Alabama Advisory Opinions August 02, 2018: AGO 2018-045 (August 02, 2018)

Advisory Opinion Text

Honorable Walter B. Calton

Barbour County Attorney

Post Office Box 696

Eufaula, Alabama 36072

County Commissions - Courthouses - Courts - County Seat - Barbour County

The Barbour County Commission may not build a new courthouse located in the current city limits of Clayton but outside the city limits that existed at the time the city was named the county seat unless an election is held pursuant to section 41 of article II of the Recompiled Constitution of Alabama.

The procedures to be followed when conducting such an election are set out in sections 11-16-33 through 11-16-38 and sections 11-81-81 through 11-81-90 of the Code of Alabama.

Dear Mr. Calton:

This opinion of the Attorney General is issued in response to your request on behalf of the Barbour County Commission.

QUESTIONS

(1) May the Barbour County Commission build a new courthouse located in the county seat of Clayton but outside the city limits that existed at the time the city was named the county seat?

(2) If not, what procedures must the county engage in to be able to do so?

FACTS AND ANALYSIS

Your request states that, due to deficiencies in the two existing courthouses in the cities of Eufaula and Clayton, the Barbour County Commission intends to build a new courthouse in Clayton, which is the county seat. You further state that, although the original courthouse was built within Clayton's city limits as they existed when it was named the county seat, since that time the city limits have expanded and/or changed.

A county commission's duty and authority to build courthouses is derived from sections 11-14-10 and 11-3-11(a)(1) of the Code of Alabama. Ala. Code §§ 11-3-11(a)(1), 11-14-10 (2008). Section 11-14-10 requires the commission to "erect courthouses, jails, and hospitals and other necessary county buildings" and authorizes it to build a courthouse wherever circuit court is to be held. Ala. Code § 11-14-10 (2008). Furthermore, section 11-3-11(a)(1) gives the commission the "sole power to locate the courts in the rooms of the courthouse" and to "change the location of the courts." Ala. Code § 11-3-11(a)(1) (2008). Before 1901, the Legislature passed numerous local acts which granted county commissions the authority to establish courthouses in county seats and branch locations. Clayton was established as the county seat of Barbour County in 1833. 1833 Ala. Acts No. 82, 116. In 1879, the Legislature divided the county into two districts with circuit court to be held in Clayton during the first week of each term and in Eufaula the second week of each term. 1879 Ala. Acts No. 1879-106, 106-7.

A county commission's authority to designate locations for a courthouse, however, has been limited by constitutional provisions ratified since the passage of the local act dividing Barbour County into two districts. Section 41 of article II of the Recompiled Constitution of Alabama provides for removal of the courthouse or the county seat as follows:

No courthouse or county site shall be removed except by a majority vote of the qualified electors of said county, voting at an election held for such purpose, and when an election has once been held no other election shall be held for such purpose until the expiration of four years. . .

Ala. Const, art. II, § 41. The terms "courthouse" and "county site" as used in section 41 are synonymous with "seat of government." Pitts v. Culpepper, 157 So. 841, 842 (Ala. 1934).

Section 41.01 of article II of the Recompiled Constitution of Alabama provides for the establishment or abolition of branch courthouses as follows:

After the ratification of this amendment, the legislature shall not establish any branch courthouse or any division or branch of any court of record to be held at any place other than the county seat, nor shall the legislature abolish any branch courthouse now existing or abolish any division or branch of any court of record now existing, unless such proposal be first submitted to a vote of the qualified electors of the county or counties to be affected and is approved by a majority of those voting upon such proposition.

Ala. Const, art. II, § 41.01 (amend 81).

Sections 41 and 41.01 limit the authority of both the Legislature and county to change the status of courthouses located outside of a county seat. The Alabama Supreme Court has recognized that section 41.01's purpose "was to maintain the status quo in regard to the location of courthouses and the existing divisions or branches of courts of record within a county unless a majority of the qualified electors of the county first indicate their desire for a change." Opinion of the Justices No. 132, 259 Ala. 522, 523, 67 So.2d 153, 154 (1953). Under section 41, no new courthouse may be established without an election unless it is to be located in the county seat. Likewise, under section 41.01, no branch courthouse may be abolished without an election.

The Alabama Court of Civil Appeals addressed the independent authority of the county regarding the courthouse in Ex parte Lemon, 519 So.2d 1362 (Ala.Civ.App. 1987). In doing so, the Court noted that each county divided into separate divisions to be served by separate courthouses assigned to each territory had special legislation enacted before the ratification of sections 41 and 41.01. The Court held that section 11-3-11(a)(1) provided the Montgomery County Commission sufficient authority to construct a new courthouse building "in close proximity to the existing one" without the need for any special legislation. 519 So.2d at 1362-63.

The Alabama Supreme Court established a further limitation on a county commission's authority to change the locations of courthouses in Marengo County v. Matkin, 32 So. 669 (Ala. 1902). According to the Court, "when a city or town is selected as the county seat, the boundaries of such city or town, as they then exist, become the boundaries of the county seat, and the subsequent inclusion of more territory in such city or town does not enlarge the county seat." Id. at 670. Therefore, the "county seat" of Barbour County is limited to the land contained within Clayton's city limits as they existed in 1833 when it became the county seat.

Based on Matkin, the Barbour County Commission may not build a new courthouse located in the current city limits of Clayton but outside the city limits that existed at the time the city was named the county seat unless an election is held pursuant to section 41. Procedures governing the relocation of county seats and erection of new courthouses are set out in section 11-16-1, et seq., of the Code of Alabama. Ala. Code §§ 11-16-1 to 11-16-40 (2008). Procedures specifically tailored for when a new courthouse is to be built on lands in the city where the courthouse is located but outside the city limits as they existed when the county seat was established are set out in sections 11-16-33 through 11-16-38. Section 11-16-33 states as follows:

Whenever the county commission of any county shall determine that it is advisable to erect a new courthouse for such county on a site in the city or town where the courthouse is located, which site was not within the corporate limits of such city or town when such courthouse was first located therein, and shall pass a resolution to that effect, the courthouse may be erected on such new site if it shall be so decided by a vote of the people of the county at an election to be held as provided in this chapter.

Ala. Code § 11-16-33 (2008).

The specific procedures required for giving notice of the election, the preparation and form of the ballots, and the appointment of managers and officers to conduct the election are prescribed under sections 11-16-35 through 11-16-37. Section 11-16-37 further provides that "[i]n all other respects the laws relating to the holding of elections in counties to determine whether county bonds may be issued shall govern and apply to elections held under this chapter." Ala. Code § 11-16-37 (2008). These procedures are set out in sections 11-81-81 through 11-81-90 of the Code of Alabama. Ala. Code §§ 11-81-81 to 11-81-90 (2008).

CONCLUSION

The Barbour County Commission may not build a new courthouse located in the current city limits of Clayton but outside the city limits that existed at the time the city was named the county seat unless an election is held pursuant to section 41 of article II of the Recompiled Constitution of Alabama.

The procedures to be followed when conducting such an election are set out in sections 11-16-33 through 11-16-38 and sections 11-81-81 through 11-81-90 of the Code of Alabama.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact John Porter of my staff.

Sincerely,

STEVE MARSHALL, Attorney General.

G. WARD BEESON, III Chief, Opinions Section.