State ex rel. Bibb v. Town of Warrior

ANDERSON, J.

The appellant sought by mandamus to compel the toAvn council of Warrior, a municipality of less than 6,000 inhabitants, to elect a marshal or other police officer for said municipality. As aptly stated in brief of appellant’s counsel, “the only question in dispute in- this case is whether the Legislature makes it the duty of the town council of the town of Warrior to provide for the appointment or election of a marshal or other police officer, or whether it is given the discretionary power to do so.” If the council has the discretionary power, mandamus will not lie to compel action. If, on the other hand, the duty is an imperative ministerial one, mandamus is the proper remedy to compel action.

Acts 1898-99, p. 724, § 4, requires the election of a marshal by the town council; so the question that arises is whether or not this section has been repealed by the present municipal law, and whether or not the matter is now discretionary with the town council. Section 1067 of the Code of 1907 says: “In cities having a population of less than six thousand and in towns, the council shall elect a clerk, and may elect a recorder, and fix their - salary and term of office, and may determine by ordinance the other officers of such city or town, their salary, the manner of their election, and the term of office, but there shall be no recorder in towns.” It will be noted from the foregoing, that the town council have a discretion as to the creation or election of a marshal or other police officers. Therefore, as the act of 1898-99, makes the selection of a marshal imperative, and section 1067 of the Code makes it discretionary, there is a conflict between said section of the Code and section 4 of the act. The municipal act has a repealing clause of all laws, general and special, in conflict therewith. If, however, this repealing clause did not exist, or in case it relates to general and special laws only, and not to local laws, and whether the act of 1898-99 is a local or special law, as defined by tbe present Constitution, matters not, for the reason that section 1067 of the Code deals with all offices to be created or filled by the town council in towns of less than 6,000 inhabitants, and leaves it discretionary with them, except as to clerks, and as this law deals fully and completely with the subject, it operates as a repeal of section 4 of the act of 1898-99. — Prowell v. State, 142 Ala. 80, 39 South. 164; Lemay v. Walker, 62 Ala. 39; Edson v. State, 134 Ala. 50, 32 South. 308.

The following quotation from section 1048 of the Code of 1907: “Should there be any office existing under the charter of such city or town not authorized by this chapter, such office shall cease to exist at the first election hereunder” — is of no benefit to this appellant. It simply means that the municipality cannot continue an office, though authorized by its charter, if such office is not authorized by the municipal law, but does not mean that all offices which are authorized by the municipal act, and as to which the said act gives a discretion, must of necessity be continued because required by the original charter.

The trial court did not err in its rulings upon appellants’ petition, and the judgment of the city court is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.