Water Works & Sewer Bd. of Prichard v. Bd. of Water & Sewer Comm'rs of Mobile

• Decision Date: 13 September 2013
• Docket Number: 1120630.
• Citation: 141 So.3d 958
• Parties: The WATER WORKS and SEWER BOARD of the CITY of PRICHARD v. The BOARD of WATER and SEWER COMMISSIONERS of the CITY of MOBILE d/b/a Mobile Area Water and Sewer Service System.
• Court: Alabama Supreme Court

141 So.3d 958

The WATER WORKS and SEWER BOARD of the CITY of PRICHARD

v.The BOARD of WATER and SEWER COMMISSIONERS of the CITY of MOBILE d/b/a Mobile Area Water and Sewer Service System.

1120630.

Supreme Court of Alabama.

Sept. 13, 2013.

K. Mark Parnell and Mary H. Thompson of Waldrep, Stewart & Kendrick, LLC, Birmingham; and Jay M. Ross and Randall Scott Hetrick of Adams & Reese, LLP, Mobile, for appellant.

James E. Atchison and Frank G. Taylor of The Atchison Firm, P.C., Mobile, for appellee.

STUART, Justice.

The Water Works and Sewer Board of the City of Prichard (“the Prichard Water Board”) appeals the summary judgment entered against it by the Mobile Circuit Court in its action seeking declaratory and injunctive relief against the Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer Service System (“the Mobile Water Board”) with regard to the Mobile Water Board's planned takeover of the water and sewer systems currently being operated by the Prichard Water Board. We reverse and remand.

I.

On June 9, 2011, during its 2011 Regular Session, the Alabama Legislature (“the legislature”) approved and adopted Act No. 2011–543, which provides as follows:

“Section 1. The following amendment to the Constitution of Alabama of 1901, as amended, is proposed and shall become valid as a part thereof when approved by a majority of the qualified electors voting thereon and in accordance with Sections 284, 285, and 287 of the Constitution of Alabama of 1901, as amended:

“PROPOSED AMENDMENT

“(a) Within 90 days after the ratification of this amendment, the assets and liabilities of the Water Works and Sewer Board of the City of Prichard shall be transferred to the Board of Water and Sewer Commissioners of the City of Mobile, presently known as the Mobile Area Water and Sewer System. The transfer shall include all assets of the Water Works and Sewer Board of the City of Prichard and shall be conditioned upon the assumption or discharge by the Board of Water and Sewer Commissioners of the City of Mobile, presently known as the Mobile Area Water and Sewer System, of all liabilities of the Water Works and Sewer Board of the City of Prichard, including, without limitation, all indebtedness, contracts, and retirement obligations. Any assumption of obligations by the Board of Water and Sewer Commissioners of the City of Mobile, presently known as the Mobile Area Water and Sewer System, shall be evidenced by resolution of that board.

“(b) Upon transfer of its assets and liabilities pursuant to subsection (a), the Water Works and Sewer Board of the City of Prichard shall be dissolved.

“(c) The rates for water and sewer service to existing customers of Mobile Area Water and Sewer System shall not be increased at any time for reasons related to the acquisition or maintenance of the assets, liabilities, or infrastructure of the Water Works and Sewer Board of the City of Prichard.

“(d) Notwithstanding ratification of this amendment in accordance with applicable state law, this amendment shall not be effective and the actions, including, but not limited to, the transfer of assets and liabilities in subsections (a) and (b), shall not take place unless both of the following have occurred:

“(1) A favorable vote by the majority of those persons who reside and voted in precincts any part of which are serviced by the Board of Water and Sewer Commissioners of the City of Mobile (Mobile Area Water and Sewer System).

“(2) A favorable vote by the majority of those persons who reside and voted in precincts any part of which are serviced by the Water and Sewer Board of the City of Prichard. The votes cast on this amendment in precincts any part of which are serviced by the Board of Water and Sewer Commissioners of the City of Mobile (Mobile Area Water and Sewer System) and the votes cast on this amendment in precincts any part of which are serviced by the Water and Sewer Board of the City of Prichard shall be tabulated separately to determine whether a majority of those who voted in each area approved the amendment.

“Section 2. An election upon the proposed amendment shall be held in accordance with Sections 284 and 285 of the Constitution of Alabama of 1901, now appearing as Sections 284 and 285 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, and the election laws of this state.

“Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment:

“ ‘Proposing an amendment to the Constitution of Alabama of 1901, to provide for the transfer of the assets and liabilities of the Water Works and Sewer Board of the City of Prichard to the Board of Water and Sewer Commissioners of the City of Mobile, presently known as the Mobile Area Water and Sewer System.

“ ‘Proposed by Act _______________.’

“This description shall be followed by the following language:

“ ‘Yes ( ) No ( ).’ ”

The proposed amendment was included on the ballot for the general election held November 6, 2012, as amendment 5. A majority of voters statewide, a majority of voters served by the Prichard Water Board, and a majority of voters served by the Mobile Water Board all voted in favor of the proposed amendment, and it was apparently subsequently renumbered Amendment No. 863. On January 28, 2013, the Mobile Water Board adopted a resolution authorizing the assumption of all assets and liabilities belonging to the Prichard Water Board.

On November 29, 2012, the Prichard Water Board sued the Mobile Water Board, seeking a judgment declaring Amendment No. 863 invalid and void, as well as an injunction enjoining the Mobile Water Board from taking any action to take over the Prichard Water Board's water and sewer systems or to dissolve the Prichard Water Board. The Mobile Water Board moved to dismiss the complaint, and the trial court subsequently ordered both parties to submit summary-judgment motions outlining their positions. The parties filed the requested summary-judgment motions on January 25, 2013. In its motion, the Prichard Water Board argued, among other things, that Amendment No. 863 was invalid because the proper procedure for proposing an amendment to the Constitution was not followed; specifically, the Prichard Water Board argued that the legislature had erred by following the procedure set forth in Ala. Const.1901, Art. XVIII, § 284, which outlines the general procedure for proposing an amendment to the Constitution and provides:

“Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading three-fifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading three-fifths of all of the members elected to that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least four successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; if it be held on a day other than that of the general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives in the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments.”

The Prichard Water Board argued that the legislature should instead have followed the procedure set forth in Ala. Const. 1901, Art. XVIII, § 284.01, which relates to constitutional amendments affecting only one county and provides as follows:

“(a) Any proposed constitutional amendment which affects or applies to only one county shall be adopted as a valid part of the constitution by a favorable vote of a majority of the qualified electors of the affected county who vote on the amendment. Any proposed constitutional amendment which affects or applies to only one political subdivision within a county or counties shall be adopted as a valid part of the constitution by a favorable vote of a majority of the qualified electors of both the county and the political subdivision affected by the amendment who vote on...