Opinion of the Justices, 274

• Decision Date: 04 March 1981
• Docket Number: No. 274,274
• Citation: 394 So.2d 957
• Parties: OPINION OF the JUSTICES.
• Court: Alabama Supreme Court

Page 957

394 So.2d 957

OPINION OF the JUSTICES.

No. 274.

Supreme Court of Alabama.

March 4, 1981.

To the Honorable Speaker and

Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

The Chief Justice has received a letter from the Honorable John W. Pemberton, Clerk, House of Representatives, dated February 19, 1981, forwarding a copy of House Resolution No. 76 in which the House has requested our opinion as to the constitutionality of House Bill 465, 1980 Regular Session. The resolution reads as follows:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending H.B. 465, amending Section 11-41-1 of the Code of Alabama, 1975, pertaining to the incorporation of a municipality, copies of which are attached to this resolution and made a part hereof by reference. In pertinent part, Section 11-41-1 reads:

"...; provided that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if the territory proposed to be incorporated has a total population of less than 1,000 or if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town." (Emphasis added)

1. Does the language of Section 11-41-1, Code of Alabama 1975, set out herein, fall within the United States constitutional prohibitions of the Fourteenth Amendment for due process and equal protection of the laws and therefore operate arbitrarily and discriminatorily against certain people of the state because they live "within three miles of the corporate limits of any existing city or town" only when the boundaries lie within a county having 600,000 or more inhabitants?

2. Does the language of the said section, set out hereinabove, contravene the provisions of Article I, Section 1 of the Constitution of Alabama, 1901, in that this general law has unequal public application which operates to arbitrarily violate the constitutional rights of citizens within the same county?

3. Does the language of the said section contravene the provisions of Article I, Section 35 of the Constitution of Alabama, 1901, in that the provisions operate arbitrarily or capriciously against certain citizens in a certain classification without a compelling state interest?

4. Does the language of Section 11-41-1 of the Code of Alabama, 1975, exclude a certain group of persons within the same territory so as to deny them due process and equal protection of the laws guaranteed under the federal constitution?

RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send sufficient copies of the pending bill, H.B. 465, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.

The copy of House Bill No. 465, forwarded with the resolution reads:

A BILL

TO BE ENTITLED

AN ACT

To further amend Section 11-41-1, Code of Alabama 1975, relating to the incorporation of a municipality, so as to change the requirements for population.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 11-41-1, Code of Alabama 1975, is hereby amended to read as follows:

" § 11-41-1.

"When the inhabitants of an unincorporated community, which has a population of not less than 75 100, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community, desire to become organized as a municipal corporation, they may apply to the probate judge of the county in which such territory is situated, or the greater portion thereof if it is situated in two or more counties, for an order of incorporation, by a petition in writing signed by not less than 15 percent of the qualified electors residing within the limits of the proposed municipality; provided, that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this...