City of Birmingham v. Bollas , 209 Ala. 512 ( 1923 )

Section 1342 of the Code declares:

"The city or town council shall have the right and power to revoke and cancel any and all licenses issued for the sale of spirituous, vinous, or malt liquors, or the license or licenses of any house of public entertainment or house or place where firearms or other deadly weapons are kept for sale, when in their judgment the public safety, peace, good order, or decency may require it; and when the owner thereof, or person operating the same, shall have been convicted of any violation of the city or town ordinances regulating such business, the council may cancel the license."

Under section 7 of the Act of September 25, 1915 (Gen. Acts 1915, p. 793), the city commission of Birmingham is given all the powers possessed and exercised by its former governing bodies.

A city ordinance of Birmingham makes it unlawful to operate a hotel within the city without a license.

If therefore the revocation of complainant's license by the commission was a valid act, his continued operation of the hotel was without a license, and in violation of the ordinance referred to; and, manifestly, the asserted equity of the bill wholly fails, since complainant can be entitled to no protection with respect to the unlawful operation of his hotel.

A single inquiry, must, therefore, determine whether or not the preliminary writ was properly issued, viz., does section 1342 of the Code authorize the revocation of a license for the operation of a hotel? This depends, of course on the meaning of the phrase, "any house of public entertainment," as used by the Legislature in that enactment.

"Hotel" is the modern name for houses that were formerly called "inns" or "taverns" — terms now usually restricted, as noted by the New Standard Dictionary, to small, old-fashioned establishments. The same authority notes that hotel is "properly distinguished from inn by its superior style and pretensions"; and in Foster v. State, 84 Ala. 451,452, 4 So. 833, it was said that "inn" is "synonymous in meaning with hotel or tavern." These terms are all used to describe a house where travelers or others are entertained and furnished with food and lodging, and sometimes other conveniences; and whether such a house be called "hotel," "tavern," or "inn," it is in common understanding a "house of public entertainment."

Section 7094 of the Criminal Code seems to recognize this in its provision that —

"Keepers of inns, hotels, and other houses of public entertainment for travelers, shall give receipts," etc.

And again in Foster v. State, 84 Ala. 451, 452, 4 So. 833, it was said that —

"There is nothing inconsistent or unusual, * * * in a houseof public entertainment having a double character, being simultaneously a boarding house and an inn." (Italics supplied.)

In Bonner v. Welborn, 7 Ga. 296, 304, it was held that, in a statute requiring a license for keeping "a house of entertainment," this expression is synonymous with "tavern"; and in Linkous v. Com., 9 Leigh (Va.) 608, 612, it was held that the same expression in an indictment for gaming meant simply a tavern.

The phrase "house of public entertainment" was used in a North Carolina statute, and held not to include a house where strangers were entertained only occasionally. State v. Mathews,19 N.C. 424, 426.

These several examples are taken from 4 Words and Phrases (First Series), 3359.

We think that under section 1342 of the Code the city commission was authorized to revoke complainant's license if they concluded upon investigation that "the public safety, peace, good order or decency" required it. If they acted under this provision, it was of no consequence that complainant had not been convicted of any violation of a city ordinance regulating the hotel business; that being a separate and distinct ground for cancellation of the license.

Nor does it matter that the city had adopted no ordinance embodying the provisions of section 1342 of the Code, for that section grants the power to cities directly, and needs no city ordinance to make the power operative and effective.

We, of course, do not mean to hold that the statute authorizes a purely arbitrary revocation of licenses for the operation of hotels, not subject to judicial review in a proper way. That question is not presented, for the case sought to be made by the bill rests entirely upon the proposition that the city has no such power, and not upon the charge of abuse of lawful discretion.

On the face of the bill it is without equity, and "a bill without equity will not support an injunction of any character, under any circumstances." McHan v. McMurray, 173 Ala. 182,55 So. 793.

The writ was therefore improperly granted, and the order and decree in that behalf will be reversed.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.