheld the validity thereof and from his action in so doing the parties have appealed and assigned errors.

The pleadings show that the petition of Stall et al. was brought on behalf of himself, Floyd Bradburn, Hugh Metz, Charles M. Burton, et al. and it is therein alleged 'that they are citizens and residents of, and owners of both real and personal property situated within Knox County, Tennessee, in the area sought to be annexed, as hereinafter defined. They are 'aggrieved owners of property' within such area sought to be annexed * * * and as such, bring this suit in the nature of a quo warranto proceeding in behalf of themselves and all other aggrieved owners of property similarly situated'.

The Deane Hill Country Club filed a suit in the Second Circuit Court of Knox County attacking the validity of Ordinance No. 3050 only, and W. E. Badgett, et al. filed an action in the same Court attacking the validity of Ordinance No. 3052 only. The technical record does not show the hour or time of the filing, but it does show they were also filed on December 8, 1960.

On December 20, 1960 West Knox Utility District of Knox County filed a petition in the First Circuit Court attacking the validity of Ordinance No. 3050, and on December 22, 1960 Dr. Ralph Monger filed a supplemental petition to that filed by the Deane Hill Country Club, attacking the validity of the same ordinance. The City of Knoxville demurred to these petitions and the demurrers were sustained in part and overruled in part. The City then moved for a consolidation of all cases, one of which contested the validity of all four ordinances and four of which contested an individual ordinance.

As indicated above, some of the petitions were originally filed in the First Circuit Court and others in the Second Circuit Court. The Judges of these two Courts signed a joint decree consolidating all of the cases with the Stall case which attacked the validity of all four ordinances. Judge Cole of the Second Circuit Court then recused himself from hearing the cases due to an interest in some of them prior to his elevation to the bench. The cases were then heard by Judge Kelly. Based upon the evidence adduced at the hearing which extended over a considerable period of time Judge Kelly withdrew the cases from the jury and ruled in a memorandum opinion that all such ordinances were valid. From a final decree adverse to them, all of the relators appealed.

It is provided in T.C.A. § 6-310 that the issue in a suit attacking the validity of an annexation ordinance is 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 the territory sought to be annexed and the citizens and property owners of the municipality. * * *'

The petitions and the appeals, however, raise other issues, including an attack on the constitutionality of the ordinances and attacks on certain procedural matters in the trial of the cases.

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 Constitutions, of the ordinances and the statutes under which they were passed. We think the action of the Trial Court was proper in this regard. The constitutionality of the statute was upheld in Witt v. McCanless, 200 Tenn. 360, 292 S.W.2d 392, and again in Morton v. Johnson City, 206 Tenn. 411, 333 S.W.2d 924, and was considered established in Knoxville v. State ex rel. Graves, 207 Tenn. 558, 341 S.W.2d 718. These cases established the constitutionality of the statute in question and, therefore, if these ordinances under attack meet the requirements of the statutes they are valid and constitutional.

The Relators contend that the ordinances are invalid because there was not a proper public hearing on them before they were passed. T.C.A. § 6-309 requires 'Notice and public hearing' before the governing body of a municipality may lawfully act upon an annexation ordinance. In Morton v. Johnson City, supra, the criteria for a 'public hearing' as intended by the statute was established. The Trial Judge found in the instant cases that these requirements were met, and the record clearly supports him in this regard. Proper notice of the hearing was given. It was held at the time and place designated in the notice. The Council members were present with the Mayor presiding, the doors were opened to the public. The record shows that opinions and discussions were invited and that many opinions were given and much discussion was had. The council chambers might not have seated all who wished to come. However, the record shows that the meeting lasted for several hours and anyone who wished to be heard had the opportunity. We think that this public hearing fully complied with the intent and purpose of the statute as the Trial Court so held in its opinion:

'These factors of time, place, the privilege of being heard and council-manic attendance, gave to the occasion the legal character of a public hearing as contemplated by the law and the Court so finds and holds.'

It is next contended that these ordinances are invalid because no plan of services for the annexed territories was adopted by the City prior to their passage. This requirement was added to T.C.A. § 6-309 by an amendment which became effective March 17, 1961.

The ordinances in question were passed on November 22, 1960. Therefore, this amendment was not in effect at the time of the passage of said ordinance.

In the case of State ex rel. Hardison v. City of Columbia, 210 Tenn. 514, 360 S.W.2d 39, which opinion was prepared for the Court by Mr. Justice Burnett, and is being delivered simultaneously with this opinion, it is held:

'There was nothing in the amendment which in any way shows that it was intended to be retroactive, that is, apply to ordinances passed before its passage * * *. The statute here in question is merely setting forth an addition to the substantive law of annexation as to what is required by the City fathers before enacting these annexation ordinances. It in no way affects the procedural policy of the law. If what was done at the time these ordinances were passed was valid, this statute in no sense attempts to make what was valid and had been done before invalid. It merely applies to the future and not to the past.'

We think this answers all contentions on this point in the case before us including the contention that the ordinances herein have not been 'passed' since they are not effective until their validity is determined by the Courts. The holding of the City of Columbia case, supra, is that all annexation ordinances passed prior to March 17, 1961 are not affected by this amendment requiring adoption of a plan of services before annexing a large territory as described therein. All ordinances passed after the date of March 17, 1961 are required to comply with the amendment.

The next assignment argued by the Relators is that it was error to try these consolidated actions in the First Circuit Court of Knox County. In support of this argument they show that T.C.A. § 6-310 requires that consolidated annexation cases be tried 'in the first court of appropriate jurisdiction in which suit is filed'. They contend that the petitions of Relators Badgett and Deane Hill Country Club were filed in the Second Circuit Court prior to the filing of the Stall petition in the First Circuit Court.

The record does not disclose whether the Stall petition, the Badgett, or the Deane Hill petitions were filed first in point of time. There are motions before us for a diminution of the record to show that the latter two were filed first, but it is unnecessary to rule on this motion for reasons appearing herein.

As further error, they contend that the acts of Judge Kelly of the First Circuit Court were void because he was not appointed to interchange for Judge Cole of the Second Circuit Court, who recused himself. They contend that application should have been made to the Chief Justice of the Supreme Court for the assignment of a Circuit Judge to hear the cases.

That such application is not necessary seems abundantly clear from the following statutes:

'T.C.A. § 17-207. Interchange by circuit judges.--The circuit judges may interchange with each other or with judges of special courts for one or more courts, or parts of courts, when causes exist making an interchange necessary, or for mutual convenience; * * *.'

No mention is made of any requirement for application to the Chief Justice, nor...