Walker v. City of Birmingham

• Decision Date: 31 March 1927
• Docket Number: 6 Div. 801
• Citation: 216 Ala. 206,112 So. 823
• Parties: WALKER v. CITY OF BIRMINGHAM et al.
• Court: Alabama Supreme Court

112 So. 823

216 Ala. 206

WALKER v. CITY OF BIRMINGHAM et al.

6 Div. 801

Supreme Court of Alabama

March 31, 1927

Rehearing Denied May 19, 1927

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by G.O. Walker against the City of Birmingham and others. From a decree dismissing the bill, complainant appeals. Affirmed in part, reversed in part, and remanded.

Erle Pettus, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellees.

SAYRE J.

Appellant sought by his bill to restrain and enjoin appellees, the city of Birmingham, the board of health of Jefferson county, J.D Dowling, health officer of Birmingham, and L.C. Bulmer, who has been designated director of food and dairy inspection by the city, from interfering with appellant's business by refusing to grant him a license to sell milk in the city. In particular, complaint is made of the action of Dowling and Bulmer in their respective capacities, they, it is alleged having denied appellant a hearing, or any reasonable opportunity to be heard, and denied him the license necessary to his business, acting therein unreasonably, arbitrarily, and without warrant. On submission upon the general demurrer denying the equity of the bill, and upon sworn bill, answer, and numerous affidavits pro and con, the court dismissed appellant's bill as being devoid of equity, and for the same reason dissolved the temporary injunction which had been previously granted.

We think there can be no serious objection to the bill on the ground that the ordinance governing the sale of milk in the city of Birmingham is void as involving the unwarranted delegation of legislative power. The Act of August 20, 1915, § 6, armed the city with the full and complete power to adopt ordinances and regulations, not inconsistent with the laws of the state or the state and federal Constitutions, providing for the safety and preserving the health of its inhabitants. Acts 1915, p. 294 et seq. The administration of such an ordinance may be committed to subordinate officers--necessarily must be--without offense against any principle of constitutional law. Parke v. Bradley, 204 Ala. 455, 86 So. 28; Wheeler v. River Falls Power Co. (Ala.Sup.) 111 So. 907. Nor is the ordinance objectionable as committing to an officer or officers the power to decide, according to their own notion in each particular case, the question of issuing or withholding a license, and thus deciding according to their unregulated discretion who may, and who may not, engage in a legitimate and useful--even, we may say, necessary--business, for, while it confers upon the board of health the right to refuse a permit "when in its judgment the applicant for such permit is not a proper person to be granted such permit," the further provision is that in every case the applicant shall have the right to be heard in person or by counsel, or both, with the right to introduce competent evidence in support of his application, and the right of the board to revoke licenses is safeguarded in like manner, and probably, in the absence of an express provision for a hearing, the right would be presumed, and an opportunity afforded nevertheless to any applicant who has complied with the stipulated preliminaries, and whom it is sought to exclude on the ground that in the judgment of the board he is not a proper person to carry on the business of dealing in milk. Eckhardt v. Buffalo, 19 A.D. 1, 46 N.Y.S. 204. But, however that may be, the ordinance in this case made ample provision for a hearing.

The court of equity will not undertake to administer the merely criminal features of a municipal ordinance; but, where property rights are involved, and the unlawful enforcement of an ordinance will involve irreparable loss, equity will interfere to preserve property rights. No criminal prosecution is alleged; but appellant has been refused a license, and his averment is that thereby his large investment in the necessary equipment of his dairy business and the good will of that business, built up by years of successful management and at great expense, will be destroyed--an averment of irreparable damage. The further averment, as we have already noted, is that, in refusing him a license, the board of health and its health officer and dairy inspector have acted arbitrarily, unreasonably, and without warrant. These averments in our judgment make a case for the interference of the court of equity. Franklin Social Club v. Phil Campbell, 204 Ala. 259, 85 So. 527. The right to conduct one's lawful business, without the wrongful and injurious interference of others, or, to accommodate the principle involved to the facts averred, without the arbitrary, unreasonable, and unwarranted denial of the necessary license is a valuable right, which will be protected, if necessary, by the injunctive process of equity. Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657.

The foregoing conclusions are sustained by Franklin Social Club v. Phil Campbell, supra; Bryan v. Birmingham, 154 Ala. 447, 45 So. 922, 129 Am.St.Rep. 63; Commissioners v. Orr, 181 Ala. 308, 61 So. 920, 45 L.R.A. (N.S.) 575, and other cases there referred to. Some of these cases involved the attempted enforcement of void ordinances to the injury of property rights, but the effort to enforce a valid ordinance arbitrarily, unreasonably, and without warrant of law or facts is in no better case, and may be enjoined.

The trial court therefore erred in its decree holding that there was no equity in the bill.

It...