Summary
holding that the appellant, who operated a night club and cafe, did not have vested right in her operating license; although the state could not revoke the license arbitrarily, it could revoke the license when substantial evidence supported the action
Summary of this case from Department of Health & Mental Hygiene v. VNA HospiceOpinion
7 Div. 426.
May 28, 1959.
Appeal from the Circuit Court, Etowah County, Virgil Pittman, J.
Arthur Burns, Gadsden, for appellant.
License legislation which vests in public officials discretion to grant or refuse license to carry on an ordinarily lawful business or activity without prescribing definite rules and conditions for guidance of officials in execution of their discretionary power is invalid. City of Montgomery v. West, 149 Ala. 311, 42 So. 1000, 9 L.R.A., N.S., 659. If public officials abuse discretion in issuance of license or enforcement of license requirements, and act arbitrarily or fraudulently, or if there is no factual basis for conclusion reached, the courts will give relief. 52 Am.Jur. 275, § 28; 123 A.L.R. 1205; City of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591; City of Birmingham v. Leo A. Seltzer, Inc., 229 Ala. 675, 159 So. 203; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823; Caudle v. Cotton, 234 Ala. 126, 173 So. 847.
Geo. Murphy and Jas. B. Waid, Gadsden, for appellees.
Where evidence was heard ore tenus before trial judge on appeal presumption is indulged in favor of his finding. Harris v. Harris, 256 Ala. 192, 54 So.2d 291. Appeal will not lie from decree overruling motion for rehearing in equity, and such action cannot be assigned as error on appeal from final decree. Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422; Eq. Rule 62; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160. Ordinarily courts do not interfere with or control exercise of discretionary powers of municipal corporations and will not substitute their judgment for that of the municipality. 62 C.J.S. Municipal Corporations § 199, p. 373. A city or town council has right and power to revoke and cancel any and all licenses issued to a house of public entertainment when in their judgment the public safety, peace, good order or decency may require. Code 1940, Tit. 37, § 752; City of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591. Constitutional questions presented for first time on appeal will not be considered. City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551.
This is an appeal by Ann O'Bar, operator and owner of the Skyline Club, from a decree of the trial court declining to order and direct appellees, the Town Council and Mayor of Rainbow City, to rescind their revocation of the license of appellant to operate a night club and cafe in the town of Rainbow City.
The single issue presented by the pleadings is whether or not the action of the appellees in revoking appellant's license was arbitrary and an abuse of their discretion.
From the evidence which was heard ore tenus by the trial court it appears that on March 30, 1958 appellant was given written notice that at the regular meeting of the Town Council on April 4, 1959 and at a specified place, the Council would consider and vote upon the revocation of her license upon the ground that the public safety, peace, good order, or decency require it.
The hearing of the Town Council was held on April 4, at which time appellant was present and was represented by counsel. It further appears that witnesses appeared on behalf of appellant, as well as appellees, and a full hearing was had. After hearing the evidence, the Town Council unanimously voted to revoke appellant's license.
The evidence offered at the hearing in support of the revocation of appellant's license showed that upon a complaint being filed, two deputy sheriffs of Etowah County went to the Skyline Club, appellant's place of business, on December 6, 1957 and thereupon found two pints of vodka in appellant's hands. It further appears that Etowah County is a "dry" county. Evidence was also adduced that the Skyline Club was objectionable to residents of the community who lived in the vicinity of said club because of the loud music which is played there until two or three o'clock a. m., loud talking, hollering, and general boisterous disturbances.
Section 752, Tit. 37, Alabama Code 1940 provides that a city or town council shall have the right and power to revoke any and all licenses issued to any house of public entertainment when, in their judgment, the public safety, peace, and good order or decency may require it.
There is no contract, vested right or property in a license as against the power of a state or municipality to revoke it in a proper case. The license cannot, however, be arbitrarily revoked. Cavu Club v. City of Birmingham, Ala., 110 So.2d 307; City of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591; Richardson v. Reese, 165 Tenn. 661, 57 S.W.2d 797; Friedland v. Ingersoll, 249 App. Div. 623, 291 N.Y.S. 32; 33 Am.Jur., Licenses, § 65; 53 C.J.S. Licenses § 42; 18 Ala. Lawyer 132, 137; 3 McQuillin, Mun.Corp., 2d Ed., 1108.
With respect to judicial review of the action of the official body intrusted with the duty of the revocation of licenses, its action should not be disturbed except for clear and manifest abuse of discretion. State ex rel. Bluemound Amusement Park v. Mayor of City of Milwaukee, 207 Wis. 199, 240 N.W. 847, 79 A.L.R. 281; 33 Am.Jur., Licenses, § 67; 53 C.J.S. Licenses § 44.
And where there is substantial evidence to support the action of the city governing authorities in the revocation of the license, it cannot be said that they acted arbitrarily or abused their discretion. Cavu Club v. City of Birmingham, supra; City of Chicago, Ill. v. Kirkland, 7 Cir., 79 F.2d 963.
Upon a review of the record we conclude that the action of the Town Council in revoking appellant's license was not without substantial evidence. See Cavu Club v. City of Birmingham, supra; see also Little Man's Club v. Schott, Fla. 1952, 60 So.2d 624.
Appellant's application for rehearing was denied by the trial court and in said application appellant, for the first time, raised the question of the constitutionality of § 752, Tit. 37, Alabama Code 1940. Appellant, in brief, also urges that the statute is unconstitutional. It is clear that no appeal will lie from an order of the trial court on an application for rehearing in equity unless it modifies the final decree. Equity Rule 62, Tit. 7, Alabama Code 1940. And the decree overruling an application for rehearing is not subject to review by an assignment of error made on appeal from the final decree. Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160., We, therefore, pretermit any review of the question of the constitutionality vel non of said statute for that such question will be considered on appeal only when it is properly presented. See Coleman v. Mange, 238 Ala. 141, 189 So. 749; Lane v. Bruner, 236 Ala. 269, 182 So. 5; City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551; Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432; Donaghey v. Owen, 259 Ala. 376, 66 So.2d 895.
Appellant also urges error on the part of the trial court in excluding certain evidence. We conclude that any error in the rejection of said evidence is error without injury. McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; Monogram Hardware Co. v. Louisville N. R. Co., 6 Ala. App. 629, 60 So. 949; Bryant v. Southern Railway Co., 137 Ala. 488, 34 So. 562; Lee v. Raiford, 171 Ala. 124, 54 So. 543; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28.
No error is made to appear in the proceedings below.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.