City Council v. Parker

COLEMAN, J. — There is one question involved in each of these cases, the disposition of which determines the former, and may have a material bearing in the other. For this reason but one opinion will be delivered in the two cases. The City Council of Montgomery adopted two ordinances, the first of which reads as follows: ‘ ‘Be it ordained by the City Council of Montgomery as follows : That the west side of Commerce Street in front of the Exchange Hotel is hereby established as a stand for two [125] hacks.” The second ordinance provided for “the punishment of any one guilty of a violation of the ordinance by a fine,” &c. The facts show without conflict that the defendant, Will Parker, violated the above ordinance. The evidence on the part of the defendant showed that at the time of the alleged violation, he, with others, was in the employment, as hack drivers, or common carriers of persons, of the proprietor of the Exchange Hotel, then open and conducted as a public hotel, and that his hacks were kept for the use of his guests as well as for the public use. In the second case, D. P. West, proprietor of the Exchange Hotel, filed a bill in equity .for the purpose of having respondents enjoined “from keeping or allowing their servants to keep their carriages, hacks and other vehicles on said street and along the sidewalk in front of complainant’s hotel,-in the manner above mentioned.” We will state, substantially, the facts averred in the bill, upon which appellant bases the prayer for the injunction. First, that he is the owner in fee of the land to the centre of the street; that, for the purpose of carrying on his business, he is compelled to run a number of carriages and baggage wagons to carry his guests, the travelling public, and their baggage to and from the hotel, and that respondents have kept and continue to keep “their various hacks, carriages, or many of them, on said Commerce street, along the edge of the sidewalk, in front of complainant’s hotel, as a usual and customary stand for them to await employment, to the great loss and annoyance of appellant in his said business, preventing and obstructing him and the guests of his said hotel in their reasonable access to and egress from said hotel, and obstructing and preventing the transportation of the baggage of the said guests to and from the said hotel, and crowding and keeping carriages and baggage wagons away from the front of said hotel, where it is necessary for the comfort and convenience of complainant’s guests the said carriages and wagons should be kept; * * * and by reason of .the wrongful conduct of respondents he is greatly hindered, hampered, harrassed and injured in his business of running his said hotel.” A temporary injunction issued. Some of the respondents (appellees) answered the bill, and by [126] consent of parties the cause was set down for hearing upon motion to dissolve the injunction. At the hearing, the chancellor decreed a dissolution of the injunction, from which decree the complainant appealed, and here assigns the decree dissolving the injunction for error. The wrong complained of by complainant in his bill, and for which he seeks redress and relief principally, is one which affects his personal business. The provisions of the city ordinances are within the terms of the power conferred by the legislature in the city charter. We declare the law to be, that when a part of a freehold becomes in fact a public highway or public street of a city, whether effected by dedication or conveyance of the owner, the State, in its sovereignty over all public highways and public places, has full police power to regulate the actions of all persons in their use of them, and the manner of their use, not inconsistent with their use as public streets or highways, and to make such alterations from time to time as the State may deem proper; and we further hold, that the dedicator or grantor has no greater right or interest in the use of a street or public highway, as such, and the manner of its use, than any other person of the public. — Perry v. New Orleans &c., R. R. Co., 55 Ala. 413, and authorities; Elliott on Roads and Streets, p. 662. It has been frequently decided, and we hold correctly decided, that the State may confer or delegate the same supervision and control over streets of a city to the municipality itself in which they are located. — Authorities supra; Brook v. Horton, 68 Cal. 554; Pollack v. Trustees, &c., 48 Cal. 490 ; McCain v. The State, 62 Ala. 138. We find nothing in these ordinances of the city in question, which show that the city council, by their adoption, exceeded the power conferred in its charter by the legislature, nor is there any provision contained in the ordinance, nor is there any evidence in the record of the case of The City Council v. Will Parker, which would authorize the conclusion that the ordinances are unreasonable. It follows from the principles of law declared to be applicable, that the defendant, Will Parker, prosecuted for a violation of the ordinance, and the complainant in the injunction suit, can not claim any immunity, nor derive any special privilege or benefit from the fact that the proprietor of the hotel owns the fee in the street, sub [127] ject only to the easement. Their right must be determined without regard to this fact. It is not seriously controverted that Will Parker violated the ordinance of the city. He should have been convicted under the evidence. The proprietor of the Exchange Hotel has no more right to permanently occupy the street adjacent to the sidewalk in front of the hotel with his hacks, than any other person, nor are his guests entitled to any greater consideration in the use of the sidewalks and streets of the city, because they are guests. The public, in these respects, are upon an equal footing. The complainant’s bill, however, charges facts which, if true, show that the respondents occupy the street in front of the hotel in a manner not authorized by the city ordinances, but in a way the city ordinance, no doubt, was intended to prevent, and thereby “prevents and obstructs him and the guests of the hotel, in the reasonable access to and egress from the hotel, and in the transportation of baggage, to their great inconvenience and to his injury.” These averments, and. there may be others of a similar character, in our opinion, gave the bill equity, and, if proven, would entitle the complainant to relief. The answer of the respondents positively and explicitly denies every allegation of fact, made by the complainant, which gives equity to the bill, and which must be established to entitle complainant to relief. There are affirmative averments in the answer of respondents, and which are discussed in the brief of counsel. We do not consider these, in reviewing the decree of the court dissolving the injunction upon the answer. — Birmingham Mineral R. R. Co. v. Bessemer, 98 Ala. 277, and cases cited. We are of opinion the decree is fully sustained upon the general rule stated in the foregoing authority. The first case, that of the City Council v. Will Parker, is reversed and remanded. The second case, West v. Brown et al., is affirmed.