Opinion
1931349.
March 3, 1995.
Petition for writ of Certiorari to the Court of Civil Appeals (AV92000560). Appeal from the Escambia Circuit Court, No. CV-92-175, Bradley E. Bryne, Judge.
Robert S. Presto of Caffey, Presto and Associates, P.C., Brewton, for Bill Salter Advertising, Inc.
Edward T. Hines of Thompson, Garrett Hines, Brewton, for Peter Diurno and City of Brewton.
WRIT DENIED.
HORNSBY, C.J., and ALMON, SHORES, KENNEDY, INGRAM and COOK, JJ., concur.
HOUSTON, J., concurs specially.
MADDOX, J., dissents.
I write only to assert again that §§ 1, 6, and 22 of the Constitution of Alabama of 1901 do not guarantee equal protection.
The equal protection provision in the Constitutions of 1868 and 1874 was intentionally removed from the Constitution of 1901, with the understanding that only the Fourteenth Amendment to the United States Constitution provided equal protection for Alabama citizens. See 2 Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34; 1639-44; 2254-60.
Judicial error involving constitutional law cannot serve as precedent for striking down statutes or ordinances duly enacted by legislative bodies, without violating Art. III, § 43 ("the judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men").
I would grant the writ, because I believe the petitioner has set forth sufficient facts to show that State and Federal constitutional questions were raised and preserved relating to a moratorium on outdoor billboard advertising in the City of Brewton.
By voting to grant certiorari review, I should not be understood as stating that the judgment of the Court of Civil Appeals and that of the trial court should be reversed. However, I would like to examine the claim that the City of Brewton has acted unconstitutionally in ordering a moratorium on outdoor billboard advertising until it can adopt an ordinance on the matter, but has allowed churches, schools, and at least one other entity, to erect signs and billboards without obtaining a permit.