Alabama Ed. Ass'n v. Board of Trustees of University of Alabama

• Decision Date: 06 July 1979
• Parties: ALABAMA EDUCATION ASSOCIATION et al. v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA et al. 78-1.
• Court: Alabama Supreme Court

Page 258

374 So.2d 258

ALABAMA EDUCATION ASSOCIATION et al. v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA et al.

78-1.

Supreme Court of Alabama.

July 6, 1979.

Rehearing Denied Aug. 17, 1979.

Joseph E. Carr, IV, Montgomery, for appellants.

T. W. Thagard, Jr., and David R. Boyd, Montgomery, for appellees.

PER CURIAM.

This appeal is from an order of the Circuit Court of Montgomery County granting appellees' motion for a preliminary injunction. We affirm.

The appellees sought the preliminary injunction prohibiting the enforcement of § 5 of Act No. 12 of the Second Special Session of the 1978 Alabama Legislature. (Act No. 12 is the Education Appropriation Budget for the 1978-79 fiscal year.) The challenged provision of this Act conditions its appropriations upon appellees' providing, at the employee's request, a dues check-off for certain "educator's . . . or labor organization(s)." Specifically, § 5 of Act No. 12 provides:

"Of the funds appropriated in Section 5 herein for colleges, universities and schools listed below, No institution shall be eligible to receive appropriations provided herein Unless such institution provides its employees, upon their request, payroll deduction of dues from at least seven (7) different pay periods for the local affiliate of any general incorporated statewide educator's organization or labor organization. Deduction of dues shall be made only upon written request of the employee and shall not be construed to grant any organization any bargaining rights upon behalf of the institution's employees. Deduction of dues shall not be required for any organization which serves only persons employed in a particular subject matter area or that is not affiliated with a public statewide employee organization which complies with Alabama statutes." (Emphasis ours.)

Appellees (the Boards of Trustees of the University of Alabama, Auburn University, the University of South Alabama, Troy State University, and Livingston University) challenge the constitutionality of § 5, alleging that it violates § 45 and § 71, Ala.Constitution. Section 45 provides:

" . . . Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes . . . ."

Section 71 provides:

"The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for the public schools. The salary of no officer or employe shall be increased in such bill, nor shall any appropriation be made therein for any officer or employe unless his employment and the amount of his salary have already been provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject."

Additionally, the University of Alabama and Auburn University challenge the validity of § 5 on the ground that it is an unconstitutional interference with the management and control of these two universities because the management and control of these universities are expressly established in boards of trustees by § 264 and Amendment No. 161. They argue that, because of the constitutional status of the University of Alabama and Auburn University Boards of Trustees, the Legislature cannot dictate their labor relations and personnel policies by a legislative act. (The other appellees do not raise this issue, presumably because the Boards of Trustees of those schools are established and authorized by legislative act, and not by a constitutional provision.)

In granting appellees' motion for preliminary injunction, the trial court stated that appellees had established a strong probability of prevailing on the merits, i. e., that the "check-off" provision violates the Constitution of 1901. The trial court held that the preliminary injunction would maintain the Status quo pending final disposition, and that the failure to grant the requested relief would cause irreparable harm to the plaintiff institutions which depend upon State funding for their continued operation. We agree.

Initially, we define the perimeter of our scope of review in an appeal from an order granting a motion for preliminary injunction. Wide discretion is accorded the trial judge hearing the application and deciding whether to grant a temporary injunction and his action will not be disturbed on appeal unless he abuses his discretion. Willowbrook Country Club, Inc. v. Ferrell, 286 Ala. 281, 239 So.2d 298 (1970). His discretion is a legal or judicial one subject to review for abuse or improper exercise, as where there has been a violation of some established rule of law or principle of equity, or a clear misapprehension of the controlling law. Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So.2d 872 (1975). Where an abuse of discretion is clearly made to appear, the appellate court will reverse the order or decree. Lorch, Inc.

While the ultimate test on appeal is whether the trial court abused its discretion, its application must find its source in the initial issues (with their corresponding presumptions and burdens) presented to the trial court. Ultimately, here, the principal issue is the constitutional validity of a challenged portion of a statute. Therefore, presumably, the Act is constitutionally valid. Houston County Board of Revenue v. Poyner, 236 Ala. 384, 182 So. 455 (1938). At 73 Am.Jur.2d, Statutes, § 123, it is stated:

"The rule that every legislative act is presumed to be constitutional and every intendment must be indulged by the courts in favor of its validity, is applicable to statutes claimed to be unconstitutional as in violation of the provision prohibiting statutes from containing more than one subject or object . . . ."

Furthermore, the law in this State is settled that, on a motion for preliminary injunction, the burden is on complainant to satisfy the court that there is at least a reasonable probability of ultimate success on the merits of the controversy. Postal Telegraph-Cable Co. v. City of Mobile, 179 F. 955 (C.C.S.D. Ala. 1909).

As stated heretofore, the granting or refusing to grant a preliminary injunction is within the sound discretion of the trial judge. Watts v. Victory, 333 So.2d 560 (Ala.1976). To establish an abuse of that discretion, an appellant must show that the trial judge committed a Clear and palpable error which, unless corrected, will constitute a Manifest injustice. Id.

We find No such plain and palpable error here, nor manifest injustice. We do not think it is apparent that the appellees have no possibility of prevailing on the merits. We must remember that this is an appeal from grant of preliminary injunction, not an appeal after trial on the merits. At this juncture, it appears to us that the Act in question Does violate § 45 or § 71 of the Constitution.

The dissent states § 45 does not apply because Act No. 12 is a general appropriation bill which is specifically excepted from § 45. The dissent concludes that Act No. 12 is a general appropriation bill because § 71 says the general appropriation bill shall embrace nothing but appropriations for the three branches of government, for interest on the public debt, and "for the public schools." That conclusion does not necessarily follow, however. The fact that appropriations for "the public schools" may be included in a general appropriation bill does not mean that all bills appropriating money for education are general appropriation bills.

The phrase "the public schools," as used in § 71, does not include universities or colleges. "Public schools" are those schools formerly referred to as "common schools," schools which are provided for in §§ 256-260 of the Constitution. Opinion of the Justices, 229 Ala. 98, 155 So. 699 (1934); Elsberry v. Seay, 83 Ala. 614, 3 So. 804 (1888). These schools are for the benefit of children between the ages of seven and twenty-one years, encompassing, in common terminology, grammar schools and high schools. Adult schools are not a part of the constitutional "public school" system. State Tax Commission v. County Board of Education, 235 Ala. 388, 179 So. 197 (1938).

The appropriation made in Act No. 12, not being an appropriation for "public schools" as that term has been defined, is not an appropriation authorized by § 71 to be made in a general appropriation bill, but is an appropriation falling under that part of § 71 which states: "All other appropriations shall be made by separate bills, each embracing but one subject." The requirements of this section and § 45 are met if the act has one general subject which is contained in its title. Opinion of the Justices, 275 Ala. 254, 154 So.2d 12 (1963).

There is no mention of "dues check-off" in the title to the bill, viz:

"To make annual appropriations for the support, maintenance, and development of public education in Alabama and for debt service and capital improvements for the fiscal year ending September 30, 1979."

The title gives No clue that "dues check-off" is dealt with. The "dues check-off" bears no relation whatsoever to the amount and purpose of the appropriation, or to the accounting and spending procedures to be followed in support of education.

Moreover, the education appropriation bill is for a One-year period, while the "dues check-off" provision seems to contemplate the creation of a permanent system affecting labor relations and university administrative procedures. The "dues check-off" is simply Not cognate or germane to the other provisions in the bill.

There is No warning or notice to the members of the legislature nor to the public that "dues check-off" is required as a Prerequisite to receiving an appropriation. See Bagby Elevator & Electric Co. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974).

If this Act is not violative of § 45 or § 71, then there is...