In City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975), the court rejected the contention that the city of Leeds had, by discontinuing police and fire protection in its police jurisdiction, "waived and relinquished its police jurisdiction over the area."Summary of this case from Holt Civic Club v. Tuscaloosa
September 18, 1975.
Appeal from the Circuit Court, St. Clair County, L. P. Waid, J.
Charles L. Kerr, Leeds, for appellants.
The legislative powers of the state of Alabama are vested solely in the legislature, consisting of a senate and a house of representatives, and while the power to legislate necessarily carries with it the power to contract, neither such legislative nor contractual powers may be delegated except as authorized by the constitution, not even to all of the citizens of this state. Code of Alabama, Title I, Section 44; In re Opinion of Justices, 287 Ala. 321, 251 So.2d 739 (1971); Powers v. U.S. Fidelity Guaranty Co., 236 Ala. 389, 182 So. 758 (1938). The police jurisdiction in cities having six thousand or more inhabitants shall cover all adjoining territory within three miles of the corporate limits, and in cities having less than six thousand inhabitants, and in towns, such police jurisdiction shall extend also to the adjoining territory within a mile and a half of the corporate limits of such city or town. Ordinances of a city or town enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof, shall have force and effect in the limits of the city or town and in the police jurisdiction thereof, and on any property or rights of way belonging to the city or town. Code of Alabama, Title 37, Section 9; City of Birmingham v. Lake, 243 Ala. 367, 10 So.2d 24 (1942); City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936); Coupsey v. City of Andalusia, 24 Ala. App. 247, 134 So. 671 (1931). Two lawfully and fully organized public or municipal corporations cannot have jurisdiction and control at one time of the same population and territory, and exercise like or similar powers in the same boundaries. Code of Alabama, Title 37, Section 9; Code of Alabama, Title 37, Section 733; City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936); Town of Graysville v. Johnson, 33 Ala. App. 479, 34 So.2d 708 (1948). No unit of local government can by any provisions or terms in any contract or agreement either contract, delegate or barter away a governmental power unless so authorized by legislature. City of B'ham. v. Holt, 239 Ala. 248, 194 So. 538 (1940); City of Dothan v. Ala. Power Co., 229 Ala. 146, 155 So. 697 (1934); Mayor, etc., of B'ham. v. B'ham. Water Works Co., 193 Ala. 531, 36 So. 614 (1904). No person residing or owning lands in any unincorporated area, but not within the specific lands involved in any particular annexation proceedings, has such an interest as is required by law to maintain an action questioning the validity of any such annexation proceedings; And, no unit of local government, otherwise a stranger to such proceedings, can acquire such an interest as is required to maintain such an action under the guise that it is thereby protecting the interests of the public in general in such incorporated area. Purdy, et al. v. City of Vestavia Hills, 286 Ala. 714, 246 So.2d 440 (1971); Boger v. Jones Cotton Co., 234 Ala. 103, 173 So. 495 (1937). Though territory within the police jurisdiction of a municipality is separated from the corporate limits of such municipality by a natural or man-made barrier, such as a county line, river, highway or other roadway, it is "contiguous" or "adjoining" such corporate limits within statute authorizing such municipality to extend its corporate boundaries pursuant to a proper petition from the owners of lands lying contiguous to its corporate boundaries. Code of Alabama, Title 37, Section 137(1); White v. City of Decatur, 225 Ala. 646, 144 So. 873 (1932).
Church Trussell, Pell City, for appellee.
A municipality may waive its claim to police jurisdiction over an area in favor of another municipality if the second municipality provides municipal service to the area. State ex rel. Morgan v. City of Gadsden, 216 Ala. 243, 113 So. 6 (1927). A municipality which claims police jurisdiction over an area has a sufficient legal interest to challenge proceedings by another municipality to annex the territory. 67 C.J.S. Parties § 6B; Purdy v. City of Vestavia Hills, 286 Ala. 714, 246 So.2d 440 (1971). A tract of land is not contiguous to the corporate limits of a municipality for the purposes of annexation unless the land at least touches the municipal boundary. Tallapoosa Lumber Co. v. Copeland, 223 Ala. 41, 134 So. 658 (1931); State v. Masters, 207 Ala. 324, 93 So. 14 (1922). A municipality cannot annex territory pursuant to Title 37, Sec. 137(1), Code of Alabama, 1940, if the territory to be annexed lies within the police jurisdiction of any other municipality. Title 37, Sec. 137(1), Code of Alabama, 1940. Two or more municipalities who have corporate boundaries in close proximity to each other can have overlapping police jurisdiction as that term is used in Title 37, Sec. 137(1), Code of Alabama, 1940. Hammonds v. City of Tuscaloosa, 21 Ala. App. 286, 107 So. 786 (1926); Title 37, Sec. 9, Code of Alabama, 1940. A finding by the city council that no part of the land sought to be annexed lies within the police jurisdiction of any other municipality is a jurisdictional requirement in order to annex property pursuant to Title 37, Sec. 137(1), Code of Alabama, 1940, and if it is shown that this finding was erroneous, then the entire proceedings are void. State v. Town of Boyles, 207 Ala. 59, 92 So. 250 (1921); Town of Oxford v. State, 257 Ala. 349, 58 So.2d 604 (1952).
Appellee, Town of Moody, filed its complaint in the Circuit Court of St. Clair County seeking injunctive relief against an ordinance enacted by the City Council of the nearby City of Leeds. The ordinance in question, Ordinance 395, purported to annex certain real property under the authority of Tit. 37, § 137(1)-(3), Code of Alabama 1940, Recompiled 1958, which provides in pertinent part:
"Whenever all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality with a population of two thousand (2000) or more, located in the state of Alabama, and such property does not lie within the corporate limits or police jurisdiction of any other municipality, shall sign and file a written petition with the city clerk of such municipality requesting that such property or territory be annexed to the said municipality, and the governing body of such municipality adopts an ordinance assenting to the annexation of said property to such municipality, the corporate limits of said municipality shall be extended and rearranged so as to embrace and include such property and such property or territory shall become a part of the corporate area of such municipality upon the date of publication of said ordinance. . . ." (Emphasis ours).
Contrary to the findings of the Leeds City Council made prior to the enactment of Ordinance 396, appellee's complaint charged that all of the land sought to be annexed by such ordinance did in fact lie within the police jurisdiction of the Town of Moody and, furthermore, that it was not contiguous to the corporate limits of Leeds. The requirements of Tit. 37, § 137(1) not having been met, the complaint prayed that Ordinance 395 be declared null and void. Additionally, the complaint asked that due to the alleged irreparable damage which would be suffered by the Town of Moody by the loss of territory over which it had therefore exercised its police jurisdiction, a preliminary injunction issue against the appellant from taking any further action to incorporate the disputed land and, after a hearing on the merits, appellant be permanently so enjoined.
In its answer, appellant admitted that a small triangular portion of the land sought to be annexed by Ordinance 395 did lie closer to the southernmost corporate limits of the Town of Moody than the northernmost limits of the City of Leeds. The answer also interposed a motion to dismiss all aspects of appellee's complaint which did not arise out of the question of whether or not Ordinance 395 illegally encroached upon the police jurisdiction of the Town of Moody. More specifically, since the Town of Moody had standing to protect the legal interests of only those persons who resided in the area alleged to be within its police jurisdiction, it conversely had no standing to raise the question of whether or not the portion of land annexed by Ordinance 395, but outside its police jurisdiction, was contiguous to the corporate limits of the City of Leeds.
According to the latest federal decennial census (1970), the City of Leeds has a population of 6,991; its corporate limits are situated in both Jefferson and St. Clair Counties. The 1970 population of the Town of Moody was 504; its corporate limits are situated entirely in St. Clair County. The two cities are roughly one and one-half miles apart. The testimony adduced before the trial court showed that the City of Leeds since 1950 continuously had had in force ordinances levying taxes in the form of business licenses within its police jurisdiction.
Sometime prior to April, 1973, the then representative of St. Clair County, Roy H. Coshatt, advertised in the local newspapers of St. Clair County proposed bills which if enacted would have removed the corporate limits of the City of Leeds from St. Clair County. Appellee, over objection, was allowed to introduce evidence that the Mayor of the City of Leeds, James H. Wright, and Representative Coshatt entered into discussions to see if some compromise could be reached which would be satisfactory to both municipalities and the residents living in the area between those municipalities. In essence, the resulting agreement reached by the parties was that Representative Coshatt would not introduce the proposed bills in exchange for a promise on the part of the City of Leeds that (1) it would relinquish its police jurisdiction over any territory in St. Clair County which lay outside its existing corporate limits, and (2) it would not accept in the future any petitions for annexation of land in St. Clair County. Representative Coshatt testified that it was also agreed that fire and police protection for those inhabitants of the area theretofore serviced by the City of Leeds would become the responsibility of St. Clair County.
In several regularly scheduled meetings of the Leeds City Council, that body officially adopted the foregoing agreement and resolved to reduce same in two letters which would be sent "in good faith" to Representative Coshatt and the Chairman of the County Commission of St. Clair County, James H. McClendon. These letters, dated April 16, 1973, and July 2, 1973 were also introduced over the objection of appellant.
The Mayor of Moody, M. A. Lee, testified that pursuant to the agreement, the Town of Moody commenced rendering fire and police protection in the area, although other testimony indicated that the City of Leeds continued to assist and augment Moody's limited resources. The testimony of witnesses for both parties relating to the respective quality of police and fire protection, both before and after the alleged relinquishment by the City of Leeds of its police jurisdiction, was in conflict and non-conclusory.
At the time of trial the Town of Moody had a police force of two full-time personnel and six part-time personnel; its fire department consisted of fifteen volunteers. This same force serviced the nearby community of White Chapel and was partially funded by a LEPA grant.
On January 21, 1974, Ordinance 395 was duly enacted by the City of Leeds; four days later the Town of Moody filed its action, and the circuit court thereafter granted a preliminary injunction pending a final hearing on the merits. From the foregoing testimony and other evidentiary material, the trial court found that (1) Ordinance 395 was in "flagrant violation" of the agreement entered into by Mayor Wright and Representative Coshatt, (2) the Town of Moody, although not a landowner of the area in question, did have an interest therein and accordingly standing to challenge Ordinance 395, (3) the land was not "contiguous" to the City of Leeds as a matter of law, and (4) the agreement was a valid contract or, in the alternative, even if it was legally questionable, valuable consideration (Representative Coshatt's executed promise not to introduce the proposed bills) had moved to the City of Leeds thereby rendering it equitably estopped from questioning the validity of the contractual agreement.
Based on these findings, the trial court issued a permanent injunction against the City of Leeds from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395.
There are three methods by which a municipality may annex territory in Alabama: (1) by an act of the legislature; (2) by an election in accordance with Tit. 37, § 135, Code, supra; and (3) by complying with Tit. 37, § 137, (1)-(3), Code, supra. This latter method was the one which the City of Leeds attempted to use in the instant case.
The northern corporate boundary of the City of Leeds and the southern corporate boundary of the Town of Moody lie less than one and one-half miles apart. Thus, the territory between the two municipalities would be within the police jurisdiction of both municipalities according to Tit. 37, § 9, Code, supra.
This court considered the meaning of the term, "police jurisdiction," in the recent cases of State ex rel. City of Birmingham v. City of Tarrant City and State ex rel. City of Birmingham v. City of Fultondale, which were combined for trial and appeal, 294 Ala. 304, 315 So.2d 583 (1975):
"It is apparent that the purpose of Title 37, Section 137(l) was to provide municipalities with a simpler and quicker method of annexing territory than the conventional methods which require election or legislative enactment. . . ." 315 So.2d at 587.
Applying a strict interpretation to the "clear and unambiguous" requirements of Tit. 37, § 137(1), that "such property [must] not lie within the corporate limits or police jurisdiction of any other municipality," the court concluded:
". . . that the legislature intended 'police jurisdiction' as used in the proviso to be defined by the objective standard of a three-mile (or mile and a half) limit given in Title 37, Section 9, and that the legislature intended to prohibit this method of annexation when the proposed lands to be annexed are located within the police jurisdiction of another city. . . ." 315 So.2d at 587.
In arguing that the area sought to be annexed by the City of Leeds was not within the "police jurisdiction" of the Town of Moody, appellant relies upon City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), and Town of Graysville v. Johnson, 33 Ala. App. 479, 34 So.2d 708 (1948), cert. denied, 250 Ala. 507, 35 So.2d 339 (1948). In both of these cases the term "police jurisdiction" was within the context of the power to tax, a problem totally unrelated to the annexation dispute sub judice. Likewise, Tit. 37, § 733, relied upon by appellant, which allows a municipality to tax business within its police jurisdiction, applies only to taxation questions.
The trial court erred in permanently enjoining the City of Leeds and all other respondents from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395. While it was appropriate to enjoin the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of Tit. 37, § 137(1)-(3), they should not be prevented from exercising any other statutory procedure for accomplishing the same result. It is only Tit. 37, § 137(1)-(3) which was used as a vehicle for annexation in the instant case, and it is only Tit. 37, § 137(1)-(3) which contains the phrase, "and such property does not lie within the corporate limits or police jurisdiction of any other municipality . . . ."
The agreement between appellants and Roy H. Coshatt should not have been admitted into evidence. The agreement purported to bind the City of Leeds (1) to relinquish its "police jurisdiction" over any territory in St. Clair County which lay outside its existing corporate limits; and (2) to refrain from accepting any petitions in the future for annexation of land in St. Clair County. Municipalities are mere instrumentalities of the state possessing only such powers as may have been delegated to them by the legislature. State ex rel. Britton v. Harris, 259 Ala. 368, 371, 67 So.2d 26, 28 (1953). The powers which the City of Leeds was purporting to give up are legislative powers delegated to the municipality by the legislature. Neither the mayor nor the council had authority to relinquish these legislative powers. Since a municipality cannot by any provision or terms in a contract delegate or barter away a governmental power, the agreement which purported to do so in the present case was null and void. Mayor v. Birmingham Water Works Co., 139 Ala. 531, 36 So. 614 (1904).
It was error for the trial court to decree that the City of Leeds and all of the other respondents were estopped from questioning the legality of their agreement with Representative Coshatt. The City of Leeds had no authority to enter into the agreement, and a municipality cannot be estopped by doing that which it had no authority or right to do. Board of School Commissioners of Mobile County v. Hudgens, 274 Ala. 647, 651, 151 So.2d 247, 252 (1963).
Appellee alleges that appellant City of Leeds discontinued exercising police and fire protection in the area in question and thereby waived and relinquished its police jurisdiction over the area. In support of this contention, appellee cites State ex rel. Martin v. City of Gadsden, 216 Ala. 243, 113 So. 6 (1927). In the Martin case this court was concerned with the corporate boundaries of two municipalities, a matter which the legislature has allowed the local citizenry to determine. Tit. 37, § 10, Code, supra. The present case on the other hand deals with "police jurisdiction," a matter separately determined by the legislature and delegated to the municipalities alone. Tit. 37, § 9, Code, supra. Since a municipality cannot barter away a governmental power specifically delegated to it by the legislature, Mayor v. Birmingham Water Works Co., supra, it follows that it also cannot waive or relinquish such power.
The land which was sought to be annexed by the City of Leeds was separated from its corporate limits by an interstate highway. Tit. 37, § 137(1), the statute which was utilized in the attempted annexation, provides only for annexation of "contiguous" land. Appellee correctly cites two Alabama cases in which the court defined "contiguous" as requiring a "touching." While a "touching" is normally a requirement of the word, "contiguous," such is not the case where the physical separation occurs merely because of the interposition of a public highway. Cabler v. Alexander, 111 Or. 257, 271, 224 P. 1076, 1080 (1924).
". . . the territory immediately north of the corporate limits of the City of Decatur . . . lies next to, connects with, and is contiguous to said north corporate line, and this is so, notwithstanding the river and the county line intervene between the corporate line and petitioner's place of business. . .." 225 Ala. at 648, 144 So. at 874 (Emphasis ours).
Thus, it would appear to be conclusive that a public highway is not the type of physical separation which would prevent two pieces of land from being "contiguous" within the meaning of the statute.
The judgment is affirmed insofar as it enjoins the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of Tit. 37, § 137(1)-(3), over any of the land described in Ordinance 395, which is within the police jurisdiction of the Town of Moody.
The judgment is otherwise reversed and the cause is remanded for entry of judgment in conformity with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES and SHORES, JJ., concur.