1 R ule 10 (Court of App eals)

. Mem orandum Opinion . -- ( b) T he Co ur t, w ith th e c on cu rre nc e o f all

judges participati ng in the case, m ay affirm, rever se or modify the act ions ofthe t ri al court by mem orandum opini on when a for mal opini on would have no pr ecedenti al v alue. W hen a case i s decide d by memorandum opini on itshall be desi gnated " MEM ORAN DUM OPINION," shal l not be publ ished, and shal l not be cit ed or rel ied up on for a ny r eason i n a subsequent unrel ated case. 

# FILED

Au gust 26, 1997 Cecil Crowson, Jr
. App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON JAM ES L. JONES, et

al, ) From the Chancery Court of

) Lauderdale C ounty at Ri pley , TN Plaintiffs/App ellants, ) ) The Hon orable W alton W est, Jud ge vs. ) ) Lauderdale Chance ry No. 94 45 RANDA LL J. HARRIS, MA YOR, ) Appeal No. 02A01- 9701-CH-00010 et al, ) ) Defendants/Ap pellees. ) AF FIRMED ) ) J. Thomas Caldwell ) Ripley, Tennessee ) Attorney for Plaintiffs/Appella nts ) ) Charles T. D yer ) Wilkes & Dyer ) Dyersburg, Tennessee ) Attorney for Defendants/Appellees

MEMORA NDUM OPIN ION 1 HIGHERS, J. The Plaintiffs appeal th e trial court’s final judgment which upheld the action of the Board of Mayor and Aldermen of the Town of Hall s in entering into a tw o-year c ontract w ith

a private contractor for the c ollect ion of solid waste. For the reasons stated h ereinafter, we affirm the tr ial court’ s judgment. The parties stipulated to the following facts:

1. Plainti ffs c omprise a cit izens g roup formed to contest the validity of a contract entered into by the [Board of Mayor and Aldermen] of the Tow n of Halls with Brownin gFerris Industries [BFI], a priv ate fi rm, for the coll ecting and dispo sal of solid was te withi n the corporate limits of the mun icipa lity. Plaintiffs, James L . Jones, Noel Sherrod, Oneal Wh ite, Jerry S tanley, Tommy Hansbrough, Gaylon Smit h, Eddie Bishop, Neld a Bishop, Dav id Hurt, Jr ., John E skridge, Tommy Nix, and others, are resident citi zens ofthe T own of Halls, taxpayer

s, and, in vary ing capacities, users of resi dential and comm erc ial was te di spos al fa cil iti es affo rded by the mun icipa lity. 2. Defendants comprise the duly elect ed B oard of Mayor and [Aldermen] of the Town of Halls (the Board).2 3. On June 6, 1994, a proposa l was presented to the Board to “cont ract out” so lid wast e disposal to a private firm to be paid fo r from fees charged the users. 4. On July 11, 1994 the Board voted to advertise for bids for priv

ate waste c ollection. 5. A Specifications Document was

prepared for

the Board by MTAS and advertised in local newspapers. 6. Bids were received from three (3) firms. 7. On August 1, 1995 the Board set Aug ust 15, 1995 to open bids for garbage c ollection. 8. O n August 15, 1995 bids were opened a nd th e meeting adjour ned to August 29t h. 9. On August 29, 1995 t he Board voted to accept the BFI bid for s olid was te collecti on. 10. Plai ntiffs’ suit was filed September 30, 19 9 4 insisting that the Board had no ordinance author ity to di sband the Town’s sani tation department a nd contract for w aste disposal wi th a p riv

ate c ompan y. Plai ntiff s ins ist the Board’s action is a nullity because the present, operab le ordinances of the Town do not autho ri ze p riv ate w aste col lec

tion . Pl aint iffs say they hav e a due process right to be heard th rough the statutory ordinance adopti on procedure. 11. The Board answ ered , de nying th e material allegations

of the Complaint, an d affirmatively insisting that the P lai ntiffs have no standing to bring this suit, and furt her tha t Title 8, Chapter

2, of the Town of

Halls Code as amended by Ordinance of September 5, 1967 are suffici ent for the awarding of a contract for c ollection of re fuse. 12. A temporary restrainin g ord er was i ssued September

30, 1994 and an order f or temporary inju n ction issued Nov ember 1, 1994. 13. Both parties have moved forsummary judg ment based on this Stipulation of F act and the Stipul ation of Documents filed w ith the Court

. The stipulated doc uments filed by the parties included the Town charter, Town ordinances, and other

documents. The Tow n charter g rants the Tow n the “full powe r and authority” to “enact and pass such law s and ordinances nec essary and proper to preserve the health of said t own.” The Tow n ordinances pr ovide, inter alia , that: Collection

. All refuse ac cumulated wi thin the corporate limits shal l be collected, c onveyed, a nd disposed of under the super

vision of su ch officer as the bo ard of mayor and alde rmen shall des ignate. . .

.3

As amended, the ord inances provide the following definition o f collector:

Collecto r – The term “col lector,” s hall mean any person, firm, co rpo ration, or pol itical subdi vision, that collects, transports, or dispose s of any refuse w ithin the corporate li mits of Halls, Tennessee. The Town’s ordinances also require collectors to ob tain collection permits:

Permits

. No person, firm, or corporation shall engage in the busines s of collectin g refuse or removing the contents of any refuse co ntaine r (other than the owner of such c ontainers) for any purpose w hatsoever, who does not possess a permit to do so from appropriate authority of the [Town] of Hal ls. . . . On ap pea l, th e Pla inti ff s rais e the foll owing i ssue for t his co urt’s review:

Can the Board of Mayor and Aldermen of t he T own of Halls do away with the Cit y sanitati on-garba ge disposal system and contract s olid was te dispos a l through a pri va tely owned independe nt contractor without t he authority of an enabling or dinance?

A municipality ’s power s “are to be c arried into eff ect and discharge d throu gh provisi ons o f ordinances enac ted by the [muni cipality ’s] council or other g overning authority. ” Brooks v. Garner , 566 S.W.2d 531, 532 (Tenn. 1978). Ci ting this principle, the Plaintiffs contend t hat the Board’s action of entering into a contract with BFI was a nullity because such act ion was not authorized by any existing Town ordinanc e.

We disagree becaus e we concl ude that, under ex isting Tow n ordinances, t he Board has the authorit y to enter in to a contract w ith a private contractor for the collection of solid wa ste withi n the munici pality. The ordinances g ive the Boar d the authority to designate an officer who w ill superv ise the coll ection, conv eyance, and disposal of refuse withi n the Town’s corporate li mits. The ordina nc es broadl y define eligible entities which may collect wast e within t he Town’s cor porate limits to “any person, firm, corporat ion, or poli tical subdiv ision,” and require such entities to obtain a permit from the Town. By their express terms, therefore, the ordinances authorize t he Board to designate a firm or corpor ation, such as BFI, to overseethe collecti on of waste within the Town’s c orporate limi ts. According ly, w e reject the P laintiffs’ arg ument that2 In lig ht o f ou r af firm an ce of t he tria l co ur t’s judgment, we need not address t he Board’ s content ion

on cross-ap peal t hat t he Plai nti ffs l acked standi ng to br ing t his act ion. 4 the Town’s or

dinances do not aut horize theBoard to contract for waste dis posal wi th a priva te co mpa ny. 2

The judgment of the tr ial court i s hereby affirmed. Costs of this appeal are taxed to th e Pla inti ff s, fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

TOMLIN, Sr. J.