Bates v. Baumhauer

• Decision Date: 22 February 1940
• Docket Number: 1 Div. 91.
• Court: Alabama Supreme Court
• Parties: BATES ET AL. v. BAUMHAUER.

194 So. 520

239 Ala. 255

BATES ET AL. v. BAUMHAUER.

1 Div. 91.

Supreme Court of Alabama

February 22, 1940

Rehearing Denied March 21, 1940.

Appeal from Circuit Court, Mobile County; D. H. Edington, Judge.

Bill in equity by Charles A. Baumhauer against Cecil F. Bates, as a member of the Board of Commissioners of the City of Mobile and the City of Mobile, for a declaratory judgment determining invalidity of certain statutes and the status and legal relation of the parties as affected thereby, for mandamus and mandatory injunction requiring issuance of certificate of complainant's election to said Board of Commissioners and payment of his salary as such. From decree overruling a demurrer to the bill, the respondents appeal.

Reversed and rendered.

Joseph N. Langan, of Mobile, for appellants.

Armbrecht Inge, Twitty & Jackson, of Mobile, for appellee.

BROWN Justice.

This appeal is from the interlocutory decretal order of the circuit court overruling the defendant's demurrers to the bill.

The bill is filed by the appellee, alleging that he is a member of the Board of Commissioners of the City of Mobile, against said City and the other members of said Board, and prays, that the court

"Enter a declaratory decree holding and determining that the said Acts of the Legislature of Alabama Nos. 246, 283 and 289, and all and each of said Acts is violative of the Constitution of the State of Alabama and void to the end that the rights, status and legal relation of the parties hereto, as affected by said Acts and each of them, may be determined in order to terminate the uncertainty and controversies which have given rise to this proceeding. Complainant further prays that your Honors will grant an order for the issuance of an alternative writ of mandamus, commanding and directing the said Respondents R. V. Taylor and Cecil F. Bates, as members of the Board of Commissioners of the City of Mobile, to issue a certificate as required by law, certifying that your complainant is a duly elected and qualified member of said Board for the term beginning October 1, 1939, and ending September 30, 1945, or to appear before this Court on some date to be named in said writ, and show cause, if any there be, why a peremptory writ of mandamus should not issue requiring them and each of them to issue said certificate.

"Complainant further prays that upon such notice and hearing as may be required by law, your Honors will issue a temporary mandatory injunction, compelling the Respondents and each of them to issue or cause to be issued the certificate as herein prayed for and to pay or cause to be paid to your Complainant, during the Complainant's term expiring September 30, 1945, or so much of said term as Complainant serves, the salary to which the Complainant is entitled as a member of the Board of Commissioners of the City of Mobile, under and by virtue of Section 16 of said Act of the Legislature approved April 8, 1911, and compelling the Respondents to exercise their respective rights, powers and duties, relative to the distribution and allocation of the administration of the departments of the City of Mobile, as members of the Board of Commissioners of the City of Mobile, as authorized, directed and required by Sections 7 and 8 of said Act of the Legislature approved April 8, 1911, and upon final determination of this cause that said injunction be made permanent."

As a basis for this relief the bill alleges, in short, that prior to the municipal election held in said City on the 11th of September, 1939, he was a member of the Board of Commissioners; that he was elected in said election to succeed himself for the ensuing term beginning October 1, 1939; that the Board of Commissioners met on the 12th of September, 1939, canvassed the returns and declared the result showing the re-election of complainant, and issued to him a certificate of election to the effect he was entitled to hold for said ensuing term beginning October 1, 1939, but on complainant's demand therefor said Board "declined to certify that your complainant was the duly elected and qualified Commissioner of said City for the term ending September 30, 1945."

That "said demand was made by your Complainant as your Complainant is advised and believes, and on information and belief states, that said Act No. 246, approved August 18, 1939, is violative of the Constitution." [ Italics supplied.]

Like averment is made as to the unconstitutionality of Acts 283 and 289, all of said acts being passed as amendatory of the commission form of government act of 1911, as amended by act approved September 28, 1915. General Acts 1915, p. 869.

The bill further avers: "That due to doubts as to the validity of said Act No. 289, and until such doubts are removed * * * in this proceeding, the members...