Johnson v. Town of Philadelphia

• Decision Date: 24 November 1908
• Docket Number: 13,361
• Citation: 47 So. 526,94 Miss. 34
• Court: Mississippi Supreme Court
• Parties: ABNER L. JOHNSON v. TOWN OF PHILADELPHIA

47 So. 526

94 Miss. 34

ABNER L. JOHNSON v. TOWN OF PHILADELPHIA

No. 13,361

Supreme Court of Mississippi

November 24, 1908

FROM the chancery court of Neshoba county, HON. JAMES F. McCOOL Chancellor.

Johnson appellant, was complainant in the court below; the town of Philadelphia was defendant there. The object of the suit was to enjoin the enforcement of an ordinance requiring skating rinks to close at six o'clock in the afternoon or evening and remain closed until six o'clock the following morning. From a decree in defendant's favor the complainant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

G. E Wilson and E. S. Richardson, for appellant.

It is not contended by appellee in this cause by proof that the operation of the said skating rink was a nuisance. The proof is overwhelming that the rink was orderly conducted; that it was attended by the best people of Philadelphia for their pleasure, recreation and physical benefit.

The case of Levin v. Goodwin, 114 Am. St. Rep. 616, is in many ways similar to the one at bar. Suit was instituted to enjoin the operation of a bowling alley in the second story of a building adjoining that occupied by complainant. Defendant pleaded a license granted him by the board of police and the lower court held that the plaintiff would have substantial relief if the operation of the alleys should be discontinued at night between the hours of ten o'clock p m. and six o'clock a. m. This judgment was reversed and the appellate court said: "A license to keep a bowling alley granted by municipal authorities under power conferred on them by the legislature, protects the person licensed, though such maintenance by the making of noises operates as a substantial disturbance of the occupants of adjacent property and results in their pecuniary loss, if the bowling alley is constructed and operated in the usual manner and with the usual safeguards. The operation of a bowling alley cannot by the court, be restrained to certain hours of the night to relieve occupants of adjacent property from noise, if such alleys have been licensed by the municipal authorities, acting under a power conferred on them by the statute." Further the court says: "The judge of the superior court seems to have based his finding in favor of the plaintiff upon the ground that the plaintiff would have substantial relief from further disturbance and loss if the operation of the alleys should be discontinued at night, between the hours of ten o'clock p. m. and six o'clock a. m. This may be true, but the court had no authority to change the hours named in the license, or to offer the plaintiff relief so long as the conditions of the license were complied with." In the case at bar appellant has secured from appellee a license for the operation of his business, without any modification, and, according to the proof in the case, he had done nothing which his license did not authorize him to do under any reasonable construction of the contract. The license had only been granted him a few days prior to the passage of the ordinance in question, which in effect was to suppress the business of appellant, since it is proven in this case and a matter of common knowledge that to prohibit the operation of a skating rink in a small town after six o'clock p. m. amounts to suppression.

C. L. Dobbs, for appellee.

Police power is said to be "that inherent sovereignty which it is the right and the duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires." 8 Cyc. 863; 18 Am. & Eng. Ency. of Law (2d ed.) 739.

Municipalities have the right to control and regulate places of amusement, hawkers, pedlers, locations of livery stables, market houses, and in fact anything that in any way interferes with the public convenience, welfare, safety, morals, health or expediency. In State v. Pamperin, 42 Minn. 320, billiard rooms and bowling alleys are expressly included. 15 Am. & Eng. Ency. of Law (2d ed.) 1181. In a number of cases cited in 15 Am. & Eng. Ency. of Law (2d ed.) 1188, note 2, it is held beyond question that under this general welfare provision of our law it was within the authority and jurisdiction of the board of aldermen to order saloons and other like institutions, even restaurants, to be closed at certain hours.

The present court at its last term in our humble judgment, has forever settled this case in the case of Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, wherein it was held that while a municipality might not have the right to prohibit the actual operation of any business which had been licensed, yet it had full power to regulate the same.

May, Flowers & Whitfield, on the same side.

The question involved is answered conclusively and settled beyond all question in this state by Code 1906, § 3340, which says that "the mayor and board of aldermen shall have the power to regulate, suppress and impose a privilege tax on all * * * skating rinks," etc.

The meaning of this section is plain. The statute speaks for itself. It says in plain and simple words that the mayor and board of aldermen shall have power to regulate, suppress * * * pool rooms * * * skating rinks, etc.

The ordinance is one, the purposes of which is merely to regulate, and not to suppress, skating rinks and pool rooms in the town of Philadelphia. The meeting of the board was regular; the ordinance was passed according to the law prescribed for the passage of ordinances and to our minds it must stand. Certainly there can be no question as to the right of the board...