Bryan v. City of Birmingham

• Decision Date: 13 February 1908
• Citation: 45 So. 922,154 Ala. 447
• Parties: BRYAN v. MAYOR, ETC., OF CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

45 So. 922

154 Ala. 447

BRYAN v. MAYOR, ETC., OF CITY OF BIRMINGHAM.

Supreme Court of Alabama

February 13, 1908

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Suit by J. R. Bryan against the mayor and aldermen of the city of Birmingham. From a decree for defendants, complainant appeals. Affirmed.

The bill was filed to declare void an ordinance making it unlawful to establish and use any private cemetery in section 26, township 17 S., range 3 W., in Jefferson county, Ala said area being within the police jurisdiction of the city of Birmingham, and to inter any dead body within the corporate limits of the city of Birmingham, or within any part of said section 26, township 17 S., range 3 W., in Jefferson county Ala. (the said described area being within the police jurisdiction in said city), except Oak Hill Cemetery. Then follows the penalty of not less than $25 nor more than $100 for violation of this ordinance. It is averred that Bryan established and opened for interment of dead human bodies a cemetery or burial ground outside of the geographical or territorial limits of the city of Birmingham, but within said section, township, and range above set out; that the land on which it was opened was his own; that the cemetery is properly laid off, fenced, and cared for; and that the effect of the ordinance will be to destroy the value of the property and to deprive orator of the proper use and benefit of his said property. The prayer is to restrain perpetually the operation of the ordinance and to enjoin the mayor and aldermen of Birmingham from its enforcement.

W. E Martin and A. Latady, for appellant.

E. D. Smith, for appellee.

HARALSON J.

The jurisdiction of equity is purely and exclusively civil and such courts are without power to enjoin or restrain threatened crimes or threatened prosecutions, and this rule applies to prosecutions under municipal ordinances as well as state laws. Brown v. Birmingham, 140 Ala. 590, 37 So. 173, and cases there cited. Applying this rule, the courts should not lose sight of the fact, that a court of equity can and should interfere by injunction to restrain any act or proceeding, whether connected with crime or not, which tends to the destruction or impairment of property or property right. 5 Pom. 635; Austin v. Austin, 87 Tex. 330, 28 S.

W. 528, 47 Am. St. Rep. 114; Atlanta v. Gate City Co., 71 Ga. 106; Deems v. Mayor of Baltimore, 80 Md. 164, 30 A. 648, 26 L. R. A. 541, 45 Am. St. Rep. 339.

The bill in the case at bar avers, that the existence and threatened enforcement of the ordinance will not only greatly diminish the value of his property, but will practically destroy its value, by forbidding the use to which it is better or exclusively adaptable. In fact, the facts averred put the case at bar almost on all fours with the case of Austin v. Austin, supra, where the court, speaking through Gaines, C.J., says: "As long as the ordinance remains undisturbed it acts in terrorem and practically accomplishes a prohibition against the burial of the dead within the limits of the city of Austin, save in the excepted localities. Under these conditions, who would venture to bury, or to be concerned in burying, a dead body in appellees' ground, or who would purchase a lot in the cemetery?"

The bill also avers that the ordinance is void; and is not wanting in equity.

Whatever may be the rule in other states, with reference to the use of land for burial purposes, our court, speaking through Brickell, C.J., says: "Burial places for the dead are indispensable. They may be the property of the public devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the...