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10/27/95 MOBILE COUNTY CONSTABLES ASSOCIATION v.

October 27, 1995

THE MOBILE COUNTY CONSTABLES ASSOCIATION, INC., ET AL.
v.
ALABAMA DEPARTMENT OF PUBLIC SAFETY, ET AL.



Appeal from Mobile Circuit Court. (CV-93-002110). Robert G. Kendall, TRIAL JUDGE.

Cook, Maddox, Shores, Houston, Ingram, and Butts, JJ., concur. Kennedy, J., concurs in the result.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

The Mobile County Constables Association, Inc., and other defendants, appeal from a declaratory judgment and an injunction entered against them by the Mobile County Circuit Court. We affirm.

On July 29, 1993, the Alabama Department of Public Safety; the State of Alabama ex rel. the Alabama Department of Public Safety and Thomas Purvis; Thomas Purvis, individually and in his official capacity as sheriff of Mobile County; and 10 chiefs of municipal police departments, in their official capacities; sued the Mobile County Constables Association, Inc., and, individually, a group of Mobile County constables and one deputy constable. The plaintiffs sought a judgment declaring (1) that the defendants are "not authorized to use or ... display on their ... vehicles any red or blue lights (or any combination thereof) until said ... vehicles have been properly designated as 'authorized emergency vehicles' pursuant to the ... Alabama Code"; and (2) that "persons elected to the office of constable in Mobile County have no authority ... to ... deputize any person ... as 'deputy constable,' and that all prior ... deputizations .... are null, void, and without force and effect." The complaint also sought enforcement of the requested declaratory judgment through injunctive relief.

On December 22, 1993, after hearing evidence presented ore tenus, the trial court entered an order containing findings of fact and Conclusions of law. The material portion of that order is reproduced here:

"The plaintiffs in this action are the Alabama Department of Public Safety, the Chiefs of Police of the incorporated municipalities in Mobile County, the Sheriff of Mobile County, and the State of Alabama ex rel. Alabama Department of Public Safety and Thomas J. Purvis. The defendants are elected constables ([with] the lone exception of defendant Rene J. Stricklin who admittedly holds himself out as being a 'deputy constable') and the Mobile County Constables Association, Inc.

"In their petition, the plaintiffs allege that the persons elected to the office of constable in Mobile County have no authority or power to appoint, nominate, constitute or deputize any person as a 'deputy constable'; and that the defendants are not authorized to operate privately owned motor vehicles that are equipped with emergency blue lights. The plaintiffs seek the following relief:

"1. Injunctive and declaratory relief prohibiting the defendants from appointing or deputizing any person as a 'deputy constable'; and

"2. Injunctive and declaratory relief prohibiting the defendants from using, utilizing or otherwise displaying emergency blue lights on their private vehicles until said private vehicles have been properly designated as 'authorized emergency vehicles' pursuant to the requirements of Section 32-1-1.1(3) of the Alabama Code.

"The defendants opposed the declaratory and injunctive relief sought by the plaintiffs, contending that they have implicit authority to appoint persons to act as 'deputy constables' and that their vehicles are 'police vehicles' that are authorized to be equipped with blue lights under Section 32-5A-115 of the Alabama Code. Alternatively, the defendants contend that they must have authority to operate vehicles equipped with blue lights so that they can adequately discharge their duties to enforce the motor vehicle laws, and they also alternatively argue that their vehicles are in fact 'publicly owned' because many of them have registered their vehicles in the name of their respective precincts.

"Based upon the pleadings, stipulations of the parties, testimony and evidence of record, and arguments of counsel, the court finds and concludes as follows:

"1. The basis for the office of constable is statutory rather than constitutional. Alabama Constables Association v. Wallace, 491 So. 2d 929, 931 (Ala. 1986). Since the office of constable is a creation of the legislature, a constable has only those powers and duties conferred by statute. In re Ingram, 356 So. 2d 618, 620 (Ala. 1978).

"2. There is no statute that authorizes a Mobile County constable to appoint a deputy or to deputize a person as a 'deputy constable.' While the legislature of this state has, by adoption of several local acts applicable to other counties, specifically authorized constables in other counties to appoint deputies, the legislature has never enacted any local act applicable to Mobile County that would authorize Mobile County constables to appoint deputies.

"3. The Attorney General has concluded that 'a constable may appoint a deputy constable only if local legislation exists authorizing the appointment of such a deputy.' Opinion to Constable J.D. Ponds (No. 83-00331, May 30, 1983). While opinions of the Attorney General do not have the force and effect of law and are only advisory in nature, they are entitled to great weight. Osborne v. Banks, 439 So. 2d 695, 698 (Ala. 1983).

"4. In an order issued by Judge Braxton L. Kittrell of the Mobile County Circuit Court in November 1992, the court concluded as follows:

"'The office of constable is a creation of the legislature, and constables have only the powers and duties conferred upon them by statute. Therefore, a constable may appoint a deputy constable only if legislation exists authorizing the appointment of such deputy, and no such legislation exists which ...


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