Birmingham Gas Co. v. City of Bessemer, 6 Div. 639

CourtSupreme Court of Alabama
Writing for the CourtGARDNER, Chief Justice.
Citation250 Ala. 137,33 So.2d 475
PartiesBIRMINGHAM GAS CO. v. CITY OF BESSEMER et al.
Docket Number6 Div. 639,6 Div. 639-A.
Decision Date18 December 1947

33 So.2d 475

250 Ala. 137

BIRMINGHAM GAS CO.
v.
CITY OF BESSEMER et al.

6 Div. 639, 6 Div. 639-A.

Supreme Court of Alabama

December 18, 1947


Rehearing Denied Jan. 22, 1948. [33 So.2d 476]

[250 Ala. 138] Huey, Welch & Stone, of Bessemer, and White, Bradley, Arant & All, of Birmingham, for appellant.

[250 Ala. 139] Edw. L. Ball, City Atty., H. P. Lipscomb, and L. Herbert Etheridge, all of Bessemer, for appellees.

[250 Ala. 138]

Paragraph 7 of the bill is as follows:

'7. That on, to wit, the 3rd day of July, 1947, at, to-wit 2:00 O'clock P.M. a petition was filed with said Board of Commissioners which reads as follows: 'To the Honorable City Commission of the City of Bessemer, Bessemer, Alabama. Gentlemen: We, the undersigned citizens and qualified voters and gas users in the City of Bessemer, desire the immediate benefits of natural gas service that are authorized under the ordinance adopted by the City Commission on June 3, 1947. Facts, which have been brought to our attention during the past week or ten days, make us deplore and protest against any action which may delay the Gas Company in the consummation of its plans to improve service to its customers in Bessemer. We approve the action of the City Commission in adopting the

above mentioned Ordinance of June 3 and we request that our names be withdrawn and not be considered in connection with any petition now filed or hereafter filed which would interfere with the prompt execution of an agreement between the City of Bessemer and the Gas Company.

'Name Address'

on which appeared the signature of, to-wit, 688 persons of the City of Bessemer, which said petition was filed with the Board of Commissioners, before the Board of Commissioners took any steps toward checking, examining, investigating or determining the legal sufficiency of said petitions calling for an election; that the legally qualified voters, who signed said petition filed on July 3, 1947, at 2:00 P.M. whose names also appeared on said petition or petitions calling for said election, had the legal right to withdraw their names therefrom as requested, in said petition.'

GARDNER, Chief Justice.

The appeal by the Birmingham Gas Company is from a decree of the court below dissolving the temporary writ of injunction heretofore issued.

The bill sought to prevent by injunctive relief the City of Bessemer and its commissioners from the holding of a referencedum election concerning a city ordinance granting to the Birmingham Gas Company a thirty year franchise contract.

The referendum statute is to be found in Title 37, § 60, Code 1940, wherein is the provision that during the time intervening between the final passage of the City's ordinance and the expiration of thirty days during which publication shall be made, as provided by statute, the legally qualified voters of said city may, by a written petition addressed to the Board of Commissioners, object to such grand, and, if, during said period such written petition, signed by at least a number of the qualified voters equal to four for every one hundred inhabitants of said city or fraction thereof, according to the last federal census, shall be filed with said Board, the Board shall forthwith order an election, at which election the legally qualified voters of said city shall vote for or against the proposed grant as set forth in said ordinance. It is this election which the bill seeks to enjoin, and is rested upon the theory that the petition filed with the City Commission did not have upon it the requisite number of qualified voters of the city of Bessemer.

If in fact the petition did not contain the requisite number of qualified voters of the city of Bessemer, the City Commission was without authority to order the referendum. This requirement of the statute is, we think, a condition precedent for the issuance of a call for an election and is jurisdictional. Hoxie v. Scott, 45 Neb. 199, 63 N.W. 387; Tacker v. Board of Commissioners, 126 Fla. 15, 170 So. 458; Duval County v. Jennings, 121 Fla. 584, 164 So. 356; Gill v. Wake County, 160 N.C. 176, 76 S.E. 203, 43 L.R.A., N.S., 293; 37 Am.Jur. 848-51.

The bill discloses that the ordinance adopted by the City Commission granted to the Birmingham Gas Company a franchise which was in the nature of a contract and embodied in the ordinance to run for a period of thirty years. We have repeatedly held that such an ordinance is not mere legislation, but one which creates a contract and property right entitled to protection by the courts. Or, to state it otherwise, our authorities are to the effect that a franchise grant, such as here involved, is the creation of a property right. Phenix City v. Alabama Power Company, 239 Ala. 547, 195 So. 894; City of Bessemer v. Birmingham Electric Co., 248 Ala. 345, 27 So.2d 565; Bush v. City of Jasper, 247 Ala. 359, 24 So.2d 543.

The complainant in this cause seeks injunctive relief not only upon the theory of a taxpayer, but upon the more substantial ground that it had a property right by virtue [250 Ala. 140] of its franchise contract contained in this ordinance. Such a bill is readily distinguishable from those which seek to enjoin an election of purely a political nature. [33 So.2d 477]

This was pointed out in our own case of Wilkinson v. Henry, 221 Ala. 254, 128 So. 362, found cited in 70 A.L.R. 712.

Our cases support the theory that for the protection of a property right, as here involved, a resort to a court of equity for relief by way of injunction is justified. This appears to be in line with the current of authorities elsewhere. 42 Am.Jur. 667. The distinction above noted is also commented upon by the author of the notes to Wilkinson v. Henry, 70 A.L.R. at page 733.

In Dennis v. Prather, 212 Ala. 449, 103 So. 59, 62, this court, commenting upon the argument that if the election to be held is void it could be tested by other proceedings and there was no occasion for injunctive relief, said:

'We think this is not an adequate remedy. It means the useless incurring of all the expense, loss of time, and inconvenience of holding the election, and the confusion and...

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15 practice notes
  • Wood v. Booth, 1060953.
    • United States
    • Supreme Court of Alabama
    • February 22, 2008
    ...the enjoining of an election.11 Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475 (1947). "`Furthermore, "`"In Dennis v. Prather, 212 Ala. 449, 103 So. 59, 62, this court, commenting upon the argument that if the ......
  • Roper v. Rhodes, 1060331.
    • United States
    • Supreme Court of Alabama
    • January 11, 2008
    ...prevent the enjoining of an election. Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475 We recognized this exception to the jurisdictional limitation stated in former § 17-15-6 (currently § 17-16-44) in our recent......
  • Valenzuela v. Sellers, 1 Div. 335.
    • United States
    • Supreme Court of Alabama
    • February 24, 1949
    ...325, 2 So.2d 396; Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898; Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475. In the final decree from which this appeal is prosecuted, the boundary line between the complainant's property and that of the......
  • Valenzuela v. Sellers, 1 Div. 335
    • United States
    • Supreme Court of Alabama
    • February 24, 1949
    ...325, 2 So.2d 396; Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898; Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d In the final decree from which this appeal is prosecuted, the boundary line between the complainant's property and that of the defe......
  • Request a trial to view additional results
15 cases
  • Wood v. Booth, 1060953.
    • United States
    • Supreme Court of Alabama
    • February 22, 2008
    ...the enjoining of an election.11 Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475 (1947). "`Furthermore, "`"In Dennis v. Prather, 212 Ala. 449, 103 So. 59, 62, this court, commenting upon the argument that if the ......
  • Roper v. Rhodes, 1060331.
    • United States
    • Supreme Court of Alabama
    • January 11, 2008
    ...prevent the enjoining of an election. Dennis v. Prather, 212 Ala. 449, 103 So. 59 (1925). See also Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475 We recognized this exception to the jurisdictional limitation stated in former § 17-15-6 (currently § 17-16-44) in our recent......
  • Valenzuela v. Sellers, 1 Div. 335.
    • United States
    • Supreme Court of Alabama
    • February 24, 1949
    ...325, 2 So.2d 396; Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898; Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d 475. In the final decree from which this appeal is prosecuted, the boundary line between the complainant's property and that of the......
  • Valenzuela v. Sellers, 1 Div. 335
    • United States
    • Supreme Court of Alabama
    • February 24, 1949
    ...325, 2 So.2d 396; Sloss-Sheffield Steel & Iron Co. v. Coosa Land Co., 231 Ala. 134, 163 So. 898; Birmingham Gas Co. v. City of Bessemer, 250 Ala. 137, 33 So.2d In the final decree from which this appeal is prosecuted, the boundary line between the complainant's property and that of the defe......
  • Request a trial to view additional results

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