City of Birmingham v. City of Vestavia Hills

• Court: Alabama Supreme Court
• Writing for the Court: SHORES
• Citation: City of Birmingham v. City of Vestavia Hills, 654 So.2d 532 (Ala. 1995)
• Decision Date: 13 January 1995
• Parties: The CITY OF BIRMINGHAM; and Richard Arrington, Jr., as mayor of the City of Birmingham v. CITY OF VESTAVIA HILLS. 1931335.

Page 532

654 So.2d 532

The CITY OF BIRMINGHAM; and Richard Arrington, Jr., as mayor of the City of Birmingham v. CITY OF VESTAVIA HILLS.

1931335.

Supreme Court of Alabama.

Jan. 13, 1995.

Demetrius C. Newton, City Atty., and David J. Vann, Asst. City Atty., Birmingham, for appellants.

William Anthony Davis III of Starnes & Atchison, J. Mark White of White, Dunn & Booker, Patrick H. Boone, Birmingham, for appellee.

Thomas W. Powe, Jr. of Ray, Oliver & Ward, Tuscaloosa, for amicus curiae Town of Vance.

Robert W. Ennis IV, City Atty., City of Tuscaloosa Legal Dep't, Tuscaloosa, for amicus curiae City of Tuscaloosa (in support of the appellee).

O. Stanley Thornton of Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega (for the City of Lincoln), Tom R. Ogletree of Ogletree & Livingston, Sylacauga (for the City of Sylacauga), Marion E. Wynn, Jr. of Wilkins, Bankster, Biles & Wynn, Fairhope (for the City of Fairhope), for amici curiae City of Lincoln, City of Sylacauga and City of Fairhope.

SHORES, Justice.

The single issue in this case is whether the legislature, under its plenary power, may constitutionally change by local law the boundaries of a municipality to include property not contiguous ¹ to the municipality's boundaries as previously fixed. Stated otherwise, the question is whether Act No. 92-708, Ala. Acts 1992, violates any one of three constitutional restraints on the legislature's power: Article IV, §§ 104(5), 104(18), and 105, of the Constitution of Alabama, 1901.

Act No. 92-708, a local law, ² became effective on October 7, 1992. It reads:

"AN ACT

"To alter or rearrange the boundary lines of the City of Vestavia Hills, Jefferson County, Alabama, so as to include within the corporate limits of Vestavia Hills, Alabama, certain other territory in Jefferson County, Alabama.

"Be it Enacted by the Legislature of Alabama:

"Section 1. The boundary lines of the City of Vestavia Hills, Jefferson County, Alabama, be, and the same are hereby altered or rearranged so as to include all of the territory heretofore encompassed by the corporate limits of the City of Vestavia Hills, Alabama, and in addition thereto the following described territory, to-wit:

"[The act at this point described two parcels. The metes and bounds descriptions of Parcel I and Parcel II are omitted here because they are unnecessary for resolution of the issue presented.]

"A map of the above described territory showing the relationship of such territory to the corporate limits of the City of Vestavia Hills, Alabama, is attached hereto as Exhibit 'A' and is incorporated herein by reference...." ³

Ala.Acts 1992, at 198, 204. The act by its exact words "altered or rearranged" the boundary lines of the City of Vestavia Hills (hereinafter "Vestavia") to include two separate parcels that are more than three miles from the nearest existing Vestavia boundary; therefore, neither parcel was or is contiguous to Vestavia.

Thereafter, the City of Birmingham and Richard Arrington, Jr., as its mayor (hereinafter "Birmingham"), filed a complaint alleging that Act No. 92-708 was unconstitutional and seeking declaratory and injunctive relief. Vestavia denied by answer. After a hearing, the circuit court held that Act No. 92-708 did not violate any provision of the Constitution of 1901. Birmingham appealed.

Section 104 of the Constitution prohibits the passage of any local laws in 31 specific areas. Birmingham argues that Act No. 92-708 falls into two of these specific areas, those mentioned in § 104(5) and § 104(18). Furthermore, Birmingham also argues that Act No. 92-708 violates § 105 because, Birmingham says, it is a local law addressing an area already provided for by general laws. See Ala.Code 1975, § 11-41-1 et seq. (general laws for municipal incorporation); § 11-42-1 et seq. (general laws on annexation and merger).

Vestavia argues that the act does not violate any provision of the Constitution and that the legislature acted according to its express power to "alter or rearrange the boundary of a city," as stated in the proviso of § 104(18). Vestavia also challenges the contention that the act violates § 105, for two reasons: first, it says, the legislature is expressly authorized to change a city's boundaries, by the proviso included in § 104(18), and second, it says, the act makes a territorial change in the boundaries of Vestavia that cannot otherwise be made under the present general laws.

The relevant portions of § 104 provide:

"The legislature shall not pass a special, private, or local law in any of the following cases:

"....

"(5) Incorporating a city, town, or village;

"....

"(18) Amending, confirming, or extending the charter of any private or municipal corporation, or remitting the forfeiture thereof; provided, this shall not prohibit the legislature from altering or rearranging the boundaries of the city, town or village [emphasis added];

"....

"The legislature shall pass general laws for the cases enumerated in this section."

Section 105 provides:

"No special, private, or local law ... shall be enacted in any case which is provided for by a general law ... and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court...."

A local law must comply with both § 104 and § 105 of Alabama's 1901 Constitution. Drummond Co. v. Boswell, 346 So.2d 955, 957 (Ala.1977).

The standard of review for determining the constitutionality of a statute was stated in State Board of Health v. Greater Birmingham Ass'n of Home Builders, Inc., 384 So.2d 1058, 1061 (Ala.1980):

"Before turning to the constitutional issue posed in this case, it is appropriate to reiterate the fundamental proposition that validly enacted legislation is presumed to be constitutional. As we stated in Mobile Housing Board v. Cross, 285 Ala. 94, 97, 229 So.2d 485, 487 (1969):

" 'Every presumption is in favor of the constitutionality of an act of the legislature and this court will not declare it invalid unless in its judgment, the act clearly and unmistakably comes within the inhibition of the constitution.' "

"We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within constitutionally imposed limitations. See Ex parte Huguley Water System, 282 Ala. 633, 213 So.2d 799 (1968)."

In Home Indemnity Co. v. Anders, 459 So.2d 836, 840 (Ala.1984), this Court stated:

"In determining whether the act is constitutional, we are bound by the following presumption:

" '[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.' "

Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)."

See Crosslin v. City of Muscle Shoals, 436 So.2d 862, 863 (Ala.1983).

Unless restricted by the Constitution, the legislature's power with respect to municipalities is plenary. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 222, 122 So.2d 757, 760 (1960). Section 104(5) of the Alabama Constitution specifically prohibits the legislature from enacting local laws to incorporate municipalities. Birmingham contends that this constitutional provision restricts the legislature's power to annex noncontiguous territory by local act, because, Birmingham argues, the act creates a different municipality and is, essentially, a local law incorporating a municipality. Birmingham argues that the act, in effect, incorporates two noncontiguous unincorporated areas as new cities, creating "Vestavia 2" and "Vestavia 3," thus violating § 104(5). Vestavia responds with the argument that § 104(5) has no application here because, it says, the act is an annexation law and not a law "incorporating a city, town, or village," as proscribed by § 104(5).

Vestavia correctly asserts that annexation and incorporation are two distinct subjects. Legislation dealing with each carries different definitions, each is dealt with in a different chapter of the Alabama Code, and each requires different prerequisites under Alabama law. The verb "to annex" is defined as "to add or unite to something already existing." 3A C.J.S. Annex (1973) (emphasis added). While "annex" implies some type of physical connection or joinder, the term does not always imply that actual contact is necessary for annexation. Id.; Black's Law Dictionary 88 (6th ed. 1990). "Incorporation" is defined as "[t]he act or process of forming or creating a corporation. The formation of a legal or political body, with the quality of perpetual existence and succession, unless limited by the act of incorporation." Black's Law Dictionary 766 (6th ed. 1990) (emphasis added). The municipal corporation of Vestavia had previously been formed. By Act No. 92-708, the legislature has added the property described therein to Vestavia. See Fetters v. City of Hoover, 518 So.2d 55, 58 (Ala.1987) (described by the court as an annexation case, and Meeks v. Town of Hoover, 286 Ala. 373, 240 So.2d 125 (1970), distinguished as an incorporation case); Fetters, 518 So.2d at 59 (Torbert, C.J., dissenting). The question here is whether the Constitution prohibits the legislature, by local act, from annexing, to an existing municipality, land that is not contiguous to the city.

Neither the Alabama Constitution nor Alabama's general annexation laws require that an area to be annexed into a municipality meet the exact requirements of an area to be incorporated as a city. For example, homogeneity and minimum population limits are statutory...