Giglio v. Barrett

• Decision Date: 06 April 1922
• Docket Number: 6 Div. 535.
• Citation: 92 So. 668,207 Ala. 278
• Parties: GIGLIO v. BARRETT ET AL., CITY COM'RS.
• Court: Alabama Supreme Court

92 So. 668

207 Ala. 278

GIGLIO v. BARRETT ET AL., CITY COM'RS.

6 Div. 535.

Supreme Court of Alabama

April 6, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by J. J. Giglio against N. A. Barrett and others, commissioners of the city of Birmingham, to enjoin the enforcement of an alleged void ordinance. From a decree sustaining demurrers to certain parts of the bill and dismissing the preliminary injunction, complainant appeals. Affirmed.

Harris Burns, of Birmingham, for appellant.

W. J Wynn and W. M. Woodall, both of Birmingham, for appellees.

THOMAS J.

The case was submitted on appellees' motion to dismiss the appeal. Appellant filed a motion to substitute the commissioners of the city (in office on the date when the motion was made) in the place of original respondents (in office when the bill was filed). Submission was also "on its merits."

In the caption of the original bill praying injunction, N. A Barrett and others named are styled respondents," as commissioners of the city of Birmingham Ala." The averment in the first paragraph is that said parties " are commissioners of the city of Birmingham, Ala., *** and are residents citizens of Jefferson county, Ala.;" that the ordinance challenged was on the date indicated passed and adopted by said "respondents, as commissioners of the said city of Birmingham." This is sufficient to show that the suit was against such respondent in his respondent in his respresentative capacity. Harris v. Barrett (Ala. Sup.) 89 So. 717; Holloway v. Calvin, 203 Ala. 663, 84 So. 737; Prudential Cas. Co. v. Kerr, 202 Ala. 259, 261, 80 So. 97; Randolph v. Hubbert, 190 Ala. 610, 67 So. 416; Ferrell v. Ross, 200 Ala. 90, 75 So. 466; Lucas v. Pittman, 94 Ala. 616, 10 So. 603. Appellant's motion to substitute the new commissioners of said municipality as parties to this appeal is granted. Ex parte Kirtland, 49 Ala. 403; Fearn, Ex'r, v. Ward, Adm'r, 80 Ala. 555, 2 So. 114; Wells, Adm'r, v. Am. Mortg. Co., 109 Ala. 430, 438, 20 So. 136; Passmore, Adm'r, v. Ellington, 122 Ala. 559, 26 So. 144; Rule 101 Ch. Pr. Code p. 1559, K. C. M. & B. v. Matthews, 142 Ala. 298, 39 So. 207.

The fact that the prayer for process did not describe said respondents in official capacity does not change the character of the bill, and will not prevent substitution of their successors in office as parties. Under our new practice respondents to bills for injunction are not usually brought in by "court process," but as designated in Code, § 4528. Rule 17 of Practice of Courts (Code, p. 1533) requires that the prayer for process or publication to answer a bill shall contain the names of all the defendants; and if injunction, ne exeat, or any special order is asked for in the prayer for relief, that "shall be sufficient, without repeating the same in the prayer for process." An application of this rule of necessary parties, made in Carter v. Ingraham, 43 Ala. 78; McDonald v. McMahon's Adm'r, 66 Ala. 115, 118, was in cases where no injunction was sought as provided for in Code, § 4528. In the decision in McDonald v. McMahon's Adm'r, supra, is cited the text of Story's Eq. Pl. § 44, that the names of parties must appear in the bill, and, although named in the bill, none are parties defendant against whom process is not prayed. This was under the old practice, and before the new provision of the Code of 1907 as to applications for hearings on and granting injunctions. To the text of Story's Equity Pleading (10th Ed.) p. 45, are appended notes to the effect that-

"However this may be in general (under the old English practice), there are certainly cases in which it has been thought not to be absolutely indispensable; as, for example, when, at the filing of the bill, there was no reason to suppose the defendant meant to go out of the realm."

In Collinson [Lord Eldon] 18 Ves. 353; Moore v. Hudson, 6 Maddock & Geldart, 218, and in Alley v. Quinter, 11 D. C. (MacArthur and Mackey) 390, 393, the omission of the prayer for process was held not a defect when the defendants are designated in the bill, and process against them is actually issued and returned and decree pro confesso entered before taking testimony. Where a defendant is sued as executor, held not necessary to be named as executor in the prayer for process-"when all the allegations necessary to hold him as executor are contained in other parts of the bill." Hodge v. Joy (Ala. Sup.) 92 So. 171; Plaut v. Plaut, 44 N. J. Eq. 18, 13 A. 849; Evans v. Evans, 23 N. J. Eq. 71, 75; Ranson v. Geer, 30 N. J. Eq. 249, 253; White v. Davis, 48 N. J. Eq. 22, 21 A. 187. Such is the instant case.

The instant proceeding was under the new practice of the Code of 1907, as designated in section 4528 (Code, §§ 4529, 4532, 4533). Zimmern v. Sou. Ry. (Ala. Sup.) 89 So. 171; City of Birmingham v. Graves, 200 Ala. 463, 76 So. 395. Compliance with said statutes authorized an appeal to Supreme Court. Code, §§ 4530, 4531, 4534, 4535, 4536. The record shows that the judge required complainant to give respondents three days' notice of the hearing, and to serve on them (for such time) a copy of the bill, and counsel appeared, assigning separately and severally demurrers to the bill, and they were then brought into court without other process or prayer therefor. The caption and body of the bill show in what capacity N. A. Barrett, J. E. Brown, H. P. Burruss, J. R. Hornay and John H. Taylor were made respondents to the bill; and the fact that in the prayer it was not again expressly stated that they were made respondents in a representative capacity, as commissioners of the city of Birmingham, rather than individual or vice versa, is immaterial under the new practice prescribed by Code 1907 (Lynne v. Ralph, 201 Ala. 535, 78 So. 889), which was a radical departure from or great abbreviation of the old English practice. 3 Doull, Ch. Pr. 1894 et seq.; Sims, Ch. Pr. § 651. The prayer of the bill was that each respondent and his employees and subordinates be enjoined and restrained from enforcing or attempting to enforce or causing to be enforced against complainant any of the provisions of said Ordinance No. 759-c of the city of Birmingham, and from arresting or prosecuting, or causing to be arrested or prosecuted, the complainant for or on account of any alleged violation of any of the provisions of said ordinance; that the ordinance and its separate and several parts be declared null and void. It is thus indicated by the pleading that it was in representative capacity that the named respondents were made parties, and sought to be enjoined by the bill. This rule is in accord with reason and common sense, since equity looks to the substance rather than to the form, where there has been a substantial compliance with the form.

The appellees were made respondents below in their official capacities. Their motion to dismiss the appeal is overruled; the motion for substituting as necessary parties their successors in office as commissioners of the city of Birmingham is granted. The cause will be considered on its merits.

It is true this court will not decide questions after the decision becomes useless and the judgment may not be made effective; decision will not be rendered to ascertain which of the parties is liable for the costs, as where the license year has expired for which issue was sought. Agee v. Cate, 180 Ala. 522, 61 So. 900. This is not a moot case, seeking to determine an abstract question of law, when the question for decision (not merely of costs) is to determine whether injunction was wrongfully sued out and issued (Harris v. Barrett, supra; Postal Co. v. Montgomery, 193 Ala. 234, 69 So. 428, Ann. Cas. 1918B, 554); but concerns the enforcement of an alleged unconstitutional ordinance of the city of Birmingham, by its commissioners, under circumstances averred to amount to a denial of complainant's valid and proper exercise of his guaranteed property rights. The fact that, pending the litigation, there was a change in the personnel of the commissioners of that municipality was not such a change of the real parties respondent as to render this decision a determination of an abstract question of law.

In this jurisdiction we have adhered to the rule that equity will not interfere with the enforcement of criminal laws under statute or ordinance or check the activities of prosecuting officials when the injury inflicted or threatened is merely the vexation of arrest and punishment of complainant, who is left free to litigate the question of unconstitutionality of such statute or ordinance or its construction or application in defense at the trial or prosecution for its violation. In a proper case, and where required to prevent irreparable injury, property right may be asserted and protected. Harris v. Barrett, supra; Mobile v. Orr, 181 Ala. 308, 61 So. 920, 45 L. R. A. (N. S.) 575.

A proper ordinance, to conserve the safety and to promote the general welfare of the inhabitants of a city, may regulate the operation of motor vehicles used for the carriage of passengers for hire in the city, and such ordinance is within the police power of government, and such power is conferred upon municipalities in this state. Code, §§ 1251, 1340, 1452; Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Standard Chem. & Oil Co. v. Troy, 201 Ala. 89, 77 So. 383, L. R. A. 1918C, 522; Karpeles v. City Ice & Delivery Co., 198 Ala. 449, 73 So. 642; S. S. S. & I. Co. v. Smith, 175 Ala. 260, 57 So. 29; Herbert v. Board of Education, 197 Ala. 617, 73 So. 321; Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann. Cas. 1916C, 1061; McCaa v. Thomas (Ala. Sup.) 92 So. 414.

The brief and argument of counsel for appellant narrows the inquiry to a determination of whether or not section 4 of...