Berry v. Bourne

Decision Date05 December 1978
Docket NumberNo. 78-1497,78-1497
Citation588 F.2d 422
PartiesRobert D. BERRY, Appellant, v. John E. BOURNE, Mayor of the City of North Charleston, Pete B. Adams, James V. Edwards, Oatman C. Gerald, Robert A. Ankersen, Jr., Patsy W. Hughes and R. E. Zipperer, members of the city council of the City of North Charleston, City of North Charleston and James E. Gonzales, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

David G. Jennings, Charleston Heights, S. C. (Goodstein & Jennings, P. A., Charleston Heights, S. C., on brief), for appellant.

James E. Gonzales, City Atty., North Charleston, S. C., for appellees.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The plaintiff/appellant sought an injunction against the annexation of a contiguous area by the defendant/appellee City of North Charleston. It is the contention of the plaintiff, a resident and registered elector of the area to be annexed, that the statutory authority for the proposed annexation violates the equal protection clause of the Fourteenth Amendment. He asserts federal jurisdiction under §§ 1331, 1343(3) and 1343(4), 28 U.S.C. and grounds his action on § 1983, 42 U.S.C. After the filing of his complaint he moved the district court for a preliminary injunction against the annexation. The district court denied the motion on the ground that the plaintiff had not shown the "likelihood of success" on his constitutional claim. From that denial he has appealed. We affirm.

The statute under which the defendants propose to annex the area in controversy is § 5-3-150, Code of Laws of South Carolina (1976). 1 It authorizes the governing body of any city in South Carolina, upon the filing of a petition signed by seventy-five percent or more of the freeholders in any area contiguous to the city requesting annexation, to annex such area by the adoption of an appropriate resolution. The plaintiff, one of thirteen registered voters living in the area proposed to be annexed, 2 asserts that the statute, by denying to the registered voters the right to vote on the annexation, violates the rights of the registered voters under the equal protection clause.

Hunter v. Pittsburgh (1907) 207 U.S. 161, 178-179, 28 S.Ct. 40, 52 L.Ed. 151, declared that annexation by a city or town is purely a state political or legislative matter, entirely within the power of the state legislature to regulate. Its language was sufficiently broad, as an unfriendly commentator has observed, "to dispose of every conceivable challenge to annexation." 3 And that has been the uniform construction given the decision in subsequent court rulings with one exception. Thus, it has been held to foreclose attacks on a state procedure specifically on either due process or equal protection grounds. 4 The single exception to the rule, which subsequent decisions have established, is confined to challenges resting on alleged racial discrimination. 5 We are not concerned here with a racial claim, only with an equal protection claim.

The decisions of this court have followed Hunter. We recently declared that, under its annexation statutes, "South Carolina need not grant anyone the right to vote on annexation." Hayward v. Clay (4th Cir. 1978) 573 F.2d 187, 190, and we earlier approved a district court holding in a Virginia annexation case, again relying on Hunter, that there is no "basis for an equal protection claim when on one is granted the right to vote on the matter" of annexation. Citizens Com. to Op. Annex. v. City of Lynchburg, Va. (W.D.Va.1975) 400 F.Supp. 68, 75, Modified on other grounds (4th Cir.), 528 F.2d 816, App. denied 423 U.S. 1043, 96 S.Ct. 766, 46 L.Ed.2d 632 (1976). That is this case.

The plaintiff urges that Hunter and the many cases which have followed it must be considered to have been overruled by the later decisions in Cipriano v. City of Houma (1969) 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Kramer v. Union School District (1969) 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, and similar authorities. Those decisions, however, are inapplicable here. We emphasize again that neither freeholders nor electors as such are given the right to vote on annexation under the statute in question; that right is given exclusively to the governing board of the annexing city. It is true that three-fourths of the freeholders in the area to be annexed must request annexation before the governing body of the annexing city may consider annexation. This is a common preliminary prerequisite for authorization of an annexation, whether by an election or by action of the annexing city's governing board. But the important fact is that the action of the freeholders in signing the request for annexation does not authorize annexation. Annexation depends wholly on the favorable vote of the governing body of the annexing city. This is the crucial action and on that neither freeholders nor electors as such have a vote. Since the electors of the municipality of the area to be annexed are not given the right to vote under the challenged statute, the application of the statute poses no equal protection issue.

The procedure here is similar to that which was sustained in Adams v. City of Colorado Springs, supra (308 F.Supp. at 1404), where the court said:

In upholding this statute we are, of course, mindful that the Supreme Court's decision in Hunter v. City of Pittsburgh, * * * continues to be the law, and we are not at liberty to limit the effect of this decision by grafting the voting rights decisions on to this annexation body of law.

The plaintiff cites Heyward v. Clay as contrary to the view here expressed. That case, however, involved an alternative provision for annexation under the South Carolina Code. This alternative procedure provided for an election on annexation on the basis of a petition of fifteen percent of the freeholders in the area to be annexed, as contrasted with the procedure prescribed by § 5-3-150, which, upon request of three-fourths of the freeholders in such area, empowered the governing body of the annexing city to decide on annexation without the participation of the voters of either the area to be annexed or of the annexing city. Clearly, if the statute before us had provided that annexation required the favorable vote of the freeholders of the area to be annexed and made no provision for voting by the electors of that area, the statute would be condemned as violative of the equal...

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    • March 15, 2001
    ...rational-basis standard. Id. at 219-22, 714 P.2d at 389-92, citing Carlyn v. City of Akron, 726 F.2d 287 (6th Cir.1984); Berry v. Bourne, 588 F.2d 422 (4th Cir.1978); Township of Jefferson v. City of West Carrollton, 517 F.Supp. 417 (S.D.Ohio 1981), aff'd. 718 F.2d 1099 (6th Cir.1983); Doen......
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    ...such cases from those in which voters made the final decision. Seattle,103 Wash.2d at 670,694 P.2d 641 (citing Berry v. Bourne, 588 F.2d 422, 424 (4th Cir.1978)) (where challenged procedure does not involve or contemplate election, there is no unconstitutional limitation on right to vote); ......
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    • August 26, 2020 from the Sixth Circuit, Carlyn v. City of Akron , 726 F.2d 287 (6th Cir. 1984), and a case from the Fourth Circuit, Berry v. Bourne , 588 F.2d 422 (4th Cir. 1978). The Ninth Circuit observed: "Neither of the annexation methods at issue in those cases [( Carlyn and Berry )] granted elec......
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