Crabtree v. City of Birmingham
| Decision Date | 22 August 1974 |
| Citation | 299 So.2d 282,292 Ala. 684 |
| Parties | James C. CRABTREE, III, d/b/a Alabama Wrecker Service v. The CITY OF BIRMINGHAM et al. SC 531. |
| Court | Alabama Supreme Court |
Holt & Cooper, and John P. Whittington, Birmingham, for appellant.
William A. Thompson, Birmingham, for the City of Birmingham, and others.
This is an appeal from the Circuit Court of Jefferson County, in equity, wherein a final decree was rendered adverse to appellant/complainant, James C. Crabtree, III, who filed a Bill of Declaratory Judgment praying that City of Birmingham Ordinance 69--75 be declared unconstitutional.
Crabtree concedes that the City of Birmingham possesses the power to regulate the wrecker business within the corporate limits of that city. He does contest, however, the power of the municipality to grant an exclusive contract to one wrecker service for operation of a wrecker business and at the same time establish one set of regulations for the exclusive franchisee and another set for all other wrecker services, including the appellant.
Counsel for the appellant's brief summarizes his contention as follows:
'(T)he Appellee has created an exclusive franchise with one wrecker service and granted exclusive privileges to the same wrecker service. The provisions of said ordinance are unduly burdensome and discriminatory to the Appellant's contravention of the Fourteenth Amendment to the United States Constitution and Section 22 of the Alabama Constitution.
'The Appellee, under the exercise of its police power, has the right to regulate wreckers or towing vehicles on the streets of the City to prevent traffic congestion and the damages incident thereto. The ordinance regulating such business, however, must be exacted in furtherance of the public safety and public welfare; and the regulatory provisions must apply to all wrecker services. . . .
'The Appellee's primary method of regulation is in the form of Ordinance 69--75 which awards an exclusive privilege to one wrecker service, and thereby limits the number of viable wrecker services in the City to one. This method of regulation, limitation of one wrecker service, does not bear a reasonable relation to the purpose to be accomplished by the ordinance in question . . ..
We note at the outset, then, that appellant has invoked our review in the limited context of his contention that he should be permitted to maintain a short wave radio for the monitoring of police calls in the same manner and to the same extent as allowed the contract wrecker service.
The issues dispositive of this appeal are:
1. Whether the exceptions granted to the exclusive franchisee in City of Birmingham Ordinance 69--75 violate the 14th Amendment to the United States Constitution (), and
2. Whether the Ordinance violates Article, I, § 22, Constitution of Alabama of 1901 ().
We answer both questions in the negative and thereby uphold the constitutionality of the Ordinance. In so holding, we emphasize that we have confined our consideration to the sole and narrow contention presented and argued by counsel for the parties as noted above. We affirm.
Ordinance No. 69--75, in pertinent part, provides:
'Section 1. It shall be unlawful for any person to send, operate, or direct a motor vehicle wrecker to the location or scene of an accident or disabled vehicle in the City of Birmingham if information as to such accident or disabled vehicle is obtained directly or indirectly from Birmingham police short was radio calls or transmissions; provided that this section shall not apply to information obtained from calls made by the Police Department of said city or a policeman thereof directly to a particular wrecker service or business requesting a wrecker be sent by said service or business to the scene of an accident or disabled motor vehicle.
'Section 2. It shall be unlawful for any person, firm or corporation operating a motor vehicle wrecker service or business in the City of Birmingham, or any employee of such service or business, to permit any radio at such place of business or in any vehicle used in such business to be turned to the Birmingham Police Department short wave radio band or otherwise tuned or set so as to intercept or receive Birmingham Police short wave radio calls or transmissions.
'Section 3. It shall be unlawful for any person engaged in operating a motor vehicle wrecker service or business or any employee of such service or business to solicit patronage for such wrecker service or business at the scene of a motor vehicle accident in the City of Birmingham within one hour after the occurrence of such accident.
'Section 4. It shall be unlawful for any person, firm or corporation to send, operate or direct a motor vehicle wrecker to the location, or the scene of an accident or disabled vehicle in the City of Birmingham unless requested to do so by the owner or person in charge or possession of such vehicle and after obtaining the name and residence address of such owner or person in charge or possession thereof. It shall be unlawful for any person in charge of or operating a wrecker to remove a disabled motor vehicle from the scene of an accident without furnishing a police officer at such scene the name and address of the person requesting the removal of such disabled motor vehicle when requested by such officer to do so.
The amended complaint was filed January 3, 1973. On February 6, 1973, James C. Parsons, Chief of Police of Birmingham, issued General Order 3--73 relative to the procedure for police department vehicles tow service, providing:
'B. Private Notification
1
For many years Kemp's Garage has been the City's contract wrecker service. Crabtree, along with 63 others, operate wrecker services in the City of Birmingham. The Ordinance prohibits his use of radios tuned to the Birmingham Police Department short wave band to locate accidents while Birmingham's contract wrecker service (Kemp's) is specifically exempt from this restriction. Neither Crabtree nor Kemp's is permitted to go to an accident unless called. Prior to General Order 3--73, the victim of an accident had to request a wrecker service other than the contract wrecker service, and the victim had to personally call another wrecker service (other than the contract wrecker service) before such wrecker service could go to the accident. The police, pursuant to General Order 3--73, will now call the wrecker service requested in 'private notification' the accident. The police, pursuant to Gensituations. The contract wrecker service is able to dispatch wreckers to the general area of an accident even prior to receiving the call from the police department through use of a police short wave radio band.
In past years, through the City's departmental regulations, the contractual requirements for prospective contract wrecker services provided that the wrecker service must be located within one-half mile of the Birmingham City Hall. During this time, Kemp's was the only wrecker service in Birmingham physically located within one-half mile of City Hall. With the opening of part of the interstate highway network in Birmingham, Kemp's had to relocate three-fourths mile from City Hall. Accordingly, Birmingham changed the contractual requirements for city wrecker service to three-fourths mile from City Hall.
The contractual requirements formerly called for any city wrecker service to have 100,000 square feet of vehicular storage area. Crabtree found property within the required distance of City Hall with 110,000 square feet of storage area. While appellant was negotiating for this property, which would have permitted him to bid on Birmingham's contract wrecker service, Birmingham raised the storage area requirement to 150,000 square feet.
The appellant's primary contention is that Ordinance 69--75 grants as exclusive contract to Kemp's and is thus unconstitutional as a denial of equal protection; but, in essence, his entire argument centers around, and is thus thereby weakened by, his continued assertion that he should be entitled to solicit business (i.e., 'chase wrecks') as, he claims, Kemp's is permitted to do.
A careful reading of the Ordinance clearly shows that while only Kemp's is permitted to use short wave radios turned to the police band in order to hear reports of accidents, Section 3 points out that no wrecker service, including the one presently under contract to the City, is permitted to 'chase wrecks.' Kemp's is permitted, to be sure, upon hearing of an accident on the radio, to proceed towards the location of the accident before they are actually summoned; but Kemp's is not allowed to arrive at the scene unless they are specifically summoned to do so by either the police or the private individual involved. This is not such an unreasonable exemption or advantage afforded Kemp's since one under contract for his services, and rightfully so, stands in a special relationship to the City as compared to...
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