Postal Telegraph-Cable Co. v. City of Montgomery

• Decision Date: 17 June 1915
• Docket Number: 154
• Citation: 193 Ala. 234,69 So. 428
• Parties: POSTAL TELEGRAPH-CABLE CO. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

69 So. 428

193 Ala. 234

POSTAL TELEGRAPH-CABLE CO. v. CITY OF MONTGOMERY.

No. 154

Supreme Court of Alabama

June 17, 1915

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by the City of Montgomery against the Postal Telegraph-Cable Company. From a decree for complainant, defendant appeals. Reversed, injunction dissolved, and cause remanded.

The city of Montgomery filed this bill against the Postal Telegraph-Cable Company, alleging in substance as follows That the respondent is engaged in business in Montgomery that the city commission of Montgomery on December 2, 1913 adopted an ordinance prescribing the amount of license to be paid for certain businesses, vocations, etc., for the fiscal year beginning January 1, 1914, and ending December 31, 1914 of which ordinance section 188 had to deal with the business of telegraph companies, fixing their license tax, and confining same to intrastate business, excluding business done for the United States government; that subsequently, on July 21, 1914, said commission amended said section 188, which amendment is set up in paragraph 4 of the bill, but as to which we deem further reference unnecessary. Paragraph 5 of the bill sets forth section 985 of the City Code of Montgomery, which it is alleged is still in force and effect, and which section prescribes a penalty against any person, firm, or corporation who shall engage in any business, etc., for which a license is required by any ordinance of the city, without first obtaining such license, and fixes a punishment for each day such business is so carried on, and a fine to be imposed upon conviction. In the sixth paragraph it is alleged that at all times during the year 1914, and up to the time of filing the bill, on October 3, 1914, the respondent has been operating a telegraph office in this city, and has never paid any license to the city of Montgomery for the year 1914. It is further alleged that on June 23, 1914, the complainant caused the arrest of the manager of the respondent's business in the city of Montgomery for the unlawful act of doing business as aforesaid without having procured the license required, making for each day's business a separate and distinct charge; and it is further alleged that the said manager was tried before the city recorder on several of the said charges, and convicted, and that he has appealed from said conviction to the city court of Montgomery, where each of the said appeals is still pending, and that notwithstanding the said arrest of the manager the respondent continues to do business in this city without a license. In the ninth paragraph complainant avers that it is without an adequate remedy at law, for the reason that notwithstanding the arrest and conviction of its manager the respondent continues to carry on its business, and that, if complainant elected to bring an action at law for the amount of the license due it, such action would offer no adequate relief from the continued violation of said ordinance, but that such violation would, in the belief of complainant, continue from day to day, notwithstanding any action at law which it might bring. The prayer of the bill is for a perpetual injunction against the respondent's maintaining and operating a telegraph office in the city of Montgomery without complying with the ordinance requiring the procurement of a license for such business. A temporary injunction was asked for, during the pendency of the suit. The application for a fiat was set down for hearing as authorized by section 4528 of the Code; and on December 11, 1914, the judge of the city court entered the order for a temporary injunction as prayed, "effective during the year 1914," upon condition of the complainant's entering into bond in the sum of $500, conditioned as prescribed by law. The temporary injunction was issued in compliance with this order, and thereby the respondent company, its officers, agents, and employés, were enjoined from having, maintaining, or operating a telegraph office in the city of Montgomery for any other purpose than the doing of business for the United States government, or interstate business, without compliance with the ordinances of said city relating to such companies, which said writ of injunction was duly served on December 12th. From the order granting the temporary writ of injunction, the respondent prosecutes this appeal, and the cause was argued and submitted on January 4, 1915.

Sayre, J., dissenting in part.

Martin & Martin and Rushton, Williams & Crenshaw, all of Montgomery, for appellant.

Edwards S. Watts, of Montgomery, for appellee.

On Motion to Dismiss the Appeal.

GARDNER J.

Counsel for appellee moved to dismiss the appeal, upon the ground that the same is prosecuted from an order granting a temporary writ of injunction which by its terms was effective only during the year 1914, and that as that time had expired prior to the submission of the cause, although not at the time the appeal was in fact taken, therefore the appeal presents only an abstract question for determination and is a moot case. In Adams v. Union Ry. Co., 21 R.I. 1, 42 A. 515, 44 L.R.A. 273, cited also in 27 Cyc. 911, it is said:

"A moot case is one which seeks to determine an abstract question, which does not rest upon existing facts or rights." In Agee v. Cate, 180 Ala. 522, 61 So. 900, it was said by this court:

"Nor is it customary to decide questions of importance, after their decision has become useless, merely to ascertain who is liable for the costs."

We are unable to agree that this appeal does not affect existing rights, and that the question involved is only one of costs.

The complainant in the court below sought and obtained an injunction against the respondent's transacting intrastate business in the city of Montgomery, and the writ issued prohibited the transaction of any such business from December 12, 1914, to January 1, 1915. As a condition precedent to the issuance of the writ the court below required the complainant to enter into bond payable to the respondent as required by law, and which condition reads as follows:

"Now, if the said city of Montgomery and its sureties, or either of them, shall pay or cause to be paid all damages and costs which any person may sustain by the suing out of said temporary injunction or restraining order, if the same is dissolved, then this obligation to be void; otherwise, to remain in full force and effect."

The right of the city to thus prevent the respondent from engaging in intrastate business for this period of time is clearly a question which the respondent had a right to have determined by the court of last resort. The injunction bond was required for its protection against damages which it might sustain by the suing out of the temporary writ of injunction, should same be dissolved. The condition of liability upon the bond is the dissolution of the injunction. A dismissal of this appeal would result in leaving the question of whether or not the issuance of the injunction was wrongful, and the consequent question as to whether or not the injunction should be dissolved, undetermined, and therefore leave without adjudication the question touching the very condition of the bond, and, of consequence, that of liability thereon. To hold that merely because the year 1914 had passed before this cause was submitted would deprive this respondent of the right to have adjudicated to its final conclusion the right of the city to close its place of business for intrastate business would, in effect, be to close the door of the court to this appellant to have determined the question as to the liability of the city upon the said injunction bond. This latter is clearly an existing right, which the respondent is entitled to have adjudicated in the courts of last resort.

The suggestion of counsel that the city (it being a part of the state government) should not have been required to make the bond, and the argument that therefore the city would not be liable upon said bond, is beside the mark and premature. These are matters with which we are not concerned, for the question upon the motion is the right of the respondent to have the matter of liability tested and adjudicated in a due and orderly manner, should it be held that the injunction was improperly granted. The dismissal of an appeal for the reason urged (that it is a moot question), and where only the question of costs is involved, is a matter which must largely rest in the discretion of the court, and while, as stated in Agee v. Cate, supra, it is not customary to decide questions of importance after their decision has become useless, merely to ascertain who is liable for the costs, yet in our case of Comer v. Bankhead, 70 Ala. 136, the court did not dismiss the appeal, but determined the question and reversed the cause, at the cost of the appellee. Nor is our conclusion in conflict with what was said in the case of County of Montgomery v. Montg. Tract. Co., 140 Ala. 458,...