Morris v. City of Columbia

• Decision Date: 06 February 1939
• Docket Number: 33413
• Citation: 186 So. 292,184 Miss. 342
• Court: Mississippi Supreme Court
• Parties: MORRIS et. al. v. CITY OF COLUMBIA

186 So. 292

184 Miss. 342

MORRIS et. al. v. CITY OF COLUMBIA

No. 33413

Supreme Court of Mississippi, Division A

February 6, 1939

APPEAL from the chancery court of Marion county HON. BEN STEVENS Chancellor.

Suit by the City of Columbia against Van M. Morris and another for an injunction. From an adverse decree, the defendants appeal. Decree reversed, and bill dismissed in part and remanded.

Reversed, bill dismissed in part and remanded.

R. H Dale, of Columbia, for appellants.

This court has frequently held that a court of equity will not enjoin the mere apprehension of an injury, but that there must be some immediate and impending danger of an injury.

Edgell v. Clark, 76 Miss. 66; Griffith's Chancery Practice, par 436.

I submit that appellee fell short in producing evidence to substantiate the allegations of its bill, as to the appellant being a notorious bootlegger or that he was suffering from syphilis.

The purpose of Section 1536 of the Code of 1930 giving to the patient the privilege stated, cannot be taken away from the patient by showing that the physician who examined the patient was not the physician of the patient. In other words appellant, Jackie Williamson, cannot be denied the privilege of this statute by showing that the physician who made the examination was not his physician, but a physician of the Veterans Administration.

Haworth v. Kansas City R. R. Co., 94 Mo.App. --; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320.

The law will not permit a party to make a memorandum of a fact and introduce it as evidence of that fact when he is by statute denied the right to testify.

10 R. C. L. 341; Post v. Kenerson, 72, Vt. 341, 82. A. S. R. 948; Wells v. Shipp, 1 Walk. (Miss.) 353; Gueen v. Hepburn, 7 Cranch (U.S.) 290; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 123 Am. Rep. 415; 28 R. C. L. 534, par. 123.

If the facts as alleged in the bill were true, that would not constitute a nuisance and the erection of the building on the lots in question would not constitute a nuisance, and if no nuisance existed at the time of the filing of the bill of complaint and securing the temporary writ of injunction, then the writ of injunction should have been dissolved on the motion made for that purpose. It would have been sufficient time to have filed the bill after the building was completed and after Williamson began its operation in such a manner as to cause the same to be a nuisance, but to hold that an injunction could issue for the mere apprehension that a nuisance might exist sometimes in the future is not sufficient.

The statute authorizing municipalities to pass a zoning law, specifically sets out the manner and method of procedure. Section 2476 of the Code of 1930 specifically states that the regulations shall be made in accordance with a comprehensive plan, and then sets out the purpose for which it was designed. This section contemplated that before such ordinances should be adopted, and before any notice was given of a public hearing in relation thereto, that the Board of Aldermen must formulate plans which consisted of regulations, restrictions and boundaries and making a map Or plat showing the location of the various districts and the regulations restrictions and boundaries of such districts, and this must be reduced to writing, and filed with the clerk of the Board of Aldermen before the notice is given for the public hearing in relation thereto.

The purpose of the notice of a meeting in relation to such an ordinance is to give the citizens of the town an opportunity to appear and see whether or not they would be affected by the passage of such an ordinance, and to give them an opportunity to object to the passage of such an ordinance, and ask that the plans in regard thereto be changed, so that the districts would be equal and uniform, and that the buildings to be erected in each district should be uniform for each class or kind of building throughout each district, so as to get the best results from the passage of such a zoning ordinance. The procedure laid down for the passage of such an ordinance was not followed in the least, and for that reason the ordinance in question is void and of no effect, and the Chancellor was correct in so holding.

When a statute provides a mode of procedure for municipal councils designed to protect the citizens and taxpayers from hasty and ill considered legislation or to enforce publicity in the actions of the council the mode of procedure thus prescribed must be strictly observed. Such statutory provisions constitute conditions precedent, and unless an ordinance or resolution is adopted in compliance with the conditions and directions thus prescribed it will have no force.

19 R. C. L. 888, par. 188.

If the ordinance in question was void, then the erection of the building in question would not be unlawful, and an injunction could not issue restraining and enjoining its erection unless the erection of said building would constitute a nuisance.

Building Commission v. Kunin, Ann. Cas. 1916C, 963; Rochester v. Walters, Ann Cas. 1916C, 965; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446.

The erection of the building in question would not, within itself, constitute a nuisance, and, therefore, the court had no right to enjoin its erection on the ground that the occupancy of the building and its use would be detrimental to the interest and welfare of the school children and the public generally, and, therefore, a threatened nuisance.

Hall & Hall, of Columbia, for appellee.

Appellee's zoning ordinance was legally adopted and the trial court was not warranted in declaring it void.

Section 2476, Code of 1930; State v. Traylor, 56 So. 521, 100 Miss. 544; City of Hazelhurst v. Mayes, 51 So. 890, 96 Miss. 656; Hamner v. Yazoo Delta Lbr. Co., 56 So. 466, 100 Miss. 349; Section 2479, Code of 1930; 15 C. J., pages 832-834, sec. 150; Weston v. Hancock County, 98 Miss. 800, 54 So. 307.

This court has already upheld the validity and constitutionality of municipal zoning ordinances adopted under authority of the Standard State Zoning Law.

Jackson v. McPherson, 138 So. 604, 162 Miss. 164; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; 54 A.L.R. 1030.

It has been held that statutes conferring upon the municipal corporations the power to enact zoning regulations should be liberally construed.

43 C. J. 334; Utica v. Hanna, 202 A.D. 610, 195 N.Y.S. 225.

The federal statute created the Veterans Administration, formerly known as the United States Veterans Bureau, and made provision for the keeping of certain records and files and then provided that these records and files should be deemed confidential and privileged and that no disclosure thereof should be made except under certain enumerated conditions, among which conditions was a provision to the effect that these records, reports and files should not be deemed confidential and privileged in any judicial proceeding when in the judgment of the Director of the Veterans Administration a disclosure should be deemed necessary and proper.

38 U.S.C. A., sec. 456, par. (c); 22. C. J. 791, sec. 901; Long v. U.S. 59 F.2d 602.

The Chancellor was warranted in decreeing that appellant Jackie Williamson is a syphilitic regardless of the competency or incompetency of the testimony in question.

Section 380, Code of 1930; Griffith's Chancery Practice, 353, sec. 348.

The injunction was properly granted.

The appellants contend that the city should stand by and let the building be erected and let the business be put in operation in charge of a bootlegger and syphilitic under the very shadow of its high school, before any action could or should be taken. If our contention with reference to the validity of the zoning law, as argued under the first division of this brief, is well taken, then of course appellant's point now under consideration does not merit any further answer, but, even if our position as to the zoning law is incorrect, still we submit that the Chancellor was abundantly warranted in granting the injunction under the facts in this case. Judge GRIFFITH says that injunction will lie when "there is a reasonable probability that an injury will occur" and in this case we feel that there is certainly such a reasonable probability that the Chancellor was fully warranted in granting the injunction and putting an end to the whole nauseating mess before it went any further.

For many years the rule has been followed that courts will judicially know that syphilis is a serious disease and may be transmitted to a person without actually engaging in sexual intercourse with a syphilitic.

23 C. J. 148, sec. 1969; Metropolitan Life Ins. Co. v. Goodman, 10 Ala. 446, 65 So. 449; Cecil's "A Textbook of Medicine, " (4 Ed.), pages 362-363.

The Mississippi State Board of Health has recognized the danger of permitting a person...