McCraney v. City of Leeds, 6 Div. 662.

• Court: Supreme Court of Alabama
• Citation: 241 Ala. 198,1 So.2d 894
• Docket Number: 6 Div. 662.
• Parties: McCRANEY v. CITY OF LEEDS.
• Decision Date: 10 April 1941

1 So.2d 894

241 Ala. 198

McCRANEY
v.
CITY OF LEEDS.

6 Div. 662.

Supreme Court of Alabama

April 10, 1941

Rehearing Denied May 15, 1941. [1 So.2d 895]

[241 Ala. 200] Horace C. Wilkinson and Smith, Windham, Jackson & Rives, all of Birmingham, for appellant.

Bryant A. Whitmire and Exum & Whitmire, all of Birmingham, D.K. McKamy and Benners, Burr, McKamy & Forman, all of Birmingham, for one of respondents to cross-bill.

BOULDIN, Justice.

On former appeal the bill was sustained against demurrer. That decision, McCraney v. City of Leeds, 239 Ala. 143, 194 So. 151, discloses the substantial averments of the bill. They need not be here repeated.

The present appeal is from a final decree on pleadings and proof granting complainant relief.

We deem it fully settled in this jurisdiction that a permanent structure upon any portion of a public street, employed in the conduct of a private business on the street, may be abated as a public nuisance. It is invasive of the public right in the free and uninterrupted use of the street. When the free use of any portion of the street for the purposes to which it is dedicated is thus obstructed, it is no defense that the unobstructed portion of the street is sufficient to accommodate public travel, and does not materially endanger persons in the use of the street. It is not for the citizen to thus limit or abridge the paramount right of the public in the entire street.

Section 220 of our constitution is a recognition of inherent power in towns and cities to withhold consent, and to inhibit the use of a public street in any private enterprise. One other legal principle we deem pertinent to the case now presented. Any permit, express or implied, on the part of municipal authorities to so infringe upon the public right is revokable. The governing body can not divest itself of the governmental powers granted to the municipality to be exercised as a public trust. Each succeeding administration has its unimpaired powers and responsibilities in dealing with conditions as it finds them.

In addition to authorities cited in former opinion, we call attention to the following: City of Birmingham v. Holt, 239 Ala. 248, 194 So. 538; City of Birmingham et al. v. Hood-McPherson et al., 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140; Hover v. Oklahoma City et al., 133 Ok. 71, 271 P. 162; Palace Garage et al. v. Oklahoma City, 131 Okl. 122, 268 P. 240; Sander et al. v. City of Blytheville, 164 Ark. 434, 262 S.W. 23; Rowe v. City of Cincinnati et al., 26 Ohio App. 87, 159 N.E. 492; 7 Blashfield, Automobile [1 So.2d 896] Law, Permanent Edition, § 4951; 20 R.C.L. 386.

"All municipalities in the State of Alabama may maintain a bill in equity in the name of the city to abate or enjoin any public nuisance injurious to the health, [241 Ala. 201] morals, comfort or welfare of the community, or any portion thereof." Code of 1923, § 9298; 4 McQuillin, Mun.Corp. § 1475; and authorities cited.

The evidence, without substantial conflict, sustained the material averments of the bill; those upon which the right to injunctive relief depends under the foregoing authorities.

The main defense is rested upon averments of the answer to the effect, that in the circumstances, this proceeding is arbitrary and discriminatory as against respondent; that he is singled out while others in like position are left free to conduct competitive business with facilities similarly located and impinging upon the free use of the street by the public.

A municipality, in the exercise of its police powers, may not, by arbitrary, discriminatory, and oppressive action deny the citizen the equal protection of the law, nor deprive him of personal or property rights without due process of law.

This principle runs through our decisions as elsewhere. The application of same to the case in hand is oftentimes one of the most difficult problems before the courts.

Broadly speaking, such arbitrary abuse of power is not to be presumed; public authorities should not be denied a measure of discretion, in the application of principles of law and equity to conditions best known to them; the public welfare is not to be sacrificed in the interest of the individual. If reasonable men may differ, the action of the chosen governing body, will, as a rule, be upheld. Gilchrist Drug Co. v. City of Birmingham et al., 234 Ala. 204, 174...