Appeal
from Dallas Circuit Court (CV-18-900256)
BRYAN,
Justice.
Darrio
Melton ("the mayor"), as mayor of the City of Selma
("the city"), appeals from a judgment entered in
favor of the members of the Selma City Council ("the
council"). We affirm.
In
September 2018, the council adopted Ordinance No. O108-17/18
("the ordinance"). The ordinance gives the council
the power to appoint the city's tax collector, chief of
police, and chief of the fire department "in accordance
and pursuant to [§] 11-43-5, [Ala. Code 1975]." In
relevant part, § 11-43-5, Ala. Code 1975, provides that
"[t]he council may provide for a ... tax collector,
chief of police, and chief of the fire department and shall
specifically prescribe their duties." The mayor vetoed
the ordinance shortly after it was passed by the council.
However, the council later overrode the mayor's veto,
making the ordinance a part of the city's municipal code.
In
October 2018, the mayor sued the members of the council in
their official capacities. Named as defendants were council
members Corey D. Bowie, Angela Benjamin, Samuel Randolph,
Michael Johnson, Johnnie Leashore, Miah Jackson, Susan
Youngblood, Jannie Thomas, and Carl Bowline (hereinafter
referred to collectively as "the defendants"). In
his complaint, the mayor alleged that the ordinance violates
§ 11-43-8l, Ala. Code 1975, which provides, in part,
that the mayor "shall have the power to appoint all
officers [of the city or town] whose appointment is not
otherwise provided for by law." The mayor sought a
judgment declaring the ordinance invalid; the complaint also
sought preliminary and permanent injunctions preventing the
implementation of the ordinance.
The
defendants filed a motion to dismiss under Rule 12(b)(6),
Ala. R. Civ. P., asserting that the complaint failed to
allege a claim on which relief may be granted. The mayor did
not file a response to the motion to dismiss. Following a
hearing, the trial court entered a judgment granting the
motion to dismiss, without providing a specific reason for
its ruling. Shortly thereafter, the mayor filed a motion to
stay the judgment pending an appeal to this Court, and the
trial court denied the motion to stay. In its order denying
the motion to stay, the trial court stated, in part, that the
law "is very clear on the issue presented in this case.
The Court finds that the [mayor] will not be successful on
the merits of an appeal, unless the Alabama Supreme Court
decides to break with years of precedent." The mayor
then appealed.
"The appropriate standard of review under Rule 12(b)(6)
is whether, when the allegations of thecomplaint are viewed
most strongly in the pleader's favor, it appears that the
pleader could prove any set of circumstances that would
entitle [him] to relief. Raley v. Citibanc of
Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985);
Hill v. Falletta, 589 So.2d 746 (Ala. Civ. App.
1991). In making this determination, this Court does not
consider whether the plaintiff will ultimately prevail, but
only whether [he] may possibly prevail. Fontenot v.
Bramlett, 470 So.2d 669, 671 (Ala. 1985); Rice v.
United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.
1984). We note that a Rule 12(b)(6) dismissal is proper only
when it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the
plaintiff to relief. Garrett v. Hadden, 495 So.2d
616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So.2d
768, 769 (Ala. 1986)."
Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993).
The
parties disagree about which statutory provision governs the
council's adoption of the ordinance. The council argues
that this case is governed by § 11-43-5, which is found
in Chapter 43 of Title 11. Chapter 43 is titled "Mayor
and Council, Other Officers, Employees, Departments,
etc." In his complaint challenging the ordinance, the
only pertinent substantive statutory provision the mayor
referenced was § 11-43-81, Ala. Code 1975, also found in
Chapter 43. At the hearing on the motion to dismiss, the
parties continued to focus on Chapter 43, arguing about how
§ 11-43-5 and § 11-43-81 should be read. However,
during the hearing, the mayor's attorney shifted gears at
some point by arguing briefly, for the first time, that a
provision found in Chapter 43D should apply in this
case. The mayor's attorney also mentioned, without
explanation, that Chapter 43C "relates to a
Class 5 municipality" (the parties agree that the city
is a Class 5 municipality).
However,
the trial court here granted a Rule 12(b)(6) motion to
dismiss, which tests the allegations made in the
complaint. Nance, supra. The complaint
referenced Chapter 43, not Chapter 43C or Chapter 43D. As we
will explain below, we have no basis on which to believe that
Chapter 43C or Chapter 43D applies to this case. However, we
will first address the allegations in the complaint
concerning provisions in Chapter 43, which are the only
relevant allegations.
Viewing
the allegations in the complaint most strongly in the
mayor's favor, as we must, see Nance, we
conclude that the trial court did not err in dismissing the
mayor's action. The complaint alleges that the ordinance
giving the council the power to appoint the city's tax
collector, chief of police, and chief of the fire department
"is in direct violation of § 11-43-81."
Section 11-43-81 provides, in part:
"The mayor shall be the chief executive officer, and
shall have general supervision and control of all other
officers and the affairs of the city or town, except as
otherwise provided in this title. He shall have the power to
appoint all officers whose appointment is not otherwise
provided for by law."
(Emphasis added.) As noted, the ordinance states that it was
passed "in accordance and pursuant to [§]
11-43-5," a provision the council relied on in moving to
dismiss. In relevant part, § 11-43-5 provides that
"[t]he council may provide for a ... tax collector,
chief of police, and chief of the fire department and shall
specifically prescribe their duties." Thus, the issue
presented by the complaint and the motion to dismiss was
whether the mayor's general appointment power granted by
§ 11-43-81 is limited by the specific provision in
§ 11-43-5 granting the council the power to
"provide for" a tax collector, chief of police, and
chief of the fire department. That issue turns on the
interpretation of what the term "provide for" in
§ 11-43-5 means, and this Court touched on that issue in
Beasley v. McCorkle, 237 Ala. 4, 184 So. 904 (1938).
Like
this case, Beasley essentially involved a power
struggle between a mayor and a city council. Tuscumbia's
city council adopted an ordinance creating the office of
chief of police, and the city council then appointed someone
to that office. However, the mayor refused to approve the
warrant issued by the city clerk for the police chief's
salary, which led to the police chief suing the ...