Personnel Bd. of Mobile County v. City of Mobile

• Decision Date: 28 November 1955
• Docket Number: 1 Div. 590
• Citation: 264 Ala. 56,84 So.2d 365
• Parties: The PERSONNEL BOARD OF MOBILE COUNTY v. CITY OF MOBILE et al.
• Court: Alabama Supreme Court

Page 365

84 So.2d 365

264 Ala. 56

The PERSONNEL BOARD OF MOBILE COUNTY v. CITY OF MOBILE et al.

1 Div. 590.

Supreme Court of Alabama.

Nov. 28, 1955.

Rehearing Denied Jan. 12, 1956.

Albert J. Tully, Mobile, for appellant.

Fred G. Collins, Mobile, for appellees.

PER CURIAM.

The purpose of this suit is to obtain a declaration as to the constitutionality of Act No. 370, approved August 21, 1953. General Acts 1953, page 439.

The demurrer to the bill was sustained by the trial court: the demurrer expressing the view that said Act was not violative of the various sections of the Constitution referred to in the bill.

The bill of complaint recites that 'your petitioner, the personnel board of Mobile County, Alabama, respectfully shows', etc. It then gives the names of the members of the personnel board; the City of Mobile, a municipal corporation, and Henry R. Luscher, the mayor; and other members of the city commission are named and made parties respondent, together with Dudley E. McFadyen who is the chief of police of the City of Mobile. The bill or petition does not expressly say that the members of the personnel board are made parties complainant; but it is signed by one of them as chairman. The appeal bond to this Court and the notice of appeal recite that the appeal is taken by complainant (the personnel board). The security for cost is signed in the name of the personnel board and Lon B. Moreland, chairman, and J. G. Scott, member, with a fidelity company as surety.

No question is raised on this appeal as to the power of the personnel board to bring this suit in its name. But it is necessary for us to take note of the question and determine whether the suit is by a party authorized by law to maintain it. The personnel board is a part of the civil service system applicable to Mobile County and to municipalities located therein as created by a local act approved September 15, 1939, Local Acts 1939, page 298. The duties and authority of the personnel board are prescribed by section 7 of the Act as the same was amended by Act No. 431, approved September 25, 1947, Local Acts 1947, page 288. Neither of those acts authorize the personnel board to sue or be sued, nor do those acts purport to constitute such board a corporation. If is our view that the board does not have the capacity in its name alone to maintain a suit for a declaratory judgment or for any other purpose. Under the local act the personnel board is a county agency having charge of a county-wide civil service system.

In the case of Consolidated Indemnity & Ins. Co. v. Texas Co., 224 Ala. 349, 140 So. 566, with reference to the state board of administration, we observed that it is not such an entity as to be able to maintain a suit. Neither can it be sued. We think that principle applies to a personnel board either of a county or a city, respectively.

But when an officer is confronted with the question of what are his duties under the law, and whether an act prescribing his duties and powers is violative of the Constitution, and a controversy arises between him and some person whose duties are adversely prescribed by law, such officer, because he is an officer, may sue the one who is controverting his authority and duties to obtain a declaration in respect to the controversy. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479.

That principle would justify this suit by the individuals composing the personnel board against the city and its chief of police who are controverting with them the meaning and validity of the Act No 370, approved August 21, 1953, as the same affects their respective official duties. As stated above, the individuals composing the personnel board are named in the bill or petition, and two of the three members of the board signed the appeal bond. See Smith v. Collier, 210 Ala. 23, 97 So. 101. Since there is no controversy as to the right of complainant to file this suit and to appeal to this Court, we will treat it as a virtual agreement that the persons so named as members of the personnel board are the complainants bringing this suit as a guidance to their official action.

The Act of 1939, supra, has direct application to a county-wide system in the County of Mobile and to the respective municipalities in the county. The bill or petition also alleges that the board has jurisdiction over the classified employees of the City of Mobile, including the chief of police and the police department. That allegation is not contested except that the Act of 1953, supra, purports to take that power away from personnel board when the conditions named in the act have occurred.

The Act No. 370, approved August 21, 1953, is in form a general act with local application. It applies to a county, or a city or town, in any county 'having, according to the last or any future Federal census, a population in excess of 225,000 inhabitants and less than 500,000 inhabitants'. It also provides that if any city or town in such county is 'subject to any county-wide Civil Service System, the Personnel Director and Personnel Board and other officials of any such county-wide Civil Service System shall have no rights, powers or duties with reference to the hiring, demotion, suspension or discharge of the Chief of Police of such City or Town or with respect to the fixing of his compensation or with respect to prescribing his working conditions'.

The County of Mobile has a county-wide civil service system set up by the Local Act of 1939, supra. See Bates v. State ex rel. Conniff, 240 Ala. 609, 200 So. 779. It has a population range within the specified limits of 225,000 and 500,000. It is the only county in the State within that population range according to the last federal census. Jefferson County has more than 500,000 population, and Montgomery County has less than 225,000. Mobile County has 231,105. Counties having a population of 400,000 or more according to the last or any future federal census are governed by the Act approved July 6, 1945, Title 62, section 330(22) et seq., pocket part, Code. That act also is in form a general act, but applicable only to counties having the population stated above. Jefferson County is the only one which qualifies at present to be controlled by that act. Many times we have given it effect in Jefferson County.

The instant Act of 1953, supra, likewise has such a range of population that we think it does not infringe upon constitutional law. Opinion of Justices, Ala., 82 So.2d 344; Taxpayers and Citizens of City of Alabama v. Board of Com'rs of City of Mobile, 252 Ala. 446, 41 So.2d 597. The reference in the Act of 1953 to a county which may have a county-wide civil service system merely has the effect of emphasizing its effect in all counties within the classification whether or not there is in any of them a county-wide civil service system. It is not a double classification condemned in In re Opinion of the Justices, 256 Ala. 160, 53 So.2d 881. We think the contention that the Act of 1953, supra, is a local act is not well sustained.

As a general rule a general law does not by implication amend or repeal a local law. Burns v. State, ...