Wright v. Cook

113 So. 252, 216 Ala. 270, 1927 Ala. LEXIS 150

• Court: Supreme Court of Alabama
• Decided: May 26, 1927
• Docket: 6 Div. 844.
• Status: Published

Opinion

BROWN, J.

Towns in this state having a population of 1,000 and less than 2,000 inhabitants, according to the last federal census, are empowered through their city council or other governing body to select by a majority vote of its entire membership, and in accordance with the plan set out in section 156 of the School Code of 1924, a board of education of five members, to exercise the government and control of the schools of such town. School Code, 1924, § 154. Section 155 of said Code prescribes the qualifications of members of the school board as those “who shall be residents of such city, and who shall not be members of the city council or commission,” and provides that they shall serve without compensation and “shall be chosen solely because of their character and fitness, but no person shall be appointed or elected to the board under the provisions of these sections, who is in any way subject to the authority of the (selecting) board.”

Section 156i fixes the term of the members of the board of education, so selected, at five years and provides that one member shall be elected in April of each year. The members of the board of education so selected are officers of the town and cannot be removed from office except for the causes specified in 173 of the Constitution. Constitution 1901, § 175; Petree v. McMurray, 210 Ala. 639, 98 So. 782; McMurray v. County Board of Education of Franklin County, ante, p. 144, 112 So. 644.

Therefore, it. is clear that the resolution of the town council of Haleyville, made Exhibit B to the bill, in so far as it undertook to remove the complainants from office by declaring the existing board null, is ultra vires. Posey v. Town of North Birmingham, 154 Ala. 511, 45 So. 663, 15 L. R. A. (N. S.) 711; 19 R. C. L. 1137, § 414; 8 Words and Phrases, First Series, page 7145.

The principle is well established that courts of equity will by injunctive process protect the incumbent of an office who shows a prima facie right to continue in office, against the intrusion of adverse claimants out of possession who are without right or title to the office or whose title is not yet established. Casey v. Bryce, 173 Ala. 129, 55 So. 810; 2 High on Injunctions (2d Ed.) § 1315; 5 Pom. Eq. Jur. 335.

The averments of the bill bring the case within the principle last above stated, and the demurrers to the bill were properly overruled. It is not important that complainants, who are also shown to be the incumbents of the office, designated themselves as citizens and taxpayers; this was mere surplusage.

Section 549 found in article 23, chapter 19, of the Code of 1923, dealing with popular election by the people, is without influence here. Dennis et al. v. Prather et al., 212 Ala. 449, 103 So. 59.

Affirmed.

ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.