Parker v. City of Fairmont

• Decision Date: 23 September 1913
• Citation: Parker v. City of Fairmont, 72 W.Va. 688, 79 S.E. 660 (W. Va. 1913)
• Parties: PARKER v. CITY OF FAIRMONT.
• Court: West Virginia Supreme Court

79 S.E. 660

72 W.Va. 688

PARKER v. CITY OF FAIRMONT.

Supreme Court of Appeals of West Virginia.

September 23, 1913

Submitted June 11, 1912.

Syllabus by the Court.

Under the provision of the charter of the city of Fairmont, same as Code 1906, ch. 47, sec. 28, that "the council shall have power to abate or cause to be abated anything which, in the opinion of a majority of the whole council, shall be a nuisance," the council may abate only that as a nuisance which is recognized as such per se, or branded as such by lawful statute or ordinance.

The production and emission of smoke from the plant of a lawful business cannot be abated by the city of Fairmont under its mere charter powers to abate nuisances and to prevent injury and annoyance, in the absence of a reasonable ordinance applicable alike to all of a class, making such production and emission unlawful.

Equity will restrain a municipal corporation from proceeding under illegal and invalid order or resolution to remove an alleged nuisance, where private rights are unlawfully encroached upon and irreparable injury will ensue.

Appeal from Circuit Court, Marion County.

Action by Richard F. Parker against the City of Fairmont.From judgment for defendant, plaintiff appeals.Reversed.

Harry Shaw and French McCray, both of Fairmont, and Chas. E. Hogg of Morgantown, for appellant.

Walter R. Haggerty and Tusca Morris, both of Fairmont, for appellee.

ROBINSON J.

Parker was summoned before the municipal council of the city of Fairmont to show cause why his dye works, located in a residence section of that city, should not be declared a nuisance by reason of the coal smoke and soot produced and emitted therefrom.Upon a hearing of the matter the dye works was declared to be such a nuisance and the mayor was ordered to proceed to abate the same.Thereupon Parker by this suit sought to enjoin the city authorities from proceeding further toward interfering with his business, on the ground that the proposed interference was without warrant of law and would irreparably damage him.He obtained a preliminary injunction but upon a hearing the same was dissolved and his bill dismissed.From the decree in the premises he has appealed.

The city authorities claim power to make the order which they did under provisions of the city charter and an ordinance of the city, which are as follows: "The council shall have power within the said city *** to prevent injury or annoyance to the public or individuals from anything dangerous offensive or unwholesome; *** to abate or cause to be abated anything which, in the opinion of a majority of the whole council, shall be a nuisance."Acts 1899, ch. 11."Whenever any out-house, privy, hog-pen, stable or other building within said city shall be by a majority of the whole council declared a nuisance or injurious to the health or comfort of any person or persons, the owner, agent, or lessee of the property shall be notified by the mayor to abate the nuisance by removal or keeping in proper order such building and in case of refusal or neglect to comply with such notice, the mayor shall direct the proper officer of the city to have the same put in order or removed and report his proceeding and costs incurred by him to the mayor," etc.Municipal Code of the City of Fairmont, ch. 27, sec. 36.

Plaintiff's business--his use of the premises--is not per se a nuisance.It is a lawful one.The provisions which we have quoted do not brand it as unlawful.Those provisions do not forbid smoke and soot from being produced and emitted.It would seem that under the charter power "to prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome," the city authorities could make a just and reasonable regulation as to the production and emission of smoke and soot, applicable to all alike of the same class and not merely directed toward the property and business of one person.But we find no power in the city to strike directly at plaintiff alone.Plainly the ordinance quoted as relied upon does not apply to the production and emission of smoke and soot.It is an ordinance most apparently directed wholly against buildings of a very distinct class.Nor can the granted power "to abate or cause to be abated anything which, in the opinion of a majority of the whole council shall be a nuisance," be properly viewed as authorizing the council to single out and condemn as to any sole individual that which is ordinarily lawful.That provision can not rightly be construed to mean that the council may determine that to be a nuisance which is not such by the common law, by statute, or by ordinance.It gives power to abate nuisances, not to determine what shall be considered nuisances.It plainly relates to nuisances per se, those primarily branded as such by the law.Dillon on Municipal Corporations(5th Ed.) secs. 690, 694;St. Paul v. Gilfillan,36 Minn. 298, 31 N.W. 49.The charter provision grants a police power of...