Dreyfus v. City of Montgomery

58 So. 730 | Ala. Ct. App. | 1912

Lead Opinion

PELHAM, J.

The board of commissioners of the city of Montgomery adopted-an ordinance making it unlawful to operate a moving picture show within the city of Montgomery in any building fronting on either side of Dexter Avenue between Lawrence and Bainbridge streets, and providing a punishment for the violation thereof. The body of the ordinance declared it to be a necessary regulation “for the preservation of the public Safety.” Subsequently to tbe adoption and approval, of the ordinance, tbe appellant was arrested on a warrant issued on a complaint or affidavit charging him with a violation of tbe ordinance in question and was tried and convicted in tbe recorder’s court of tbe city of Montgomery. From this judgment of conviction an appeal was prosecuted to tbe city court of Montgomery, and upon a trial being bad in that court which resulted in conviction, tbe appellant prosecutes this appeal.

Tbe trial in tbe city court of Montgomery is shown by the record to have been on an agreed statement of facts, and no question is raised on tbe facts of tbe case. It is tbe validity of tbe ordinance that is challenged.

It is tbe appellant’s contention that tbe ordinance is unreasonable and an unwarranted and arbitrary exercise of power, discriminative in its nature, and contravening tbe personal and property rights of tbe ajjpellant, who bad been conducting a moving picture show for colored people in tbe prohibited territory under license from tbe city authorities before tbe passage of tbe ordinance.

Section 1341 of tbe Code of 1907 is as follows: “1341. Theatres, tenpins, shooting galleries, and liquor bouses. To license, tax, regulate, restrain, or prohibit theatrical and other amusements, billiard and pool tables, nine or tenpin alleys, box or ball alleys, shooting galleries, theatres, parks and other places of amusement, and tbe selling, retailing, wholesaling, or giving away of spirituous, vinous, or malt liquors, intoxicating bitters, or beverages, when not prohibited by 1-a.w; when in tbe opinion of tbe council tbe public good or safety demands it, to refuse to license any or all such businesses and to authorize tbe mayor by proclamation to- cause any or all bouses or places of amusement or bouses or places for tbe sale of intoxicating liquor, or bouses or places for tbe sale of firearms, or other deadly weapons, to he closed for a period of not longer than the next meeting of the city or town council.”

It will be seen from reading this section that the authority of the city to adopt the ordinance in question is based on an express power conferred by the Legislature on the city. In exercising this express grant of power to regulate, restrain, or prohibit places of amusement, the city by an ordinance regulating such places restricted the territory for the conduct of moving picture shows (confessedly a place of amusement) to certain designated territorial limits in the city.

This is a valid exercise of an express power conferred by the Legislature, and, the validity of the statute conferring the right not being questioned, under authority of the rule laid down by the Supreme Court, the' policy or reasonableness of the ordinance cannot be inquired into.—Lindsey v. Mayor and City Council of Anniston, 104 Ala. 257, 16 South. 545, 27 L. R. A., 346, 53 Am. St. Rep. 44. See, also Dunn v. Wilcox, 85 Ala. 144, 4 South. 661; Dillon on Municipal Corporations (5th Ed.) vol. 2, § 600, p. 943, and the numerous cases cited in footnote 1 sustaining this proposition; 28 Cyc. 368, § 4, and authorities cited in note 19; McQuillin on Municipal Corporations, vol. 2 p. 18, § 724, and note.

Moreover, “due process of law and the equal protection of the laws are secured if the laws operate upon all alike and do not subject the individual to an arbitrary exercise of the powers of government.”—Miller v. Birmingham, 151 Ala.. 469, 472 South. 388, 389 (125 Am. St. Rep. 31), quoting from the Supreme Court of the United States in the case cited. The authority exercised by the municipality in the passage of this regulation is clearly within the power granted to it, and the ordinance appears to be general in its nature and operation, and to contravene no common right, and make no class distinction — in short, there is nothing on the face of the ordinance stamping it as unreasonable, and the presumption of its reasonableness indulged under such circumstances—(Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 95) is not overcome and its unreasonableness established (“demonstrably shown”—Marion v. Chandler, 6 Ala. 899) by the evidence set out in the agreed statement of facts contained in the record.

“In determining the validity of ordinances, a reasonable construction will be given them; the judicial inclination being to sustain, rather than overthrow, them.”—S. S. Steel & Iron Co. v. Smith, 174 Ala., 57 South. 29; citing 2 Dillon on Municipal Corporations (5th Ed.) § 29; Orme v. Tuscumbia, 150 Ala. 520, 43 South. 584.

A detailed discussion of the facts is unnecessary. The appellant has devoted his property to a use in which the public had an interest thereby granting the public an interest in that use — and he must therefore submit to be controlled in the user by the public through, its duly constituted officers for the common good.—Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

If the ordinance is not consistently enforced, as would seem to be one of the inferences that could be drawn from the statement of facts, this is no argument against the ordinance or the power to pass such a regulation. The correction of that evil, or protection against such an abuse, lies in an entirely different forum.

The fact that the appellant was conducting his business within the prohibited area under license from the city when the ordinance was passed does not militate against the legality of the ordinance or its operative force as to appellant, as the license was but a privilege revocable at the pleasure of the authorities granting it, and conferring no vested rights and contained no elements of a. contract.—Powell v. State, 69 Ala. 10; Jones v. Motley, 78 Ala. 370; Munn v. Illinois, supra.

This case was orally argued hy counsel upon submission, and was carefully considered and the above conclusions arrived at by the court on the oral arguments and brief filed, before it was discovered that there is no assignment of errors on the record, and while there is no insistence by counsel for appellee upon an affirmance because of a failure to assign errors, this oversight must necessarily result in affirmance of the case (Perry v. State, 1 Ala. App. 253, 55 South. 1035), but for the purpose of preventing, if possible, further needless litigation, we deem it proper to state the court’s views and conclusions as above set out on the questions sought to be presented and so ably argued by counsel for both parties.

Affirmed.

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Rehearing

On Application for Rehearing.

By consent of counsel for the appellee entered in writing on the appellant’s application for a rehearing, we have considered the propositions argued and insisted upon on their merits, without regard to the fact that there was no assignment of errors on the record. Our conclusions on the merits of the propositions as expressed in the original opinion seem to us to be correct, and we are unwilling to depart from what we there said.

The application is overruled.