Desporte v. City of Biloxi

• Decision Date: 09 June 1924
• Docket Number: 23415
• Citation: 100 So. 387,136 Miss. 542
• Court: Mississippi Supreme Court
• Parties: DESPORTE v. CITY OF BILOXI. [*]

100 So. 387

136 Miss. 542

DESPORTE v. CITY OF BILOXI. ^[*]

No. 23415

Supreme Court of Mississippi

June 9, 1924

(En Banc.)

1. MUNICIPAL CORPORATIONS. Ordinance beyond statutory authority to prohibit nuisance void.

The authority of municipalities to prohibit and abolish nuisances and cognate matters is contained in section 3319, Code 1906 (Hemingway's Code, section 5816). Any ordinance of a municipality undertaking to prohibit or abate nuisances which extends beyond the power conferred by said statute, is void.

2. MUNICIPAL CORPORATIONS. Municipality may not prohibit condition as nuisance, unless so in fact.

Municipalities are without authority to prohibit or abate a condition upon the ground that it is a nuisance, unless in truth and in fact it be a nuisance.

HOLDEN J., dissenting.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH Chancellor.

Suit by Mrs. Sophie Desporte against the city of Biloxi. From a decree dismissing the bill, plaintiff appeals. Reversed, and judgment rendered.

Reversed.

F. W. Elmer and Mize & Mize, for appellant.

From the testimony, it will be seen that appellant has been in business at her present location for over twenty years and has built up a very valuable business with a net income to her of five thousand dollars a year; has built up from year to year the ground on which her plant is located by the use of shells; that her business is not per se a nuisance. Of course, some of the witnesses say that it could be conducted in such a way that it could be a nuisance, but this would be true of almost any business and the law is ample for the abatement of a nuisance if conditions became such that it was a nuisance. The chancellor found as a fact that it was not a nuisance. The most that can be said against appellant's place of business is that its removal is desired by some from an aesthetic point of view--that the buildings obstruct the view of the water, etc., but this would apply as well to the other buildings and businesses now along the water front not affected by this ordinance; and the court will not permit a person's business to be destroyed or interfered with just to gratify aesthetic sensibilities. See the case of Byrne v. Maryland Realty Company, L. R. A. 1917A, 1216, and very valuable note on the law governing this point. Fitzhugh v. City of Jackson, 97 So. 190, is decisive of our contention.

The court will observe that the city of Biloxi, to justify its action in passing the ordinance, declared by it that appellant's business was a nuisance, while the record will show that none of the evidence, either for appellee or appellant, disclosed it to be a nuisance, but, on the contrary, disclosed it was not a nuisance, and the court found it was not a nuisance, and a public body cannot by ordinance declare a legitimate business arbitrarily a nuisance; and of course, if the business ever became a nuisance, the law is ample to deal with it; but the evidence clearly shows that it is not a nuisance as now operated.

W. L. Guice, for appellee.

The testimony will convince the court that at all times during nine months of the year, right in the heart of the city of Biloxi, within a stone's throw of the principal hotel on the beach, there was operating a packing plant or slaughter house, because the oysters were opened or slaughtered, where from fifty to one hundred men were constantly employed and, where, at all times, there were great piles of raw oysters lying out in the open, having attached to them barnacles and other parasite shell-fish which have an earlier death than the oysters, attracting great swarms of flies and giving forth such an offensive odor that it could be noticed by people several hundred feet distant. That as these oysters were opened the juices from the oysters ran down and permeated the ground and particles of the meat being chipped off by the knives of the oyster openers would lie on the ground after the shells were taken away, attracting flies and giving out an odor. That this part of the beach was not only used by large numbers of citizens of Biloxi but that it is a common heritage of the people of the entire state as well, some of whom come here for pleasure and others who come here to regain their lost or injured health and who have a right to enjoy themselves while here as well as to be surrounded by such comforts as will admit of their profitably carrying out the purposes for which they were visiting Biloxi, that is, to enjoy themselves or to improve their health. Under such circumstances, with swarms of flies detaching themselves from this oyster house and invading the neighboring hotels and resident galleries, could the court say that these people were not annoyed or injured by a thing that was troublesome or annoying and which was both noxious, offensive and irritating?

The inevitable conclusion to be arrived at from the facts in this case is that, situated as this business was situated with reference to the surrounding neighborhood, it was in fact a nuisance and one which not only the city had a right to regulate but one whose nature placed upon the city a duty to regulate so as to remove it from that part of Biloxi, where its presence would prevent both the citizens and the visitors from utilizing to its fullest extent the beneficent advantages of climate possessed by Biloxi.

In the Fitzhugh case this ordinance would apply if a man opened a shop to sell chewing-gum, or to dispose of ice, or to sell magazines, or other literature, things which, in their very nature, could not be a disadvantage to the health or general welfare or morality or peace of the neighborhood. In the case at bar, ignoring the disagreeable features attached to this business with reference to its general situation, we are faced with a condition here which made it the absolute duty of the city to remove this business from such close proximity to such large numbers of persons as frequented this part of Biloxi. What may not be a nuisance at one place can be a nuisance at another. A bone-yard, where bones are collected on the outskirts of a town, in a sparsely settled neighborhood, would not be a nuisance per se. The same bone-yard moved into the center of a town within smelling distance of hundreds of people would be a nuisance of the most distressing and dangerous kind. "Some decisions hold that if the city declare the thing a nuisance, it is a nuisance." Bushnell v. C. B. & Q. R. R.. Co., 102 N.E. 765. Furthermore, in the construction of such ordinances it is the duty of the court to give great weight to the fact that same were deemed necessary by the governmental authorities and that they were passed with the view of promoting the general welfare of the municipality governed. The courts will not search out the particular conduct of any one business and endeavor to find something wrong, or some illegal power exercised by such ordinance but will give it reasonable construction and if any elements of necessity are shown for its passage will uphold it. Wh...