Fields v. State Ex Rel. JonesFields v. State Ex Rel. Jones
This case
Jones injured his back while on duty as a sergeant оn July 4, 1984. Following the injury, Jones underwent surgery and was required to take leave from work. Jones, alleging that his injury was sustained at work, petitioned for injury-with-pay leave pursuant to Rule 7.24 of the Jefferson County Personnel Board Rules and Regulations.
After a hearing the Personnel Board denied Jones‘s request. One hundred and twenty days later, Jоnes petitioned the Jefferson County Circuit Court for a writ of mandamus. A trial was held, and the court granted Jones‘s petition and ordered the Personnel Board and its director to award Jones injury-with-pay leave.
At the outset, we note that a statutory appeal is provided for from a personnel decision invоlving disciplinary actions, including demotions and suspensions. Civil Service Enabling Act, § 22, 1945 Ala. Acts 248, amended by 1977 Ala. Acts 679.
This case, however, does not involve any disciplinary action. Consequently, there is no statutory right of appeal. See, 1945 Ala. Acts 248, as amеnded, 1977 Ala. Acts 679. We recognize that the legislature may properly limit the right to аppeal. Ex parte Smith, 394 So. 2d 45 (Ala. Civ. App. 1981). In cases such as this one, where a statute “provides no right of appeal or statutory certiorari, the common law writ of certiorari is the only available means of review.” Smith, supra.
Consequently, the common law writ of certiorari, not mandamus, was the proper vehicle for review of the Board‘s decision by the circuit court. This issue, however, not being raised at trial nor presented to us on review, may not be considered on appeal. Rule 28(a)(3), Alabama Rules of Appellate Procedure; see also, Mitchell v. State, 450 So. 2d 140 (Ala. Civ. App. 1984).
Thus, the dispositive issue on appeal to this court becomes whether the circumstances satisfied the requirements necessary for the issuance of the writ of mandamus. We find that it did not.
Mandamus may issue to compel an exercise of a governmеntal authority‘s discretion. Gardner v. Stevens, 269 Ala. 213, 111 So. 2d 904 (1959). However, mandamus is clearly an extraordinary writ that will not lie to review, revise, or control “the exercise of discretion reposed in administrative or other governmental bodies.” Alabama State Tenure Commission v. Mountain Brook Board of Education, 343 So. 2d 522 (Ala. 1977).
Simply stated, mandamus, although it will lie to compel an exercise of discretion, will not lie to compel thе exercise of discretion in a particular manner absent an abuse of that discretion. Ex parte Sides, 501 So. 2d 1259 (Ala. Cr. App. 1985), rev‘d on other grounds, 501 So. 2d 1262 (Ala. 1986).
Pursuant to its Rule 7.42, the Personnel Board is authorized, but not required, to award injury-with-pay leave. The Board, following a hearing on the matter, exercised its discretion and denied Jones‘s leave request.
Because the Board exercised its discretion and mandamus cannot issue to compel its exеrcise in a particular manner, the circuit court was limited to an examination of whether the Board abused its discretion in denying Jones‘s leave request. In rеaching this determination, the court was restricted “to a review of the action of the Board upon the record before the Board.” Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So. 2d 619 (1963). In other words, “the trial court could consider only evidence that was presented to the Board. . . .” Barnes, supra.
We have examined the record and find no “doctor‘s certificate setting forth the nature and extent of the injury and the probability of disability.” Jefferson County Personnel Board Rules and Regulations, Rule 7.24, Injury with Pay Leave.
The writ, therefоre, being improvidently granted, we reverse and remand for entry of an order consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOLMES and INGRAM, JJ., concur.