Davidson v. Phelps

Citation214 Ala. 236,107 So. 86
Decision Date21 January 1926
Docket Number3 Div. 736
PartiesDAVIDSON v. PHELPS, Sheriff, et al.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill for injunction by Jesse Davidson, doing business as the Davidson Jewelry Company, against Robert C. Phelps, as Sheriff of Montgomery County, and Walter K. McAdory, as Chief Law Enforcement Officer of Alabama. From a decree dissolving a temporary writ complainant appeals. Affirmed.

Ludlow Elmore and Hill, Hill, Whiting, Thomas & Rives, all of Montgomery, for appellant.

T.B Hill, Jr., L.A. Sanderson, and Rushton, Crenshaw & Rushton all of Montgomery, and London, Yancey & Brower, of Birmingham, for appellees.

GARDNER J.

Complainant (appellant here), owning and operating a jewelry store in the city of Montgomery, and engaged in disposing of his jewelry stock by public auction sale, filed this bill for injunction seeking to restrain the sheriff and the chief law enforcement officer of the state from interfering therewith by repeated arrests of complainant and his employees, said officers acting under authority of the act of October 1, 1923, entitled, "An act to regulate the sale at public auction of gold, silver, plated ware, precious stones, watches, clocks, jewelry, bric-a-brac, china, glassware, and to provide penalties for the violation thereof." Acts 1923, p. 691.

The bill attacks the validity of this act upon constitutional grounds as being an arbitrary discrimination against persons engaged in the jewelry business, unreasonable and void, and as depriving complainant of his property without due process of law, and, further, as being in violation of section 45 of the state Constitution, in that the title thereof does not clearly express the subject. Upon a hearing of the motion to dissolve the temporary injunction which had been issued, the court below concluded the above cited act was valid, and dissolved the injunction, from which decree complainant prosecutes this appeal.

Appellee insists the bill is without equity upon the theory that:

"Equity will not exert its powers merely to enjoin criminal or quasi criminal prosecution, 'though the consequences to the complainant of allowing the prosecutions to proceed may be ever so grievous and irreparable.' Brown v. Birmingham, 140 Ala. 600, 37 So. 174."

This is the well-recognized general rule, to which, however, there is the equally well-recognized exception that equity will interfere by injunctive relief "where such prosecution will destroy or impair property rights." Board of Com'rs Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575; Giglio v. Barrett, 207 Ala. 278, 92 So. 668.

"The right of property in an article involves the power to sell and dispose of such article, as well as to use and enjoy it." Mangan v. State, 76 Ala. 60.

Without here detailing the averments of the bill as to the necessity of the sale at public auction in order to dispose of the stock of goods, and the consequential loss to complainant by an interference therewith, we state our conclusion that the bill sufficiently discloses a destruction or such impairment of property rights as to come within the exception to the general rule above stated. We are therefore brought by this conclusion to a consideration of the constitutional validity of the act.

The objection that the title does not clearly express the subject rests upon the theory that the act itself in effect prohibits such public sale, while the title was only as to regulation thereof; and it is argued that the words "regulate" and "prohibit" have different meanings, citing Miller v. Jones, 80 Ala. 89; Morgan v. State, 81 Ala. 72, 1 So. 472; Yahn v. Merritt, 117 Ala. 485, 23 So. 71; State ex rel. Meyer v. Greene, 154 Ala. 249, 46 So. 268. We are of the opinion, however, that these authorities are without application to the act here in question. The act does not prohibit public sales entirely, but permits them when conducted in the manner therein stipulated. There are elements of prohibition or restriction inherent in regulation, as said by this court in Ex parte Byrd, 84 Ala. 17, 4 So. 397, 5 Am.St.Rep. 328:

"While the power 'to regulate' does not authorize prohibition in a general sense, *** yet the weight of authority is to the effect, that this power confers the authority to confine the business referred to to certain hours of the day, to certain localities or buildings in a city, and to the manner of its prosecution within those hours, localities and buildings."

We are of the opinion the act is a regulatory one, and its subject is sufficiently expressed in its title.

Upon the objection that the act is void as being an arbitrary discrimination, little need be said. The rules by which this contention must be tested are stated in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas.1912C, 160:

"The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the
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19 cases
  • Alabama State Federation of Labor v. McAdory
    • United States
    • Alabama Supreme Court
    • May 25, 1944
    ...come within the meaning of the word "regulation"; citing to this effect Miller v. Jones, 80 Ala. 89. Like argument was advanced in Davidson v. Phelps, supra, where this Court observed, answer to this insistence, that there are elements of prohibition or restriction inherent in all regulatio......
  • Hagerman v. City of St. Louis
    • United States
    • Missouri Supreme Court
    • September 12, 1955
    ...in Doering v. Swoboda, 1934, 214 Wis. 481, 253 N.W. 657[5, 6]; Matheny v. Simmons, 1932, 165 Miss. 429, 139 So. 172; Davidson v. Phelps, 1926, 214 Ala. 236, 107 So. 86; In re West, 1925, 75 Cal.App. 591, 243 P. 55; Clein v. Atlanta, 1927, 164 Ga. 529, 139 S.E. 46, 53 A.L.R. 933, 939; Wagman......
  • United States Fidelity & Guaranty Co. v. Wilson
    • United States
    • Mississippi Supreme Court
    • January 23, 1939
  • Farrell v. City of Mobile
    • United States
    • Alabama Supreme Court
    • June 21, 1934
    ...will destroy or impair property rights. Board of City Com'rs v. Orr, 181 Ala. 308, 61 So. 920, 45 L. R. A. (N. S.) 575; Davidson v. Phelps, 214 Ala. 236, 107 So. 86; Walker v. City of Birmingham, 216 Ala. 206, 112 823. But it is also asserted by the courts and text-writers that, "where a pu......
  • Request a trial to view additional results

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