Hickman v. City of Mobile, 1 Div. 436

• Decision Date: 30 June 1951
• Docket Number: 1 Div. 436
• Citation: 256 Ala. 141,53 So.2d 752
• Parties: HICKMAN et al. v. CITY OF MOBILE et al.
• Court: Alabama Supreme Court

Page 752

53 So.2d 752

256 Ala. 141

HICKMAN et al. v. CITY OF MOBILE et al.

1 Div. 436.

Supreme Court of Alabama.

June 30, 1951.

Vernol R. Jansen, Mobile and Rives & Godbold, Montgomery, for appellants.

Harry Seale and Robt. T. Cunningham, Mobile, for appellees.

By reason of the fact that there are now sitting in the Supreme Court only six Justices and there being an equal division among them on questions material to the determination of the case, these facts were certified to the Governor, who thereupon appointed the Honorable Jack Crenshaw of Montgomery, a member of the bar of the Supreme Court, to sit as a Special Justice of said Court in the determination of said case. Code 1940, Tit. 13, § 15.

BROWN, Justice.

The Board of Commissioners of the City of Mobile, a municipal corporation, chartered and existing under the laws of this state, acting through the city commission elected by the resident electors of said city, on July 11th, 1950, passed, adopted and promulgated an ordinance providing that, 'on and after the 17th of July, 1950, it shall be unlawful for any member of the Police Department of the City of Mobile to be or to become a member of any labor union as that term is commonly used, whether the union be associated with the A.F.L. or the C.I.O. or any other national labor organization and it shall be unlawful for any member of such department to participate in the organization of such a union.

'Section Two: On and after the 17th day of July, 1950, it shall be unlawful for any member of the Fire Department of the City of Mobile to be or to become a member of any labor union as that term is commonly used, whether the union be associated with the A.F.L. or the C.I.O. or any other national labor organization, and it shall be unlawful for any member of such department to participate in the organization of such a union.

'Section Three: Each and every employee of the Police Department of the City of Mobile shall on or before the 17th day of July, 1950, sign and deliver to the Chief of Police of the City of Mobile the Following statement, and failing therein shall immediately have his services with the department terminated:

'I do not belong to any labor union as that term is commonly known, whether the union be affiliated with the A.F.L. or C.I.O. or any other national labor organization, and I bind myself not to join such a union or to participate in the organization of such a union as long as I remain a member of the department.'

Section Four requires the same statement from members of the Fire Department of the City of Mobile.

As above indicated the ordinance requires all such employees on or before the date mentioned to disavow membership, participation and purpose to join such labor organization, such disavowel, as we construe the ordinance, to be in writing signed by the employee and delivered to the head of his department and 'failing therein shall immediately have his services with the department terminated.'

No provision is made in the ordinance for an employee who, before its adoption may have joined and become a member of or affiliated with such labor organization, to renounce his membership in such labor organization and preserve his right to retain his status as an employee of the City of Mobile.

The appellants as complainants in behalf of themselves and all other employees similarly situated, filed the bill seeking to enjoin the enforcement of said ordinance, alleging that they each by long and faithful service have a status of seniority entitling them to preference and credits in promotional examinations and certain retirement rights under the retirement laws and ordinances of the City of Mobile; that they are each able-bodied, physically and mentally qualified for the duties assigned to them at the time of filing the bill; that there are no pending charges of misfeasance or malfeasance and that their efficiency rating justifies their continuance in the employment in the capacity and positions which they are employed in at the time the bill was filed. The bill is filed against the City of Mobile, its commissioners and governing board, the chief of police and the chief of the fire department under whom they are respectively employed, who have given notice and threatened to enforce said ordinance as written and adopted and that under the terms of said ordinance their rights to continue their respective employment and their accumulated rights thereunder have been placed in jeopardy.

The bill further alleges as follows: 'Complainants further show that the International Association of Fire Fighters, commonly known as a Labor Union, is affiliated with the American Federation of Labor, that complainants Thrasher and Wilkinson are members in good standing of said organization, and that the objects and purposes of said organization are set out in its Constitution, Article 3, Sections 1, 2 and 3 as follows:

'Article III

'Section 1. The objects of the International Association of Fire Fighters shall be: To organize all Fire Fighters; to place the members of this Association on a higher plane of skill and efficiency; to encourage the formation of local unions; to encourage the formation of sick and death benefit funds; to encourage the establishment of schools of instruction for imparting knowledge of modern and improved methods of fire fighting and prevention; and the cultivation of friendship and fellowship among its members.

'Section 2. We shall not strike or take active part in any sympathetic strike, since the work of fire fighters is different from that performed by any other workers, as we are employed to perform the duties of protecting the lives and property of communities in case of fire or other serious hazards.

'Section 3. The International Association of Fire Fighters shall be non-partisan and shall not be used for the dissemination of partisan principles, nor for the promotion of candidacy of any person seeking public office or preferment.

'Complainants Hickman and Prine are members in good standing of Local 1001 of the American Federation of State, County and Municipal Employees, an organization commonly called a Labor Union whose objects and purposes are set out in its Constitution and in its charter which provided among other things, 'This Charter is issued with the understanding by both parties hereto that it will be revoked immediately if the members of Local 1001 call or participate in a strike or refuse to do their duties as police officers.'

'Complainants allege that neither of said organizations are subversive or affiliated in any way with disloyal policies or idealogies, and neither organization proposes nor supports the strike as a method of settling disputes as to compensation or working conditions, or any other purpose, arising between employer and employee, and neither organization forsters nor permits neglect of duty or other than primary loyalty to the City of Mobile by the Complainants or other police or fireman.

'Wherefore, pursuant to the terms of said ordinance the officials named as respondents declare that the employment of your complainants and others similarly situated, will be terminated for association, membership, or affiliation with Labor Organizations of any kind or nature without regard to the years of service, the accrued rights of retirement, the seniority, or the quality of service of the employees of the Police or Fire Departments of the City of Mobile and these complainants file this proceeding on behalf of themselves and any other members of the Police and Fire Department of the City of Mobile whose employment situation is affected by the terms of said ordinance.'

The bill further alleges: 'Complainants further show that the passage of said ordinance is ultra vires, unconstitutional and void, and the terms of same are unconstitutional, unlawful, and void; that said ordinance violates the terms of the employment under which your complainants are working, that it attaches to said employment, conditions which are unreasonable, and ultra vires and which deprive the complainants of rights guaranteed by the Constitution and Laws of the United States of America and the State of Alabama, that said ordinance seeks to regulate the social, political and private life of complainants and deprive them of a right to work and property without due process of law.'

After prayer for process the bill further prays for the issuance of 'a temporary injunction; enjoining, restraining, and forbidding the respondents and other officers, employees, agents, or servants of said respondents, (1) to enforce the terms of the ordinance as set out in Exhibit A hereto; (2) to enforce or threaten to enforce, the provisions of said ordinance requiring the filing of a statement or affidavit in the words and form set out in said ordinance; (3) from suspending or discharging your complainants and others in the Police and Fire Departments similarly situated for violation of the terms of said ordinance, (4) from the requirement that employees of the Police and Fire Department may not in the future affiliate with an organization known as a labor union, and (5) from depriving your complainants and others similarly situated from the enjoyments of the benefits accruing to complainants from years of service, retirement and other provisions of their present employment contract.

'Complainants further pray that on hearing of this cause, this Honorable Court will enter a decree perpetually enjoining the respondents their officers, servants, and agents from the acts as above set out in each of the foregoing particulars. And if the complainants have not asked for the proper relief, and if said injunction, either temporary or permanent, may not properly be complainants pray that this complaint be taken for a bill for a Declaratory Judgment, and this Honorable Court will be pleased to determine the Constitutionality of the ordinance set out in Exhibit A, and the rights...