By Lorelei A. Lein, Tenee’ R.J. Frazier, and H. Robert Johnston
Alabama has 463 incorporated municipalities located in 67 counties. These entities are designated by state law as either cities (population of more than 2,000) or towns (population of fewer than 2,000) and range in size from the state’s largest city, Birmingham (population 212,247) to the town of McMullen (population 10). Alabama is predominantly a state of small municipalities; more than 60 percent have a population of fewer than 2,000, and 27 percent have a population of fewer than 500.
Most Alabama cities and towns use the mayor-council form of government. This form is provided for by Ala. Code §§ 11-43-1 to -232. There are two variations of the mayor-council form of government. In cities with 12,000 or more inhabitants, the governing body is generally composed of a mayor and five councilmembers, and in a handful of municipalities, seven or nine councilmembers. These officials are elected by the voters of the city or town at-large unless the council, at least six months prior to an election, has voted to elect the council members from districts or is otherwise required by law to be districted.
In municipalities with fewer than 12,000 in population, the legislative functions are exercised by the council which is generally composed of the mayor and five councilmembers. Section 11-43-63 permits up to seven council members in municipalities which are districted. The mayor presides over all deliberations of the council. At the mayor’s discretion, the mayor may vote as a member of the council on any issue coming to a vote. In the case of a tie vote, the mayor must vote. § 11-43-2. The mayor, however, may never vote more than once on any issue that comes before the council, even in the case of a tie vote. Jones v. Coosada, 356 So. 2d 168 (Ala. 1978). All of the legislative powers of the municipality are exercised by the council acting as a whole.
Any Alabama municipality can hire a city manager as provided for in § 11-43-20 to -22. However, that a city has a manager hired under the provisions of this statute does not by itself give the municipality a true council-manager form of government. To deal with this, the legislature adopted the Council-Manager Act of 1982, §§11-43A-1 to -52, to allow all Class 2 through Class 8 municipalities the option of becoming a true council-manager form of government.
The council is the governing body of a municipality organized under the council-manager form of government, and it is composed of five or seven members. One member shall be the mayor who is elected at large, who shall be a voting member of the council, and either four or six members shall be council members elected either at large or from single-member districts, as the resolution shall provide. §11-43A-1.1. If a municipality has single-member districts for the election of council members when the council-manager form of government is adopted in the municipality, the municipality must continue with either four or six council members elected from single-member districts, and the mayor shall be elected at large. The mayor is the presiding officer of the council and may vote on any issue coming before that body. § 11-43A-8.
The council has the power to appoint and remove a city manager and establish other administrative departments and distribute the work of such departments. § 11-43A-17. According to the Act, the city manager is the chief executive and head of the administrative branch of the municipal government and is responsible to the council for the proper administration of all affairs of the municipality. § 11-43A-28. Currently, Auburn, Tuskegee, and Vestavia Hills operate under this form of government.
Other Forms of Municipal Government
The Alabama legislature has adopted specific legislation to provide either a form of government for a particular municipality or to provide a procedure by which the form of government of certain municipalities may be altered. These laws generally apply only to a single city or town. Those municipalities affected by specific enactments are:
- Anniston–Council-Manager, Act No. 71-1049
- Phenix City–Council-Manager, Act No. 77-71
- Montgomery–Mayor-Council, Act No. 73-618
- Birmingham–Mayor-Council, Act No. 55-452
- Troy–Mayor-Council, §§11-44A-1 to -16
- Opelika–Mayor-Council, §§11-44D-1 to -21
- Prichard–Mayor-Council, §§11-43C-1 to -92
- Tuscaloosa–Mayor-Council, §§ 11-44B-1 to -22
- Bessemer–Mayor-Council, §§11-43D-1 to -22
- Gadsden–Mayor-Council, §§11-43B-1 to -32
- Mobile–Mayor-Council, Ala. §§11-44C-1 to -93
- Dothan–Class 5 cities with a mayor-commission-manager, §§11-44E-1 to -221
- Talladega–Council-Manager–Amendment 738 (Talladega 13), Alabama Constitution, 1901 provides that the city shall operate under the council-manager form of government authorized by Chapter 43A of Title 11, with certain modifications.
Classification of Municipalities
Section 104(18) of the Alabama Constitution, 1901 prohibits the legislature from creating or amending by local legislation the charter powers of municipal corporations. The only exception to this restriction on the legislature is the power to change or alter the corporate limits of cities and towns by local legislation. Because of this constitutional provision, the laws governing the incorporation, organization, and operation of cities and towns in Alabama are general in nature and either apply to all municipalities in the state or to all municipalities within a specified population group.
Prior to 1978, the state legislature adopted numerous statutes to provide powers for municipalities with very narrow population ranges. These laws were known as general laws of local application. In 1978, the Alabama Supreme Court, in the case of Peddycoart v. Birmingham, 354 So. 2d 808 (Ala. 1978), held that the state legislature could no longer adopt general bills of local application. The court held that the legislature could pass only statewide general bills affecting every jurisdiction in the state or local bills affecting single jurisdictions. Since Section 104 of the Alabama Constitution prevents amendment of municipal charters by local acts, another method of enacting such amendments was needed.
Amendment 397 (Section 110) of the Alabama Constitution, 1901, which was passed by the legislature and ratified by Alabama citizens post-Peddycoart, authorizes the legislature to establish no more than eight classes of municipalities based on population. This provision also allows legislation to be passed affecting one or more of the classes and that any such legislation shall be deemed to be general laws rather than local laws.
At the same time the legislature passed Amendment 397, it passed legislation now codified as §§11-40-12 to-13, which established eight classes of municipalities:
Class 1–Cities of 300,000 inhabitants or more
Class 2–Cities of not fewer than 175,000 and not more than 299,999 inhabitants
Class 3–Cities of not fewer than 100,000 and not more than 174,999 inhabitants
Class 4–Cities or not fewer than 50,000 and not more than 99,999 inhabitants
Class 5–Cities of not fewer than 25,000 and not more than 49,999 inhabitants
Class 6–Cities of not fewer than 12,000 and not more than 24,999 inhabitants
Class 7–Cities of not fewer than 6,000 and not more than 11,999 inhabitants
Class 8–Cities and towns with a population of 5,999 or fewer.
The population figures refer to the 1970 federal decennial census. Once a classification is set, it never changes regardless of changes in population. Any municipality incorporated after June 28, 1979 is placed in one of the above classes according to the population of the municipality at the time of its incorporation.
In addition, Amendment 389 (Section 106.01) of the Alabama Constitution, 1901, validated most general acts of local application enacted prior to Peddycoart, that were otherwise valid and constitutional, even though they were not advertised as required by Section 106 of the state constitution. This provision mandates that the acts shall forever apply only to the county or to the municipality to which they applied on January 13, 1978, despite changes in population. Such acts can only be amended by advertised local bills. In cases where a general law exempts cities of a certain, stated population from being subject to said law, Section 106.01 will not help the city maintain its exemption when a population change causes them to fall outside the protected population bracket. Birmingham v. George, 988 So. 2d 1031 (2007).
Sources of Municipal Power
The Constitution of Alabama does not recognize any inherent right of local government. Except where restricted by limitations imposed by the state and federal constitutions, the legislature of Alabama is vested with complete authority over what municipalities in Alabama can and cannot do. In general, municipalities are delegated a portion of the sovereign powers of the state for the welfare and protection of their inhabitants and the general public within their jurisdictional areas. The sources of municipal power include the Alabama Constitution, the Code of Alabama, and special acts of the legislature.
In an early Alabama case, Mobile v. Moog, 53 Ala. 561 (Ala. 1875), Justice Manning quoted Judge Dillon from his work on municipal corporations:
“It is a general rule, and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in, or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation–not simply convenient, but indispensable.”
McQuillin cites this case as authority in stating that Alabama cities and towns have no inherent powers, but such a statement requires an understanding and agreement on the meaning of the word “inherent.” See 2A McQuillin Municipal Corporations, 3rd Ed. Section 10:12. It is true that a city has no authority to confer upon itself power it does not possess. Courts in Alabama follow the “Dillon Rule” in determining whether a city or town is authorized to exercise a particular power. See New Decatur v. Berry, 7 So. 838 (Ala. 1890); Best v. Birmingham, 79 So. 113 (Ala. 1918).
In Best v. Birmingham, the Supreme Court of Alabama held that the Alabama Court of Appeals erred in holding that municipal corporations have no implied powers. In so ruling, the court pointed out that except for the power of taxation (and probably some others not necessary to mention here), municipal corporations are clothed with powers implied or incidental. As a guide, the court noted that these incidental or implied powers must be germane to the purpose for which the corporation was created. Municipal powers cannot be enlarged by construction to the detriment of individual or public rights. The power must relate to some corporate purpose which is germane to the general scope of the object for which the corporation was created or has a legitimate connection with that object. Harris v. Livingston, 28 Ala. 577 (Ala. 1856).
Unfortunately, no precise definition distinguishes indispensable powers from powers which are merely useful or convenient. As a general policy, municipal corporations are held to a reasonably strict observance of their express powers. Ex parte Rowe, 59 So. 69 (Ala. App. 1912). The safest rule is that if there is substantial doubt as to the existence of a particular power, such power will be held by the courts not to exist.
The powers of a municipality may be derived from a single express grant or from a combination of enumerated powers which must be construed together. The purpose of all rules of construction is to arrive at the intent of the legislature. It follows that if fairly included in or inferable from other powers expressly conferred and consistent with the purposes of the municipal corporation, the exercise of the power should be resolved in favor of the municipality to enable it to perform its proper functions.
Types of Power
Two basic types of powers are delegated to and exercised by Alabama cities and towns: those of a political body (legislative) and those of a corporate body (ministerial). As a political body, municipal powers are general in application and public in character. As a corporate body, a municipality has powers that are proprietary in character, exercised for the benefit of the municipality in its corporate or individual capacity. Such powers are for the internal benefit of the municipality as a separate legal entity. State v. Lane, 62 So. 31 (Ala. 1913).
As a political body, a municipal corporation exercises legislative powers of a general and permanent nature which affect the public generally within the territorial jurisdiction of the municipality. In this instance, the council acts very much as an arm of the state legislature. As a corporate body, a municipality exercises powers of a ministerial nature for the private benefit of the corporation. In this case, a municipality acts in a manner comparable to the board of directors of a private corporation.
The distinction between these two types of powers is important to determine if a council must formally adopt an ordinance to exercise a particular power. If the power exercised requires the action of the council in its legislative capacity, then a formal ordinance is required in the manner prescribed by statute. If the action is of a ministerial nature, then the council may exercise the power by resolution or simple motion set forth in the journal.
The formalities required by statute for the adoption and publication of ordinances of a general and permanent nature are set out in, §§ 11-45-2 and 11-45-8, and must be followed closely by the council.
Exercise of Powers
In some instances, statutes relating to municipal powers are self-executing. In most instances, however, the grants of power are not effective until the council takes legislative action to set them in motion. Such action is taken by the adoption of an ordinance, resolution, or motion depending on the power being exercised and any statutory requirements imposed.
The powers of a municipality, both legislative and corporate, are required to be exercised by the council in legally convened meetings as provided in the Alabama Open Meetings Act. Further, the municipal journal (minutes) is the only evidence acceptable in determining the action taken by the council, and parol evidence will not be received to establish such action. Penton v. Brown-Crummer Inv. Co., 131 So. 14 (Ala. 1930).
The method of exercising a power granted by the legislature depends upon whether the statute prescribes the manner of performance. The prescribed procedure for adopting ordinances of a general and permanent nature is mandatory. In exercising ministerial powers, it should be noted that sometimes procedures are prescribed by statute. In some cases, courts recognize such procedures as mandatory and in other instances, they are declared to be directory only.
Generally, where a statutory grant of power provides that a municipality “shall” or “must” perform an act in a prescribed manner, the statute is declared mandatory. Prince v. Hunter, 388 So. 2d 546 (Ala. 1980). Where a statute provides that the municipality “may” perform an act or exercise a power, it is declared to be directory or permissive. Jackson v. State, 581 So. 2d 553, 559 (Ala. Crim. App. 1991).
Legislative and Executive Power
In providing for the organization and administration of mayor-council cities and towns, the legislature deemed that the legislative functions of a municipality should be vested in the council. §§ 11-43-2, 11-43-40, and 11-43-43. Section 11-43-43 states that all legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officer by law or ordinance. Therefore, the state legislature has entrusted the municipal council with the duty and responsibility of exercising a wide variety of the sovereign powers of the state which vitally affect the life, liberty, and property of citizens within their jurisdictions. Further, where cities have adopted the council-manager form of government, the council is also authorized to exercise all legislative functions of the municipality. § 11-43A-8.
Legislative power is the authority to make laws and is vested in the council. Executive powers are generally vested in the mayor, city manager, and heads of departments. The crucial test to determine the difference between legislative powers and executive or administrative powers is whether an ordinance makes a new law or executes a law already in existence.
The legislative powers of the council are not to be confused with the power to administer or execute the laws of the municipality. It is the responsibility of the mayor (or manager) to see that the officers and employees of the municipality faithfully execute the laws and policies established by the council. § 11-43-81.
Discretion Not Reviewable
Where a council has acted within the sphere of powers granted to the municipality, it is well established that courts will not sit in review of the proceedings of municipal officers and departments in the exercise of their legislative discretion. Cases where bad faith, fraud, arbitrary action, or abuse of power are affirmatively shown are exceptions to this rule. Hamilton v. Anniston, 27 So. 2d 857 (Ala. 1946). Where a power exists, there is a legal presumption that public officials properly and legally executed it in a reasonable manner. Courts do not inquire into the motives prompting a municipal governing body to exercise a discretionary power, be it legislative or corporate in nature, unless there is a showing of fraud, corruption, or oppression. Pilcher v. Dothan, 93 So. 16 (Ala. 1922). Error or mistakes in judgment do not constitute an abuse of discretion.
It is a general rule of law that the powers granted to cities and towns can be exercised only within their corporate limits, unless specifically provided otherwise by statute. Alabama’s laws granting extraterritorial powers to cities and towns are probably the broadest of any state. See McQuillin, Municipal Corporations, 3rd Ed., Section 24.59. Municipalities, with some exceptions, have the authority to exercise police powers to protect the public health, safety, and welfare of citizens just outside the corporate limits; the authority to license and tax those citizens; and the authority to regulate subdivisions. See §§11-40-10 (police jurisdiction), 11-51-90 (licensing), and 11-52-30 (subdivision). The authority to extend municipal police, sanitary, and business licensing powers to those residing in the police jurisdiction of a municipality, without permitting these residents to vote in municipal elections, has been upheld by the U.S. Supreme Court in the case of Holt Civic Club v. Tuscaloosa, 99 S. Ct. 383 (1978).
Municipal authority outside of the corporate limits has come under fire in recent years and remains a hot button issue resulting in frequent attempts to further limit municipal authority legislatively. Most recently, the legislature passed Act 2021-297 (SB107) which made significant changes to municipal police and planning jurisdictions and places additional burdens on municipalities who are exercising extraterritorial authority.
Very few people understand the true significance of municipal government. It has an impact on every aspect of our daily lives–from dogs, garbage, water, and sewer to infrastructure, recreation, economic development, and public safety. The powers delegated to Alabama cities and towns play an integral role in the communities they serve. They empower municipalities to provide essential resources and services to the constituents and businesses located within them, and they foster the safe and vibrant spaces for businesses to thrive and citizens to live, work, play, and prosper.