Washington v. City of Birmingham

• Decision Date: 01 December 1978
• Citation: 364 So.2d 1151
• Parties: Martha M. WASHINGTON et al. v. CITY OF BIRMINGHAM, a Municipal Corporation. 77-344.
• Court: Alabama Supreme Court

Page 1151

364 So.2d 1151

Martha M. WASHINGTON et al. v. CITY OF BIRMINGHAM, a Municipal Corporation.

77-344.

Supreme Court of Alabama.

Dec. 1, 1978.

Harold D. Rice, Jr. of Ackerman & Rice, Birmingham, for appellants.

James L. North, Frank M. Young, III, Philip W. Norwood, Birmingham, for appellee.

BEATTY, Justice.

This is an appeal from a declaratory judgment entered in favor of the City of Birmingham. We affirm.

In the late Fall of 1976 a group of citizens from the "Airport Hills" area of Jefferson County met to discuss annexation of the area to the City of Birmingham. A later meeting was held at the Mt. Zion Baptist Church at which three representatives of Birmingham were present: Dr. Richard Arrington, Chairman of the City Council Committee on Municipal Development; Mr. Larry Lavender, Executive Secretary to the Mayor; and Mr. Edward Coberly of the Community Development Office. Thereafter, on December 21, 1976 the Birmingham City Council adopted Resolution No. 1229-76 (hereinafter Annexation Resolution) which found that an annexation of the area would promote the public good. A copy of the Annexation Resolution was certified and filed with the Jefferson County Probate Judge along with a map of the Airport Hills area. Thereafter the probate judge ordered that an election on the issue be held within the "Airport Hills" area. "Notice" of the annexation election was ordered published in the Birmingham Post-Herald once a week for three consecutive weeks prior to the election.

The results of the January 22, 1977 annexation election reflected that 340 persons were in favor of annexation while 149 persons opposed it. Pursuant to these results the probate judge issued a Final Order of Annexation declaring that the area had become a part of the City of Birmingham.

Plaintiffs, as concerned area citizens, brought the present action for a declaratory judgment to contest the validity of the annexation. Thereafter, an intervention complaint was filed against defendant on behalf of the Community Fire District (hereinafter plaintiff).

Trial occurred September 19-20, 1977, following which the court received briefs from the parties and took the matter under advisement. Thereafter, on November 28, 1977, the trial court entered its final judgment in favor of Birmingham, finding affirmatively "that the Airport Hills annexation was undertaken by the representatives of the City of Birmingham in full compliance with the provisions of (Alabama Code of 1940, Chap. 5) Article II of Title 37 (presently Ala.Code of 1975, Art. 3, § 11-42-40 Et seq.) and all procedural requirements necessary to validate the annexation were complied with." Plaintiffs' motion for new trial was overruled on January 23, 1978 and this appeal ensued.

Plaintiffs first contend that the provisions of Title 37, Chapter 5, Article 2 were not intended by the legislature to be employed in the annexation by a municipality of a densely populated residential area. Instead, they argue, the statute was intended to apply only to the annexation of sparsely populated and/or industrialized areas. They argue this follows from the fact that Ala.Code of 1940, Tit. 37, §§ 154 and 155 provide for tax exempt status for a period of time after annexation of those areas has occurred. We hold otherwise. Sections 154 and 155 must be read in conjunction with § 153 of the statute which provides:

All territory brought within the corporate limits of a city under the provisions of this article, and all property having a situs within such territory, shall be exempt from city taxation or the payment of taxes to the city for . . . not less than ten nor more than fifteen years . . . Except as provided in sections 154 and 155 of this title. (Emphasis added)

The fact that §§ 154 and 155 are in the nature of exceptions to the general language of § 153 is crucial. As Professor Sands stated in 2A Sutherland Statutory Construction, § 47.11 (4th ed. 1973) "(E)xceptions make it clear that statutes in which they appear should apply to all persons or situations not excepted." (citation omitted). This, together with the fact that at no point does Article 2 of Chapter 5 expressly or impliedly deny its coverage to densely populated residential areas, compels this Court to hold that any territory may be subject to an annexation election if there is compliance with the provisions of that statute.

Next the plaintiffs contend that the City conducted the annexation in a false or misleading manner. The gist of this allegation is that prior to the annexation the defendant "disseminated false information regarding the effects of the annexation" at the Mt. Zion Baptist Church meeting of December 13, 1976. This issue of fact was argued at trial and was discussed at length in the trial court's decree:

This meeting was called and conducted not by the City of Birmingham, but by citizens of Airport Hills who were interested in annexation and who were not connected, to any extent, with the government of the City of Birmingham.

Plaintiffs rely heavily on the conduct of the December 13th meeting, asserting that the statement was there made that school children in Airport Hills would continue to remain in the Jefferson County school system for five years following annexation a statement which has proved to be incorrect. Having weighed and evaluated the testimony concerning the December 13th meeting, the Court finds that it is possible that some erroneous facts concerning school attendance following annexation may have been circulated at the meeting. These statements, however, were not connected by the plaintiffs to the City of Birmingham. (emphasis added)

Plaintiffs also alleged that certain incorrect printed factual information was distributed at the December 13th meeting. However, there is no evidence that any information was passed out at the December 13th meeting or at any time prior to the annexation by representatives of the City of Birmingham. Furthermore, with regard to plaintiffs' offer of Exhibit 2 which was a question and answer sheet containing information with regard to the consequences of annexation under the tax exemption statute and which contained an incorrect statement with regard to the school issue, the Court finds that this information sheet was obtained After the annexation election of January 22, 1977, and long after the December 13th meeting. There is absolutely no testimony to any extent linking this exhibit with any activity prior to the annexation election or with any representatives of the City of Birmingham who participated in this annexation effort. (emphasis added)

We find nothing in the record of this case which...