This appeal is from a decree granting a temporary injunction, at the request of the Sylacauga Hospital Board, enjoining the Sylacauga Civil Service Board from exercising any power or control over the Hospital Board, and from holding a civil service examination for the office of Administrator of the Sylacauga Hospital.
The Hospital Board filed its bill of complaint for a declaratory judgment and a temporary injunction. The bill charged that the local act creating the Civil Service Board, Act No. 428, Acts of Alabama 1951, p. 763, is unconstitutional in that it violates subdivision (18) of Sec. 104 and other sections of the Constitution of 1901, and that the Civil Service Act has been amended by Act 63, General Acts of 1957, listed in 1957 Supplement as Tit. 22, § 190(1), which permitted city hospitals to incorporate, and it alleged that the Sylacauga Hospital had become incorporated and was no longer under the city or the Civil Service Board. The Hospital Board, appellee, prayed for a temporary injunction and a declaration of rights and legal status of the parties.
No demurrer was filed, but the Civil Service Board filed an answer in which it affirmed its claim of right to hold the examination for the administrator of the hospital, denied the unconstitutionality of the Civil Service Act or that the hospital had been amended out of the act; and also sought a declaration that the Civil Service Law was constitutional and that the Civil Service Board had jurisdiction over the employees of the Hospital Board.
The law firm of McKay and Livingston, by C. W. McKay, Jr., appeared on the bill as solicitor for complainants. The respondents made a motion to require McKay to withdraw from the proceeding on the ground that he had represented the respondents in respect to the identical issues that are involved in this litigation. This motion was denied and dismissed after a hearing before Judge Sullivan. This particular appeal is concerned with the denial of the motion and the granting of the temporary injunction. We only reach the merits of the case to the extent of whether the bill has equity. Both sides to the controversy assert that there is a justiciable controversy,
Appellants state in brief that this appeal is from the denial and dismissal of the motion to remove McKay and from the order granting the temporary injunction, and the record supports this statement. The action on the motion is not such an interlocutory decree as will support an appeal. Tit. 7, § 755, Code 1940. The order granting the temporary injunction will support an appeal. Tit. 7, § 1057, Code 1940.
We come now to question of the injunction. The only reason we need to decide whether there is equity in the bill is because of the injunction feature. A bill without equity will not support an injunction of any character under any circumstances. Kimbrough v. Hardison, 263 Ala. 132, 81 So.2d 606, and cases there cited.
As already noted, the bill challenges the status of the Civil Service Board on two grounds, the first being that the local act creating the Civil Service Board is unconstitutional. The bill alleges that the act violates several sections of the Constitution, but the only section sufficiently argued in brief is subdivision (18) of Sec. 104. That question was decided adversely to appellees in State ex rel. Howard v. Cole, Ala., 110 So.2d 273. The second ground was that the Civil Service Act had been amended by Act 63, Acts of Alabama 1957. We think this ground is sustained.
When the Civil Service Act was passed in 1951, the city hospital was being operated by the City of Sylacauga and Sec. 2 of the act provided that "the word `employee' as used herein shall mean all persons employed by the City of Sylacauga, * * * in all the departments of the city, and in the city hospital, * * *." But in 1957, the Legislature passed Act 63, Acts of Alabama 1957, p. 102, now listed in the 1957 Supplement as Tit. 22, § 190(1), and reading as follows:
The bill shows that the City of Sylacauga, pursuant to Act No. 63, passed an ordinance on August 5, 1958, establishing the Sylacauga Hospital Board and permitting it to become "a body corporate and politic" under the act, and on August 6, 1958, the Hospital Board became a body corporate, and these proceedings were filed in the office of the Secretary of State. It further alleges that "under the provisions of Title 22, Section 190(1) and Section 204(24) of the Code of Alabama, 1940, as amended, complainant has power, together with all powers incidental thereto or necessary to the discharge thereof in corporate form to maintain and operate a hospital and to do all things necessary to that end, to conduct
A case in point is Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 84 So.2d 365, 368. A county-wide civil service system had been established by local law. It also applied to certain municipalities in the county. Later, a general law with local application was passed to take the office of Chief of Police out of the system. We said:
Here, as there, certain conditions were prescribed on which the law would be operative and effective. The conditions were met by compliance with Act No. 63 (Tit. 22, § 190(1)).
This court discussed at length the constitutionality of an act permitting the incorporation of industrial development boards under the authority of municipalities of this state in Opinion of the Justices, 254 Ala. 506, 49 So.2d 175, 180. While the discussion was directed to Sec. 94 of the Constitution, there is a close analogy to the instant case. The opinion contains the following:
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We conclude that since the Hospital Board became a separate entity from the
It appears settled in this state that when a bill contains equity, an order granting a temporary injunction to preserve the status quo until a final hearing will be reversed only if the discretion of the trial judge is exercised arbitrarily or is abused. Berman v. Wreck-A-Pair Building Co., 234 Ala. 293, 175 So. 269; Madison Limestone Co. v. McDonald, 264 Ala. 295, 87 So.2d 539. Appellants do not argue that the trial judge abused his discretion and we find no abuse or arbitrary exercise of that discretion, and the decree of the trial court is due to be affirmed.
We note in passing that even though the prayer of the bill asks service on the Attorney General, the record does not show such service required by Tit. 7, § 166, Code 1940. We call attention to the fact that since the unconstitutionality of a statute is alleged, the record must show service on the Attorney General before the lower court has jurisdiction to proceed to a declaration of rights. Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27; Bond's Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So.2d 582; Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 98 So.2d 50; Smith v. Lancaster, 267 Ala. 366, 102 So.2d 1.
All the Justices concur.