City of Mobile v. Scott, 1 Div. 141

• Decision Date: 09 September 1965
• Docket Number: 1 Div. 141
• Citation: 278 Ala. 388,178 So.2d 545
• Parties: CITY OF MOBILE v. J. G. SCOTT et al., Members of Personnel Board for Mobile County.
• Court: Alabama Supreme Court

Page 545

178 So.2d 545

278 Ala. 388

CITY OF MOBILE v. J. G. SCOTT et al., Members of Personnel Board for Mobile County.

1 Div. 141.

Supreme Court of Alabama.

Sept. 9, 1965.

Am. R. Lauten and Ralph Kennamer, Mobile, for appellant.

Mylan R. Engel, Mobile, for appellees.

COLEMAN, Justice.

The Personnel Board for Mobile County filed, in equity, a bill for declaratory relief against the City of Mobile.

The board alleged that it was created pursuant to Act No. 470, Local Acts 1939, page 298, and that, under said act, the board is empowered to govern, by civil service rules, all employees of the City 'in the Classified Service'; that by resolution dated December 12, 1961, the City authorized execution, in the name of the City of a contract employing one Helveston as 'Amministrative Assistant' to the Board of Commissioners of the City and that the contract was executed and Helveston employed thereunder commencing January 1, 1962.

The board alleged that the position of Administrative Assistant is a position within the classified service and should be filled by examination and appointment under the rules of the board.

In its answer, the City alleged that Helveston was 'employed as an independent contractor,' and that even if he be an employee of the City, and subject to Act No. 470, he is not in the classified service or subject to the authority of the board.

The bill of complaint was filed February 8, 1962.

By amendment to the City's answer, filed November 21, 1962, the City alleged that by Act No. 39, approved June 28, 1962; 1962 Acts, Special Session, page 50; the legislature authorized the City to appoint an administrative assistant on such terms as the governing body of the City may provide; that the City, on July 1, 1962, pursuant to the act, appointed Helveston as Administrative Assistant and terminated the contract of employment set forth in the bill of complaint; and that the question before the court was no longer justiciable but had become moot. The cause was submitted on bill and sworn answer.

The court rendered decree declaring that the city did not have authority to hire an administrative assistant outside of the classified service. The court, in the decree, took note of Act No. 39, but deemed a declaration of rights in the case essential for guidance of municipalities in Mobile County, citing Stone v. State, ex rel. O'Conner, 30 Ala.App. 500, 8 So.2d 210.

The City says there was no justiciable controversy when the decree was rendered, and, therefore, that the court erred in rendering the decree because the court no longer had jurisdiction so to do.

The rule is, that '. . . there must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under declaratory judgment statutes. (Citations Omitted.)' Shadix v. City of Birmingham, 251 Ala. 610, 611, 38 So.2d 851.

If there was no justiciable controversy existing, according to the averments of the bill, when the suit was commenced, the trial court had no jurisdiction according to the rule quoted above from Shadix. Under that circumstance, the decree of the trial court would be void. An appeal will not lie to reverse a void decree. Capps v. Norden, 261 Ala. 676, 75 So.2d 915. An appeal from a void decree must be dismissed. Shade v. Shade, 252 Ala. 134, 39 So.2d 785.

It seems to us, however, that there was a justiciable controversy alleged and existing when the bill was filed. The court, then, did have jurisdiction when the suit was commenced. Whether that jurisdiction was subsequently lost or not, we will not decide, because...