68 So. 999 | Ala. | 1916
This was an action by appellant to recover a balance of salary claimed by him as one of the recorders of the city of Birmingham. In January, 1910, the office of recorder for police district No. 3, composed of the Twelfth and Thirteenth wards of the city of Birmingham, was created and established by ordinance. In October, 1910, the minutes of the council show that appellant was elected to the office of “recorder of the Third precinct” for a term ending October 1, 1912. Under this election he entered upon and discharged the duties of recorder for police district No. 3 until April 11, 1911, shortly after the reorganization of the niunicicpal government under the act of March 31, 1911, entitled “An act to- provide and create a commission form of government,” etc. (Acts 1911, p. 204 et- seq.), when the commission passed a resolution abolishing forthwith the office of “recorder No1. 4 [at Woodlawn].” Appellant sought to recover his salary from that time for the remainder of the term to which he had been elected.
After April 11, 1911, both 'the commission and the appellant acted upon the understanding that the resolution of that date had been aimed at the office held by him; the commission causing all business 'to be transferred to and transacted in another place and before a different recorder; while appellant, having pro
In the trial court it was held that appellant’s office could be abolished only by an ordinance, not a resolu
We shall assume, without deciding, in favor of appellant, that an ordinance was necessary, and shall inquire whether the trial court, in submitting the issue of fact to the jury, committed any error prejudicial to appellant, for it is clear, we think, that if appellant acquiesced in a result which the commission had undeniable power and authority to bring about, he thereby waived objection to the mere method employed, and must stand concluded.
Appellant was not required to- keep up an unseemly' clamor, but, in view of the only ground of complaint open to him and the fact that his claim for services not in fact rendered was accumulating against the city, the jury may have very reasonably entertained the opinion that he should not have delayed for 18 months to put the matter of his right and the irregularity upon which of necessity it rested to some adequate test by judicial inquiry, or otherwise, and, failing in this, the jury may have found an acquiescence in the resolution as a valid exercise of the commission’s power to abolish appellant’s office. — Byrnes v. St. Paul, 78 Minn. 205,
Still treating the issue as one proper for submission to a jury, a finding, as the jury were authorized to find on plain tendencies of the evidence, that appellant had during the time covered by his claim engaged in the defense or prosecution of criminal or quasi criminal causes which it would have been his duty, his office and tenure remaining intact, to hear and determine in his judicial capacity as recorder, may on proper consideration have had weight with the jury in reaching the conclusion that appellant had acquiesced in the abrogation of the office previously held by him. In this connection it was of no consequence that the mayor, under the former municipal organization, had aided or acquiesced in this practice. Without intending at all to reflect upon appellant’s good faith or efficiency in the discharge of the duties of his office, yet it must be said that this particular feature of it, considered from a strictly legal standpoint, was at all time essentially incompatible with the duties imposed by the office, however careful the incumbent may have been to get the consent of the mayor, as he did, and to a knowledge of this legal implication of his course after the resolution was adopted appellant is held, presumptively at least. And, whatever may have been the attitude of the precedent municipal authorities, the adoption of the resolution purporting to abolish appellant’s office left no-room for an inference that the commission, if informed that the resolution was for any reason ineffectual, would have continued to approve, if approval made any difference. It was then proper to submit to' the jury evidence along this line.
Conceding that the considerations to which we have referred were not conclusive against appellant, it is cer
Charges B and X were properly refused, for the reason that they were equivalent to the general charge for appellant as to those issues of fact which were in dispute and as to which the evidence was in conflict.
■ Charges given at the request of appellee were clearly in line with what we have said concerning those meritorious considerations which the appellee was allowed to place before the jury.
There was no merit in the motion for a new trial.
Affirmed.