Moses v. Mayor of Mobile

52 Ala. 198

• Court: Supreme Court of Alabama
• Decided: January 15, 1875
• Status: Published

Opinion

BRICKELL, C. J.

The object of these bills is to obtain injunctions restraining the appellees, who are municipal officers of the city of Mobile, from prosecuting suits against the appellants, or their agents, for violations of the ordinances of the city.

It cannot be denied that it is competent for the general assembly to delegate to municipal corporations the power to make by-laws and ordinances, which, when authorized, have the force, as to persons bound thereby, of laws passed by the general assembly. Dillon on Mun. Cor. § 245, Intendant of Marion v. Chandler, 6 Ala. 899; Mayor of Mobile v. Rouse, 8 Ala. 515; Mayor v. Allaire, 14 Ala. 400. The city of Mobile is expressly clothed with power “ to impose and appropriate fines, penalties, and forfeitures for the breach of the ordinances or by-laws,” enacted by its corporate authorities. In the absence of an express grant of such power it would be implied; as an ordinance or by-law, without a penalty, would be nugatory. Dillon on Mun. Cor. § 272, Intendant of Marion v. Chandler, supra. The charter of the city prescribes the manner in which the corporate ordinances are to be enforced, and penalties for their violation inflicted. The remedy thus prescribed is exclusive, and has the form and characteristics of a prosecution for a violation of the criminal law, commenced before a justice of the peace, or other committing magistrate. In the exercise of the power conferred on him, to issue warrants of arrest, and to hear and determine accusations for violation of the corporate ordinances, the mayor acts judicially, and his court is an inferior court or jurisdiction. Withers v. State, 36 Ala. 252; Intendant of Marion v. Chandler, supra. A proceeding before the mayor, or other corporate authority, for a violation of an ordinance, is not a civil proceeding. It is a cquasi criminal proceeding, punitive, and intended to protect and. preserve the peace and good order of the corporate community, as criminal proceedings are intended for the preservation of the peace and dignity of the State. Withers v. State, supra; Mayor v. Rouse, 8 Ala. 515; Brown v. Mayor, 23 Ala. 722. The ordinances the appellants are charged with violating are directed against gaming within the city, and the mayor, aldermen, and council are clothed with authority to pass such ordinances.

At one time, the court of chancery in England exercised a jurisdiction partaking of a criminal character, but it was not without objection and protest from the commons, and the common law courts. It was excused, rather than justified, because of the inability of other tribunals to maintain internal peace and order, and because it was exercised for the defence of the poor and helpless. It passed away, when the necessity for its exercise ceased, and the common law tribunals were restored to power sufficient for the repression of violence and wrong. 1 Spence Eq. Jur. 341, chap. 4. Since, the jurisdiction of a court of equity has been purely and exclusively civil. The statute of this State declares its powers and jurisdiction shall extend to all “ civil causes,” in which a plain and adequate remedy is not provided in other judicial tribunals. R. C. § 698. The statute merely affirms and declares the existing law. In the case of Lord Montague v. Dudman (2 Vesey, Sen. 396), Lord Hardwicke, said : u This court has no jurisdiction to stay proceedings on a mandamus, nor to an indictment; nor to any information; nor to a writ of prohibition, that I know of.” Lord Eldon, said: “ It is well established by authority, that this court has originally no jurisdiction whatever either to enjoin or regulate the proceedings upon an indictment; but circumstances may give that jurisdiction ; when, for instance, the relators are the persons prosecuting the indictment, I should have a control by order personally affecting them; but I am not satisfied that I have the same control over these defendants who have not come in.” Att'y Gen. v. Cleaver, 18 Vesey, 219. In Holderstaffe v. Sanders (6 Mod. 16), Holt, C. J., said: “ Surely chancery will not grant an injunction in a criminal matter under examination in this court; and if they did, this court would break it, and protect any that would proceed in contempt of it.” The most approved elementary writérs, citing these authorities, state it “ as a general rule, that courts of equity will not interfere to stay proceedings in criminal matters, or in any cases not strictly of a bivil nature. They will not grant an injunction to stay proceedings on a mandamus, or an indictment, or an information, or a writ of prohibition. 2 Story’s Eq. § 893; 2 Dan. Ch. Pr. 1620; Hilliard on Inj. 19, § 30, 223, § 7. Following these authorities, this court, in (Montgomery & W. P. R. R. Co. v. Walton (14 Ala. 209), declared: “ The courts of law have complete jurisdiction to punish the commission of crimes, and can interpose to prevent their commission by imprisoning the offender, or binding him to keep the peace. But courts of equity have no jurisdiction over such matters; at least a court of equity cannot entertain a bill on this ground alone.” The case of Burnett v. Craig (30 Ala. 135) does not in principle differ from the cases under consideration. The purpose was, as in these cases, to obtain the interference by a court of chancery, to restrain municipal authorities from repeated prosecutions for violations of municipal ordinances. Declaring the prosecutions were quasi criminal proceedings, the court said a bill in chancery, to restrain a malicious or unfounded prosecution, is certainly of novel impression, and that there was neither principle or authority to support it. A similar decision was pronounced in West v. Mayor of City of New York, 10 Paige, 539. The principle rests not only on the character of the proceeding for violations of municipal ordinances, but because if tbe accused is not liable to the penalty, the defence at law is perfect. Municipal authorities would be paralyzed in discharging the public duties intrusted to them, if every offender, against the ordinances they have proclaimed, could, by injunction, arrest them, or could, by multiplying his offences, invoke the interference of a court of equity. If the court could take jurisdiction, and should determine the municipal ordinances valid, and that the party complaining was guilty of its violation, it could only remit him to trial before the tribunal having jurisdiction. It could not impose the penalty denounced by the ordinance. If corporal punishment is the penalty, or a part of it, through the interference of the court, it could be escaped. It seems evident, that a court of equity cannot interfere to arrest the authorities charged with the execution of the criminal law, whether it pertains to the state at large, or to the municipalities, which are agencies in the administration of civil government.

The counsel for the appellants have sought to withdraw the case presented by the bills, from the operation of this general principle, and the authorities by which it is supported, upon the ground that the interference of a court of equity is necessary in this case for the prevention of vexatious litigation, and of a multiplicity of suits. It could well be said in answer, the litigation and multiplicity of suits apprehended, are criminal in their character, and without the jurisdiction of the court. The prevention of litigation under some circumstances proves a subject for equity jurisdiction. The foundation of the jurisdiction is the quieting and suppression of litigation, and the remedy is known as a “ Bill of Peace.” To entitle a party to maintain it, there must be a right claimed affecting many persons; “ for if the right is disputed between two persons only, not for themselves, and all others in interest, but for themselves alone, the bill will be dismissed.” 2 Story’s Eq. § 857; Morgan v. Morgan, 3 Stew. 383 ; Glunn v. Harrison, 7 Ala. 585. In the case of Eldridge v. Hill (2 Johns. Ch. 281), the defendant had sued the complainant for a nuisance, and at the expiration of each week, sued for its continuation until there were fifteen or twenty suits pending, and he threatened to sue indefinitely, until an abatement. The bill was filed for an injunction to restrain the prosecution of all the suits but the one for the erection of the nuisance, and the commencement of any others, until that should be determined. Ch. J. Kent refused the injunction, saying: “ No case goes so far as to stop these continued suits between two single individuals, so long as the alleged cause of action is continued, and there has been no final or satisfactory trial and decision at law upon the merits.” In that case, as in this, the complainant was seeking to prevent suits which could only arise from a continuation of his own acts, each giving (as was supposed) a new cause of action. The determination of any one of these suits, would have finally settled the litigation. Whether the obstruction of a flow of water, by the complainant, was a nuisance, authorizing ah action at law, by the defendant, was necessarily involved, and must have been decided in each and all of these suits. The judgment in any one of the suits, would have been evidence, and conclusive evidence on this point, in all the others. If the complainants were preferring a right or claim affecting numerous parties, the judgment against one would not be binding on, or evidence against, the others, and hence a court of equity sometimes interferes to prevent the multiplicity of suits, and the continuance of litigation, which would be necessary to quiet the right. But when one party only is interested, and the right has not been established at law, the court will not intervene ■ — the necessity of intervention does not exist. In West v. Mayor of New York, supra, the jurisdiction was attempted to be maintained on this ground, but the chancellor said: “ I am not aware of any case in which this court has sustained such a bill, to prevent the defendant from suing at law, where the rights of the parties depended upon a question of law merely, and where the defendant in the suit at law must eventually succeed without the aid of this court, if the law was in his favor.” “ The separate repetition of trespasses,” say the supreme court of Ohio,” laying a ground for separate suits, between the same parties, is not that description of multiplicity of suits, which induces equity to interfere.” McCoy v. Chilicothe, 3 Ohio, 379. We cannot resist the conviction, that it would promote, rather than quiet litigation, if, under the protection of a temporary injunction, a party could repeat acts, each of which may furnish his adversary just cause of action. The equity of these bills cannot be supported as necessary to the prevention of a multiplicity of suits. If the prosecutions are unfounded, the defence at law is perfect, and if well founded, there should be no interference with the tribunals having exclusive jurisdiction of them. If a doubt as to the liability of the appellants to prosecution exists, they could avoid all multiplicity of suits, by abstaining from the acts which give rise to them.

It was also insisted, that the statute under which the appellants claimed the right to do the acts charged to be infractions of the city ordinances, conferred upon them franchises or special privileges which were threatened with destruction, and which a court of equity alone could preserve from invasion and destruction. A court of equity frequently intervenes when the courts of law cannot afford adequate remedies to prevent the violation of franchises, or special privileges granted by the legislative authority of the State. A difference observed in cases of this character, and where mere private rights, not originating in express legislative grant, or dependent on special legislative enactment, are involved is, that the owner of the franchise or privilege, is not compelled to a suit at. law for the establishment of his right, as a condition precedent to equitable interposition. The legislative grant, or enactment, is regarded as equivalent to & judgment of a court of law declaring the right. High on Inf. 319, § 571. • The right must be clear, and the party in. its undisputed possession or exercise. If a doubt exists as to the right, or it is uncertain whether the acts complained of are infractions of it, a court of equity ought not to interfere, until the right is ascertained at law. Morr v. Veazie 31 Me. 360 ; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35. If the franchise or privilege is assailed as invalid, because of the unconstitutionality of the statute from which it is derived, and on an inspection of the statute a reasonable doubt exists whether the legislature had the power to enact it, a court of equity would not interfere. It is only when the court, on an inspection of the statute, has not reasonable doubt of its constitutionality, that it will interpose, to prevent the invasion of the privilege or franchise it confers. Morr v. Veazie, supra.

Conceding the bills present a clear case of invasion, and threatened destruction of the statutory privileges and franchises claimed by the appellants, we are compelled to inquire into the constitutionality of the statute from which they are derived. When these cases were before this .court at the June term, 1872, a majority of the court pronounced the statute in violation of the Constitution. We concur fully in the opinion of Judge Saitold, that it offends the constitutional mandate, that “ each law shall contain but one subject, which shall be clearly expressed in its title.” Horst, Mayor, &c. v. Moses, 48 Ala. 129. The decision then rendered should have put an end to this litigation and should have been regarded as a final condemnation of the statute, and the rights and privileges which have been claimed under it.

The history of this clause of the Constitution, the purposes it is designed to accomplish, and the policy in which it is founded has been, in this and other courts, the subject of frequent consideration. It is of comparatively recent origin, and produced a radical change in the established modes of legislation. It is not matter of surprise that the construction and interpretation it should bear, was matter of constroversy, which judicial decision alone could finally determine. The courts have carefully avoided a construction which would embarrass legislation. Sentence of nullity has not been pronounced against legislative enactments, because of the generality and comprehensiveness of the titles with which they may be introduced, when these fairly indicate the general subject of the enactment. They have firmly demanded that the title should avoid deception as to the subject of the enactment, and should announce that subject. Ex parte Pollard, 40 Ala. 98 : Cooley Cons. Lim. 143-146.

This constitutional prescription of a rule of legislation, can have been intended to accomplish but one purpose, the suppression of a practice previously too prevalent, leading to unfortunate, and sometimes corrupt legislation, by which several projects, or subjects having no proper relation to each other were combined, and the supporters of each united in passing all into laws ; and the prevention of the deception of the legislature and the people, by concealing under alluring titles, legislation which, if its real character had been disclosed, would have been denounced. The statute we are considering is confined to one subject ; the inquiry is, whether that subject is expressed in the title. When the subject and the title are compared, it seems to us ingenuity could not have devised a title more delusive and less expressive of the real purpose and subject of the statute. It is entitled “ An Act to establish the Mobile charitable association, for the benefit of the common school fund of Mobile county, without distinction of color.”

The first section authorizes four persons who are named, and their associates to form themselves into a partnership, “ to be known under the firm name and style of I. C. Moses & Co. or such other name as they may designate.” The purpose of this partnership is, “ receiving subscriptions, and selling and disposing of certificates of subscription which shall entitle the holder thereof to such prizes as may be awarded to them, which distribution of award shall be fairly made in public, by casting of lots, or by lot, chance, or otherwise, in such manner as to them may seem best to promote the interest of the school fund of Mobile county; ” “ the distribution of award and prizes,” to be made in Mobile, or such other place in the State as they may direct. The second section required the partnership to pay annually to the common school fund of Mobile county, one thousand dollars in consideration of the privilege conferred by the first section. The third section exempts the partnership from all other than state taxation. The fourth section continues the act for ten years, “ during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.” We refrain from all discussion of this singular and remarkable statute, confining our inquiries only into its conformity to the “constitutional provision, to which reference is made. The subject of the statute as expressed in the title, is the establishment of a charitable association. If the statute is valid, it authorizes the formation of a partnership with a partnership name, without any of the distinctive characteristics of an association, which is without personality, invisible, intangible, except through its officers and agents. Reading the title, all schemes for mere individual gain or profit would seem to be excluded, and the advancement of the public good the primary controlling purpose. The statute is devoted chiefly, if not entirely, to the mere pecuniary profit of the partnership, while the only possible public benefit is secondary, insignificant; and that the statute may bear the appearance of a legislative grant, or contract, is to be paid into the school fund, as a consideration for the franchise or privilege the partnership enjoys. The title indicates that the subject of the statute not only comports with, but is in advancement of piiblic morality, while the real subject so far as it can be intelligibly deduced from the vague generalities in which it is expressed, without statutory indulgence or dispensation, would be offensive to the criminal law. The constitutional provision is vain and useless if this enactment can be supported. The state is not freed from its liability to unwise or vicious legislation against which it was intended to guard, but may be involved in it to the same extent as if this provision had never been incorporated in the Constitution. The legislature can be misled by titles fair and unobjectionable, into the adoption of measures the most odious, and wholly alien to the title. Convinced that the statute is violative of the Constitution, no franchise or privilege is conferred on the appellants. All interference with the municipal authorities in enforcing the ordinances the appellants were charged with violating, was unwarranted. The decrees of the chancellor are thereupon affirmed.