City Council of Montgomery v. West

• Decision Date: 17 February 1906
• Citation: 146 Ala. 680,40 So. 215
• Parties: CITY COUNCIL OF MONTGOMERY v. WEST.
• Court: Alabama Supreme Court

40 So. 215

146 Ala. 680

CITY COUNCIL OF MONTGOMERY v. WEST.

Supreme Court of Alabama

February 17, 1906

Appeal from Chancery Court, Montgomery County; W. L. Parks Chancellor.

"Not officially reported."

Suit for injunction by D. P. West against the city council of Montgomery. From a degree granting the injunction, defendant appeals. Reversed.

This was a bill filed by appellee against appellant to enjoin the enforcement of an ordinance of the said municipality, said ordinance being set out in the bill; also to enjoin the further prosecution of cases pending against appellee before the recorder's court of Montgomery for the violation by appellee of said ordinance, and to restrain the municipal corporation, its agents and servants, from interfering with appellee in the operation of his plant. The case made by the allegation of the bill is that appellee has erected and is operating on his own private property in the city of Montgomery an ice plant and an electrical supply plant at a considerable cost to appellee under a perpetual franchise in the city of Montgomery; that the buildings and appliances were erected under a special permit in said city; that under said franchise and by virtue of said permit appellee has erected poles and strung wire thereon, and done all other things necessary to furnish his customers electricity, and is actively engaged in furnishing ice to his patrons; that in generating the electricity and in the manufacture of the ice used in his business it is necessary to use steam as motive power, and he has erected and is operating as a motive power for said plant a steam engine and boiler; that said steam engine is noiseless, and is equipped with all the latest modern appliances for abating any nuisance as to noise smoke, soot, or vibrations, so as not to disturb the peace or comfort of those living or doing business in the neighborhood; that said plant is located in the business, and not in the residence, section of the city, and is surrounded by other plants using steam as a motive power; that said city is a growing city, in need of the business done by his plant and other manufacturing plants of similar character. He alleges that he has been arrested and prosecuted for violating the following ordinance: "Sec. 295. No person shall set up or operate a steam engine, a planing mill or machine, foundry, blacksmith shop, cotton gin, bakery and establishment for boiling soap, or any other similar establishment within the city, without first obtaining the consent of the council. Any person violating the provisions of this...