City of Ensley v. Simpson

• Decision Date: 16 December 1909
• Citation: 52 So. 61,166 Ala. 366
• Parties: CITY OF ENSLEY ET AL. v. SIMPSON.
• Court: Alabama Supreme Court

52 So. 61

166 Ala. 366

CITY OF ENSLEY ET AL. v. SIMPSON.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Chancery Court, Jefferson County; A. H. Benners, Judge.

Suit by J. B. Simpson against the City of Ensley and others. From a decree for complainant, defendants appeal. Reversed and rendered.

Fred G Moore, Gunter & Gunter, Cabaniss & Bowie, Romaine Boyd, and Jere C. King, for appellant.

F. E Blackburn and John C. Forney, for appellee.

SAYRE J.

This case questions the constitutional validity of the act approved August 20, 1909 (Loc. Laws Sp. Sess. 1909, p. 392) entitled "An act to alter or rearrange the boundary lines of the city of Birmingham, Alabama, so as to include within the corporate limits of said city the territory now included within the cities or towns of Avondale, Woodlawn, East Lake, North Birmingham, North Haven, Graymont, Elyton, West End, Pratt City, Wylam, and Ensley, and other territory, and so as to exclude from the city of Birmingham certain territory now included within the corporate limits of said city of Birmingham." The chancellor decreed the invalidity of the act, and this appeal brings that decree under review.

While every possible intendment must be indulged in favor of the constitutionality of the enactment, plain mandates of the Constitution must be recognized and enforced. For one thing, it is urged that the act in question is violative of that part of section 105 of the Constitution which provides that "no special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law." The city of Avondale and the territory embraced within the corporate limits of that city had been annexed to and merged into the city of Birmingham in accordance with the general law prior to the passage of the act. The territory of that corporation, as it had been, was contiguous to the city of Birmingham. The city of Ensley and each of the municipalities named in the act and included within the limits of the enlarged city of Birmingham, as well as the last-named city, were at the date of the passage and approval of the act municipalities existing under the general law of the state. Some of them covered territory contiguous to the city of Birmingham; others did not. These municipalities and much intervening unincorporated territory were merged into the enlarged city of Birmingham. Sections 20 to 22 of the act approved August 13, 1907 (Acts 1907, p. 790), commonly known as the "Municipal Code law," provide for the consolidation of two or more municipalities lying contiguous to each other. Section 23 of the Municipal Code law provides a means for the extension of corporate limits to include new territory. The territory so included must be contiguous to the boundary of the city at some point, but may not embrace any territory within the corporate limits of another municipality. An act approved August 13, 1907 (Acts 1907, p. 604), contained provisions similar to those of section 23 of the Municipal Code law. An act of August 15, 1907 (Acts 1907, p. 598), also provided for the annexation and merger of any city or town into a contiguous city or town. Section 104 of the Constitution denies to the Legislature the right to pass any special, private, or local law amending, confirming, or extending the charter of any private or municipal corporation; but in subdivision 18 of that section it was provided that this should not prohibit the Legislature from altering or rearranging the boundaries of a city, town, or village. It is clear enough that nothing contained in section 104 denies to the Legislature the power to pass the act in question. Nor can section 105 be so interpreted. Its language has been quoted. If it should be conceded, contrary to our present impression, that the power of legislation by special or local laws in respect to the alteration or rearrangement of municipal boundaries is excepted and reserved by the proviso of subsection 18 of section 104 only in the event there is no general law on the subject, that concession would not determine this case, for here the Legislature has embodied in one comprehensive scheme the inclusion, not only of contiguous territory and municipalities, but of municipalities not contiguous at the time of the passage of the act. True, under the general law, the same result might have been obtained by a tedious and embarrassing process of repeated additions to the territory of the absorbing city, each in turn, and so ultimately the scheme as an entirety, being dependent upon the vote of the electors resident in the municipality or unincorporated territory annexed from time to time. But the Legislature had the right to weigh the advantages of the scheme as a whole and enact law accordingly to accomplish the desired end at one stroke. Under no general law could the same considerations be submitted to the same electorate or the same result reached in the same way.

We do not deem it necessary to enter upon a detailed statement of distinctions which may be taken between the case at bar and the cases of Town of McGregor v. Baylies, 19 Iowa, 43, and In re Extension of Boundaries of City of Denver, 18 Colo. 288, 32 P. 615. In Colorado judges of the highest court are required to give opinions on request of the executive or the Legislature. But the judicial quality of such opinions has been questioned. In Rhode Island there is a similar requirement. Said Ames, C.J., in Taylor v. Place, 4 R. I. 324-362: "The advice, or opinion, given by the judges of this court, when requested, to the Governor or to either house of the General Assembly, under the third section of the tenth article of the Constitution, is not a decision of this court; and given, as it must be, without the aid which the court derives in adversary cases from able and experienced counsel, though it may afford much light from the reasonings or research displayed in it, can have no weight as a precedent." Neither of the cited cases involved constitutional provisions similar to those of this state to which reference has been made. The Constitution of Iowa contained a provision that, "in all cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state." It also prohibited the incorporation of cities and towns by special or local laws (held to prohibit the passing of any act to amend a municipal charter) without exception in favor of acts altering or rearranging boundaries. So much of the Constitution of Iowa as we have quoted is in effect the same as section 24 of article 4 of the Alabama Constitution of 1875 under which it was frequently held in this state that the courts would not review the legislative judgment that a matter of legislation could not be provided for by general law. The departure worked by section 105 of the Constitution of 1901 has significance. The inhibition now is against special, private, or local laws in any case which is provided for by a general law, of which the courts shall judge. Formerly the inquiry was whether the Legislature could provide for a particular case by general law. Now the question is whether it has so provided. We need not be understood as impairing the authority of City Council of Montgomery v. Reese, 149 Ala. 188, 43 So. 116. The court there said that it could not perceive that the framers of the Constitution intended the prohibition to operate only against special, local, or private laws which are in ipsis verbis of the general law. The effect of the ruling was that the enactment of a general law authorizing municipal corporations to issue bonds to run not exceeding 30 years, while permitted to stand upon the statute books, operated as a constitutional inhibition against any act permitting any particular municipality to issue bonds to run exceeding 30 years. Appellee's argument applies that decision to the case in hand as follows: The general statute permitting the alteration or rearrangement of municipal boundaries by the acquisition of contiguous territory only, while it stands, must operate as a constitutional inhibition against any act consolidating noncontiguous municipalities, if at the same time, and in order to preserve the unity and contiguity of the consolidated municipality, as perhaps is necessary to the validity of the act (City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 27 L. R. A. 751), intervening territory, contiguous to both of the constituent municipalities, is included in the act of consolidation. The subject of legislation in the general law is the alteration or rearrangement of boundaries as affecting contiguous municipalities and unincorporated territory. The subject-matter dealt with in the special act is the alteration or rearrangement of boundaries as affecting noncontiguous municipalities as well. Considered in their totality the two acts are not identical as to subject-matter. We therefore conclude that the special act is not obnoxious to section 105 of the Constitution.

Another insistence is that the act in question is in contravention of subdivisions 5 and 18 of section 104 of the Constitution, for that one necessary effect of the act, if valid, is to repeal the charters of those incorporated cities and towns merged by the act into the greater city of Birmingham. This court has settled the question, in accordance with obvious reason, that two municipalities cannot exist over the same territory at the same time. Butler v. Walker, 98 Ala. 358, 13 So 261, 39 Am. St. Rep. 61. Subdivision 5 prohibits the Legislature to pass any special, private, or local law "incorporating a city, town or village." It is urged on the authority of the case In re Extension of Boundaries of Denver...