(dissenting).
The complaint was filed by plaintiffs against “Southern Railway Company, a corporation,” the “L&N Railroad Company, a corporation” and the “City of Huntsville, Alabama, a municipal corporation.” *386The complaint charges that defendants Southern Railway and L&N Railroad negligently failed “to properly maintain their railroad tracks” and “negligently allowed or permitted a situation to exist so that it appeared to a motorist that 5th Street located in the City of Huntsville, Alabama, crossed the railroad tracks owned and operated by these Defendants.” It is alleged that the City of Huntsville failed “to remedy some defect in the streets, alleys or public ways of the City of Huntsville after the same had been called to the attention of the Council” or “had existed for such unreasonable length of time as to raise a presumption of knowledge” of the defect. Although the complaint does not specify the exact nature of this defect, it appears, from the complaint and affidavits filed by the plaintiffs, that the accident occurred because 5th Street appeared to cross the railroad tracks when, in fact, it did not do so. Plaintiffs ran off the road and onto the railroad tracks and were injured.
After suit was brought, plaintiffs took pro tanto releases from the two railroads for $3,000 each, dismissing them as defendants over the city’s obj ection.
The sole assignment of error is whether or not the trial court was correct in granting summary judgment for the city.
The defendant city’s contention in the trial court, and here, is that all those jointly liable with the municipality are required to be joined in the action and that, when the railroads were dismissed, summary judgment was proper, citing Tit. 37, § 502 and § 503, Code of Alabama 1940. I agree.
The plaintiffs’ position is that the joinder requirement of Tit. 37, § 503 is limited to cases resulting from the initial wrongful act of third parties and the city’s liability arises out of a negligent failure to remedy the defect. It is contended by plaintiffs that, neither in the complaint nor in the papers supporting summary judgment, do they state that the city’s liability arises by means of a wrongful act or acts by defendant railroads. Thus, plaintiffs argue that the action may stand against the city notwithstanding the railroads were dismissed as defendants, and therefore summary judgment was erroneously granted.
I cannot agree with the plaintiffs’ position. The complaint clearly charges that the railroads were negligent in failing to properly maintain their tracks and in negligently permitting the situation to exist so that it appeared that 5th Street crossed the railroad tracks. The city is charged with failing to remedy this defect. These charges, as well as plaintiffs’ affidavits, clearly show that this action falls within the second classification of Tit. 37, § 502 — when the wrong charged against the city is its failure to remedy defects after actual notice or constructive knowledge. The next section requires that the other parties likewise liable be joined and that “no judgment shall be rendered against the city or town, unless judgment is rendered against such other person or corporation so liable for such injury. . . .” Tit. 37, § 503. [Emphasis supplied.]
In City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160 (1953), this Court held, inter alia:
“. . . The applicable provision of Section 503 is to the effect that, if an action be brought against a city or town alone, and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provision of said Section 503, the plaintiff shall be nonsuited unless he amends by making such party or corporation a defendant, if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately irrespective of this provision. Section 503, supra, also provides that the injured party, if he sues a municipality for damages suffered by him shall also join such other person, or persons, or corporation, so liable as de*387fendant or defendants of the suit, and no judgment shall be rendered against the city or town unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant, or when judgment is rendered in his favor on some personal defense. . . . ”
In City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22 (1915), this Court also held, with respect to this selfsame section in the Code of 1907, viz:
“. . . The manifest legislative purpose was to prevent the rendition of judgment against the municipality for culpable neglect in respect of a condition not initially created by it . . . unless the person or corporation, whose primary culpable act or omission give rise to and affords the essential basis for the municipal neglect to remedy the defect, as defined, is also adjudged liable, provided the liability of such person or corporation is not averted by some personal defense.” [Emphasis supplied.]
The reason for enactment of such a requirement seems clearly to be the legislature’s intention to settle the question of primary responsibility to the injured party in one suit where both the city and the alleged responsible other parties are made parties. City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950). The statute “provides for the compulsory joinder of the alleged active wrongdoer.” City of Mobile v. George, supra.
I have written solely to the issues raised on this appeal by the parties. No question as to the constitutionality of the Code sections in question nor of their constitutional application to this case was raised in the court below nor here. Therefore, I express no opinion thereon.
To denigrate any notion that this interpretation of §§ 502 and 503 constitutes a trap or pitfall for the unwary, it is suggested that, by a seasonal and proper amendment, the plaintiff could have maintained an action solely against the city as was done in Brantley, supra.
The legislature, by enacting these sections has clearly shown that it intended to provide (when action is brought under the second subdivision of § 502) that a plaintiff must join as defendant such other persons so liable so that if judgment of liability is fastened on such other person, the city will be relieved to the extent the other party is able to respond in damages. See Editor’s note to §§ 502 and 503, Tit. 37, Code 1940 [Recompiled Code 1958]. See also Carle, and Brantley, supra. Numerous other cases have contained like language.
These sections have constituted the law of Alabama for nearly seventy years. The legislature had the power to enact them, and it alone has the power to amend them.
“One of the fundamental principles of our political system is that a legislature possesses all power except as it is limited or restricted by the state or federal constitutions. Mangan v. State, 76 Ala. 60; State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328; Hall v. Underwood, 258 Ala. 392, 63 So.2d 683; Opinion of the Justices, 263 Ala. 151, 81 So.2d 688; Young v. State, 283 Ala. 676, 220 So.2d 843.”
Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971).
It is thus that I would affirm the eminent trial judge who granted summary judgment.
MERRILL, FAULKNER, and EMBRY, JJ., concur in dissent.