Rochell v. City of Florence

• Decision Date: 16 June 1938
• Docket Number: 8 Div. 901.
• Parties: ROCHELL v. CITY OF FLORENCE.
• Court: Alabama Supreme Court

182 So. 50

236 Ala. 313

ROCHELL v. CITY OF FLORENCE.

8 Div. 901.

Supreme Court of Alabama

June 16, 1938

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Bill by R. R. Rochell, doing business under the firm name and style of Orange Crush Bottling Company, against the City of Florence, to enjoin enforcement of an ordinance. From a decree discharging a temporary injunction, complainant appeals.

Affirmed.

Horace C. Wilkinson, of Birmingham, for appellant.

W. H Mitchell, of Florence, for appellee.

BROWN Justice.

This appeal is by the complainant, as authorized by § 6081 of the Code, 1923, from a decretal order of the Circuit Court of Lauderdale County, sitting in Equity, discharging a temporary injunction issued by the Register on fiat granted by the Honorable J. F. Thompson, one of the Judges of the Tenth Judicial Circuit, returnable to the Circuit Court of Lauderdale County.

The bill was filed to restrain and enjoin the city of Florence, a municipal corporation of said county, from enforcing one of its ordinances levying a license tax of $500 on "any person, firm, or corporation distributing or causing to be distributed in the city soft drinks or similar extracts or beverages exclusively from a warehouse located anywhere."

The ground on which the motion to discharge was rested was that said injunction was granted in violation of § 8312(1) of the Code of 1928, which provides, that:

"No temporary restraining order or temporary injunction shall issue to any municipality of this state, its officers agents or employees, enjoining or restraining the enforcement of any ordinance of such municipality, whether valid or invalid, or any proceedings thereunder, until a time and place have been set for the hearing of the application for such temporary restraining order or temporary injunction, and notice of such time and place together with a copy of the bill, has been served upon the mayor or other chief executive officer of such municipality at least twenty-four hours prior to the time set for such hearing. (1927, p. 64.)"

It appears from the record that the bill of complaint and the complainant's application for the temporary injunction was presented to Judge Thompson on March 3, 1938, that the bill was not filed until March 7, four days or ninety-six hours, later, and the writ was issued and served on the last mentioned date.

The first contention of the appellant is that the discretion as to whether or not an application for temporary injunction will be granted with or without notice to the adverse party in interest is an element of judicial power; that this element of judicial power was committed to and vested in the Court of Chancery, created by the Constitution, as it existed at common law, and it is not within legislative competence to regulate the exercise of this power, by prescribing notice of time and place of hearing such application.

As supporting this contention appellant cites Sections 13, 43 and 146, of the Constitution of 1901, and State ex rel. Winter v. Sayre, 118 Ala. 1, 24 So. 89, decided in 1897, and Adcock v. State, 142 Ala. 30, 37 So. 919, decided November Term, 1904.

All that the case of State ex rel. Winter v. Sayre, supra, decides, that could be at all pertinent, is that the Court of Chancery, as then constituted, was a creature of the Constitution of 1875, being first so created by the Constitution of 1868. That the court was so created "without any special definition or description of the jurisdiction they were to exercise, and such definition or description was not necessary. Such courts were known to the common law, had been instituted here in the earliest days of organized government, exercising the jurisdiction pertaining to such courts in England, whence all our institutions were derived, so far as adapted to our condition, institutions, and general jurisprudence." [ Italics supplied]. 24 So. page 91.

This, as the court held, was the effect of Section 1 of Article 6 of the Constitution of 1875, which, as observed, was "the counterpart of the same section of the same article of the constitution of 1868, the immediate predecessor" of the Constitution of 1875.

It was further observed: "The original Constitution of 1819, and its successors of 1861 and 1865, vested the judicial power 'in one supreme court, circuit courts to be held in each county in the state, and such inferior courts of law and equity, to consist of not more than five members, as the general assembly may from time to time direct, ordain and establish.' Each declared the power of the general assembly to establish courts of chancery, and to establish in each county a court of probate, and contained provisions by which the senate was constituted the sole tribunal for the trial of all impeachments of civil officers." [ Italics supplied].

Adcock v. State, supra, merely holds that the circuit court is a creature of the Constitution, and that an act of the Legislature which undertook to deprive said court of the power to organize a grand jury and try defendants indicted thereby violated the Constitution.

The substance of appellant's argument is that said § 6081, of the Code, impinges Sections 13 and 43 of the Constitution; the first, in that a compliance with its provisions necessitates a delay of twenty-four hours before the court or officer to whom the application is made for the issuance of a temporary injunction may consider the merits of the application, and this is such delay as is prohibited by said section 13 which provides: "That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."

This insistence is contrary to the dominant thought expressed in that section of the Constitution, "a remedy by due process of law," which guarantees, not only to the complaining party, but to his adversary the right to notice and hearing.

The argument further is that the court of chancery as it existed in England, and as established by the Constitution, was clothed with a sound judicial discretion in granting injunctions with or without notice; that the statute intrenches this discretion and in its enactment the Legislature was attempting to exercise judicial power in violation of § 43 of the Constitution.

We do not doubt that courts of equity as they now exist in Alabama have and may exercise such discretion in the absence of statute.

However, it is a matter of history that prior to the adoption of the Constitution of 1868, and before the creation of the State and the adoption of the Constitution of 1819, the court of chancery was a creature of the Legislature, first of the Mississippi territory, and thereafter of the General Assembly of Alabama, in the exercise of the power conferred by § 8 of Article 5 of the Constitution of 1819, which provides: "The general assembly shall have power to establish a court or courts of chancery, with original and appellate equity jurisdiction; and until the establishment of such court or courts, the said jurisdiction shall be vested in the judges of the circuit courts respectively: Provided, That the judges of the several circuit courts shall have power to issue writs of injunction, returnable into the courts of chancery."

These provisions were carried forward in the Constitution of 1861 as § 7 of Article 5, and in the Constitution of 1865 as § 7 of Article 6.

The Constitution of 1868, § 1, Article 6, provided that: "The judicial power of the State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, Circuit Courts, Chancery Courts, Courts of Probate, such inferior Courts of Law and Equity, to consist of not more than five members, as the General Assembly may from time to time establish, and such persons as may be by law invested with powers of a judicial nature."

And § 7 of the same Article provided: "The General Assembly shall have power to establish a Court or Courts of Chancery with original and appellate jurisdiction. The State shall be divided by the General Assembly into convenient Chancery Divisions, and the Divisions into Districts; and for each division there shall be a Chancellor, who shall, after his election or appointment, reside in the Division for which he shall have been elected or appointed."

The Constitution of 1875 carried forward these provisions as pointed out by the court in State ex rel. Winter v. Sayre, supra, and § 8, article 6, provided: "A Chancery Court shall be held in each district, at a place to be fixed by law, at least once in each year." [ Italics supplied].

The present Constitution contains similar provisions, and § 148 provides that: "The legislature may confer upon the circuit court or the chancery court the jurisdiction of both of said courts." This was accomplished by Act No. 217 approved August 16, 1915, Acts 1915, pp. 279, 280, and the chancery court, and the office of "Chancellor"...