City of Birmingham v. Wilkinson

• Decision Date: 02 October 1987
• Citation: 516 So.2d 585
• Parties: CITY OF BIRMINGHAM v. T.J. WILKINSON, et al. T.J. WILKINSON, et al. v. CITY OF BIRMINGHAM, et al. 85-1160, 85-1262.
• Court: Alabama Supreme Court

Page 585

516 So.2d 585

CITY OF BIRMINGHAM v. T.J. WILKINSON, et al.

T.J. WILKINSON, et al. v. CITY OF BIRMINGHAM, et al.

85-1160, 85-1262.

Supreme Court of Alabama.

Oct. 2, 1987.

Rehearing Denied Nov. 6, 1987.

James K. Baker, City Atty., and John P. Carlton and David J. Vann of Carlton, Vann & Stichweh, Birmingham, for appellant/cross-appellee.

Carl E. Johnson and Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, and William A. Short, Jr. and J.H. McEniry III of McEniry, McEniry & McEniry, Bessemer, for appellees/cross-appellants.

MADDOX, Justice.

These consolidated appeals are from a judgment declaring null and void an August 13, 1985, annexation election called for by the City of Birmingham, and they involve a question of the validity of the so-called "corridor" principle. We reverse and remand.

Pursuant to §§ 11-42-40 through -88, Code of 1975, Birmingham passed a resolution calling for an annexation election to annex certain unincorporated territory in western Jefferson County. This resolution, as later amended, along with a map of the territory proposed to be annexed, was filed with the probate court, which ordered the election to be held on August 13, 1985. Prior to the election, certain residents of, and property owners in, the proposed annexation area (individual appellees/cross-appellants) filed a declaratory judgment action in the Circuit Court of Jefferson County, in which they sought a declaration concerning the constitutionality of §§ 11-42-40 through -88. They also sought to enjoin the holding of the annexation election to be held on August 13, 1985, and to enjoin the certification of the election results. Both Birmingham and a judge of the probate court of Jefferson County were named as defendants (appellants/cross-appellees). The circuit court refused to enjoin the holding of the election, but it did issue an order enjoining the probate judge from certifying the results. A majority of the qualified voters in the proposed territory voted for the annexation in the election. Subsequently, both the City of Hueytown and the Jefferson County Board of Education were allowed to intervene as plaintiffs in the action.

Following a two-day, non-jury trial, the court entered a lengthy order declaring the election null and void. In its order, the trial court succinctly described the property Birmingham sought to annex. None of the parties takes issue with the correctness of this description, nor with any of the factual findings made by the trial judge. The order reads, as follows:

"The territory subject to the election ... consists of two areas, referred to as Port Birmingham and Dolomite, which are connected (by Birmingham's resolution) to each other and to Birmingham by corridors. The first corridor is contiguous to the corporate limits of Birmingham, where these limits end just east of the town of Sylvan Springs. It then runs generally south along the western limits of the city of Pleasant Grove and then east along the southern limits of Pleasant Grove to Dolomite. For the most part, this corridor is a quarter of a mile wide and has a length of about five to six miles. The second corridor is 200 feet wide. It begins at about the midway point of the first corridor and runs generally westward until it reaches the Rock Creek-Alliance Road and then north to the Port Birmingham area. It is approximately ten to eleven miles long. This corridor crosses land, ninety percent of which is owned or leased by Drummond Coal Company and Alabama By-Products Corporation. There are no residents in this corridor. The only residents in the first corridor are those living along Forest Road as the corridor nears the Dolomite area. A preliminary voters count done by Birmingham prior to the election showed over one thousand registered voters in the Dolomite area and fifteen in the Port Birmingham area.

"The area known as Dolomite involves two sections of land located generally between the cities of Hueytown and Pleasant Grove. It is primarily residential. The area known as Port Birmingham involves 13-14 sections of land along the Locust Fork of the Warrior River. It is rural, agricultural, and woodlands with some industrial development, primarily docks used for barge transportation of coal and some petroleum and steel products."

The trial court further held, inter alia:

(1) That Code of 1975, § 11-42-73(b), was unconstitutional in that it provided that residents of an annexation area which is tax exempt cannot vote in city elections, at least as long as the residential area remains tax exempt, citing Harper v. Virginia State Board of Electors, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), in support of its holding. It, however, found this invalid section to be severable from the other valid sections of the Act ( §§ 11-42-40 through -88);

(2) That Birmingham had abused its discretion when it sought to combine two dissimilar areas in the annexation election territory by using a "corridor." The court reasoned:

"What Birmingham has done in including this territory for one annexation is to combine two completely dissimilar areas. One is rural with few residents, but has a potential for industrial development by the fact that it lies along a navigable waterway. The other is almost exclusively a residential area, which will bring into the city an insufficient amount of revenue to cover the cost of services the city will have to provide to it after the tax exemption has expired. The two areas bear no reasonable relationship to each other in land use, population density, topography, or location. They are only related in that Birmingham has joined them together, by corridors for this election."

The court recognized that:

"Birmingham has long desired to annex the Birmingport area for industrial development, which is a legitimate municipal purpose and one which, according to the feasibility study conducted by the Birmingham Regional Planning Commission should provide jobs and increased land values in the area."

The trial court further found that this design "was based upon Birmingham's apprehension that an election of Port Birmingham would fail and its anticipation that one which combined both areas (the Dolomite area having a 66-to-1 voting superiority) would succeed," and that Birmingham's real purpose was to insure the success of the election. It held:

"The practical effect of the design of these boundaries is that Birmingham has allowed the voters in Dolomite not only to determine their destiny, but also the destiny of the voters in Port Birmingham. That the votes cast at Powhatan would be of no import in the final outcome was a foregone conclusion. The Court finds that the combining of these two areas is not a reasonable exercise of the city's authority and that the city abused the discretion granted to it by the legislature in determining the boundaries of this election. City of Tuskegee v. Lacey, (Ala.1985); City of Birmingham v. Mead Corp., 372 So.2d 825 (Ala.1979); Washington v. City of Birmingham, 354 So.2d 1151 (Ala.1978); City of Birmingham v. Community Fire District, 336 So.2d 502 (Ala.1976)."

The Court also found that Birmingham had eliminated some areas because of expressed opposition to annexation, and the court held that this action was constitutionally impermissible. The Court stated:

"After the first resolution of July 9, Birmingham eliminated several areas from the annexation territory. The majority of these were for the purpose of deleting areas that the city found to be unsuitable for industrial development. Others, however, were eliminated because of expressed opposition to annexation. Eliminating areas because they do not suit a legitimate municipal purpose is permissible, but to exclude voters because of the way they vote is constitutionally infirm. Carrington v. Rash, 380 U.S. 89 [85 S.Ct. 775, 13 L.Ed.2d 675] (1965). As municipal corporations are political subdivisions of the state, then their actions are 'state actions' and, therefore, subject to the strict constraints of the equal protection clause of the Fourteenth Amendment.

Avery v. Midland County, 390 U.S. 474 [88 S.Ct. 1114, 20 L.Ed.2d 45] (1968)."

(3) That a certain agreement between Birmingham and two coal mining companies (Drummond Coal Company and Alabama By-Products Corporation) was illegal:

"This agreement was made by Birmingham and the companies sometime after the first annexation resolution and before the second. It provides, inter alia, that 'Any unoccupied portion of the 200 [-foot] corridor extending from the Warrior River to Section 12, Township 18 South, Range 5 West, shall be moved at any time in the judgment of the mining companies it affects mining operations of the mining corporations, provided a petition for a substitute corridor through unoccupied territory is presented to the city for an alternative corridor to maintain contiguity of the annexed territory.' The city did not reserve any authority to approve or deny the substitute corridor. Therefore, before the final resolution calling for the election was passed, Birmingham had already delegated to the coal companies the power to amend the boundaries of the area subject to the annexation. A municipality cannot by any provision or terms in a contract delegate or barter away a governmental power. City of Leeds v. Town of Moody, 319 So.2d 242, 294 Ala. 496 (1975)."

I

In light of the above findings, the circuit court declared the August 13, 1985, election null and void and ordered the probate judge of Jefferson County not to certify the results. These appeals followed.

In its appeal, Birmingham raises four issues, three having to do with the trial court's finding that Birmingham abused its discretion, thereby violating (1) the rule of reasonableness and (2) the constitutional rights of the interested, yet excluded, voters in determining the boundaries of this annexation election. The fourth issue concerns the correctness of the trial court's holding...