Pruett v. Las Vegas, Inc.

• Decision Date: 01 October 1954
• Docket Number: 3 Div. 710
• Parties: W. G. PRUETT, Highway Director, v. LAS VEGAS, Inc.
• Court: Alabama Supreme Court

Page 807

74 So.2d 807

261 Ala. 557

W. G. PRUETT, Highway Director, v. LAS VEGAS, Inc.

3 Div. 710.

Supreme Court of Alabama.

Oct. 1, 1954.

Rehearing Denied Oct. 14, 1954.

Bernard F. Sykes and Robt. Straub, Asst. Attys. Gen., and M. Roland Nachman, Jr., Montgomery, for appellant.

Jack Crenshaw and Ballard, Ballard & Akers, Montgomery, for appellee.

Hill, Hill, Stovall & Carter, Montgomery, for St. Francis Hotel Courts, amicus curiae.

LAWSON, Justice.

This is an appeal authorized by § 1057, Title 7, Code 1940, from an order or decree granting a temporary injunction, after notice and hearing as provided in § 1054, Title 7, Code 1940.

Appellant is the Highway Director of the State of Alabama, the chief executive officer of the State Highway Department, chargeable with the duty and responsibility of exercising all the power, authority and duties vested in that department. § 2, Title 23, Code 1940.

Among the duties imposed by law upon the Highway Department, to be exercised by the appellant as Highway Director, are the following: '* * * to designate the roads to be constructed, repaired and maintained and to construct, standardize, repair and maintain roads and bridges of this state * * *.' § 3, Title 23, Code 1940, as amended. See Union Indemnity Co. v. State, 217 Ala. 35, 114 So. 415.

The appellant, in his official capacity, ordered the construction of a state road in Montgomery County to connect U. S. Highway 31 south of Montgomery (Mobile Road) with U. S. Highway 31 north of Montgomery (Birmingham Road), which road we will refer to as the proposed by-pass. Work leading to the construction of the proposed by-pass, in accordance with appellant's orders, was begun by officials and employees of the Highway Department.

Appellee corporation owns a motel known as the Las Vegas Motor Hotel, recently constructed at a cost in excess of $300,000, which is situated within the corporate limits of the City of Montgomery a few miles from the downtown section on U. S. Highway 31 south of Montgomery (Mobile Road). Appellee's motel is not far from the point where U. S. Highway 31 south of Montgomery is connected with U. S. Highway 31 north of Montgomery by a state road which we will refer to hereafter as the existing by-pass, since it presently affords to the traveling public a means of continuing on U. S. Highway 31 without going over the heavily traveled streets of the City of Montgomery.

The proposed by-pass, if constructed, would unquestionably divert some traffic which presently passes in close proximity to appellee's motel; hence this suit.

The real objective of appellee is to prevent the construction of the proposed by-pass and to accomplish that purpose it filed the instant bill, wherein it prayed for injunctive relief both temporary and permanent. The bill is also in the form of a bill or petition for declaratory judgment and prays not only for declarations to the effect that Pruett, as Highway Director, is without authority to construct the proposed by-pass, but also for declarations to the effect that Pruett and his surety, who is also made a party respondent, will be liable to appellee for any damages it may sustain by reason of the construction of the proposed by-pass, inasmuch as appellee claims that it constructed its motel at its present location only after being advised by Pruett and employees of the Highway Department to the effect that there were no plans to construct the proposed by-pass in the immediate future.

On this appeal we are concerned only with the question as to whether the trial court acted correctly in ordering the issuance of the temporary injunction which enjoins the appellant, individually and as Highway Director of the State of Alabama, 'from expending any funds of the State of Alabama for the purpose of acquiring rights of way, preparing plans of [or] any other expenditures in connection with the proposed by-pass from US Highway 31 North to US Highway 31 South.' As before indicated, the temporary injunction was issued after hearing and submission was had on appellee's verified amended bill, appellant's sworn answer, and on testimony taken orally before the trial court.

We have said that injunctive process in aid of a pending declaratory judgment suit is appropriate--Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So.2d 13--and that the equity of a bill under the declaratory judgment law does not turn on whether a case is made for an injunction. Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269.

On the other hand, a temporary injunction cannot be said to be properly issued merely because the prayer therefor is included in a bill filed in accordance with the provisions of the declaratory judgment law.

We have said that when a hearing is had on application for a temporary injunction, as authorized by § 1054, Title 7, Code 1940, the situation resembles in many respects a hearing on a motion to dissolve an injunction which was granted without a hearing. Generally, under such circumstances the court weighs the respective consequences to the parties and exercises a power which is largely discretionary when the bill shows a right to relief. State v. Mobile & Ohio R. Co., 228 Ala. 533, 154 So. 91. We have also said that where such discretion is not abused, the order of the circuit court will not be disturbed. Boatwright v. Town of Leighton, 231 Ala. 607, 166 So. 418.

But where there is grave doubt as to complainant's right, preliminary injunctive relief will generally be denied. Although it is not necessary that the trial court must first find that complainant has certainly a right, yet it must appear that he has a fair question to raise as to the existence of such a right and unless it so appears, then the court does not reach a consideration of the matter of balance of convenience or inconvenience to the one party or the other. Hancock v. Watt, 233 Ala. 29, 169 So. 704.

A conclusion that appellee has shown a right to declaratory relief is not sufficient to justify the issuance of the temporary injunction in this case. We must determine whether appellee showed that it has a fair question to raise as to the existence of a right to a permanent injunction or to a declaration of rights in accordance with its theory or contention.

The State of Alabama has been for a number of years engaged in the construction and maintenance of a system of public highways, a recognized constitutional function of government. State highway construction had its origin in Amendment I to our present Constitution. State Tax Commission v. County Board of Education, 235 Ala. 388, 179 So. 197. Other amendments to the Constitution of 1901 affecting the state road program were later adopted, some of which will be referred to hereafter.

The Legislature has general legislative powers over road and bridge construction and maintenance within the framework of the constitutional amendments affecting those functions. In re Opinions of the Justices, 226 Ala. 165, 145 So. 820.

As we have heretofore indicated, the location, construction and maintenance of highways has been committed by the Legislature to the Highway Department, such duties to be exercised by the Highway Director. §§ 1, 2 and 3, Title 23, Code 1940.

The matter of locating, constructing and maintaining highways is not a function of the courts. In that matter the Highway Director exercises an administrative and quasi-legislative function which, when free from fraud or corruption, cannot be reviewed by the courts. Bouchelle v. State Highway Commission, 211 Ala. 474, 100 So. 884. And we have said that 'A court of equity is without jurisdiction to determine the question of the public need for a highway.' Alabama Great Southern R. Co. v. Denton, 239 Ala. 301, 195 So. 218, 221.

With those principles in mind, we come to consider the reasons asserted by appellee as to why a court of equity of this state should by its processes prohibit the duly appointed head of the Highway Department from proceeding with the construction of a public road which he had determined should be built. The reasons asserted appear to be four in number, which are as follows: (1) If the proposed by-pass is constructed, appellee and other business establishments located on or near the existing by-pass will suffer serious economic loss; (2) the construction of the proposed by-pass will result in an economic loss to the City of Montgomery; (3) the decision to construct the proposed by-pass constitutes gross, willful and flagrant abuse of discretion on the part of Highway Director Pruett; (4) the construction of the proposed by-pass would be illegal in that to do so would be violative of provisions of the Constitution and of laws of the state and contrary to its public policy.

It seems to be established that in all probability the construction of the proposed by-pass will result in an economic loss to the appellee and to others similarly situated. But this is no ground for a court of equity enjoining the Highway Director from constructing the proposed by-pass. No citizen or taxpayer, as such, has or can acquire any vested property right in a state highway which deprives the Highway Director of the power conferred by statute to construct roads and bridges. Parker v. State Highway Commission, 195 N.C. 783, 143 S.E. 871. Private inducements or considerations cannot rightly enter into the question as to whether a highway should be constructed. The controlling factor must always be the good of the general public and not the convenience or financial gain of the people who live along any particular way. Agnew v. Hotchkiss, 189 Wis. 1, 206 N.W. 849. We are not here dealing with the rights of one who owns property abutting on a highway to recover damages for its obstruction. See Purvis v. Busey, 260 Ala. 373, 71 So.2d 18; Ayers v. Stidham, 71 Ala. 390, 71 So.2d 95.

The existing by-pass is within the corporate limits of the City of Montgomery, whereas the proposed by-pass is to be...