(concurring).
I concur in the conclusion that the court below erred in sustaining the demurrer to the bill of complaint and that the cause must be reversed.
The bill of complaint seeks an injunction restraining the enforcement of an ordinance of the City of Mobile, and in the *150alternative a declaratory judgment determining the constitutionality of the ordinance “and the rights of your complainants and others similarly situated under said ordinance.”
The ordinance of July 11, 1950, in question is in five sections. Sections 1 and 2 make it unlawful for any member of the Police Department (section 1) or Fire Department (section 2) to be or to become a member of any labor union as that term is commonly used. Sections 3 and 4 require every employee of the Police Department (section 3) and Fire Department (section 4) to sign and deliver, on or before July 17, 1950, a statement in writing that he does not belong to a labor union and will not join or participate in.the organization of such a union as long as he remains a member of such department. Any employee “failing therein shall immediately have his services with the department terminated.”
Section 5 of the ordinance provides “Section Five. If any section or provision of this ordinance shall be held invalid by a court of competent jurisdiction such holding shall not affect or void any other section or provision which is not of itself invalid.”
The cases of other jurisdictions uniformly uphold the authority of the municipality to prohibit membership in a labor union by members of the Police and Fire Departments, and to require the dismissal of employees who refuse to relinquish membership in a labor union. King v. Priest, 357 Mo. 68, 206 S.W.2d 547; City of Jackson v. McLeod, 199 Miss. 676, 24 So.2d 319; Fraternal Order of Police v. Lansing, 306 Mich. 68, 10 N.W.2d. 310, certiorari denied, 321 U.S. 784, 64 S.Ct. 781, 88 L.Ed. 1076; Miami Water Works Local v. Miami, 157 Fla. 445, 26 So.2d 194, 165 A.L.R. 967; Coane v. Geary, 298 Ill.App. 199, 18 N.E.2d 719; Hutchinson v. Magee, 278 Pa. 119, 122 A. 234; Carter v. Thompson, 164 Va. 312, 180 S.E. 410; McNatt v. Lawther, Tex.Civ.App., 223 S.W. 503; San Antonio Fire Fighters Local v. Bell, Tex.Civ.App., 223 S.W. 506; C. I. O. v. Dallas, Tex.Civ.App., 198 S.W.2d 143. The case relied upon by appellants, Mugford v. Mayor & City Council, 185 Md. 266, 44 A.2d 745, 162 A.L.R. 1101, did not involve policemen or firemen.
Appellants argue that such rule is not applicable in Alabama and that the effect of the Bradford Act, Title 26, § 376, et seq.,. Code 1940 is to protect the right of policemen and firemen to join a labor union. A careful reading of the title and body of the Bradford Act discloses no language-evidencing a legislative intent to make suchi act applicable to municipalities. The reference in the Bradford Act to strikes, walkouts and boycotts, §§ -377, 380, 381, to the-“business of an employer,” § 387, and to> “business, plant or any unit thereof” are-particularly inapplicable to municipalities. Had the legislature intended to change the-existing powers of the City of Mobile there is no reason to believe that it wouldl not have said so in that many words, instead of leaving the matter to speculation, and conjecture. The ordinance in question, is therefore not invalid as being in conflict with the Bradford Act. Miami Water Works Local v. City of Miami, supra; King; v. Priest supra; C. I. O. v. Dallas, supra; McNatt v. Lawther, supra.
Appellants also contend that the- ordinance is unconstitutional as depriving them: of freedom of speech or their right peaceably to assemble and to petition the government for redress or grievances. We find, nothing in the ordinance which violates these constitutional guarantees. This same argument was advanced in King v. Priest, supra, and C. I. O. v. Dallas, supra. The Supreme Court of Missouri disposed of this-contention with the following quotation-,. 206 S.W.2d 556: “In the case of McAuliffe v. Mayor, etc., of the City of New Bedford, 155 Mass. 216, 29 N.E. 517, decided January-6, 1892, Justice Holmes in upholding a. rule excluding police from political activity-stated: ‘The petitioner may have a constitutional right to talk politics, but he has; no constitutional right to be a policeman. There are few employments for hire in-which the servant does not agree to suspend his constitutional rights of free speech, as well as of idleness by- the implied terms-of his contract. The servant cannot complain, as he takes the employment on the-terms which are offered him. On the same; *151•principle the city may impose any reasonable condition upon holding offices within its •control.’ ”
It is further contended that the ordinance in question conflicts with the county-wide Civil Service Act applicable to Mobile County and the City of Mobile, Act. No. 470, Local Acts, 1939, p. 298, et seq. In so far as Sections 1 and 2 of the ordinance are concerned I find no such conflict. This Act provides for the establishment of a Personnel Board and the appointment of a Personnel Director; for the Classification of Positions, section X, and the Establishment of a Pay Plan. The Personnel Director is required to conduct tests to establish Employment Registers for the various classes of positions in the qualified service, section XII Section XV providing for the filling of vacancies by appointment specifically recognizes the right of the Appointing Authority to state the “desired qualifications of the person to be appointed,” and • contains the provision “provided that where residence qualifications are .prescribed by the Appointing Authority” only those having such residence qualifications may be selected. This language plainly recognizes the right of the city to establish reasonable qualifications for positions of police■men and firemen. The Act is designed to secure to every employee fair and impartial treatment without political favoritism. But the Board of Commissioners of ■the City of Mobile remains the governing body of that municipality. Upon it rest the right and the burden of establishing and -declaring the public policy of the city. Upon •it rests the burden of furnishing public police and fire protection to its citizens by the • establishment and maintenance of an impartial and efficient police and fire depart:ment. This burden necessarily carries with it the right to establish reasonable qualifications in order to secure the undivided loyalty of the members of the police and fire • departments. Sections .1 and 2 of the ordinance, declaring the public policy of the ■ city and establishing such reasonable qualifications are not in conflict with the Civil .Service Act. Cf. Gen. Acts, 1939, p. 1004.
Whether the ordinance was wisely con-ceived we are not called upon to determine. Sections 1 and 2 of the ordinance making it unlawful for policemen and firemen to be or to become members of a labor union are not in conflict with any statute of the state and their enactment is a valid exercise of the power to adopt ordinances conferred by Section 455, Title 37, Code 1940.
A different question arises as to the validity of Sections 3 and 4 of the ordinance of July 11, 1950, which provide a means of enforcing the qualifications so established •by Sections 1 and 2 of the ordinance.
Section 3 provides: “Section Three. Each and every employee of the Police Department of the City of Mobile shall on or before the 17th day of July, 1950, sign and deliver to the Chief of Police of the City of Mobile the following statement, and failing therein shall immediately have his services with the department terminated: T do not belong to any labor union as that term is commonly known, whether the union be affiliated with the A. F. L., or C. I. O., or any other national labor organization, and I bind myself not to join such a union or to participate in the organization of such a union as long as I remain a member of the department.’ ”
Section 4 sets out the same requirement as to members of the Fire Department.
I cannot agree that these sections deprived the appellants of an opportunity to renounce or resign membership in a labor organization, place themselves in compliance with Sections 1 and 2 of the ordinance and retain their employment. The ordinance was passed July 11, 1950. The statement in question need only be filed “on or before July 17, 1950.” In such statement the employee is'not required to certify that he has not belonged to a labor union, but that “I do not belong to any labor, union,” etc. The use of the present tense “I do” shows' that this certification was intended to reflect the status as of the time the statement was signed and filed, which could be at any time prior to and including July 17, 1950. The appellants therefore had the period between the passage of the ordinance on July 11, 1950, and the end of July 17, 1950, within which, if they so desired, they could renounce membership in the labor *152union and place themselves in compliance with the ordinance.
In the case of City of Jackson v. McLeod, supra, the Mayor and Commissioners of the City of Jackson on June 17, 1944, ordered the Chief of Police to notify all policemen that no Policeman should be a member of a labor union, and that any policeman who did not resign by Noon on June 19, 1944, would be dismissed. The interim period was much shorter than the period here allowed, but the dismissal was upheld by the Supreme Court of Mississippi. In the case of King v. Priest, supra, the resolution was adopted November 29, 1945, requiring such statement to be filed not later than midnight December 5, 1945— the same period as here allowed. The Supreme Court of Missouri upheld, the regulation and the Supreme Court of the United States dismissed appeal to that court. 333 U.S. 852, 68 S.Ct. 736, 92 L.Ed. 1133, rehearing denied, 333 U.S. 878, 68 S.Ct. 901, 92 L.Ed. 1154. It would therefore seem that the period from July 11, 1950 to July 17, 1950 was a reasonable time within which the appellants could resign or renounce their membership and retain their employment with all accrued privileges of seniority.
The determination of whether Sections 3 and 4 conflict with the county-wide Civil Service Act, Act. No. 470, Local Acts, 1939, p. 298-318, depends upon construction of the provisions of the ordinance requiring the filing of the specified statement by every policeman and fireman “and failing therein shall immediately have his services with the department terminated.” Ordinarily this court will not construe a statute or ordinance on appeal from a ruling on demurrer. Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So.2d 198; McCall et al. v. Nettles et al., 251 Ala. 349, 37 So.2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658, 660; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11.
Under these decisions where the bill for declaratory judgment shows a bona fide justiciable controversy the demurrer thereto should be overruled and a declaration of rights made and entered after answer and on such evidence as the parties may deem proper to introduce. However the equity of the bill is not dependent upon the Declaratory Judgment Act,— Title 7, § 156. That relief is sought only in the alternative.
The bill seeks to enjoin the enforcement of the ordinance alleged to be void and whose enforcement would limit the personal rights of the appellants. Such alleged invalidity is based in part on its alleged conflict with state laws and if Sections 3 and 4 of the ordinance are invalid, the bill has equity to enjoin the enforcement of such without regard to the Declaratory Judgment Act.
I concur in the conclusion of the opinion of Justice Brown that the provisions of Sections 3 and 4 of the ordinance are in conflict with the Civil Service Act and are therefore ultra vires and invalid.
It is undisputed that the appellants are “classified employees” as defined’ in that Act and their dismissal must be in compliance with Section XXII, which provides: “Section XXII. Dismissal: (a) An appointing authority may dismiss a Classified Employee whenever he considers the good of the service will be served thereby, for reasons stated in writing, served on the affected employee, and a copy furnished to the Director, which action shall become a Public Record; the dismissed employee may, within ten days after notice, appeal from the action of the Appointing Authority by filing a written answer to the charges. The Board may after investigating order a Public Hearing upon notice to, and opportunity to be heard by, the employee and if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the Board may determine.”
Under this section a dismissal of an employee must be for the good of the service and the employee ii. entitled to service upon him of a copy of formal written charges. The City of Mobile, through its Board of Commissioners, having established the public policy of the city as to union membership by policemen and firemen a charge of retaining membership in a union in violation of Sections 1 and 2 of the ordi*153nance would be ground for dismissal “for the good of the service,” but such dismissal could only be effected in the manner prescribed by the Civil Service Act and not by legislative edict of the Board of Commissioners. Sections 3 and 4 of the ordinance providing for the filing of the required statement by every policeman and fireman and “failing therein shall immediately have his services with the ■department terminated,” in my judgment ■do not contemplate the filing of charges .as required by Section XXII of the Civil Service Act. In addition thereto these facts make the dismissal dependent, not upon a violation of Sections 1 and 2 of the ordinance but merely upon the failure to file the prescribed statement whether the policeman or fireman so failing is or is not a member of a union in violation of Sections 1 and.2. It is entirely conceivable that within the six day period allowed there were policemen and firemen who were not members of the union, who, by reason of vacations or other absences, failed to file the prescribed statement. In my opinion peremptory dismissal for such failure alone would not be justified under the Civil Service Act. For these reasons I am of the opinion that Sections 3 and 4 of the ordinance are invalid and the appellants are entitled to a decree enjoining their enforcement and enjoining any dismissal except by proceedings in accordance with the Civil Service Act..
FOSTER and SIMPSON, JJ., concur.