McCrowell v. Mayor

• Decision Date: 30 September 1880
• Citation: 73 Tenn. 685
• Parties: JOHN MCCROWELL v. MAYOR AND ALDERMEN OF BRISTOL, GEORGE C. PILE et al.
• Court: Tennessee Supreme Court

73 Tenn. 685

JOHN MCCROWELL

v.MAYOR AND ALDERMEN OF BRISTOL, GEORGE C. PILE et al.

Supreme Court of Tennessee.

September Term, 1880.

FROM SULLIVAN.

Appeal in error from the Law Court at Bristol. NEWTON HACKER, J.

VANCE & WOOD, BUTLER & MCDOWELL, W. V. DEADERICK and YORK & FULKERSON for Crowell.

W. D. MCCROSKEY, S. H. LEA and N. M. TAYLOR for Mayor and Aldermen.

MCFARLAND, J., delivered the opinion of the court.

This action is by McCrowell against the mayor and aldermen of the town of Bristol and George C. Pile and five others. The declaration is in substance, that the plaintiff was the owner of a house and lot on Main street in the town of Bristol, which he occupied as a family residence. While so occupying his residence one John W. Jett procured the mayor and aldermen of the town to issue a license to him to retail spirituous liquors within the limits of said town during the year 1879. Whereupon said Jett erected a “grocery or saloon” on Main street of said town, adjoining the plaintiff's residence, and the said Jett, in the management and conduct of said saloon and the sale of liquors therein, so conducted the same that he permitted violent, obscene and disorderly conduct in and around his said grocery and in the street in front and in the lot in rear thereof, to the great annoyance of the plaintiff and his family, so much so that he was compelled to remove from his said residence; and he further avers that he made repeated applications and complaints to said board of mayor and aldermen of said disorderly conduct and requested them to abate said saloon or grocery as a nuisance, and offered himself to prosecute any process for that purpose, but said mayor and aldermen, although they thus had full notice, failed and neglected to abate the nuisance, but knowingly permitted said Jett to continue the same, and the said George C. Pile and the other individuals sued were present aiding and abetting in the issuance of said license and the permission and continuance of said nuisance.

A demurrer was filed by the defendants and sustained by the court and the plaintiff has appealed. There can hardly be any doubt that it was properly sustained as to the individuals sued. To aid and abet another in procuring a license to retail spirituous liquors is no violation of law, and it certainly cannot be maintained that a civil action will lie at the suit of any individual against such aiders and abettors in the event the retailer subsequently permits disorderly conduct in his house. It is not shown how said defendants aided and abetted in the permission and continuance of the nuisance; it is not averred that they were themselves guilty of the disorderly conduct. It is intimated in argument that said defendants constitute the board of mayor and aldermen, or part of them; if so, it is clear that their acts in that capacity, so far as there is any allegation against them, will not render them liable; but it is not averred that they constituted the board of mayor and aldermen. But the question remains as to the action against the corporation as such.

It is settled in this State that an indictment may be maintained against a municipal corporation for permitting a street to be so out of repair as to become a public nuisance. Barksdale v. Mayor, 5 Hum., 153; M. & A. of Chattanooga v. The State, 5 Sneed, 578;The State v. M. & A. of Murfreesboro, 11 Hum., 217; and also that the mayor and aldermen are individually liable to indictment. Hill v. The State, 4 Sneed, 443. And also that an indictment may be maintained for permitting a slaughter-house within the corporate limits of the town-- The State v. Corporation of Shelbyville, 4 Sneed, 177--it being, as it was held, the duty and...