96 So. 704 | Ala. | 1923
"Where the application is for mandamus, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to perform the act required." Armstrong v. O'Neal, Gov.,
The petition here exhibited is fatally defective as to both of these requirements.
1. The petitioner has no natural or inherent right to operate motor vehicles, as common carriers of passengers, on the streets of Birmingham. City of Montgomery v. Orpheum Taxi Co.,
2. Under the ordinance referred to, the commissioner of public safety is without legal authority to pass upon the merits of an application for license. That authority is vested in the city commission as a whole. Nor has the commissioner any authority to grant or issue or cause to be issued such a license. That authority, also, is vested exclusively in the commission.
The reply filed by petitioner to respondent's answer was no part of the petition, and could not supply its deficiencies. But, in any case, neither the assumption of unwarranted powers by the commissioner of public safety, nor the acquiescence of the city government therein, could operate as a repeal or suspension of the regulatory ordinance, which must be given the effect of law until it is duly repealed or amended.
The showings of the petition could not support the relief prayed for and granted, and the trial court erred in not sustaining the demurrer to the petition.
It may be observed, in view of the general prayer of the petition, that, if the petitioner wishes to apply for a license, as provided by the ordinance, and cannot procure an application form from the city, he may draft one for himself, and file it with the commissioner; and, if the commissioner fails to report his findings thereon to the commission, as he is required to do, a writ of mandamus may be the appropriate remedy to compel him to make his findings and to so report them. But no other relief is available against this respondent, because no other duties rest upon him.
For the error stated, the judgment of the circuit court will be reversed, and the cause will be remanded for further proceedings.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.