When there is no constitutional limitation, the legislature has full power to amend the charter of a municipal corporation at its discretion[i]. Amendments to a charter must be consistent with the Constitution, general law, and special law[ii].
A municipal corporation, being a creature of the legislature, cannot question the authority of the creator of its charter to amend the same, except in so far as the legislature attempts to exceed its own constitutional authority[iii].
The power to create and to destroy municipal corporations, and to enlarge or diminish their boundaries is held to be solely and exclusively the exercise of legislative power[iv].
The governing body of any municipality may by ordinance, enlarge the boundaries of the municipality to include territory within which all of the land is owned by a state agency, political subdivision, or public body[v].
The alteration of municipal boundaries is a state sovereign power which the Legislature may delegate to municipalities[vi]. However, some state constitutions expressly reserve the legislature’s power to alter or rearrange a municipality’s boundary as it sees fit, by prohibiting local laws that alter the charters of municipal corporations.
The legislature not only has authority to determine the territory and boundaries of various municipal corporations, but also to change or alter them by annexing or disconnecting territory, either with or without consent of the corporate authorities[vii].
Thus the legislature has power[viii]:
- to establish and to abolish municipalities,
- to provide for their government,
- to prescribe their jurisdiction and powers, and
- to alter or amend the same at any time.
However, the legislature is not authorized to violate other provisions of the constitution, expressed or implied.
A de facto government is one existing in fact, having effect even without a formal or legal basis[ix]. The de facto doctrine in the case of a municipal corporation is applicable not only where the whole legal existence of the municipal corporation is challenged, but also where there has been an abortive attempt to revise or reincorporate an existing de jure government[x].
Thus, the validity of a municipal corporation’s revised charter and of acts done pursuant to its provisions may not be collaterally questioned on the ground that the election at which it was adopted was inadequately advertised and the proposition was defectively submitted where there was a bona fide attempt to comply with the constitutional and statutory requirements.
A city does not lose its identity by adopting another form of government and a municipality transferred from one class to another remains the same public corporate entity[xi]. Thus, a change in the municipal organization by charter amendment or consolidation or in class or grade, in the absence of legal provisions to that effect, will not ordinarily result in a vacation of the offices.
In Brownsville v. Reid, 159 Tenn. 99 (Tenn. 1929), the court held that neither the repeal of the charter of a municipal corporation, nor a change of its name, nor an increase or diminution of its territory or population, nor a change in its mode of government, nor all these things combined, will destroy the identity, continuity or succession of the corporation, if the people and territory re-incorporated constituted an integral part of the corporation abolished.
Annexation is the adding of real property to the boundaries of an incorporated municipality, such addition making such real property in every way a part of the municipality[xii].
The power of annexation is fundamentally legislative and the judicial role in annexation cases is limited to that prescribed by statute[xiii]. A court’s duty when reviewing an annexation is to determine whether the municipality has exceeded its authority and met the conditions imposed by statute.
The Legislature, in the absence of specific constitutional limitations, has the power to detach, or authorize the detachment of, territory from municipalities[xiv]. However, some state constitutional provisions prohibit the territorial division of counties without a vote of electors of each county affected.
[i] Crump v. Snead, 134 N.C. App. 353 (N.C. Ct. App. 1999).
[ii] Vill. of Wellington v. Palm Beach County, 941 So. 2d 595 (Fla. Dist. Ct. App. 4th Dist. 2006).
[iii] Gretna v. Bailey, 141 La. 625 (La. 1917).
[iv] In re CITY OF PHOENIX of Certain Contiguous Terr., 52 Ariz. 65 (Ariz. 1938).
[v] Kennedy v. Town of Georgetown, 746 So. 2d 663 (La.App. 3 Cir. Oct. 13, 1999).
[vi] Kinslow Round-Up, Inc. v. City of Seminole (In re De-Annexation of Certain Real Prop. from Seminole), 2004 OK 60 (Okla. 2004).
[vii] Geweke v. Niles, 368 Ill. 463 (Ill. 1938).
[viii] State ex rel. Davis v. Stuart, 97 Fla. 69 (Fla. 1929).
[ix] Jordan v. Knox County, 213 S.W.3d 751, 774 (Tenn. 2007).
[x] Rothkopf v. Danbury, 156 Conn. 347 (Conn. 1968).
[xi] Germany v. Pope, 222 S.W.2d 172 (Tex. Civ. App. 1949).
[xii] Broward County v. City of Sunrise, 805 So. 2d 46 (Fla. Dist. Ct. App. 4th Dist. 2001).
[xiii] Town of Dyer v. Town of St. John Ind., 919 N.E.2d 1196 (Ind. Ct. App. 2010).
[xiv] City of Daphne v. City of Spanish Fort, 853 So. 2d 933, 941-942 (Ala. 2003).