Board of Trustees of Emp. Retirement System of City of Montgomery v. Talley

• Decision Date: 05 July 1973
• Citation: 291 Ala. 307,280 So.2d 553
• Parties: BOARD OF TRUSTEES OF EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF MONTGOMERY, Alabama, et al. v. Dorothy Carr TALLEY. SC 116.
• Court: Alabama Supreme Court

Page 553

280 So.2d 553

291 Ala. 307

BOARD OF TRUSTEES OF EMPLOYEES' RETIREMENT SYSTEM OF the CITY OF MONTGOMERY, Alabama, et al. v. Dorothy Carr TALLEY.

SC 116.

Supreme Court of Alabama.

July 5, 1973.

Rehearing Denied Aug. 2, 1973.

Walter J. Knabe, Montgomery, for Board of Trustees of Employees' Retirement System of the City of Montgomery.

Joseph D. Phelps, Montgomery, for City of Montgomery.

Calvin M. Whitesell, Montgomery, for appellee.

HEFLIN, Chief Justice.

This is an appeal from a final decree entered by the Circuit Court of Montgomery County, in equity, declaring Paragraph 17 of Section 6 of Ordinance 12--65 of the City of Montgomery to be unconstitutional and awarding the appellee-complainant Mrs. Talley a gross sum of $7,466.76 and monthly payments of $118.52 for life.

The instant controversy involves the retirement system provided by the City of Montgomery by Ordinance Number 12--65 to provide retirement allowances for employees of the City under alternative options of equivalent actuarial value. The appellee-complainant's deceased husband, Mr. Talley, had elected to receive option number 2 which allowed Mr. Talley to draw modified retirement benefits and his named beneficiary, i.e., appellee-complainant Mrs. Talley, to receive a reduced retirement allowance for her life if the retired member died before Mrs. Talley. Mr. Talley designated February 1, 1966 as the effective date of his retirement on December 29, 1965 when he left the employment of the city. He had accrued leave from December 29, 1965 to February 1, 1966. He died on February 25, 1966, prior to receiving his first retirement check, which was due March 1, 1966.

The appellant-respondent Board of Trustees, acting pursuant to a clause found in paragraph 17, section 6, denied Mrs. Talley any benefits under the retirement system except a return of her late husband's contributions. The clause in question, which Mrs. Talley challenges as unconstitutional, follows a statement to the effect that any member may elect to receive a modified retirement allowance, as noted above, and reads as follows:

'. . . provided, however, that should he die within thirty days after retirement or within thirty days after the date of filing his optional election whichever is later, his optional election shall not be effective and he shall be considered to be a member in service (meaning occupying an employment status as opposed to retirement status) at the time of his death, and the only benefit payable on his account shall be the return of contributions . . ..'

The Board of Trustees has raised a procedural problem which would be dealt with at the outset. The Attorney General was served with the original bill of complaint and all amendments thereto, save the final two, of which the Attorney General received notice merely by mail. The Board of Trustees question whether this is sufficient under Title 7, § 166, Code of Alabama 1940 (Recompiled 1958), which provides in pertinent part as follows:

'In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard.'

The question then becomes whether the term 'proceeding' as used in § 166 includes all amendments as well as the original bill of complaint. The original bill is clearly included within the term 'proceeding,' and merely mailing a copy of same to the Attorney General will not suffice, as § 166 explicitly provides that the Attorney General be 'served' with a copy of the proceeding. Town of Warrior v. Blaylock, 271 Ala. 685, 127 So.2d 618 (1961); City of Gadsden v. Cartee, 279 Ala. 280, 184 So.2d 360 (1966).

Mrs. Talley argues that this court's holding in Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So.2d 451 (1968), dispenses with any supposed need for service of all amendments. However, in that case the Attorney General had acknowledged receipt of a copy of the bill of complaint and waived further service and the right to be heard. The record in the instant case reveals no such waiver.

The purpose of the provisions of Title 7, § 166 is to give notice of the filing of the bill, and protect that state and its citizens should the parties be indifferent to the outcome of the litigation. Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973); Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209 (1948); Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062 (1928); Parr v. City of Seattle, 197 Wash. 53, 84 P.2d 375 (1938). This purpose has been served in this case, and the Attorney General has filed no answer or other pleadings in the case indicating that he wished to be heard, nor has he complained of the lack of service of the amendments. Under such circumstances this court can only conclude that there was certainly a substantial compliance with the provisions of Title 7, § 166, sufficient to answer the Board of Trustees' contention in this regard. Wichita County v. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1954). See also Title 7, Section 349(2), Code of Alabama, 1940, as amended (Recompiled 1958--1971 Pocket Supplement).

Moving now to the issue presented by the merits of the instant case, it is to be noted that the final decree of the lower court contained the following language:

'From the testimony, the Court finds that this system was enacted for the benefit of the employees and was designed with that aim and objective. From the testimony of an expert actuary who works with and creates retirement systems for municipalities and others, and from all the other testimony received by the Court the provision of Paragraph 17, of Section 6, of the ordinance stating that should an employee '. . . die within thirty days after retirement or within thirty days after the date of filing his optional election, whichever is later,' can only be, and is an arbitrary, capricious exercise of power and unlawfully discriminated and therefore violates the Constitution of the State of Alabama and of the United States.

'This provision does not increase in any way the amount of contribution by the City of Montgomery. This provision does not affect in anywise the actual computation of benefits for an employee at the time the system was created. This provision did not in anywise affect the administration or computation by those administering the plan. The only possible purpose of this provision was to take away benefits already earned by those entitled to them and benefits for which both the employee and the City had made appropriate contributions to the system based on the benefits earned. This is an invidious and odious abuse of legislative power granted to a city.'

Where evidence is heard orally before the trial court, the findings of the court have the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 (1970). There is, however, another presumption which has a field of operation in this case to the effect that any statute or ordinance is presumed to be constitutional, and the burden is upon the party asserting its unconstitutionality to show that it is not constitutional. Al Means, Inc. v. City of Montgomery, 268...