City of Birmingham v. Community Fire Dist.

• Citation: 336 So.2d 502
• Parties: CITY OF BIRMINGHAM, a Municipal Corporation v. COMMUNITY FIRE DISTRICT, a Public Corporation, et al. SC 1373.
• Decision Date: 25 June 1976
• Court: Supreme Court of Alabama

Page 502

336 So.2d 502

CITY OF BIRMINGHAM, a Municipal Corporation v. COMMUNITY FIRE DISTRICT, a Public Corporation, et al.

SC 1373.

Supreme Court of Alabama.

June 25, 1976.

As Corrected On Denial of Rehearing Aug. 6, 1976.

Johnson, North, Haskell & Slaughter, Birmingham, for appellant.

James M. Tingle, Harold T. Ackerman, Malcolm L. Wheeler, Birmingham, for appellees.

J. Fred Powell, William F. Murray, Jr., Birmingham, for U.S. Steel Corp., amicus curiae.

MERRILL, Justice. ¹

This appeal is from a judgment and decree setting aside an annexation election whereby the City of Birmingham, hereinafter Birmingham, proposed to annex certain territory in Pinson Valley, northeast of the city, under the provisions of Tit. 37, §§ 138--187, Code of Alabama 1940.

The election was held on November 9, 1974, and resulted in the defeat of the proposed annexation. A contest of the election was initiated by Birmingham in the probate court which resulted in an order entered on February 3, 1975 changing the results in favor of the annexation.

Prior to the November 9 election, an appellee, the Community Fire District, and other intervenors, hereinafter 'appellees,' sought to enjoin the election on constitutional and statutory grounds. The appellees consisted of:

(1) Citizens within the proposed area to be annexed.

(2) Citizens within the present City Limits of the City of Birmingham;

(3) Property owners within the proposed area to be annexed;

(4) Property owners and citizens who were excluded arbitrarily from the area sought to be annexed;

(5) An adjoining municipality, the City of Tarrant City, which owned a sanitary land fill operation and substantial industrial plant located in the territory sought to be annexed; and

(6) A Fire District organized under the laws of the State who would lose substantially all of its territory by virtue of the proposed annexation.

The circuit court granted a temporary restraining order which was superseded by this court on November 8, but the probate court was enjoined and restrained from entering an order extending the corporate limits of Birmingham until a full hearing was held and the issues raised were determined. The matter thus stands in the status quo pending this appeal.

The cause came on to be heard in circuit court on May 21, 1975. The court issued its decree on June 26 in which the election was set aside because of six fatal, jurisdictional, statutory and constitutional errors committed. Birmingham appealed.

The first error listed by the trial court was that Birmingham had 'gerrymandered' the Pinson Valley territory so as to insure the success of the November 9 election, and that the gerrymandering employed to form islands or enclaves of electors not favoring annexation by placing them outside the proposed boundaries was unreasonable, arbitrary and discriminatory.

We do not discuss the other five listed 'errors' as we feel that the first 'error' is dispositive of the case.

The trial court quoted the definition of the word 'gerrymander' from Webster's Third New International Dictionary as follows:

'To divide an area into political units in an unnatural and unfair way with the purpose of giving special advantage to one group.'

Birmingham had made surveys and taken polls to ascertain who would vote for and against annexation. Admittedly, they included territory where the vote would be favorable and excluded territory where it would not be favorable. They excluded the most populous communities in the eighteen square miles in Pinson Valley which they proposed to be annexed.

A look at the map shows the situation better than the use of many words. A corridor could have been formed on the north and west sides of the populous communities, but in their zeal to annex additional territory, Brimingham left these are-as as islands or enclaves either completely or primarily surrounded by the annexed territory. These islands or enclaves, as shown on the map are:

(1) Airport Hills

(2) Robinwood

(3) Pawnee Community

(4) Pinson Heights

(5) Mimosa and Ware Trailer Parks

(6) Carson Village

(7) Pinson

(8) Palmerdale

(9) Village Springs

An example of the treatment of residents who did not favor annexation can be seen in an examination of the Airport Hills community. Airport Hills is a densely populated, homogeneous, black community. The community was about evenly divided on the question of annexation. Based upon the survey taken by Birmingham, the pro-annexation inhabitants were taken in but the non-annexation people were left off and were not permitted to vote on the question. The territory excluded was comprised of 188 residences. The divisions between those allowed to vote and those excluded were sometimes a street, and sometimes merely lot lines in the same block. The people living in these 188 residences were Completely surrounded by the city limits of Birmingham and their only way of egress from their community would be the streets of Birmingham.

There can be no doubt that Birmingham arranged the boundary lines and predetermined the result of the election by eliminating most of the opposition, who were the predominant majority of the inhabitants of Pinson Valley.

The decree of the trial court is due to be affirmed for at least two reasons. First, the 'gerrymandering' done by Birmingham in excluding voters known to be in opposition did not pass the reasonableness test. Second, that same action was unconstitutional.

THE REASONABLENESS TEST

The text writers state that an unreasonable annexation is invalid and subject to judicial scrutiny. 'It has frequently been stated that a municipal corporation may not extend its boundaries by the annexation of territory * * * where it would be unreasonable to do so, and that an unreasonable annexation is invalid or void. (Citations Omitted) * * *.' 2 McQuillin, Municipal Corporations, § 7.23 (Rev. Ed. 1966); Antieau, Municipal Corporation Law, § 1A.04 (1975).

Courts across the nation have expressed the law consolidated by treatise writers. The Supreme Court of Missouri, in St. Louis Co. v. Champ, 438 S.W.2d 205 (1969), stated as follows:

'It has been firmly established in decisions of this court that reasonableness of annexation by a city always is the subject of judicial inquiry. (Citations Omitted.)'

Missouri has a statute which allows annexation without an election, much as Alabama's Tit. 37, § 137 (which was not used in the instant case). The City of Champ was attempting to expand its borders under that statute by drawing lines of annexation which included only people whom it had predetermined to be in favor of the annexation. In holding such action unreasonable, the Missouri court illustrated that to hold otherwise would allow any city that could assure itself of a unanimous petition in favor of annexation to succeed in annexing whatever amount of adjacent country it could find, as long as it was sure the residents of the adjacent territory would petition in favor of the annexation. By so drawing the boundaries, a city could insure that a 'no' vote would be included.

The case of Town of Fond du Lac v. City of Fond du Lac, 22 Wis.2d 533, 126 N.W.2d 201 (1964), is in point. Facts in that case indicate that annexation lines were drawn creating an island bounded on one side by the city's boundaries and on the other three sides by the city's proposed boundary lines of annexation. The electors in the island area were purposefully excluded from participation in the annexation because they were found to be against it.

The Wisconsin court, in Fond du Lac, stated:

'This court has authority to review the annexation of territory to a city or village and apply the test of reason. This principle was first announced in Smith v. Sherry (1880), 50 Wis. 210, 6 N.W. 561, . . .. The rule of reason applies to the exclusion of land consisting of an internal island as well as the inclusion of land by the external boundaries. The exclusion of land by the creation of an island within the city by the process of annexation Must be as reasonably justified as the inclusion of the land around the island for city needs and purposes. A hole in a doughnut is natural but it must be proved so in a city. (Emphasis Supplied.)

'The question is not whether the city can have only one continuous boundary line But whether the proposed boundary lines are reasonable in the sense they were not fixed arbitrarily, capriciously, or in the abuse of discretion. (Emphasis Supplied.)

'(Such action, undertaken) solely for the purpose of assuring the success of the annexation was an arbitrary and capricious action and an abuse of discretion and invalidates the annexation.'

With this, the Wisconsin court reminded municipalities that discretion to determine boundary lines of a city is not wholly without limitations and cannot transcend into the realm of arbitrary and capricious action.

As already stated, officials of Birmingham testified that they deliberately set the boundaries so as to prevent most of those who were going to vote 'No' from voting on the issue at all. The fact that the lines were so drawn prevented the great majority of the inhabitants of Pinson Valley from voting although the proposed new city limits would either encircle them completely, or primarily encircle them.

THE CONSTITUTIONAL QUESTION

Article 1, § 13 of the Constitution of Alabama of 1901 provides:

'That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.'

In McCollum v. Birmingham Post Company, 259 Ala. 88, 65 So.2d 689, this court said:

'This section of our constitution (§ 13) secures every citizen against arbitrary action of those in authority and places him (or her) within the protection of the law of the land, * * *.'

In State v. Bush, 12 Ala.App. 309, 68 So. 492, the Court of Appeals said:

'The manifest purposes of the...