Clements v. Commission of City of Birmingham

• Decision Date: 10 June 1926
• Docket Number: 6 Div. 595
• Parties: CLEMENTS v. COMMISSION OF CITY OF BIRMINGHAM et al.
• Court: Alabama Supreme Court

109 So. 158

215 Ala. 59

CLEMENTS v. COMMISSION OF CITY OF BIRMINGHAM et al.

6 Div. 595

Supreme Court of Alabama

June 10, 1926

Rehearing Denied June 30, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by M.D. Clements against the Commission of the City of Birmingham and others. From the decree, complainant appeals. Affirmed.

Altman & Taylor and Fred G. Koenig, all of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellees.

SOMERVILLE J.

Under the Civil Service Act of 1923 (Gen. Acts 1923, p. 647), the police and fire departments of the city of Birmingham were placed under the regulations therein prescribed, to be administered by the civil service board created and empowered for that purpose.

After placing all "officers and members" of these departments under civil service regulations, and specifically defining who are to be included within those terms, the act (page 648) further includes:

"In addition to those specifically named hereinbefore as members of said departments, such others as such boards may find and designate to properly be such members respectively."

Section 4 of the act provides:

"Said board shall have authority to change, add to alter, or rearrange positions, places and offices in said departments whenever it shall deem same necessary."

The office of municipal surgeon was originally created by the legislative department of the city of Birmingham. City Code 1917, p. 654. The bill alleges that the complainant Clements, has held the office and performed its duties since the civil service board was organized, in the beginning, it is to be presumed, by the appointment and under the authority of the city commission.

On June 15, 1925, the civil service board, by resolution duly adopted, placed the municipal surgeon under civil service regulations, and recommended that his salary be prorated between the police and the fire departments, and on June 23, 1925, the city commission, by resolution duly adopted, placed the municipal surgeon on the pay roll of those departments, prorated his salary equally between them, and declared the office from June 15, 1925, to be under the civil service regulations pertaining to those departments.

Thereupon the civil service board regularly declared:

"Said municipal surgeon, who is Dr. M. D. Clements, to be now appointed as a member of such police department of the city of Birmingham, and ex officio a member of the fire department of the city of Birmingham; and said civil service board does now by this resolution find and designate said municipal surgeon. M. D. Clements, to properly be such member. ***"

On November 17, 1925, the city commission adopted the following ordinance:

"Be it ordained by the commission of the city of Birmingham as follows:

"Section 1. That the office of municipal surgeon be and the same is hereby abolished.

"Sec. 2 That the services of Dr. M. D. Clements, be and the same are hereby dispensed with.

"Sec. 3. That this ordinance shall become effective December 1, 1925.

"Sec. 4. That all ordinances and resolutions or parts thereof, in anywise in conflict with this ordinance, be and the same are hereby expressly repealed."

The bill of complaint charges that this ordinance is a nullity because it is an attempt to evade the civil service law, and to defeat its operation in favor of this complainant, in short, to remove him from office, for political or personal reasons, under the specious pretense of abolishing the office; the charge being that the ordinance was not passed in good faith, but "with the purpose and intent to put in charge and control of the work complainant has been performing, as such municipal surgeon, three or more physicians who were deemed more acceptable, politically and otherwise, to said commission *** than is complainant."

The authorities seem to be unanimous in holding that, though an office or employment is properly subject to civil service regulations, so that the officer or employee cannot be lawfully removed except for cause and in accordance with such regulations, the municipal government may nevertheless abolish the office or position, and thereby incidentally remove the incumbent, provided the ordinance or resolution to that effect is adopted in good faith; and provided, of course, the office is not created by the municipal charter or by general law. State v. Edwards, 40 Mont. 287, 106 P. 695, 20 Ann.Cas. 239, and note 246, wherein the cases are collected and reviewed; People v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L.R.A. 775; State of Washington v. City of Seattle, 74 Wash. 199, 133 P. 11, 4 A.L.R. 198; City of Chicago v. People, 114 Ill.App. 145.

In the case of Oldham v. Mayor and Aldermen of Birmingham, 102 Ala. 357, 14 So. 793, a city police sergeant, whose office had been abolished by the city council, sued the city for salary claimed to have accrued thereafter, the plaintiff's contention being that the council was deprived of the power to abolish the office because, under the Police Commissioners Act of 1892, the police department and its officers had been placed under the control of the new commission, by whom alone removals could be mad, and only for cause after notice and hearing. The contention was made that the abolition of the office was but an evasion of the Police Commissioners Act, and that the ordinance to that end was therefore a nullity. The court said:

"The charter of the city of Birmingham confers on the mayor and aldermen the power to 'appoint such officers as they may see fit and think necessary for the good government of the city, *** and may remove and discharge any of its officers and employes at pleasure.' *** By these two sections [of the Police Commissioners Act] the

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