Coleman v. Mange, 7 Div. 573.
| Decision Date | 08 June 1939 |
| Docket Number | 7 Div. 573. |
| Citation | 189 So. 749,238 Ala. 141 |
| Parties | COLEMAN, MAYOR, v. MANGE ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.
Mandamus proceeding by W. G. Mange and others against W. S. Coleman as Mayor of the City of Anniston, to compel holding of election. From a judgment awarding the writ, respondent appeals.
Appeal dismissed.
Knox Acker & Sterne and Merrill & Merrill, all of Anniston, for appellant.
H. H Evans and J. W. Hemphill, both of Anniston, for appellees.
The appeal in this cause is prosecuted from a judgment of the Circuit Court of Calhoun County awarding petitioners appellees here, peremptory mandamus against the respondent, W. S. Coleman as Mayor of the City of Anniston, Alabama, requiring him, under the provisions of Article 46 of Chapter 43 of the Code of Alabama, as amended, to issue a proclamation submitting the question of organizing the said City of Anniston under a Commission Form of Government to the electors of said city.
It appears that the petitioners were the members of the City Council of the City of Anniston, and that the respondent was the Mayor, and that the petitioners, pursuant to the provisions of Article 46, Chapter 43 of the Code of Alabama, as amended, had presented to and filed with the Judge of Probate of Calhoun County a petition signed by a number of the qualified electors of such city as equalled three votes for each one hundred inhabitants or fraction thereof, according to the last Federal Census of the City of Anniston.
It further appears that the Judge of Probate of Calhoun County, pursuant to the statutory requirement in such cases, had examined said petition and had determined that the same was signed by the requisite number of qualified electors of said City to authorize an election for the purpose of adopting a Commission Form of Government in said city. It further appears that the said Judge of Probate on February 8th, 1939, duly filed with the respondent mayor his certificate finding the above facts to be true.
On February 11th, 1939, the said respondent not having issued his proclamation submitting the question of organizing the said city under a Commission Form of Government to the electors of said city, the petitioners, appellees, filed their petition for mandamus in the Circuit Court of Calhoun County against the respondent.
The court set this petition for hearing on Monday, February 13, 1939, at two o'clock P. M. Notice of this petition and the date set for hearing the same was served on respondent in the afternoon of the 11th of February, 1939. On February 13, 1939, the court, having overruled a motion for a short continuance, granted a peremptory writ of mandamus requiring the respondent to issue "a proclamation calling an election in the City of Anniston, Alabama, by 12:00 o'clock, noon, on February 14, 1939." From this order or judgment the respondent immediately filed this appeal.
At the time of the filing of the petition for mandamus, there was then pending in the Legislature a bill, which, if passed and approved by the Governor, would automatically place the City of Anniston under Commission Form of Government. This bill was passed by the Legislature on February 14, 1939, and was approved by the Governor on February 17, 1939. See General Acts, Regular Session 1939 (House Bill 167). By this act the offices of mayor and aldermen of the City of Anniston were abolished and there was created in lieu thereof a Commission Form of Government, consisting of a chairman and two associate commissioners, with defined duties and powers. And we know judicially that the Governor of Alabama, on February 17, 1939, under the power conferred upon him by said act, duly appointed W. S. Coleman, Chairman, and Arthur H. Lee and P. A. Guinn, Associate Commissioners of said city.
It thus appears that, pending this appeal, the offices of Mayor and Aldermen of the City of Anniston have been abolished; and that the city has been placed under a Commission...
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