69 So. 2d 463 | Ala. | 1953
This cause comes here on appeal from a decree overruling a demurrer to a bill of complaint. The bill seeks an injunction, being mandatory in effect, from violating a zoning ordinance of the City of Florence.
It is also insisted that the demurrer to that aspect of the bill should have been sustained in which it is alleged that section 124 of the ordinance was violated in that no certificate for occupancy was issued by the inspector as to the new construction. This is paragraph VII of the bill. The objection made in the argument is that there *242 is no allegation that the new construction had been used by the defendant without such a certificate. The allegation is that no such certificate has been issued.
The prayer of the bill is for an injunction from maintaining and occupying the new construction, and for a mandatory injunction requiring defendant to remove said new structure, there described, which had been added without a permit as provided in the zoning ordinance.
An injunction of the use of the property here in question is sought in connection with a mandatory requirement for the removal of the structure. The use of it is subsidiary to its continued existence. If its construction did not violate the ordinance the use of it is not alleged to be of such nature as to be objectionable. In paragraph VI it is shown that the addition did not conform to the ordinance. If that is sufficient to justify a mandatory injunction to remove it the allegation is sufficient to justify an injunction also from using it as a necessary consequence of its removal. It is not necessary to allege that defendant has used it in order to support an injunction. But it should show that the act sought to be enjoined will in all probability be committed by defendant. 43 C.J.S., Injunctions, § 182(5)(a), page 859.
If the bill is insufficient in respect to the prayer for an injunction against its use on account of a failure to show a probability that it will be used in violation of the ordinance, it is not so pointed out in the demurrer nor argument.
Appellant's counsel next insist that the ordinance is void for uncertainty because it does not clearly appear whether it requires a permit as a condition to making repairs. Counsel ask the question whether such provisions apply to repairs, and seek to find some conflict which renders the ordinance void. But we are not concerned with repairs. The bill does not allege an act of repairing but of alteration by the addition of ten feet to the store front of the building on the south end of it. That indicates an alteration of the store building by adding to its length, not in the nature of repairs. Such an alteration is prohibited by the ordinance without an inspector's permit. Any uncertainty as to repairs does not affect those features which are certain.
It is insisted that the issuance of the permit is left to the caprice of the inspector and therefore due process is not observed. But that is not the nature of the ordinance. Section 123 of the ordinance requires a plan drawn to scale of the proposed alteration, accompanied with much specified information as to details "to ascertain whether the proposed * * * alteration is in conformance with this ordinance". It then requires the issuance of a permit if the proposal is in conformity with its provisions. If the inspector does not approve it, he shall state in writing on the application the cause of such disapproval. No fault, as here insisted on, exists in respect to the ordinance nor its application to the facts alleged.
The argument is that the certificate of the city clerk as to the zoning ordinance shows that there were several amendments to it. They are not set out. The bill alleges that those amendments do not relate to the property of defendant and in no wise affect it.
It is insisted that the allegations of the bill in that respect are insufficient to that end and that the amendments should be set out. It is not necessary for the bill to set out the amendments in full in order to sustain the allegation that they do not relate to the property of defendant here in question. Rose v. City of Andalusia,
It is next insisted that the inspector is a necessary party by reason of section 121 of the ordinance, to the effect that the provisions of the ordinance shall be administered and enforced by the inspector, and it gives him the right to make inspections necessary to carry out his duties. That has no reference to court action, but to administrative conduct. As to who are proper parties is a matter of state law not of municipal ordinance. See, 67 C.J.S., Parties, § 2, page 895; 62 C.J.S., Municipal Corporations, § 325(c), page 674; 43 Corpus Juris 453, § 629; 62 C.J.S., Municipal Corporations, § 325; 30 C.J.S., Equity, § 135; 39 Am.Jur. 863, § 11; Collier v. Falk,
This discussion responds to all the contentions made in appellant's brief. There is nothing in them which requires a reversal of the decree. It should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur
LAWSON, J., concurs in the result.