Zeigler v. Baker

• Decision Date: 08 April 1977
• Parties: Fred ZEIGLER, etc., et al. v. John BAKER. SC 1991.
• Court: Alabama Supreme Court

Page 761

344 So.2d 761

Fred ZEIGLER, etc., et al. v. John BAKER.

SC 1991.

Supreme Court of Alabama.

April 8, 1977.

Rehearing Denied May 6, 1977.

George M. Boles, Birmingham, for James M. Folsom.

William J. Baxley, Atty. Gen. and George W. Royer, Jr., Asst. Atty. Gen., for Fred Zeigler, Comptroller, James Solomon, Finance Director, Melba Till Allen, Treasurer of the State of Ala.

Edmon L. Rinehart, Montgomery, for John Patterson.

John Baker, pro se.

BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Montgomery County enjoining the Comptroller, acting Finance Director and Treasurer of the State of Alabama from making payments from public funds under the authority of Act No. 343 of the Regular Session of the Legislature, 1975. We affirm.

That Act follows:

Section 1. All former Governors of the State of Alabama upon reaching the age of sixty (60) shall be entitled to a monthly retirement payment out of the General Fund in the State Treasury which shall equal 68% Of the Governor's salary if said former Governor had served for one full term or less; the amount paid shall equal 100% Of the Governor's salary if he has served two full terms or more.

Section 2. All former Governors of the State of Alabama, regardless of age, who sustain permanent total physical or mental disability during his term of office, by accident or otherwise, shall be entitled to his full salary for life upon leaving office.

Section 3. Said payments to be paid out of the General Fund in the State Treasury on a monthly basis each and every month once a former Governor becomes eligible for such payments. A former Governor eligible for compensation under Section 2 shall not receive payment under Section 1 hereof.

Section 4. Disability under Section 2 of this Act shall be determined as of the date the person so entitled leaves the Governor's office by resignation or otherwise. Proof shall be made by any interested party to the State Finance Director, who shall promptly certify the fact of disability to the State Comptroller. It shall be considered sufficient proof if three (3) practicing physicians certify under oath that a former Governor is so permanently totally disabled.

Section 5. All laws or parts of laws in conflict with the provisions of this Act, and specifically Act No. 304, H. 345, 1967 Regular Session (1967 Acts, p. 847; now appearing in Code of Alabama Recompiled 1958, Title 55, Section 172(2)) are hereby repealed.

The plaintiff's original complaint, which he filed in the capacity of a citizen and taxpayer, sought declaratory and injunctive relief against the state's fiscal authorities on the ground that the Act contravened Section 98 of the Alabama Constitution of 1901, which provides:

The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.

Thereafter, the complaint was amended to allege that Act 343 also violated Section 68 of the Alabama Constitution of 1901 'and also on the general constitutional principle that legislatures can not (sic) appropriate money for gratuities for private purposes.' Section 68 states:

The legislature shall have no power to grant or to authorize or require any county or municipal authority to grant, nor shall any county or municipal authority have power to grant any extra compensation, fee, or allowance to any public officer, servant, or employe(e), agent or contractor, after service shall have been rendered or contract made, nor to increase or decrease the fees and compensation of such officers during their terms of office; nor shall any officer of the state bind the state to the payment of any sum of money but by authority of law; provided this section shall not apply to allowances made by commissioners' courts or boards of revenue to county officers for ex officio services, nor prevent the legislature from increasing or diminishing at any time the allowance to sheriffs or other officers for feeding, transferring, or guarding prisoners.

Former Governors James E. Folsom and John Patterson intervened as parties-defendant. Former Governor Patterson moved to require plaintiff to join Governor George C. Wallace, Lt. Governor Jere Beasley and former Governor Albert Brewer as parties-defendant, however, this motion was not acted upon. The plaintiff and the original defendants have stipulated that of the living former governors eligible for payments under Act 343, only former Governor Folsom had received payments. Governor Wallace, the stipulation states, will not become eligible to receive payments until January, 1979, when his current term as governor expires.

Plaintiff's original complaint was filed on June 9, 1976. Intervenor Folsom filed a motion to dismiss this complaint on June 25, 1976 but did not raise the issue of standing either in that motion or in his answer to the original complaint filed on the same date. The original defendants filed their motion to dismiss the original complaint and their answer thereto on July 1, 1976 and in both they raised the issue of the plaintiff's standing to sue. Then, on July 8, 1976, plaintiff filed an amendment to his complaint by adding a sentence alleging that Act 343 violated both Section 68 of the Alabama Constitution and a general constitutional prohibition against legislative appropriations for private purposes. Thereafter, the original defendants and defendant Folsom did not re-file or amend their motions to dismiss. They did file amended answers denying that Act 343 violated Section 68 or any such constitutional standard. Thus, defendant Folsom in none of his pleadings contested plaintiff's standing. The original defendants, by not renewing or amending their motion to dismiss in order to have it apply to the amended complaint, See Rule 15(a), ARCP, or by including in their amended answer their allegations against plaintiff's standing which were included in their original answer, did not make plaintiff's standing an issue in their pleadings. An amended pleading Pro tanto supersedes a pleading which it amends. United States v. L. D. Caulk Co. (D.C.Del.), 114 F.Supp. 939 (1953). By their amended answers to plaintiff's complaint, the original defendants and intervenor Folsom simply substituted those amended answers for their original answers. The liberalized rules of procedure have not eliminated pleadings as the principle means by which parties themselves choose the issues which they wish to litigate. When pleading to amendments, counsel should see that their pleadings incorporate grounds or allegations previously pleaded if they wish to rely upon them, E.g., 'comes the defendant and amends his answer to plaintiff's complaint by adding the following . . .' etc. Intervenor Patterson, on the other hand, filed his motion to dismiss on July 19, 1976 which was eleven days after plaintiff's amended complaint was filed, and in that motion he attacked plaintiff's standing to sue. Because the plaintiff's amended complaint was the only one extant at that time, the motion obviously was directed to that amended complaint, and the trial court's overruling of the motions to dismiss thus enabled intervenor Patterson to raise the issue of plaintiff's standing on this appeal.

In his complaint the plaintiff alleged that he was a taxpayer and citizen of the State of Alabama and a duly elected member of the Alabama Senate. He does not rely upon the latter status as authorizing this action, and his taxpayer status is attacked as not entailing a sufficient interest or injury upon which to maintain it. Intervenor Patterson, who has adopted the briefs of the Attorney General under Rule 28(i), ARAP, and thus may assert their contents, cites many federal cases as authority for his position that plaintiff lacks standing because he has asserted no 'direct' or 'particular concrete injury' personal to himself and not shared in common with the public at large. But this argument fails to distinguish the nature of the rights involved here. Federal courts do insist on the distinct injury test when a Federal right is asserted. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678, 688 (1974), and generally when review is sought in Federal court of a State court decision on Federal law. Cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) and Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952) with Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). Those decisions do not limit the authority of state courts to determine for themselves whether to recognize state taxpayer suits, Coleman v. Miller, supra.

In a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Court of County Revenues v. Richardson, 252 Ala. 403, 41 So.2d 749 (1949); Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937); Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938); Travis v. First Nat. Bank of Evergreen, 210 Ala. 620, 98 So. 890 (1924); Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). The right of a taxpayer to challenge the unlawful disbursement of State funds likewise is unquestioned. Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939) ('. . . this Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.'); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933); Turnipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933). The latter two cases dealt with the constitutionality of disbursements, while Goode involved expenditures to be made under purported statutory authority. The Supreme Court of Illinois wrote to this principle in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915):

We have repeatedly...