Appellants, a civic association and certain individual residents
of Holt, Ala., a small unincorporated community outside the
corporate limits of Tuscaloosa but within three miles thereof,
brought this statewide class action challenging the
constitutionality of "police jurisdiction" statutes that extend
municipal police, sanitary, and business licensing powers over
those residing within three miles of certain corporate boundaries
without permitting such residents to vote in municipal elections. A
three-judge District Court granted appellees' motion to dismiss the
complaint for failure to state a claim upon which relief could be
granted.
Held:
1. The convening of a three-judge court under then-applicable 28
U.S.C. § 2281 (1970 ed.) was proper, since appellants
challenged the constitutionality of state statutes that created a
statewide system under which Alabama cities exercise
extraterritorial powers.
Moody v. Flowers, 387 U. S.
97, distinguished. Pp.
439 U. S.
63-65.
2. Alabama's police jurisdiction statutes do not violate the
Equal Protection Clause of the Fourteenth Amendment. Pp.
439 U. S.
66-75.
(a) A government unit may legitimately restrict the right to
participate in its political processes to those who reside within
its borders. Various voting qualification decisions on which
appellants rely in support of their contention that the denial of
the franchise to them can stand only if justified by a compelling
state interest are inapposite. In those cases, unlike the situation
here, the challenged statutes disfranchised individuals who
physically resided within the geographical boundaries of the
governmental entity concerned. Pp.
439 U. S.
66-70.
(b) Alabama's police jurisdiction statutory scheme is a rational
legislative response to the problems faced by the State's
burgeoning cities, and the legislature has a legitimate interest in
ensuring that residents of areas adjoining city borders be provided
such basic municipal services as police, fire, and health
protection. Nor is it unreasonable for the legislature to require
police jurisdiction residents to contribute through license fees,
as they do here on a reduced scale, to the expense of such
services. Pp.
439 U. S.
70-75.
Page 439 U. S. 61
3. The challenged statutes do not violate due process, since
appellants have no constitutional right to vote in Tuscaloosa
elections. P.
439 U. S.
75.
Affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. STEVENS, J., filed a concurring opinion,
post, p.
439 U. S. 75.
BRENNAN, J., filed a dissenting opinion, in which WHITE and
MARSHALL, JJ., joined,
post, p.
439 U. S.
79.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Holt is a small, largely rural, unincorporated community located
on the northeastern outskirts of Tuscaloosa, the fifth largest city
in Alabama. Because the community is within the three-mile police
jurisdiction circumscribing Tuscaloosa's corporate limits, its
residents are subject to the city's "police [and] sanitary
regulations." Ala.Code § 11-40-10 (1975). [
Footnote 1] Holt residents are also subject to the
criminal jurisdiction of the city's court, Ala.Code § 12-14-1
(1975) [
Footnote 2] and to the
city's
Page 439 U. S. 62
power to license businesses, trades, and professions, Ala.Code
§ 11-51-91 (175). [
Footnote
3] Tuscaloosa, however, may collect from businesses in the
police jurisdiction only one-half of the license fee chargeable to
similar businesses conducted within the corporate limits.
Ibid.
In 1973, appellants, an unincorporated civic association and
seven individual residents of Holt, brought this statewide class
action in the United States District Court for the Northern
District of Alabama [
Footnote
4] challenging the constitutionality of these Alabama statutes.
They claimed that the city's extraterritorial exercise of police
powers over Holt residents, without a concomitant extension of the
franchise on an equal footing with those residing within the
corporate limits, denies residents
Page 439 U. S. 63
of the police jurisdiction rights secured by the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The District
Court denied appellants' request to convene a three-judge court
pursuant to 28 U.S.C. § 2281 (1970 ed.) and dismissed the
complaint for failure to state a claim upon which relief could be
granted. Characterizing the Alabama statutes as enabling Acts, the
District Court held that the statutes lack the requisite statewide
application necessary to convene a three-judge District Court. On
appeal, the Court of Appeals for the Fifth Circuit ordered the
convening of a three-judge court, finding that the police
jurisdiction statute embodies "
a policy of statewide concern.'"
Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975),
quoting Spielman Motor Sales Co. v. Dodge, 295 U. S.
89, 295 U. S. 94
(1935).
A three-judge District Court was convened, but appellants'
constitutional claims fared no better on the merits. Noting that
appellants sought a declaration that extraterritorial regulation is
unconstitutional
per se, rather than ar extension of the
franchise to police jurisdiction residents, the District Court held
simply that "[e]qual protection has not been extended to cover such
contention." App. to Juris.Statement 2a. The court rejected
appellants' due process claim without comment. Accordingly,
appellees' motion to dismiss was granted.
Unsure whether appellants' constitutional attack on the Alabama
statutes satisfied the requirements of 28 U.S.C. § 2281 (1970
ed.) for convening a three-judge district court, we postponed
consideration of the jurisdictional issue until the hearing of the
case on the merits. 435 U.S. 914 (1978). We now conclude that the
three-judge court was properly convened, and that appellants'
constitutional claims were properly rejected.
I
Before its repeal, [
Footnote
5] 28 U.S.C. § 2281 (1970 ed.) required that a three-judge
district court be convened in any case in
Page 439 U. S. 64
which a preliminary or permanent injunction was sought to
restrain
"the enforcement, operation or execution of any State statute by
restraining the action of any officer of such State in the
enforcement or execution of such statute. . . ."
Our decisions have interpreted § 2281 to require the
convening of a three-judge district court
"where the challenged statute or regulation, albeit created or
authorized by a state legislature, has statewide application or
effectuates a statewide policy."
Board of Regents v. New Left Education Project,
404 U. S. 541,
404 U. S. 542
(1972). Relying on
Moody v. Flowers, 387 U. S.
97 (1967), appellees contend, and the original
single-judge District Court held, that Alabama's police
jurisdiction statutes lack statewide impact.
A three-judge court was improperly convened in
Moody
because the challenged state statutes had "limited application,
concerning only a particular county involved in the litigation. . .
."
Id. at
387 U. S. 104.
In contrast, appellants' constitutional attack focuses upon a state
statute that creates the statewide system under which Alabama
cities exercise extraterritorial powers. In mandatory terms, the
statute provides that municipal police and sanitary ordinances
"
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. [
Footnote 6]"
Clearly, Alabama's police
Page 439 U. S. 65
jurisdiction statutes have statewide application.
See, e.g.,
Sailors v. Board of Education, 387 U.
S. 105,
387 U. S. 107
(1967). That the named defendants are local officials is irrelevant
where, as here, those officials are "functioning pursuant to a
statewide policy and performing a state function."
Moody v.
Flowers, supra, at
387 U. S. 102;
Spielman Motor Sales Co. v. Dodge, supra, at
295 U. S. 94-95.
The convening of a three-judge District Court was proper.
II
Appellants' amended complaint requested the District Court to
declare the Alabama statutes unconstitutional and to enjoin their
enforcement insofar as they authorize the extraterritorial exercise
of municipal powers. Seizing on the District Court's observation
that "[appellants] do not seek extension of the franchise to
themselves," appellants suggest that their complaint was dismissed
because they sought the wrong remedy.
The unconstitutional predicament in which appellants assertedly
found themselves could be remedied in only two ways: (1) the city's
extraterritorial power could be negated by invalidating the State's
authorizing statutes, or (2) the right to vote in municipal
elections could be extended to residents of the police
jurisdiction. We agree with appellants that a federal court should
not dismiss a meritorious constitutional claim because the
complaint seeks one remedy rather than another plainly appropriate
one. Under the Federal Rules of Civil Procedure,
"every final judgment shall grant the relief
Page 439 U. S. 66
to which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in his
pleadings."
Rule 54(c). Thus, although the prayer for relief may be looked
to for illumination when there is doubt as to the substantive
theory under which a plaintiff is proceeding, its omissions are
not, in and of themselves, a barrier to redress of a meritorious
claim.
See, e.g., 6 J. Moore, W. Taggart, & J. Wicker,
Moore's Federal Practice � 54.62, pp. 1261-1265 (2d
ed.1976). But while a meritorious claim will not be rejected for
want of a prayer for appropriate relief, a claim lacking
substantive merit obviously should be rejected. We think it is
clear from the pleadings in this case that appellants have alleged
no claim cognizable under the United States Constitution.
A
Appellants focus their equal protection attack on §
11-40-10, the statute fixing the limits of municipal police
jurisdiction and giving extraterritorial effect to municipal police
and sanitary ordinances.
Citing Kramer v. Union Free School
Dist., 395 U. S. 621
(1969), and cases following in its wake, appellants argue that the
section creates a classification infringing on their right to
participate in municipal elections. The State's denial of the
franchise to police jurisdiction residents, appellants urge, can
stand only if justified by a compelling state interest.
At issue in
Kramer was a New York voter qualification
statute that limited the vote in school district elections to
otherwise qualified district residents who (1) either owned or
leased taxable real property located within the district, (2) were
married to persons owning or leasing qualifying property, or
(3)were parents or guardians of children enrolled in a local
district school for a specified time during the preceding year.
Without deciding whether or not a State may in some circumstances
limit the franchise to residents primarily interested in or
primarily affected by the activities of a
Page 439 U. S. 67
given governmental unit, the Court held that the statute was not
sufficiently tailored to meet that state interest, since its
classifications excluded many bona fide residents of the school
district who had distinct and direct interests in school board
decisions, and included many residents whose interests in school
affairs were, at best, remote and indirect.
On the same day, in
Cipriano v. City of Houma,
395 U. S. 701
(1969), the Court upheld an equal protection challenge to a
Louisiana law providing that only "property taxpayers" could vote
in elections called to approve the issuance of revenue bonds by a
municipal utility system. Operation of the utility system affected
virtually every resident of the city, not just property owners, and
the bonds were in no way financed by property tax revenue. Thus,
since the benefits and burdens of the bond issue fell
indiscriminately on property owner and nonproperty owner alike, the
challenged classification impermissibly excluded otherwise
qualified residents who were substantially affected by and directly
interested in the matter put to a referendum. The rationale of
Cipriano was subsequently called upon to invalidate an
Arizona law restricting the franchise to property taxpayers in
elections to approve the issuance of general obligation municipal
bonds.
Phoenix v. Kolodziejski, 399 U.
S. 204 (1970).
Appellants also place heavy reliance on
Evans v.
Cornman, 398 U. S. 419
(1970). In
Evans, the Permanent Board of Registry of
Montgomery County, Md. ruled that persons living on the grounds of
the National Institutes of Health (NIH), a federal enclave located
within the geographical boundaries of the State, did not meet the
residency requirement of the Maryland Constitution. Accordingly,
NIH residents were denied the right to vote in Maryland elections.
This Court rejected the notion that persons living on NIH grounds
were not residents of Maryland:
"Appellees clearly live within the geographical boundaries of
the State of Maryland, and they are treated as state
Page 439 U. S. 68
residents in the census and in determining congressional
apportionment. They are not residents of Maryland only if the NIH
grounds ceased to be a part of Maryland when the enclave was
created. However, that 'fiction of a state within a state' was
specifically rejected by this Court in
Howard v. Commissioners
of Louisville, 344 U. S. 624,
344 U. S.
627 (1953), and it cannot be resurrected here to deny
appellees the right to vote."
Id. at
398 U. S.
421-422. Thus, because inhabitants of the NIH enclave
were residents of Maryland and were
"just as interested in and connected with electoral decisions as
the were prior to 1953, when the area came under federal
jurisdiction, and as their neighbors who live off the enclave,"
id. at
398 U. S. 426,
the State could not deny them the equal right to vote in Maryland
elections.
From these and our other voting qualifications cases, a common
characteristic emerges: the challenged statute in each case denied
the franchise to individuals who were physically resident within
the geographic boundaries of the governmental entity concerned.
See, e.g., Hill v. Stone, 421 U.
S. 289 (1975) (invalidating provision of the Texas
Constitution restricting franchise on general obligation bond issue
to residents who had "rendered" or listed real, mixed, or personal
property for taxation in the election district);
Harper v.
Virginia Board of Elections, 383 U. S. 663
(1966) (invalidating Virginia statute conditioning the right to
vote of otherwise qualified residents on payment of a poll tax);
cf. Turner v. Fouche, 396 U. S. 346
(1970) (invalidating Georgia statute restricting county school
board membership to residents owning real property in the county).
No decision of this Court has extended the "one man, one vote"
principle to individuals residing beyond the geographic confines of
the governmental entity concerned, be it the State or its political
subdivisions. On the contrary, our cases have uniformly recognized
that a government unit may legitimately restrict the right to
participate in its political processes to those who reside within
its
Page 439 U. S. 69
borders.
See, e.g., Dunn v. Blumstein, 405 U.
S. 330,
405 U. S.
343-344 (1972);
Evans v. Cornman, supra at
398 U. S. 422;
Kramer v. Union Free School Dist., 395 U.S. at
395 U. S. 625;
Carrington v. Rash, 380 U. S. 89,
380 U. S. 91
(1965);
Pope v. Williams, 193 U.
S. 621 (1904). Bona fide residence alone, however, does
not automatically confer the right to vote on all matters, for at
least in the context of special interest elections the State may
constitutionally disfranchise residents who lack the required
special interest in the subject matter of the election.
See
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.,
410 U. S. 719
(1973);
Associated Enterprises, Inc. v. Toltec Watershed
Improvement Dist., 410 U. S. 743
(1973).
Appellants' argument that extraterritorial extension of
municipal powers requires concomitant extraterritorial extension of
the franchise proves too much. The imaginary line defining a city's
corporate limits cannot corral the influence of municipal actions.
A city's decisions inescapably affect individuals living
immediately outside its borders. The granting of building permits
for high rise apartments, industrial plants, and the like on the
city's fringe unavoidably contributes to problems of traffic
congestion, school districting, and law enforcement immediately
outside the city. A rate change in the city's sales or
ad
valorem tax could well have a significant impact on retailers
and property values in areas bordering the city. The condemnation
of real property on the city's edge for construction of a municipal
garbage dump or waste treatment plant would have obvious
implications for neighboring nonresidents. Indeed, the indirect
extraterritorial effects of many purely internal municipal actions
could conceivably have a heavier impact on surrounding environs
than the direct regulation contemplated by Alabama's police
jurisdiction statutes. Yet no one would suggest that nonresidents
likely to be affected by this sort of municipal action have a
constitutional right to participate in the political processes
bringing it about. And unless one adopts the idea that the
Page 439 U. S. 70
Austinian notion of sovereignty, which is presumably embodied to
some extent in the authority of a city over a police jurisdiction,
distinguishes the direct effects of limited municipal powers over
police jurisdiction residents from the indirect though equally
dramatic extraterritorial effects of purely internal municipal
actions, it makes little sense to say that one requires extension
of the franchise, while the other does not.
Given this country's tradition of popular sovereignty,
appellants' claimed right to vote in Tuscaloosa elections is not
without some logical appeal. We are mindful, however, of Mr.
Justice Holmes' observation in
Hudson Water Co. v.
McCarter, 209 U. S. 349,
209 U. S. 355
(1908):
"All rights tend to declare themselves absolute to their logical
extreme. Yet all, in fact, are limited by the neighborhood of
principles of policy which are other than those on which the
particular right is founded, and which become strong enough to hold
their own when a certain point is reached. . . . The boundary at
which the conflicting interests balance cannot be determined by any
general formula in advance, but points in the line, or helping to
establish it, are fixed by decisions that this or that concrete
case falls on the nearer or farther side."
The line heretofore marked by this Court's voting qualifications
decisions coincides with the geographical boundary of the
governmental unit at issue, and we hold that appellants' case, like
their homes falls on the farther side.
B
Thus stripped of its voting rights attire, the equal protection
issue presented by appellants becomes whether the Alabama statutes
giving extraterritorial force to certain municipal ordinances and
powers bear some rational relationship to a legitimate state
purpose.
San Antonio Independent School Dist. v.
Rodriguez, 411 U. S. 1
(1973).
"The Fourteenth Amendment does not prohibit legislation merely
because
Page 439 U. S. 71
it is special, or limited in its application to a particular
geographical or political subdivision of the state."
Fort Smith Light Co. v. Paving Dist., 274 U.
S. 387,
274 U. S. 391
(1927). Rather, the Equal Protection Clause is offended only if the
statute's classification "rests on grounds wholly irrelevant to the
achievement of the State's objective."
McGowan v.
Maryland, 366 U. S. 420,
366 U. S. 425
(1961);
Kotch v. Board of River Port Pilot Comm'rs,
330 U. S. 552,
330 U. S. 556
(1947).
Government, observed Mr. Justice Johnson, "is the science of
experiment,"
Anderson v.
Dunn, 6 Wheat. 204,
19 U. S. 226
(1821), and a State is afforded wide leeway when experimenting with
the appropriate allocation of state legislative power. This Court
has often recognized that political subdivisions such as cities and
counties are created by the State "as convenient agencies for
exercising such of the governmental powers of the State as may be
entrusted to them."
Hunter v. Pittsburgh, 207 U.
S. 161,
207 U. S. 178
(1907).
See also e.g., Sailors v. Board of Education, 387
U.S. at
387 U. S. 108;
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 575 (1964). In
Hunter v. Pittsburgh, the Court discussed at length the
relationship between a State and its political subdivisions,
remarking:
"The number, nature and duration of the powers conferred upon
[municipal] corporations and the territory over which they shall be
exercised rests in the absolute discretion of the State."
207 U.S. at
207 U. S. 178.
While the broad statements as to state control over municipal
corporations contained in
Hunter have undoubtedly been
qualified by the holdings of later cases such as
Kramer v.
Union Free School Dist., supra, we think that the case
continues to have substantial constitutional significance in
emphasizing the extraordinarily wide latitude that States have in
creating various types of political subdivisions and conferring
authority upon them. [
Footnote
7]
Page 439 U. S. 72
The extraterritorial exercise of municipal powers is a
governmental technique neither recent in origin nor unique to the
State of Alabama.
See R. Maddox, Extraterritorial Powers
of Municipalities in the United States (1955). In this country, 35
States authorize their municipal subdivisions to exercise
governmental powers beyond their corporate limits. Comment, The
Constitutionality of the Exercise of Extraterritorial Powers by
Municipalities, 45 U.Chi.L.Rev. 151 (1977). Although the
extraterritorial municipal powers granted by these States vary
widely, several States grant their cities more extensive or
intrusive powers over bordering areas than those granted under the
Alabama statutes. [
Footnote
8]
Page 439 U. S. 73
In support of heir equal protection claim, appellants suggest a
number of "constitutionally preferable" governmental alternatives
to Alabama' system of municipal police jurisdictions. For example,
exclusive management of the police jurisdiction by county
officials, appellants maintain, would be more "practical." From a
political science standpoint, appellants' suggestions may be sound,
but this Court does not sit to determine whether Alabama has chosen
the soundest or
Page 439 U. S. 74
most practical form of internal government possible. Authority
to make those judgments resides in the state legislature, and
Alabama citizens are free to urge their proposals to that body.
See, e.g., Hunter v. Pittsburgh, 207 U.S. at
207 U. S. 179.
Our inquiry is limited to the question whether "any state of facts
reasonably may be conceived to justify" Alabama's system of police
jurisdictions,
Salyer Land Co. v. Tulare Lake Basin Water
Storage Dist., 410 U.S. at
410 U. S. 732,
and, in this case, it takes but momentary reflection to arrive at
an affirmative answer.
The Alabama Legislature could have decided that municipal
corporations should have some measure of control over activities
carried on just beyond their "city limit" signs, particularly since
today's police jurisdiction may be tomorrow's annexation to the
city proper. Nor need the city's interests have been the only
concern of the legislature when it enacted the police jurisdiction
statutes. Urbanization of any area brings with it a number of
individuals who long both for the quiet of suburban or country
living and for the career opportunities offered by the city's
working environment. Unincorporated communities like Holt dot the
rim of most major population centers in Alabama and elsewhere, and
state legislatures have a legitimate interest in seeing that this
substantial segment of the population does not go without basic
municipal services such as police, fire, and health protection.
Established cities are experienced in the delivery of such
services, and the incremental cost of extending the city's
responsibility in these areas to surrounding environs may be
substantially less than the expense of establishing wholly new
service organizations in each community.
Nor was it unreasonable for the Alabama Legislature to require
police jurisdiction residents to contribute through license fees to
the expense of services provided them by the city. The statutory
limitation on license fees to half the amount exacted within the
city assures that police jurisdiction residents will not be
victimized by the city government.
Page 439 U. S. 75
"Viable local governments may need many innovations, numerous
combination of old and new devices, great flexibility in municipal
arrangements to meet changing urban conditions."
Sailors v. Board of Education, 387 U.S. at
387 U. S.
110-111. This observation in
Sailors was
doubtless as true at the turn of this century, when urban areas
throughout the country were temporally closer to the effects of the
industrial revolution. Alabama's police jurisdiction statute,
enacted in 1907, was a rational legislative response to the
problems faced by the State's burgeoning cities. Alabama is
apparently content with the results of its experiment, and nothing
in the Equal Protection Clause of the Fourteenth Amendment requires
that it try something new.
C
Appellants also argue that "governance without the franchise is
a fundamental violation of the due process clause." Brief for
Appellants 28. Support for this proposition is alleged to come from
United States v. Texas, 252 F.
Supp. 234 (WD Tex.) (three-judge District Court),
summarily
aff'd, 384 U. S. 155
(1966), which held that conditioning the franchise of otherwise
qualified voters on payment of a poll tax denied due process to
many Texas voters. Appellants' argument proceeds from the
assumption, earlier shown to be erroneous,
supra at
439 U. S. 66-70,
that they have a right to vote in Tuscaloosa elections. Their
conclusion falls with their premise.
III
In sum, we conclude that Alabama's police jurisdiction statutes
violate neither the Equal Protection Clause nor the Due Process
Clause of the Fourteenth Amendment. Accordingly, the judgment of
the District Court is
Affirmed.
[
Footnote 1]
The full text of § 11-40-10 provides:
"The police jurisdiction in cities having 6,000 or more
inhabitants shall cover all adjoining territory within three miles
of the corporate limits, and in cities having less than 6,000
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."
[
Footnote 2]
"The municipal court shall have jurisdiction of all prosecutions
for the breach of the ordinances of the municipality within its
police jurisdiction."
Ala.Code § 12-14-1(b) (1975).
[
Footnote 3]
In pertinent part § 11-51-91 provides:
"Any city or town within the state of Alabama may fix and
collect licenses for any business, trade or profession done within
the police jurisdiction of such city or town but outside the
corporate limits thereof; provided, that the amount of such
licenses shall not be more than one half the amount charged and
collected as a license for like business, trade or profession done
within the corporate limits of such city or town, fees and
penalties excluded. . . ."
Although not at issue here, Ala.Code § 11-52-8 (1975)
imposes a duty on the municipal planning commission
"to make and adopt a master plan for the physical development of
the municipality, including any areas outside of its boundaries
which, in the commission's judgment, bear relation to the planning
of such municipality."
Under Ala.Code §§ 11-52-30 and 11-52-31 (1975), also
not contested here, the municipal planning commission is required
to adopt regulations governing the subdivision of land within its
jurisdiction, which includes all land lying within five miles of
the municipality's corporate limits and not located within the
corporate limits of any other municipality.
[
Footnote 4]
This suit was instituted prior to the 1975 recompilation of the
Alabama Code. Other than minor stylistic changes, § 1110 and
§ 11-51-91 are identical to their predecessors, Ala.Code, Tit.
37, §§ 9 and 733 (1958), respectively. Section 12-14-1
abolished the recorder's courts created under is predecessor,
Ala.Code, Tit. 37, § 585 (1958), and replaced them with
municipal courts having similar extraterritorial jurisdiction.
[
Footnote 5]
Pub.L. 9381, § 1, Aug. 12, 1976, 90 Stat. 1119.
[
Footnote 6]
Ala.Code § 11-40-10 (1975) (emphasis added). The Alabama
Supreme Court has recognized the mandatory nature of §
11-40-10. 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."
Id. at 502, 319 So. 2d at
246.
"Since a municipality cannot barter away a governmental power
specifically delegated to it by the legislature, . . . it follows
that it also cannot waive or relinquish such power."
Ibid. See also Trailway Oil Co. v. Mobile, 271
Ala. 218, 224,
122 So. 2d
757, 762 (1960) ("[Section] 9 of Title 37 [now §
11-40-10], describing the territorial extent of the municipal
police jurisdiction and the incidents thereof, and § 733 of
Title 37 [now § 11-51-91], as amended, authorizing and
regulating the fixing and collecting of licenses within the police
jurisdiction of cities and towns, are general laws, and, as such,
they are considered part of every municipal charter");
Coursey
v. City of Andalusia, 24 Ala.App. 247, 247-248, 134 So. 671
(1931) ("Under the statute [§ 11-40-10] the police
jurisdiction extends to all the adjoining territory within a mile
and a half of the corporate limits of said city, and . . .
ordinances of the city enforcing police or sanitary regulations . .
. have force and effect not only in the limits of the city, but
also in the police jurisdiction thereof").
[
Footnote 7]
In this case, residents of the police jurisdiction are excluded
only from participation in municipal elections, since they reside
outside of Tuscaloosa's corporate limits. This "denial of the
franchise," as appellants put it, does not have anything like the
far-reaching consequences of the denial of the franchise in
Evans v. Cornman, 398 U. S. 419
(1970). There, the Court pointed out that,
"[i]n nearly every election, federal, state, and local, for
offices from the Presidency to the school board, and on the entire
variety of other ballot propositions, appellees have a stake equal
to that of other Maryland residents."
Id. at
398 U. S. 426.
Treatment of the plaintiffs in
Evans as nonresidents of
Maryland had repercussions not merely with respect to their right
to vote in city elections, but with respect to their right to vote
in national, state, school board, and referendum elections.
[
Footnote 8]
Municipalities in some States have almost unrestricted
governmental powers over surrounding unincorporated territories.
For example, South Dakota cities
"have power to exercise jurisdiction for all authorized purposes
over all territory within the corporate limits . . . and in and
over all places, except within the corporate limits of another
municipality, within one mile of the corporate limits or of any
public ground or park belonging to the municipality outside the
corporate limits, for the purpose of promoting the health, safety,
morals, and general welfare of the community, and of enforcing its
ordinances and resolutions relating thereto."
S.D.Comp.Laws Ann. § 9-29-1 (1967).
North Dakota's statutory grant of extraterritorial municipal
powers is similarly broad:
"Except as otherwise provided by law, a governing body of a
municipality shall have jurisdiction:"
"
* * * *"
"2. In and over all places within one-half mile of the municipal
limits for the purpose of enforcing health and quarantine
ordinances and regulations and police regulations and ordinances
adopted to promote the peace, order, safety, and general welfare of
the municipality."
N.D.Cent.Code § 4001(2) (1968).
Cities in many States are statutorily authorized to zone
extraterritorially,
see, e.g., Ariz.Rev.Stat.Ann. §
9-240-B-21(c) (1977); Mich.Comp.Laws § 125.36 (1970);
N.D.Cent.Code § 11-35-02 (1976), a power not afforded Alabama
municipalities.
See Roberson v. City of Montgomery, 285
Ala. 421,
233 So. 2d
69 (1970).
By setting forth these various state provisions respecting
extraterritorial powers of cities, we do not mean to imply that
every one of them would pass constitutional muster. We do not have
before us, of course, a situation in which a city has annexed
outlying territory in all but name, and is exercising precisely the
same governmental powers over residents of surrounding
unincorporated territory as it does over those residing within its
corporate limits.
See Little Thunder v. South Dakota, 518
F.2d 1253 (CA8 1975). Nor do we have here a case like
Evans v.
Cornman, supra, where NIH residents were subject to such
"important aspects of state powers" as Maryland's authority "to
levy and collect [its] income, gasoline, sales, and use taxes," and
were "just as interested in and connected with electoral decisions
as . . . their neighbors who live[d] off the enclave." 398 U.S. at
398 U. S. 423,
398 U. S. 424,
398 U. S.
426.
Appellants have made neither an allegation nor a showing that
the authority exercised by the city of Tuscaloosa within the police
jurisdiction is no less than that exercised by the city within its
corporate limits. The minute catalog of ordinances of the city of
Tuscaloosa which have extraterritorial effect set forth by our
dissenting Brethren,
post at
439 U. S. 82-84,
n. 10, is as notable for what it does not include as for what it
does. While the burden was on appellants to establish a difference
in treatment violative of the Equal Protection Clause, we are bound
to observe that among the powers not included in the "addendum" to
appellants' brief referred to by the dissent are the vital and
traditional authorities of cities and towns to levy
ad
valorem taxes, invoke the power of eminent domain, and zone
property for various types of uses.
MR. JUSTICE STEVENS, concurring.
The Court today holds that the Alabama statutes providing for
the extraterritorial exercise of certain limited powers by
Page 439 U. S. 76
municipalities are not unconstitutional. While I join the
opinion of the Court, I write separately to emphasize that this
holding does not make all exercises of extraterritorial authority
by a municipality immune from attack under the Equal Protection
Clause of the Fourteenth Amendment.
The Alabama Legislature, which is elected by all of the citizens
of the State, including the individual appellants, has prescribed a
statewide program pursuant to which residents of police
jurisdictions are subject to limited regulation by, and receive
certain services from, adjacent cities. In return, those residents
who are engaged in business are charged license fees equal to
one-half those charged to city businesses. In my view, there is
nothing necessarily unconstitutional about such a system. Certainly
there is nothing in the Federal Constitution to prevent a suburb
from contracting with a nearby city to provide municipal services
for its residents, even though those residents have no voice in the
election of the city's officials or in the formulation of the
city's rules. That is essentially what Alabama has accomplished
here, through the elected representatives of all its citizens in
the state legislature. [
Footnote
2/1]
Of course, in structuring a system, neither a contracting suburb
nor an enacting legislature can consent to a waiver of the
constitutional rights of its constituents in the election process.
For
"when the State delegates lawmaking power to local government
and provides for the election of local officials from districts
specified by statute, ordinance, or local charter, it must insure
that those qualified to vote have the right to an equally effective
voice in the election process."
Avery v. Midland County, 390 U.
S. 474,
390 U. S.
480.
Page 439 U. S. 77
But the fact that these appellants are subject to certain
regulations of the municipality does not, itself, establish that
they are "qualified to vote." Unlike the residents of the National
Institutes of Health enclave at issue in
Evans v. Cornman,
398 U. S. 419,
appellants are not without any voice in the election of the
officials who govern their affairs. They do vote for the county,
state, and federal officials who exercise primary control over
their day-to-day lives. And even as to their interaction with the
government of the city, appellants are not completely without a
voice: through their state representatives, they participate
directly in the process which has created their governmental
relationship with the city. The question then is whether, by virtue
of that relationship created by state law, the residents of Holt
and all other police jurisdictions in the State are entitled to a
voice "equally effective" with the residents of the municipalities
themselves in the election of the officials responsible for
governing the municipalities.
In my judgment, they are not. A State or city is free under the
Constitution to require that "all applicants for the vote actually
fulfill the requirements of bona fide residence."
Carrington v.
Rash, 380 U. S. 89,
380 U. S. 96.
While it is not free to draw residency lines which deny the
franchise to individuals who "are just as interested in and
connected with electoral decisions . . . as are their neighbors"
who are entitled to vote,
Evans v. Cornman, supra at
398 U. S. 426,
the Alabama statutes, at least on their face, do not do so. The
powers of extraterritorial jurisdiction granted by the challenged
statutes are limited. Tuscaloosa, for example, does not tax the
residents of Holt, nor does it control the zoning of their property
or the operation of their schools. Indeed, many of the powers
traditionally exercised by municipalities -- the provision of
parks, hospitals, schools, and libraries and the construction and
repair of bridges and highways -- are entrusted here to the county
government, which is fully representative of Holt. Nor is
Page 439 U. S. 78
there any claim that residency lines have generally been drawn
invidiously, or that residents of the police jurisdictions have
been charged unreasonable costs for the services they.receive. In
sum, appellants have shown no more than that they and all residents
of police jurisdictions in Alabama are subject to some -- but by no
means all -- of the regulations and services afforded by the cities
to their residents, in return for which they pay license fees half
as great as those paid by city residents. Such a showing is plainly
insufficient to justify a holding that the Alabama statutes are
unconstitutional and cannot be applied anywhere in the State.
This is all that the Court decides today. For this suit was
brought under the then-applicable three-judge court jurisdiction as
a challenge to the constitutionality of the Alabama statutes.
[
Footnote 2/2] Appellants did not
merely challenge the statutes as applied in the Tuscaloosa police
jurisdiction. Rather, they sought to represent all Alabama
residents living in contiguous zones, and to have the statutes at
issue here declared unconstitutional in all their applications
throughout the State. It was for this very reason that the Court of
Appeals for the Fifth Circuit concluded that three-judge court
jurisdiction was proper in this case.
See Holt Civic Club v.
Tuscaloosa, 525 F.2d 653, 655 (175). And it is for this reason
that our holding is necessarily a limited one. The statutory scheme
created by the Alabama Legislature is not unconstitutional by its
terms, but it may well be, as the opinion of the Court recognizes,
ante at
439 U. S. 72-73,
n. 8, that that scheme or another much like it might sometimes
operate to deny the franchise to individuals who share the
interests of their voting neighbors. No such question, however, is
presented by this appeal from the decision of the three-judge
District Court.
See Moody v.
Page 439 U. S. 79
Flowers, 387 U. S. 97;
Rorick v. Board of Comm'rs, 307 U.
S. 208.
[
Footnote 2/1]
I recognize that there is a difference between a suburb's
decision to contract with a nearby city and a decision by the state
legislature requiring all suburbs to do so. In some situations,
that difference might justify a holding that a particular
extraterritorial delegation of power is unconstitutional. It does
not, however, justify the view that all such delegations are
invalid.
[
Footnote 2/2]
28 U.S.C. § 2281 (1970 ed.), repealed by Pub.L. 9381,
§ 1, Aug. 12, 1976, 90 Stat. 1119.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE
MARSHALL join, dissenting.
Alabama creates by statute an area of "police jurisdiction"
encompassing all adjoining territory within three miles of the
corporate limits of cities with a population of 6,00 or more.
Within this police jurisdiction Alabama law provides that
"[o]rdinances of a city . . . enforcing police or sanitary
regulations and prescribing fines and penalties for violations
thereof shall have force and effect. . . ."
Ala.Code § 11-4010 (1975). [
Footnote 3/1] Alabama law provides in addition that a
city
"may fix and collect licenses for any business, trade or
profession done within the police jurisdiction of such city. . .
provided, that the amount of such licenses shall not be more than
one half the amount charged and collected as a license for like
business, trade or profession done within the corporate limits of
such city. . . ."
Ala.Code § 11-51-91 (1975). [
Footnote 3/2] At the time this lawsuit commenced on
August 7, 1973, Alabama vested jurisdiction of the prosecution of
breaches of municipal ordinances occurring within a police
jurisdiction in a recorder's court, [
Footnote 3/3] the recorder being elected by a city's
board of commissioners. Ala.Code, Tit. 37, § 584 (1958).
[
Footnote 3/4]
Page 439 U. S. 80
Appellants are the Holt Civic Club and seven residents of the
unincorporated community of Holt, which lies within the police
jurisdiction of the city of Tuscaloosa, Ala. [
Footnote 3/5] Although appellants are thus subject to
Tuscaloosa's police and sanitary ordinances, to the jurisdiction of
its municipal court, [
Footnote 3/6]
and to the requirements of its licensing fees, appellants are not
permitted to vote in Tuscaloosa's municipal elections, or to
participate in or to initiate Tuscaloosa's referenda or recall
elections. Appellants claim that this disparity "infringes on their
constitutional right (under the due process and equal protection
clauses) to a voice in their government." Complaint � 11.
The three-judge District Court below dismissed appellants' equal
protection and due process claims. [
Footnote 3/7] Without reaching the due process issue, I
would reverse the judgment of the District Court and hold that
appellants' equal protection claim should have been sustained.
It is, of course, established that, once a
"franchise is granted to the electorate, lines may not be drawn
which are inconsistent with the Equal Protection Clause of the
Fourteenth Amendment."
Harper v. Virginia Bd. of Elections, 383 U.
S. 663,
383 U. S. 665
(1966). Because "statutes distributing the franchise
Page 439 U. S. 81
constitute the foundation of our representative society,"
Kramer v. Union Free School Dist., 395 U.
S. 621,
395 U. S. 626
(1969), we have subjected such statutes to "exacting judicial
scrutiny."
Id. at
395 U. S. 628. [
Footnote
3/8] Indeed,
"if a challenged statute grants the right to vote to some
citizens and denies the franchise to others, 'the Court must
determine whether the exclusions are
necessary to promote
a
compelling state interest.' [
Kramer v. Union Free
School Dist., 395 U.S.] at
395 U. S.
627 (emphasis added)."
Dunn v. Blumstein, 405 U. S. 330,
405 U. S. 337
(1972). The general rule is that,
"whenever a state or local government decides to select persons
by popular election to perform governmental functions, the Equal
Protection Clause of the Fourteenth Amendment requires that each
qualified voter must be given an equal opportunity to participate
in that election. . . ."
Hadley v. Junior College Dist., 397 U. S.
50,
397 U. S. 56
(1970).
Our decisions before today have held that bona fide residency
requirements are an acceptable means of distinguishing qualified
from unqualified voters.
Dunn v. Blumstein, supra at
405 U. S. 343.
The Court holds today, however, that the restriction of the
franchise to those residing within the corporate limits of the city
of Tuscaloosa is such a bona fide residency requirement. The Court
rests this holding on the conclusion that "a government unit may
legitimately restrict the right to participate in its political
processes to those who reside within its borders."
Ante at
439 U. S. 68-69.
The Court thus insulates the Alabama statutes challenged in this
case from the strict judicial scrutiny ordinarily applied to state
laws distributing the franchise. In so doing, the Court cedes to
geography a talismanic significance contrary to the theory and
meaning of our past voting rights cases.
We have previously held that, when statutes distributing the
franchise depend upon residency requirements, state law
Page 439 U. S. 82
characterizations of residency are not controlling for purposes
of the Fourteenth Amendment.
See, e.g., Evans v. Cornman,
398 U. S. 419
(1970);
Carrington v. Rash, 380 U. S.
89 (1965). Indeed,
Dunn v. Blumstein, supra,
was careful to exempt from strict judicial scrutiny only bona fide
residency requirements that were "appropriately defined and
uniformly applied." 405 U.S. at
405 U. S. 343.
The touchstone for determining whether a residency requirement is
"appropriately defined" derives from the purpose of such
requirements, which, as stated in
Dunn, is "to preserve
the basic conception of a political community."
Id. at
405 U. S. 344.
At the heart of our basic conception of a "political community,"
however, is the notion of a reciprocal relationship between the
process of government and those who subject themselves to that
process by choosing to live within the area of its authoritative
application. [
Footnote 3/9]
Cf.
Avery v. Midland County, 390 U. S. 474,
390 U. S. 485
(1968). Statutes such as those challenged in this case, which
fracture this relationship by severing the connection between the
process of government and those who are governed in the places of
their residency, thus undermine the very purposes which have led
this Court in the past to approve the application of bona fide
residency requirements.
There is no question but that the residents of Tuscaloosa's
police jurisdiction are governed by the city. [
Footnote 3/10] Under Alabama
Page 439 U. S. 83
law, a municipality exercises "governing" and "lawmaking" power
over its police jurisdiction.
City of Nomewood v. Wofford Oil
Co., 232 Ala. 634, 637, 169 So. 288,-290 (1936). Residents of
Tuscaloosa's police jurisdiction are subject
Page 439 U. S. 84
to license fees exacted by the city, as well as to the city's
police and sanitary regulations, which can be enforced through
penal sanctions effective in the city's municipal court.
See
Birmingham v. Lake, 243 Ala. 367, 372, 10 So. 2d 24, 28
(1942). The Court seems to imply, however, that residents of the
police jurisdiction are not governed enough to be included within
the political community of Tuscaloosa, since they are not subject
to Tuscaloosa's powers of eminent domain, zoning,
Page 439 U. S. 85
or
ad valorem taxation.
Ante at
439 U. S. 73 n.
8. But this position is sharply contrary to our previous holdings.
In
Kramer v. Union Free School Dist., 395 U.
S. 621 (1969), for example, we held that residents of a
school district who neither owned nor leased taxable real property
located within the district, or were not married to someone who
did, or were not parents or guardians of children enrolled in a
local district school, nevertheless were sufficiently affected by
the decisions of the local school board to make the denial of their
franchise in local school board elections a violation of the Equal
Protection Clause. Similarly, we held in
Cipriano v. City of
Houma, 395 U. S. 701
(1969), that a Louisiana statute limiting the franchise in
municipal utility system revenue bond referenda to those who were
"property taxpayers" was unconstitutional because all residents of
the municipality were affected by the operation of the utility
system.
See Phoenix v. Kolodziejski, 399 U.
S. 204 (1970).
The residents of Tuscaloosa's police jurisdiction are vastly
more affected by Tuscaloosa's decisionmaking processes than were
the plaintiffs in either
Kramer or
Cipriano
affected by the decisionmaking processes from which they had been
unconstitutionally excluded. Indeed, under Alabama law,
Tuscaloosa's authority to create and enforce police and sanitary
regulations represents an extensive reservoir of power "to prevent,
an anticipation of danger to come, . . . and, in so doing, to curb
and restrain the individual tendency."
Gilchrist Drug Co. v.
Birmingham, 234 Ala. 204, 208, 174 So. 609, 612 (1937).
See Cooper v. Town of Valley Head, 212 Ala. 125, 126, 101
So. 874, 875 (1924). A municipality, for example, may use its
police powers to regulate, or even to ban, common professions and
businesses.
"In the exertion and application of the police power, there is
to be observed the sound distinction as to useful and harmless
trades, occupations and businesses and as to businesses,
occupations and trades recognized as hurtful to public morals,
public safety,
Page 439 U. S. 86
productive of disorder or injurious to public good. In applying
it to the class last mentioned, it may be exerted to destroy."
Chappell v. Birmingham, 236 Ala. 363, 365, 181 So. 906,
907 (1938). The Court today does not explain why being subjected to
the authority to exercise such extensive power does not suffice to
bring the residents of Tuscaloosa's police jurisdiction within the
political community of the city. Nor does the Court in fact provide
any standards for determining when those subjected to
extraterritorial municipal legislation will have been "governed
enough" to trigger the protections of the Equal Protection
Clause.
The criterion of geographical residency relied upon by the Court
is of no assistance in this analysis. Just as a State may not
fracture the integrity of a political community by restricting the
franchise to property taxpayers, so it may not use geographical
restrictions on the franchise to accomplish the same end. This is
the teaching of
Evans v. Cornman. Evans held,
contrary to the conclusion of the Maryland Court of Appeals, that
those who lived on the grounds of the National Institutes of Health
(NIH) enclave within Montgomery County were residents of Maryland
for purposes of the franchise. Our decision rested on the grounds
that inhabitants of the enclave were "treated as state residents in
the census and in determining congressional apportionment," 398
U.S. at
398 U. S. 421,
and that
"residents of the NIH grounds are just as interested in and
connected with electoral decisions as they were prior to 1953, when
the area came under federal jurisdiction, and as are their
neighbors who live off the enclave."
Id. at
398 U. S. 426.
Residents of Tuscaloosa's police jurisdiction are assuredly as
"interested in and connected with" the electoral decisions of the
city as were the inhabitants of the NIH enclave in the electoral
decisions of Maryland. True, inhabitants of the enclave lived
"within the geographical boundaries of the State of Maryland," but
appellants in this case similarly reside within the geographical
boundaries of Tuscaloosa's
Page 439 U. S. 87
police jurisdiction. They live within the perimeters of the
city's "legislative powers."
City of Leeds v. Town of
Moody, 294 Ala. 496, 501,
319 So. 2d
242, 246 (1975).
The criterion of geographical residency is thus entirely
arbitrary when applied to this case. It fails to explain why,
consistently with the Equal Protection Clause, the "government
unit" which may exclude from the franchise those who reside outside
of its geographical boundaries should be composed of the city of
Tuscaloosa, rather than of the city together with its police
jurisdiction. It irrationally distinguishes between two classes of
citizens, each with equal claim to residency (insofar as that can
be determined by domicile or intention or other similar criteria),
and each governed by the city of Tuscaloosa in the place of their
residency.
The Court argues, however, that, if the franchise were extended
to residents of the city's police jurisdiction, the franchise must
similarly be extended to all those indirectly affected by the
city's actions. This is a simple
non sequitur. There is a
crystal-clear distinction between those who reside in Tuscaloosa's
police jurisdiction, and who are therefore subject to that city's
police and sanitary ordinances, licensing fees, and the
jurisdiction of its municipal court, and those who reside in
neither the city nor its police jurisdiction, and who are thus
merely affected by the indirect impact of the city's decisions.
This distinction is recognized in Alabama law,
cf. Roberson v.
City of Montgomery, 285 Ala. 421,
233
So. 2d 69 (1970), and is consistent with, if not mandated by,
the very conception of a political community underlying
constitutional recognition of bona fide residency requirements.
Appellants' equal protection claim can be simply expressed: the
State cannot extend the franchise to some citizens who are governed
by municipal government in the places of their residency, and
withhold the franchise from others similarly situated, unless this
distinction is necessary to promote a compelling state interest. No
such interest has been articulated
Page 439 U. S. 88
in this case. Neither Tuscaloosa's interest in regulating
"activities carried on just beyond [its]
city limit' signs,"
ante at 439 U. S. 74,
nor Alabama's interest in providing municipal services to the
unincorporated communities surrounding its cities, ibid.,
are in any way inconsistent with the extension of the franchise to
residents of Tuscaloosa's police jurisdiction. Although a great
many States may presently authorize the exercise of
extraterritorial lawmaking powers by a municipality, [Footnote 3/11] and although the Alabama
statutes involved in this case may be of venerable age, neither of
these factors, as Reynolds v. Sims, 377 U.
S. 533 (1964), made clear, can serve to justify
practices otherwise impermissible under the Equal Protection Clause
of the Fourteenth Amendment.
Therefore, since the statutes challenged by appellants
distinguish among otherwise qualified voters without a compelling
justification, I would reverse the judgment of the District Court
and hold the challenged statutes to be in violation of the Equal
Protection Clause.
[
Footnote 3/1]
At the time this lawsuit commenced, this statute was codified at
Ala.Code, Tit. 37, § 9 (1958).
[
Footnote 3/2]
At the time appellants filed their complaint, this statute was
found at Ala.Code, Tit. 37, § 733 (1958). Minor changes in
wording were effected during recodification.
[
Footnote 3/3]
Alabama Code, Tit . 37, § 585 (1958) provided:
"It shall be the duty of the recorder to keep an office in the
city, and hear and determine all cases for the breach of the
ordinances and by-laws of the city that may be brought before him,
and he shall make report, at least once a month, of all fines,
penalties and forfeitures imposed by him, or by any councilman in
his stead. Such recorder is especially vested with and may exercise
in the city and within the police jurisdiction thereof, full
jurisdiction in criminal and quasi criminal matters, and may impose
the penalties prescribed by ordinance for the violation of
ordinances and by-laws of the city, and shall have the power of an
ex-officio justice of the peace, except in civil matters. . .
."
[
Footnote 3/4]
On December 27, 1973, recorder's courts were abolished in
Alabama and replaced by municipal courts having virtually identical
jurisdiction.
See Ala.Code § 12-14-1 (1975).
Municipal judges "shall be appointed and vacancies filled by the
governing body of the municipality. . . ." Ala.Const., Amdt. No.
328, § 6.065.
[
Footnote 3/5]
Tuscaloosa contains 65,773 residents, while the police
jurisdiction surrounding the city contains between 16,000 and
17,000 residents.
See App. 17-19.
[
Footnote 3/6]
See 439 U.S.
60fn3/4|>n. 4,
supra.
[
Footnote 3/7]
The court granted appellants leave
"to further amend within 45 days to specify particular
ordinances of the City of Tuscaloosa which are claimed to deprive
plaintiffs of liberty or property."
[
Footnote 3/8]
"[S]tatutes structuring local government units receive no less
exacting an examination merely because the state legislature is
fairly elected.
See Avery v. Midland County, 390 U. S.
474,
390 U. S. 481 n. 6
(1968)."
Kramer v. Union Free School Dist., 395 U.S. at
395 U. S. 628
n. 10.
[
Footnote 3/9]
The Court apparently accepts this proposition by strongly
implying,
ante at
439 U. S. 73 n. 8, that
"a situation in which a city has annexed outlying territory in
all but name, and is exercising precisely the same governmental
powers over residents of surrounding unincorporated territory as it
does over those residing within its corporate limits"
would not "pass constitutional muster."
[
Footnote 3/10]
Appellants have included in their brief an unchallenged addendum
listing the ordinances of the city of Tuscaloosa, Code of
Tuscaloosa (1962, Supplemented 1975), that have application in its
police jurisdiction:
"
Licenses:"
"4-1 ambulance"
"9-4, 9-18, 9-33 bottle dealers"
"19-1 junk dealers"
"20-5 general business license ordinance"
"20-67 florists"
"20-102 hotels, motels, etc."
"20-163 industry"
"
Buildings:"
"10-1 inspection service enforces codes"
"10-10 regulation of dams"
"10-21 Southern Standard Building Code adopted"
"10-25 building permits"
"13-3 National Electrical Code adopted"
"14-23 Fire Prevention Code adopted"
"14-65 regulation of incinerators"
"14-81 discharge of cinders"
"Chapter 21A mobile home parks"
"25-1 Southern Standard Plumbing Code adopted"
"33-79 disposal of human wastes"
"33-114, 118 regulation of wells "
"
Public Health: "
"5-4 certain birds protected"
"5-4C, 42, 55 dogs running at large and bitches in heat
prohibited"
"14-4 no smoking on buses"
"14-15 no self-service gas stations"
"15-2 regulation of sale of produce from trucks"
"15-4 food establishments to use public water supply"
"15-16 food, meat, milk inspectors"
"15-37 thru 40 regulates boardinghouses"
"15-52 milk code adopted"
"17-5 mosquito control"
"
Traffic Regulations:"
"22-2 stop & yield signs may be erected by chief of
police"
"22-3 mufflers required"
"22-4 brakes required"
"22-5 inspection of vehicle by police"
"22-6 operation of vehicle"
"22-9 hitchhiking in roadway prohibited"
"22-9.1 permit to solicit funds on roadway"
"22-11 impounding cars"
"22-14 load limit on bridges"
"22-15 police damage stickers required after accident"
"22-25 driving while intoxicated"
"22-26 reckless driving"
"22-27 driving without consent of owner"
"22-33 stop sign"
"22-34 yield sign"
"22-38 driving across median"
"22-40 yield to emergency vehicle"
"22-42 cutting across private property"
"22-54 general speed limit"
"22-72 thru 78 truck routes"
"
Criminal Ordinances:"
"23-1 adopts all state misdemeanors"
"23-7.1 no wrecked cars on premises"
"23-15 nuisances"
"23-17 obscene literature"
"23-20 destruction of plants"
"23-37 swimming in nude"
"23-38 trespass to boats"
"26-51 no shooting galleries in the police jurisdiction or
outside"
"fire limits (downtown area)"
"28-31 thru 39 obscene films"
Miscellaneous:
"20-120 thru 122 cigarette tax"
"24-31 public parks and recreation"
"26-18 admission tax"
Chapter 29 regulates public streets
"30-23 taxis must have meters."
[
Footnote 3/11]
See Comment, The Constitutionality of the Exercise of
Extraterritorial Powers by Municipalities, 45 U.Chi.L.Rev. 151
(1977).