Akers v. State ex rel. Witcher

• Decision Date: 07 November 1968
• Docket Number: 6 Div. 337
• Citation: 283 Ala. 248,215 So.2d 578
• Parties: John R. AKERS, Jr. v. STATE of Alabama ex rel. George WITCHER.
• Court: Alabama Supreme Court

Page 578

215 So.2d 578

283 Ala. 248

John R. AKERS, Jr. v. STATE of Alabama ex rel. George WITCHER.

6 Div. 337.

Supreme Court of Alabama.

Nov. 7, 1968.

Dumas, O'Neal & Hayes and G. W. Nicholson, Birmingham, for appellant.

Witcher & Young, Birmingham, for appellee.

SIMPSON, Justice.

This case was initially assigned to the late, lamented Justice John L. Goodwyn, and recently reassigned to the writer for study and preparation of the opinion.

In the trial court this action was a quo warranto proceeding instituted by George Witcher, a citizen of the City of Gardendale, a municipality of Alabama, located in Jefferson County, Against John R. Akers, Jr., to have determined his right to serve as alderman of the City of Gardendale.

The substance of the petition for writ of quo warranto was that Akers was ineligible to hold the office as alderman of the City of Gardendale because he was at the time of his election and continued to be at the time of the filing of the petition, an employee of Southern Bell Telephone and Telegraph Company, a corporation holding a franchise from the City of Gardendale, which involved the use of the streets of that municipality.

Quo warranto is the proper procedure to test whether or not a party is eligible to hold public office.--Title 7, § 1136; State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370; State ex rel. Norrell v. Key, 276 Ala. 524, 165 So.2d 76.

The case submitted below on a stipulation was, in part, as follows:

'On June 10, 1964, John R. Akers duly qualified to run for the office of alderman of the City of Gardendale, Ward 4. In a run-off election held September 15, 1964, Akers received a majority vote over his opponent. He was declared duly elected as alderman from Ward 4 for the term beginning October 5, 1964, and ending four years later, by the City Council of the City of Gardendale, which on September 17, 1964, canvassed the returns and declared the results of the election held on September 15, 1964. He was duly installed as alderman on October 5, 1964, and took his oath of office along with other newly elected aldermen and mayor of the City of Gardendale. Since that date, he had been serving as councilman, Ward 4, City of Gardendale.

'John R. Akers is and has been for the past 17 years an employee of Southern Bell Telephone and Telegraph Company.'

In addition to the stipulation, the court had before it various exhibits, including ordinances passed by the City of Gardendale. The ordinance granting to Southern Bell Telephone and Telegraph Company the right to 'construct, maintain and operate lines of telephone and telegraph, including the necessary poles, conduits, cables, fixtures and electrical conductors upon, along, under and over the public roads, streets and highways of the City of Gardendale, Alabama, as its business may from time to time require, provided that all poles shall be neat and symmetrical', was made an exhibit to the stipulation.

The essential question in this case is whether or not Title 37, § 413 applies to appellant as alderman of the City of Gardendale. This section provides:

'No officer of any municipality shall, during his term of office, be employed, professionally or otherwise, by any corporation holding or operating a franchise granted by the city or the state involving the use of the streets of any municipality.'

The single question, then, is whether or not Akers as alderman of the City of Gardendale is an 'officer' of that municipality within the meaning of this statute.

We think clearly that aldermen of municipalities were included within the meaning of 'officers' as used by the legislature in Title 37, § 413. We are, of course, in this instance guided by the principle that statutes should be construed to effect the intention of the legislature.--City of Montgomery v. Montgomery City Lines, Inc., 254 Ala. 652, 49 So.2d 199.

Additionally, we should, in construing legislative enactments, look not only to the statute itself but to the purpose and object of the enactment as well, and its relation to other laws.

It is our conclusion that had the legislature intended to exclude aldermen from the definition of officers as that word is used in Title 37, § 413, it would have said so as it did in Title 37, § 409. In the latter statute the language used by the legislature is as follows:

'The salaries of All officers of cities Except aldermen and councilmen, shall be fixed * * *.' (Emphasis added).

Here the legislature deemed it...