Reid v. City of Birmingham
| Decision Date | 01 March 1963 |
| Docket Number | 6 Div. 956 |
| Citation | 150 So.2d 735,274 Ala. 629 |
| Court | Alabama Supreme Court |
| Parties | Joe W. REID et al. v. CITY OF BIRMINCHAM et al. |
Hugh A. Locke, Crampton Harris and Jas. A. Simpson, Birmingham, for appellants.
John S. Foster and Graham, Bibb, Wingo & Foster, Birmingham, for appellees.
Speir & Smith, Birmingham, amici curiae.
This is an appeal by the plaintiffs in an action for declaratory judgment, rendered by the circuit court, relating to the validity and legality of an election to change the form of government of the City of Birmingham, and relating to the time at which the officers of the city to be elected under the changed form of city government take office.
The court declared that the election held November 6, 1962, was legal and valid. In that election, the majority of votes approved the adoption by the city of the Mayor-Council form of government provided by the 'Mayor-Council Act of 1955.' Act No. 452, approved September 9, 1955; Acts of Alabama 1955, Vol. II, page 1004. The court further declared that Act No. 71, approved June 18, 1959; Acts of Alabama 1959, Vol. I, page 477; 'can in no way be effective to prevent any legally elected Mayor or Councilman from taking office under the provisions of' Act No. 434, approved September 9, 1955; Acts of Alabama 1955, Vol. II, page 980; and Act No. 452, supra.
The plaintiffs allege that they are citizens, taxpayers, and residents of the city. The defendants are the city, one of the three city commissioners as mayor and chief executive officer of the city, the probate judge of Jefferson County, and the comptroller of the city.
Pertinent parts of the petition for declaratory judgment recite as follows:
'4. Purporting to act pursuant to Section 1.03 of Article I of the Act (Act No. 452, supra) (Par. Added.), the defendant Honorable J. Paul Meeks (Probate Judge) (Par. Added.) caused an election to be held on November 6th, 1962, and thereat submitted to the voters of the City of Birmingham, inter alia, the proposition:
'Plaintiff is advised and believes and upon such information and belief avers that the Election Commission or other canvassing-board or official having charge of such election held on November 6, 1962 has, subsequent to said election, transmitted to the Governor, to the Secretary of State, to the defendant, the Judge of Probate, and to the defendant, Mayor of the City, a certificate stating that at such election a majority of the voters voted for and approved the proposition:
"Shall the Mayor-Council form of government as provided by the Mayor-Council Act of 1955 be adopted by the City of Birmingham?'
'5. Plaintiff is further informed and believes and upon such information and belief avers that the defendant, Honorable J. Paul Meeks, as Judge of Probate of said County, has stated that he will, as provided by Section 1.07 of Article I of the Act, immediately call an election for the selection of nine Councilmen and a Mayor by the qualified voters of the City, and take such other steps as are incumbent upon him by the Act to institute a government of the City under the said Act immediately after the election of said Councilmen and Mayor and prior to October 1st of the general municipal election year next after November 6, 1962, and that others of the defendants will cause such Councilmen and Mayor to be paid salaries at the rates prescribed in the Act for the period between their installation under the Act and October 1st, of the general municipal election year next after November 6, 1962.
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'7. Plaintiff respectfully shows the Court that:
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'VII. The provisions of said 'Mayor-Council Act of 1955', directing that immediately after the election provided for in Section 1.03 of said Act, the defendant Probate Judge should call an election to be held under and to be governed by the said Act, not less than 90 days nor more than 120 days after the date of such call, at the expense of the City, to elect nine Councilmen and a Mayor (Section 1.07) and further directing that said Councilmen and Mayor take office on the second Monday following the date of the election of the said nine Councilmen and that the City shall, at that time and thereby be and become organized under the Mayor-Council form of government, and shall thereafter be governed by the provisions of said Act, are void, inoperative and of no effect because, contrary to and in violation of Act No. 71 of the Regular Session of the Legislature of 1959, approved June 18, 1959, which provides, inter alia:
"No change from the commission form of government to the mayor-council form of municipal government hereafter directed by vote of the electors of any municipality in this state shall become effective until October first of the general municipal election year next following the election at which such change is voted."
The amended prayer of the petition recites as follows:
'WHEREFORE, Plaintiffs pray that the Court will take jurisdiction of this matter, order appropriate process to issue to the defendants, and a copy served upon the Attorney General of Alabama, hear and consider the issues tendered, and that, upon consideration of the matter, the Court will order, adjudge and decree the rights and duties of the parties, both in their personal and official capacities, and declare the law with respect to the matters in paragraphs 4 and 7 above tendered and, further, that if the Court does not find that Act #452 of the Regular Session of the Legislature of Alabama of 1955 is unconstitutional, that it then find and declare that the said election held on November 6, 1962, was illegal and void because in violation of the express provisions of said Act and in violation of other applicable provisions of law, and with respect to other kindred and related matters with which the Court shall deem it appropriate to deal in order to do complete justice in the premises and to afford relief from uncertainty, insecurity and confusion, and that the Court will grant the plaintiffs such other, further and additional relief as plaintiffs may in the premises be entitled to have.'
Pertinent provisions of legislative acts here involved recite as follows:
Act No. 518, approved September 3, 1953, Acts of Alabama 1953, Vol. 1, page 652, recites:
'1.01. Cities to which Act applies.--Any City in the State of Alabama, which has a population of more than two hundred thousand, according to the last federal census, or which may hereafter have such population according to any federal or municipal census that may be taken hereafter, may adopt the council-manager form of government by proceeding in the manner hereinafter in this Act provided.
'1.02. Petition for election.--The filing of a petition signed by ten per cent (10%) or more of the qualified electors of such city, asking that the proposition of the adoption of the council-manager form of government for such city be submitted to the qualified voters thereof, with the judge of probate of the county in which such city is located, shall mandatorily require an election to be held as herein provided. * * *
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'1.05. Proposition submitted; form of ballot.--At such election the proposition to be submitted shall be printed in plain prominent type on ballots separate and distinct from ballots used for any other office or question, and shall read as follows: 'Shall the council-manager form of government, as provided by the Council Manager Act of 1953, be adopted for the City of .....?
Act No. 434, approved September 9, 1955, at 10:51 a. m., Acts of Alabama 1955, Vol. II, page 980, recites:
'Section 1. In any election held under the provisions of any act heretofore or hereafter adopted for the purpose of authorizing a change in the form of government of any city with a population of 200,000 inhabitants or more according to the last or any succeeding federal census, the electorate of such city shall be entitled to choose at such election between the Commission form of government, the Mayor Council form of government and the Council Manager form of government.
'Section 2. In any such election the provisions of any law or act to the contrary notwithstanding, the proposition to be submitted to the voters shall be printed in plain, prominent type on ballots separate and distinct from ballots for any office or question, and shall read as follows:
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Act No. 452, approved ...
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