Bouldin v. City of Homewood

• Decision Date: 04 February 1965
• Docket Number: 6 Div. 135
• Citation: 277 Ala. 665,174 So.2d 306
• Parties: Morris N. BOULDIN v. CITY OF HOMEWOOD et al.
• Court: Alabama Supreme Court

Page 306

174 So.2d 306

277 Ala. 665

Morris N. BOULDIN v. CITY OF HOMEWOOD et al.

6 Div. 135.

Supreme Court of Alabama.

Feb. 4, 1965.

Rehearing Denied April 15, 1965.

Griffin & Wilson, Birmingham, for appellant.

J. M. Breckenridge, John S. Foster and W. W. Conwell, Birmingham, for appellee City of Birmingham.

HARWOOD, Justice.

The decree in this court was entered below on 2 September 1964. Under the requirements of due and regular appeal processes, the appeal was submitted in this court on 25 November 1964.

Section 188, Title 37, Code of Alabama 1940, provides as follows:

'When two or more municipalities lying contiguous to each other desire to consolidate and operate as one municipality, they may do so in the manner following. If it is the purpose to annex a city or town to another municipality, then each city or town shall express a willingness to such annexation by adopting an ordinance of the council, and the council of the municipality to be annexed shall thereupon call an election to be conducted in the same manner as other municipal elections by officers selected by the council. The election shall be held not less than thirty days after the passage of the ordinance. If at the election, conducted under the same sanctions and penalties as general elections, a majority of the qualified electors voting shall vote for annexation upon official ballots furnished for that purpose, then, upon a canvass of the returns, made as in general municipal elections, showing such results, the territory within the corporate limits of such city or town shall become a part of the annexing municipality and may be divided into wards or annexed to wards already established. Upon a presentation to the council of a petition signed by fifty qualified electors of the city or town, or fifty per cent of the qualified electors thereof, whichever is the least, requesting an election to be held to decide whether such city or town shall be annexed to another city or town, it shall not be necessary for the council to pass an ordinance expressing a willingness to be annexed, but the council shall pass the necessary ordinances providing for an election by the qualified electors of the city or town to decide the question.' (1947, p. 495, appvd. Oct. 9, 1947.) (Emphasis ours.)

Pursuant to the provisions of the above section, the city of Birmingham adopted an ordinance on 1 May 1964, expressing its willingness and readiness for the consolidation of the cities of Birmingham and Homewood, Alabama, by an annexation of territory of the city of Homewood, Alabama, to the territory of the city of Birmingham.

A copy of this ordinance was forwarded to the Mayor of the city of Homewood. The council of the city of Homewood took no action. However at a meeting of the council of the city of Homewood on 8 June 1964, a petition for an annexation election, signed by more than fifty qualified electors of the city of Homewood was presented to the council with the request that an election be held in the city of Homewood as provided by Section 188, supra.

Thereafter on 6 July 1964, the city council of Homewood adopted an ordinance calling for a municipal election to be held in the city of Homewood on Tuesday, 11 August 1964, on the question of annexing the city of Homewood to the city of Birmingham, under the provisions of said Section 188, supra.

The Homewood ordinance provided that the Mayor and city clerk give at least thirty days notice of said election by posting such notice in three public places and by publication once a week for three consecutive weeks in the Shades Valley Sun, a newspaper of general circulation in the city of Homewood, Alabama.

Notice of the election to be held on 11 August 1964, was posted in three public places in the city of Homewood, and by advertising in the Shades Valley Sun on July 9, 16, and 23, 1964.

The date upon which said annexation election was called was also the date upon which the city of Homewood was required by law to hold a general election for the election of a Mayor and Board of Aldermen.

Following the election on 11 August 1964, the city council undertook to canvass the returns of the election, and upon the basis of such canvass certified that 2,423 persons voted 'Yes' and 2,417 voted 'No' on the question of annexing Homewood to Birmingham.

On 17 August 1964, Morris N. Bouldin, a resident of Homewood, Alabama, filed a bill in the Circuit Court of the Tenth Judicial Circuit, praying that the court take jurisdiction of the cause presented by his bill and make the city of Homewood, Alabama, and the city of Birmingham, Alabama, parties respondent and require them to plead, answer or demur, etc.

The bill further prayed that the court issue a temporary injunction or restraining order enjoining the city of Homewood from transferring any of its property or municipal functions to the city of Birmingham, and enjoining the city of Birmingham from taking over, or attempting to take over any of the property or municipal functions of the city of Homewood.

The bill further prayed upon a final hearing that the court render a decree protecting the complainant's property rights by invalidating the special election held in the city of Homewood, Alabama, on 11 August 1964, and further upon a final hearing that the court render a permanent injunction enjoining the city of Homewood from transferring any of its property or functions to the city of Birmingham, and permanently enjoining the city of Birmingham from taking over any of the municipal property or municipal functions of the city of Homewood. The complaint further prayed that the special election held by the city of Homewood on 11 August 1964, be set aside and held for naught, or in the alternative that on a final hearing the court will make and enter an order or decree declaring that the majority of the legal votes cast in such election were opposed to the annexing of the city of Homewood by the city of Birmingham.

We will not attempt to set out all of the averments in Bouldin's bill of complaint, but will refer only to those essential to a review of this case.

In paragraph 4 of his complaint Bouldin asserts in detail matters in reference to the calling of the election, the provision for the notice of such election and asserts that said notice was not posted or published in accordance with the provisions of Section 34(22), Title 37, Code of Alabama 1940; that said special election was not legally called and notice thereof was not legally published and that such special election was invalid and void.

In paragraph 9 of his complaint Bouldin alleges that the tax rate on his property in the city of Homewood was $3.35 per hundred and the tax rate in the city of Birmingham was $3.60 per hundred, and that if the annexation of the city of Homewood by the city of Birmingham is perfected, his tax rate will automatically be increased forthwith and he will be damaged thereby.

In paragraph 10 of his complaint Bouldin alleges that the city of Birmingham imposes on its residents a .01cents sales tax which is not imposed by the city of Homewood, and that on 13 August 1964, the city of Birmingham amended its sales tax ordinance to apply to the residents of any annexed territory, effective on the first of the month subsequent to the effective date of any annexation. Complainant avers that he and other residents of Homewood would be damaged by the levying and paying of said sales tax.

The city of Homewood filed its answer and cross bill, and petitioned for a declaration of its rights. In its answer it admitted many of the allegations contained in the complaint, including those allegations pertaining to the giving of notice of said election. Homewood asserts that although there appears to be a conflict between the provisions of Section 34(22), supra, (notice statute), and Section 188, supra, with respect to the notice required of said election, it had attempted to follow what it considered to be the requirements of Section 188, as to giving the notice of said election. It being the conclusion of the city of Homewood that the notice required was thirty days, and in good faith the city of Homewood considered that the provisions of Section 188 were controlling, and that the thirty day notice as given was legally sufficient.

The city of Homewood prayed that pending a final determination of the proceeding that the lower court would issue an order preserving the status quo of the city of Homewood, and its municipal officers.

The city of Homewood further prayed that upon the final hearing of its answer and cross bill that the court would find the existence of a justiciable controversy between the parties and would render its final decree declaring and setting forth the respective rights, duties, and status of the parties, and would determine the validity of the special election held in the city of Homewood on 11 August 1964.

Other relief is prayed for but we do not think it essential in this review to set such prayers forth.

The complaint of Bouldin, and the answer and cross bill of Homewood, coming to be heard upon the applications for temporary injunction contained in such pleadings, the court denied the application for temporary injunction in each respective case.

The court found as to the original bill that:

'Assuming the truth of the averments of material facts well pled, is lacking in sufficient jurisdictional or essential equity to justify the further exercise of jurisdiction by the court, either to proceed with reception of evidentiary matter or to invite or support any interlocutory restraining order or injunction.'

In denying the application of cross complainant, city of Homewood, for an interlocutory injunction, the court in its decree wrote:

'Upon consideration, the Court is of the opinion that the aforesaid application is not due to be granted, for probably lack of equitable jurisdiction over the subject matter, and for want of sufficient equity in the...