State ex rel. Hicks v. City of Chattanooga

OPINION ON PETITION TO REHEAR

W. M. LEECH, Special Justice.

In this cause petitioners have filed an earnest petition to rehear and cite and rely upon the case of State ex rel. Spoone v. Mayor and Board of Aldermen of the Town of Morristown, 222 Tenn. 21, 431 S. W.2d 827 (1968). In our original opinion we were fully aware of the holding in the Spoone case and since that case only reasserted the “fairly debatable” rule pronounced in Morton v. Johnson City, 206 Tenn. 411, 333 S.W.2d 924 (1960) we deemed it unnecessary to discuss that case.

In the Spoone case the lower court found “that the ordinance was so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of delegated legislative power.” (Emphasis added.) In affirming the lower court in that finding, it was pointed out that the advantages testified to by the Town’s witnesses were not directed to the specific area sought to be annexed, which was not a densely populated area.

In the case subjudice conflicting evidence as to the necessity of annexation was to the specific area and was of such a nature and volume as to raise a fairly debatable question. The trial judge’s finding of fact also shows this to be the case. The trial judge did not find that the legislative action of the City “was palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of delegated legislative power.”

We held in our original opinion that the trial judge did not apply to evidence the legal test prescribed by Morton, and after a careful review of the record and the authorities cited, we reaffirm that holding.

All other questions presented in the petition to rehear were fully covered in our original opinion and since several cases were involved the record was carefully read on the original hearing and we have reviewed our original notes and authorities and again hold that the trial judge did not apply the proper rule of law in passing upon the facts as he found them. The evidence introduced as to these two areas presented a fairly debatable question and was therefore a legislative matter.

The petition to rehear is denied.

DYER, C. J., and CHATTIN, Mc-CANLESS and FONES, JJ., concur.