Ward v. State ex rel. Parker

45 So. 655, 154 Ala. 227, 1908 Ala. LEXIS 530

Opinion

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 he 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 Legislature. The principle upon which the conclusion rests is thus stated in Hand v. Stapleton, 335 Ala. 356, 33 South. 689: “The Legislature may pass a valid statute, to take effect upon the happening of a future event, and may delegate to an officer or person the power of determining and announcing whether such event has happened.” To the same effect, applying the defined principle, are Childers v. Shepherd, 142 Ala. 385, 39 South. 235; Jackson v. State, 131 Ala. 21, 31 South. 380; Davis v. State, 141 Ala. 84, 37 South. 454, 109 Am. St. Rep. 19; Dunn v. County Court, 85 Ala. 287; McGraw v. County Court, 89 Ala. 407, 8 South. 852; Clarke v. Jack, 60 Ala. 271; and other authorities in these citations referred to. The case of Mitchell v. Florence Dispensary, 134 Ala. 392, 32 South. 687, is not applicable to the status presented by the provisions of section 199. The court takes the case of State v. Parker, 26 Vt. 357, to be directly in point, and in support of its conclusion. This authority is cited, and quoted from approvingly, in Hand v. Stapleton, supra.

The Municipal Code act is a complete law, which by its terms shall become operative in September, 1908; and the only effect of section 199 was to afford an event upon the happening of which it should go into operation in the town or city so ordaining in the method stipulated in that section at an earlier date. Section 199 should be read as a proviso to section 2 of the Municipal Code act; and, when so read, the provision of the latter section that the corporate organizations “shall be and remain as now provided by law” is qualified to the extent section 199 prescribes.

There being no such office, under the charter of Birmingham, as president of the city council of the city of Birmingham, the governing body were commanded by section 199 to elect such an officer, whose term should be until his successor is elected at the general municipal elections in September, 1908. Having the duty to elect such an officer, under the letter of section 199, and the organization of the city government under the Municipal Code having been accomplished, it of course followed that the officer so elected by the governing body was entitled, and it was his duty, to exercise the duties and powers and to perform the functions of president of the city council, one of which was and is to preside over the deliberations of the city council; and that, under the terms of the Municipal Code, to the exclusion of the mayor, who, the late charter provided, should perform that duty.

The judgment is affirmed.

Affirmed.

Tyson, O. J., and Haralson, Dowdell, Simpson, Anderson, and Denson, JJ., concur. McClellan, J., dissents.