STATE OF TENNESSEE, Upon              )
Relation of LLOYD R. ADAMS,           )
MURPHY W. RALSTON, and                )
W.C. TALLANT,                         )
                                      )
      Plaintiffs/Appellants,          )
                                      )    Rutherford Chancery
                                      )    No. 92CV-820
VS.                                   )
                                      )    Appeal No.
                                      )    01-A-01-9404-CH-00195
CITY OF MURFREESBORO,                 )
TENNESSEE,                            )

      Defendant/Appellee.
                                      )
                                      )
                                                                 FILED
                                                                   Nov. 1, 1995

                    IN THE COURT OF APPEALS OF TENNESSEE         Cecil Crowson, Jr.
                                                                  Appellate Court Clerk

                          MIDDLE SECTION AT NASHVILLE

      APPEAL FROM THE CHANCERY COURT OF RUTHERFORD COUNTY

                          AT MURFREESBORO, TENNESSEE

               HONORABLE ROBERT E. CORLEW, III, CHANCELLOR


PHILLIP L. DAVIDSON
2400 Crestmoor Road
Suite 107
Nashville, Tennessee 37215
ATTORNEY FOR PLAINTIFFS/APPELLANTS


THOMAS L. REED, JR.
City Attorney
111 West Vine Street
P.O. Box 5055
Murfreesboro, Tennessee 37133-5055
ATTORNEY FOR DEFENDANT/APPELLEE


AFFIRMED AND REMANDED

                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION
CONCUR:

BEN H. CANTRELL, JUDGE
HERSCHEL P. FRANKS, JUDGE
STATE OF TENNESSEE, Upon                      )
Relation of LLOYD R. ADAMS,                   )
MURPHY W. RALSTON, and                        )
W.C. TALLANT,                                 )
                                              )
       Plaintiffs/Appellants,                 )
                                              )       Rutherford Chancery
                                              )       No. 92CV-820
VS.                                           )
                                              )       Appeal No.
                                              )       01-A-01-9404-CH-00195
CITY OF MURFREESBORO,                         )
TENNESSEE,                                    )
                                              )
       Defendant/Appellee.                    )


                                         OPINION


       This is a suit to invalidate an annexation ordinance of the City of Murfreesboro. The

plaintiff appealed from the dismissal of his suit, although neither party questioned the

adequacy of the description of the land to be annexed. On October 26, 1994, this Court filed

an opinion pointing out the infirmities of the ordinance and remanded to allow such

infirmities to be remedied.



       On August 28, 1995, a supplemental record was received indicating the remedial

measures taken to which neither party takes exception. Such measures are therefore accepted

as adequate, and attention will be directed to the original issue which was:

               Is the annexation ordinance reasonable, taking into
               consideration the health, safety and welfare of the area to be
               annexed and the city.

See Volmer v. City of Memphis, Tenn. 1990, 792 S.W.2d 446.


       The applicable statute is T.C.A. Section 6-51-103, which reads in pertinent part as

follows:

               Quo warranto to contest annexation ordinance -- Appellate
               review. -- (a)(1)(A) Any aggrieved owner of property which
               borders or lies within territory which is the subject of an
               annexation ordinance prior to the operative date thereof, may
               file a suit in the nature of a quo warranto proceeding in
               accordance with this part, §6-51-301 and title 29, chapter 35 to
               contest the validity thereof on the ground that it reasonably may

                                              -2-
               not be deemed necessary for the welfare of the residents and
               property owners of the affected territory and the municipality as
               a whole and so constitutes an exercise of power not conferred
               by law. . .

                                             * * *

               (c) . . . Suit or suits, shall be tried on an issue to be made up
               there, and the question shall be 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 territory sought to be annexed and the citizens and
               property owners of the municipality . . .


       In the annexation of territory, someone must fix the boundaries, and this power, when

exercised, is legislative and will not be disturbed by the courts unless the action was arbitrary

and unreasonable. State, ex rel Wood v. City of Memphis, Tenn. 1974, 510 S.W.2d 889.



       The whole theory of annexation is that it is a device by which a municipal corporation

may plan for its orderly growth and development. State, ex rel Collier v. City of Pigeon

Forge, Tenn. 1980, 599 S.W.2d 545.



       If two municipalities seek to annex the same territory, the larger municipality has

precedence. T.C.A. §6-51-110(b).



       It appears that the area in question adjoins the city limits of Murfreesboro and fronts

on a U.S. highway at an interchange with an interstate highway under construction.



       It also appears that an attempt is being made to incorporate the same area into a

satellite city smaller than the City of Murfreesboro.



       The Trial Judge filed a lengthy memorandum reciting the evidence and his findings.




                                               -3-
       The appellant presents the following arguments:

               I. The evidence at trial preponderated against the trial court's
               finding that the annexed area needed municipal services.

               II. The fact that the city has the present ability to provide
               services does not prove that the ordinance is reasonable
               especially if there is no proof that the services would ever be
               utilized.

               III. The evidence at trial clearly preponderated against any
               finding that the annexation ordinance was reasonable for the
               health, safety, and welfare of the citizens of the area to be
               annexed and the city.

               IV. The evidence at trial preponderated against any finding
               that the City of Murfreesboro had any legitimate need to
               control the area to be annexed.


Each of these contentions has been examined in the light of the above authorities, the record

and the findings of the Trial Court which are supported by a preponderance of the evidence.



       The judgment of the Trial Court dismissing this suit is affirmed. Costs of this appeal

are taxed against the appellant. The cause is remanded to the Trial Court for any necessary

further proceedings.



       Affirmed and Remanded.

                                              _______________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_____________________________________
BEN H. CANTRELL, JUDGE


_____________________________________
HERSCHEL P. FRANKS, JUDGE




                                              -4-
