Harris v. Barrett

Jun 2, 1921
6 Div. 988.
Reporters:
, ,
Before:
Thomas
THOMAS, J.

The bill was to restrain the city commissioners and chief of police of Birmingham from enforcing an ordinance in regard to moving personal property.

[1] This is not a moot case as is suggested by appellant’s counsel, since liability on the injunction is dependent on the successful prosecution of the appeal.

It is insisted that the primary purpose of the bill is that the daily reports required by a void ordinance of those moving certain personal property, as applied to the corporation of which complainant is the president and ‍‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​​‌​‌​‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌​​‌​​‌‌​​‌​‍general manager, in the due operation of its transfer business, impaired complainant’s right of property in that it would require large expenditures of money and unnecessary delays to comply with the ordinance which amounted to an unwarranted invasion and destruction of his property rights. Comm. of Mobile v. Orr, 181 Ala. 308, 61 South. 920, 45 L. R. A. (N. S.) 575; Hill v. Cameron, 194 Ala. 376, 69 South. 636; Ward v. Markstein, 196 Ala. 209, 72 South. 41; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 81, 66 South. 657; Ex parte State ex rel. Martin, 200 Ala. 15, 75 South. 327; Renfroe v. Collins & Co., 201 Ala. 489, 78 South. 395; City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 South. 117; 5 Pom. Eq. Jur. § 354.

[2] In this jurisdiction we have adhered to the rule that equity will not interfere with the enforcement of criminal law or check the activities of prosecuting officials when the injury inflicted or threatened.is merely the vexation of arrest and punishment of complainant — leaving such complainant free to litigate the question of unconstitutionality of the statute ‍‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​​‌​‌​‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌​​‌​​‌‌​​‌​‍or ordinance, construction or application thereof, in the defense at the trial for its violation. Burnett v. Craig, 30 Ala. 135, 68 Am. Dec. 115; Ex parte State ex rel. Martin, supra. See, also, Brown v. Birmingham, 140 Ala. 590, 37 South. 173; Old Dom. Tel. Co. v. Powers, 140 Ala. 220, 37 South. 195, 1 Ann. Cas. 119; Pike Co. Dispensary v. Brundidge, 130 Ala. 193, 30 South. 451; Postal Tel.-Cable Co. v. Montgomery, 193 Ala. 234, 69 South. 428, Ann. Cas. 1918B, 554.

However, in a proper case and where required to prevent irreparable injury, property right may be asserted and protected within the exception to the rule recognized in Mobile v. Orr. 181 Ala. 308, 61 South. 920, 45 L. R. A. (N. S.) 575, and authorities there collected.

The sufficiency of the instant bill was challenged by the general demurrer, and sustained by the trial court. All amendable defects being treated as made, no reversible error was committed, if it be conceded (without deciding that the ordinance was an excess of’ the exercise of the police powers of the city) that the ‍‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​​‌​‌​‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌​​‌​​‌‌​​‌​‍ordinance was unconstitutional and void. No such property rights are destroyed or impaired, as shown by the averments of the bill, as to bring it within the exception to the general rule to which we have adverted.

[3] According to the allegations of the bill, appellant is the president, majority stockholder, and active officer or agent of the Harris Transfer & Warehouse Company, a corporation authorized to conduct a transfer business in the city of Birmingham. The prosecutions initiated and threatened, as in the bill averred, were against said Harris for the violation of the ordinance, by virtue of the fact that he was the executive head or agent of the corporation violating the ordinance. That a prosecution may be maintained against an agent of a corporation for the criminal violation of a statute or ordinance was announced in Williams v. Talladega, 164 Ala. 633, 51 South. 330; Bowen v. State, 131 Ala. 39, 31 South. 79; N. C. & St. L. R. R. Co. v. Attalla, 118 Ala. 362, 24 South. 450; Williams v. City of Talladega, 226 U. S. 404, 33 Sup. Ct. ‍‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​​‌​‌​‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌​​‌​​‌‌​​‌​‍116, 57 L. Ed. 275; City of Carterville v. Gibson, 259 Mo. 499, 168 S. W. 673, L. R. A. 1915A, 106. Thcomplainant Harris seeks the aid of equity to enjoin prosecutions against him on the grounds of vexation of criminal prosecutions and of irreparable injury to property .rights, while the averments contained in the bill show that the only injury to property would be that to the rights of the Harris Transfer & Warehouse Company, a corporation conducting a transfer business in said city. *266 Thus are damages to complainant’s property rights averred to be affected or only remotely affected as a stockholder in said corporation, which said right could be protected, if at all, by the corporation. The bill not being on behalf of the corporation to protect its property rights as such, but merely to protect the rights of complainant, contains none of the usual allegations which are necessary when a stockholder sues in behalf of a corporation. It is unnecessary to quote the rules of law not complied with in the bill, and obtaining when ‍‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌‌​‌​‌​​‌​‌​‌‌‌​‌‌‌​​​‌​​‌​‌‌‌​​​‌‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​‌​‌​‌​‌​‌​​‌‌​​‌​​‌‌​​‌​‍a stockholder is authorized to sue in his own name for injuries to the corporation, to wit, when: (1) The matter complained of is a breach of duty on the part of a majority of the directors; (2) the corporation fails or refuses to demand redress; and (3) there is a consequent injury to the shareholder. No such allegations are contained in this bill.

The bill is without equity. The decree of the circuit court, in equity, is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.