Shadix v. City of Birmingham
Decision Date | 17 February 1949 |
Docket Number | 6 Div. 752. |
Citation | 38 So.2d 851,251 Ala. 610 |
Parties | SHADIX v. CITY OF BIRMINGHAM. |
Court | Alabama Supreme Court |
Wm. Conway, of Birmingham, for appellant.
Thos E. Huey, Jr., of Birmingham, for appellee.
This is a suit at law by G. D. Shadix against the City of Birmingham seeking a declaratory judgment as to the validity and effect of an ordinance of said city.
The demurrer of the City of Birmingham to the petition was sustained by the trial court; of consequence, the plaintiff suffered a non-suit and has appealed as authorized by the statute.--§ 819, Title 7, Code 1940.
The rule prevailing in this jurisdiction, as well as elsewhere is that there must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under declaratory judgment statutes. Jefferson County v. Johnson, 232 Ala. 406 168 So. 450; Hawkins v. Jefferson County 233 Ala. 49, 169 So. 720; Bagwell v. Woodward Iron Co., 236 Ala. 668, 184 So. 692; Theater Co. v. Manning, 236 Ala. 670, 185 So. 171; Saenger Theatres Corp. v. McDermott, 237 Ala. 489, 187 So. 460; Bates v. Baumhauer, 239 Ala. 255, 194 So. 520; Bullock County v. Sherlock, 242 Ala. 262, 5 So.2d 800.
It is not sufficient to plead by way of conclusion that there is an existing controversy of a justiciable character between the parties. Facts must be pleaded out of which the controversy arises. City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111; Anderson v. Wyoming Development Co., 60 Wyo. 417, 154 P.2d 318.
Although ordinances are expressly declared to be proper subjects of declaratory relief, yet a declaratory judgment may not be rendered in respect to them in disregard of the statutory limitations upon the granting of such relief. Monahan v. Dept. of Water and Power, 48 Cal.App.2d 746, 120 P.2d 730. The mere allegation that the petitioner is a resident citizen of the municipality does not give the court jurisdiction to declare on the validity or construction of an ordinance of the city.
The averments of the petition, which were evidently designed to show a justiciable controversy, are as follows:
'2. Plaintiff avers that on February 24, 1948, defendant duly and legally adopted the following Ordinance.
'On March 17, 1948, plaintiff was arrested in the City of Birmingham by one of defendant's police officers on a charge of public drunkenness and was incarcerated in the defendant's jail and plaintiff voluntarily paid to the Superintendent of said City jail of defendant the sum of $5.00 as provided in said Ordinance, and was released from custody, and also, received from said superintendent of...
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