Lewis v. Jenkins

• Decision Date: 24 March 1927
• Docket Number: 6 Div. 813
• Citation: 112 So. 205,215 Ala. 680
• Parties: LEWIS et al. v. JENKINS.
• Court: Alabama Supreme Court

112 So. 205

215 Ala. 680

LEWIS et al. v. JENKINS.

6 Div. 813

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

On Rehearing.

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Petition of J.A. Jenkins for mandamus to O.W. Lewis and others. From a judgment for petitioner, respondents appeal. Reversed and remanded.

Goodwyn & Ross, of Bessemer, for appellants.

Estes &amp Smithson, of Bessemer, for appellee.

BROWN J.

This is a mandamus proceeding instituted in the circuit court by the appellee to compel the issuance of a building permit to the petitioner, authorizing the construction of a building on his private property located within the corporate limits of the city of Bessemer. The defendants, who are the appellants here, are "the aldermen, and constitute the city council of the city of Bessemer," and C.L. Egger, who is described in the petition as "of the fire department *** he being the person designated by the city council of the city of Bessemer to grant permits for the erection of buildings," and the petition avers that the "petitioner recognizes the right of the city to require the procuring of a permit for the errection of houses within the corporate limits."

Aside from the quoted averments the petitioner in no way pleads the legal authority of the defendants to issue the permit, and the demurrer to the petition questions its sufficiency on the ground, among others, that these averments are the mere conclusions of the pleader.

Whatever may have been the rule of pleading under the common law in mandamus proceedings, our statute (Code of 1923, § 8978) requires an application for mandamus to be made by petition, and treats the petition as the first pleading in the case. As such its sufficiency may be tested by demurrer. State Tax Commission v. T.C.I.R. Co., 206 Ala. 355, 89 So. 179.

In such cases, where the purpose of the proceeding is to compel official action, the legal authority of the defendant to act is essential to the petitioner's "clear specific legal right" to have the act performed, and this is a conclusion of law that must arise from the facts averred in the petition. If the authority of the defendant or defendants to do the act is not clearly shown, or is left in doubt by the averments, an appropriate demurrer thereto should be sustained. 38 C.J. 869, § 569; Ex parte Huckabee, 71 Ala. 427; Armstrong v. O'Neal, 176 Ala. 611, 58 So. 268; Ex parte Harris, 52 Ala. 87, 23 Am.Rep. 559; 9 Michie's Digest, 777, § 8.

The power of cities and towns, not falling within the provisions of the act approved August 20, 1915 (Acts of 1915, pp. 294-307), to regulate the erection of buildings on private property situated within their corporate jurisdiction, and promulgate reasonable rules regulating the issuance of building permits, is referable to the General Municipal Code, prescribing a uniform system for all municipal corporations, within the state, and supplanting charter provisions contained in special acts theretofore existing. Code of 1923, §§ 1739, 1740, 1992, 2012; City of Birmingham v. Brown, 13 Ala.App. 655, 69 So. 263.

This power must be exercised, if at all, by the adoption, by the governing authority of the municipality, of an ordinance, or ordinances, not inconsistent with the statutes granting this power, prescribing reasonable regulations and the conditions upon which such permits may be obtained, and conferring upon the governing body, or some officer of the municipality, the authority to grant such permits,...