On February 4, 1977, Judson Locke, Commissioner of the Alabama State Board of Corrections, informed Sheriff Hubert Norris of Fayette County that twenty state prisoners were being transferred to the Fayette County jail from Marshall County. Norris, on February 7, 1977, petitioned the circuit court for a temporary restraining order which was granted on the same day. On March 14, 1977, after a presentation of the evidence, a permanent injunction was issued.
Evidence adduced at trial showed that as of February 1, 1977, the Marshall County jail, with a design capacity of fifty-two, had an inmate population of seventy-one. Fayette County's jail had a design capacity of forty-six, and the present inmate population was five. Locke, acting under the authority granted him in Title 45, § 166, Code of Alabama, ordered twenty inmates removed from Marshall County to Fayette County in an attempt to eliminate the overcrowded conditions.
The trial judge based his order on the finding that Locke had failed to comply with the provisions of Title 45, § 166, Code of Alabama 1940, which was found to be a prerequisite to Locke's exercise of his powers granted by Title 45, § 166. Title 45, § 166, provides:
"Whenever the department shall make written report to the court of county commissioners, or board of revenue, or to the city council, or other governing board or body, that certain conditions in the jail, prison, or almshouse should be remedied, or that certain improvements, additions or alterations should be made, they shall have the matter attended to within such reasonable time as may be designated by the department, and shall make written report to the department that such orders have been carried out."
Admittedly, Commissioner Locke did not demand in writing that Marshall County correct the overcrowded conditions within a reasonable time before ordering the transfer of prisoners to Fayette County jail.
This same issue was recently presented in Locke v. Wheat, Ala., 350 So.2d 451 (1977) and was decided against the Commissioner. We affirm on the authority of Locke v. Wheat,supra.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
MADDOX, J., concurs specially.