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03/31/95 CITY MONTGOMERY AND CITY COUNCIL CITY

March 31, 1995

THE CITY OF MONTGOMERY AND THE CITY COUNCIL OF THE CITY OF MONTGOMERY
v.
THE WATER WORKS AND SANITARY SEWER BOARD OF THE CITY OF MONTGOMERY; THE CITY OF MONTGOMERY AND THE CITY COUNCIL OF THE CITY OF MONTGOMERY V. THE WATER WORKS AND SANITARY SEWER BOARD OF THE CITY OF MONTGOMERY; CARL EDWARDS AND MILDRED DUNCAN RALPH V. THE CITY OF MONTGOMERY AND THE CITY COUNCIL OF THE CITY OF MONTGOMERY; THE WATER WORKS AND SANITARY SEWER BOARD OF THE CITY OF MONTGOMERY V. THE CITY OF MONTGOMERY AND THE CITY COUNCIL OF THE CITY OF MONTGOMERY



Appeals from Montgomery Circuit Court. (CV-93-1500). This Opinion Substituted on Rehearing for Withdrawn Opinion of December 16, 1994, Previously .

Maddox, Justice. Shores, Ingram,* Cook, and Butts,** JJ., concur. Houston, J., Dissents.

The opinion of the court was delivered by: Maddox

On Application for Rehearing

MADDOX, JUSTICE.

The opinion of December 16, 1994, is withdrawn and the following is substituted therefor.

On application for rehearing, the Water Works and Sanitary Sewer Board contends that when this Court wrote its original opinion it misunderstood the procedural posture of this case. The Board's primary argument in support of its application is that this Court was under the erroneous impression that the trial court declared Act No. 93-704, Ala. Acts 1993, unconstitutional. In order to clear up any confusion regarding this Court's understanding of the issues presented on appeal, we substitute this modified opinion, to address this question raised on the application for rehearing; we have also reviewed each of the other issues raised on the application for rehearing, and we are convinced that the application should be overruled.

The legal question presented by this appeal is whether a water and sewer board, created by a municipality as a public corporation, is a "municipal board, committee, or like body" within the meaning of Act No. 93-704, Ala. Acts 1993, an Act applicable to Class 3 municipalities which authorizes those municipalities to alter the membership of municipal boards, committees, or like bodies. *fn1

The trial court, in a declaratory judgment action, held that Act No. 93-704 did not apply to the City of Montgomery, a Class 3 municipality, and further held that if the Act did apply, it would be unconstitutional because it would violate the provisions of Section 45 of the Constitution of Alabama 1901. We reverse and remand.

Act No. 93-704 was adopted by the Legislature in 1993, and provides that in Class 3 municipalities every "municipal board, committee, or like body" shall (unless directed otherwise by the municipal body) have a number of members on each board, committee or like body, equal to the number of members of the municipal governing body. *fn2

The City of Montgomery is a Class 3 municipality. The Montgomery City Council, on July 20, 1993, enacted Ordinance No. 28-93 ("the Ordinance") to implement the provisions of the Act. There are nine members of the Montgomery City Council. The Ordinance provided in Section 1 that 17 boards, and all boards thereafter created, would have nine members, as specified in the Act. On July 21, 1993, the day after the Ordinance was adopted, the Water Works and Sanitary Sewer Board of the City of Montgomery (hereinafter "Water and Sewer Board"), filed a declaratory judgment action against the City of Montgomery and the City Council of the City of Montgomery (hereinafter "the City), *fn3 seeking: (1) a declaration that the Act had no application to the Water and Sewer Board and (2) an injunction prohibiting the City from appointing additional members to its board of directors. Carl Edwards, a resident citizen of Elmore County and a member and beneficial recipient of the Employees Retirement System of the City of Montgomery, and Mildred Duncan Ralph, a resident of the City and County of Montgomery and a taxpayer, filed a motion to intervene and a complaint of intervention, seeking declaratory and injunctive relief. The trial court granted their motion to intervene.

After holding a hearing and taking testimony, the trial court held that the phrase "municipal board, committee, or like body" did not include the Water and Sewer Board. The trial court further held that "if this Court were to construe the Act so as to apply to the Water Board and the additional Alabama public corporations whose boards of directors are either elected or appointed by the Montgomery City Council, the Act would be rendered unconstitutional in that it would amend the pre-existing authorizing legislation for these public corporations without having identified these statutes in its text either by their number or by quoting from their language," and that "such a result would create a direct violation of Article IV, Section 45 of the Constitution of Alabama...." The trial Judge permanently enjoined the City from taking any action to implement the provisions of the Act with regard to the following public corporations: (a) the Water and Sewer Board (the appellee here); (b) the Industrial Development Board; (c) the Montgomery Housing Authority; and (d) the Montgomery Airport Authority. The City appealed, contending that the trial court erred in declaring that the Act was not applicable to the City of Montgomery and that if it were held to be applicable to the City of Montgomery it would be unconstitutional. The Water and Sewer Board and the intervenors, Carl Edwards and Mildred Duncan Ralph, cross-appealed, asserting that if this Court holds that public corporations are "municipal boards, committees, or like bodies" within the meaning of the Act, then the Act violates the "one subject" and "clear expression" requirements of Section 45 of the Alabama Constitution of 1901 and is unconstitutionally vague and uncertain under the provisions of Section 6 of the Constitution of 1901 and the Fourteenth Amendment to the United States Constitution.

In view of the Water and Sewer Board's argument in its brief that the scope of the bill "probably caught legislators sleeping at the time of its passage, or that it probably deceived or confused them," we have examined the legislative history of Act No. 93-704 to find from the House and Senate Journals some information concerning the bill's history during its legislative journey. We, of course, have no other legislative history that would help us to better understand the purpose of the legislation and the underlying public policy reasons that caused the Legislature to adopt Budget Isolation Resolutions to assist in the passage of this Act and to place the bill on special order calendars in both Houses of the Legislature during the final days of the Session. *fn4

The City argues that the purpose of the Act was "to enhance democracy in the functioning of municipal boards, committees, and like bodies in Class 3 municipalities." There is no indication in the House or Senate Journals of any contrary purpose. *fn5

The basic position of the City could be summarized as follows: The City claims that Act No. 93-704 is constitutional. The City argues that the Legislature has the power to alter the number of members of the boards of public corporations such as the Water and Sewer Board, the Industrial Development Board, the Montgomery Housing Authority, and the Montgomery Airport Authority, even though those boards were initially formed only by an affirmative resolution of the municipal governing body, and even though the members of each board were appointed by the City.

The City contends that these entities, even though public corporations, are included within the phrase "municipal board, committee, or like body," because, the City says, the phrase, given its ordinary meaning, applies to all entities created by the City, the members of which are appointed by the ...


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