Ex parte O'Leary
| Decision Date | 28 November 1887 |
| Citation | 65 Miss. 80,3 So. 144 |
| Parties | Ex parte MATILDA O'LEARY |
| Court | Mississippi Supreme Court |
APPEAL from the decision of HON. T. J. WHARTON, Judge of the Ninth Judicial District, on habeas corpus.
Mrs. M O'Leary was arrested by the City Marshall of Jackson under a warrant issued for the violation of the following ordinance of said city:
Thereupon she sued out this writ of habeas corpus. Judgment was rendered remanding her to the custody of the City Marshall, and she appealed therefrom.
Reversed and prisoner discharged.
E. E Baldwin, for the appellant.
A municipality cannot declare a thing, or a class of things, to be nuisances, unless such are so per se. It is the province of a court to decide, upon due proof made, that the object is a nuisance.
Pieri v. Shieldsboro, 42 Miss. 493; Wm. Wreford v. The People, 14 Mich. 41; Babcock v. The City of Buffalo, 56 N.Y. 268; Mayor, etc., of Hudson v. Thorne et al., 7 Paige, (N. Y.), 261; Chicago v. Laflin et al., 49 Ill. 172; Welch v. Stowell, 2 Dougl. (Mich.), 332; Clark v. The Mayor of Syracuse, 13 Barb. (N. Y.), 32; Yates v. Milwaukee, 10 Wall. (U.S.), 497; Wood on Nuisances, S. 740, et seq., and notably, Quintini v. Bay St. Louis, 64 Miss. 483.
D.Shelton, for the city of Jackson.
The principles of law applicable to this case seem to be: That, by the charter of Jackson, the mayor and alderman can, by general ordinances, make a class of obnoxious things nuisances per se; but they cannot do that against things that are not obnoxious as a class. That the mayor and aldermen, as a corporate body politic, have no authority to try and to adjudge a particular thing a nuisance, or order its abatement; but that must be adjudicated on trial by the mayor or some other competent judicial tribunal; and no thing can be condemned as a nuisance unless there has been a violation of some law, municipal statute or common law. I think these principles are sustained by every pertinent case referred to by either adverse counsel or myself. Wood on Nuisances, 534-555, and cases there referred to.
The process by virtue of which the prisoner was...
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Mitchell v. City of Roswell.
...285 N.W. 301; but there are cases to the contrary; Comfort v. Kosciusko, 88 Miss. 611, 41 So. 268, 9 Ann.Cas. 178; Ex parte O'Leary, 65 Miss. 80, 3 So. 144, 7 Am.St.Rep. 640. There are numerous cases in which ordinances regulating the keeping of cattle within cities have been upheld, the pr......
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