Crumpler v. City of Vicksburg

• Decision Date: 28 January 1907
• Docket Number: 12401
• Citation: 89 Miss. 214,42 So. 673
• Court: Mississippi Supreme Court
• Parties: M. O. CRUMPLER v. THE CITY OF VICKSBURG

42 So. 673

89 Miss. 214

M. O. CRUMPLER v. THE CITY OF VICKSBURG

No. 12401

Supreme Court of Mississippi

January 28, 1907

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

The appellant, Crumpler, appealed from a conviction in the circuit court under the following ordinance of the city of Vicksburg:

"SECTION 1. Be it ordained by the mayor and aldermen of the city of Vicksburg, That it shall hereafter be unlawful for any corporation, or any water company, or waterworks company, or any superintendent, manager, or managing director of any water company, or any waterworks company, or any person or persons, or individual or individuals owning or operating a waterworks plant or waterworks system in the city of Vicksburg, or any person having a water plant or system of water plant in charge or under his supervision or management or control, to allow or permit the pipes or mains or conduits of such plant or system to be out of repair, or to be in such leaky condition as to permit water to escape therefrom, or to flow on or over or across any of the streets, roads, lanes or alleys of the city of Vicksburg for as long as two days in succession at any time."

Section 2 provides the penalty for violation. Affidavit was made charging that Crumpler was the superintendent of the Vicksburg Waterworks Company, having the management and control of its plant, and that he had permitted the pipes of the company to remain out of repair and in a leaky condition so that water escaped therefrom and flowed over and across one of the principal streets of the city at a point where the Alabama & Vicksburg Railway tracks crossed said street. The defendant demurred to the affidavit, attacking the validity of the ordinance on which it was based. The court overruled the demurrer, and, when the case was called for trial defendant made an application for continuance on account of the absence of a witness by whom he expected to prove that the leaky condition of the pipes was due to the vibrations caused by the passing of locomotives over the street under which said pipes were laid. The court overruled the motion, and the case proceeded to trial, resulting in a verdict of guilty. Reversal was asked: (1) for the refusal of the application for continuance; (2) for the refusal of the court to permit proof of the defective condition of certain private service pipes connecting with the mains of the company; (3) for the refusal to compel the city to elect a particular time of the defective condition of the pipes and confine its proof to that time, and the admission of testimony showing the leaky condition of the pipes at various times prior to the filing of the affidavit; (4) for the unconstitutionality of the ordinance under which appellant was convicted, in that it is class legislation, discriminating against appellant, and is violative of the fourteenth amendment to the constitution of the United States. Other facts are stated in the opinion of the court.

Affirmed.

Hudson & Fox, for appellant.

The ordinance in question was unconstitutional in that it was class legislation and denied equality of protection under the law. People ex rel. v. Blocki, 67 N.E. 809; Harding v. People, 32 L. R. A., 445; State v. Goodwill, 2 Am. St. Rep., 863; Zick v. Hopkins, 118 U.S. (Lawyers' ed.), 118; State v. Sheriff, 31 Am. St. Rep., 651; Railroad Co. v. Moss & Co., 60 Miss. 641; Adams v. Lumber Co., 84 Miss. 23; Ballard v. Cotton Oil Co., 81 Miss. 507.

The court erred in refusing to allow the accused to show that the private service pipes of a railway corporation and others who owned them likewise leaked in the public streets at the same point.

The leaking of the pipes was not per se a nuisance. Whether it amounted to a nuisance depended upon the degree in which they leaked and the effect thereof on the public convenience, and there was no testimony on the subject. Ex parte O'Leary, 65 Miss. 80; Quintini v. Board of Aldermen, 64 Miss. 483.

The prosecution should have been compelled to elect a particular time when the ordinance was being violated, and to confine its proof to that time, and the testimony showing the leaky condition of the pipes at various times prior to the filing of the affidavit should have been excluded. Newman v. State, 72 Miss. 126; King v. State, 66 Miss. 502; Bailey v. State, 67 Miss. 333; Naul v. McComb City, 70 Miss. 699.

George Anderson, for appellee.

The ordinance does not declare that the leaking of pipes and mains within the city shall constitute a nuisance and be punishable as a misdemeanor, but to allow them to leak so that water flows for two days in succession across a public street is condemned as an offense. The O'Leary and Quintini cases cited for appellant are wholly without application.

The service pipes mentioned by appellant are not private pipes. Whatever may be the contract between the water company and its patrons in respect to them, they are put down and maintained by the water company under its franchise permitting such use of the street.

R. V. Fletcher, assistant attorney-general, on same side.

If the service pipes are really owned or operated by individuals other than water companies, these individuals also are punishable for a violation of the ordinance, under its terms, and there can be nothing therefore to condemn in the ordinance as class legislation. However, a water company or water supply system is a public service corporation, enjoying unusual powers of a quasi public nature, and might, therefore, be classified differently from persons merely owning and using private pipes.

The condition of the pipes before the time counted on by the city was of value in showing that the condition existed at the time specified in the affidavit. 1 Wigmore on Evidence, 437.

OPINION

MAYES, J.

The cases of Ex parte O'Leary, 65 Miss. 80 (3 So 144; 7 Am. St. Rep., 640), and Quintini v. Board of Mayor and Aldermen, 64 Miss. 483 (1 So. 625; 60 Am. St. Rep., 62), have no application to this case. The ordinance we are construing is a police regulation, dealing with the public streets of the city of Vicksburg, and having as its object the preservation of the health, comfort and safety of the public, and additionally to compel a proper use of the streets by the waterworks...