Dennis v. Pendley

• Decision Date: 18 September 1987
• Citation: 518 So.2d 688
• Parties: Herbert DENNIS, et al. v. Glenn M. PENDLEY and J.B. Cunningham. 86-155.
• Court: Alabama Supreme Court

Page 688

518 So.2d 688

Herbert DENNIS, et al. v. Glenn M. PENDLEY and J.B. Cunningham.

86-155.

Supreme Court of Alabama.

Sept. 18, 1987.

Sibley Reynolds and Bill Speaks, Clanton, for appellants.

Robert L. Bowers, Sr., of Bowers & Bowers, Clanton, for appellees.

PER CURIAM.

Appellants Herbert Dennis, et al. (hereinafter "Dennis"), appeal a mandatory injunction entered following a determination that the City of Clanton failed to meet the requirements set out in Ala.Code (1975), § 28-2A-1, in order to call and hold a municipal option election to change its classification from "wet" to "dry." We reverse.

On December 10, 1985, the City of Clanton held an election and thereby annexed certain territory. No notice of approval or ruling under the 1965 Voting Rights Act, 42 U.S.C.A. § 1973a, was obtained prior to the annexation, nor was it forthcoming before the petition for the municipal option election was filed. The United States Justice Department, however, approved the annexation prior to the actual election; in the election, voters of the City of Clanton, including the annexed portion of the City, indicated that they approved changing from a dry to a wet municipality.

In September 1986, the City contracted with the United States Department of Commerce, Bureau of the Census, to conduct a special census. The purpose of this census was to determine Clanton's population at that time, including the annexed portion. The special census showed a population of 7,403 people living within the City limits.

On October 2, 1986, a petition was filed with the clerk of the City of Clanton calling for a municipal option election to determine the sentiment of the people as to whether alcoholic beverages should be legally sold, consumed, and distributed within the municipality.

On October 16, 1986, appellees Pendley and Cunningham (hereinafter "Pendley") filed a complaint challenging the call for a municipal option election and asking for an injunction to prevent the election until the statutory requirements of § 28-2A-1, Alabama Code (1975), had been met.

Dennis filed a motion to intervene on behalf of the City of Clanton on October 24, 1986, and the motion was granted. Dennis and the City then filed motions to dismiss, which were denied after a hearing. Judge Macon, the trial judge, entered an order enjoining and restraining the City of Clanton from calling a municipal option election on November 4, 1986 (the date of the general election), or from calling a municipal option election until the requirements of § 28-2A-1 were met.

Dennis filed a timely notice of appeal and filed a motion to stay enforcement of the mandatory injunction pending appeal to this Court. We granted the motion, permitting the election with the understanding that Pendley could appeal, or defend an appeal, in the instant action after the election.

On November 4, 1986, a majority of the voters in the City of Clanton passed the municipal option. By so doing, they showed that their preference was that alcoholic beverages be permitted to be sold, distributed, or consumed within the Clanton city limits.

We opine that appellee Pendley's argument--that because of failure to comply with the 1965 Voting Rights Act, the December 10, 1985, annexation should not be used in calculating Clanton's population as of the election of November 4, 1986,--is without merit.

Section 5 of the Voting Rights Act of 1965 requires that states covered by the Act obtain prior clearance before proposed changes can be put into effect. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702 36 L.Ed.2d 472 (1973). The required approval was received prior to the municipal option election; therefore, the annexation was legal at the time of the election. NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 105 S.Ct. 1128, 84 L.Ed.2d 124 (1985).

We further find that the City of Clanton has complied with the statutory requirements of § 28-2A-1. The City has satisfactorily shown a population of 7,000 or more, and a petition signed by 25 percent of the number of voters voting in the last general election was properly filed with the city clerk 30 days or more before the election.

Appellee Pendley argues that, based on the authority of Alabama Citizens Action Program v. Kennamer, 479 So.2d 1237 (Ala.1985), only a preceding decennial census may be used to determine population for purposes of § 28-2A-1. We disagree. Kennamer's statement that "[i]n the absence of a designation to the contrary the population of cities for the purposes of Act No. 84-408 is determined by the last preceding federal decennial census," 497 So.2d at 1242, must be read in the context of the facts of that particular case. There, the question was which of two decennial censuses to use, not whether, if available, something other than a decennial census could be reasonably utilized to obtain a valid population count. We find that the interim census conducted by the United States Department of Commerce, Bureau of the Census, which determined Clanton's population to be 7,403 as of September 27, 1986, does serve just such a function.

Section 28-2A-1 makes no provision for how population is to be determined. It is the court's function to make clear the intent of the legislature when some degree of ambiguity...