(dissenting in part).
The question of proper or necessary parties has not been argued in this court. Apparently all parties to the litigation are in agreement that they are entitled under the provisions of § 157, Title 7, Code 1940, to a construction of the several statutes involved in the litigation.
The court has construed Acts 434 and 452 of the 1955 Legislature (Act 434, approved September 9, 1955, General Acts 1955, Vol. II, p. 980; Act 452, approved September 9, 1955, General Acts 1955, Vol. II, p. 1004) in such a way as to uphold the validity of the election of November 6, 1962. That holding is tantamount to a declaration of the validity of the election to be held on March 5, 1963. But the court has refused to construe the provisions of Act 71 of the 1959 Legislature (Act 71, approved June 18, 1959, General Acts 1959, Vol. I, p. 477), thereby leaving unanswered the question as to whether the provisions of Acts 434 and 452, supra, or those of Act 71, supra, control the time when the persons elected in the election of March 5, 1963, or in any run-off election, shall take office.
I am of the opinion that the parties to this litigation were sufficient to give the trial court jurisdiction to determine the question as to whether Act 71, supra, supersedes in any way the provisions of the 1955 acts, supra. This litigation is not in the nature of a quo warranto proceeding. Only a question of statutory construction is involved and I am at a loss to understand the court’s holding to the effect that the statute will not be construed.
This cause was submitted in this court on Tuesday, February 26, 1963,, and was brought up in consultation by the author on Friday, March 1, 1963. The election is set for Tuesday, March 5, 1963. Hence time does not permit a detailed discussion of the question as to whether or not Act 71, supra, in any way supersedes or repeals the provisions of Acts 434 and 452, supra. I entertain the view, however,, that the trial court was correct in its declaration to the effect that Act 71, supra, a general act, does not repeal by implication any of the provisions of Acts 434 and 452, supra, both of which affect a limited territory, although general in form. Tucker v. McLendon, 210 Ala. 562, 98 So. 797.
The effect of the court’s opinion is to leave the citizens of the state’s largest city in doubt as to the body which shall govern them following the forthcoming election to be held on March 5, 1963, or any run-off election which may follow.
It seems to me to be highly regrettable that the court decided to construe Acts 434 and 452, supra, and yet at the same time refuse to construe the effect of Act 71, supra, upon Acts 434 and 452, supra, thereby creating a rather chaotic condition for the City of Birmingham.
I would affirm the decree of the trial court in all respects.
GOODWYN and HARWOOD, JJ., concur in the foregoing views.