ON MOTION TO DISMISS APPEAL.
In Agee v. Cate, 180 Ala. 522, 61 South. 900, it was said by this court: “Nor is it customary to decide questions of importance, after their decision has become useless, merely to ascertain who is liable for the costs.”
We are unable to agree that this appeal does not affect the existing rights, and that the question involved is only one of costs.
The right of the city to thus prevent the respondent from engaging in intrastate business for this period of time is clearly a question which the respondent had a right to have determined by the court of last resort. The injunction bond was required for its protection against damages which it might sustain by the suing out of the temporary writ of injunction, should same be dissolved. The condition of liability upon the bond is the dissolution of the injunction. A dismissal of this appeal would result in leaving the question of whether or not the issuance of the injunction was wrongful, and the consequent question as to whether or not the injunction should be dissolved, undetermined, and therefore leave without adjudication the question touching the very condition of the bond, and, of consequence, that of liability thereon. To hold that merely because the year 1914 had passed before this cause was-submitted would deprive this respondent of the right to have adjudicated to its final conclusion the right of the city to close its place of business for intrastate business would, in effect, be to close the door of the
The suggestion of counsel that the city (it being a part of the state government) should not have been required to make the bond and the argument that therefore the city would not be liable upon said bond, is beside the mark and premature. These are matters with which we are not concerned, for the question upon the motion is the right of the respondent to have the matter of liability tested and adjudicated in a due and orderly manner should it be held that the injunction was improperly granted. The dismissal of an appeal for the reason urged (that it is a moot question), and where only the question of costs is involved, is a matter which must largely rest in the discretion of the court, and while, as stated in Agee v. Cate, supra, it is not customary to decide questions of importance after their decision has become useless, merely to ascertain who is liable for the costs, yet in our case of Comer v. Bankhead, 70 Ala. 136, the court did not dismiss the appeal, but determined the question and reversed the cause, at the cost of the appellee. Nor is our conclusion in conflict with what was said in the case of County of Montgomery v. Montgomery Traction Co., 140 Ala. 458, 37 South. 208. There the injunction issued was merely directed against the board of revenue of Montgomery county to prevent its interference with the railway tracks of the complainant, or, in other words, to hold the property of the complainant in statu quo' pending the determination of the issue by the court. Indeed, the situation was the reverse of what we have here,
We are of the opinion that this record does not pre- ■ sent what is called a moot case, but that in fact existing rights of the parties are involved which it is the duty of this court to determine. The motion to dismiss the appeal will therefore be denied.
ON THE MERITS.
And in Brown v. Mayor, etc., of Birmingham, 140 Ala. 590, 37 South. 173, is the following language: “We discover nothing in the case made by the bill to take it out of the well-settled general doctrine that the jurisdiction of courts of equity is purely and exclusively civil; that, of consequence, they are without power to enjoin the commission of threatened crimes on the one hand, and to enjoin threatened prosecution for the commission of alleged crimes on the other; that violations of state laws and violations of penal municipal ordinances, and prosecutions for both, stand upon the same footing in this connection; and that it is wholly immaterial that the statute or ordinance, for an alleged violation of which prosecution is threatened, is absolutely void.”
The case of Pike County Dispensary v. Mayor, etc., of Brundidge, 130 Ala. 193, 30 South. 451, is an authority directly in point, and is conclusive against the equity of this bill. The facts of the case and purpose of the bill are to be easily ascertained by reference thereto. The town of Brundidge sought to enjoin the operation of a dispensary for the sale of liquors within its corporate limits, not only upon the ground that the dispensary corporation had not procured a county license therefor, but upon the ground that a local prohibition law was in force, covering the place where the dispensary was proposed to be operated, and which would, therefore, be in violation of said local prohibition law and constitute a public nuisance. The follow
Numerous authorities cited by counsel for appellee have been examined, but the diligence of learned counsel has not been rewarded with “a case in point,” and we find among those to which our attention has been directed ' none which militates against the conclusion here reached. We are referred, among our cases, to Bryan v. Mayor, etc., of Birmingham, 154 Ala. 447, 45 South. 922, 129 Am. St. Rep. 63; but that case supports, rather than conflicts with, the conclusion reached in this case. At the outset of the opinion it is recognized that: “The jurisdiction of equity is purely and exclusively civil, and such courts are without power to enjoin or restrain threatened * * * prosecutions under municipal ordinances as well as state laws * * Applying this rule, the courts should not lose sight of the fact that a court of equity can and should interfere by injunction to restrain any act or proceeding whether connected with crime, or not, which tends to the destruction or impairment of property or property rights.”
It is thus seen that case is in harmony with our other decisions, and that what was really involved therein was 'the right of injunctive relief against the destruc
The general rule, as stated in the above authorities, and which appears to be well-nigh universally recognized, seems to be conceded as correct by counsel for appellee; but the insistence is made that the continuation of the business of the respondent without payment of the city license is a nuisance, and jurisdiction is sought to be rested upon this theory. As above shown, the authorities from our own jurisdiction will lend no color whatever to this argument, nor, indeed, does it find support in any of the cases cited from other jurisdictions. That of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, involved the question of the Kansas liquor law, the violation of which was. made a nuisance by the statute and its abatement as such provided for. Somewhat similiar is the case of Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. R. A. 193, 14 Am. St. Rep. 446, which involved a statute giving jurisdiction in equity to abate by injunction as. a common nuisance any place used for the sale of intoxicating liquors. The case of State v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 123 Am. St. Rep. 393, 13 Ann. Cas. 787, was one in which the state sought injunctive relief against a form of entertainment, such as “bull-fighting,” and where it was alleged that it was an offense against public order, common.
A review of the authorities to which we have here referred sufficiently demonstrates that they are without application in the case at bar and lend no support to the contention that this case presents an exception to the general rule. The rule is recognized by Mr. Pomeroy (5 Eq. Jur. § 476) that: “A Court of equity is in no sense a court of criminal jurisdiction. Its primary province is the protection of property rights.”
In section 478, speaking to the question of nuisances and of violations of city ordinances, he says: “But the
Here the bill seeks to enjoin the respondent from conducting its intrastate business because of its failure to procure the revenue license required by the city. The business conducted by the respondent is recognized as not only entirely legitimate and in no manner injurious to the commercial world. Nothing appears in the bill to show why the relief sought at law for the recovery of the amount of the revenue license is not an adequate remedy; and the bill shows that the manager of the respondent corporation has been prosecuted for a violation of the ordinance, and convicted in the rocorder’s court, and that his case is now pending on appeal in the city court. Further discussion, however, we deem unnecessary. We are clearly convinced that the bill is wholly wanting in equity. The only decree, rendered in the cause, from which this appeal is prosecuted, is that granting the temporary injunction as prayed for in the bill; the demurrers on file not having been passed upon by the judge of the city court. The judgment here rendered, therefore, can only relate to this order, and the cause will be remanded to the city court, for disposition there in accordance with the views here expressed.
Our conclusion is, therefore, that there was error in ordering the temporary injunction to issue in this cause, because of want of equity in the bill. A decree will be here entered, reversing the order to that effect in the court below, and dissolving the temporary injunction; and the cause will be remanded for further proceedings in that court in conformity to this opinion.
Reversed, rendered, and remanded.