
    MARSHALL COUNTY BOARD OF EDUCATION, et al. v. CITY OF ALBERTVILLE, Alabama, et al.
    84-936.
    Supreme Court of Alabama.
    Aug. 23, 1985.
    Rehearing Denied Nov. 8, 1985.
    
      Donald B. Sweeney, Jr. of Rives & Peterson, Birmingham, for appellant.
    J.R. Brooks of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   PER CURIAM.

The Marshall County Board of Education, and the superintendent and members of the Board of Education of Marshall County, plaintiffs below, appeal from the final judgment in favor of all named defendants. The trial court’s document styled “Findings of Fact and Conclusions of Law, and Final Order” reads as follows:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW AND FINAL ORDER
“This case was initiated on February 26, 1985, by the Marshall County Board of Education, its Superintendent and Board members seeking declaratory and injunctive relief to prevent the establishment by the City of Albertville, its May- or, Council and appointed city school board members from forming and implementing a city school system. Plaintiffs seek a declaratory judgment declaring the actions of the defendants illegal, unconstitutional and in violation of an agreement with the Marshall County Board of Education. Plaintiffs also seek an injunction preventing the defendants from establishing and maintaining an independent city school system.
“On March 11, 1985, defendants filed an answer admitting that prior to April, 1945, the City of Albertville had a Board of Education. Defendants further admitted that in 1945 the Albertville City Board of Education and the Marshall County Board of Education consolidated the administration of their school systems. Defendants further admitted that in 1985 the City of Albertville established a Board of Education and appointed its members. Defendants assert that they were authorized to take this action by Code of Alabama, § 16-11-2.
“The plaintiffs filed a Motion for Summary Judgment. The defendants filed a Motion for Judgment on the Pleadings and a Motion for Summary Judgment. The parties, in support of their motions, submitted two affidavits of Dr. B.D. Whetstone, two affidavits of Dr. Kenneth Wilson, the deposition of Dr. Kenneth Wilson and the deposition of Mr. Randall Brothers. The court held a hearing on the motions on May 27, 1985. At the hearing attorneys for both parties informed the court that neither had any further evidence to present or cross-examination to conduct. Both submitted their cases on the evidence before the court at that time. Therefore, this order does not address Summary Judgment or Judgment on the Pleadings. Instead, it is a final order taking into account all of the evidence before the court.
“FINDINGS OF FACT AND CONCLUSIONS OF LAW
“1. Code of Alabama, § 16-11-1 (1975), is a successor statute to Code of Alabama, Title 52 § 148 (1940). The only significant difference between the two statutes is that, under § 148, to constitute a city for purposes of having a city board of education, a municipality was required to have 2,500 residents, whereas under § 16-11-1 5,000 residents are required.
“2. Code of Alabama, § 16-11-2 (1975), is the successor statute to Title 52, § 151 (1940). This section authorizes cities to form and maintain a separate school system. The only limitation on that authority is that the city must have the population as set forth in § 16-11-1 (now 5,000).
“3. Prior to 1945, the City of Albert-ville had a separate school system. However, in 1945, pursuant to Code of Alabama, Title 52, § 82 (now § 16-8-17), the Albertville City Board of Education and the Marshall County Board of Education consolidated under the administration of the Marshall County Board of Education.
“4. The Albertville City Schools remained under the supervision of the Mar-shall County Board of Education until January 26, 1985. On that date the Al-bertville City Council and its Mayor established a school system for the City of Albertville. On February 19, 1985, the City Council appointed five persons to serve as school board members.
“5. The City of Albertville used the proper means under § 16-11-2 to form a city school system. The court also finds that the City of Albertville has more than 5,000 inhabitants and is qualified under § 16-11-1 to have its own school system. Its action in forming a school system is in compliance with § 16-11-2.
“6. Since 1948, at least 22 other municipalities have used this same statute or its predecessor to break away from county school systems and establish separate city systems. At least to that extent, the facts of this case are not unique.
“7. School boards are, of course, creatures of statute. They may not be created or dissolved absent statutory authority. The plaintiffs contend that, because the Albertville City Board of Education consolidated with the Marshall County system in 1945, there is no statutory authority for the creation of a separate school system. Sections 16-11-1 and 16-11-2, however, contain only one limitation. The city must have 5,000 or more inhabitants. Albertville does. The statute contains no limitation or exception regarding previous consolidations. Therefore, the previous consolidation is irrelevant to the issue before the court. It is significant that the only change made in the statute in recent years was to increase the minimum population from 2,500 to 5,000. If the legislature had intended other limitations upon the power of cities to form and operate their school systems, they could have been placed in the statute at the time of the change in minimum population.
“8. The plaintiffs have argued that the defendants are estopped to form a separate school system because of the agreement to consolidate in 1945. The court, however, has concluded that defendants had a statutory right to form a separate system. Plaintiffs’ arguments regarding agreement and estoppel are unpersuasive.
“9. The court, by this opinion and order, does not decide whether the creation of a school system in Albertville is a good idea or a bad idea. That decision is appropriately left to public officials elected to make such decisions. It may very well be true, as plaintiffs argue, that two school systems may create a duplication of services causing both systems to suffer an economic hardship for a while. The statute, however, is clear. Regardless of the wisdom of the action, Albert-ville officials have acted within their statutory authority. Thus, injunctive relief is not appropriate.
“10. This case is only before the court on plaintiffs’ motion for declaratory relief and an injunction. Defendants have not at this point sought relief by petition for a writ of mandamus. The city, however, has a clear legal right to take the actions it has taken.
“Accordingly, it is ORDERED, ADJUDGED and DECREED that all relief requested by plaintiffs be and the same is hereby denied. The plaintiffs’ Complaint is dismissed. Costs are taxed to the plaintiffs.
“This the 4th day of June, 1985.
“/s/ William W. Cardwell, Jr. Circuit Judge”

We adopt the foregoing as the opinion of this Court.

AFFIRMED.

TORBERT, C.J., and FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

MADDOX, ALMON, BEATTY and ADAMS, JJ., dissent.

MADDOX, Justice

(dissenting).

The real question presented here is whether there is a statutory procedure for a city to re-establish an independent school system when it has previously formed an independent school and then abolished it through consolidation with the county school system. There is no statutory scheme for a city to re-establish a city school system once that system has been abolished by merger. I believe the majority’s reliance upon Code 1975, §§ 16-11-1 and 16-11-2 as the authority to re-establish a city system that has been merged is completely misplaced. Those sections apply only when a city elects to establish a separate school system, not to re-establish one that has been merged.

As I view the law, the legislature has provided in Code 1975, § 16-8-17, the mechanism for abolishing a school system, and the particulars of that mechanism convince me that a city cannot opt in and out of a county system at will.

Code 1975, § 16-8-17, provides as follows:

“Whenever a county board of education and the city board or boards of education in the county shall deem it advisable to consolidate the administration of their respective systems under the county board of education and shall reach an agreement to that effect through resolutions adopted by and recorded in the minutes of each board, which agreement shall provide for the payment of their respective indebtedness, said consolidation shall be made to become effective at the time designated in the resolutions providing for such consolidation; provided, that, if within 30 days after the adoption of said resolutions 25 percent of the qualified electors of the territory covered by either of the school systems concerned shall submit a protest in writing, the consolidation procedure shall be as follows: ... [The procedure for holding a referendum is then set out.]
“WHO MAY VOTE; RESULT OF ELECTION. — All qualified electors residing in the territories concerned shall have the right to vote and, if a majority of the qualified electors voting in the combined territories concerned shall vote in favor of the consolidation, the city board or boards of education shall stand abolished and thereafter the schools of the county and the schools of the city or cities involved shall be administered by the county board of education ..
“(b) The consolidation shall not operate to relieve any board of education, or other governing body, of liability for obligations previously incurred, or to impair rights existing prior to the consolidation. On the contrary, the agreement as to indebtedness shall be binding on both the county board of education and the board or boards of education of the city or cities whose school systems are consolidated; provided, that in the event of a consolidation, the county board of education shall have the right to compel the execution of contractual obligations made to either of the boards prior to consolidation. (School Code 1927, §§ 108-113; Acts 1935, No. 507, p. 1090, T. 52, § 82.”

The legislature specifically provided that an action to consolidate would be final, because a referendum was required and in § 16-8-17(a)(6) specifically stated that if a majority of the qualified electors vote for consolidation then "... the city board or boards of education shall stand abolished and thereafter the schools of the county and the city or cities involved shall be administered by the county board of education.” How much more emphatic could the legislature have been when it used the words “abolished” and “thereafter”? The effect of the majority’s holding is that the words “abolish” and “thereafter” do not prevent a re-establishment of a city system which has been consolidated.

The construction I make of our law is consistent with the construction made by courts in at least two other states:

In Connor v. Spellacy, 122 Conn. 36, 186 A. 648 (1936), the City of Hartford agreed to exercise its statutory right to consolidate the existing school districts into a consolidated school district effective July 1, 1934. Less than two years later, the City of Hartford wished to re-establish a school district in the city. The plaintiffs, citizens of Hartford, petitioned the court to declare that they had the right to re-establish the school districts as they existed prior to the consolidation. Defendants demurred to the complaint on the grounds that there was no statute authorizing the city to re-establish school districts following consolidation. The trial court sustained the demurrer, concluding the plaintiffs had not stated a cause of action since there was no statute granting cities the right to re-establish school districts. On appeal, the highest court in Connecticut noted that the intention to withdraw and terminate the city’s power to re-establish the districts after consolidation was plainly evidenced by the omission of an enabling provision to that effect. In Durgin v. Brown, 37 N.J. 189, 180 A.2d 136 (1962), the Borough of West-wood and Washington Township formed a consolidated school district. Some years later, Westwood became discontented with the consolidation because of the associated tax burden. The electorate in the school district voted in a referendum to build a high school outside of Westwood. The city governing officials of Westwood chose to deconsolidate the school district rather than support the referendum. However, the New Jersey Supreme Court said that there was no statutory authority for the city to deconsolidate the school district and ruled the city must obey the prior decision to consolidate.

I believe the majority has erred in applying the law; therefore, I must respectfully dissent.

ALMON, BEATTY and ADAMS, JJ., concur.  