State ex rel. Richardson v. Morrow, 6 Div. 53
| Decision Date | 26 March 1964 |
| Docket Number | 6 Div. 53 |
| Citation | 276 Ala. 385,162 So.2d 480 |
| Parties | STATE ex rel. Roland J. RICHARDSON, Mayor of Cordova v. Chesley B. MORROW. |
| Court | Alabama Supreme Court |
T. K. Selman and Hugh Beaird, Jasper, for appellant.
Hoyt Elliott, Jasper, for appellee.
In the court below the action was in the nature of a quo warranto proceeding brought in the name of the State of Alabama on the relation of Roland J. Richardson, individually, and as Mayor of the City of Cordova, Alabama, seeking to oust and excluded Chesley B. Morrow as a member of the Board of Directors of the Water Works and Gas Board of the City of Cordova.
The substance of the petition was that Chesley B. Morrow is ineligible to hold such office because he was and is now an employee of the Alabama Power Company, a corporation operating or holding a franchise granted by the City of Cordova which involved the use of the streets of the municipality.
The case was submitted on the pleadings, exhibits, stipulations, and testimony. After hearing the court below rendered a judgment finding in favor of the respondent, Morrow, and annuled and quashed the writ of quo warranto. This appeal is from that decree.
The evidence is without dispute and shows that Morrow was elected a member of the Board of Directors of the Water Works and Gas Board of the City of Cordova, on 2 October 1962. On 5 February 1963, Poland J. Richardson, acting as Mayor of the City of Cordova, temporarily removed Morrow from said office and reported such action and his reasons therefor to the next regular meeting of the city council of Cordova. The city council did not sustain the Mayor in temporarily removing Morrow, and Morrow has continued to serve as a member of the aforesaid Board of Directors since that time.
The evidence also shows that Morrow for a number of years prior to his election to the aforesaid Board of Directors, and at the time of the hearing below, was an employee of the Alabama Power Company, a corporation holding or operating a franchise granted by the City of Cordova involving the use of the streets of the municipality.
Section 413, Title 37, Code of Alabama 1940, as amended, provides in parts material to this review as follows:
'No officer of any municipality shall, during his term of office, be employed, professionally or otherwise, by any corporation holding or operation a franchise granted by the city or the state involving the use of the streets of the municipality.'
The only question of substance presented in this appeal is whether a member of the Water Works and Gas Board of the City of Cordova is an 'officer' of the municipality within the meaning of Section 413, Title 37, supra.
The corporation on which the appellee serves as a member of its Board of Directors was created under the provisions of Sections 394-402(1), (Water Works Board) and of Title 37, Section 402(2)-402(14), (Operation and Control of Gas Plants and Systems). Under the latter code sections, those pertaining to the operation and control of gas plants and systems, a Water Works Board is authorized to acquire, maintain, and operate gas plants and systems. To all material aspects there is little difference between the powers and duties of the boards of directors of each corporation.
As stated in Harrington v. State, 200 Ala. 480, 76 So. 422:
'The words 'office' and 'officer,' as used in certain statutes or constitutional provisions, may include certain positions, places, and persons, which would not be embraced within the meaning of the same words used in other statutes or other constitutional provisions.
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'There are in legal parlance probably few words that have a greater variety of meanings, or shades of meaning, than the words 'office' and 'officer."
A fundamental rule of statutory construction is to ascertain and give effect to the intention of the Legislature as expressed in a statute. City of Montgomery v. Montgomery City Lines, Inc., 254 Ala. 652, 49 So.2d 199. In construing a statute the court must look not only to the language of the statute, but the purpose and object of the enactment, and its relation to other laws and conditions which may arise under its provisions. Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So.2d 708.
We think that the legislative intent and purpose to be served by Section 413 of Title 37 is clear, and that it was enacted on the basis that employment by a public utility holding a franchise granted by the city involving the use of the streets of the municipality was incompatible with serving as an officer of the municipality at the same time. The real basis of such incompatibility is the possibility of a conflict of interest between the interest of the municipality and the interest of the public utility.
Section 413, supra, is but a limited recognition of the common law principle which prohibited the holding of inconsistent and incompatible offices. As stated in Scott v. Strobach, 49 Ala. 477:
'Incompatibility of offices existed at common law when from the nature of the offices * * * the respective duties they imposed, or the relation they bore to each other * * * or pure considerations of public policy, there was a manifest impropriety in one incumbent retaining both.'
The Water Works and Gas Board of the City of Cordova is a corporation organized by law to perform its functions as an agency of the city. Therefore such Board is to be treated in the same light as the city itself in respect to the instant question. Water Works Board of City of Birmingham v. Stephens, 262 Ala. 203, 78 So.2d 267.
The Board of Directors of the instant corporation is invested with the authority of fixing the rates for the services to be furnished by the corporation. This is a legislative or municipal power delegated by the City of Cordova to the said Board. Taxpayers and Citizens of City of Mobile v. Board of Water and Sewer Commissioners of City of Mobile, 261 Ala. 110, 73 So.2d 97.
The supplying of water and gas to a city and its inhabitants is a municipal function, and the Water and Gas Board of the city of Cordova is in that sense an agency of the city. Jackson v. Hubbard, 256 Ala. 114, 53 So.2d 723. When a city is performing a governmental function it is none the less so because the...
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