Ward v. State

• Decision Date: 23 January 1908
• Citation: 154 Ala. 227,45 So. 655
• Parties: WARD v. STATE EX REL. PARKER ET AL.
• Court: Alabama Supreme Court

45 So. 655

154 Ala. 227

WARD v. STATE EX REL. PARKER ET AL.

Supreme Court of Alabama

January 23, 1908

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Information by the state, on the relation of John L. Parker, and by John L. Parker individually, against George B. Ward, to require defendant to show by what authority he exercises and discharges the duties of the office of president of the council of the city of Birmingham. Judgment for relator, and defendant appeals. Affirmed.

McClellan J., dissenting.

The case made by the petition is that on the 21st day of August 1907, at a regular meeting of the mayor and aldermen of the city of Birmingham, a municipal corporation under the act of the Legislature of the state of Alabama, at which meeting there were present all of the aldermen of said city at said time, the mayor being also present, an ordinance was duly and regularly adopted to organize a city government of the mayor and aldermen of Birmingham, a municipal corporation, under the provisions of the general municipal laws of Alabama as embodied in an act of the Legislature approved August 13 1907 (Laws 1907, p. 790), entitled, etc. (here follows the title of the act); it being provided in said ordinance that it was to the best interest of the said municipal corporation that said corporation should organize under said act above set out, and it being declared therein that the said mayor and aldermen of Birmingham had so organized under said general municipal law. (2) Alleges the relation of relator to the presidency of the council of the city of Birmingham and the fact of his having taken the oath of office and of his having entered upon and exercised his duties of office. (3) and (4) Alleges the time and date that he presided over the council and his having acted as mayor pro tem. in the absence of the mayor without let or hindrance from any one until the 26th day of September, 1907. (5) The election of Ward as mayor, and the fact that he was mayor on the 2d day of October, 1907, and that at a regular meeting of the city council on said date that Ward usurped, intruded into, and unlawfully exercised the office belonging to relator, and by force and violence kept and hindered relator from the duties of his office, and claims the right to preside over the future meetings of said council, and now usurps, intrudes into, and unlawfully holds and exercises said office. (6) The fact that he was a qualified elector and resident citizen of the city of Birmingham. The ordinance is made an exhibit to the petition. After demurrers were overruled to the petition the defendant answered, denying the right of the aldermen to organize under the general municipal laws, alleging that Parker was illegally elected, denying his right to hold the office, and setting up a number of reasons why this was true. Demurrers were sustained to the answer, and relief granted relator, from which this appeal is prosecuted.

S. D. & J. B. Weakley and Carmichael & Caldwell, for appellant.

Cabaniss & Bowie, for appellee.

McCLELLAN J.

All of the Justices, except the writer, concur in the conclusion that the judgment, vindicating the right of the relator, Parker, to exercise the duties and perform the functions of the office of president of the city council of the city of Birmingham, was well rendered and should be affirmed. By their direction I set down a brief statement of the views leading to the result announced.

The right provided by section 199 of the act approved August 13 1907 (Laws 1907, p. 892), to organize at once any municipality under its provisions and in accordance therewith, is not unconstitutional as an attempt to confer on governing bodies of towns and cities in this state legislative power which the organic law confines for exercise to the...