Fitzhugh v. City of Jackson

• Decision Date: 02 July 1923
• Docket Number: 23265
• Citation: Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: FITZHUGH et al. v. CITY OF JACKSON et al

97 So. 190

132 Miss. 585

FITZHUGH et al. v. CITY OF JACKSON et al

No. 23265

Supreme Court of Mississippi

July 2, 1923

Division B

Suggestion of Error Overruled. July 21, 1923.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by J. L. Fitzhugh and others against the City of Jackson and others. From an order sustaining defendants' demurrer and dismissing the bill, plaintiffs appeal. Reversed and decree rendered.

Decree reversed.

Franklin & Easterling and Alexander & Alexander, for appellant.

The demurrer filed by the defendants raised the question that complainants had a perfect remedy at law by mandamus and it was argued in the court below that mandamus and not bill in equity for injunction was the proper mode of procedure for complainants. The rest of the demurrer asserts the validity of the ordinance in question. To our mind bill in equity under the facts set forth in the instant case is the proper mode of procedure and is the only mode whereby complainants could secure perfect and complete relief. We deem this proposition thoroughly and conclusively settled in this state. Certainly in cases of this kind such procedure is held by the weight of authority to be proper. The following cases we submit, are conclusive and overwhelming on the right to remedy by injunction. Quintini v. Bay of St. Louis, 64 Miss. 483, 1 So. 625, 60 Am. Rep. 62; Pieri v Shieldsboro, 42 Miss. 493; Floyd v. Adler, 96 Miss. 544, 51 So. 897; New Orleans Baseball & Amusement Co. v. City of New Orleans, 118 La. 228, 42 So. 784; 118 A. S. R. 366, and extensive note and citation of authorities thereunder. A long list of authorities are cited in support of the text to the note including decisions from Georgia, Illinois, Indiana, Maryland, New York, Pennsylvania, Missouri, and Texas. The following cases reported in the Trinity Series are cited: 68 A. S. R. 155; 33 Am. Rep. 239; 45 A S. R. 339; 47 A. S. R. 114; 29 Am Rep. 105; 51 A. S. R. 566; 33 Am. Rep. 239.

We come now to the validity vel non of the ordinance. A perusal of this ordinance, to our mind, will show a most thorough and complete disregard of our State and Federal Constitutions. To our mind it would be difficult to find any ordinance so totally unreasonable, arbitrary, and at variance with our theory and form of democratic government.

At the outset we desire to call the court's attention to certain fundamental principles to be considered in passing on the validity vel non of municipal ordinances. In the case of A. & V. R. R. Co. v. Turner (Miss.) 52 So. 261, this court held that municipalities act under limited power and must find their authority clearly given in the law, and when so found they must follow the law. It has been held that powers delegated to municipalities by the legislature are intended to be exercised in conformity to and consistent with the general laws of the state. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723; 131 A. S. R. 518.

Cities stand on equal footing with other private corporations in this respect. They have no powers except such as are delegated to them by the state, either expressly or by necessary implication, and there is no distinction in this respect between governmental powers and those of a private nature. Hazlehurst v. Mayes, 51 So. 890; Steitenroth v. Jackson, 54 So. 955; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 26 L. R. A. (N. S.), 1130. Municipalities get their power from legislative grant. Chapter 1440 of Hemingway's Code, is devoted exclusively to municipalities. Therein you will find their powers and their limitations. Any usurpation of power must be tested by the letter of the law granting life itself to the municipality. Section 5816 of Hemingway's Code, under the head of "Nuisances and Cognate Matters," gives to municipalities power to secure the general health of the municipality. Section 5826 of Hemingway's Code confers the power to make all needful police regulations necessary for the good order and peace of the municipality. There are other sections in the same chapter devoted to the particular subject of police regulations, but each power is specifically conferred by law and nothing is left to municipal discretion except within the limits pointed out by the constitutional authority.

Our supreme court in the case of Quintini v. Bay St. Louis, 64 Miss. 383, 1 So. 625, 60 Am. Rep. 62, held that a private dwelling house may not be declared a nuisance by the authority of the legislature simply because it might injure adjoining property by cutting off the breeze from, and the view of, the sea.

A case altogether on all fours with the case now before the court is that of Spann v. Dallas, 235 S.W. 513, reported in the 19 A. L. R. 1397. The Spann case, as the court will observe, refers to all the leading cases on this question and draws a distinction between the decisions passed upon, regarding police power. This is the last word on this subject. It clearly settles the proposition that legislative action is necessary before such broad sweeping laws or ordinances could be enacted by the municipality. Massachusetts had to have its Constitution amended in order to put this doctrine into effect, and we submit that before any such ordinance as the one here before the court can be effective, our own Constitution would have to be amended, and under the sanction of such amendment, a legislative act be passed vesting such power and authority in a municipal government. But such an amendment has not been made to our Constitution, and we hope it never will. For the leading cases dealing with this subject we refer the court to the annotations under 19 A. L. R., pages 1395 to 1399. See also Willison v. Cooke, 54 Colo. 320, 44 L. R. A. (N. S.), 1030, 130 P. 828.

When we first read this ordinance we were impressed with the absurdity of the idea that any man should be limited in the use of his property by the whim or caprice of the owners in a circle eight hundred feet in diameter from the center of the lot in question, but to cap the climax, by section 4 of said ordinance, it is provided that, "all structures constructed or altered to violate the terms hereof shall be nuisances, and be removed by the police department of the city." If this ordinance is valid, then the mayor and board of aldermen of every petty village in the state possess the same power and can at will prohibit any new building for business purposes, or any new business being established in such town or village, and thereby solemnly ordain, declare and perpetuate every line of business into a permanent monopoly.

In connection with the foregoing the court will recall the O'Leary case, 65 Miss. 80, 3 So. 144, 7 A. S. R. 640, and the Comfort case, 88 Miss. 611, 41 So. 269. In the O'Leary case that celebrated jurist, Judge CAMPBELL, in dealing with an ordinance under which Mrs. O'Leary was convicted which declared that all hog pens or lots used as such "are hereby declared a nuisance and shall be abated," says: "It is too broad and sweeping in its provisions and is invalid. Hogs in the city of Jackson, may or may not be a nuisance, and any ordinance on such should be framed accordingly. Wood on Nuisances, section 518." Likewise, in Johnson v. Town of Philadelphia, 94 Miss. 34, 47 So. 526, 19 L. R. A. (N. S.), 637, this court, speaking through Judge MAYES, held that a skating rink is not a nuisance per se and cannot be made so by municipal ordinance. See Freund on Police Power, sections 63 and 158. The absurdity of the ordinance in question is magnified by the provision that "all structures constructed or altered to violate the terms hereof shall be nuisances and to be removed by the police department of the city." It can thus be seen that the city authorities by the ordinance in question have attempted to declare any building constructed or altered contrary to the terms of that ordinance public nuisances per se and to be summarily destroyed. This could not be done by the legislature itself under the decisions of this court, much less by a municipality which draws all of its powers from charters conferred by the legislature.

Green & Green and W. E. Morse, for appellee.

REMEDY AT LAW ADEQUATE. The failure of the city commissioners to issue the building permit applied for by the appellant, was and is, if failure it be at all, a refusal to perform a duty in virtue of their office wherefor mandamus was and is the exclusive remedy. The chancellor so held, and his holding is so manifestly correct upon this point that we, with deference, hesitate to discuss the very fundamental Constitutional question involved in the construction of the ordinance under the well-settled rule that no one has a right to have a constitutional question determined unless it is requisite for the protection of his rights. Such is not the case here. Perry v. Lake, 54 Miss. 542, should control here. See also McCutcheon v. Blanton, 59 Miss. 116.

ZONING A NECESSARY EXERCISE OF POLICE POWER. This cause was presented upon application of appellant for a mandatory injunction seeking thereby the avoidance of the zoning ordinance of the city of Jackson.

The property is urban, located in a thickly settled residential area upon one of the choicest residence streets in Jackson, and the business there sought to be conducted is isolated from the business district, rather from police supervision, located in a neighborhood where its presence is not desired. Does the police power reach it?

The business sought to be conducted is that of a corner grocery store, vending commodities deleterious to child life, but displayed with as much attraction as possible, to inveigle the small purchasers into parting with their nickles. In short, candy, cakes, drinks, are a part of the stock in trade and the...