Comfort v. City of Kosciusko

• Decision Date: 02 July 1906
• Citation: Comfort v. City of Kosciusko, 88 Miss. 611, 41 So. 268 (Miss. 1906)
• Court: Mississippi Supreme Court
• Parties: CHRISTOPHER C. COMFORT v. CITY OF KOSCIUSKO

41 So. 268

88 Miss. 611

CHRISTOPHER C. COMFORT v. CITY OF KOSCIUSKO

Supreme Court of Mississippi

July 2, 1906

April 1906

FROM the circuit court of Attalla county, HON. J. T. DUNN, Judge.

Comfort the appellant, was convicted of violating the ordinance of the city of Kosciusko, set out in the opinion of the court which sought to prohibit the keeping of hogs within the city limits. The prosecution was begun in the municipal court, the case was, upon conviction there, appealed by Comfort to the circuit court of the county; and from a conviction therein Comfort appealed to the supreme court. The facts are stated in the opinion of the court.

Case reversed and affidavit dismissed.

Luckett & Guyton; Anderson, Davis & Sawyer, and J. S. Smith, for appellant.

Before a municipality can prosecute, it must show a valid ordinance. Derringer v. Recorder's Court of Romona, 79 Mass. 360; McMinnville v. Stroud, 109 Tenn. 569.

When the legislature of the state assumes to act and specifies the powers of municipal corporations over nuisances and cognate matters, the municipality acting under the municipal charter cannot enlarge the powers as therein expressly designated. Black's Constitutional Law, sec. 110.

The ordinance in question is conceded to have been passed under sec. 2928 of the annotated code of 1892 of Mississippi commonly called the "nuisance clause." This clause gives no power to a municipal corporation to make a thing, in the eye of the law, a nuisance simply by declaring it to be a nuisance, and if it did, we submit that the ordinance itself makes no such declaration in this case. A hog per se is not a nuisance. The intent of the legislature is the law. "That which is within the letter of the law is not within the law unless it be within the meaning of the makers." What did the legislature mean when it gave the municipality power to suppress hog pens, slaughter houses, and stock yards, and to regulate the same?

To suppress hog pens does not mean to prohibit the keeping of hogs within the city limits. To prohibit the latter means in effect to declare a hog a nuisance per se, and if the legislature intended this, it would have so declared. The legislature gives to the municipality power, in order to prevent, remove and abate nuisances, to legislate against a condition created by a hog or other thing, but not the hog or thing itself.

There are two sections in the code of Mississippi of 1892 pertaining to nuisances, and one refers to the other. See secs. 2928 and 2277. The former gives certain specified powers to the municipality over nuisances; the other prescribes the power of the state board of health over the same subject-matter. The state board of health, when informed by the county health officer of the existence of any matter or thing calculated to produce, aggravate or cause the spread of any epidemic or contagious disease or to effect injuriously the health of the public or community, may declare the same a nuisance. But this declaration is not final, and whether or not it is a nuisance is a question of fact to be thereafter judicially determined, just as we contend is true in the case at bar. The legislature certainly never intended to give to the municipality greater power to regulate sanitation and prohibit nuisances than it did the state board of health.

It was well observed by Mr. Justice MILLER, speaking for the supreme court of the United States in Yates v. Milwaukee, 77 U.S. (infra): "It is a doctrine not to be tolerated in this country that a municipal corporation can by its mere declaration that a structure is a nuisance, subject it to removal by any persons supposed to be aggrieved, or even by the city itself." It must be manifest to this court that the operation and effect of the ordinance in the case at bar is not only to prohibit the bringing into and the keeping within the city limits of hogs, but also to cause at once the removal of those hogs already kept within the city limits, and that, too, regardless of the condition in which they might be kept.

A hog in the city of Kosciusko (as in the city of Jackson) may or may not be a nuisance, and any ordinance drawn on the subject must be framed accordingly. Ex parte O'Leary, 65 Miss. 80 (s.c., 3 So. 144).

If this board of mayor and Aldermen can declare that no hog shall be kept in the city of Kosciusko, why can it not with equal propriety say that no horse or cow shall be permitted within the city limits? What is the distinction as a matter of law?

F. M. West, and J. G. Smythe, for appellee.

Two questions are presented in this case for decision: (1) Had the municipality of Kosciusko the power to pass the ordinance in issue in the case at bar? (2) If it had the power, was the ordinance legally passed?

In answer to the first question, we cite the case of Darlington v. Ward, 38 L. R. A., 326, et seq., and quote therefrom. The facts in that case and the points therein are identical with those of the case at bar. There the town of Darlington passed an ordinance, in effect the same as the ordinance in this case--that is, prohibiting the keeping of hogs in the corporate limits. In that case, as in this one, it was not a question of the size of the pen in which the hog was kept, nor the condition of the pen. The court said, in deciding that case, in discussing the power of municipalities to adopt ordinances for the regulation of its affairs of health and police powers: "In such cases I think the true thing is, that such ordinances may be declared invalid only when they are so clearly unreasonable oppressive, or violative...