Dreyfus v. City of Montgomery

Decision Date09 April 1912
Citation4 Ala.App. 270,58 So. 730
PartiesDREYFUS v. CITY OF MONTGOMERY.
CourtAlabama Court of Appeals

On Application for Rehearing, May 4, 1912.

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Julius Dreyfus was convicted of operating a moving picture show within an area prohibited by ordinance, and he appeals. Affirmed.

Hill, Hill, Whiting & Sterne, of Montgomery for appellant.

John V Smith, of Montgomery, for appellee.

PELHAM J.

The board of commissioners of the city of Montgomery adopted an ordinance making it unlawful to operate a moving picture show within the city of Montgomery in any building fronting on either side of Dexter avenue between Lawrence and Bainbridge streets, and providing a punishment for the violation thereof. The body of the ordinance declared it to be a necessary regulation "for the preservation of the public safety." Subsequent to the adoption and approval of this ordinance, the appellant was arrested on a warrant issued on a complaint or affidavit charging him with a violation of the ordinance in question and was tried and convicted in the recorder's court of the city of Montgomery. From this judgment of conviction an appeal was prosecuted to the city court of Montgomery, and upon a trial being had in that court which resulted in conviction, the appellant prosecutes this appeal.

The trial in the city court of Montgomery is shown by the record to have been on an agreed statement of facts, and no question is raised on the facts of the case. It is the validity of the ordinance that is challenged.

It is the appellant's contention that the ordinance is unreasonable and an unwarranted and arbitrary exercise of power, discriminative in its nature, and contravening the personal and property rights of the appellant, who had been conducting a moving picture show for colored people in the prohibited territory under license from the city authorities before the passage of the ordinance.

Section 1341 of the Code of 1907 is as follows: "1341. Theaters tenpins, shooting galleries, and liquor houses.--To license, tax, regulate, restrain, or prohibit theatrical and other amusements, billiard and pool tables, nine or tenpin alleys, box or ball alleys, shooting galleries, theaters, parks, and other places of amusement, and the selling, retailing, wholesaling, or giving away of spirituous, vinous, or malt liquors, intoxicating bitters, or beverages, when not prohibited by law; when in the opinion of the council the public good or safety demands it, to refuse to license any or all such businesses and to authorize the mayor by proclamation to cause any or all houses or places of amusement or houses or places for the sale of intoxicating liquor, or houses or places for the sale of firearms or other deadly weapons, to be closed for a period of not longer than the next meeting of the city or town council."

It will be seen from reading this section that the authority of the city to adopt the ordinance in question is based on an express power conferred by the Legislature on the city. In exercising this express grant of power to regulate, restrain, or prohibit places of amusement, the city by an ordinance regulating such places restricted the territory for the conduct of moving picture shows (confessedly a place of amusement) to certain designated territorial limits in the city.

This is a valid exercise of an express power conferred by the Legislature, and, the validity of the statute conferring the right not being questioned, under authority of the rule laid down by the Supreme Court, the policy or reasonableness of the ordinance cannot be inquired into. Lindsay v. Mayor and City Council of Anniston, 104 Ala. 257, 16 So. 545, Dunn v. Wilcox,

85 Ala. 144, 4 So. 661; Dillon on Municipal Corporations (5th Ed.) vol. 2, § 600, p. 943, and the numerous cases cited in footnote 1 sustaining this proposition; 28 Cyc. 368, § 4, and authorities cited in note 19; McQuillin on Municipal Corporations, vol. 2, p. 18, § 724, and note.

Moreover "due process of law and the equal protection of the laws are secured if the laws operate upon all alike and do not subject the individual to an arbitrary exercise of the powers of government." Miller v. Birmingham, 151 Ala. 469, 472, 44 So. 388, 389 (125 Am. St. Rep. 31), quoting from the Supreme Court of the United States in the case cited. The...

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26 cases
  • Hale v. State
    • United States
    • Alabama Supreme Court
    • January 28, 1928
    ...the object of the act, and is for such reason offensive to the Fourteenth Amendment to the Constitution of the United States. Dreyfus v. City of Montgomery, supra; parte Sikes, supra; Woco Pep Co. v. City of Montgomery, 213 Ala. 452, 457, 105 So. 214; 12 C.J. pp. 1151, 1157, §§ 881, 894. Se......
  • Woco Pep Co. of Montgomery v. City of Montgomery
    • United States
    • Alabama Supreme Court
    • May 14, 1925
    ... ... sense by the contract laws. ( Bleon v. Emery, 60 ... Utah, 582, 209 P. 629), and it is revocable at pleasure. ( ... Powell v. State, 69 Ala. 10; Jones v ... Motley, 78 Ala. 370; Foshee v. State, 15 ... Ala.App. 113, 72 So. 685; Dreyfus v. City of ... Montgomery, 4 Ala.App. 270, 58 So. 730; Munn v ... [105 So. 217] ... Illinois, 94 U.S. 113, 24 L.Ed. 77; Boyd v ... Alabama, 94 U.S. 645, 24 L.Ed. 302; Burgess v. City ... of Brockton, 235 Mass. 95, 126 N.E. 456; State v ... Cote, 122 Me. 450, 120 A. 538; ... ...
  • Mutual Film Co. v. Industrial Commission of Ohio
    • United States
    • U.S. District Court — Northern District of Ohio
    • April 2, 1914
    ... ... Harold T. Clark, both of Cleveland, Ohio, and Walter N ... Seligsberg, of New York City, for complainants ... Timothy ... S. Hogan, Atty. Gen., and James S. Bolger, Asst ... Lacroix, 119 Minn. 145, 150, 151, 137 N.W. 417, 41 ... L.R.A. (N.S.) 737; Dreyfus v. City of Montgomery, 4 ... Ala.App. 270, 58 So. 730, 732. See, also, State v ... Morris, 1 ... ...
  • Kansas City v. Frogge
    • United States
    • Missouri Supreme Court
    • November 1, 1943
    ...Section 1 of the Fourteenth Amendment to the Constitution of the United States. 43 C.J., p. 546; 59 C.J., p. 724; Dreffus v. Montgomery, 58 So. 730, 4 Ala.App. 270; New Orleans v. Paciera, 158 So. 1, 180 La. 869. The trial court erred in declaring by its judgment herein that this ordinance ......
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