Busch Jewelry Co. v. City of Bessemer, 6 Div. 940

• Decision Date: 31 October 1957
• Docket Number: 6 Div. 940
• Citation: Busch Jewelry Co. v. City of Bessemer, 266 Ala. 492, 98 So.2d 50 (Ala. 1957)
• Parties: BUSCH JEWELRY COMPANY v. CITY OF BESSEMER et al.
• Court: Alabama Supreme Court

Page 50

98 So.2d 50

266 Ala. 492

BUSCH JEWELRY COMPANY v. CITY OF BESSEMER et al.

6 Div. 940.

Supreme Court of Alabama.

Oct. 31, 1957.

J. Asa Rountree, III., Meade Whitaker and Cabaniss & Johnston, Birmingham, for appellant.

Lee Bains, Bessemer, and Richard A. Billups, Jr., Jackson, Miss., for appellees.

COLEMAN, Justice.

Appellant filed its bill for declaratory judgment against the City of Bessemer et al. attacking the validity of Ordinance No. 1112 of the City of Bessemer, adopted February 9, 1954.

We are unable to find from the record that 'the attorney-general of the state' has been 'served with a copy of the proceeding.' In fact, the record does not in anywise refer to the Attorney General of this State.

§ 166 of Title 7, 1940 Code, provides as follows:

'Parties when declaratory relief is sought.--All persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entited to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard.' (Emphasis supplied.)

Paragraph 8 of the Amended Bill contains the following recital:

'* * * complainant avers that said Ordinance No. 1112, if applicable to it and to any licensed optometrist employed by it to take charge of said optometric department in said Bessemer store (as required by law), would prohibit complainant from operating said department and from advertising same to the public; that respondents interpret said ordinance to be applicable to complainant and to deny such rights to it; that said ordinance, if so applicable to complainant and to any licensed optometrist so employed by it, is, in its entirety, contrary to the laws of the State of Alabama, invades an area which municipalities in Alabama are incompetent to regulate, is unnecessarily vague, and constitutes a taking of complainant's property and property rights without due process in violation of the laws and constitutions of the State of Alabama and of the United States.' (Emphasis supplied.)

Thus it appears in the instant case that the ordinance 'is alleged to be unconstitutional.'

Under the holding of this court in Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27, 29, the allegations of the bill...