Clark v. Houston County Com'n

• Decision Date: 20 March 1987
• Citation: 507 So.2d 902
• Parties: A.B. CLARK v. HOUSTON COUNTY COMMISSION. 85-516.
• Court: Alabama Supreme Court

Page 902

507 So.2d 902

A.B. CLARK v. HOUSTON COUNTY COMMISSION.

85-516.

Supreme Court of Alabama.

March 20, 1987.

Rehearing Denied May 15, 1987.

W. Terry Bullard, Dothan, for appellant.

Richard H. Ramsey III, Dothan, for appellee.

PER CURIAM.

This is an appeal by A.B. Clark from the denial of his petition for writ of mandamus. We reverse.

This case involves the interpretation of Ala. Code 1975, §§ 36-22-60 through -65, concerning supernumerary sheriffs.

Clark, who is presently over 55 years of age, was elected to the office of sheriff of Houston County, Alabama, in 1966. He took office in January 1967 and served until January 16, 1983. On September 24, 1985, Clark was issued a commission by the governor of Alabama appointing him supernumerary sheriff of Houston County. On that same date, the probate judge of Houston County administered the oath of office of supernumerary sheriff. In compliance with Ala. Code 1975, § 36-22-63, Clark tendered a check, dated September 24, 1985, in the amount of $5,412.97 to the Houston County Commission for the purchase of credit for service prior to July 19, 1979. The Houston County Commission returned the check to Clark's attorney on May 23, 1986, contending that Clark was not entitled to benefits under the supernumerary sheriff's program.

Clark contends that he meets the age and tenure-in-office requirements of Ala. Code 1975, § 36-22-60; that he has been issued a commission as supernumerary sheriff; that he is entitled to be paid benefits as provided for in Ala. Code 1975, § 36-22-62; and that he is entitled to be paid such benefits effective September 24, 1985.

The Houston County Commission contends that Clark does not meet the statutory requirements for receiving the benefits of a supernumerary sheriff because he was not serving as sheriff of Houston County on May 20, 1985, the effective date of the amendment of Ala. Code 1975, § 36-22-63, and was not serving as sheriff on the date he made his election to participate in the program.

The qualifications necessary to participate in the supernumerary sheriff's program are stated in Ala. Code 1975, § 36-22-60. This section states in part:

"Any sheriff, on or after July 19, 1979, of any county of this state may elect to participate in the supernumerary sheriff's program provided by this article. Any sheriff, on or after July 19, 1979, of any county of this state:

"....

"(2) Who has had 16 years of service credit as a law enforcement officer, 12 of which have been as a sheriff, and who has reached the age of 55 years; may elect to become a supernumerary sheriff of the county by filing a written declaration to that effect with the governor not more than 90 days prior to the end of the 16 year period or reaching the age of 55 years, both having been fulfilled, or at any time thereafter. If the governor shall find that any such declarant is qualified under either subdivision (1) or (2) of this section, he shall then issue such declarant a commission as supernumerary sheriff."

In order for Clark to have the necessary 16 years of creditable service as a law enforcement officer, he must purchase credit for service prior to July 19, 1979, which is provided for in Ala. Code 1975, § 36-22-63. A 1985 amendment to this section provides that "[a]ny prior service credit must be purchased within two years of May 20, 1985." The 1985 amendment substituted "two years of May 20, 1985" for "one year of July 19, 1979." This amendment merely created a new time period for the purchase of prior service credit in the event it had not been purchased within one year of July 19, 1979.

The trial court held: that the 1985 amendment allowed sheriffs, who were serving on July 19, 1979, and on May 20, 1985, to purchase prior service credit in the event they had not purchased prior service credit within one year of July 19, 1979; that the amendment did not allow the purchase of prior service credit by a former sheriff who was no longer serving as sheriff; that the supernumerary program was created for "sheriffs" who during their tenure in office elected to vacate the office and assume the office of supernumerary sheriff; and that no provisions are made for "former" sheriffs to elect to participate in the program subsequent to leaving office.

The trial court's interpretation of the provisions of the supernumerary sheriff's statute is a determination of law, which is not entitled to a presumption of correctness on appeal. Donnelly v. Doak, 346 So.2d 414 (Ala.1977).

We must determine whether the provisions of Article 3, Chapter 22, Title 36, of the Alabama Code 1975 allow a "former" sheriff to elect to participate in the supernumerary sheriff's program.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the statute is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the statute and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978) ; League of Women Voters v. Renfro, supra.

Although there are no specific provisions for "former" sheriffs to elect to participate in the supernumerary program, there is also nothing in the statute to indicate that the...