Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin

CourtSupreme Court of Alabama
Citation294 Ala. 201,314 So.2d 663
PartiesThe FRATERNAL ORDER OF POLICE, STRAWBERRY LODGE #40, et al. v. Larry ENTREKIN et al., Etc. SC 856.
Decision Date22 May 1975

James F. Berry, Cullman, for appellees.

EMBRY, Justice. 1

This is an appeal by plaintiffs from judgment dismissing an action seeking declaratory judgment and injunctive relief.

Plaintiffs describe themselves and defendants, in the complaint, as follows:

'1. THE FRATERNAL ORDER OF POLICE, STRAWBERRY LODGE #40 is a voluntary unincorporated fraternal organization with its principal office located in Cullman, Alabama and is engaged in this judicial circuit in representing police officers who are employed by the defendant City of Cullman, Alabama. The plaintiffs Ernie J. McClendon, William Mangrum and Eugene Ray are police officers employed by the defendant City of Cullman, Alabama and members of the Fraternal Order of Police Strawberry Lodge #40 and they are citizens of Cullman County, Alabama.

'2. The defendants Larry Entrekin, Cecil Rowmine and L. J. Carr are residents of Cullman County, Alabama, members of the City Council of Cullman, Alabama and make up the police committee of said council with Larry Entrekin as chairman. The defendants Thurman Murphy, Herman Pruitt and J. J. Vanderver are residents of Cullman County, Alabama and are the members of the Personnel Board of the City of Cullman, Alabama. The Defendant City of Cullman, Alabama is a municipal corporation located in Cullman County, Alabama.'

In an abortive attempt to maintain the action as one for a class, the complaint contains the following allegations:

'3. This suit is brought by individual plaintiffs on their behalf and on behalf of others similarly situated. The class represented by individual plaintiffs consists of police officers employed by the City of Cullman, Alabama who are members of Fraternal Order of Police Strawberry Lodge #40. This class is so numerous that joinder of all members is impractical. There are questions of law and fact common to the class. The representative The complaint failed to allege or suggest that 'the claims * * * of the representative parties are typical of the claims * * * of the calss' per requirements of ARCP 23(a)(3). We note this in passing and eschew elucidation of Rule 23 for a more fully developed case.

plaintiffs will fairly and adequately protect the interests of the class.'

To facilitate understanding of what is to follow, the balance of the complaint is here set out (omitting only signatures and acknowledgments):

'4. On October 1, 1971 an act was passed by the Legislature of Alabama establishing a Civil Service System for the City of Cullman, Alabama. Said act provided among other things the following:

(a) division of positions in the city into classified and exempt services

(b) a personnel board, its organization and duties

(c) personnel rules and regulations

(d) employment of persons with and without competitive examination

(e) temporary appointments and the manner in which they shall be made permanent

(f) permanent promotional appointments

(g) job classification and pay plans

(h) establish lists of persons eligible for appointment and the procedure for their appointment.

In December 1971 the personnel board and the City of Cullman adopted a position classification plan which continues in effect. Further, the personnel Board and the City of Cullman adopted 'Rules of the Personnel Board City of Cullman, Alabama' which embodied the mandates of the 'Act' hereinabove mentioned and adopted a pay plan.

'5. Since the creation of the Civil Service System within City of Cullman, plaintiffs have sought to exercise theri (sic) rights under the law and the rules and regulations promulgated therefrom. The defendants have sought to prevent the plaintiffs from exercising their rights thereon and have ignored the requirements of the law and rules and regulations as follows, to-wit: Defendants have failed and refused to fill the job of Assistant Chief of Police by failing or refusing to give promotional examinations for said position. Defendants have promoted personnel without following procedure required by the law and rules. Defendants have failed or refused to make promotional appointments of plaintiffs after plaintiffs have met the requirements of the law and the rules because of personal prejudice on the part of defendants. Defendants have sought to avoid the law and the rules by making temporary promotional appointments of unqualified and incompetent personnel; so that defendants will not have to appoint plaintiffs to the position. Defendants have failed or refused to give an examination to temporary appointees in order to avoid appointing plaintiffs to the jobs.

'6. The Plaintiffs are confused and confounded in that they don't know whose orders they are to follow, to-wit: the chief of police or defendant, Larry Entrekin. Entrekin issues orders to the plaintiffs with regard to when they can take coffee breaks, who is to investigate accidents, who to arrest, how to make out accident reports, who is to investigate an accident and interferes with the officers (sic) duties by stopping automobiles and ordering arrests and generally assuming the duties of a police officer. The actions of the defendant, Larry Entrekin, results in the Plaintiffs (sic) inability to function effectively as police officers, causes dissension in the department, affects adversely the morale of plaintiffs, and severely hampers discipline '7. The acts of the defendants as here in above set forth, constitute irreparable injury, continuing in nature, for which plaintiffs have no other adequate remedy and are without justification and interfere with and impair the individual plaintiffs and the class they represent in the exercise of their rights under the civil service act and they are discriminatory and disadvantage plaintiffs from exercising their rights. Further, the acts of the defendants have caused plaintiffs to be unsure as to what their rights, duties and responsibilities are and to whom they are responsible.

among plaintiffs and brings insubordination and failure to obey orders.

'8. As a result of the actions of the defendants, plaintiffs have been subjected to considerable expense, have been denied the enjoyment of valuable rights, have suffered irreparable injury, and have no other adequate remedy.

'WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray the Court shall enter its order:

1. Temporarily mandatorily enjoining defendants;

(a) To give the test for assistant Chief of Police, and certify the name or names qualified and appoint an individual to that position.

(b) To set aside any permanent appointments made without having met the requirements of the civil service act and the rules of the personnel board.

(c) To make permanent appointments of those plaintiffs who have met the requirements of the act and the rules after being certified to the appointing authority.

(d) To give the test to those who hold temporary appointments and/or terminate the temporary appointment.

(e) To notify plaintiffs in writing of their scores on the tests and the rank they hold with regard to scores and certification.

2. Declare the rights, duties and responsibilities of plaintiffs with regard to whose orders they are to follow; and what their rights, duties and responsibilities are to defendant, Larry Entrekin, and to their superior officers including the chief of police.

3. Temporarily mandatorily restrain defendant, Larry Entrekin, from:

(a) Issuing orders directly or indirectly to any plaintiff or the chief of police without first having the concurrence of the council by official resolution or ordinance properly entered in the minutes of the council meeting.

4. Declare the rights, duties, responsibilities and scope of authority of the defendant, Larry Entrekin, and the other defendants to the plaintiffs, the police chief, and the police department,

5. That such injunction be made permanent upon final hearing.

6. For such other relief as may be just and proper, premises considered.'

A motion to dismiss was filed on behalf of Thurman Murphy, Herman Pruitt and J. J. Vanderver, individually and as members of the Personnel Board of the City of Cullman, Alabama; the City of Cullman, Alabama, a municipal corporation; Larry Entrekin, Cecil Rowmine and L. J. Carr, individually and as City Councilmen of the City of Cullman, Alabama.

Among other grounds, the Murphy-Pruitt-Vanderver motion contained that following:

'1. To dismiss the action against THURMAN MURPHY, HERMAN PRUITT and J. J. VANDERVER, individually and as members of the Personnel Board of the City of Cullman, Alabama '2. To dismiss the action because no justiceable (sic) controversy is alleged in the Complaint between the Plaintiffs and these Defendants.

because the Complaint fails to state a cause of action against these individuals, individually, or as members of the Personnel Board of the City of Cullman, Alabama, upon which relief can be granted.

'4. To dismiss the action because the Plaintiffs have not expended their administrative remedies against these Defendants.'

The City of Cullman motion:

'2. To dismiss this action because no justiceable (sic) controversy exists between the Plaintiffs and this Defendant.

'3. To dismiss the action because the Complaint fails to state a cause of action upon which relief can be granted.

'4. To dismiss the action because the Plaintiffs have not expended their administrative remedies against theis (sic) Defendant.'

The Entrekin-Rowmine-Carr motion:

'1. To dismiss the action because the Complaint fails to state a cause of action upon which relief can be granted against these Defendants.

'2. To dismiss the action because no justiceable (sic) controversy is alleged in the Complaint between the Plaintiffs and these Defendants.

'3. To dismiss the action because the Plaintiffs have not expended their...

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