AMERICAN JURISPRUDENCE:

DISTINCTIONS BETWEEN RESOLUTION AND ORDINANCE

A. List of Cases
a. Baker v. City of Milwaukie (1975) *
b. City of Salisbury, Missouri, a Municipal Corporation v. Nagel, (1967)
c. Mitchell v. City of Parshall (1961, North Dakota SC)
d. Kalamazoo Municipal Utilities Association v. City Of Kalamazoo (1956, Michigan
SC)
e. Wallace v. Leahy (1986, Florida)
f. Social Spirits, Inc. v. Town Of Colonie (1979, New York SC)
g. White v. City of Inglis, Florida (2008)
h. Little v. City of North Miami (1986)
i. 7800 BUILDING, INC., a Florida Corporation v.City Of South Miami, Florida, A
Florida Municipal Corporation (1975)
*
full text is in pdf; cannot convert into word
B. Overview

BAKER V. CITY OF MILWAUKIE (1975)

"Generally, whether what is done by a municipal legislative body is an ordinance or a
resolution depends not on what the action is called but on the reality. [W]here a
resolution is in substance and effect an ordinance or permanent regulation, the name
given to it is immaterial. If it is passed with all the formalities of an ordinance it thereby
becomes a legislative act, and it is not important whether it be called ordinance or
resolution."

[I]t may be observed that a resolution deals with matters of a special or temporary
character; an ordinance prescribes some permanent rule of conduct or government, to
continue in force until the ordinance is repealed. An ordinance is distinctively a
legislative act; a resolution, generally speaking, is simply an expression of opinion or
mind concerning some particular item of business coming within the legislative body's
official cognizance, ordinarily ministerial in character and relating to the administrative
business of the municipality."

CITY OF SALISBURY, MISSOURI, A MUNICIPAL CORPORATION V. NAGEL, (1967)

...a resolution is a very different thing from a law or an ordinance. A resolution is
merely a suggestion or direction in writing, concurred in by the two houses of the
assembly, if there be two houses, or passed by one house, if there be but one, and not
submitted to the executive for his approval. A resolution is ordinarily passed without the
forms and delays which are generally required by constitutions and municipal charters
as prerequisites to the enactment of valid laws or ordinances. It need be read but once
and may be passed by a viva-voce vote, without calling the ayes and noes, whereupon,
when engrossed, it becomes operative.


MITCHELL V. CITY OF PARSHALL (1961)

"While the terms `resolution' and `ordinance' have been used interchangeably, and the
term `resolution' has been held to be the equivalent of the term `ordinance,' a
resolution generally is less solemn and formal than an ordinance. A resolution has also
been distinguished from an ordinance in that an ordinance is a continuing regulation, a
permanent rule of conduct or government, while a resolution ordinarily is an act of a
special or temporary character, not prescribing a permanent rule of government, but is
merely declaratory of the will or opinion of a municipal corporation in a given matter,
and in the nature of a ministerial or administrative act, and is not a law.


KALAMAZOO MUNICIPAL UTILITIES ASSOCIATION V. CITY OF KALAMAZOO

"If no statute prescribes a method of action and no charter provision requires it, when
the action is merely declaratory of the will of the municipal corporation in a given
matter and is in the nature of a ministerial act, it is proper to act by resolution."

A resolution is not a law or an ordinance but merely the form in which a legislative
body expresses a determination or directs a particular action. An ordinance prescribes a
permanent rule for conduct of government, while a resolution is of special or temporary
character.


WALLACE V. LEAHY (1986)

...a resolution cannot be substitued for and have the force and effect of an ordinance,
nor can a resolution supply initial authority which is required to be vested by
ordinance.


SOCIAL SPIRITS, INC. v. TOWN OF COLONIE (1979)

"The distinction between a resolution and an ordinance is that a resolution is an order of
the council of a special and temporary character while an ordinance prescribes a
permanent rule of government or conduct. (2 Dillon on Municipal Corporations [5th
ed.], 571.) It has also been said that an ordinance is a continuing regulation a
permanent rule of government, while a resolution is usually declared not to be the
equivalent of an ordinance, but rather an act of a temporary character not prescribing a
permanent rule of government, but is merely declaratory of the will of a corporation in a
given matter and in the nature of a ministerial act."


WHITE v. CITY OF INGLIS, FLORIDA (2008)

"ordinance" as "an official legislative action of a governing body, which action is a
regulation of a general and permanent nature and enforceable as a local law." Section
166.041(1)(b) defines "resolution" to mean "an expression of a governing body
concerning matters of administration, an expression of a temporary character, or a
provision for the disposition of a particular item of the administrative business of the
governing body." "A resolution cannot be substituted for and have the force and effect
of an ordinance, nor can a resolution supply initial authority which is required to be
vested by ordinance."


LITTLE V. CITY OF NORTH MIAMI (1986)

Legal actions which are "required to be accomplished by ordinance may not be
accomplished by resolution.



7800 BUILDING, INC., A FLORIDA CORPORATION V.CITY OF SOUTH MIAMI, FLORIDA, A
FLORIDA MUNICIPAL CORPORATION (1975)

A resolution cannot be substituted for and have the force and effect of, an ordinance,
nor can a resolution supply initial authority which is required to be vested by ordinance.



C. FULL TEXT OF THE CASES

420 S.W.2d 37 (1967)
CITY OF SALISBURY, Missouri, a Municipal Corporation, Plaintiff-Respondent,
v.
Gene NAGEL et al., Defendants-Appellants.
No. 24599.
Kansas City Court of Appeals, Missouri.
October 2, 1967.
39*39 Robert Devoy, Brookfield, James J. Wheeler, Keytesville, for appellants.
George S. Thompson, Salisbury, for respondent.
CROSS, Judge.
Plaintiff, City of Salisbury, a city of the forth class, brought this action pursuant to Section
71.015 V.A.M.S., the so-called Sawyers Act, seeking a declaratory judgment authorizing it to
annex adjoining territory consisting of three small tracts aggregating approximately 131 acres.
The cause was instituted as a class action under provisions of Section 507.070 V.A.M.S. against
twenty defendants alleged to be fairly representative of all the inhabitants and landowners of
the area sought to be annexed. Thereafter by leave of court two additional parties intervened
as defendants. Upon trial the court found the issues generally in favor of plaintiff and made
specific findings (among others) "that this is a class action and that the defendants named
herein and the defendant interveners joined herein provide adequate representation of all that
constitutes a class who will be affected 40*40 by this action as provided by Section 507.070
VAMS.", and that "the annexation of the above described areas is reasonable and necessary to
the proper development of the City of Salisbury and that said City of Salisbury has the ability to
furnish normal municipal services to the aforementioned annexed areas within a reasonable
time;". In conformity with those findings judgment was entered authorizing annexation of the
three proposed areas. Defendants have appealed.
The appeal raises issues as to whether the defendants named and who intervened provided
adequate representation of all members of a class affected by the action, whether the trial
court should have stricken plaintiff's pleadings for failure to answer interrogatories, whether
passage of the resolution for annexation was lawful, and whether the trial court's finding that
the proposed annexation was reasonable and necessary to the proper development of the city
is supported by the evidence. In determining these questions we must view the case upon both
the law and the evidence, weigh the evidence, and render such judgment as the trial court
ought to have given. The judgment shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of the
witnesses. Civil Rule 73.01(d), V.A.M.R.; City of Creve Coeur v. Huddleston et al., Mo.App., 405
S.W.2d 536.
As their first point defendants contend the trial court erred by including in its findings the
following recital: "On December 8, 1965, the day said cause was set for trial, there appeared
before the court plaintiff represented by its attorney, George S. Thompson, and defendants
Richard Gesling, Carl Freese, Gene Nagel, Charles F. Tadlock, Audra McClain, George Edward
Williams, George T. Roling, Anna Grigsby, William Leber, Neil Davis and William Randolph,
represented by their attorney, James J. Wheeler, and all other defendants were duly served or
voluntarily entered their appearances but did not appear in person or by counsel and did not
actively participate in the trial." (Our italics.) Defendants insist that the quoted recital "is not
supported by the evidence or this record," in that "There is nothing in the record to show that
any of the other defendants (those not specifically named), and certainly not any defendants
representing a class, were either served or voluntarily entered their appearance." Defendants
are reminded that it is not the respondent's burden to show that the finding in question is
supported by the record. To the contrary, it is presumed that the finding is correct. Under that
presumption defendants, as appellants, have the burden of affirmatively establishing the
alleged error. 3 Mo.Digest 1, Appeal and Error, 900-901. The transcript before us contains no
entry or recital that is incorrectly reflected by or inconsistent with the trial court's finding.
Consequently we rule that no error has been shown with respect thereto.
Defendants complain the court erred to their prejudice by refusing to strike plaintiff's pleading
"for failing to answer interrogatories." The interrogatories in question are here quoted:
"29. State the total bank deposits in the City of Salisbury in the years of: (a) in 1900 (b) in 1910
(c) in 1920 (d) in 1930 (e) in 1940 (f) in 1950 (g) at the present time.
30. State the total saving deposits in the City of Salisbury in: (a) in 1900 (b) in 1910 (c) in 1920
(d) in 1930 (e) in 1940 (f) in 1950 (g) at the present time.
31. State the total number of bank clearings in: (a) in 1900 (b) in 1910 (c) in 1920 (d) in 1930 (e)
in 1940 (f) in 1950 (g) at the present time.
34. State the total number of electricity users in: (a) 1920 (b) 1925 (c) 1930 (d) 1935 (e) 1940 (f)
1945 (g) 1950 (h) 1955 (i) the present time.
41*41 35. State the total number of water users in the years of: (a) 1920 (b) 1925 (c) 1930 (d)
1935 (e) 1940 (f) 1945 (g) 1950 (h) 1955 (i) at the present time."
Plaintiff responded to the quoted interrogatories in the first instance by answers as follows:
"29. Information here sought not information peculiar to city and such information is as
available to defendants as to plaintiff.
30. See 29 above.
31. See 29 above.
34. (a) unknown (b) unknown (c) unknown (d) unknown (e) unknown (f) unknown (g) unknown
(h) unknown (i) unknown.
35. (a) unknown (b) unknown (c) unknown (d) unknown (e) unknown (f) unknown (g) unknown
(h) unknown (i) unknown."
Thereafter, on motion of interrogating defendants, the trial court ordered that plaintiff file
more specific answers, pursuant to which plaintiff filed, on September 28, 1964, its "Second
Answers" which included the following:
"In answer to interrogatory No. 29 plaintiff says it does not know the answers to said questions
a, b, c, d, e, f, and g.
"In answer to interrogatory number 30 plaintiff says that it does not know the answers to
questions a, b, c, d, e, f and g.
"In answer to interrogatory number 31 plaintiff says that it does not know the answers to
questions a, b, c, d, e, f, and g.
"In answer to interrogatory number 34 plaintiff states that it does not know the answers to
questions a, b, c, d, e, f, g, h, and i. Further answering plaintiff states that at the present time
the Board of Public Works mails out 980 statements to electricity users.
"In answer to interrogatory number 35 plaintiff states that it does not know the answers to
paragraphs a, b, c, d, e, f, g, h and i. Further answering plaintiff states that the Board of Public
Works sends statements to approximately 750 water customers."
Thereafter defendants filed and the court overruled their motion to strike plaintiff's pleadings
on the ground that the answers plaintiff had filed to the interrogatories submitted to it,
inclusive of those numbered 29, 30, 31, 34 and 35, did not comply with the rule which requires
full and complete answers to interrogatories.
In argument of this point defendants have virtually abandoned complaints directed against the
sufficiency of plaintiff's answer to interrogatories numbered 29, 30 and 31. They suggest no
reason why the trial court should have taken punitive action against plaintiff because its
answers to those questions went no further than to disclaim any knowledge relative to the
amount of bank deposits, savings deposits and bank clearings in Salisbury at the "present time"
or at various times during the previous sixty-five years. For that matter, it is clear to us that the
trial court would have exceeded its authority in requiring additional answers or striking
plaintiff's pleadings on the ground that the answers were insufficient. Civil Rule 56.01 does not
require a party to furnish information upon interrogation other than such as is "available" to
him. The information necessary to answer Interrogatories Nos. 29, 30 and 31 "more fully," (or
even to any extent at all) was not reasonably available to plaintiff. The law does not require or
permit plaintiff city to perform the ultra vires function of compiling and preserving statistical
financial data of the kind about which defendants inquire. Further answers could have been
made only on the basis of information obtained by interviewing the officers and employees of
depository banks and other financial institutions which are42*42 strangers to this suit, or by
making an investigation into their books and records. "The court can not properly require a
party to conduct such an investigation and any attempt to do so is in excess of the jurisdiction
of such court." State ex rel. Mid-America Pipeline Company v. Rooney, Mo.App., 399 S.W.2d
225.
Nor is it our opinion that any portion of plaintiff's answers to interrogatories 34 and 35
constitutes "refusal of a party to answer any interrogatory" as basis for an order of court
striking plaintiff's pleadings. Although, as owner of municipal electric and water systems, the
city could be expected to have reasonably current records showing the number of its own
electric power and water consumers, it may not be assumed, or reasonably expected, that
when the city filed answers to the interrogatories in 1964 there were any records still in its
possession or information was available to it to show the number of such customers during the
years from 1920 through 1950. The city's answers disclose the total number of electricity and
water patrons "at the present time," i. e., as of September 28, 1964. In the same answers it is
stated, under oath, that the city does not know the total number of electricity and water users
in 1920, 1930, 1935, 1940, 1945, 1950 and 1955. Defendants do not attack the veracity of these
verified answers. We therefore accept them as representations of the truth conclusively
establishing that the information sought was not available to the city. Thus the matter is
foreclosed. See State ex rel. Mid-America Pipeline Company v. Rooney, supra, and cases there
cited.
Defendants challenge the legal sufficiency of the resolution to annex additional territory on the
ground that no entry was made on the journal or in the minutes of proceedings of the board of
aldermen to show the "ayes" and "nays" voted on the propositiona procedure prescribed by
Section 79.130 V.A.M.S. as requisite to enactment of a valid ordinance by a city of the fourth
class. In fact the ayes and nays were not recorded, but the minutes of the meeting of the board
at which the resolution was presented recite that all members of the board were present
except one, and that the resolution to annex was adopted by a vote of 5 to 0.
Defendants argue that the terms "resolution" and "ordinance" are interchangeable and that a
resolution is not effective unless passed in the manner provided by Section 79.130 V.A.M.S. for
the enactment of ordinances. Defendants' view that a resolution and an ordinance are the
same thing is not shared by Missouri courts which have considered the question. In City of Cape
Girardeau v. Fougeu, 30 Mo.App. 551, the court noted: "According to ordinary parliamentary
practice, a resolution is a very different thing from a law or an ordinance. A resolution is merely
a suggestion or direction in writing, concurred in by the two houses of the assembly, if there be
two houses, or passed by one house, if there be but one, and not submitted to the executive
for his approval. A resolution is ordinarily passed without the forms and delays which are
generally required by constitutions and municipal charters as prerequisites to the enactment of
valid laws or ordinances. It need be read but once and may be passed by a viva-voce vote,
without calling the ayes and noes, whereupon, when engrossed, it becomes operative."
In Haskins v. City of DeSoto, Mo.App., 35 S.W.2d 964, the court held as follows: "Now it will not
do to say, as defendant seems to argue, that a municipal corporation can act only through an
ordinance, for the general law is quite to the contrary. Of course, in the large majority of
instances the statutes do require the formality of an ordinance to warrant a city in exercising
the power conferred upon it; and, where the statute so provides, there is no doubt that an
ordinance authorizing it is a necessary condition precedent to the making of a valid and
enforceable municipal contract. * * * However, the authorities hold that, in the absence of such
statutory requirements, 43*43 that is, when the mode of contracting is not prescribed by
statute or charter, as the case may be, no ordinance or resolution is necessary to the making of
the contract, nor is it even essential that it be in writing. 44 C.J. 97; 19 R.C.L. 1060."
Recent decisions of the Supreme Court have construed the term "resolution" as it is used in the
Sawyers Act. In Julian v. Mayor, Councilmen and Citizens of the City of Liberty, Mo., 391 S.W.2d
864, the Supreme Court commented and ruled as follows: "`The term "resolution" denotes
something less formal than the term "ordinance"; generally it is a mere expression of the
opinion or mind of the council concerning some matter of administration coming within its
official cognizance, and provides for the disposition of a particular item of the administrative
business of a municipal corporation. * * * A resolution is not a law, and in substance there is no
difference between a resolution, order and motion.' 37 Am.Jur. Municipal Corporations 142;
62 C.J.S. Municipal Corporations 411; Vol. 5 McQuillin, Municipal Corporations, 15.02; Baker
v. Lake City Sewer Dist., 30 Wash.2d 510, 191 P.2d 844; Mitchell v. Parshall, N. D., 108 N.W.2d
12; Kalamazoo Municipal Utilities Association v. City of Kalamazoo, 345 Mich. 318, 76 N.W.2d 1,
61 A.L.R.2d 583. In the absence of some express requirement, a resolution need not be in any
set or particular form, 37 Am.Jur. Municipal Corporations 145, and while a resolution `is a
very different thing' from an ordinance, City of Cape Girardeau v. Fougeu, 30 Mo.App. 551,
556, and will not suffice when action on the part of a municipality is required to be taken by
ordinance, Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494, 499, every
ordinance necessarily includes all the essential elements of a resolution.
"Turning now to the language of the Sawyers Act, it provides that whenever the governing body
of any city has adopted a resolution to annex, or stated another way, whenever the governing
body of any city has expressed its intention to annex any unincorporated area of land, then
`before proceeding as otherwise authorized by law or charter' the declaratory judgment
provided for therein shall be obtained. We consider it to be immaterial how that intention to
annex is expressed, that is, by a resolution denominated as such, by a motion or order of the
governing body of the city, or by an ordinance, which is more than but includes all the elements
of a resolution. The name given to the action of the governing body is not the controlling factor.
The clearly expressed intent of the Legislature in enacting the Sawyers Act was that any city to
which the Act is applicable shall not proceed beyond the expression of intent to annex until it
obtains the declaratory judgment therein required, and to hold otherwise would be to give an
extremely technical construction to the words used, and would result in thwarting the obvious
purpose of the statute. We hold in this case that the Sawyers Act by its terms is applicable to
the City of Liberty, and that once the governing body thereof announced its intention to annex
an unincorporated area of land, regardless of how that intention was expressed, the
requirement of the Sawyers Act became mandatory, and constituted a condition precedent to
the exercise of the delegated legislative authority to annex an unincorporated area." Also
see City of Hannibal v. Winchester, Mo.Sup., 391 S.W.2d 279.
We are persuaded by the foregoing authority to rule in this case that the mandatory formalities
of procedure prescribed by Sec. 79.130 for passage of an ordinance have no application to the
passage of a resolution and that therefore the recording of the ayes and nays was not
prerequisite to the validity of the resolution here involved.
Defendants' main point is a contention the trial court erred in finding that the proposed
annexation was reasonable and necessary to the proper development 44*44 of the city when
there was no evidence to support such a finding. The question presented does not require this
court to determine the advisability or propriety of the proposed annexation, since that is a
matter of political decision resting within the legislative discretion of the city. "Judicial review of
this discretion is limited to a determination to the reasonableness of the legislative action; and
if there is a sufficient showing of reasonableness to make that question fairly debatable, then
the legislative decision is conclusive. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d
4(7); Julian v. Mayor, Councilmen and Citizens of the City of LibertyMo., 391 S.W.2d 864(3); In
reaching our decision we may not overlookand we have not the principle that in judicially
determining the issue of reasonableness we must consider the comparative benefits and
detriments to both the City and the area to be annexed. City of Olivette v. Graeler, Mo., 338
S.W.2d 827(16); City of Aurora v. Empire Dist. Elec. Co., Mo.App., 354 S.W. 2d 45(4)." City of
Creve Coeur v. Huddleston, Mo.App., 405 S.W.2d 536.
It is not feasible or necessary to digest in detail the large volume of evidence before us. Its
substance insofar as it relates to our decision is here set out. The population of Salisbury in
1960, as shown by the census of that year, was 1787, an increase of 6% since the preceding
census. The population figure for the current year was not available. The city's municipal
services include: an electric light and power system; a water system; a sewer system, inclusive
of a disposal lagoon; a police department staffed by three regular and two extra police officers;
a fire department with two fire fighting units and a regularly employed chief; a street
department employing three men; a public library; and, a public park with recreational
facilities. The city is in sound financial condition, has a current tax rate of $1.50, and has no
need for or prospect of incurring additional bonded indebtedness. The downtown business
district extends three blocks. It contains several vacant business buildings, none of which
appear suitable for modern commercial purposes, being at least sixty years old and no wider
than thirty feet. There are approximately eighty "vacant" lots in the city, inclusive of all
properties which occupy more than one "lot" as that term is used in legal descriptions. There is
no evidence to indicate whether any are available for sale. Although industries are presently
seeking sites for location in the area, there appear to be none within the city suitable for
industrial purposes. Highway 24 describes an are generally around and close to the present
northwestern and northern boundaries of the city. The Wabash Railroad lies south of Highway
24 and bisects the northern portion of the city.
The principal portion of the area proposed for annexation lies generally in a curve along both
sides of Highway 24 as it sweeps around the northwestern and northern boundaries of the city.
During the last twenty years, and particularly the last ten years, this area has undergone a very
substantial development for commercial and industrial purposes. At the time of the trial a total
of at least thirty-seven business establishments had been built and were operated in the area,
including five restaurants; seven automobile service stations; three garages; three implement
companies; two food markets; three veterinarian establishments, one being a small animal
hospital; a laundry service; a feed store; a liquor store; a bowling alley; a rural gas service; a
motel; a produce business; a junk and salvage yard; a sporting goods store; a trading post; a gas
and oil bulk plant; a fertilizer plant; a trailer court; and, a furniture store. There are at least two
suitable industrial sites in the proposed area, one of which has been under contract option. A
substantial number of residences have been built in the area.
The city's light and power service is presently available to the entire proposed area. Water
service is available to consumers in the area who extend water lines 45*45 from the city's
mains and pay a small monthly service fee. In some instances city sewers are in use by patrons
in the area. All of the businesses, with one exception, and all of the houses within the area,
receive one or more of the utility services furnished by the city (water, electricity or sewer) and
several businesses enjoy all three services. The city presently furnishes to the proposed area,
without cost, municipal services consisting of fire protection, police protection, and part time
street maintenance, and provides street lighting in some portions of the area.
The evidence shows that the three utility services (electricity, water and sewers) are adequate
to supply all of the proposed area in addition to the city itself. The water system is modern, is
sufficiently capable of supplying "two to three times the need," and its mains at the present
time are within fifty feet of all potential users in the area. The sewer system is also modern and
adequate to serve both the city and the area, and will be available to all area users. Other
advantages would accrue to the proposed area from annexation. The city would be enabled to
furnish improved police services, such as more frequent patrolling. If annexed, the area would
receive better fire protection because both of the city's fire trucks would then be available to it,
whereas presently only one of the fire trucks is permitted by ordinance law to leave the city
limits. Street lighting would be augmented to the area's needs. All of the city's street
maintenance equipment would be available to service the streets of the area. No additional
equipment is needed. By the foregoing evidence the city has satisfactorily demonstrated its
ability to furnish normal municipal services to the proposed annexation area. City of St. Ann v.
Buschard, Mo.App., 356 S.W.2d 567.
Defendants' principal prong of defense is argument that "much of the area sought to be
annexed is suited only for agricultural purposes." This statement does not accurately reflect the
record. The "agricultural" lands referred to consist of one three acre tract belonging to one
Steinebach on which the owner feeds fifteen head of hogs and four calves; a small irregular
tract lying along Highway 24 belonging to defendant Anna Grigsby; also two tracts lying
alongside Highway 24 belonging to defendant Williams, one of which is a hog pasture, the other
a field "you can cultivate" but which is not said to be in cultivation. We do not believe that any
of the above described tracts should presently be classified as "agricultural" lands. As for the
Williams tracts, for the past twenty years he has sold, from lands similarly located in the area
and of like nature, numerous smaller tracts for commercial building sites at prices ranging from
$1,000.00 to $1,500.00 an acre. It is apparent from his testimony that he values his remaining
holdings at similar figures. The Steinebach and Grigsby parcels are similar in nature and
location, i. e., immediately fronting upon Highway 24, and there is no reason to believe that
their highest and best use would be other than for building sites in the area and that their
market value for that purpose would be any less than the above prices received by Williams for
his acreage. The evidence shows that farm land in the Salisbury area that is truly agricultural in
its nature and use has a market value of no more than approximately $300.00 an acre. On this
question the Supreme Court said in State ex inf. Major v. Kansas City, Banc, 233 Mo. 162, 134
S.W. 1007: "If land near a city is being held for prices far above any rural use, and men in that
city are willing to pay for it prices far in excess of any rural use, that land is as fairly within the
future development of the city as the judgment of those who are most interested can place it. *
* * nor does it matter that a considerable part of the land is at present used for agriculture; as
its value is derived from its prospective town use, and not from its present country use, it might
properly be included within the city." Also see State ex inf.Mallett ex rel. 46*46 Womack v. City
of Joplin, 332 Mo. 1193, 62 S.W.2d 393, where the court ruled to the effect that land, though
used for agriculture, may lose its character as such when it attains a value far in excess of its
real agricultural value, and thus become subject to annexation.
Defendants also argue that the annexation would be unreasonable because some structures
which were built after the litigation was commenced are partially within and partially outside of
the proposed area. No supporting authority is submitted. We believe this theory is unsound. In
the first place, the reasonableness of the annexation proposed is for determination under the
conditions shown to exist at the commencement of the suit. Secondly, if the law were as
defendants suggest, any annexation proceeding could be defeated by building a structure partly
in and partly outside the proposed area boundary line after the petition is filed and before trial.
As for the major portion of the proposed area, the evidence presents the familiar picture of a
frequently recurring phenomenon spawned by this automotive age: a quasi-municipal
community, principally commercial, partly residential, negligably agricultural, that has
spontaneously originated and developed alongside a major highway at the outskirts of an
existing municipality. The community in this case has some attributes of a city, but lacks certain
factors requisite to orderly growth and a healthy social structure. It is not able to furnish for
itself the essential public services which only a governmental unit can provide, as the city is now
doing. And, while it bears physical resemblance to a city, it has none of the municipal powers
necessary for systematic development and to protect the various interrelated interests of its
community membership.
For that matter it seems clear to us that the dvelopments in the proposed area represent an
actual growth of Salisbury itself, especially in view of the city's lack and need of industrial sites
and suitable commercial buildings, and the adaptability of most, if not all, of the land in the
area to town uses, which is reflected in its greatly increased value. Furthermore, as a matter of
public policy, it is not unreasonable that Salisbury should have a voice in guiding the growth of
this area "which is growing up in such a miscellaneous fashion on its doorstep," City of St.
Joseph v. Hankinson, Mo.Sup., 312 S.W.2d 4. These enumerated factors are universally held to
favor annexation. "Sometimes one factor alone is of importance; sometimes several combine
their weight to determine the matter." State ex inf. Major v. Kansas City, Banc, 233 Mo. 162,
134 S.W. 1007. In Mauzy v. City of Pagedale, Mo.App., 260 S.W.2d 860, the court said: "In fact,
there can be no hard and fast rule laid down for determining the reasonableness of a proposed
extension; and a case of reasonableness is made when it appears that the land annexed is so
situated as to be adapted to urban purposes, and as to be necessary or convenient to a proper
exercise of the city government, even though a portion of the land may be as yet undeveloped
or in use for agricultural pursuits." For all these persuasive reasons we have concluded that the
city has shown a reasonably immediate need for extension of its boundaries.
From the standpoint of the proposed area, its annexation to the city would give it the benefit
of complete electric, water and sewer services as they are presently enjoyed by the city proper,
the benefit of municipal government as a stabilizing factor of community life, and the benefit of
improved services in police protection, fire protection, street lighting and maintenance,
sanitation, health and welfareall to be rendered on the basis of municipal obligation rather
than as a courtesy or gratuity extended by the city.
The city has satisfied its burden in this case by proving that there is, at least, a debatable
question whether the proposed annexation is reasonable and necessary to its proper
development.
47*47 One more question remains for decision. Defendants charge the trial court with error in
permitting plaintiff to maintain this suit as a class action, for the stated reason that plaintiff
failed to prove the defendants were fairly chosen and adequately and fairly represented the
whole class. It is not contended that plaintiff's petition is insufficient to support such proof.
It is provided by the Sawyers Act that "Such action (for a declaratory judgment authorizing
annexation) shall be a class action against the inhabitants of such unincorporated area under
the provisions of section 507.070, RSMo [1949]." Subsection one of Section 507.070 provides,
in part, that: "If persons constituting a class are very numerous or it is impracticable to bring
them all before the court, such of them, one or more, as will fairly insure adequate
representation of all may, on behalf of all, sue or be sued, * * *." Section 507.070 is
supplemented by Civil Rule 52.09, which imposes the following requirement: "Whenever an
action is instituted by one or more plaintiffs as representative or representatives of a class or
against one or more defendants as representative or representatives of a class, the petition
shall allege such facts as shall show that they or the defendants specifically named and served
with process have been fairly chosen and adequately and fairly represent the whole class. The
plaintiff shall be required to prove such allegations, unless all of the members of the class have
entered their appearance, and it shall not be sufficient to prove such facts by the admission or
admissions of the defendants who have entered their appearance." The foregoing
requirements, both by statute and civil rule, are mandatory and not merely technical or
directory. Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595; Hribernik v. Reorganized School
District R-3, Mo.App., 276 S.W.2d 596 (cited by defendants). Although various considerations
have material bearing upon the question whether representatives of the class in an action
under Section 507.070 have been fairly chosen and have afforded the class legally adequate
representation, that question is to be determined from the particular facts appearing in each
individual case. City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546;
[1]
Sheets v. Thomann,
Mo.App., 336 S.W.2d 701. The substance of defendants' argument on this point, other than
references to Section 71.015, Section 507.070, Civil Rule 52.09, and two Missouri cases, is that
"There is no evidence as to how many farmers, how many merchants, how many service
stations, are affected, and none as to other occupations. There is no evidence as to how those
chosen to be served with process were selected, or as to their occupation or interest. For all the
record shows, all of those served with process could represent but one single group and one
single interest." This argument is not consistent with the record, as will be demonstrated.
As noted heretofore, this suit was brought against twenty defendants, all of whom were either
duly served with summons or entered their appearance. Contrary to defendants'
representation, there is evidence in the record amply sufficient to identify fourteen of those
original defendants with respect to their business and property interests, as follows: Gene
Nagel, filling station operator; Richard Gesling, feed store proprietor; Anna Grigsby, land owner;
William Todd, owner of business building; George Edward Williams, owner of land from which
lots have been sold for commercial and industrial purposes; Louis Sellmeyer, a landowner; Neil
Davis, salvage yard operator; Russell Wright, filling station operator; Thomas Keen, a residence
owner; William Leber, restaurant operator and sporting goods dealer; Audra McClain,
implement dealer; Carl Freese, garage owner; William Sturm, bowling 48*48 alley and
restaurant operator and home-owner; George Roling, IGA store owner.
The record discloses that eleven of the twenty original defendants filed answer and otherwise
resisted prosecution of this suit. Those active participants were defendants Carl Freese, Richard
Gesling, Gene Nagel, Charles F. Tadlock, Audra McClain, George Edward Williams, George T.
Roling, Anna Grigsby, William Leber, Neil Davis and William Randolph.
The persistent and vigorous defense conducted by those eleven answering defendants, as
shown by the record itself, is convincing proof that they were fairly chosen and did in fact
adequately and fairly represent the whole class. At the outset they employed and have since
been represented by able counsel of recognized ability. Prior to answer they attacked plaintiff's
petition by a motion to dismiss and a motion to make more definite and certain. Those motions
were denied and thereafter they filed a joint answer. Next they filed "Defendants' First
Interrogatories" consisting of 52 questions. Dissatisfied with plaintiff's answers thereto, they
filed their "Motion to Compel Answers to Interrogatories", pursuant to which, on order of the
court, they received more specific answers to their "First Interrogatories." Thereafter they filed
a second "Separate" answer, which was followed by their "Motion to Strike Pleadings for
Failure to Answer Interrogatories", and in turn by their "Motion to Add, Drop and Substitute
Parties," and finally a second "Motion to Dismiss." Three hundred pages of transcript devoted
to the trial alone disclose a continued vigorous and ably conducted opposition to plaintiff's
efforts in this action, which is further manifested by their prosecution of this appeal. Since it is
clearly apparent from the record before us that the proceedings herein were genuinely
adversary, and in view of the wide diversification of business and property interests possessed
by the named defendants, as shown by the evidence, we conclude that the plaintiff has
satisfied its burden to show that its selection of defendants to represent the whole class has
satisfied the law's requirements and that the trial court did not err in so ruling. In reaching this
result we have duly considered the case, City of Lebanon v. Holman, Mo.App., 402 S.W.2d
832, cited and relied upon by defendants, where the only active defendants to represent widely
divergent property interests were a veterinarian, a retired undertaker and an automobile
supply dealer who owned grazing land in the proposed area. Those facts are materially
different from the facts before us. The cited case is not persuasive on the instant question.
The judgment is affirmed.

108 N.W.2d 12 (1961)
C. H. MITCHELL, Frank Soderberg, Leland Patten, P. F. Debertin, Axel Olson, and Joe Waldock,
on their own behalf and as residents and taxpayers of the City of Parshall, North Dakota, and
on behalf of all other residents and taxpayers similarly situated, Plaintiffs and Respondents,
v.
CITY OF PARSHALL, a municipal corporation of the State of North Dakota; and Albert Spitzer,
as Mayor of the City of Parshall; and William P. Martens, as City Auditor of the City of
Parshall; and Larson and Teigen Construction Company, a foreign corporation, Defendants,
and
City of Parshall, a municipal corporation of the State of North Dakota, Defendant and
Appellant.
No. 7844.
Supreme Court of North Dakota.
March 9, 1961.
13*13 Gerald W. Krengel, Parshall, for defendant and appellant.
Joseph J. Funke and Jonathan C. Eaton, Jr., Minot, for plaintiffs and respondents.
ROY K. REDETZKE, District Judge.
This is an appeal from the decision of the trial court granting the relief prayed for in the
plaintiffs' complaint, wherein the plaintiffs sought to have a contract entered into between the
City of Parshall, North Dakota, and the defendant Larson and Teigen Construction Company
declared illegal and void. The contract was made and entered into by and between the parties
on May 12, 1958, wherein the said defendant company agreed to furnish certain materials and
construct street improvements, including storm drainage, curbs and gutters in the said City of
Parshall.
The material facts concerning the validity of said contract so attacked are as follows: On
February 3, 1957, the City of Parshall by resolution created curb, gutter, street and storm sewer
District No. 1 in said city. Thereafter and on April 7, 1958, a resolution of necessity was
presented to the city council of Parshall, and at the same meeting the plans and specifications
for the improvements in said District No. 1 were approved, together with "estimate cost of
plans and specifications for street improvements, to include storm drainage, curb, gutter, sub
base and stabilized base for the City of Parshall, N. Dak. Carried." At a special meeting of the
city council of the City of Parshall on May 12, 1958, protests as to the proposed improvements
were considered and declared inadequate. At said meeting the bid of the defendant company
for the street improvement work in said District No. 1 in the sum of $158,740.50 was approved
and a contract for the work was executed between the defendant city and the said company.
This contract is the one now being attacked in this proceeding.
It is contended by the plaintiffs that the resolution creating improvement District No. 1 of the
City of Parshall is invalid because at the meeting at which said resolution was passed on
February 3, 1957, the yea and nay vote of the respective members of the city council in
attendance was not taken and entered in the minutes of that meeting. The statute of the State
of North Dakota which was in effect on that date provides as follows:
"The yeas and nays shall be taken and entered on the journal of the governing body's
proceedings upon the passage of all ordinances and upon all propositions creating any liability
against the city or providing for the expenditure or appropriation of money, and in all other
cases at the request of any member." Section 40-1103, NDRC 1943.
The case of Pickton v. City of Fargo, 10 N.D. 469, 88 N.W. 90, is cited by counsel for the plaintiffs
herein as authority for their contention that the creation of an improvement district by the
governing body of a municipality is controlled by said statute. However, in that case the
improvement district was created by ordinance. In the instant case the City of Parshall created
the improvement district by resolution, and not by an ordinance. Section 40-2208, 1957
Supplement to NDRC 1943, which was in effect on February 3, 1957, 14*14 specifically
authorized the creation of a special improvement district by ordinance or resolution. This
authority was vested in the governing body of a municipality by Chapter 267, Section 2, Session
Laws of North Dakota for 1949. Prior to that time and from 1943, under Section 40-2208 NDRC
1943, any municipality which financed the making of any improvements specified by law
through special assessments was required to "create the appropriate special improvement
district or districts by ordinance."
There is a definite distinction between an ordinance and a resolution of a governing body of a
municipality. In the case of Baker v. Lake City Sewer District, 30 Wash.2d 510, 191 P.2d 844,
848, this distinction is stated as follows:
"The term `resolution' as applied to the act of an official body such as a city council or a board
of county commissioners ordinarily denotes something less solemn or formal than the term
`ordinance,' and, generally speaking, is simply an expression of the opinion or mind of the
official body concerning some particular item of business or matter of administration coming
within its official cognizance."
Further, in the case of Kalamazoo Municipal Utilities Association v. City of Kalamazoo et al., 345
Mich. 318, 76 N.W.2d 1, 61 A.L.R.2d 583, the differentiation is established by the Michigan
Supreme Court by its decision in these words:
"A `resolution' is not a law or an ordinance, but merely the form in which a legislative body
expresses a determination or directs a particular action. An `ordinance' prescribes a permanent
rule for conduct of government, while a `resolution' is of a special or temporary character."
Similar holdings have been made by the courts of other jurisdictions in the following
cases: Collins v. City of Schenectady, 256 App.Div. 389, 10 N.Y.S.2d 303, 307; Allen v. Wise, 204
Ga. 415, 50 S.E.2d 69, 71; Certain Lots Upon Which Taxes are Delinquent v. Town of Monticello,
159 Fla. 134, 31 So.2d 905, 911.
The general rule is also stated to be that:
"While the terms `resolution' and `ordinance' have been used interchangeably, and the term
`resolution' has been held to be the equivalent of the term `ordinance,' a resolution generally is
less solemn and formal than an ordinance. A resolution has also been distinguished from an
ordinance in that an ordinance is a continuing regulation, a permanent rule of conduct or
government, while a resolution ordinarily is an act of a special or temporary character, not
prescribing a permanent rule of government, but is merely declaratory of the will or opinion of
a municipal corporation in a given matter, and in the nature of a ministerial or administrative
act, and is not a law." 62 C.J.S. Municipal Corporations 411, p. 786, notes 33-39.
By the passage of Chapter 267, Section 2, Session Laws of 1949, which provided for the creation
of a special improvement district by ordinance or resolution of the governing body of a
municipality, the legislature of the State of North Dakota intended to and did remove the
necessity of taking the yea and nay votes of the members of the governing body and entering
them on the journal of the governing body's proceedings, if such action is taken by resolution. It
follows, therefore, that the resolution of the council of the City of Parshall, dated February 3,
1957, creating the curb, gutter, street and storm sewer District No. 1 in said City was valid, and
that the said district was legally created.
However, before the contract between the defendant City of Parshall and the defendant Larson
and Teigen Construction Company 15*15 can be declared to be valid and legal, it is necessary
that certain fundamental requirements of the special assessment laws of the State of North
Dakota be complied with by the defendant city.
After a special improvement district has been created the governing body of a municipality shall
direct the engineer of the municipality, or some other competent engineer, if the municipality
does not have a competent engineer, to prepare plans and specifications for the work, and such
engineer shall supply an estimate of the probable cost of the work. Section 40-22-10, NDCC.
Such plans and specifications and the estimate of the probable cost of the work shall be
approved by a resolution of the governing body of the municipality. Section 40-22-11, NDCC.
Furthermore, another statutory prerequisite is that after the plans, specifications and estimates
of the cost of the improvements have been filed and approved, the governing body of the
municipality by resolution shall declare that it is necessary to make the improvements
described therein. Such resolution shall refer intelligibly to the plans, specifications, and
estimates, and shall be published as required by law. Section 40-22-15, NDCC.
An attempt was made by the city council of the defendant City to comply with the above
provisions of the law at its meeting of April 7, 1958. At that meeting a motion was made and
seconded that a resolution of necessity be approved. However, the record does not show that a
vote was taken on the proposed resolution which resulted in its passage. The requirement of
the passage of this resolution is mandatory and an absolute prerequisite to any further
proceedings. Kvello v. City of Lisbon, 38 N.D. 71, 164 N.W. 305.
Since the record does not show the passage of a resolution of necessity for the improvements
which are the subject of the contract between the City of Parshall and the Larson and Teigen
Construction Company, the contract is void. The judgment appealed from is affirmed.
SATHRE, C. J., and BURKE, MORRIS and TEIGEN, JJ., concur.
STRUTZ, J., deeming himself disqualified, did not participate, ROY K. REDETZKE, District Judge,
one of the Judges of the First Judicial District, sitting in his stead.
345 Mich. 318 (1956)
76 N.W.2d 1
KALAMAZOO MUNICIPAL UTILITIES ASSOCIATION
v.
CITY OF KALAMAZOO.
Docket No. 40, Calendar No. 46,649.
Supreme Court of Michigan.
Decided April 2, 1956.
Rehearing denied May 14, 1956.
Edward J. Ryan (Howell Van Auken, of counsel), for plaintiffs.
Morris & Culver (David Morris, of counsel), for defendants City of Kalamazoo and officials.
Farrell, Folz, Paulson & Palmer, W.R. Roberts and S.H. Redner, for defendant Consumers Power
Company.
Amicus Curiae:
Linsey, Shivel, Phelps & Vander Wal (R.M. Shivel, of counsel), for Michigan Municipal Utilities
Association.
REID, J.
By their bill of complaint, plaintiffs request the court to enjoin the sale by the city of Kalamazoo
(a home-rule city) to the Consumers Power Company of title to the city light utility for not less
than $1,625,000. The bill of complaint recites the resolution adopted by the city commission
authorizing such sale. The resolution authorized the 322*322 city manager and city attorney to
negotiate the details of the sale and to prepare papers necessary to effectuate the
discontinuance of the utility, the acceptance of the offer of the Consumers Power Company of
$1,625,000 and the transfer of the title of the city light utility and most of its tangible real and
personal property to the Consumers Power Company. From order granting defendants'
separate motions to dismiss, plaintiffs appeal.
Plaintiffs allege that the resolution in question which was adopted by a 5-to-1 vote on July 5,
1955, is void for 8 reasons:
1. That the resolution is in violation of section 52 (a) and (b) of the city charter and
therefore ultra vires and void, competitive bidding being absent.
2. That the city under the provisions of the city charter including section 97 is not authorized to
sell its electric utility in the manner attempted in this case.
3. That the city is not authorized under the State Constitution and under the city home-rule act
of the State, to sell its city-owned electric utility by authority of less than 3/5 approval vote by
the electors.
4. That the city is not authorized under the city home-rule act to sell its electric utility plant in a
transaction containing no provision for the use of the sale proceeds to purchase similar capital
assets or deposit into sinking fund to pay bonds against the utility.
5. That the city is not permitted under said home-rule act to sell assets devoted to operation of
its city-owned electric utility in cases where the use of such assets for the purpose of the utility
had not previously been discontinued.
6. That the city in the absence of specific statutory or charter grant or power, is not authorized
to sell its property devoted to public-utility use.
323*323 7. That the commission of the city has no separate competence of its own to authorize
the sale and discontinuance of the city electric utility which had been originally acquired and
established by vote of the city electors.
8. That the action of the city commission in effectuating a sale of said city's electric utility
should have been accomplished by ordinance subject to referendum to voters rather than by
commission resolution.
Plaintiffs prayed the court to exercise its equitable relief power by the granting of an injunction
restraining and forbidding the proposed sale in question. Among other things, the bill recited
that the city's light plant is, in substance, a new plant with modern equipment of 3,500
kilowatts generating capacity, installed within the last 5 years, sufficient to meet peak loads,
with adequate standby equipment of similar capacity comprising older units; that the plant is
debt free, so far as concerns any outside creditors, is efficient in character and supplies current
to customers at lower cost than Consumers Power Company, and in addition supplies electric
current for various municipal purposes such as lighting city buildings and the like; and that the
present reproduction costs and the reproduction cost less depreciation of said plant are
$3,389,750 and $2,236,325, respectively.
The light plant of the city includes an underground system of over 42,000 feet of conduits and
contains primary power cables besides certain laterals. The plant includes large quantities of
personal property such as generating equipment, transformers, transmission lines and the like,
besides considerable real estate such as the building housing power plant and underground
conduits.
Under the terms of the sale in question, the lateral conduits containing only ornamental street
lighting 324*324 and traffic signal cables were not to be included. The city was to retain specific
conduits for ornamental street lighting and traffic signal cables. The appraised reproduction
cost less depreciation of the underground conduits to be retained by the city is $70,760,
according to Black and Veatch report received in evidence by consent.
On or about April 21, 1955, the city commission received the offer of Consumers Power
Company of $1,625,000. On April 25, 1955, the city commission for the purpose of receiving the
advice of the qualified electors as to their attitude, determined to submit to the voters of the
city at a special election held June 28, 1955, the following question: "Would you favor the sale
of the city light utility at a price of not less than $1,625,000?" The vote resulting from this
advisory election was "yes 3,160" "no 3,098." Thereafter and on July 5, 1955, the city
commission adopted the resolution in question. There was as yet, no agreement to sell to
Consumers. Thus the city held the offer of Consumers open 75 days and gave the matter wide
publicity before acceptance, altogether affording any would-be competitor "opportunity for
competition." The city charter did not prescribe any specific method by which the opportunity
for competition should be afforded. Sealed bids were not necessarily required under section 52
(b).
Section 52 of the city charter is as follows:
"(a) The city commission shall designate some officer of the city, other than the auditor or
treasurer, to act as its purchasing agent, by whom all purchases of supplies for the city shall be
made, and who shall approve all vouchers for the payment of the same. Said purchasing agent
shall also conduct all sales of personal property which the city commission may authorize to be
sold as having become unnecessary or unfit for the city's use.
325*325 "(b) All purchases and sales shall conform to such regulations as the city commission
may from time to time prescribe, but in either case, if an amount in excess of $500 is involved,
opportunity for competition shall be given. Where purchase or sales are made on joint account
of separate departments, the purchasing agent shall apportion the charge or credit to each
department. He shall see to the delivery of supplies to each department.
"(c) Until the city commission shall otherwise provide, the city manager of the city shall act as
such purchasing agent."
Section 97 is as follows:
"The city shall have, and it is hereby given the power to purchase or condemn private property,
within or without the city, for any public use within the scope of its power. To that end the city
commission, subject to the general laws of the State, whenever it deems the same essential for
the welfare of the inhabitants of the city, may acquire by gift, purchase, condemnation or
otherwise, the necessary property for the purpose in view. The city commission, subject to the
general laws of the State, shall have the power to hold and improve such property, and to
convey or dispose of the same."
First, plaintiffs claim a violation of the city charter of section 52 (a) and (b) as governing the
proposed sale of the municipal light plant and insist that bidding is required and that it is
mandatory under the words in (b), "opportunity for competition shall be given." For the
mandatory character of that requirement, plaintiffs cite City of Saginaw v.Consumers Power
Company, 213 Mich 460; Knights of the Iron Horse v. City of Detroit,300 Mich 467; and Sault Ste.
Marie City Commission v. Sault Ste. Marie City Attorney,313 Mich 644, as sustaining plaintiffs'
proposition that the charter provision in question is mandatory, not directory. Also,
plaintiffs 326*326 claim the case of Sault Ste. Marie City Commission v. Sault Ste. Marie City
Attorney is authority for the proposition that the proposed sale is void because of lack of
competitive bidding; however, at pp 662, 663, it appears that the city charter of Sault Ste.
Marie in question in that case requires that the contract among other things shall be "upon
competitive bids therefor," whereas the language of the Kalamazoo charter in this case, section
52 (b), is "opportunity for competition shall be given." In the Knights of the Iron Horse Case, the
charter of the city of Detroit required competitive bids, a provision deemed mandatory (pp 472,
473, 478). Involved in the Sault Ste. Marie City Commission Case was a proposition for
purchase, not sale.
The defendant city and its officials contend that section 52 applies only to the purchasing
agent's method of operation, and is not a limitation upon the city commission; that the
purchasing agent is limited to dealing in personal property and supplies and not real estate;
further, that the purchasing agent is not required to go through the formal process of taking
bids but must simply give opportunity for competition. Defendants further cite the fact that the
"straw vote" election of June 28th named only the price and did not require that the sale
should be to Consumers Power Company; that the election was widely publicized (6,258 votes
were cast); and that there is no allegation of existence of anyone interested in competing, and
no allegation that anyone was denied "opportunity for competition."
The acceptance of Consumers Power Company's offer did not precede but followed the
election. We are constrained to hold that the city by its acceptance of the bid of Consumers
Power Company in question did not violate any of the provisions of section 52 of the charter
above recited.
327*327 Plaintiffs' objections to the sale under the second (or general) heading fall for
discussion under the other headings.
Plaintiffs claim under the third question involved that the city under the State Constitution and
city home-rule act of the State is not authorized to sell the electric utility without approval by
not less than 3/5 of the voters voting, citing as follows:
"Nor shall any city * * * acquire any public utility * * * unless such proposition shall have first
received the affirmative vote of 3/5 of the electors of such city * * * voting thereon." Const
(1908), art 8, 25.
"Sec. 4-f. Each city may in its charter provide: * * *
"(3) * * * For the acquirement * * * of public utilities for supplying * * * light, * * * power * * *
to the municipality and the inhabitants thereof, * * * Provided, however, That no such public
utility shall be so acquired unless the proposition to do so shall have first received the
affirmative vote of 3/5 of the electors of such city voting thereon." CL 1948, 117.4f (3) (Stat
Ann 1949 Rev 5.2079).
The electric utility in question was acquired and established in 1894, upon a 56% favorable
vote, a sufficient vote at that time under the Constitution of 1850. On April 1, 1912, after the
adoption of the present Constitution of Michigan (1908), the electors of Kalamazoo by a 64%
favorable vote, approved a bond issue to borrow $140,000 to renew "lighting work of said city
including adequate equipment therefor."
Plaintiffs argue that inasmuch as the requisite vote of electors for establishing a municipal
electric plant in the first instance must now be 60% or more, under both the present
Constitution and the home-rule 328*328 act, by inference the same vote is necessary to abolish
the use of such utility after original acquisition. Plaintiffs citeChicago & N.P.R. Co. v. City of
Chicago, 174 Ill 439, 495 (51 NE 596, 598) (cited with approval by this Court in the City of
Saginaw Case, supra), which Chicago Case among other things recites that the act which
amends, modifies or repeals the law should be of equal dignity with the act which enacts or
establishes the law. A resolution is not a law or an ordinance but merely the form in which a
legislative body expresses a determination or directs a particular action. An ordinance
prescribes a permanent rule for conduct of government, while a resolution is of special or
temporary character. However, the city electric plant was not acquired under an ordinance and
the resolution of acceptance of Consumers' offer repealed no ordinance.
Defendants cite Curry v. City of Highland Park, 242 Mich 614, 619, in which we say:
"This Court in common with nearly every court in the Union is in accord with the Pennsylvania
court in holding that the municipality holds its lighting plant and waterworks as a proprietor
and not as a governmental agency."
On behalf of the defense it is argued and cited as follows:
"The city home-rule act adopted in 1909 (PA 1909, No 279) contained a mandatory
requirement in section 5e thereof which specifically restricted the sale of `any real estate used
in carrying on a public utility or any part thereof * * * unless approved by 3/5 of the electors,' *
* * et cetera. This specific restriction remained in the home-rule act from 1909 to 1923, and
was then deleted by PA 1923, No 119.
"In addition to repeal in 1923, of this specific legislative restriction (no sale of public utility by
city 329*329 without electoral approval), the legislature, by PA 1949, No 207;repealed [italics
supplied] the general restriction in the home-rule act against selling `any property of a value in
excess of $2 per capita * * * unless approved by 3/5 of the electors voting thereon.'"
[*]

In the brief of the amicus curiae it is argued that PA 1923, No 119, which repealed that portion
of the home-rule act requiring a 3/5 vote of the electors voting to sell any real estate used in
carrying on of a public utility, and that PA 1949, No 207, repealing that portion of the home-rule
act prohibiting the sale of any property in excess of the value of $2 per capita unless approved
by a 3/5 vote of the electors voting must be construed to be prospective in operation only and
that the legislature has no constitutional authority to affect the vested rights of the voters.
In Attorney General v. City of Detroit, 225 Mich 631, 637, this Court held:
"In matters of public health, of police and numerous other activities, the municipality acts as an
agent of the State. It owns waterworks and electric light plants as proprietor,and its
management of them are matters of local concern as are numerous other activities pertaining
to the locality as distinguished from the State at large." (Italics supplied.)
In City of Niles v. Michigan Gas & Electric Co., 273 Mich 255, 266, we say:
"An attempt to differentiate between the common council and the council and the electors, as
constituting a city or village, in finding municipal powers is futile. Each exercises part or the
whole of the municipal powers when, and only when, it is so provided by law."
330*330 In the case at bar, the electors being without any express authority so to do, cannot by
inference take away from the city commission powers expressly granted by section 97. The
voting portion of the public has no vested interest in the property acquired and held by the city
for business purposes.
Fourth, plaintiffs in their brief cite from section 4-e of the city home-rule act:
"Each city may in its charter provide: * * *
"(3) For the maintenance * * * operation, of its property and upon the discontinuance thereof
to lease, sell or dispose of the same subject to any restrictions placed thereupon by law:
Provided, That on the sale of any capital asset of the municipally owned utility the money
received shall be used in procuring a similar capital asset, or placed in the sinking fund to retire
bonds issued for said utility." CLS 1954, 117.4e (3) (Stat Ann 1955 Cum Supp 5.2078[3]).
Plaintiffs claim that the effect of the above proviso is to restrict sales of municipal utility assets
to those situations only where the transaction provides for the use of sales proceeds in
procuring of a similar capital asset or for deposit in the sinking fund for payment of outstanding
debts due to city's acquirement of the utility. However, it seems to us clear that the said
proviso from portion (3) including the other language quoted with the proviso, all refer to
property owned and operated by the city for governmental purposes, whereas in this case the
property in question is owned by the city only for business purposes. To construe the statute
otherwise would in practical effect require the city to maintain a business activity without end
or lose all the proceeds of assets bought and used by the city for that or similar business
enterprise. In other words, plaintiffs' construction would require the city to continue
indefinitely (in practical effect) in any 331*331 line of business once it engages in that line. We
find such construction improper and that the defendant city is not obligated nor required on
the sale of the electric plant, a business enterprise, not governmental, to use the money
received to procure a similar capital asset or to be placed in a sinking fund to retire bonds
issued for said utility.
We feel required to construe the provisions in the city charter in such manner that the city may
sell and transfer the electric plant under conditions that shall not of necessity cause a
temporary or indefinite suspension of service of the plant to meet the needs of its customers.
The same reasoning applies to the plaintiffs' fifth claim that the city is not permitted under the
home-rule act to sell assets devoted to operation of its city-owned electric utility in cases where
the use of such assets for the purpose of the utility had not been previously discontinued. The
city commission by the resolution of July 5, 1955, recited, "that the operation of said utility be
discontinued, that said plant be disposed of and that said offer be accepted."
The trial court found, "The best way to sell a light plant is as a going concern," in other words,
instead of shutting it down over some length of time and then having to sell it "as a defunct
concern." The trial court further found that "the discontinuance and the sale can be
simultaneous."
Plaintiffs cite Sebewaing Industries, Inc., v. Village of Sebewaing, 337 Mich 530. However,
the Sebewaing Case involved the powers of a village not vested with home-rule powers, and
the charter of a village is necessarily different from the charter of the city of Kalamazoo, a
home-rule city. Moreover, the city commission by section 97, hereinbefore quoted, is vested
with authority subject to the general laws of the State "to hold and improve such property, and
to convey or dispose of the same." The 332*332discontinuance of the use of the property and
transfer to the vendee under the terms of the sale may be simultaneous, and in the ordinary
course of events are necessarily required to be simultaneous.
The answer to the sixth question is that the city commission has power under section 97 to
convey or dispose of the property in question, as elsewhere herein discussed.
Under the seventh question involved, plaintiffs claim that the Kalamazoo city commission does
not possess power "within its own separate competence" to sell the city electric plant and
abolish the policy of municipal ownership, which policy plaintiffs claim was first established in
1894 by a vote of the city electors and that the electors in 1912 approved the continuation of
this utility by a favorable vote upon the proposition to borrow $140,000 under bond issue for
the purpose of renewing the lighting works, et cetera. Plaintiffs cite in favor of this seventh
proposition the case of White v. City of Grand Rapids, 260 Mich 267, which case, however, was
not a case of a sale but a case of a lease of the city plant. Plaintiffs in the White Case denied
that the city commission in that case had power to make the contract, but the ruling by the trial
judge that the city commission had power to make the contract (p 275) was approved by this
Court.
Under their eighth question, plaintiffs in this case claim that the action of the city commission
effectuating a sale of the city's electric utility should have been accomplished by ordinance
subject to referendum to voters rather than by commission resolution. Plaintiffs assert that the
trial court in answer to this question relied principally on the case
of Yarbrough v. Donaldson, 67 Okla 318 (170 P 1165), in which the Oklahoma court held that
the city's resolution for sale of electric plant was not an exercise of a legislative function, but
rather it was found that the city 333*333 was administering an existing statute of that State
giving the city express power to dispose of its property. Plaintiffs would differentiate the
Michigan law from the Oklahoma statute on this point. Plaintiffs cite from defendant city's
charter, section 159, which is as follows:
"The city commission by ordinance may prescribe, or the people by ordinance duly initiated and
approved under the provisions of this charter, may prescribe the procedure to acquire any
public utility, enterprise or service."
Section 159 is permissive as to business activities. The city commission seems to have been
satisfied to operate its plant under section 97 without enacting an ordinance covering the
subject.
Plaintiffs further assert that an ordinance may not be repealed by resolution, that being the law
of Michigan, contrary to the law of Oklahoma. Plaintiffs further cite in support of this
claim, Chicago & N.P.R. Co. v. City of Chicago, supra; and City of Saginaw v.Consumers Power
Company, supra. Plaintiffs claim that if their other objections to the validity of the resolution
accepting Consumers' bid were found insufficient, still plaintiffs have a sufficient ground for
injunctive relief withholding consummation of the sale pending outcome of referendum on the
commission action.
Contrary to plaintiffs' contention, the pleadings do not allege nor does the record show, that
the light plant in question was established by ordinance. The charter with section 159 was not
in existence when the plant in question was established in 1894 and additions made in 1912.
The original charter was adopted February 4, 1918. We find that the power of disposal of the
light plant is vested by the city charter in the city commission under section 97 of the charter.
Plaintiffs failed to cite any statutory 334*334 or charter provision requiring the city commission
to exercise its contract and disposal powers by ordinance rather than resolution.
"If no statute prescribes a method of action and no charter provision requires it, when the
action is merely declaratory of the will of the municipal corporation in a given matter and is in
the nature of a ministerial act, it is proper to act by resolution." Case v. City of Saginaw, 291
Mich 130, 132. (Syllabus 10.)
A city holds and manages its municipal utility in a proprietary and administrative capacity, as
distinguished from its exercise of governmental or legislative powers.Nelson v. County of
Wayne, 289 Mich 284, 296-298. Defendants (city's brief) direct attention to section 52 (c) of the
charter, "Until the city commission shall otherwise provide, the city manager shall act as such
purchasing agent."
In the instant case the city commission did not otherwise provide but did take direct action by
the commission itself. We affirm the trial court's answer "no" to plaintiffs' eighth question.
The decree of the trial court ordered dissolution of the injunction which had been issued, and
dismissed the bill of complaint and amendment to the bill of complaint. That decree is affirmed.
Costs to defendants.
DETHMERS, C.J., and SHARPE, SMITH, BOYLES, KELLY, CARR, and BLACK, JJ., concurred.
496 So.2d 970 (1986)
Paul WALLACE, Appellant,
v.
David LEAHY, Supervisor of Dade County Board of Elections, Appellee.
No. 86-2627.
District Court of Appeal of Florida, Third District.
October 31, 1986.
Paul Wallace, in Pro. Per.
Robert Ginsburg, Co. Atty., and Murray A. Greenberg, Asst. Co. Atty., for appellee.
Richard A. Sicking, Miami, for Local 1403 Intern. Ass'n of Fire Fighters, AFLCIO and Michael
Donn, Sr., as amicus curiae.
Before BARKDULL, HUBBART and FERGUSON, JJ.
PER CURIAM.
Petitioner, Paul Wallace, commenced this action in the trial court by mandamus, challenging
the upcoming nonpartisan election of members to the governing body of the Metro-Dade Fire
And Rescue Service District (Fire Board) and seeking to have the election cancelled.
[1]
We treat
this appeal as one from a ruling on a petition for declaratory relief pursuant to section 86.011,
Florida Statutes (1985).
On September 2, 1986, the voters of Dade County, by referendum, amended the Home Rule
Charter to provide a governing body for the fire rescue district, separate and distinct from the
County Commission. Two days later, the Board of County Commissioners voted to place the
election of Fire Board members on the November 4, 1986, ballot in conjunction with the
general election. That action, by Resolution No. 1139-86, established the number of
Fire 971*971 Board commissioners and fixed the length of their terms. The resolution further
declared that the election shall be nonpartisan.
Wallace is one of 103 candidates who qualified for election to the Fire Board. He requested to
have his party affiliation shown along with his name on the printed ballot pursuant to sections
99.121 and 100.051, Florida Statutes (1985). Respondent, David Leahy, Supervisor of Elections,
refused the request on grounds that the election was nonpartisan.
By this lawsuit Wallace seeks, essentially, a declaration that state and county laws require that
Fire Board members be chosen by partisan election and that an attempt to change that
requirement by resolution was ineffective.
Section 2.06-B, Dade County Home Rule Charter (1957) provides:
Except as otherwise provided by this Charter or by ordinance adopted hereunder the provisions
of the election laws of this state shall apply to elections held under this Charter.
The Charter of Dade County does not provide a method for the election of Fire Board
Commissioners. Nor does Ordinance No. 80-86, which created the independent Metro-Dade
Fire and Rescue Service District, provide for nonpartisan election of Fire Board members.
In Brown v. City of St. Petersburg, 111 Fla. 718, 153 So. 140 (1933) and Carlton v. Jones, 117 Fla.
622, 158 So. 170 (1934), the Florida Supreme Court held that a resolution cannot be substitued
for and have the force and effect of an ordinance, nor can a resolution supply initial authority
which is required to be vested by ordinance. This court decided the same question more
recently in 7800 Building, Inc. v. City of South Miami, 305 So.2d 860 (Fla. 3d DCA 1975),
[2]
where
we held that change in a tax assessment formula, required by charter to be accomplished by
ordinance, could not be accomplished by resolution.
We hold here accordingly that until the County Commission passes an ordinance which
provides for the election of Fire Board members by nonpartisan ballot, the method employed
must comport with the state's general laws governing elections. The general laws do allow a
candidate to declare his party affiliation and to run in a partisan primary prior to the general
election. See Chapters 99, 100, Florida Statutes (1985).
Dade County Resolution No. R-1139-86, scheduling a November 4, 1986, election for Fire Board
Commissioners, is invalid.
Reversed and remanded with directions to enter a declaratory decree consistent with the views
expressed in this opinion.
70 A.D.2d 1036 (1979)
Social Spirits, Inc., Respondent,
v.
Town of Colonie, Appellant
Appellate Division of the Supreme Court of the State of New York, Third Department.
June 29, 1979
Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.
In June, 1978, plaintiff commenced operation of a tavern-restaurant business at 281 Sand Creek
Road in the Town of Colonie, known as Little Horn II. That location had been the site of a
neighborhood tavern for many years under prior owners. Little Horn II became an immediate
success, and was soon frequented by large numbers of young people from Thursday through
Sunday during the evening into the early morning hours. The parking area adjacent to the
establishment was not sufficient to accommodate the cars of its patrons and many, therefore,
parked their cars on Sand Creek Road and the neighborhood streets. Town officials soon began
receiving complaints from neighboring homeowners concerning the behavior of the Little Horn
patrons and their use of the neighborhood streets for parking. Town agencies conducted
studies of the situation, and made recommendations to the town board. On September 7,
1978, the town board passed a "Resolution" prohibiting the parking of cars on certain portions
of 1037*1037 designated side streets, and on Sand Creek Road within the immediate area of
Little Horn II, between the hours of 11:00 P.M. and 6:00 A.M. This resolution also designated
these no parking areas as "tow-away zones". Signs were erected and enforcement of the
resolution commenced on September 14, 1978. Plaintiff attempted to alleviate the problem by
leasing a vacant lot for parking purposes, but these efforts became futile when a required
zoning variance was denied. On December 29, 1978, plaintiff commenced an action seeking a
judgment declaring the resolution of the town board dated September 7, 1978 null, void,
unconstitutional and ineffective, and that defendant, its officers, agents and employees be
restrained and enjoined from enforcing the resolution. The complaint, in addition to other
things, alleged that the resolution is illegal, invalid and inoperative as an ordinance of the
defendant Town of Colonie in that it had never been published as required by the Town Law of
the State of New York. Plaintiff also moved for a preliminary injunction to enjoin the
enforcement of this resolution pending determination of the action. Special Term granted the
motion for a preliminary injunction, and defendant now appeals from that order. Plaintiff, in
addition to other arguments in support of the preliminary injunction, contends that it is entitled
to a preliminary injunction on the ground that the "Resolution" was not properly promulgated
as an ordinance in accordance with the Town Law of the State of New York. Section 1660 (subd
[a], par 18) of the Vehicle and Traffic Law empowers a town board by ordinance, order, rule or
regulation to "Prohibit, restrict or limit the stopping, standing or parking of vehicles" on
highways within the town, but outside of villages in the town and subject to certain limitations
as to State highways maintained by the State. Section 130 of the Town Law authorizes a town
board, after a public hearing, to enact, amend and repeal ordinances, rules and regulations
restricting the parking of all vehicles on streets or highways. This section requires the
publication of a notice in a newspaper circulating in the town once, at least 10 days prior to the
hearing, specifying the time and place of the hearing, and generally describing the proposed
ordinance. Section 131 of the Town Law states that "A town ordinance includes also a rule or
regulation of the town board, for the violation of which a penalty is imposed", and section 133
provides that an ordinance or amendment of an ordinance shall take effect 10 days after
publication and posting in the manner specified in that section. The resolution establishing the
no parking areas and tow-away zones herein, may not be treated as an ordinance, since it was
not enacted as required by sections 130 and 133 of the Town Law. "The distinction between a
resolution and an ordinance is that a resolution is an order of the council of a special and
temporary character while an ordinance prescribes a permanent rule of government or
conduct. (2 Dillon on Municipal Corporations [5th ed.], 571.) It has also been said that an
ordinance is a continuing regulation a permanent rule of government, while a resolution is
usually declared not to be the equivalent of an ordinance, but rather an act of a temporary
character not prescribing a permanent rule of government, but is merely declaratory of the will
of a corporation in a given matter and in the nature of a ministerial act." (Matter of Collins v
City of Schenectady, 256 App Div 389, 392; emphasis added.) Thus, a town, pursuant to section
1660 (subd [a], par 18) of the Vehicle and Traffic Law, could, by resolution, restrict the parking
of vehicles for a temporary period in special or emergency situations, but where a town intends
to permanently restrict the parking of vehicles, section 130 of the Town Law, which provides for
the method of procedure by the town board, constitutes a condition precedent, and
an 1038*1038 ordinance or resolution not adopted in compliance therewith, has no force or
effect (Matter of Collins v City of Schenectady, supra). Under the circumstances, plaintiff has
sufficiently established a likelihood of ultimate success on the merits, and should not be
required to suffer further economic damage during the pendency of an action in which it
appears that it will be ultimately successful as a matter of law. The order of Special Term
should, therefore, be affirmed.
Order affirmed, without costs.
MICHAEL A. WHITE, Appellant,
v.
THE TOWN OF INGLIS, FLORIDA, Appellee.
Case No. 1D07-6620.
District Court of Appeal of Florida, First District.
Opinion filed August 7, 2008.
Dock A. Blanchard of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellant.
David La Croix, Homosassa Springs, and Ernest H. Kohlmyer of Bell & Roper, P.A., Orlando, for
Appellee.
VAN NORTWICK, J.
Michael A. White appeals a final summary judgment entered in favor of the Town of Inglis,
Florida, appellee, in his action challenging the Town's adoption of Resolution Number R14-05
(R14-05) which prohibits White's access to a street from his commercial property adjoining that
street. We hold that R14-05 constitutes an "ordinance" as defined in section 166.041(1)(a),
Florida Statutes (2005), and, because the Town adopted this ordinance without complying with
the ten-day notice requirement in section 166.041(3)(a), we hold the ordinance void.
Accordingly, we reverse and remand for further proceedings.
White owns two contiguous lots in the Town of Inglis which front on Highway US 19 and
operates a used car business on the lots. Palm Point Drive is a residential street located
immediately to the north of and adjacent to White's commercial property. On October 20,
2005, the Inglis Town Commission held a workshop meeting at which the subject of closing off
commercial access to Palm Point Drive was discussed. White was present at the meeting. He
states in his affidavit included in the record that he "had informally heard that the Town, was
considering the construction of a fence along the road which might affect my access."
According to the affidavit of Town Clerk Sally McCranie, those at the meeting were advised that
a special meeting would be held on October 31, 2005, to consider a resolution to close
commercial access to Palm Point Drive.
On October 31, 2005, the Town enacted R14-05 as a "resolution." R14-05 makes it unlawful for
a person to drive from commercial properties onto Palm Point Drive. A fence has now been
constructed along the drive blocking view of White's property and any access to Palm Point
Drive from the property.
Section 166.041(1)(a) defines "ordinance" as "an official legislative action of a governing body,
which action is a regulation of a general and permanent nature and enforceable as a local law."
Section 166.041(1)(b) defines "resolution" to mean "an expression of a governing body
concerning matters of administration, an expression of a temporary character, or a provision
for the disposition of a particular item of the administrative business of the governing body." "A
resolution cannot be substituted for and have the force and effect of an ordinance, nor can a
resolution supply initial authority which is required to be vested by ordinance." Wallace v.
Leahy, 496 So. 2d 970, 971 (Fla. 3d DCA 1986) (citing Brown v. City of St. Petersburg, 111 Fla.
718, 153 So. 140 (1933); and Carlton v. Jones, 117 Fla. 622, 158 So. 170 (Fla. 1934) ("An act
which is required to be accomplished by ordinance may not be accomplished by resolution.")).
It is clear that the action by the Town is an ordinance as defined under section 166.041(1)(a). In
R14-05, the Town regulates the use of property in a manner that is both general and
permanent. Further, it is neither a matter of administration for the Town nor an expression of a
temporary character. Because the Town enacted R14-05 without following the requirements of
section 166.041(3)(a) (notice in newspaper at least 10 days prior to adoption), the ordinance is
void. Ellison v. City of Fort Lauderdale, 183 So. 2d 193 (Fla. 1966); Healthsouth Doctors Hosp. v.
Hartnett, 622 So. 2d 146 (Fla. 3d DCA 1993); see also Carlton v. Jones, 158 So. at
171 (recognizing that when an ordinance is not published according to law it is "invalid and of
no effect");Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241 (Fla. 1st DCA 2000).
Because we hold the ordinance void, it is not necessary to reach the other issues raised on
appeal.
REVERSED and REMANDED for proceedings consistent with this opinion. WEBSTER AND
THOMAS, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF
IF FILED.

805 F.2d 962 (1986)
Joseph W. LITTLE, Plaintiff-Appellant,
v.
CITY OF NORTH MIAMI, Marco V. Loffredo, Jr., John Hagerty, Diane Brannen, James Devaney,
Simon, Schindler and Hurst, P.A., and Jennifer Hurst Kroner, f/k/a Jennifer Hurst, Defendants-
Appellees.
No. 85-6068.
United States Court of Appeals, Eleventh Circuit.
December 9, 1986.
963*963 Robert C. Widman, Richard E. Nelson, Nelson Hesse Cyril Smith Widman & Herb,
Sarasota, Fla., for plaintiff-appellant.
Joseph W. Little, Gainesville, Fla., pro se.
Guy Gaebe, Gaebe & Murphy, Coral Gables, Fla., for City of Miami, et al.
Claudia B. Greenberg, Marlow, Shofi, Smith, Connell, DeMahy & Valerius, Miami, Fla., for
Simon, Schindler & Hurst, P.A.
Mark R. Boyd, Walsh, Theissen and Boyd, Ft. Lauderdale, Fla., Michael J. Murphy, Gaebe &
Murphy, Coral Gables, Fla., for Kroner.
964*964 Before FAY and JOHNSON, Circuit Judges, and HOFFMAN
[*]
, Senior District Judge.
CORRECTED OPINION
PER CURIAM:
This case involves alleged civil rights violations. Appellant brought an action against multiple
defendants in the United States District Court for the Southern District of Florida alleging inter
alia five violations of 42 U.S.C. 1983 (1981). Little v. City of North Miami, 624 F.Supp. 768, 770
(S.D.Fla.1985). The District Judge dismissed the civil rights claims for failure to state a claim
upon which relief could be granted. Little,624 F.Supp. at 771-74. Because we conclude that
appellant's first amendment and procedural due process claims state causes of action
cognizable under Section 1983, we reverse.
I.
BACKGROUND
For the purpose of evaluating the sufficiency of a complaint, we must accept the facts pleaded
as true and construe them in the light most favorable to appellant. Quality Foods de Centro
Americo, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95
(11th Cir.1983). Appellant is a member of the Florida Bar Association and a professor of law at
the University of Florida. Prior to October, 1983, appellant represented the Florida Defenders of
the Environment in two Florida state court civil actions. This representation was on a pro bono
publico basis with the approval of the University of Florida. The City of North Miami was an
intervening party in the second lawsuit and was represented by Jennifer Hurst Kroner, an
attorney employed by Simon, Schindler and Hurst, P.A. This state litigation involved the
constitutionality of state appropriation for the purchase of land owned by the City of North
Miami.
On October 11, 1983, the city Council of North Miami adopted Resolution No. R83-65 which
states: "the Council of the City of North Miami hereby censures Professor Joseph W. Little for
improper use of public funds to represent private parties in litigation against the State and
against the interests of the City of North Miami." This resolution was passed and read aloud at a
public meeting without notice to appellant and without verification that the assertions were
truthful. Copies of R83-65 were circulated to twenty persons, including the president of the
University of Florida, the dean of the University of Florida College of Law, the chairman and
members of the Florida Board of Regents, the members of the Florida Legislature representing
Dade County, and the Florida State Auditor General.
As a result of the passage and publication of the resolution, governmental investigations were
undertaken and appellant claims he "suffered damage to his reputation, his employment
relations, and mental and emotional pain and distress." Appellant does not assert that his
employment has been terminated or that he has been denied tenure. Nevertheless, appellant
brought an action against the city of North Miami, the mayor and council members, the
attorney who prepared the resolution and the legal professional association who employed her.
The complaint sought damages for five alleged constitutional violations and five pendant state
law claims. As indicated, the district court dismissed the federal claims pursuant to Fed.R.Civ.P.
12(b)(6) without prejudice for appellant to seek redress for his state claims in state
court. Little, 624 F.Supp. at 774. We have distilled the federal claims down to four issues and
shall analyze them seriatim in order to determine whether appellant set forth sufficient facts
which would entitle 965*965 him to relief. For the reasons that follow, we reverse the ruling of
the district court with respect to appellants' first amendment and procedural due process
claims.
II.
ANALYSIS
42 U.S.C. 1983 (1981) provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress.
To state a claim under this Section, "a plaintiff must allege facts showing that the defendant's
act or omission, done under color of state law, deprived him of a right privilege, or immunity
protected by the Constitution or laws of the United States." Emory v. Peeler, 756 F.2d 1547,
1554 (11th Cir.1985). Section 1983 creates no substantive rights; it does, however, provide
remedies for deprivations of constitutionally protected interests. See Baker v. McCollan, 443
U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Local governing bodies and
local officials in their official capacities can be sued under Section 1983 when a party can
establish that he or she has suffered a constitutional deprivation as a result of either "a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body's
officers" or a "governmental `custom' even though such a custom has not received formal
approval through the body's official decision making channels." Monell v. Department of Social
Services, 436 U.S. 658, 690, 91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).
For the purposes of determining the sufficiency of a claim, the likelihood of recovery is
irrelevant. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
As the Supreme Court observed, "[t]he issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear
on the face of the pleadings that a recovery is very remote and unlikely but that is not the
test." Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. This Court has acknowledged that "a complaint
should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) `unless it
appears beyond doubt that plaintiff can prove no set of facts that would entitle him to
relief.'" Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir.1986) (quoting Conley v.
Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).
A. Bill of Attainder
Appellant claims that R83-65 adopted and disseminated by the Council of the City of North
Miami operates as a bill of attainder. A bill of attainder, forbidden by U.S. Const. Art. I 9, cl. 3
and 10, cl. 1, has been described as "a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual without provision of the protections of a judicial
trial." Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-
47, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632 (1984) (quoting Nixon v. Administrator of General
Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)). The resolution in question,
censuring appellant for "improper use of public funds," unquestionably resembles a bill of
attainder in several respects.
First, R83-65 clearly identifies an individual. Second, the resolution arguably accuses appellant
of unprofessional, unethical and criminal conduct. Third, the City Council, by passing the
resolution, impliedly found appellant guilty without affording him the protections guaranteed
by the formal adversarial process. Despite the similarities between the resolution and a bill of
attainder, the district court determined that R83-64 is not a bill of attainder 966*966 because
the resolution "is not a legislative pronouncement with the force of law" and because it "does
not prescribe a punishment, penalty or forfeiture." Little, 624 F.Supp. at 771.
Regarding the punishment requirement, the Supreme Court has recognized three tests for
determining whether a law penalizes an individual for bill of attainder purposes: "(1) whether
the challenged statute falls within the historical meaning of legislative punishment; (2) whether
the statute, `viewed in terms of the type and severity of burdens imposed, reasonably can be
said to further nonpunitive legislative purposes'; and (3) whether the legislative record `evinces
a [legislative] intent to punish.'"Selective Service System, 468 U.S. at 852, 104 S.Ct. at
3355 (quoting Nixon, 433 U.S. 425 at 473, 475-76, 478, 97 S.Ct. 2777, 2805, 2806-07, 2809, 53
L.Ed.2d 867).
Although a public censure is not as harsh a sanction as the historical "pains and penalties" of
imprisonment, banishment, punitive confiscation of property or "a legislative enactment
barring designated individuals or groups from participation in specified employments or
vocations,"
[1]
it is a recognized mode of punishment in certain circumstances.
[2]
Second, given
the unique facts presented by this case, we are unable to conceive of any non-punitive,
legitimate municipal purpose justifying the passage of R83-65. Considering the third test for
determining a bill of attainder penalty, the record clearly evinces a legislative intent to punish
the appellant.
[3]
After applying these tests, we recognize that whether public censure
constitutes punishment for bill of attainder purposes may present a meritorious issue;
nevertheless, we decline to resolve this question because we agree with the district court that
any punishment inflicted by the resolution was not occasioned by a legislative act having the
force of law.
A municipal ordinance may constitute a bill of attainder. See e.g., Crain v. City of Mountain
Home, 611 F.2d 726 (8th Cir.1979). Nevertheless, the municipal legislation in question was in
the form of resolution. The Supreme Court's definition of a bill of attainder in Selective Service
System specifically states that the first element required to be present is a law. Selective Service
System, 468 U.S. at 846, 104 S.Ct. at 3352. Florida law explicitly provides that an ordinance, and
not a resolution is "enforceable as a local law." Fla.Stat. 166.041(1)(a) (West Supp.1985). A
resolution is defined as "an expression of a governing body concerning matters of
administration, an expression of a temporary character, or a provision for the disposition of a
particular item of the administrative business of the governing body." Fla.Stat. 166.041(1)(b)
(West Supp.1985). Legal actions which are "required to be accomplished by ordinance may not
be accomplished by resolution." Carlton v. Jones, 158 So. 170, 170 (1934); seeBrown v. City of
St. Petersburg, 153 So. 141, 142 (1933). Here, the resolution is not "`a regulation of a general
and permanent nature.... enforceable as a local law'" as it represents little more than the City
Council's opinion regarding the propriety of appellant's activities. Fla.Stat. 166.041(1)(a)
(West Supp.1985).
Appellant argues that an act should be judged by its character and not by its label. Florida case
law acknowledges that "a resolution passed with all the formalities required for passing
ordinances may operate as an ordinance regardless of the name by which it is
called." Brown, 153 So. at 144. When the character of R83-65 is evaluated with an impartial but
critical eye, however, 967*967 we conclude that the resolution is "merely declaratory of the
will of the corporation in a given matter" and not "a continuing regulation [or a] permanent rule
of government." Brown, 153 So. at 144. In addition, it does not affirmatively appear from the
record that the resolution in question was passed with all the formalities required for an
ordinance. For these reasons, we affirm the ruling of the district court.
B. First Amendment
Appellant claims that R83-65 is violative of his first amendment rights as a vindictive and
retaliatory act taken under the color of state law. Little, 624 F.Supp. at 771. The district court
dismissed the claim, ruling that (1) a single act does not amount to "custom or usage" within
the purview of Section 1983 and (2) the resolution did not have the force of law. Little, 624
F.Supp. at 771-72. Because the district court erroneously applied the pertinent law and because
it is conceivable that appellant can prove the facts in support of his claim for retaliation of
appellant's use of the courts, we reverse.
First, the district court erroneously ruled that appellant must prove a "custom or usage" of the
municipality which caused the alleged constitutional infringement. Little, 624 F.Supp. at 772.
With all due respect to the district court, this language, when applied to municipalities, refers
only to situations akin to respondeat superior, where a claimant sues a city for alleged
constitutional deprivations caused by municipal employees. City of Oklahoma City v. Tuttle, 471
U.S. 808, 105 S.Ct. 2427, 2433 (1985), reh'g denied,___ U.S. ___, 106 S.Ct. 16, 87 L.Ed.2d 695
(1985); Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; see e.g. Gilmere v. City of Atlanta, 774
F.2d 1495 (11th Cir.1985),cert. denied, ___ U.S. ___, 106 S.Ct. 1993, 90 L.Ed.2d 673 (1986). In
these instances, a single act attributable to improper activity of an employee is insufficient to
impose vicarious liability on the municipality because of the lack of a "custom or policy" as
defined in Monell. City of Oklahoma City, 471 U.S. 808, 105 S.Ct. at 2436; Gilmere,774 F.2d at
1504; see Monell, 436 U.S. at 691, 98 S.Ct. at 2036.
In this case, the act which allegedly infringed upon appellant's first amendment rights is the
resolution adopted by a local governmental body the City Council of North Miami. As
indicated, "local governing bodies ... can be sued directly under 1983 for monetary,
declaratory, and injunctive relief where ... the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body's officers." Monell, 436 U.S. at 690, 98 S.Ct. at 2035. Viewing the
facts in the light most favorable to appellant, it appears that the City Council decided that
appellant was guilty of culpable conduct and decided to publicly censure him as punishment.
Because we conclude that the resolution in question can be fairly characterized as "a decision
officially adopted and promulgated" by the City Council of North Miami, we conclude that the
minimum requirements for imposing municipal liability have been alleged. Monell, 436 U.S. at
690, 98 S.Ct. at 2035 (emphasis added).
Second, unlike a Section 1983 claim based on an alleged bill of attainder, a Section 1983 action
premised on an infringement of First Amendment rights does not require a legislative act
having the force of law. See Hall v. Sutton, 755 F.2d 786 (11th Cir.1985). The only requirement
is an action "under color of state law" which inhibits the exercise of protected
rights. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420
(1981) (emphasis added). When an infringement of first amendment rights is alleged, the
deprivation of a property interest is irrelevant. Perry v. Sindermann, 408 U.S. 593, 597-98, 92
S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972).
By representing the Florida Defenders of the Environment, himself and others in state litigation,
appellant was engaging 968*968 in a "form of political expression" entitled to First and
Fourteenth Amendment protection. In re Primus, 436 U.S. 412, 428, 98 S.Ct. 1893, 1902, 56
L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963).
This protection not only extends to prohibitions on prior restraints of speech; it also forbids the
imposition of retaliatory sanctions designed to punish the legitimate exercise of First
Amendment rights. Perry, 408 U.S. at 598, 92 S.Ct. at 2698; Hall, 755 F.2d at 787; Cate v.
Oldham, 707 F.2d 1176, 1186 (11th Cir.1983); Muir v. Alabama Educational Television
Commission, 688 F.2d 1033, 1037 (5th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274
(1983).
Viewed in the light most favorable to appellant, appellant's complaint asserts that the City
Council of North Miami, acting under the color of Florida law, adopted and disseminated an
official resolution publicly censuring appellant in retaliation for appellant's representation of an
adverse party in state litigation, thereby subjecting appellant to official investigation and
intentionally placing appellant in potential criminal, professional, social, political and economic
jeopardy without any justification. A municipality, like any state governmental entity, may not
retaliate against an individual because of that person's legitimate use of the
courts. See Hall, 755 F.2d at 787. Thus, we conclude that under the facts as alleged, appellant's
First Amendment claim states an action cognizable under Section 1983. Accordingly, the
decision of the district court dismissing this claim is reversed.
C. Sixth Amendment
Appellant claims that the adoption and dissemination of R83-65 denied appellant the right to
notice, the right to confront accusers, the right to present witnesses and the right to be assisted
by counsel all in violation of the Sixth Amendment. In support of this claim appellant
cites Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969), reh'g denied, 396
U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1968). The district court dismissed the claim finding
insufficient precedential value in Jenkinsto support a Sixth Amendment violation. Little, 624
F.Supp. at 772-73.
In Jenkins, a commission created by Louisiana statute was empowered to investigate criminal
violations "in the field of labor-management relations," to determine whether probable cause
of violations existed and to file appropriate charges. Jenkins, 395 U.S. at 414-17, 89 S.Ct. at
1845-46. Characterizing this function as "accusatory," the Supreme Court ruled that procedural
due process requires that the commission "afford a person being investigated the right to
confront and cross-examine the witness against him" and the right to present
evidence. Jenkins, 395 U.S. at 429, 89 S.Ct. at 1852.Jenkins does not stand as authority for the
proposition that an imputation of criminal culpability necessarily triggers Sixth Amendment
rights. Jenkins merely holds that public officials may not publicly condemn an individual for
criminal acts without affording the individual procedural requirements guaranteed by the
fourteenth amendment.Jenkins, 395 U.S. at 428, 89 S.Ct. at 1852.
The Sixth Amendment is limited by its very terms to criminal prosecutions. U.S. Const. amend.
VI; see Hannah v. Larche, 363 U.S. 420, 440 n. 16, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307
(1960), reh'g denied, 364 U.S. 855, 81 S.Ct. 33, 5 L.Ed.2d 79 (1960). The Supreme Court has
emphatically ruled that the Sixth Amendment is not implicated until adversarial judicial
proceedings have been initiated. United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81
L.Ed.2d 146 (1984); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United
States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 149 (1967). Since appellant has not
alleged that criminal charges were brought against him, we affirm the dismissal of appellant's
1983 claim premised on the violation of Sixth Amendment rights.
D. Procedural Due Process Deprivation of a Property and Liberty Interest
Appellant claims that he has been deprived of a property and a liberty interest 969*969without
due process of law. Little, 624 F.Supp. at 773. The district court, relying principally on Paul v.
Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), reh'g denied, 425 U.S. 985, 96 S.Ct.
2194, 48 L.Ed.2d 811 (1976) dismissed the claim. Because appellant's claim of injury to his
business reputation/goodwill is actionable under Section 1983, we reverse.
"`Liberty' and `property' are broad and majestic terms. They are among the `[g]reat
[constitutional] concepts ... purposely left to gather meaning from experience...." Board of
Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1971)(quoting National
Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1209, 93 L.Ed.
1556 (1949) (Frankfurter, J., dissenting)). Experience has proven that personal reputation,
standing alone, is not a property or liberty interest which may serve as the basis for a Section
1983 claim. Paul, 424 U.S. at 712, 96 S.Ct. at 1165; Campbell v. Pierce County, 741 F.2d 1342,
1344 (11th Cir.1984), reh'g denied, 747 F.2d 710 (1984). This Court has acknowledged and
reaffirmed, however, that business reputation/goodwill is both a property and a liberty interest
which is protectable under the scope of Section 1983. Marrero v. City of Hialeah, 625 F.2d 499,
514-16 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337
(1981);
[4]
Economic Development Corp. of Dade County, Inc. v. Stierheim, 782 F.2d 952, 954-55
(11th Cir.1986); Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir.1985);Espanola Way Corp. v.
Meyerson, 690 F.2d 827, 829 (11th Cir.1982), cert. denied,460 U.S. 1034, 103 S.Ct. 1431, 75
L.Ed.2d 791 (1983). The court in Marrero ruled that when a party alleges injury to business
reputation/goodwill interests in addition to injury to personal reputation, the averments satisfy
the "stigma plus" requirement of Paul for alleging a constitutionally protected property and
liberty interest. Marrero, 625 F.2d at 515-16.
The district court evidently construed appellant's complaint as alleging nothing more tangible
than injury to personal reputation due to the fact that appellant could not allege deprivation of
employment. As the district court observed, "[t]he allegations in the Complaint are devoid of
any suggestion of a deprivation of a tangible, economic interest. The University has not fired
the [appellant]. They have not denied him tenure. There is no indication that the [appellant]
has sought employment elsewhere only to meet with closed doors." Little, 624 F.Supp. at 773.
With all due respect, we disagree with the district court's construction of appellant's complaint.
It alleges that the City Council of North Miami, without affording appellant notice or a hearing,
passed a resolution which has "embarrassed [appellant] in his personal life" and "[degraded]
him in his employment." Based upon the liberal principles of notice pleading,
[5]
we conclude
that appellant has sufficiently alleged injury to his business reputation. We see no reason why
an attorney is not entitled to property or liberty interests in his or her business (professional)
reputation/goodwill when the same rights have been extended to other
businesses. See Marrero, 625 F.2d at 515 (jewelry business); Espanola Way, 690 F.2d at
829 (hotel business); Economic Development Corporation, 782 F.2d at 954 (construction
business). Accordingly, we reverse the decision of the district court dismissing appellant's
Section 1983 based on alleged procedural due process violations.
305 So.2d 860 (1974)
7800 BUILDING, INC., a Florida Corporation, Appellant,
v.
CITY OF SOUTH MIAMI, Florida, a Florida Municipal Corporation, Appellee.
No. 74-445.
District Court of Appeal of Florida, Third District.
December 31, 1974.
Rehearing Denied January 28, 1975.
Nicholson, Howard, Brawner & Lovett, Miami, for appellant.
Moore, Kessler, Sheradsky, Roth & Beckerman, Miami, for appellee.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
861*861 HAVERFIELD, Judge.
Plaintiff-appellant seeks review of a judgment upholding the validity of a sanitary sewer
assessment by the defendant-appellee. By virtue of Article I, Section 21 of its municipal charter,
defendant-appellee, The City of South Miami, is empowered to establish by ordinance local
improvement districts. In accordance therewith, defendant city passed an ordinance [ 2-36 of
the South Miami Code] which provided, inter alia, for sanitary sewer improvements districts.
The ordinance further provided that the water and sewer assessments be based upon front
footage.
Plaintiff-appellant is the owner of certain real property which is located in the defendant city,
and is the site of an office building which was completed in May 1971. Plaintiff's property is
zoned RU-5 (multiple unit residential) which permits the use of an office building.
In May 1969, defendant city passed and adopted a resolution pursuant to Section 21, Article IV
of the City Charter and Chapter 2 of the code of ordinances establishing a sanitary sewer
improvement district in which plaintiff's real property was located. This resolution #XX-XX-
XXXX, provided that the sewer assessment be based upon front frontage. However, the
resolution was amended in September 1969 by resolution, #XX-XX-XXXX which adopted a
square footage assessment formula on the basis of the applicable zoning and land use
requirements. When plaintiff's office building was completed in May 1971, the defendant city
passed resolution, #XX-XX-XXXX, imposing upon plaintiff's property a sanitary sewer lien
assessment in the amount of $31,280 based upon the RU-5 (multiple unit residential) zoning.
Plaintiff protested the assessment to the city council of the defendant and thereafter filed a
complaint for declaratory judgment praying that the assessment as applied to plaintiff's
property be declared invalid and unconstitutional. The cause came on for hearing and
thereafter the trial judge denied the relief prayed for by the plaintiff-appellant and entered
judgment in favor of the defendant city. Plaintiff appeals therefrom. We reverse.
Appellant first argues that when the ordinance of a municipal corporation requires that sewer
assessments be based upon front footage, the municipal council may not by resolution impose
sanitary sewer lien assessments based upon any formula other than front footage. We agree.
A resolution cannot be substituted for and have the force and effect of, an ordinance, nor can a
resolution supply initial authority which is required to be vested by ordinance.Brown v. City of
St. Petersburg, 111 Fla. 718, 153 So. 140 (1933).
Article I, Section 21 of the charter of the defendant city empowers the defendant to
enact ordinances to set up procedures for the methods and ways of establishing local
improvement districts. Pursuant thereto the defendant passed an ordinance [ 2-36 of the
municipal code] which clearly provided that sewer assessments were to be based upon front
footage. Thus, we find that the September 1969 resolution, #XX-XX-XXXX, and the May 1971
resolution, #XX-XX-XXXX, providing for a square foot assessment formula based upon the
applicable zoning and optimum land use were invalid. For a change in the assessment formula
was required to be accomplished by ordinance and therefore could not be accomplished by the
above resolutions.
Plaintiff-appellant secondly contends that the assessment based upon zoning and optimum
land use is arbitrary, disproportionate, and therefore unconstitutional. We find this point well
taken.
When an assessment so transcends the limits of equality and reason that its exaction would
cease to be a tax or contribution and becomes extortion and confiscation, the courts will
protect the victims so assessed. See 29A Fla.Jur. Special Assessments 28 (1967).
862*862 In the case of sub judice, the defendant city is employing an assessment formula on
the basis of zoning classification and the optimum land use permitted therein. However, some
of these zoning classifications like the RU-5 zoning applicable to plaintiff's property, allow
several various types of uses which require different water and sewer needs.
Inequitable assessments result therefrom as it is apparent that a 68 unit apartment building
which plaintiff could have constructed on his property requires more water and sewer facilities
than plaintiff's present office building.
For the reasons cited hereinabove, the judgment herein appealed hereby is reversed and the
cause is remanded to the trial court to enter judgment in favor of the plaintiff.
Reversed and remanded.