City of Birmingham v. Leo A. Seltzer, Inc.

• Decision Date: 24 January 1935
• Docket Number: 6 Div. 680.
• Citation: 159 So. 203,229 Ala. 675
• Parties: CITY OF BIRMINGHAM v. LEO A. SELTZER, Inc.
• Court: Alabama Supreme Court

159 So. 203

229 Ala. 675

CITY OF BIRMINGHAM v. LEO A. SELTZER, Inc.

6 Div. 680.

Supreme Court of Alabama

January 24, 1935

Rehearing Denied Feb. 21, 1935.

Appeal from Circuit Court, Jefferson County; John P. McCoy, Judge.

Bill for injunction by Leo A. Seltzer, Incorporated, against the City of Birmingham. From a decree granting temporary injunction, respondent appeals.

Reversed and rendered.

W. J Wynn, Leigh M. Clark, and James H. Willis, all of Birmingham for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

PER CURIAM.

Bill in equity by the appellee corporation to enjoin the city of Birmingham from the enforcement of certain ordinances especially No. 82-F, upon the idea that the enforcement thereof would operate as an unwarranted interference with the appellee's property or business rights.

It is well settled that a court of equity may enjoin the enforcement of an unreasonable or invalid ordinance when the enforcement of same would interfere with the conduct of business or other property rights. Franklin Social Club v. Town of Phil Campbell, 204 Ala. 259, 85 So. 527; Walker v. City of Birmingham, 216 Ala. 206, 112 So 823.

The trial judge, before issuing the injunction, set the matter down for hearing, as provided by section 8304 of the Code of 1923, and heard evidence pro and con by affidavits and the examination of many witnesses ore tenus. It is insisted by appellant's counsel that as section 8305 of the Code provides affidavits as evidence upon such hearing this method is exclusive and forbids other methods of proof. We cannot agree to this contention, and think that said section merely permits proof by affidavits and does not exclude other methods of producing and considering legal evidence. The case of Jones v. Jefferson County, 203 Ala. 137, 82 So. 167, does not hold to the contrary. It appears there that proof was made by affidavits, as provided by the present section 8305 of the Code of 1923; but it was not held or intimated that this method of proof was exclusive.

Ordinance No. 82-F reads as follows:

"An Ordinance to Amend Section 5511 1/2 of the General Code of the City of Birmingham of 1930.

"Be It Ordained by the Commission of the City of Birmingham that Section 5511 1/2 of the General Code of the City of Birmingham of 1930,

be, and the same hereby is, amended so as to read as follows:

"Section 5511 1/2. Endurance Contests: It shall be unlawful for any person to engage in any test of endurance in tree or pole sitting, or in any exhibition of wire walking or building climbing in view of any public highway, and it shall also be unlawful for any person, firm or corporation to conduct, or engage or participate in any test or contest of walking or dancing, by whatsoever name called, which shall endure either continuously or intermittently for a period of more than twenty-four hours.

"Approved February 2, 1934."

The injunction sought is to prohibit the city from enforcing that ordinance to the extent that it applies to an amusement which is called a "Walkathon."

This is a contest of physical endurance by the participants walking in a hall, extending over a period of weeks or months, subject to the observation and amusement of spectators who pay a fee for admission. It is not necessary to explain in detail the regulations which this complainant has put into effect in the conduct of that entertainment. It appears that complainant has taken much pains and care to eliminate all objectionable features which may be incident to that sort of contest. And if the question before us were whether this particular enterprise, as thus conducted, is a "nuisance," as defined by our statute (section 9271, Code), we would accord the finding of the trial judge the credit which it is due when he has before him witnesses who testify in his presence. So that for the sake of this discussion, we concede the existence of the facts as complainant contends in so far as there is such evidence to support them. With that understanding, we will treat the question as one where there is not shown to exist a nuisance in fact.

The question is the extent of the legislative power of the city. The statute has used very broad terms in conferring that power in respect to places of amusement. It is not limited in its language. Section 2164, Code. But though not thus limited, its power is confined within constitutional limits so...