Opinion
8 Div. 494.
April 28, 1949.
Appeal from Circuit Court, Madison County; E. H. Parsons, Judge.
Griffin, Ford, Caldwell Ford and C. L. Watts, all of Huntsville, for appellant.
The caption of the proceeding being against G. W. Hughes, Mayor of the Town of Madison, the proceeding is against Hughes, individually. Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Cochrane v. Fuller, The population of the Town of Madison 17 Ala. App. 230, 84 So. 400. In order to show that a person is sued in his representative capacity, the explanatory connective "a" should appear. Holloway v. Calvin, 203 Ala. 663, 84 So. 737; Railway Exp. Agency v. Luverne Bank Trust Co., 30 Ala. App. 172, 2 So.2d 787. is less than one thousand, and the statutes under which relators seek mandamus were never intended to apply and do not apply to such town. Code 1940, Tit. 37, Art. 2. Adoption or reenactment of a statute that has received judicial construction adopts the construction given it. Bank of Mobile v. Meagher, 33 Ala. 622; O'Byrnes v. State, 51 Ala. 25; Ex. parte Matthews, 52 Ala. 51; Huddleston v. Askey, 56 Ala. 218; White v. State, 134 Ala. 197, 32 So. 320; State v. Realty Loan Co., 209 Ala. 559, 96 So. 613; Gallaway Coal Co. v. Stanford, 215 Ala. 79, 109 So. 377.
Lanier, Price, Shaver Lanier, of Huntsville, for appellees.
Objection not raised by specific ground of demurrer is not available under general demurrer on appeal. Montgomery v. Smith, 205 Ala. 557, 88 So. 671; Birmingham Elec. Co. v. Echols, 249 Ala. 589, 32 So.2d 379; Morgan-Hill Pav. Co. v. Fonville, 224 Ala. 383, 140 So. 575; Hunt v. Murdock, 229 Ala. 277, 156 So. 841; Patton v. Swope, 204 Ala. 169, 85 So. 513. The entire complaint is looked to in ascertaining whether defendantdefendant is sued in his individual or representative capacity. Alabama City G. A. R. Co. v. Heald, 178 Ala. 636, 59 So. 461; So. R. Co. v. Gantt, 210 Ala. 383, 98 So. 192; Roney v. Dothan Prod. Co., 218 Ala. 84, 117 So. 422; State ex rel. Terry v. Lanier, 197 Ala. 1, 72 So. 320; Giglio v. Barrett, 207 Ala. 278, 92 So. 668; City Council of Eufaula v. Hickman, 57 Ala. 338. The relief sought is against the mayor of the Town of Madison. Code 1940, Tit. 37, § 91; Tit. 7, § 1072. Title 37, Article 2 of the Code applies to towns having a population less than a thousand. Code 1940, Tit. 37, §§ 5, 90; Baumhauer v. State, 240 Ala. 10, 198 So. 272; State ex rel. Rauntree v. Summers, 248 Ala. 545, 28 So.2d 565.
This appeal is by the respondent Hughes as Mayor of the Town of Madison, Alabama, from a judgment of the circuit court awarding peremptory writ of mandamus, commanding him to call an election to determine whether the town will adopt the commission form of government or remain under the aldermanic form.
There are but two insistences made by the appellant. The first is that he was not proceeded against by the petition for mandamus as the Mayor of the Town of Madison, but as an individual, and that the reference in the petition to "Mayor of the Town of Madison" was merely descriptio personae. The other insistence is that the Town of Madison, which has a population of less than a thousand inhabitants, does not fall within the influence of Chapter 4, Title 37, Code of 1940, or within any other class authorized to adopt the commission form of government.
The answer to the first insistence is that the question was not raised on the trial of the case. Moreover the pleadings aided by judicial knowledge show that the petition, was filed against respondent as Mayor of the Town of Madison. State ex rel. Glenn v. Wilkinson, 220 Ala. 172, 124 So. 211. The record as a whole clearly shows that the proceedings were against Hughes as Mayor of the Town of Madison.
In the light of the provisions of § 1 of the original act establishing commission form of government for cities and towns in Alabama approved April 8, 1911, Acts 1911, p. 330, and subsequent legislative history on that subject and the further fact that it was omitted from the Code of 1923 and subsequently brought forward in the Code of 1940 and adopted therein in Article II, Chapter 4, Title 37, of the last mentioned code, the legislative intent is clear that said article was intended to "apply to all cities and towns in the State of Alabama which now are not, or hereafter may not be, within the influence or operation of any other valid legislative enactment authorizing or adopting the commission form of government, * * *", as provided in § 1 of said original act. Under the present law the field of operation for said article is as to municipalities having a population of less than a thousand inhabitants. This seems to have been the interpretation of said act in Baumhauer et al. v. State ex rel. Smith, 240 Ala. 10, 198 So. 272; Hartwell v. Pillans, 225 Ala. 685, 145 So. 148. This intent is made manifest by the provisions of § 89 and § 90 of Article 2, Title 37, which read as follows:
"§ 89. This article shall only apply to cities and towns which have heretofore adopted the same, or which may hereafter elect to operate under the provisions herein contained. (1911, p. 330.)
"§ 90. Any city may adopt and become organized under the commission form of government provided in this article by proceeding as hereinafter provided. (Ib.)."
This seems to have been the interpretation of said sections by the circuit court in granting the peremptory writ of mandamus.
Moreover, the respondent failed to file a return or answer to the rule nisi issued by the circuit court upon the filing of the petition therefor. The answer was addressed to the petition, which, in legal effect, had spent its force when the rule nisi was granted, requiring that answer or return be made to the rule nisi and not to the petition. Gainer v. Board of Education of Jefferson County et al., 250 Ala. 256, 33 So.2d 880.
We find no error in the record.
Affirmed.
FOSTER, LIVINGSTON, SIMPSON, and STAKELY, JJ., concur.