Cuz, Inc. v. Walden

261 So. 2d 37, 288 Ala. 362, 1972 Ala. LEXIS 1229
CourtSupreme Court of Alabama
DecidedApril 13, 1972
Docket6 Div. 791
StatusPublished
Cited by2 cases

This text of 261 So. 2d 37 (Cuz, Inc. v. Walden) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cuz, Inc. v. Walden, 261 So. 2d 37, 288 Ala. 362, 1972 Ala. LEXIS 1229 (Ala. 1972).

Opinion

COLEMAN, Justice.

The complainants appeal from a decree declaring that a certain ordinance of the City of Birmingham is not unconstitutional on any ground urged by complainants, that respondents have not in any manner infringed upon constitutional rights of complainants, and that in the enforcement of the ordinance respondents have not been guilty of unlawful conduct.

The trial court also denied ancillary injunctive relief and damages sought by complainants.

The complainants are a corporation, incorporated under the laws of this state, and also John L. Cousins who is a resident of Jefferson County and is the president, director, and sole stockholder of the corporation.

The respondents are the city and certain officers and employees of the city.

Complainants aver that the corporate complainant owns certain real estate at three specified locations in the city, that said real estate is rental property and heretofore was rented to tenants, that purportedly acting under the city ordinance the respondents inspected said property at divers times during the period of two years prior to the filing of the bill, and that respondents made certain demands on com[365]*365plainants that repairs and replacements be made to conform to the provisions of notice given to complainant Cousins. Complainants aver that the ordinance is vague, indefinite, uncertain, arbitrary, and capricious; is violative of the constitutional rights of complainants; and that enforcement of the ordinance results in the taking of the property of complainants without just compensation and without due process of law.

Complainants aver that the attempted enforcement of the ordinance is arbitrary and capricious, extends beyond the permissible limits of the ordinance, and results in confiscation of complainants’ property without compensation and without due process of law, all in violation of constitutional rights of complainants.

Complainants aver that after receipt of notices and demands, building permits were obtained by complainants, and that they have undertaken certain repairs and are devoting the entire net rental proceeds from said properties to their repair and maintenance.

Complainants aver that notwithstanding their having undertaken to make repairs as aforesaid, respondents did on August 1-3, 1969, purportedly declare said premises unfit for human habitation and gave notice to the tenants to vacate said properties. Complainants aver that respondents harassed and intimidated the tenants and by reason of such harassment and intimidation the tenants in certain of the premises have vacated the same causing loss and damage to complainants.

Complainants aver that there exists a justiciable controversy between complainants and respondents as to the validity of the ordinance and also as to the legality of the attempted enforcement of the ordinance against complainants in respect to their said property.

Complainants aver that there exists a policy or conspiracy on the part of respondents to cause and require complainants to perform work and repairs not required by law, that respondents are wrongfully and maliciously threatening prosecution of complainants and their tenants, and that complainants will be irreparably damaged by such prosecution and enforcement. efforts by respondents. . .

Complainants aver that they are ready' and willing to perform all repairs on said premises which may be legally required of complainants.

Pertinent averments in the answer of respondents are as follows. The ordinance here in question, Housing Ordinance No. 1389-F, now appears" as, part of. the city code, to wit: Chapter 25, Article VIII.' The inspections referred to in the bill of complaint were made pursuant to Sections 25-57, et seq., of said Article; VIII, Respondents deny that,said provisions of the city code are vague, indefinite, uncertain, arbitrary, capricious, and violative of the constitutional rights of complainants. Respondents deny that enforcement of the code results in taking property without just compensation and without due process of law. •- :

Respondents deny that efforts made to enforce said code provisions are arbitrary and capricious, beyond the - permissible limits of Chapter 25, and result in’ confiscation of property without just compensation and without due process of law.

Respondents deny that building permits obtained by complainants covered- -the work required in the notices served on complainant and aver that said properties still remain in violation of relevant provisions of the city code.

Respondents aver that the premises of complainants were inspected and that notices outlining code violations found tó exist as to each location were mailed, to complainant Cousins on May 8, July 22, and January 11, all in 1968, respectively ; that the properties thereafter were reinspected on numerous occasions';. .that .'no perrnits [366]*366were taken out for repairs until January-17, 1969, as to one location and until July 18, 1969, as to the others; that no substantial decrease was made in said code violations; that on August 13, 1969, complainant Cousins was notified by certified mail that one of the locations had been declared unfit for human habitation and “placarded”; that each of said premises are still in violation of the code and complainants have made no substantial attempt to remedy said defects.

Respondents deny that there was any harassment or intimidation of tenants, and aver that nothing was done “except in the normal routine procedure followed by the Health Department .... in enforcement” of Chapter 25, Article VIII, of the city. code.

Respondents deny that a justiciable controversy exists; deny the existence of a policy or conspiracy on part of respondents to require complainants to perform work and repairs not required by law; and aver that notices given and action taken have been motivated only by good faith enforcement of the code.

Respondents deny that complainants have made reasonable efforts to comply with the code.

Respondents 'aver that complainants have failed ,to request a hearing before the Health Officer as provided by the code and that, because complainants have failed to exhaust their administrative remedies, the court is without jurisdiction to grant the relief sought by complainants.

The taking of oral testimony lasted two days and. oral argument was on the third day. The oral testimony covers 238 transcript pages; exhibits cover an additional 93 pages. Appellants have made 222 assignments of error.

In support of their insistence that relief should be denied because of complainants’ failure to exhaust administrative remedies, respondents cite Watson v. Norris, 283 Ala. 380, 217 So.2d 246, in which this court affirmed a judgment denying mandamus to direct a zoning administrator to withdraw his denial of a use permit. This court said:

“It would appear that another well settled principle of law as it pertains to mandamus would also necessitate an affirmance of the action of the Chancellor in sustaining the demurrer to the petition. This principle is that mandamus lies only when there is no other adequate remedy. See Ala.Dig., Vol. 14, Mandamus, <®=’3(1), for innumerable citations of authorities.

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Cite This Page — Counsel Stack

Bluebook (online)
261 So. 2d 37, 288 Ala. 362, 1972 Ala. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuz-inc-v-walden-ala-1972.