Davis v. Arn Brief for Appellants

    United Btatta (Earn*! af Appals
For the Fifth Circuit

IN THE

No.

H andy L . D avis, J ohn  F . G ray, W illiam  F . J ones, O scar 
M u rph y , J ohn  L an g h am , Clarence Carson,

Appellants,
v.

F red A rn , J. S. P atterson , L on B. M oreland, as members 
of the Personnel Board of Mobile County, Alabama, and 
H. T. P illan s , as Director of the Personnel Board of 
Mobile County, Alabama,

Appellees.

A ppeal from  th e  D istrict Court of th e  U nited S tates, 
S outhern  D istrict of A labama— S outhern  D ivision

BRIEF FOR APPELLANTS

A rth u r  D. S hores,
P eter A . H all ,

1630 Fourth Avenue, N., 
Birmingham 3, Alabama,

T hurgood M arshall ,
R obert L . C arter,

20 West 40th Street,
New York 18, N. Y.,

Attorneys for Appellants.

Constance B aker  M otley,
New York, N. Y.,

of Counsel.

S upreme Printing Co., Inc.. 41 M urray Street, N. Y „ B A rclay 7-0349
49



IN  THE

imte& (Emtrt of Appeals
For the Fifth Circuit

No.

--------------- ------------------— — ■— - o ---------------------------------------------------------

H andy L . D avis, J ohn  F . G ray, W illiam  F . J ones, O scar 
M u bph y , J ohn  L an g h am , Clarence Carson,

Appellants,
v.

F red A rn , J. S. P atterson , L on B. M oreland, as members 
of tbe Personnel Board of Mobile County, Alabama, and 
H. T. P illan s , as Director of tbe Personnel Board of 
Mobile County, Alabama,

Appellees.

A ppeal from  the  D istrict Court of th e  U nited  S tates, 
S outhern  D istrict of A labama

--------- ----- ------—o----------------------

BRIEF FOR APPELLANTS

P A R T  O N E

Statement of the Case

This is an appeal by Handy L. Davis, John F. Gray, 
William F. Jones, Oscar Murphy, John Langham, and 
Clarence Carson, plaintiffs below, from an order entered 
in the District Court of the United States, Southern 
District of Alabama, on the 4th day of January, 1952, 
granting the Motion to Dismiss filed by appellees, de­
fendants below, and dismissing the complaint (R. 52).



2

Statement of Facts

The amended complaint (R. 2, 15) alleges (1) that the 
plaintiffs are citizens of the United States and of the 
State of Alabama, residing in the cities of Mobile and 
Pritchard, said cities being located in Mobile County, 
Alabama; (2) that all of the plaintiffs are colored persons 
of African descent; (3) that all of the plaintiffs possess 
all of the qualifications required to take the examination 
for the position of either policeman or fireman for the 
cities of Mobile and Pritchard, said qualifications being 
set out in Exhibits A, B and C attached to plaintiffs’ 
amended complaint; (4) that the defendants hold office pur­
suant to the laws of the State of Alabama as administrative 
officers of the State and that, under the rules and regula­
tions of the defendant Personnel Board, taking an examina­
tion is a prerequisite to being certified by the Personnel 
Director for consideration for an appointment as police 
officer or fireman for the cities of Mobile, Pritchard, and 
Chickasaw; (5) that pursuant to the authority vested in 
the Personnel Board, bulletins were issued dated August 25, 
1950, and January 25, 1951, requesting applicants for 
examinations for the positions of policeman and fireman 
for the cities of Mobile, Pritchard, and Chickasaw, said 
bulletins being made a part of the amended complaint and 
attached thereto as Exhibits A, B and C; (6) that plain­
tiffs, in response to said bulletins, made timely applica­
tions to take the examinations for either policeman or 
fireman and were refused application blanks and were 
denied the right to take the examinations by the defendants 
solely because of their race and color. The said bulletins 
announcing the examinations, incorporated in and made a 
part of the amended complaint and attached thereto as 
Exhibits A, B and C, state the following: “ Open  t o : All 
white male U. 8. citizens who meet the requirements as 
set forth herein and who may lawfully be appointed to 
a position.”



3

The appellees moved to dismiss the complaint on seventy 
separate grounds (R. 21). One of these grounds was that 
the appellants had failed to exhaust the administrative 
remedy provided by Act No. 470, Local Acts Alabama, 1939, 
before resorting to the court below for relief.

The court below in granting the Motion to Dismiss 
ruled that the appellants had failed to exhaust their 
administrative remedy which, of itself, was sufficient for 
the granting of the appellees’ Motion to Dismiss without 
ruling on the other grounds. The court thereupon granted 
the Motion and dismissed the amended complaint (R. 52).

Notice of Appeal was filed on February 1, 1952 (R. 53).

P A R T  T W O  

Specification of Errors

The District Court erred in ruling that the appellants 
had failed to exhaust their administrative remedy before 
resorting to it for relief and in dismissing the complaint 
on this ground.



4

P A R T  T H R E E  

ARGUMENT 

I

The doctrine of exhaustion of administrative 
remedies has no application where a determination 
devoid of any legislative function is sought.

The appellee Personnel Board of Mobile County, Ala­
bama, in accordance with the authority conferred on it 
by Act No. 470, Local Acts of Alabama, 1939, on August 26, 
1950, and on January 25, 1951, issued bulletins in which 
it announced open competitive examinations for the posi­
tions of police patrolman and fireman for the cities of 
Mobile, Pritchard, and Chickasaw. The first paragraph 
of each bulletin reads as follows:

“ Open  t o : All white male U. S. citizens who 
meet the requirements as set forth herein and who 
may lawfully be appointed to a posiiton.”  (R. 9, 
12, 16.)

Notwithstanding the express limitation to white male 
U. S. citizens, the appellants, who are non-white, duly 
made timely application to take the said examinations 
but were denied application blanks and the right to take 
the examinations solely because of their race and color. 
Upon being so denied, appellants filed a complaint in the 
court below in which they allege the preceding facts, and 
allege, inter alia, that they possess all of the qualifications 
set forth in the bulletins for taking the examinations and 
allege that they have been denied application blanks and 
the right to take the examinations by the appellees solely 
because of their race and color.

The appellees moved to dismiss the complaint. By 
moving to dismiss the complaint, the appellees, as a matter



5

of law, admit all of the well-pleaded facts. Mitchell v. 
Wright, 154 F. 2d 924, 925.

The court below granted the Motion to Dismiss on the 
ground that the appellants had failed to exhaust their 
administrative remedy. In support of this ground, ap­
pellees relied on the provisions of Act No. 470, Local Acts 
Alabama, 1939, (See Appendix pages 25-33 For Provi­
sions Belied on.)

Local Acts Alabama, 1939, Act No. 470, Section IX (b), 
provides as follows with respect to rules adopted by the 
appellee Personnel Board: “ (b) Buies adopted under this 
section shall have the force and effect of law.”  (See 
Appendix, p. 28.)

The appellee Personnel Board has adopted a rule which 
provides as follows:

“ A pplication s”
# # *

“ 6.5 All citizens who appear to meet the re­
quirements set forth in the public notice are eligible 
to apply for examination upon filing the prescribed 
application within the time required. Application 
forms will be furnished at the offices of the Personnel 
Department.”  (Laws and Buies of Personnel Board 
for Mobile, Alabama, Bevised January 1st 1949.)

In accordance with this law, the bulletins issued by 
the appellee Personnel Board, limiting the examinations 
to white male citizens, set forth the requirements for 
taking the examinations. Therefore, the law, as established 
by the appellee Personnel Board, is that the examinations 
are “ Open  t o : All white male U. 8 . citizens who meet the 
requirements of the Board and who may lawfully be 
appointed to a position.”  In other words, the appellants 
and other Negroes similarly situated, even if  they meet 
the qualifications for the position and may lawfully be 
appointed to a position, may not, under the law, take the 
examination solely because they are not white.



6

In this action, the appellants challenge only the consti­
tutionality of this law. The appellants are not appealing 
to the court below from a decision or order of the Board 
that they are not qualified or may not lawfully be appointed 
to positions, but are seeking a judicial determination of 
the constitutional validity of a law which, on its face, 
precludes their taking examinations conducted by the 
Board and which precludes any consideration of their 
qualifications and any consideration as to whether they 
may lawfully be appointed to positions, solely because of 
their race and color.

The appellants, therefore, seek only a determination 
of a question of law. Any body empowered to determine 
the constitutionality of this law is empowered to perform 
a judicial function. The doctrine of exhaustion of adminis­
trative remedies has no application when the function to 
be performed with respect to a determination is purely 
judicial. See, Alabama Public Service Comm. v. Southern 
R. Co., 341 U. S. 341, 344; Lane v. Wilson, 307 IT. S. 268; 
Federal Radio Commission v. Nelson Bros. B $  M C\o., 
289 U. S. 266; see, Porter v. Investors Syndicate, 286 IT. S. 
461, 471; Old Colony Trust Co. v. Commissioner of Internal 
Revenue, 279 U. S. 716; Pacific Tele, and Tele. Co. v. 
Kuykendall, 265 IT. S. 196; Prendergast v. New York Tele­
phone Co., 262 IT. S. 43; Kellar v. Potomac Electric Power 
Co., 261 U. S. 428; Bacon v. Rutland Railroad Co., 232 
U. S. 134; Mitchell v. Wright, (C. A. 5) 154 Fed. 2d 924; 
Hall v. Nagel, (C. A. 5) 154 Fed. 2d 931; see, Peay v'. Cox, 
(C. A. 5) 190 Fed. 2d 123, 125.

In Mitchell v. Wright, supra, at 928, Mr. Justice Lee, 
separately concurring, said in referring to the doctrine 
of exhaustion of administrative remedies: “ The doctrine 
has no application to a statutory review of a determina­
tion devoid of any legislative function.”



7

The United States Supreme Court, in numerous cases, 
has examined the function to be performed by the reviewing 
agency in determining whether the function was judicial 
or legislative. In so doing, it has set forth a number of 
criteria for determining whether the function to be per­
formed is purely judicial. Some of these criteria are the 
following:

The judicial function involves neither advisory 
nor executive action by the court. Old Colony Trust 
Co. v. Commissioner of Internal Revenue, supra, 
at 724.

The judicial function is confined to the deter­
mination of questions of law. Federal Radio Com­
mission v. Nelson Bros. R & M Co., supra, at 
275-278.

Whenever an application is made for an injunc­
tion upon the ground of the unconstitutionality of 
the order or ruling of an administrative agency. 
Prendergast v. New York Telephone Co., supra, 
at 47.

Whenever the determination involved confines 
the reviewing agency to “ definition and protection 
of existing rights.”  Kellar v. Potomac Electric 
Power Co., supra, at 440.

Determinations of questions of constitutional 
power or right and all pertinent questions of law 
with respect to the order of an administrative 
agency. Kellar v. Potomac Electric Power Co., 
supra, at 442.

No initiatory function is conferred on a judicial 
body. The action must be commenced before such 
body by an aggrieved party. Mitchell v. Wright, 
supra, at 929.

Factors making for a legislative function, on the other 
hand, are quite different:



8

The legislative function involves discretionary 
and initiatory action on the part of the legislative 
or administrative body. Lane v. Wilson, supra, at 
274.

“ Legislation, # * *, looks to the future and 
changes existing conditions by making a new rule, 
to be applied thereafter to all or some part of those 
subject to its power.”  Prentis v. Atlantic Coast 
Line Co., 211 U. S. 210, 226.

When a court has the power to reverse a decision 
of an administrative body and substitute its own 
decision for the decision of the legislative body, then 
the court performs a legislative function. Prentis 
v. Atlantic Coast Line Co., supra., at 224; Federal 
Radio Commission v. General Electric Co., 281 U. S. 
464, 467; Pacific Telephone and Telegraph Co. v. 
Kuykendall, supra, at 202.
When a statutory appeal to a court from an order 
of an administrative agency is an integral part of 
the regulatory process and is supervisory in charac­
ter, then the function performed by the court is 
legislative. Alabama Public Service Commission v. 
Southern R. Co., supra, 348.

The appellants herein seek a determination that the 
requirement herein challenged, which has the force and 
effect of law, violates their right to the equal protection 
of the laws, guaranteed them by the Fourteenth Amend­
ment to the Federal Constitution and seek an injunction 
against continued enforcement of this requirement by the 
appellees. The determination thus sought is one of a ques­
tion of law and obviously involves only the exercise of 
judicial power. It is, therefore, a question which is prop­
erly referred to the judiciary and need not be referred, 
in the first instance, to an administrative agency. Lane 
v. Wilson, supra; Federal Radio Commission v. Nelson



9

Bros. B & M Co., supra; Railroad and Warehouse Com­
mission v. Duluth Street RR Co., 273 U. S. 625; State 
Corporation Commission v. Wichita Gas,Co., 290 U. S. 561; 
Old Colony Trust Co. v. Commissioner of Internal Revenue, 
supra; Pacific Telephone and Telegraph Co. v. Kuykendall, 
supra; Prendergast v. New York Telephone Co., supra; 
Kellar v. Potomac Electric Power Co., supra-; Bacon v. 
Rutland RR Co., supra; Mitchell v. Wright, supra; Hall 
v. Nagel, supra.

II

The remedy provided by Act No. 470, Local Acts 
Alabama, 1939, is a judicial remedy which need not 
be exhausted before resorting to a federal district 
court for relief.

A. The appellees rely on Section XXXIY , Act No. 470, 
Local Acts Alabama, 1939, which provides as follow :

“ C ourt P roceedin'g s : Orders of the Personnel 
Director and Personnel Board may be enforced by 
mandamus, injunction, quo warranto or other ap­
propriate proceedings in a court of competent juris­
diction. Any person directly interested may, within 
five days, appeal to the Circuit Court of Mobile 
County from any order of said Board, by filing notice 
thereof with Board, whereupon said Board shall 
certify to a transcript of the proceedings before it 
and file the same in said court. Findings of fact 
of said Board contained in such transcript if sup­
ported by substantial evidence adduced before said 
Board or before its Personnel Director after hearing 
and upon notice to the interested party or parties 
and after affording such parties an opportunity to 
be heard, shall be conclusive on such appeal. The 
issues on such appeal shall be made up under the 
direction of the Court and within thirty days after 
said transcript is filed therein, and trial thereof 
shall proceed on the evidence contained in such



10

transcript, if it appears therefrom that said evidence 
was taken, after such notice and opportunity to be 
heard. If upon such appeal the Court finds that the 
ruling, order or action appealed from is unlawful 
or unreasonable within the meaning of this Act it 
shall have power to vacate or modify the same.”

The appellees contended in the court below that since 
an appeal lies to the Circuit Court of Mobile County from 
any action taken by the appellee Personnel Board this 
remedy should first be exhausted by the appellants before 
resorting to a federal district court for relief.

Appellants contend that the remedy provided by way 
of appeal to the Circuit Court of Mobile County is judicial. 
The United States Supreme Court and this Court have 
consistently held that such a remedy need not be exhausted 
before resort to a Federal District Court for relief. Lane 
v. Wilson, supra; Federal Radio Commission v. Nelson 
Bros. B S  M Co., supra, Railroad and Warehouse Com­
mission v. Duluth Street RR Co., supra; State Corp. Com­
mission v. Wichita Gas Co., supra; Old Colony Trust Co. v. 
Commissioner of Internal Revenue, supra; Pacific Tele­
phone and Telegraph Co. v. Kuykendall, supra; Kellar v. 
Potomac Electric Power Co., supra; Bacon v. Rutland- RR 
Co., supra; Mitchell v. Wright, supra; Hall v. Nagel, 
supra; see, Pea-y v. Cox, supra, at 125.

The remedy is judicial for the following reasons:
1. By the Constitution of the State of Alabama, Article 

III, Sections 42 and 43, the legislative power of the State 
of Alabama is confined to the legislature and may not be 
exercised by the judiciary. Article III, Section 42, pro­
vides as follows:

“ Distribution of Powers of Government.
“ The powers of the government of the State of 

Alabama shall be divided into three distinct depart­
ments, each of which shall be confided to a separate



11

body of magistracy, to w it: Those which are legisla­
tive, to one; those which are executive, to another; 
and those which are judicial, to another.”  (Skinner’s 
Alabama Constitution Annotated.)

With respect to this provision, the Supreme Court of 
the State of Alabama has held, Birmingham v. Southern 
Bell Tele. etc. Co., 234 Ala. 526, 176 So. 301, that the 
State Courts have no right to sit as boards of review to 
substitute their judgment for that of the legislature or 
its agents in matters within either’s province.

The highest court of the State has also held, with 
respect to this provision, that the State Courts can inter­
fere to control legislative mistakes only when they involve 
a disregard of some constitutional limitation. Ex parte 
Screws, 49 Ala. 57; Scott v. Strohach, 49 Ala. 477.

Article III, Section 43, provides:
“ In the government of this state, except in the 

instances in this Constitution hereinafter expressly 
directed or permitted, the legislative department 
shall never exercise the executive and judicial 
powers, or either of them; the executive shall never 
exercise the legislative and judicial powers, or either 
of them; the judicial shall never exercise the legis­
lative and executive powers, or either of them; to the 
end that it may be a government of laws and not 
of men.”  (Skinner’s Alabama Constitution Anno­
tated.)

With respect to this provision, the Supreme Court of 
the State of Alabama has held, Birmingham V. Southern 
Bell Tel. & Tel. Co., supra, at 531, that no provision of 
the Constitution of the State of Alabama confers legisla­
tive power on any Court. The Supreme Court of Alabama 
also said, at 533, that resort to the courts of the State of 
Alabama is only for the purpose of confining the legislative 
power within constitutional bounds, but if there is no occa­



12

sion for the exercise of that character of review, then the 
courts have no duties to perform.

With respect to questions which the courts may prop­
erly determine in connection with the action of an adminis­
trative agency, the Supreme Court of the State of Alabama 
has pointed out, Birmingham v. Southern Bell Tel. <& Tel. 
Go., supra, at 533, that one may not be unjustly dis­
criminated against by an administrative agency and may 
challenge an order of an administrative agency which is 
made in excess of its powers or which is void for other 
reasons and may, in seeking such a determination, ask the 
court to enjoin an administrative agency from requiring 
that which is in excess of its authority.

Therefore, under the Constitution of the State of Ala­
bama, Article III, Sections 42 and 43, and under the 
decisions of the highest Court of that State, the Circuit 
Court of Mobile County could not properly exercise any 
legislative function, cf., City of Birmingham v. Henry, 
224 Ala. 239, 139 So. 283. In view of this, the remedy 
provided by way of appeal to the Circuit Court of Mobile 
County by Section XXXIV , Act No. 470, Local Acts Ala­
bama, 1939, must be judicial.

2. As indicated by the cases cited above, the United 
States Supreme Court and this Court have consistently 
held that such a remedy need not be exhausted before 
resorting to the federal district court for relief. In 
several of the cases cited supra, the United States Su­
preme Court has also established the criteria for deter­
mining when the remedy provided is judicial as opposed 
to legislative.

In Kellar v. Potomac Electric Power Company, supra, 
the Court set forth the following criteria, at 440:

“ Is the court to pass solely on questions of 
law, and look to the facts only to decide what are



13

the questions of law really arising, or to consider 
whether there was any showing of facts before the 
commission upon which, as a matter of law, its 
finding can be justified? Or has it the powTer, in the 
equitable proceeding, to review the exercise of dis­
cretion by the commission and itself raise or lower 
valuation, rates, or restrict or expand orders as to 
service? Has it the power to make the order the 
commission should have made? If it has, then the 
court is to exercise legislative power in that it will 
be laying down new rules, to change present con­
ditions and to guide future action, and is not con­
fined to definition and protection of existing rights. ’ ’

In Pacific Telephone and Telegraph Go. v. Kuykendall, 
supra, the Court, in finding a judicial remedy, noted the 
following, at 200:

“ By the statutes * * * any complainant affected 
by any order of the commission * *' *, may, within 
30 days, apply to the superior court of the proper 
county for a writ of review ‘ for the purpose of 
having its reasonableness and lawfulness inquired 
into and determined.’ The commission certifies the 
record upon which the court is to enter judgment 
affirming or setting aside the commission’s order. 
If reversed for failing to receive proper evidence 
offered, the case is to be referred back to the com­
mission to receive the evidence and enter a new 
order. The court may remand any case reversed 
by it to the commission for further action. It is 
clear that the function to be performed by the su­
perior court under this section is judicial. It does 
not fix rates or enter a new order as to them. It does 
not pass on the sufficiency or weight of the evidence. 
It only looks into the reasonableness and lawfulness 
of the order of the commission, and is to determine 
whether evidence which should have been received 
was rejected, and in that case is to send the case 
back to the commission for a new order. The court 
does not act legislatively.’ ’



14

In Federal Radio Commission v. Nelson Bros. B do M, 
Co., supra, the Court again, in finding a judicial remedy, 
noted the following at 275-278:

“ That review is now expressly limited to ‘ ques­
tions of law’ and it is provided ‘ that findings of 
fact by the Commission, if supported by substantial 
evidence, shall be conclusive unless it shall clearly 
appear that the findings of the Commission are 
arbitrary and capricious’ * * #. No longer is the 
court entitled to revise the Commission’s decision 
and to enter such judgment as the Court may think 
just. * * * Questions of law form the appropriate 
subject of judicial determinations. * * * Whether 
the Commission applied the legislative standards 
validly set up, whether it acts within the authority 
conferred or goes beyond it, whether its proceedings 
satisfy the pertinent demands of due process, 
whether, in short, there is compliance with the legal 
requirements which fix the province of the Com­
mission and govern its action, are appropriate ques­
tions for judicial decision. These are questions of 
law upon which the court is to pass. The provision 
that the Commission’s findings of fact, if supported 
by substantial evidence shall be conclusive unless it 
clearly appears that the findings are arbitrary or 
capricious, cannot be regarded as an attempt to 
vest in the court an authority to revise the action 
of the Commission from an administrative stand­
point and to make an administrative judgment. 
A finding without substantial evidence to support 
it—an arbitrary or capricious finding—does violence 
to the law. It is without the sanction of the au­
thority conferred. And an inquiry into the facts 
before the Commission, in order to ascertain whether 
its findings are thus vitiated, belongs to the judicial 
province and does not trench upon, or involve the 
exercise of administrative authority. Such an ex­
amination is not concerned with the weight of the 
evidence or with the wisdom or expedience of the 
administrative action. (Cases cited.)”



15

[Compare Ala. Pub. Ser. Com. v. Southern R. Co., supra, 
at 348 where the Circuit Court was empowered to review 
the weight of the evidence.]

“ If the questions of law thus presented were 
brought before the Court by suit to restrain the 
enforcement of an invalid administrative order, 
there could be no question as to the judicial charac­
ter of the proceeding. But that character is not 
altered by the mere fact that remedy is afforded 
by appeal. The controlling question is whether the 
function to be exercised by the Court is a judicial 
function, and if so, it may be exercised on an au­
thorized appeal from the decision of an administra­
tive body. We must not ‘ be misled by a name, but 
look to the substance, and intent of the proceeding.’ 
(Citing cases.) ‘ It is not important,’ we said in 
Old Colony Trust Go. v. Commissioner of Internal 
Revenue, supra, ‘whether such a proceeding was 
originally begun by an administrative or executive 
determination, if when it comes to the court, whether 
legislative or constitutional, it calls for the exercise 
of only the judicial powrnr of the court upon which 
jurisdiction has been conferred by law.’ Nor is it 
necessary that the proceeding to be judicial should 
be one entirely de novo. When on the appeal, as 
here provided, the parties come before the Court 
of Appeals to obtain its decision upon the legal ques­
tion whether the Commission has acted within the 
limits of its authority, and to have their rights, as 
established by law, determined accordingly, there is 
a case or controversy which is the appropriate sub­
ject of the exercise of judicial power. The provision 
that, in case the Court reverses the decision of the 
Commission, ‘ it shall remand the case to the Com­
mission to carry out the judgment of the Court’ 
means no more than that the Commission in its 
further action is to respect and follow the Court’s 
determination of the questions of law7. # * * ”

Reviewed in the light of these criteria, the remedy 
afforded by way of appeal to the Circuit Court of Mobile



16

County is clearly judicial. The Circuit Court of Mobile 
County is to pass solely on questions of law. cf., Kellar 
v. Potomac Electric Power Company, supra, at 440. cf., 
Federal Radio Comm. v. Nelson Bros. B £  M, Co., supra, 
at 275. It is to look to the facts only to decide what are 
the questions of law really arising and to consider whether 
there is any showing of facts before the Personnel Board 
upon which, as a matter of law, its finding can be justified. 
cf., Kellar v. Potomac Electric Power Co., supra, at 440. 
It does not have the power to review the exercise of dis­
cretion by the Personnel Board and itself make rules or 
classifications, cf., Kellar v. Potomac Electric Power Co., 
supra, at 440. It does not have the power to make the 
order which the Personnel Board should have made. It is 
confined by the express provisions of Section XXXIV , 
to “ definition and protection of existing rights.”  cf., Kellar 
v. Potomac Electric Power Co., supra, at 440. By the pro­
visions of Section X X X IV  any person directly interested 
may appeal to the Circuit Court from any order of the 
Personnel Board for the purpose of having its reasonable­
ness and lawfulness inquired into and determined, cf., Pa­
cific Tel. and Tel. Co. v. Kuykendall, supra, at 200. The 
Board certifies the record upon which the Circuit Court 
is to enter judgment vacating or modifying the Board’s 
order, cf., Pacific Tel. £  Tel. Co. v. Kuykendall, supra, 
at 200. If the Circuit Court finds that proper evidence 
has not been received, the case may be referred back to 
the Personnel Board to receive the evidence and enter a 
new order. Personnel Board of Mobile County v. Bunkley 
(Supreme Court of Alabama, 1951), 255 Ala. 299, 51 
So. 2d 368. The Circuit Court of Mobile County does not 
pass upon the sufficiency or weight of the evidence. Com­
pare, Alabama Public Service Commission v. Southern 
Railroad Co., supra, at 348 (where the Circuit Court was 
empowered to review the weight of the evidence). Section 
X X X IV provides that the findings of fact of the Personnel



17

Board, if supported by substantial evidence, shall be conclu­
sive. The provision that the Board’s findings of fact, if 
supported by substantial evidence, shall be conclusive, 
cannot- be regarded as an attempt to vest in the Circuit 
Court of Mobile County an authority to revise the action 
of the Personnel Board from an administrative stand­
point and to make an administrative judgment, cf., Fed­
eral Radio Commission v. Nelson Bros. B d  M Co., supra, 
at 275. The character of the proceeding before the Circuit 
Court of Mobile County is not altered by the mere fact 
that remedy is afforded by appeal. The controlling ques­
tion is whether the function to be exercised by the court 
is judicial, cf., Federal Radio Commission v. Nelson Bros. 
B d  M Co., supra at 277. Neither is the judicial character 
of the proceeding before the Circuit Court affected by the 
fact that the proceeding is not one entirely de novo, cf., 
Federal Radio Commission v. Nelson Bros. B d  M Co., 
supra, at 275. When the Circuit Court of Mobile County 
reviews the action of the Personnel Board, it calls for 
the exercise of only the judicial power of the Court. The 
parties come before the Circuit Court to obtain its decision 
upon a legal question and to have their rights as established 
by law determined accordingly, cf., Federal Radio Com­
mission v. Nelson Bros. B d  M Co., supra, at 275. The 
appeal provided for from an order of the Personnel Board 
is not an integral part of the regulatory process. Compare, 
Alabama Public Service Commission v. Southern RR Co., 
supra, at 348. All the regulations are made by the Per­
sonnel Board. The Circuit Court of Mobile County is not 
empowered to make or change these regulations. It can 
only determine whether the regulations as made are within 
the confines of the provisions of Local Acts Alabama, 1939, 
Act No. 470. Neither is the appeal to the Circuit Court 
supervisory in character. The Circuit Court cannot tell 
the Personnel Board what rule to make. Nor is the Circuit 
Court empowered to approve or disapprove of the rule



18

adopted. It can only modify a rule to conform to the 
law as established. Compare, Alabama Public Service 
Commission v. Southern RR Co., supra, at 348. Finally, 
an examination of the entire statutory scheme indicates 
that since the only appeal provided for from an order of 
the Personnel Board is to the Circuit Court of Mobile 
County, the judicial decision rendered by that Court is 
res judicata and thus precludes a subsequent suit in a 
federal district court on the same question, cf., Peay v. 
Cox, supra, at 125. And since no appeal lies to the United 
States Supreme Court from a final judgment of the Circuit 
Court of Mobile County, and since no appeal is expressly 
provided for by Act No. 470 to the Supreme Court of 
Alabama, the procedure for review of an order of the 
Personnel Board is ‘ ‘ inadequate to preserve for ultimate 
review”  in the United States Supreme Court the Federal 
question here involved. Compare, Alabama Public Service 
Commission v. Southern Railroad Co., supra, at 349. 
Therefore, this remedy need not be exhausted by appellants 
before resorting to the federal district court for relief.

B. Neither is it necessary for the appellants to first 
appeal to the Personnel Board before resorting to the fed­
eral district court for relief. The complaint as amended 
specifically alleges in paragraphs 10 and 12 that the plain­
tiffs (appellants) were denied application blanks and the 
right to take the examinations solely because of their race 
and color by the defendants (appellees). It is clear from 
the allegations of the complaint as amended, however, and 
the exhibits attached thereto and incorporated in and 
made a part of said complaint that the action herein com­
plained of is the action of the appellee Personnel Board 
and not the action of the Personnel Director. The rule pro­
viding that only those persons who appear to meet the 
requirements set forth in the public notice are eligible is 
a rule adopted by the appellee Personnel Board. The 
bulletins announcing that the examinations are limited to



19

white male U. S. citizens were issued by the Personnel 
Board and, in accordance with Buie 6.5, adopted by the 
appellee Personnel Board, only the persons who appear 
to meet this requirement are eligible to apply for the 
examinations. The Personnel Director is not an inde­
pendent agent. He is an employee of the Board and acts 
for the Board, performing merely ministerial duties. Act 
No. 470, Local Acts Alabama, 1939, Section VIII. Any 
recommendations made by the Personnel Director with 
respect to rules which should be adopted must be approved 
by the Board. Local Acts of Alabama, 1939, Act. No. 470, 
Section VIII and Section IX. The Personnel Director 
is subject to the rules adopted by the Board. The Board’s 
rule prohibits the Personnel Director from accepting the 
applications of the appellants. It is, therefore, clear that 
the action complained of herein is the action of the appellee 
Personnel Board and not the action of the Personnel 
Director. (See Appendix for text of Sections cited.)

The action complained of is the adoption by the Board 
of a rule which has the force and effect of law, which, on 
its face, discriminates against the appellants solely because 
of their race and color, in clear violation of the prohibitions 
of the Fourteenth Amendment to the Federal Constitution. 
cf., Ex parte Virginia, 100' U. S. 346; cf. Nixon v. Herndon, 
273 U. S. 536.

As pointed out above under I, the sole function to be 
performed by any agency or body in determining this 
constitutional question is purely judicial, and since the 
controlling question is the function to be performed, Fed­
eral Radio Commission v. Nelson Bros. B & M Co., supra, 
at 277, any remedy provided by way of appeal to the 
Personnel Board must be judicial and, likewise, need not 
be exhausted before resort to a federal district court for 
relief.



20

By Article VI, Section 139, of the Alabama Constitution 
(Skinner’s Alabama Constitution Annotated), the legisla­
ture may confer judicial power upon an administrative 
agency or individual. E x parte Thompson, 228 Ala. 113 ; 
State Tax Commission v. Stanley, 234 Ala. 66.

Article VI, Section 139, provides as follows:
“ The judicial power of the state shall be vested 

in the senate sitting as a court of impeachment, a 
supreme court, circuit courts, chancery courts, courts 
of probate, such inferior courts of law and equity, 
to consist of not more than live members, as the 
general assembly may from time to time establish 
and such persons as may be by law invested with 
powers of a judicial nature; * *'

If the appellees are correct in their contention that 
the appellants should have appealed first to the Personnel 
Board before resorting to the federal district court for 
relief, despite the fact that the legislative process was 
complete, then it must be assumed that the legislature of 
the State of Alabama has conferred upon the Personnel 
Board the right to exercise judicial power in connection 
with its rule making power. No provision of Local Acts 
Alabama, 1939, Act No. 470, confers judicial power on the 
appellee Personnel Board with respect to its rule making 
power. Section X X V I of said Act provides that the Board 
shall “ make studies upon all matters touching the enforce­
ment and effect of the provisions of this Act and the rules 
and regulations prescribed thereunder.”  The power to 
make studies obviously does not contemplate a judicial 
power. Section VTI(4) of said Act provides that the Per­
sonnel Board is authorized “ To make such investigations 
as, in the Board’s opinion, are reasonable * * Such 
investigations are authorized for the purpose of deter­
mining whether the provisions of the Act are being observed 
and the rules and regulations made pursuant thereto are 
being enforced, and to determine their effect. Section



21

V II(7) of said Act provides that the Board is “ To con­
sider and act on such matters as may be referred to the 
Board by the Director.”  The matters which may be 
referred to the Board by the Director are set out in the 
Act itself. See Sections XII, XV, IX, VIII. It may be 
argued that the Board has judicial power with respect to 
an appeal from the action of the Personnel Director in 
determining that an applicant is not qualified. Compare, 
Mitchell v. Wright, supra, at 930. But the appellants 
herein are not appealing from the determination of the 
Personnel Director that they are not qualified. They are 
appealing from a rule of the Board which prohibits the 
Personnel Director from considering their qualifications 
in the first instance, and which precludes any action with 
respect to them or their qualifications or their right to 
be appointed to a position.

The Supreme Court of the State of Alabama has clearly 
indicated that the function to be performed by the Per­
sonnel Board of Mobile County under Act No. 470, Local 
Acts Alabama, 1939, with respect to its power to classify, 
is purely legislative, and the function to be performed by 
the Circuit Court of Mobile County with respect to an 
appeal from any action of the Personnel Board is purely 
judicial. Personnel Board of Mobile County v. Bunkley 
(Supreme Court of Alabama, 1951), 255 Ala. 299, 51 So. 
2d 368.

In Personnel Board of Mobile County v. Bunkley, supra, 
an appeal was taken by the Tax Collector of Mobile County 
to the Circuit Court of Mobile County from an order of the 
Personnel Board of Mobile County denying the Tax Col­
lector’s petition for reclassification of the position of a 
principal clerk in the Tax Collector’s office to the position 
of chief clerk. The Circuit Court is given power by Sec­
tion XXXIV, Act No. 470, Local Acts Alabama, 1939, to 
vacate or modify an order of the Board if it should find



22

the order to be “ unlawful or unreasonable within the 
meaning of this Act,”  i.e., Act No. 470, Local Acts Ala­
bama, 1939. The Circuit Court stated the issue before it 
to be the following:

“ Is the action of the Personnel Board in denying 
the foregoing petition unlawful or unreasonable 
within the meaning of the Act creating the classified 
service in Mobile County, and, if the Court should 
so find, in what manner and to what extent should 
the action of the Personnel Board be modified, or 
vacated. ’ ’

The Circuit Court of Mobile County, after a trial on 
all the questions involved, set aside, annulled, and held 
for naught the order of the Personnel Board of Mobile 
County. The Personnel Board thereupon appealed to the 
Supreme Court of the State of Alabama. The Supreme 
Court of the State reversed the Circuit Court upon finding 
that the Circuit Court did not confine itself to the issue 
which the Circuit Court itself had indicated was before 
it upon the appeal, but instead had proceeded to try all 
of the questions involved, including a determination of the 
wisdom and propriety of the action of the Personnel Board 
in denying the request for a reclassification.

The Supreme Court of Alabama said, at 371:
‘ ‘ The above quoted provision of Section XXXIV, 

supra, provides specifically that the trial in the 
circuit court shall proceed on the evidence contained 
in the transcript of the proceedings before the Per­
sonnel Board, if it appears therefrom that said 
evidence was taken after notice and opportunity to 
be heard. * * * If in fact the transcript of the pro­
ceedings before the Personnel Board is erroneous 
or incomplete that matter should be corrected before 
entering on a trial on appeal.

“ In our opinion the trial court misconceived its 
authority under the statute and proceeded to try 
issues not contemplated by the statute, * *



23

It is, therefore, clear that the action of the appellee Per­
sonnel Board in making a classification is purely legislative 
and that the action of the Circuit Court of Mobile County 
in reviewing such legislative determinations is purely judi­
cial, i.e., the Circuit Court of Mobile County is confined to 
performing a judicial function, i.e., a determination as to 
whether the action of the Personnel Board “ is unlawful 
or unreasonable within the meaning of this Act,’ ’

The appellants herein challenge the constitutional 
validity of a classification of the appellee Personnel Board, 
which classification is the result of the exercise of the 
Board’s legislative power. To appeal to the Board for 
the purpose of having it determine the constitutional 
validity of such a classification is to ask the Board to per­
form a judicial function. Such an appeal is not provided 
for by Local Acts of Alabama, 1939, Act No. 470. An appeal 
lies to the Circuit Court of Mobile County to determine 
whether this exercise of legislative power is “ unlawful or 
unreasonable”  within the meaning of Act No. 470, Local 
Acts Alabama, 1939. In other words, only the Circuit 
Court of Mobile County may perform this judicial function.



24

Conclusion

Wherefore, it is respectfully submitted that this court 
should reverse the judgment of the court below.

A rth u r  D. S hores,
P eter A. H all ,

1630 Fourth Avenue, N., 
Birmingham 3, Alabama,

T hurgood M arshall , 
R obert L. Carter,

20 West 40th Street,
New York 18, N. Y.,

Attorneys for Appellants.

C onstance B aker  M otley,
New York, N. Y.,

of Counsel.



25

APPENDIX

Section VII. P ersonnel B oard : The Personnel Board 
shall consist of three members designated respectively as 
Member Number One, Member Number Two, and Member 
Number Three, each of whom shall be over 21 years of age, 
of recognized good character and ability, a bona fide resi­
dent and a qualified elector of Mobile County, and shall not, 
when appointed, nor for the three years then next preced­
ing the date of his appointment have held any Mobile County 
or City public office, nor have been a candidate for such. 
If any person actively solicits a position on such Board, the 
Committee may, for this reason, refuse to consider his 
appointment. The Board shall meet once a month on dates 
to be fixed by its Buies and regulations and as much oftener 
as shall be necessary for the orderly dispatch of its busi­
ness. The members of the Board shall be selected for the 
following terms and in the following manner; the Citizens 
Supervisory Committee shall, within thirty days after this 
Act becomes effective, appoint all three members and shall 
appoint the successors of said Board Members within thirty 
days after a term expires or a vanancy occurs. Member 
Number One who shall be the Chairman of the Board shall 
hold office for a term of two years beginning on the date 
this Act becomes effective and until his successor is ap­
pointed and has qualified. His successor shall hold office 
for terms of six years, the first of which shall begin two 
years after the passage of this Act and the subsequent terms 
shall begin each six years thereafter. Member Number 
Two shall hold office for a term of four years beginning on 
the date this Act becomes effective and until his successor 
is appointed and has qualified. His successors shall hold 
office for terms of six years, the first of which shall begin 
four years after the passage of this Act and the subsequent 
terms shall begin each six years thereafter. Member Num­
ber Three shall hold office for a term of six years beginning



26

on the date this Act becomes effective in said County and 
until his successor has been appointed and has qualified. 
His successors shall hold office for terms of six years, the 
first of which shall begin six years after the passage of this 
Act and the subsequent terms shall begin each six years 
thereafter. In the event of a vacancy on the Board occa­
sioned by death, resignation, impeachment or other cause, 
such vacancy shall be filled by the Citizens Supervisory 
Committee for the then unexpired term. Each Member 
shall receive ten dollars for each meeting of the Board 
attended by him, provided no Member shall receive more 
than Forty Dollars ($40.00) compensation for services dur­
ing any one month. This compensation shall be paid as 
provided in Section 30 hereof. It shall be the duty of the 
Board as a body: (1) To select a Personnel Director as 
hereinafter provided in Section 9 of this Act. (2) After a 
Public Hearing or Hearings to adopt and amend Rules and 
regulations for the administration of this Act, as hereinafter 
provided. (3) After a Public Hearing or Hearings to adopt, 
modify, or reject such Classification and Compensation 
Plans for the Classified Service together with Rules for 
their administration, as may be recommended by the Direc­
tor after a thorough survey by him of the personnel and de­
partmental organizations included in such plan or plans. 
(4) To make such investigations as, in the Board’s opinion, 
are reasonable, either on petition of a citizen, taxpayer, or 
party at interest, or of its own motion, concerning the en­
forcement and effect of this Act, and to require observance 
of its provisions and the Rules and Regulations made pur­
suant thereto. (5) To conduct hearings and to render deci­
sions, as hereinafter provided, on charges preferred against 
persons in the Classified Service. (6) To make such investi­
gations as, in the Board’s opinion, are reasonable, as may be 
requested by the governing bodies of the County or of any 
City therein or by the Citizens Supervisory Committee and 
to report thereon to the governing body of Committee re­
questing same. (7) To consider and act of such matters as



27

may be referred to the Board by the Director. (8) To repre­
sent the public interest in the improvement of personnel 
administration in the Classified Service. (9) To advise and 
assist the Director in fostering the interest of institutions of 
learning, civic, professional, and employee organizations in 
the improvement of personnel standards in the Classified 
Service. The Board shall also have the authority, functions, 
and duties as in other sections of this Act provided.

Section VIII. P ersonnel! D irector: The Board shall 
elect and fix the salary of the Director who shall hold office 
at the will of the Board. The Director shall be a bona fide 
resident of such county and a qualified elector thereof. His 
■salary shall be fixed by the Personnel Board, subject to 
revision by the Supervisory Committee, provided, however, 
that said salary shall not exceed $4,200.00 per year. The 
Director’s salary shall be payable monthly and as provided 
in Section 30 hereof. The Director, as executive head of the 
Department, shall direct and supervise all its administrative 
and technical activities. It shall be his duty to: (1) Attend 
all meetings of the Board, and provide for recording its 
official actions, but he shall not have a vote. (2) Appoint 
from the Employment Register such employees of the 
Department, and such experts and special assistants as may 
be necessary to carry out effectively the provisions of this 
Act; (3) Prepare and recommend Rules and regulations for 
the administration of this Act. (4) Recommend, and on its 
adoption, establish, administer and execute a Classification 
Plan for the Classified Service. (5) Submit to the Board 
a Pay Plan for all positions in the Classified Service. (6) 
Conduct Tests, Formulate Employment Registers, and cer­
tify persons qualified for appointment; Devise and admin­
ister employee Service Ratings. (7) Examine all pay rolls 
or other compensation for personal services within the 
Classified Service with authority to disapprove, from time 
to time, any item or items thereof, and no such items so 
disapproved in writing by him shall be paid or authorized



28

for payment. (8) Establish and maintain a Roster of all 
of the officers and employees in the Classified Service. (9) 
Make .such reasonable investigations pertaining to person­
nel, salary scales, and employment conditions in the Classi­
fied Service as may be requested by the Board, the Citizens 
Supervisory Committee, or by the governing bodies of the 
County or of any City therein. (10) Make investigations 
concerning the administration an effect of this act and the 
rules made thereunder and report his findings and recom­
mendations to the Board. (11) Make an annual report to 
the .Board. (12) Perform any other act or acts required of 
him under this Act or required of him by the Board which 
may be necessary or proper to carry into effect its purposes 
and spirit. The Director may join or subscribe to any asso­
ciation or service or publication having as its purpose the 
interchange or dissemination of information relating to the 
improvement of personnel administration.

Section IX. R u l e s : (a) The director shall recommend 
such Rules as he may consider necessary, appropriate, or 
desirable to carry out the provisions of this Act, and may 
from time to time recommend amendments thereto. When 
such Rules or amendments are recommended by the Direc­
tor, the Board shall hold a Public Hearing thereon, and at 
or after such hearing shall approve or reject the recom­
mendations of the Director wholly or in part or to modify 
them and approve them as so modified. Rules hereunder 
shall be recommended by the Director with or without the 
advice of any appointing authorities as soon as practicable 
after his appointment.) The Board shall have power on its 
own initiative) to propose Rules, amendments or additions 
to the Rules and, after holding a Public Hearing thereon, 
adopt, modify, or reject them, (b) Rules adopted under 
this section shall have the force and effect of law. (c) 
Among other things, such Rules shall provide for the method 
of administering the Classification Plan and the Pay Plan;



29

the establishment, maintenance, consolidation, and cancella­
tion of Lists; the charge, if any, to be made for receipt of 
applications or admission to Tests; the application of Serv­
ice Ratings; the hours of work, attendance regulation, and 
leaves of absence for employees in the Classified Service; 
and the order and manner in which Layoffs shall be 
effected.) Such Rules may include any provisions relating 
to the Classified Service, not inconsistent with the laws of 
the state, which may be necessary or appropriate to give 
effect to the provisions and purposes of this Act. (d) The 
powers herein conferred upon the Director shall be subject 
only to the provisions of this Act and of the Rules adopted 
hereunder, and may be exercised by regulation or by order 
as the Director sees fit. His powers and duties shall not be 
limited or restricted) by the authorization to adopt Rules, 
except to the extent that Rules are adopted thereunder.

* # #
Section XII. T e s t s : The Director shall conduct Tests 

to establish Employment Registers for the various classes 
of positions in the Classified Service. The Director shall so 
conduct the tests as to take into consideration elements 
of character, reputation, education, aptitude, experience, 
knowledge, physical fitness, and other pertinent matters. 
The Tests may be written and/or oral, and/or any other 
demonstration of fitness as the Director may determine. 
Public notice of the time, place, and general scope of every 
Test shall be given. The Director shall determine the quali­
fications for admission to any Test. For a promotion Test, 
the qualifications shall include the requirement that an 
applicant be employed in a position in such class, and for 
such length of time, as the Director shall specify, subject 
to the Rules. Subject to such limitations as to age and sex 
as the Director considers for the best interests of the serv­
ice, admission to tests shall be open to all persons who 
appear to possess the required qualifications for such Test 
and may be lawfully appointed to a position in the class for



30

which a List is to be established, and who pay the fee, if 
any, .prescribed by the Rules. The Director may, however, 
reject the application of any person for admission to a Test 
or may strike the name of any person from a list or refuse 
to certify the name of any person on a list for a position if 
he finds that such person lacks any of the required qualifica­
tions, or is physically unfit to perform effectively the duties 
.of the position in which he seeks employment, or is addicted 
to the habitual excessive use of drugs or intoxicating liquor, 
or. has been, convicted of a felony or guilty of any crime 
involving moral turpitude, or had been dismissed from the 
public service for delinquency, or has made a false state­
ment of a material fact or practiced or attempted to practice 
any fraud or deception in his application or Test or in 
attempting to secure appointment. The names of Persons 
employed in any Classified Service at the time of the pas­
sage of this Act shall be placed on the employment Roster 
without standing the initial test herein provided for and 
•shall be subject to the provisions of this Act.

'* # *
Section XV. A ppo in tm en t  : Whenever a vacancy in

the Classified Service is to be filled by Appointment, the 
Appointing Authority shall submit to the Director a state­
ment of the title of the position, and if requested by the 
Director to do so, the duties of the position and desired 
qualifications of the person to be appointed, and a request 
that the Director certify to him the names of persons eligible 
for appointment to the position. The Director will, after 
the Board determines that there is a need that the position 
be filled, certify to the Appointing Authority the name of 
three ranking eligibles from the most appropriate register 
and if more than one vacancy is to be filled, the name of one 
additional eligible for each additional vacancy, or if agree­
able to the Appointing Authority, all the names on the 
register if there are fewer than the above required number; 
provided that where residence qualifications are prescribed



31

by the Appointing Authority, only those having such resi­
dence qualifications, or if more than three have such qualifi­
cations, then the three highest having such qualifications, 
shall be certified. If it should prove impossible to locate 
any of the persons so certified or should it become known to 
the Director that any person is not willing to accept the 
position, and/or there are less than the above required 
number of eligibles, the Appointing Authority may request 
that additional names be certified until the proper number 
of persons eligible and available for Appointment have been 
certified. Within ten days after such names are certified 
the Appointing Authority shall appoint one of those whose 
names are certified to each vacancy which he is to fill. In 
the event he has fewer than the authorized number of 
persons from which to make his selection, he may choose 
from the remaining certified names or may elect to make a 
provisional appointment as provided by Section 19 of this 
Act. In the event that there does not exist an Employment 
Register which the Director deems appropriate for the class 
in which the position is established, he shall prepare such a 
Register within a reasonable time after receipt of the 
request of the Appointing Authority that eligibles be certi­
fied. Whenever an eligible has been certified to and rejected 
by Appointing Authority three times, the Director may 
remove the name of such person from the Employment 
Register. No such vacancy shall be filled otherwise than as 
provided in this Act.

# # *=
Section XXYI. I nvestigations : The Board or its desig­

nated agent shall make studies upon all matters touching the 
enforcement and the effect of the provision of this Act and 
the Rules and Regulations prescribed thereunder. Members 
of the Board or its agent or agents may visit all places of 
employment and services affected by this Act in order to 
ascertain and advise with the heads of the various depart­
ments concerning their methods of handling those matters



32

affecting employees in the Service, such, as hours of work, 
attendance, training, working conditions and morale, and in 
order to ascertain whether the provisions of this Act and 
the Rules promulgated thereunder are obeyed. The 
Board in the course of such inquiries shall have the power 
to administer oaths, subpoena and require the attendance of 
witnesses and the production of books, papers, documents, 
and accounts pertaining to the subject under inves­
tigation. All hearings and inquiries made by the Board 
shall be governed by this Act and By Rules or practice and 
procedure adopted by the Board, and in conducting such 
inquiries they shall not be bound by the technical rules of 
evidence. No informality in any proceeding or in the manner 
of taking testimony by the Board shall invalidate any order, 
decision, rule, or regulation made by the Board, provided, 
however, that the Constitutional Rights of no individual 
shall be abridged. The Board or its designated agent or 
agents shall have the authority to inquire concerning the 
number of employees in any department or office, and if 
after notice, and opportunity to be heard to the Appointing 
Authority and to the employees affected, in the Board’s 
judgment there is an excessive number of employees in 
proportion to the amount of work required in such depart­
ment or office, they shall issue an order in writing to the 
Appointing Authority that the number of employees so 
found to be excessive, be laid off or transferred, and this 
order shall be promptly carried out by the Appointing 
Authority. The Board or its designated agent or agents 
shall also study the organization, procedure and/or any 
other business matter which might affect the Classified 
Employment of the different departments and suggest such 
changes in procedure as may increase efficiency or enable 
the organization to carry on its work more economically.

# #

Section XXXIV. Court P roceedings: Orders of the 
Personnel Director and Personnel Board may be enforced



33

by mandamus, injunction, quo warranto or other appro­
priate proceedings in a court of competent jurisdiction. Any 
person directly interested may, within five days, appeal to 
the Circuit Court of Mobile County from any order of said 
Board, by filing notice thereof with Board, whereupon said 
Board shall certify to a transcript of the proceedings before 
it and file the same in said court. Findings of fact of said 
Board contained in such transcript if supported by substan­
tial evidence adduced before said Board or before its Per­
sonnel Director after hearing and upon notice to the inter­
ested party or parties and after affording such parties an 
opportunity to be heard, shall be conclusive on such appeal. 
The issues on such appeal shall be made up under the direc­
tion of the Court and within thirty days after said tran­
script is filed therein, and trial thereof shall proceed on the 
evidence contained in such transcript, if it appears there­
from that said evidence was taken after such notice and 
opportunity to be heard. If upon such appeal the Court 
finds that the ruling, order or action appealed from is un­
lawful or unreasonable within the meaning of this Act it 
shall have power to vacate or modify the same.