Buffalow v. State ex rel. Inabinett

SIMPSON, Justice. The appellee Jack Inabinett brought this quo warranto proceeding charging appellant Buffalow with usurping, intruding into and unlawfully holding the office of director of the Water Works & Sewer Board of the City of Florala. Inabinett was appointed to the board on January 10, 1961, during his term as a member of the City Council of the City of Florala. His term of office as a member of the City Council expired in October, 1964. He continued to attend and participate in meetings of the Board until he was advised on January 27, 1965 that Buffalow had been appointed as a member of the board to fill the unexpired portion of the term of office created by the expiration of Inabinett’s tenure of office as a city councilman. Buffalow was at the time of his appointment and is at the present time mayor of the City of Florala. After hearing, the trial court entered judgment, pertinent parts of which are set out: [133] rector of Water Works and Sewer Board of the City of Florala. It is Further Ordered and Adjudged by the Court that the cost of this proceeding be and the same is hereby taxed against the respondent, C. E. Buffalow, for which let execution issue. [132] “* * * It is THEREFORE ORDERED AND ADJUDGED BY THE COURT that the respondent, C. E. Buffalow be and he is hereby excluded from the office of Director of the Water Works and Sewer Board of the City of Florala. It is Further Ordered and Adjudged by the Court that the relator, Jack F. Inabinett is not entitled to the office of Di- [133] “The Court files the following opinion, to-wit: Artifcle 4 of the Articles of Incorporation of the Water Works Board of the City of Florala expressly prohibited any member of the city governing board of the City of Florala, Alabama from serving on the city water works board. The Articles of Incorporation were amended, changing the name of the Water Works Board to the Water Works and Sewer Board of the City of Florala and permitting said board to engage in matters not embraced within the original Articles of Incorporation but wholly failed to authorize members of the governing body of the City of Florala to serve on the Board of Directors of the Water Works and Sewer Board of the City of Florala. It is the opinion of the Court that the general statutes of the State permitting members of the city governing bodys [sic] to serve as Directors of such Water Works and Sewer Boards is permissive only and is not directive or mandatory that they must serve on such boards, and the Articles of Incorporation of this particular board not having been amended to permit such serving by the members of the governing body, it is the opinion of the Court that the relator during his term as a member of the City Council of the City of Florala, and the respondent during his term as Mayor of the City of Florala have each been only de facto directors of said board and should each be excluded therefrom. * * * ” The Water Works Board of the City of Florala was incorporated in 1949 under the provisions of Title 37, §§ 394-402, Code of .1940, as amended. The certificate of incorporation contained the following provision : “4. * * * The members of the Board of directors shall be elected by the governing body of the said City of Flora-la. None of the members of the said board of directors shall be an officer thereof. * * * ” This provision was in accordance with the statutes under which the board was incorporated, § 397 providing: “Board of directors. — * * * No member of the board of directors shall be an, officer of the municipality. * * * ” In 1951 the legislature adopted a new set of statutes covering the subject dealt with in Title 37, §§ 394-402, which now appear as § 402(15-27). The new set of statutes provided that corporations already in existence under the old statutes could continue in existence and be governed by such sections or could be amended so as to come under the new statutes. The certificate of incorporation of the Water Works Board of the City of Florala was amended under the provisions of the new statutes so as to permit it to own and operate a sanitary sewer system, etc. and to change its name to “The Water Works and Sewer Board of the City of Florala”. In 1956 the legislature amended further both sections 397 and 402(17) so as to remove the restriction against officers of the municipality being members of the board of directors, and made any offier of the municipality eligible to serve as a member of the board of directors. A 1957 amendment added to the eligibility provision “for the term for which he is appointed or during his tenure as a municipal officer, whichever expires first”. The certificate of incorporation of the Water Works and Sewer Board of the City of Florala was never amended to remove the restriction included therein against officers of the municipality serving as members of the board of directors. The appellant contends that he has a right to the office even though the certificate of incorporation was never amended on the theory that the statute allows it and it was unnecessary to amend the certificate of in [134] corporation to so provide. He further contends that, under the clear language of Title 37, § 402(17) as amended, appellee’s term ended when his tenure as a municipal officer expired in October, 1964. Pie says that a vacancy was created at that time and that the governing body of the City of Florala was authorized to appoint him (the mayor of the city) to fill the vacancy, notwithstanding the fact that the articles of incorporation expressly provided that officers of the city were ineligible. We are in full agreement with the conclusion reached by the trial court, and adopt his conclusions as the opinion here. A careful reading of the statutes involved will clearly indicate that the legislature carefully avoided any implication that the new statutes adopted from time to time were mandatory on the municipalities involved. The new statutes defined the outside limits of the authority of the corporations formed under their provisions. It never indicated that the corporation was required to exercise all of the authority which the legislature permitted it to exercise. The City of Florala was not required to amend its charter so as to come under the 1955 amendments. It was permitted to if it chose. It chose to do so. Further, it was not required to amend its charter to remove the restriction against municipal officers serving on the board of directors of its water works board. It was permitted to if it chose under the 1956 amendment. It did not see fit to remove this restriction and it remains in its articles of incorporation. There is nothing to indicate that the legislature attempted to require that the restriction be removed where it appeared in certificates of incorporation already on file, but rather simply allowed the removal of the prohibition if the board found it desirable. It follows that appellant is not entitled to the office of a director of the Water Works and Sewer Board of the City of Florala because he is presently an officer of the municipality. Further, the appellee is not entitled to the office because he, too, was appointed at a time when he was an officer of the municipality, both of which appointments are prohibited by the Articles of Incorporation of the Water Works and Sewer Board. Affirmed. LIVINGSTON, C. J., and MERRILL, and HARWOOD, JJ., concur.