City of Birmingham v. Holt, 6 Div. 626.

• Decision Date: 22 February 1940
• Docket Number: 6 Div. 626.
• Citation: 239 Ala. 248,194 So. 538
• Parties: CITY OF BIRMINGHAM v. HOLT.
• Court: Alabama Supreme Court

194 So. 538

239 Ala. 248

CITY OF BIRMINGHAM v. HOLT.

6 Div. 626.

Supreme Court of Alabama

February 22, 1940

Rehearing Denied March 21, 1940.

Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.

Suit in equity by the City of Birmingham against Harry C. Holt, doing business under the name and style of Holt Sign Company, for a declaratory judgment, determining the invalidity of a contract and the parties' status and rights thereunder and an injunction restraining erection and requiring removal of signs on the city's sidewalks. From a decree denying relief in part, complainant appeals.

Reversed and rendered.

W. J Wynn and John S. Foster, both of Birmingham, for appellant.

Chas W. Greer, of Birmingham, for appellee.

THOMAS Justice.

The appeal is by the city to restrain the erection of signs along public streets. The case was submitted upon agreed statement of facts, which is specific and concise. No recital of the same is necessary.

The pleadings are well stated by appellant, in substance, as follows: The City of Birmingham filed a bill against Harry C. Holt seeking a mandatory injunction requiring said Holt to remove certain signs placed by said Holt upon the sidewalks of the City of Birmingham. It is alleged that signs were maintained on posts located in the sidewalks of the streets of the city at various intersections; that the signs obstructed and interfered with the use of the public streets, and constituted a public nuisance. It is further alleged that the contract entered into by and between the City of Birmingham and said Holt on the 6th day of April, 1937, authorizing the erection of said signs, was unauthorized, null and void: that prior to the institution of suit appellant offered to rescind and annul said contract, but its offer was refused and declined by the appellee. In addition to the prayer for a mandatory injunction, appellant prayed for a declaratory judgment regarding the rights and status of the parties under the contract and the law that obtains.

The bill was amended by striking therefrom paragraph five and demurrer was refiled to the amended bill, which was overruled.

Appellee filed an answer admitting that the metal board signs had been placed on the sidewalks of the city pursuant to the contract, that triangular pasteboard signs, containing advertising matter, had been attached to the metal board signs; and denied that the attaching of said triangular signs was done without the consent, permission or approval of appellant, but did not allege that the original contract authorized such triangular signs.

The answer further denied that the erection of the metal board signs on the sidewalks of the city at various intersections obstructed and interfered with the use of the public streets, denied that the maintenance of such signs constituted a public nuisance, and further denied that the appellant had no authority to make and enter into said contract.

The circuit court rendered a decree in which it held that the contract did not authorize the appellee to attach triangular signs to the bottom of the metal signs, provided for in the contract. The court enjoined the appellee from erecting in the future triangular signs, and ordered appellant to remove all triangular signs within thirty days from the date of the decree. The court taxed the costs against the appellee.

The appellant, City of Birmingham, appealed from the final decree rendered on October 31, 1939, as amended December 8, 1939.

This case was submitted, as aforesaid, upon an agreed statement to the effect that on the 6th day of April, 1937, the City of Birmingham and Harry C. Holt, doing business as Holt Sign Company, entered into an agreement which was to extend for a period of three years. Under its terms the city, through its then duly constituted commission, granted to the company permission to erect and maintain at such street intersections as the city may approve safety warning signs. The signs were to serve the public as street guides where located. The upper portion of the signs carries safety warnings, which are to be changed at least six times during each year; and the lower part is used for advertising purposes that may be offered by the company to various subscribers. The agreement further provides that the company shall not be required to pay any license or permit fees for the erection or maintenance of such signs.

The agreed statement of facts recites that the contract in question was executed pursuant to a resolution adopted by the Commission of the City of Birmingham composed of J. M. Jones, Jr., Lewey Robinson and W. O. Downs; and that on November 1, 1937, Eugene Connor and J. W. Morgan succeeded the said Robinson and Downs as Commissioners of the city. The agreed statement of facts further recites that the City Commission as composed of Jones, Morgan and Connor, who have in their official capacity by resolution made and entered of record of said commission, cancelled and annulled the contract and demanded that the signs erected by the company be removed.

As indicated this case, as submitted on the pleadings and the agreed statement of facts, presents two principal questions to the court for decision. Did the commission, composed of Jones, Robinson and Downs, have authority to bind their successors to permit the signs in question to remain on the public sidewalks of the city? And, does the city commission, irrespective of the question of one group of officers binding their successors, have the authority to permit public sidewalks of the city to be used for advertising purposes?

Answering the inquiries as propounded, did the commission, composed of Jones, Robinson and Downs, have authority to bind their successors in office to permit the signs in question to remain on the public sidewalks of the city? In 44 Corpus Juris, 88, the general rule is stated to be as follows: "Under the general rule a council may not by contract bind its successors to forego or to exercise their legislative functions. And the same is true of any city board having legislative authority. Nor has a city officer with discretionary power in the transaction of business in his department and the requisite authority to make contract with reference thereto a power to bind his successor in matters properly within the discretion of the person holding the office. This rule has been applied to contracts for personal or professional services to the city, and to the grant of exclusive franchises or privileges by the city."

No Alabama case is cited to this text; and no question here involved, insofar as a municipality is concerned, is found. The greater weight of authority is to the effect that "one state legislature cannot by any agreement bind itself or its successor in office not to exercise the police power of the state." A discussion of this rule, and the reason on which it is based, is contained in Section 603, Constitutional Law, Vol. 12 Corpus Juris, p. 991. This text, after stating the rule which precludes one state legislature from binding itself or its successor not to exercise the police power of the state, pronounces that the same rule applies with reference to municipalities. It is as follows: "The police power of a state is an inherent attribute of its sovereignty with which it is endowed for the protection and general welfare of its citizens, and of which the state may not divest itself by contracts or otherwise. One state legislature, therefore, cannot by any agreement bind itself or its successors not to exercise the police power of the state. (Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662 [666], 13 So. 602, 27 L.R.A. 263, 46 Am.St. Rep. 92. All contracts, whether made by the state itself, by municipal corporations, or by individuals, are subject to be interfered with, or otherwise affected by, subsequent statutes enacted in the bona fide exercise of the police power, and do not, by reason of the contracts clause of the constitution, enjoy any immunity from such legislation. (Crosby v. Montgomery, 108 Ala. 498, 18 So. 723; Blann v. State, 39 Ala. 353, 84 Am.Dec. 788.) And, in like manner, ordinances enacted by municipal corporations within the scope of the police power lawfully delegated to them are valid notwithstanding such ordinances affect contracts previously made by such corporations, or by individuals or private corporations. This rule is not only reasonable, but necessary, as a contrary rule would enable individuals, by their contracts, to deprive the state of its sovereign power to enact laws for the public welfare."

A leading case in which this principle was applied is that of Boston Beer Company v. Commonwealth of Massachusetts, 97 U.S. 25, 33, 24 L.Ed. 989, where the charter of the Boston Beer Company granted in 1928 included a franchise to manufacture malt liquors in Boston. A state statute subsequently adopted prohibited the manufacture and sale of intoxicating liquors. The beer company contended that the enforcement of the statute would constitute an impairment of its contractual rights embodied in the charter. In overruling this contention the Supreme Court of the United States said through Mr. Justice Bradley: "Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be...