State v. City of Birmingham

• Citation: 48 So. 843,160 Ala. 196
• Parties: STATE EX REL. SIGSBEE ET AL. v. CITY OF BIRMINGHAM ET AL.
• Decision Date: 17 December 1908
• Court: Alabama Supreme Court

48 So. 843

160 Ala. 196

STATE EX REL. SIGSBEE ET AL. v. CITY OF BIRMINGHAM ET AL.

Supreme Court of Alabama

December 17, 1908

On Rehearing, February 5, 1909.

On Rehearing.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Quo warranto by the State, on the relation of J. N. Sigsbee and others, against the City of Birmingham and others. From a judgment of dismissal on sustaining demurrers to the petition, relators appeal. Reversed and remanded.

John C Forney and Pinkney Scott, for appellants.

R. H Thatch, for appellees.

SIMPSON J.

This is a quo warranto proceeding, instituted by the appellants to test the validity of certain elections by which certain territory, described in the petition, was annexed, or intended to be annexed, to the city of Birmingham. On the 8th day of August, 1907, the act of the Legislature was approved being "An act to alter or rearrange the boundary lines of the city of Birmingham, Alabama." Said act provided for altering and rearranging the boundary lines of said city, by adding thereto the territory described in the petition, but by section 3 thereof provided for an election to be held to determine whether said act should go into effect, and that, if a majority of the qualified voters participating in said election should vote in favor of "Greater Birmingham," "said act shall become in full force and effect on the 1st day of October, 1909," but, if a majority be against the proposition, "then this act shall be null and void." Loc. Acts 1907, p. 902. Under and by virtue of said act an election was held on January 6, 1908, and the returns were duly made, though the record does not show what the result of said election was. The city council of said city then passed a resolution (purporting to be under section 1071, Code of 1907) requesting the probate judge to call an election for the purpose of annexing a part of the same territory to the said city, and the election was accordingly held June 30, 1908, resulting in a vote in favor of said annexation. Under the act of August 8, 1907, as will be seen, if that election of January 6, 1908, resulted favorably, the act was not to go into effect until October 1, 1909, so that, whether that election was lost or carried, the result will be the same as to this case. Demurrers were sustained, and the circuit court dismissed the petition for a writ of quo warranto, and the relators appealed.

The appellees insist that said action of the court was without error, because, first, quo warranto is not the proper proceeding, as it appears that the exercise of the franchise was only threatened (as was the case in the cause of State ex rel. Johnson v. Mayor and City Council of Ensley, 142 Ala. 665, 38 So. 802); but the petition, as amended, alleges that said city has annexed the territory described, has designated it as "ward 11," "has sworn in councilmen from said ward, and assumed to exercise sanitary and police authority over said territory, and in every respect claims the said part of said territory a part of the municipal city of the city of Birmingham, and is exercising municipal functions and privileges, through its mayor, police officers, sanitary officers, and others intrusted with such duties for said city." This shows actual exercise, and not a mere threat to exercise, the franchise of governing said territory. Quo warranto is the proper remedy in this case. Section 5453, Code of 1907; City of Uniontown v. State ex rel. Glass, 145 Ala. 471, 39 So. 814.

It is next insisted that section 3 of the act of August 8, 1907, is void, as being in contravention of paragraph 29 of section 104 of the Constitution of 1901. Said section prohibits local legislation in regard to a number of subjects; said paragraph 29 being as follows: "Providing for the conduct of elections or designating places of voting, or changing the boundaries of wards, precincts or districts, except in the event of the organization of new counties, or the changing of the lines of old counties." This paragraph evidently refers to making changes in regard to elections, and changing the boundaries of wards already in the municipality, and does not touch the subject of changing the boundaries of the municipality itself by adding new territory to it. This is made very clear by paragraph 18 of the same section, which, after prohibitng the "amending, confirming or extending the charter of any private or municipal corporation, or remitting the forfeiture thereof," adds these words: "Provided, this shall not prohibit the Legislature from altering or rearranging the boundaries of the city, town or village." Section 3 of the act of August 8, 1907, is not violative of section 104 of the Constitution; and as said act provides for only one election, and the election of January 6, 1908, having been held thereunder, and being valid, no other election could be called thereunder.

Article 3 of chapter 32 of the Code of 1907 (sections 1070-1074) provides for the extension of the limits of any town or city, and article 4 of the same chapter provides for extending the corporate limits of "any city having 25,000 inhabitants or more," in which class the city of Birmingham is (sections 1075-1125, Code of 1907). Section 1073 (being in said third article) provides that "after an election has been held in any territory, under the provisions of this article, or any other law, no other or subsequent election shall be ordered or held for the same territory or any...