Bates v. State ex rel. Conniff

• Decision Date: 27 February 1941
• Docket Number: 1 Div. 139.
• Parties: BATES ET AL., COMMISSIONERS OF MOBILE, v. STATE EX REL. CONNIFF.
• Court: Alabama Supreme Court

200 So. 779

240 Ala. 609

BATES ET AL., COMMISSIONERS OF MOBILE, v. STATE EX REL. CONNIFF.

1 Div. 139.

Supreme Court of Alabama

February 27, 1941

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of the State of Alabama, on the relation of William E Conniff, against Cecil F. Bates and others, as Commissioners of the City of Mobile, the Board of Commissioners of said City, Cecil F. Bates, as Mayor, and the City of Mobile, for writ of mandamus to require appropriation and payment to relator of his share, as a fireman of the City of Mobile, of profits as the result of operation of the Alcoholic Beverage Control Act in said City. From a judgment awarding the writ respondents appeal.

Transferred from Court of Appeals, Code 1923, § 7326.

Affirmed.

The pro rata amount of liquor money to which fireman of the city of Mobile was entitled under the Rogers Act was required to be paid to him in addition to his salary for personal services under the civil service act. Gen.Acts 1931, p. 538; Gen.Acts 1936-37, Sp.Sess., p. 244; Loc.Acts 1939, p. 298.

The Personnel Board of Mobile County, alleging that it was interested in the litigation of this cause in that it involves a construction of certain provisions of the Civil Service Act of Mobile County (Local Acts 1939, pp. 298-318) and of certain rules promulgated by the Board, moved for leave to intervene. The circuit denied the motion, and movent reserved an exception.

The agreement of the parties is substantially as follows:

"On the effective date of the Act of the Legislature of Alabama, September 15, 1939, which is Act No. 470 of the Acts of the Regular Session of the Legislature of Alabama 1939 (Local Acts of 1939, Pages 298 to 318 inclusive) the relator acquired permanent Civil Service Status as a fireman of the City of Mobile, and duly became an employee in the Classified Service under such Act; that a minimum and maximum Pay Plan, in accordance with Section 11 of the Act, for all employees in the Classified Service of the City of Mobile under such Act became effective July 1, 1940, having been duly approved by the Personnel Board, which had been duly created and was functioning under the Act, and a certified copy of such Pay Plan was duly delivered to the City of Mobile, and under such Pay Plan the minimum salary for new appointees of relator's grade as fireman was fixed at $100.00 a month, and the maximum salary for fireman such as relator was fixed at $120.00 a month. Each month since July 1, 1940, relator has received a salary of $105.00 a month which was duly certified under Section 28 of such Act.

"At no time has there been executed and delivered to the defendants, or to either of them, nor has there been in existence, any payroll, estimate, voucher or account covering the amount sought to be recovered by the relator in this suit, containing the name of the relator and bearing the certification of the Personnel Director of the County of Mobile that the relator was or is legally entitled to receive such amount.

"At no time has the City submitted to the Personnel Department a payroll for certification by the Director of the Personnel Board for an amount in excess of $105.00 a month for the petitioner since the effective date of the Civil Service Pay Plan, July 1, 1940.

"During all the time subsequent to July 1, 1940, Local Act No. 470 approved September 15, 1939, and the Pay Plan established thereunder have been in full force and effect in the City of Mobile, Alabama.

"Prior to July 1, 1940 the Personnel Board duly adopted and promulgated Rule No. 4.1, which was at all times mentioned in the petition in full force and effect, and which rule provides as follows: 'The pay plan shall include, in addition to a minimum and maximum rate for each grade and class of positions, one or more intermediate rates between the minimum and maximum rate for each class and grade, and recommendations for a method of granting advancements in pay. The rate of pay set forth in the plan shall be deemed to include total pay in every form, except that it shall not include allowance for actual and necessary travel expense authorized and incurred as incident to employment. If subsistence, quarters or other maintenance is furnished to an employee the reasonable value thereof shall be deducted from the rate of pay set forth in the plan.'

"Prior to July 1, 1940, the Personnel Board duly adopted and promulgated Rule No. 4.2, which at all times was mentioned in the petition in full force and effect, and which rule provides as follows: 'Upon submission of the plan to the Board by the Director the Board shall furnish copies thereof to each appointing authority or governing body concerned and shall, before adopting the plan, give the governing body or appointing authority, employees, and the public a reasonable opportunity to be heard. Upon final adoption by the Board a certified copy of the plan shall be delivered to the governing body or appointing authority concerned and the pay plan shall become effective within thirty days thereafter; provided, that the appointing authority or governing body shall be empowered to adjust the plan by applying a uniform percentage of increase or decrease to the whole plan; and may thereafter make further adjustments in like manner to such extent as its financial condition or other circumstances may warrant; provided further, that in view of the constitutional fiscal responsibility imposed upon the County Board of Revenue and Road Commissioners for certain jurisdictions in the county, any adjustment of the plan in the manner just described insofar as it affects employees of Mobile County where their salaries are budgeted by said Board shall be made by said Board of Revenue and Road Commissioners as the governing body of the county and shall apply uniformly to all such affected jurisdictions therein. Changes in the pay plan of one class or of a number of classes less than all may be made only upon order of or approval by the Board.'

"Prior to July 1, 1940, the Personnel Board duly adopted and promulgated Rule No. 4.3 which was at all times mentioned in the petition in full force and effect and which rule provides as follows: 'When the plan is made effective the pay of each employee shall be fixed as follows: Those employees receiving less than the minimum for the class to which their positions have been allocated shall have their pay raised to the minimum; those employees receiving an amount embraced within the range of the class shall continue to receive this amount; the rate of pay of an employee receiving more than the maximum prescribed for his class shall not, because of the application of this plan, be reduced during his incumbency of the same position and class, but the rate of pay of his successor in the same position and class shall conform to the schedule of compensation prescribed in the pay plan. Thereafter no change in pay shall be made except upon approval by the Director.'

"The petitioner was receiving a monthly salary of $105.00 a month from the City of Mobile prior to the effective date of the Civil Service Pay Plan, July 1, 1940, and has also received his pro rata share of the liquor money under the Rogers Act (General and Local Acts of Alabama, Extra Session 1936-1937, Page 244) for money received by the said City of Mobile to that date, and after the Pay Plan became effective he has been receiving only $105.00 a month."

Harry Seale, of Mobile, for appellants.

M. F. Dozier and Winston F. Groom, both of Mobile, for appellee.

Albert J. Tully, of Mobile, for Personnel Board of Mobile County, amicus curiae.

THOMAS Justice.

Petition for mandamus was filed by appellee to recover his share of the money derived by the City of Mobile from net profits of A. B. C. stores in Mobile as a result of the Alabama Alcoholic Beverage Control Act and an act contained in the General Acts, of Alabama of 1939, pp. 526, 527, under an act of the Legislature contained in the General Acts of Alabama of 1936-37, Sp.Sess., pp. 244, 245.

The defendants filed an answer to the petition, admitting the allegations of the same, but denying that petitioner was entitled to the amount of $62.48, and setting up the defense that there was no duty on the part of defendants to set aside such money.

Demurrers were filed by petitioner to that part of the answer which was not admitted by defendants. Demurrers were sustained and an agreement was entered into as to the evidence by and between the attorneys for the parties. The effect thereof will be set out by the reporter.

The court ordered that a peremptory writ of mandamus issue to defendants, directing and commanding the city to set aside the funds under the Rogers Act (Acts 1936-37, ...