City of Miami v. McCrory Stores Corporation

• Decision Date: 14 April 1950
• Docket Number: No. 12626.,12626.
• Citation: City of Miami v. McCrory Stores Corporation, 181 F.2d 368 (5th Cir. 1950)
• Parties: CITY OF MIAMI et al. v. McCRORY STORES CORPORATION et al.
• Court: U.S. Court of Appeals — Fifth Circuit

181 F.2d 368 (1950)

CITY OF MIAMI et al. v. McCRORY STORES CORPORATION et al.

No. 12626.

United States Court of Appeals Fifth Circuit.

April 14, 1950.

John E. Cicero, Assistant City Attorney, Miami, Fla., J. W. Watson, Jr., City Attorney, Miami, Fla., for appellants.

Stuart W. Patton, Miami, Fla., S. E. Simmons, St. Petersburg, Fla., for appellees.

Before HUTCHESON, Chief Judge, and WALLER and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

The suit, based on diversity and amount, was brought by appellees, as owners of a building fronting on N. Miami Avenue, in the City of Miami, Florida, to enjoin the City of Miami from enforcing against it a set-back emergency ordinance, No. 3598,¹ enacted July 26, 1948, after McCrory had filed their application for a building permit with the Building Department of the City of Miami.

The claim was that the ordinance was invalid because (1) it was enacted with the express purpose of discriminatorily affecting plaintiffs; (2) it was passed without any notice of hearing to adjoining property owners and without any previous reading; and (3) it had no relation to the valid exercise of the police power of the City of Miami, but was a scheme to confiscate five feet of plaintiffs' property without compensation.

The prayer was that the City be enjoined from enforcing the ordinance, in effect requiring plaintiffs to set back their building five feet, and for such other and further relief as the court may deem proper.

The City answered, denying plaintiffs' allegations of intentional discrimination, and insisting that the ordinance was valid and its effective application ought not to be enjoined.

The case came on for trial, and full and exhaustive testimony was taken as to the nature and character of the McCrory construction and particularly as to whether their building was "structurally altered", within the meaning of the ordinance.

The hearing ended, the district court made full findings of fact,² and on the basis of these findings, concluded: (1) that "The construction and alterations contemplated by the McCrory Stores Corporation, as reflected by the evidence and its plans and its application for a building permit from the defendant are not `structural alterations' within the meaning of any applicable ordinances of the City of Miami"; (2) that "The plaintiff, McCrory Stores Corporation, is entitled to the immediate issuance by the City of Miami of a full and complete building permit authorizing the construction of all of the alterations contemplated and proposed by plaintiff".

It was, therefore and thereupon, on October 19, 1948, ordered: (1) "That the City of Miami * * * be * * * permanently and perpetually enjoined and restrained from enforcing or attempting to enforce against the plaintiffs, the set-back provisions of the zoning ordinance of Miami and all amendments thereto"; (2) that the City "issue to the plaintiffs McCrory Stores Corporation, the building permit applied for by said plaintiff on May 24, 1948, without any exceptions whatever in respect to the westerly five feet * * *"; and on October 26, 1948, the City, without superseding the judgment, appealed.

Before the appeal came on for submission here on the merits, appelles filed their motion to dismiss the cause as moot, showing in, and by, said motion: (1) that after the entry of the judgment and before the appeal, the City of Miami had, on the 21st day of October, 1948, issued a building permit as requested in the application of May 24, 1948, and as required by the judgment, the permit reciting on its face, "Court order, Wm. J. Barker, U. S. District Judge, 10/19/48". This motion was argued, the ruling on it was taken with the case, and it was again argued at the submission on the merits.

In addition to the many cases supporting the well established general principle that a Court will not decide a case which has become moot, appellees cite three cases dealing with the issuance of building permits, the leading case of Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620, and two much later cases, one from California, Bartholomae Oil Corp. v. Seager, 35 Cal.App.2d 77, 94 P.2d 614, and another from Texas, City of West University Place v. Martin, 132 Texas, 354, 123 S.W.2d 638, in which, on appeals from orders involving building permits, the courts held that the issuance of the permit and the completion of the building under it rendered the controversy moot.

Appellants denying the force of these decisions here, press upon our attention: that in each of them the whole controversy was over the issuance of the permit; that whereas here, the enforcement of the ordinance was the real controversy, the issuance of the permit was merely incidental to it; and that while the decree appealed from did, though there was no prayer for it, order the issuance of the permit, its prime and main provision was the one permanently enjoining the city from enforcing its ordinance.

They insist, therefore, that this case is thus not moot but still alive and active, that the appellees, having gone ahead with their building under the protection of the injunction, did so at their peril, and if it be held that the injunction was wrongly issued and should be dissolved, they will stand subject to the provisions and penalties...