Board of Com'rs of City of Mobile v. Orr

• Decision Date: 10 April 1913
• Citation: 181 Ala. 308,61 So. 920
• Court: Alabama Supreme Court
• Parties: BOARD OF COM'RS OF CITY OF MOBILE et al. v. ORR.

61 So. 920

181 Ala. 308

BOARD OF COM'RS OF CITY OF MOBILE et al. v. ORR.

Supreme Court of Alabama

April 10, 1913

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Wade H. Orr against the Board of Commissioners of the City of Mobile and the City Health Officers to enjoin the enforcement of an ordinance requiring the paving of certain stables and connection thereof with the city sewerage system, and to declare the ordinance invalid as unreasonable. From a decree granting a preliminary injunction, respondents appeal. Affirmed.

The bill alleges that the complaint comes within the purview of a certain ordinance adopted by the board of commissioners of the city of Mobile to become effective after January 1, 1913. It is alleged that the complainant would have to spend several hundred dollars in order to lay the cement floor required by the ordinance and would have to procure the quarters for his stock while the floor was being laid and while it was hardening. It is further alleged that the ordinance is unconstitutional and unreasonable: First. Because it is limited to persons who keep more than one animal, requiring the man who keeps more than one to lay a floor according to specifications, while he who keeps only one animal is not required to do so, although, in fact, there is no sanitary distinction which would justify such a classification, and, on the contrary, the aggregate number of horses, mules, and cows which are kept in the city of Mobile by persons who own only one animal largely exceeds the aggregate number of horses, mules, and cows which are kept in the city of Mobile by persons keeping two or more animals. Second. That the ordinance is unreasonable because of the expense required to comply with it, and because the mineral floors, uncovered by wood, would be seriously injurious to the animals kept therein, and for other reasons not necessary to here state. Other matters are set up as rendering the ordinance unreasonable and void, but they sufficiently appear from the opinion. The ordinance is as follows:

"Be it ordained by the board of commissioners of the city of Mobile:

"Section 1. That every stable, shed or lot, where two or more horses, mules or cows are kept, in the city of Mobile shall be thoroughly cleaned at least once each day; and when such animal or animals kept in a stable, shed or other building, such building shall have sufficient light to make cleaning practicable, and sufficient ventilation to keep the air of such building at all times pure; and no person or corporation shall maintain or use any stable for two or more such animals in violation of this ordinance.

"Sec. 2. That every stable, shed, or other building, where two or more horses, mules or cows are kept, shall have either within, or immediately adjoining, a water-tight, covered room, or box or bin or barrel, for receiving and holding manure and litter accumulating between the times of removal from the premises. The fitness of such room, box, bin, or barrel shall be passed upon by the city health officer.

"Sec. 3. Be it further ordained, that all stall floors in stables shall drain into gutters, the said gutters to be connected through catch basins with the sanitary sewerage system of the city, in accordance with section 671 of the Code of Ordinances of the City of Mobile of 1907.

"Sec. 4. That the floors of all stables must be constructed of concrete at least four inches thick, with a smoothly troweled wearing surface at least three-fourths of an inch thick, composed of Portland cement, and in the proportion of one part to one and one-half parts of sand: Provided, that in lieu of a cement wearing surface, vitrified paving brick with grouted cement joints, or other substantial mineral pavement impervious to water and not less than four inches thick, may be substituted. The floor of stalls or portions of the floor on which animals stand may be of concrete, brick or other substantial mineral pavement as specified above, or may be constructed of creosote wood blocks laid on a concrete foundation, or of planking laid on such foundation: Provided, further, that the floors which are affected by the provisions of this section are the floors of the stalls and of a space not less than three feet outside of the stalls, where stalls are used, and the floors of the pens where stock is penned and held or fed; and this section shall not apply to any portion of a stable which is not used for stabling, standing, ditching, picketing, or penning stock, but only used for a passage or runway.

"Sec. 5. That a three-quarter inch hosebib, equipped with hose, shall be placed so that the drainage system may be readily flushed; and that all stable floors must be thoroughly cleaned and flushed as often as necessary, and at least twice each week.

"Sec. 6. Be it further ordained, that every person, firm, association or corporation, upon whose or its premises, within the city of Mobile, is kept one or more horses, mules or cows, shall register at the office of the board of health the name of the owner, the location where such animal or animals are kept, and the number of the animals at any given location.

"Sec. 7. Be it further ordained, that any violation of this ordinance by any person, firm, association, or corporation shall be punished by the recorder by a fine of not less than ten dollars or more than one hundred dollars for the first offense, and not less than five dollars per day for each succeeding day that the offense continues after notice has been given by the city health officer.

"Sec. 8. Be it further ordained that this ordinance shall be in force and effect from and after the date of its adoption: Provided, however, that compliance with sections 5 and 4 may be delayed until the first day of November, 1912; and thereafter, the entire ordinance, without exception, shall be in full force and effect."

Section 4, as above quoted, is an amendment of section 4 as formerly adopted, and the ordinance was further amended by the following:

"Sec. 7. Be it further ordained, that this ordinance and the amendment of section 4 this day adopted shall be in force and effect from and after January 1, 1913."

B. Boykin Boone, of Mobile, for appellants.

Gregory L. & H.T. Smith, of Mobile, for appellee.

SAYRE J.

The statutes of the state, with which the quasi legislative acts of inferior municipal bodies must be classed so far as concerns the constitutional requirement of equal laws, are not to be put aside by judicial decree, except upon satisfactory assurance that they do offend against the principle of equality. Classification, or discrimination between classes, is allowed if founded upon distinctions reasonable in principle and having just relation to the object sought to be accomplished. The courts concede a wide discretion to the legislative authority in respect of the grounds of classification, and must be reluctant to disturb even a municipal ordinance enacted in pursuance of a comprehensive grant of power, and designed presumably to promote the public health and comfort, but the power to condemn is more freely exercised in such cases, for, as to municipal ordinances, it was an ancient jurisdiction of judicial tribunals to pronounce upon their reasonableness and consequent validity. It was always the doctrine of the courts that every ordinance or by-law must be reasonable and not inconsistent with the general principles of the law of the land, particularly those having relation to the liberty of the citizen and the rights of private property. Yick Wo v. Hopkins, 118 U.S. 371, 6...