State ex rel. Schaltenbrand v. City of Knoxville

788 S.W.2d 812
CourtCourt of Appeals of Tennessee
DecidedMay 12, 1989
StatusPublished
Cited by1 cases

This text of 788 S.W.2d 812 (State ex rel. Schaltenbrand v. City of Knoxville) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Schaltenbrand v. City of Knoxville, 788 S.W.2d 812 (Tenn. Ct. App. 1989).

Opinion

FARMER, Judge.

This is the consolidated appeal of five quo warranto actions which were dismissed for mootness.

On March 24,1987, six ordinances annexing different areas contiguous to the City of Knoxville were passed by the City Coun[813]*813cil on final reading. The following day, these suits were brought pursuant to T.C.A. § 6-51-103 challenging the reasonableness of three of the ordinances. Those ordinances were repealed by the City of Knoxville by ordinances passed on May 17, 1988 and August 25, 1988. Subsequently, the Chancellor dismissed each of these quo warranto actions as moot. Each plaintiff perfected an appeal to this Court where the cases were consolidated.1

We perceive the issue presented to be:

Whether the trial court correctly dismissed these quo warranto actions as moot after the subject annexation ordinances were validly repealed.

This case presents solely a question of law, therefore, this Court must review this question de novo on the record with no presumption of correctness for the Chancellor’s conclusions. Billington v. Crowder, 553 S.W.2d 590 (Tenn.App.1977).

The first question which must be addressed is whether the City has the power to repeal the annexation ordinances which are the subject of pending quo war-ranto proceedings challenging the reasonableness of the ordinances. This question was answered in the affirmative by the Supreme Court in City of Bluff City v. Morrell, 764 S.W.2d 200 (Tenn.1988). In that case, the court held that a mere resolution to kill an annexation suit was insufficient and determined that “[a]n annexation ordinance once validly passed but not yet operative because of a quo warranto proceeding can be repealed when the legislative body acts with equal dignity and in full compliance with procedures required for passing a valid ordinance.” 764 S.W.2d at 202. Generally, “the power of a municipal corporation to repeal an ordinance or a resolution is, by necessary implication, as broad as the power to enact it.” State ex rel Patton v. Mayor and Bd. of Aldermen, City of Lexington, 626 S.W.2d 5, 6 (Tenn.1981). This power is limited when the ordinance sought “to be repealed is contractual in nature, or where it is enacted under a limited grant of authority to do a single designated thing in the manner and at a time fixed by the legislature.” Patton, 626 S.W.2d at 6. Outside of these circumstances, a city may not enact an ordinance which may not be repealed. See 62 C.J.S., Municipal Corporations, § 435(b)(2), p. 835. Furthermore, the repeal of this ordinance would not disturb vested rights because the “right” to a 24-month moratorium on annexing the property does not arise until a finding of unreasonableness is made. Therefore, the City has the power to repeal an annexation ordinance during the penden-cy of quo warranto proceedings. This decision is in accord with other jurisdictions which have considered this question. See Vesenmeir v. City of Aurora, 232 Ind. 628, 115 N.E.2d 734 (1953); Mouton v. City of Lafayette, 49 So.2d 638 (La.App.1950).

Secondly, we must determine the effect of the repeal on the pending actions, i.e., whether the repeal renders the suits moot. This question also must be answered affirmatively because of the Supreme Court’s opinion in Bluff City, supra. The court noted that in Bluff City, the “suit was dismissed for mootness, when in fact the suit was not moot, because the annexation ordinance had not been validly abandoned or repealed.” Bluff City, 764 S.W.2d at 203. Therefore, an annexation ordinance validly repealed by an act of equal dignity, as in the case at hand, would render a pending quo warranto proceeding moot. See also 62 C.J.S., Municipal Corporations, § 438(c) p. 839.

The appellants argue that this case is not moot because the court must still determine whether the now repealed ordinance is reasonable and, if not, enter an order prohibiting annexation of any portion of that territory for 24 months pursuant to T.C.A. § 6-51-103(c). As heretofore discussed, the plaintiffs do not have a vested right to this 24-month prohibition on the passage of the ordinance. Only when it has been judicially determined that said ordinance is unreasonable are the plaintiffs entitled to such ah order.

In Central Soya Co. v. City of Chattanooga, 207 Tenn. 138, 338 S.W.2d 576 [814]*814(1960) the plaintiffs were landowners who had petitioned the City of Chattanooga for a referendum election regarding the annexation of their land. The following day, the City of Chattanooga commenced annexation by ordinance proceedings. Suit was brought to compel the city to proceed by referendum, and plaintiffs contended that to proceed with annexation by ordinance would deprive plaintiffs and others like them from the “opportunity to express their wishes by an election.” 338 S.W.2d at 577. The court noted that language of the statutes regarding both annexation by ordinance and annexation by referendum was not. mandatory and “in both instances it uses the word ‘may’, which according to general usage and common understanding carries the sense of discretion but not of duty_” 338 S.W.2d at 578. The court also referred to T.C.A. § 6-51-106, the provision for abandonment of proceedings, and stated:

Therefore, how can it be said with any reasonable degree of substance that interested persons or residents or property owners have acquired any vested rights by the mere filing of a petition requesting an annexation under either Sec. 2 or 3? If one were started under either section it could be abandoned by the City at any time without any permission or consent of those who suggested the annexation.
Nor is it reasonable to suppose that the intent of this act was to place the burden of the expense of holding an election on the municipality merely because some indefinite number of people, maybe 2 or 3, filed a petition or petitions for annexation.

338 S.W.2d at 578. Likewise, the plaintiffs in the instant suit cannot be said to have acquired any vested rights by virtue of simply filing a quo warranto action. To force the City to continue the suit despite the repeal would be a waste of judicial resources as well as have the effect of denying the City the power to repeal the ordinance. Furthermore, the court may not, without a hearing on the merits, declare the statutes unreasonable simply by virtue of the repeal because “there may be reasons, other than an admission by the City that the proposed annexation ordinance is unreasonable, why a municipality may wish to repeal an annexation ordinance.” Bluff City, 764 S.W.2d at 203.

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788 S.W.2d 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schaltenbrand-v-city-of-knoxville-tennctapp-1989.