City of Birmingham v. Bouldin, 6 Div. 254

• Decision Date: 25 August 1966
• Docket Number: 6 Div. 254
• Citation: 190 So.2d 271,280 Ala. 76
• Parties: CITY OF BIRMINGHAM v. Morris N. BOULDIN et al.
• Court: Alabama Supreme Court

Page 271

190 So.2d 271

280 Ala. 76

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

6 Div. 254.

Supreme Court of Alabama.

Aug. 25, 1966.

J. M. Breckenridge, John S. Foster and W. W. Conwell, Birmingham, for appellant.

Irvine C. Porter and Jos. S. Mead, Birmingham, for appellee, cross-appellant City of Homewood.

Griffin & Wilson, Birmingham, for appellee Bouldin.

Jenkins, Cole, Callaway & Vance, Birmingham, for City of Vestavia Hills, amicus curiae.

MERRILL, Justice.

This is an appeal by the City of Birmingham from a decree nullifying an election of August 11, 1964, in the City of Homewood, whereat a majority voted for annexation of Homewood to Birmingham by a vote of 2,423 to 2,417. The events leading up to the election and the filing of this suit are detailed fully in the opinion on first appeal in Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306, and will not be repeated here.

It is sufficient to say that Bouldin, a citizen of Homewood, filed a bill for injunction seeking to have the election set aside and held for naught. One of his contentions was that the statutory notice required by Section 3 of Act No. 663, Acts of Alabama 1961, p. 828, listed in the Pocket Parts as Tit. 37, § 34(22), was not given. Bouldin made the City of Homewood and the City of Birmingham parties respondent. Homewood filed a cross bill seeking a declaration of rights and also asking that the election be set aside. Thus, Birmingham was in the position of trying to uphold the election, while Bouldin and Homewood were trying to have it set aside.

The trial court denied the relief sought in Bouldin's bill and Homewood's cross bill and each appealed. This court reversed the decree of the trial court and remanded the cause.

We thought that by holding that since the necessary statutory notice was not given and the election was therefore void, that the controversy would be ended, but Birmingham insisted on presenting and asserting its affirmative defenses, as it had a right to do, and we so stated in our answer to the application for rehearing, 277 Ala. 665, 174 So.2d 306.

On July 15, the trial court entered a 'Decree on Pre-trial,' the pertinent parts of which reads:

'Upon hearing, in Open Court, of Pretrial, on June 14, 1965, and upon this date, for the purpose of argument by Counsel and submission to the Court of the proposed issues to be considered upon oral hearing of this cause at a later date; and for an explicit delineation of the issues to be considered at said oral hearing;

'It is CONSIDERED, ORDERED, ADJUDGED and DECREED as follows:

'That the following issues will be tried and determined by the Court at a future setting for oral hearing:

'I. Whether the fact that the Official Ballot adopted by the City Counsel of Homewood for the Special Annexation Election of August 11, 1964, read 'yes' or 'no' in answer to the annexation question while the Ballot on the voting machines employed in the election called for answers 'for' and 'against' resulted in effecting the illegality of said voting-machine Ballots and the voiding of the said Special Annexation Election. This issue is introduced and insisted upon by the Complainant, Morris N. Bouldin.

'II. Whether the Public Notice, required by pertinent statutes, of the holding of said election can be accomplished, within the meaning of said statutes, by general, unofficial notoriety achieved through news media and by other means will suffice to meet said statutory requirements in lieu of explicit compliance with the letter of said statutes. This issue is introduced and insisted upon by the Respondent, City of Birmingham.

'III. Whether illegal collusion was employed by the Complainant, Bouldin, and the Mayor and/or one or more of the members of the City Counsel of the City of Homewood in the prosecution of this instant litigation. This issue is introduced and insisted upon by the Respondent, City of Birmingham.

'IV. Whether any of the activities of the Officials, or any of them, of the City of Homewood, in and about the preparation for, calling of and holding of the aforesaid Annexation Election were in violation of the equitable principle of 'unclean hands' so as to effect an estoppel of the right of the City of Homewood or of the Complainant, Morris N. Bouldin to assert the alleged invalidity of the aforesaid Annexation Election. This issue is introduced and insisted upon by the Respondent, City of Birmingham.'

After a full hearing, the trial court made the following findings:

'The Court finds that the use of the unofficial ballot in the voting machines for registering a vote either 'for' or 'against' the proposed annexation proposition did not render the election void for failure to use the official ballot prescribed in the municipal ordinance calling for said annexation election.

'The Court finds from the evidence that the Birmingham defenses of unclean hands, collusion and estoppel have not been sustained, and further finds that general unofficial notoriety is not sufficient or adequate to meet and overcome the mandatory provisions of Act No. 663 of the 1961 Legislature of the State of Alabama regarding notice of special municipal elections.'

Pursuant to this last finding, the court decreed that the election was void.

Appellant asserts in brief:

'All of the assignments of error involve the same basic question of law; and that question is whether the Circuit Court erred in nullifying the annexation election held in Homewood on August 11, 1964, whereat the majority of electors voted in favor of annexing Homewood to Birmingham. * * *'

Appellant's first contention is that 'Bouldin was not entitled to any relief, because he failed to prove an essential averment of his bill--the averment that the omission of the sixty day notice prevented 'many qualified voters from voting' whose votes 'would have changed the result of the election'; and Homewood is not entitled to any relief because it neither averred nor proved that the omission of said notice affected the result of the said election.'

We cannot agree for two reasons. First, the trial court had called a pre- trial conference to determine the issues and had defined them in the decree set out supra. There was no objection to the 'Decree on Pre-trial' and the issues were limited to those there delineated. Proof was limited to those issues. Secondly, the result or claimed result of the election would be immaterial if the court found, as it did, that the election was void.

Appellant's second contention is that 'The suit should be dismissed because it is a collusive suit which Mayor Walker and others secured Bouldin to file in his name for the purpose of nullifying the election on the ground that the Homewood officials failed to give proper notice of the election, the attorneys who filed the suit in Bouldin's name being selected by Walker and others, not including Bouldin, and the said attorneys being compensated by money raised by Walker and others.'

Appellant's position is that Homewood is estopped to claim that the election was void because the sixty-day notice was not given, for the reason that Homewood officials called the election and gave what they thought was the proper notice. And since Homewood was estopped, Bouldin, as a citizen and taxpayer of Homewood, was merely doing what Homewood could not do, but was in collusion with Homewood officials in filing his suit.

We dismiss this contention. This is not a collusive suit. It has been as fiercely litigated as any case we have considered in recent years.

There is no collusion or fraud or wrong doing in the filing and prosecuting of a test case for obtaining a judicial decree on a question which is disputed or on which some doubt has been cast, even though both parties, plaintiff and defendant, desire that the suit shall be decided in a given way. Examples of this are suits to question tax levies, proposed bond issues, and suits to test the title of real estate. This rule is particularly true where the question to be decided is of public importance. Blaize v. Hayes, 204 La. 263, 15 So.2d 217(7).

The City of Birmingham had invited several adjoining municipalities to become annexed to Birmingham under Tit. 37, § 188, and they held elections similar to the one held by Homewood. As we understand it, none of them except Mountain Brook gave the required sixty-day notice. The notice factor was not important because in all of the municipalities except Homewood, the annexation was defeated. Birmingham has argued in this court that any notice exceeding thirty days would be legal and sufficient. There was a disputed question and it was of public importance that it be settled.

Certainly Bouldin had a right to raise the question of the lack of the sixty-day notice, and his suit was not collusive merely because the elected officials of Homewood hoped his contention would prevail, and some of them, as individuals, helped raise money for the litigation.

Appellant's third contention is that 'The provisions of Act 663 of the Legislature of Alabama of 1961 (Ala.Acts, 1961, p. 828) regarding notice did not apply to the annexation election held in Homewood.'

Appellant has the right to raise this question because of Tit. 13, § 28, Code 1940, which permits a question, decided on a former appeal, to be presented again on a subsequent appeal in the same case. We have considered this contention again and are convinced that it was properly decided on first appeal and we reaffirm our decision on that question. Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306.

Appellant's fourth contention is that 'If it should be held that said Act 663 applied to the annexation election held in Homewood, the said election is not invalidated by omission to give the notice provided for by Act 663 inasmuch as the Homewood electorate was otherwise generally informed of the time, place and purpose of said election and voted generally on the question submitted, and the said omission did not...