Grant v. City of Mobile
| Decision Date | 06 June 1973 |
| Citation | 282 So.2d 285,50 Ala.App. 684 |
| Parties | Jack E. GRANT et al. v. The CITY OF MOBILE, a municipal corporation. Civ. 139. |
| Court | Alabama Court of Civil Appeals |
Mylan R. Engel, Mobile, for appellants.
William H. Brigham, Mobile, for appellee.
Jack E. Grant was dismissed from his employment with the Bankhead Tunnel Department of the City of Mobile on July 9, 1971.
He appealed his discharge to the Personnel Board for Mobile County as provided by Act No. 470 as enacted by the Legislature of Alabama in the 1939 Regular Session and pertinent rules and regulations promulgated thereunder. After hearing De novo, as provided by Rule 14.7 of the Personnel Board of Mobile County, the Personnel Board of Mobile County, hereinafter referred to as the Board, on September 13, 1971, set aside the discharge of Grant and entered instead an order providing for a suspension from active duty without pay from July 9, 1971, until September 16, 1971, a period of sixty-eight days and thereafter he was to be 'restored' to active duty. However, the above order of the Board was conditioned upon Grant's repayment of a sum of money which was missing due to his negligence.
The City of Mobile thereafter, pursuant to Act No. 470, Local Acts of Alabama 1939, appealed the order of the Board to the Circuit Court of Mobile County. Upon review, the circuit court reversed the Board and directed the reinstatement of the original discharge.
It is from the circuit court's order that the Board brings this appeal.
In this case the appellee has additionally filed a motion and moves this court to dismiss the appeal and as grounds therefor shows that effective February 9, 1973, possession of the Bankhead Tunnel and all the facilities connected therewith were transferred to the State of Alabama which then assumed all responsibility for the operation and maintenance of said tunnel. At this time the City of Mobile eliminated the Bankhead Tunnel Department and all toll collectors' positions.
As a consequence, there is no position of toll collector to which the appellant, Jack E. Grant, may be reinstated by means of this appeal; wherefore, appellee contends this cause is moot.
Appellant, in support of his objections to the Motion to Dismiss Appeal, contends that this appeal is necessary to determine certain substantive and intervening rights in that had the appellant, Jack E. Grant, been restored to active duty in compliance with the Board's order of September 13, 1971, he would have been eligible, under the law and rules of the Board, to have his name placed on a lay-off re-employment list, thereby becoming eligible for certification to other positions of employment under the civil service. Also, if issue is decided upholding the order of the Board restoring the employee to active duty status, then such decision would be relevant to a determination as to employee's back pay.
The general rule in this state is that if, pending an appeal, an event occurs which makes determination of it unnecessary, or renders it clearly impossible to grant effective relief, the appeal will be dismissed. State v. Burroughs, 285 Ala. 177, 230 So.2d 235; McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885; Shelton v. Shelton, 248 Ala. 48, 26 So.2d 553; Gaines v. Malone, 242 Ala. 595, 7 So.2d 263; Coleman v. Mange, 238 Ala. 141, 189 So. 749. The rule was also stated thus in Allen v. Glover, 23 Ala.App. 404, 405, 126 So. 179, 180:
However, certain exceptions exist to the general rule cited above. It appears that appellant's contention, raised by his objections to Motion to Dismiss Appeal, is that the case at bar falls within the exception where, if no decision of the question is made on the appeal, collateral rights of the parties dependent upon its decision will be left undetermined. This exception is recognized in Postal Telegraph-Cable Co. v. City of Montgomery, 193 Ala. 234, 69 So. 428, Ann.Cas.1918B 554; Bradford v. State, 226 Ala. 342, 147 So. 182; Adams v. Riddle, 233 Ala. 96, 170 So. 343. Also, in Willis v. Buchman, 240 Ala. 386, 199 So. 892, citing C.J.S. Appeal and Error, it is said that where the subject of litigation is no longer in issue, the appeal will be dismissed unless the substantial rights and equities of the parties require adjudication.
It therefore follows that the eligibility of appellant, Jack E. Grant, to be placed on a lay-off re-employment list, thereby qualifying for certification to other positions of employment under the civil service and right to back wages, if appropriate, are such collateral rights and equities growing out of the question made on appeal that this court will not dismiss the appeal because of 'mootness.'
We think the case requires adjudication and in light of the above authorities, if it is held that the trial court below erred in setting aside and vacating the order of the Board of September 13, 1971, it is not beyond the power of this court to have that order set aside and to have the Board's order reinstated.
In this instance, there is an occasion or necessity for a judgment here, and an end to be accomplished by the judgment we might render.
Therefore, the motion to dismiss the appeal should be and is overruled.
The facts reveal that Grant was employed by the City of Mobile as a toll collector for Bankhead Tunnel and that it was the duty and responsibility of a toll collector to collect toll and to safeguard his collections. A safe was provided for money for collections to be placed in. On the day of the incident which brought about Grant's dismissal he, by his own records, placed two money bags containing his daily collection into the safe. Upon a check of the safe, one of the money bags was missing.
Both the City and the Board found that Grant was guilty of violating Rule 14.2(k) of the Personnel Board of Mobile County. Rule 14.2(k) reads as follows:
The only conflict between the City and the Board is the extent or severity of the punishment that Grant is to receive and the Board, by assignments of error, contends the trial court erred in vacating the Board's order.
It is necessary that the relationship, powers, and authority of review by and between the Board and the circuit court be examined.
Rule 14.7, adopted by the Personnel Board of Mobile County, is as follows:
This rule has been the subject of litigation and in Jordan v. City of Mobile, 260 Ala. 393, 71 So.2d 513, the Supreme Court of Alabama upheld its validity. It is, therefore, clear that the Board has the power to modify or alter the penalty imposed by the appointing authority. It is also abundantly clear to this court that the Board is the trier of facts; otherwise, De novo would have a meaning other than that which this court understands it to be.
Section XXXIV of Act No. 470, Local Acts of Alabama 1939, reads as follows:
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