Wilkinson v. City of Birmingham

• Decision Date: 04 February 1915
• Docket Number: 946
• Parties: WILKINSON v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

68 So. 999

193 Ala. 139

WILKINSON v. CITY OF BIRMINGHAM.

No. 946

Supreme Court of Alabama

February 4, 1915

Rehearing Denied May 20, 1915

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Horace C. Wilkinson against the City of Birmingham. From a judgment for defendant, plaintiff appeals. Affirmed.

A.G. &amp E.D. Smith and Horace C. Wilkinson, all of Birmingham, for appellant.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellee.

SAYRE J.

This was an action by appellant to recover a balance of salary claimed by him as one of the recorders of the city of Birmingham. In January, 1910, the office of recorder for police district No. 3, composed of the Twelfth and Thirteenth wards of the city of Birmingham, was created and established by ordinance. In October, 1910, the minutes of the council show that appellant was elected to the office of "recorder of the Third precinct" for a term ending October 1, 1912. Under this election he entered upon and discharged the duties of recorder for police district No. 3 until April 11, 1911, shortly after the reorganization of the municipal government under the act of March 31, 1911 entitled "An act to provide and create a commission form of government," etc. (Acts 1911, p. 204 et seq.), when the commission passed a resolution abolishing forthwith the office of "recorder No. 4 [at Woodlawn]." Appellant sought to recover his salary from that time for the remainder of the term to which he had been elected.

After April 11, 1911, both the commission and the appellant acted upon the understanding that the resolution of that date had been aimed at the office held by him; the commission causing all business to be transferred to and transacted in another place and before a different recorder; while appellant having protested to individual members of the commission that they had no right to deprive him of his office or its emoluments during the term for which he had been elected, but making no formal complaint to the commission in its official capacity, nor making any formal demand for his salary, which was payable in monthly installments, nor resorting to legal process for a determination of his right to the office or its salary, continued at regular intervals to visit the place at Woodlawn where he had formerly held court, but where he found nothing to do, intending thus perhaps to evidence his continued claim upon the office and his readiness to discharge its functions, or, as the jury may have found, his purpose was by this course, as illustrated by his declarations, to assert only his right to his appointed compensation, even though his office had been lawfully abolished. From the evidence also the jury were authorized to find that during the same period he appeared on divers occasions in the court to which the jurisdiction and business of the court at Woodlawn had been transferred under the order of the commission, prosecuting or defending criminal or quasi criminal causes which would have been triable before himself had his recordership not been abolished. There was other evidence to which we shall later refer.

There is no reason to doubt that the commission had power and authority to abolish the office held by appellant. It was not a constitutional office. It had been created by the city council; it might be abolished by the commission. It was so provided in section 6 of the act of March 31, 1911 (Acts 1911, supra). No element of contract was involved, and when the office ceased the salary ceased. Oldham v. Birmingham, 102 Ala. 357, 14 So. 793, and authorities cited. Nor is it to be doubted that at the outset of this controversy, and consistently ever since, so far as appellee knew or was given to understand, appellant's insistence took one or the other of two forms: He denied in toto the power of the commission to abolish the office, or he contended that, even though the office were abolished, he was entitled to full pay for the term for which he had been elected. Now, it appears that appellant's only colorable objection is to the manner in which the will of the commission was expressed. In other words, the only colorable objection is that the commission attempted by resolution to do that which could be done by ordinance only, and that the resolution itself was insufficient for its intended operation in any event, because in terms it undertook to abolish the office of recorder No. 4 (at Woodlawn), whereas appellant was filling the office of recorder for police district No. 3, composed of the Twelfth and Thirteenth wards of the city of Birmingham. In respect of this objection to the form of the resolution it will be enough to say on the evidence before us that both appellant and the commission understood perfectly well that the resolution intended to deal with the office appellant was holding; and, if appellant's tenure were to be determined on any mere form of words, it might be difficult for him to explain his de jure right to the office of recorder for police district No. 3 under an election to the office of recorder of the third precinct. But we attach no importance to these differing phrases, for evidently they were each employed for the designation of the office in which appellant for some time served, and so were put into practical operation.

In the trial court it was held that appellant's office could be abolished only by an ordinance, not a resolution, and so the issue of the controversy was made to depend upon the question of fact whether appellant had abandoned the office or had acquiesced in the commission's resolution abolishing it, and this was left to be decided by a jury.

We shall assume, without deciding, in favor of appellant, that an ordinance was necessary, and shall inquire whether the trial court, in submitting the issue of fact to the jury, committed any error prejudicial to appellant, for it is clear, we think, that if appellant acquiesced in a result which the commission had undeniable power and authority to bring about, he thereby waived objection to the mere method employed, and must stand concluded.

Appellee was allowed to show that appellant had made no formal application to the board of commissioners to be reinstated that he did not advise the commissioners as officials that he did not recognize the validity of their resolution; that he had made no demand on the commission or the comptroller for his salary during...