This appeal was taken from a decree of the Circuit Court of Jefferson County, Alabama, sitting in equity, overruling motions of the respondent (appellant) to vacate and to dissolve a preliminary injunction prohibiting the sale and offering for sale of any beer or other alcoholic beverages at his place of business.
The complainants, W. D. Kendrick, Charles E. Harrison and E. H. Gilmore,
Complainants' bill alleged that "said respondent (Leonard M. King, Sr.) is selling or offering for sale beer at said place without first having procured a use permit from the Building Commissioner of Jefferson County as required by law * * *." Attached to the bill is an affidavit by W. W. Dunn, which states in essence that he is the Building Commissioner [Title 62, § 330(239a), Pocket Part, Code of 1940], and that King was selling and offering for sale, beer in violation of the zoning regulations of Jefferson County. Upon the filing of the bill a preliminary injunction was issued which "enjoined and prohibited (respondent) from selling or offering for sale any alcoholic beverages at his said place of business."
The respondent filed a Motion to Discharge the Injunction and a Motion to Dissolve the Injunction and assigns as error the overruling of said motions and the granting of the temporary injunction.
I. It is argued by the appellant that the zoning regulations of the Jefferson County Planning and Zoning Commission which appellant allegedly violated were not specifically set out in the bill and therefore the bill is without equity as "the courts will not take judicial knowledge of the acts or the regulations of an administrative body of a county in the state." The appellees alleged in their petition for a temporary injunction the following:
It is appellant's contention that the bill and affidavit "did not set forth nor allege in haec verba any regulations of the said Planning and Zoning Commission which had been violated by the Respondent." Under our practice it is not necessary that a zoning ordinance be set out in haec verba in a bill of complaint filed by county officers seeking an injunction for its violation. Goldthwaite v. City Council of Montgomery, 50 Ala. 486; Rosenberg v. City of Selma, 168 Ala. 195, 198, 52 So. 742, 743. The rule as stated in Rosenberg v. City of Selma, supra, is as follows:
Counties of this state coming within the classification set forth in § 330(230), Title 62, Code of 1940, Pocket Part, may enact zoning regulations in accordance with the terms and provisions of this statute. And in § 330(239a), Title 62, Code of 1940, Pocket Part, the governing body of the county is authorized to establish and fill
II. It is contended that the Building Commissioner acted arbitrarily and capriciously in that he denied the respondent the equal privileges of operating his retail grocery store. Under § 330(239a), Title 62, Code of 1940, Pocket Part, the powers of a Building Commissioner are specifically set out:
Under these provisions the building commissioner determines who is entitled to permits for the sale of beer in retail stores throughout the county. In the counter affidavit of W. W. Dunn, the Building Inspector of Jefferson County, the uses to which property located in districts zoned for commercial purposes are specifically enumerated. Although retail stores are within the commercial classification, this in itself does not authorize the appellant to sell beer, where the zoning regulations further provide that a use permit be obtained. We quote from Leary v. Adams, 226 Ala. 472, 147 So. 391, 392.
In Village of Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, a leading case on the subject, the court said:
III. It is contended that since a state license has been obtained, the county is without authority to deny the appellant the right to sell beer. The court observed in Marchesi v. Selectmen of Winchester, 312 Mass. 28, 42 N.E.2d 817, 819, that,
In Carnabuci v. City of Norwalk, 70 Ohio App. 429, 46 N.E.2d 773, 774, the petitioner obtained a license to manufacture wine from the State Board of Liquor Control but was prevented from so doing by a zoning ordinance which disallowed the operation of businesses in areas zoned for residences only. In holding that the permit was subordinate to the municipal ordinance, the court said:
See Municipal Corporations by McQuillin, Vol. 8, pp. 35-36.
In the case at bar it is sufficient to say that the regulation here was in force and effect prior to the issuance by the Alcoholic Beverage Control Board of the permit to the appellant and the opening and operation of his business on the premises in question. Under Title 62, § 330(239a), Pocket Part, Code of 1940, authority is given the building commissioner for the enforcement of county zoning regulations by means of the withholding of building, use or occupancy permits. In refusing the appellant a use permit to sell beer, the building commissioner was acting within the valid and lawful exercise of his power.
It results, therefore, that the decree appealed from is free from error and is due to be affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.