Lawrence v. Gayle

• Decision Date: 17 April 1975
• Citation: 294 Ala. 91,312 So.2d 385
• Parties: Arvill Jean LAWRENCE v. H. Jean GAYLE, as Mayor of the City of Warrior, et al. SC 792.
• Court: Alabama Supreme Court

Page 385

312 So.2d 385

294 Ala. 91

Arvill Jean LAWRENCE v. H. Jean GAYLE, as Mayor of the City of Warrior, et al.

SC 792.

Supreme Court of Alabama.

April 17, 1975.

Rehearing Denied May 22, 1975.

Jones & Landrum and Roger M. Monroe, Birmingham, for appellant.

Rogers, Howard, Redden & Mills, Birmingham, for appellees.

JONES, Justice.

This is an appeal by Arvil Jean Lawrence (plaintiff-appellant) from a final decree of the Circuit Court of Jefferson County denying her declaratory relief and permanent injunction against the Mayor and City Council of the City of Warrior, Alabama (defendant-appellee).

Mrs. Lawrence owns and operates Wayne's Grocery within the police jurisdiction of the City of Warrior. By letter from her attorney dated June 28, 1973, accompanied with a tender of $40, Mrs. Lawrence applied for a retail license to sell 'off-premises' beer. The City of Warrior denied her license under City Ordinance 70--3 which requires an annual license fee of $5,000. Mrs. Lawrence claims that such a fee is prohibitive, oppressive, and unconstitutional, and seeks a declaratory judgment and injunction against the City.

The appeal presents the precise issue whether the $5,000 license fee required by the ordinance to authorize the retail sale of beer constitutes a valid exercise of the City's licensing and police powers; or, conversely, whether the amount of the fee of itself constitutes an unreasonable, discriminatory, and prohibitive exercise of such powers. We hold that the ordinance is invalid. The final decree of the trial court is reversed and the cause is remanded for an order not inconsistent with this opinion.

Initially, the City contends that Mrs. Lawrence has committed four procedural errors in this suit, which in themselves warrant our affirmance of the lower Court's decree:

First, the City contends that Mrs. Lawrence's brief is deficient in that her assignments of error are not substantially argued, pointing out that where no assignments of error are mentioned in appellant's brief, they are considered argued in bulk. Zanaty v. Hagerty, 280 Ala. 232, 191 So.2d 516 (1966). It is true that Mrs. Lawrence makes no direct reference to any of her assignments of error, but since the decree which she attacks is a single entity upholding the validity of the ordinance, and the whole of her argument centers around this point, we find no merit in this contention. Matthews v. Matthews,292 Ala. 1, 288 So.2d 110 (1974); Everitt v. Everitt, 279 Ala. 64, 181 So.2d 504 (1965).

Secondly, the City argues that the Attorney General must be served with a copy of the proceedings when the constitutionality of a city ordinance is challenged in an action for a declaratory judgment. Tit. 7, § 166, Code of Alabama 1940 (Recomp.1958). We agree that this requirement is mandatory and goes to the jurisdiction of the Court. Board of Trustees of Employees' Retire. Sys. v. Talley, 286 Ala. 661, 244 So.2d 791 (1971). But such failure, defect, or insufficiency must be brought to this Court's attention prior to its submission by written motion; and, failure to timely file this motion, giving appellant reasonable opportunity to correct such defect, constitutes a waiver of consideration by this Court. Supreme Court Rule 52. The City failed to meet the requirements of this rule and hence this argument is without foundation.

Thirdly, the City contends that there exists no justiciable controversy between the parties, since no personal request was made by Mrs. Lawrence for a license. She counters with the contention that she repeatedly made such requests and the City admits that a letter was received from her attorney requesting a license.

It is elementary that omissions and commissions of an attorney at law are to be regarded as acts of the client whom he represents. Nolson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So.2d 23 (1963); Cooper v. Cooper, 273 Ala. 694, 144 So.2d 62 (1962); see also Berk v. State,225 Ala. 324, 142 So. 832 (1932).

Moreover, the evidence is without dispute that they City's refusal to issue the license was not grounded upon the fact that the application came from the attorney rather than from Mrs. Lawrence personally. Accordingly, the 'justiciable controversy' requirement of the declaratory judgment action is not here lacking.

Lastly, in pointing out that her letter requesting the license was dated June 28, 1973, and that her ABC license was not issued until August 30, 1973, the City refers to The Alabama Constitution, Art. 4, § 89. This section provides only that the state legislature does not have the power to authorize any municipality to pass any law inconsistent with the general laws of the state. Thus, argues the City, a municipality cannot license a business which is forbidden by the general law. Hewlett v. Camp, 115 Ala. 499, 22 So. 137 (1896).

The fallacy in this argument is that, although the retail sale of beer reqjires the issuance of an ABC license, such sale is not forbidden by the State of Alabama; and, here again, the evidence is clear that this was not the basis for the City's denial of Mrs. Lawrence's application for the license. At the time of trial, Mrs. Lawrence had a valid ABC license. If, in fact, this had been the basis for its denial, the City could have then rendered this cause moot at the time of trial by simply offering to accept the application and grant the license.

As to the substantive issue before us, Mrs. Lawrence contends that the City's $5,000 beer license fee is both unreasonable and oppressive. In support of this, she argues that the amount of the fee is at least 100 times the amount charged by most municipalities immediately surrounding Warrior, citing the example of $40 beer license fee charged by the City of Birmingham.

We feel that in our analysis of the foregoing issue, for the sake of clarity, it would be judicially prudent to chronologically trace the evolution of our case law in this area.

In State v. Centanne, 265 Ala. 35, 89 So.2d 570 (1956), the plaintiff brought suit against the City of Prichard for its refusal to issue him a license to sell off-premises beer after he had been previously so licensed by the Alcoholic Beverage Control Board. The City was relying on an ordinance which provided that 'no license shall be issued to any establishment which is nearer than five hundred (500) feet to the route usually traveled from any church or schoolhouse.'

The plaintiff in Centanne contended that the ordinance violated Art. 4, § 89, The Alabama Constitution, which states:

'The legislature shall not have the power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.'

This Court held that the ordinance was a valid exercise of the municipality's authority:

'It is well settled that the fact that an ordinance (which) enlarges upon the provisions of a statute by requiring more restrictions than contained in the statute creates no 'conflict,' unless the statute limits the requirements for all cases to its own prescriptions.

'The provisions of the ordinance here in question, to which we have referred, do no more than add restrictions to the statutory provisions in that respect. The statute does not prescribe restrictions to be exclusive of all others.'

The ordinance in Centanne was held not to be inconsistent with the authority of the ABC Board since it did not prohibit the sale of beer which the ABC license permitted; but, since it only required more restrictions than the original license, it was not repugnant to the original legislative intent of the licensing statute.

In King v. Kendrick, 265 Ala. 160, 90 So.2d 88 (1956), the plaintiff, having been previously awarded an ABC beer license, appealed a decree overruling his motion to dissolve a temporary injunction prohibiting the sale of beer by him in his grocery store without a county permit. His contention was that the county was powerless to deny him the permit due to the State's previous licensing of him to sell beer.

In affirming the trial court's decree, this Court said:

'In the case at bar it is sufficient to say that the regulation here was in force and effect prior to the issuance by the Alcoholic Beverage Control Board of the permit to the appellant and the opening and operation of his business on the premises in question. Under Title 62, § 330(239a), Pocket Part, Code of 1940, authority is given the building commissioner for the enforcement of county zoning regulations by means of the withholding of building, use or occupancy permits. In refusing the appellant a use permit to sell beer, the building commissioner was acting within the valid and lawful exercise of his power.'

It appears that this Court's decision in King to uphold the lower court was grounded both on the prior effectiveness of the zoning regulation and the statutory authority given the building commissioner for the enforcement of the county zoning ordinance.

In Capps v. Bozeman, 272 Ala. 249, 130 So.2d 376 (1961), the City of Prichard appealed the decree of the trial court awarding mandamus to require it to issue an off-premises beer license to the plaintiff. It had refused to issue one because of an ordinance which provided that the place of the beer sales must not be less than one thousand (1000) feet from any church or school. (The plaintiff was 880 feet from a church.)

This Court, in reversing the decision of the lower court in Capps, stated:

'Because petitioner's (plaintiff) place of business is shown to be at a location where a beer license is prohibited by the ordinance, petitioner has not shown a clear, legal right in himself to the license applied for, and for his failure to show this indispensable requisite, the judgment awarding the peremptory writ is due to be and is reversed.'

This decision is grounded on the denial of the license on the fact that a valid purpose existed behind the enactment of the ordinance and that the plaintiff had failed to...