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State ex. rel. Sargent v. Edwards

Supreme Court of Alabama

April 26, 2019

State of Alabama ex rel. McArthur Sargent, chairman of The Waterworks and Gas Board of Dora, Alabama
v.
Chris Edwards

          Appeal from Walker Circuit Court (CV-18-31)

          SELLERS, JUSTICE.

         McArthur Sargent, chairman of The Waterworks and Gas Board of Dora, Alabama ("the Board"), in the name of the State of Alabama, appeals from an order entered by the Walker warranto seeking to declare Chris Edwards ineligible to hold office as a member of the Board because he is currently serving on the City Council of the City of Dora. We affirm.

         Facts and Procedural History

         The Board was originally incorporated as the Gas Board of the Town of Dora on August 31, 1954, pursuant to Act No. 175, Ala. Acts 1951 (Regular Session). At that time, § 3 of Act No. 175 provided that "[n]o member of the board of directors [of a municipal-utilities board] shall be an officer of the municipality." The Board's original certificate of incorporation echoed this prohibition, stating, in pertinent part:

"(4) The corporate power shall be exercised by a board of directors, which shall consist of three members, which shall be the maximum and minimum number thereof. The members of the Board of directors shall be elected by the governing body of the Town of Dora. None of the members of the said board of directors shall be an officer of the Town of Dora. The members of the board of directors shall be elected in the manner and hold office for the terms as provided by law."

(Emphasis added.)

         In 1956, the Alabama Legislature amended § 3 of Act No. 175, removing the municipal-officer prohibition and providing that "[a]ny officer of the municipality shall be eligible for appointment and may serve as a member of the board of directors." Act No. 116, § 1, Ala. Acts 1956 (2d Special Session). The acts authorizing the incorporation of a municipal-utilities board as a public corporation are now codified at § 11-50-310 et seq., Ala. Code 1975. Section 11-50-313(a), Ala. Code 1975, states, in pertinent part:

"Except as provided herein, any officer of the municipality shall be eligible for appointment and may serve as a member of the board of directors for the term for which he or she is appointed or during his or her tenure as a municipal officer, whichever expires first, and may receive a fee for his or her services, provided it is first approved by the board of directors. ... Notwithstanding the foregoing, the certificate of incorporation or an amendment to the certificate heretofore or hereafter adopted may restrict or prohibit service on the board of directors by officers of the municipality."

         Since 1956, the Board's certificate of incorporation has been amended multiple times. First, in February 1964, a resolution was adopted by the town council increasing the number of members serving on the board of directors from three to five and electing members to fill the new vacancies as well as vacancies created by the expiration of terms of offices. Later, in January 1971, an amendment to the certificate of incorporation was adopted to change the name of the Board to "The Waterworks and Gas Board of Dora, Alabama," to decrease the number of members serving on the board of directors to three, and to authorize the creation of a waterworks system for Dora. The 1971 amendment tracked the original certificate of incorporation paragraph by paragraph, but made changes to certain paragraphs. Notably, paragraph 4 of the 1971 amendment failed to include any reference to the prohibition against municipal officers serving as members of the Board. Finally, in October 1991, a "Restated and Amended Certificate of Incorporation" was adopted, which reads as follows:

"The undersigned, being all of the members of the Board of Directors of The Waterworks and Gas Board of Dora, Alabama and the Secretary of such Board, do hereby restate and amend the Certificate of Incorporation of such Board to read as follows:
"(1) The name of the Corporation is and shall be 'The Waterworks and Gas Board of Dora, Alabama.'
"(2) The location of the principal office of the Corporation shall be in the City of Dora, Alabama, and the post office address of the Corporation shall be Dora, Alabama.
"(3) The duration period of this Corporation shall be perpetual.
"(4) The corporate power shall be exercised by a Board of Directors, which shall consist of three members. The members presently serving are listed below as the undersigned, and upon their expiration of term of office each successor will be appointed by the governing body of the City of ...

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