Tucker v. McLendon

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 25.
• Citation: 210 Ala. 562,98 So. 797
• Parties: TUCKER v. MCLENDON ET AL.
• Court: Alabama Supreme Court

98 So. 797

210 Ala. 562

TUCKER v. MCLENDON ET AL.

6 Div. 25.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Jefferson County; Dan. A. Greene, Judge.

W. W Tucker sues D. E. McLendon, W. B. Cloe, W. L. Harrison, W. E Dickson and Mrs. Mary Echols for damages for the alleged wrongful and unlawful removal by defendants, composing the City Commission of the City of Birmingham, of plaintiff as a police officer. Demurrer being sustained to the complaint plaintiff declined to plead further; whereupon judgment was rendered for defendants, and plaintiff appeals. Affirmed.

Horace C. Wilkinson and W. B. Harrison, both of Birmingham, for appellant.

W. J. Wynn and W. A. Jenkins, both of Birmingham, for appellees.

BOULDIN J.

The question of first concern in this cause is: Has the city commission of Birmingham the legal power and authority to remove at pleasure an officer of the police department of the city?

The Legislature of Alabama, in 1911, gave much attention to the question of reform in city government in Alabama. It may be said to have been a part of a nation-wide discussion at that time. The work of the Alabama Legislature found expression in a series of acts for commission forms of government in the cities and towns of the state. To meet the needs of the occasion cities and towns were classified on a population basis. Four separate acts, general in form, were enacted, as follows:

H. B. 12. Cities of 100,000 and more inhabitants. Approved March 31, 1911. Gen. Acts 1911, p. 204.

This act, in immediate application, related to the city of Birmingham alone, and may for convenience be called the "Birmingham Commission Act of 1911."

H. B. 323. Cities of 25,000 to 50,000 inhabitants. Approved April 6, 1911. Gen. Acts 1911, p. 289.

This act applied for the time to the cities of Mobile and Montgomery.

S. B. 208. Towns and cities of 1,000 to 25,000 inhabitants. Approved April 21, 1911. Gen. Acts 1911, p. 591.

S. B. 341. Other cities and towns not covered by the above acts. Approved April 8, 1911. Gen. Acts 1911, p. 330.

Each of these acts provided that a town or city should become subject thereto as it passed from one class to another by change of population.

At the same session of the Legislature was passed "an act to provide for civil service regulations for the officers and members of the police department of the cities in the state of Alabama, having twenty-five thousand or more population and to regulate and prescribe the tenure of office of said officers and members employed in said police department of said cities." Approved April 22, 1911 (Gen. Acts 1911, p. 681). This act, by its descriptive terms was applicable for the time to the cities of Birmingham, Mobile, and Montgomery. This Civil Service Act declared, in substance, that no officer or member of the police department should be removed from office except for causes specified in the act, upon charges in writing, and after fair and impartial trial.

The Birmingham Commission Act provided:

"The commissioners shall prescribe and may at any time change the powers, duties, and titles of all subordinate officers and employees of said city, except the title of city health officer; all of whom shall hold office and be removable at the pleasure of the board of commissioners." Gen. Acts 1911, § 6, p. 208.

Which of these conflicting provisions became the law of the city of Birmingham on the subject in hand is a question much debated in briefs of counsel. This question becomes important only as it may affect the construction of a later act now to be considered.

The Legislature of 1915 passed an act entitled as follows:

"An act to provide for the government by a commission of all cities in Alabama which now have, or which may hereafter have, a population of one hundred thousand people, or more, according to the last federal census, or any such census which may hereafter be taken, when such cities by an election adopt the provisions of this act; to provide for the selection and election of commissioners and their terms of office; to fix their powers, duties and compensation; to punish improper conduct in connection with the election of said commissioners, and to otherwise provide for the creation, conduct and maintenance of said commission form of government, and to repeal all laws and parts of laws in conflict with the provisions of this act."

This act was approved September 25, 1915. Gen. Acts 1915, pp. 789 to 807. This act was and is applicable for the time to the city of Birmingham alone, and may be called the "Birmingham Commission Act of 1915." Section 10 of this act contains the same provision touching the tenure of office and removal of all subordinate officers as section 6 of the Birmingham Commission Act of 1911, above quoted. Appellant insists that this provision does not cover the case at bar. The argument appears to rest upon the following propositions:

First. The Civil Service Act of 1911 relates to a special subject-the police department. The Commission Act of 1911 deals with the general powers of the city commission. The two acts were pending, considered, and passed by the same Legislature, and should be treated as parts of one scheme of municipal government-in pari materia. The removal clauses of both acts, in such case, should have concurrent operation. To that end, if consistent with reasonable construction, a field of operation should be found for both. On these premises it is argued, the removal clause of the Civil Service Act governs the police department, and the removal clause of the Commission Act governs the other subordinate officers.

Second. The Commission Act of 1915 is a mere re-enactment or continuance of the removal clause of the Commission Act of 1911. Hence it should be given the same field of operation, and not held to repeal the removal clause of the Civil Service Act.

In studying this line of argument as applied to the legislation in hand, the following may be stated as correct general principles of statutory construction:

A general law will not repeal by implication a local law-a law affecting a limited territory-although in form a general law. Board of Revenue v. Johnson, 200 Ala. 533, 76 So. 859; State ex rel. Tyson v. Houghton, 142 Ala. 90, 38 So. 761; Southern Express Co. v. Tuscaloosa, 132 Ala. 326, 31 So. 460.

Laws pending at the same time and enacted at the same session of the Legislature are to be construed in pari materia. Their provisions are presumed not to conflict and a field of operation will be given each, if consistent with clear intent. State ex rel. Sellers v. Murphy, 207 Ala. 290, 92 So. 661; State ex rel. Scholl v. Duncan, 162 Ala. 196, 50 So. 265; State ex rel. Tyson v. Houghton, 142 Ala. 90, 38 So. 761; Mills v. Court of Com'rs, 204 Ala. 40, 85 So. 564.

"The repeal and simultaneous re-enactment of substantially the same statutory provisions is to be construed not as an implied repeal of the original statute, but as a continuation thereof." 36 Cyc. 1084(E); Allgood v. Sloss-Sheffield Co., 196 Ala. 500, 71 So. 724; Board of Revenue v. Johnson, 200 Ala. 533, 76 So. 859.

Repeal by implication is not favored. A law dealing with a special subject is not repealed by a subsequent general law dealing with the subject in a general way, unless in clear conflict. City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159; City of Mobile v. Mobile Elec. Co., 203 Ala. 574, 84 So. 816; Montgomery v. B. & L. Ass'n, 108 Ala. 336, 18 So. 816.

A repealing clause will be given effect according to its express terms, even to the repeal of a special or local law. Maxwell v. State, 89 Ala. 150, 7 So. 824; State ex rel. Bibb v. Town of Warrior, 181 Ala. 642, 62 So. 69.

All these rules are merely in aid of the prime aim in all statutory construction-to find the intention of the lawmakers. If such intention is clearly shown by unequivocal language there is no room for construction. The courts in such case cannot go outside the act itself to find its meaning.

The Birmingham Commission Act of 1915 is original and not amendatory in form. It is true to...