Graham v. City of Mobile

• Decision Date: 18 March 1919
• Docket Number: 1 Div. 304
• Citation: Graham v. City of Mobile, 17 Ala.App. 19, 81 So. 355 (Ala. App. 1919)
• Parties: GRAHAM v. CITY OF MOBILE
• Court: Alabama Court of Appeals

81 So. 355

17 Ala.App. 19

GRAHAM v. CITY OF MOBILE

1 Div. 304

Court of Appeals of Alabama

March 18, 1919

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by F.H. Graham against the City of Mobile. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Action by the plaintiff (appellant here) to recover from the defendant for services rendered as attendance officer claiming appointment and right to compensation under and by virtue of an act of the Legislature approved September 15 1915 (Acts 1915, p. 534).

Palmer Pillans and Alexis T. Gresham, both of Mobile, for appellant.

Robert H. Smith, of Mobile, for appellee.

SAMFORD J.

The sole question presented in this case is whether the board of school commissioners of Mobile county, as constituted under and by virtue of an act of the Legislature of Alabama approved February 15, 1876 (Acts 1875-76, p. 363), was authorized and empowered under and by virtue of an act of the Legislature approved September 15, 1915 (Acts 1915, p. 534) to appoint the plaintiff as an attendance officer for the city of Mobile. It is contended by the appellee that the language of the act of 1915 clearly and distinctly refers to county boards as created by section 1713 and section 1349 of the Code of 1907; that there is no city board of education in the city of Mobile; that, in order to entitle such attendance officer to compensation to be paid out of the city treasury he must be appointed by the city board of education, and, as he was not thus appointed, the city would not be liable to pay for his services. It is also insisted that the school commissioners of Mobile county and city is a thing apart, with a separate identity, and with no connection whatever with the general laws governing and applicable to the public school system or to the children of Mobile county attending the schools. And defendant's counsel insist that section 270 of the Constitution preserves this separate identity free from the interference of the Legislature of Alabama.

Section 270 of the Constitution, so far as applicable is as follows: "Sec. 270. The provisions of this article and of any act of the Legislature passed in pursuance thereof to establish, organize, and maintain a system of public schools throughout the state, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portions of the funds to which said county shall be entitled for school purposes and to make reports to the superintendent of education as may be prescribed by law," etc.

The act of the Legislature of September 15, 1915, is:

"To compel the attendance at school of children within certain ages in the state of Alabama; to fix exceptions to such provisions; to provide means for the enforcement of this act; to require reports from private or parochial schools; to make it unlawful for any parent, guardian, or other person occupying the place of parent, to violate the provisions hereof; to make it unlawful for any person, firm, corporation, or association to employ any child in violation of the provisions of this act; and to fix punishments and penalties for the violations of this act."

There is no limitation or exception as to children in the territory of the county of Mobile, and it requires no argument or authority to say that this act is not in any manner in conflict with section 270 of the Constitution. The city and county of Mobile are a part of the commonwealth of the state of Alabama, and all general acts of the Legislature are applicable alike to it, unless such acts contravene a provision of the Constitution intended to preserve some special institution within its confines....