Quintini v. City of Bay St. Louis

• Decision Date: 07 March 1887
• Citation: Quintini v. City of Bay St. Louis, 64 Miss. 483, 1 So. 625 (Miss. 1887)
• Court: Mississippi Supreme Court
• Parties: ANNIE QUINTINI v. BOARD OF MAYOR AND ALDERMEN AND MARSHAL OF BAY ST. LOUIS

1 So. 625

64 Miss. 483

ANNIE QUINTINI v. BOARD OF MAYOR AND ALDERMEN AND MARSHAL OF BAY ST. LOUIS

Supreme Court of Mississippi

March 7, 1887

APPEAL from the Chancery Court of Hancock County, HON. SYLVANUS EVANS, Chancellor.

The case is stated in the opinion of the court.

Decree reversed and cause remanded.

W. P. &amp J. B. Harris, for the appellant.

Can it be said that the legislature may give to a municipal body the power to prevent the enjoyment of a lot of ground by the owner by putting up a house on it to live in? What public right is abused or infringed by such use? It is a most unheard-of assumption that the right to put up a dwelling on one's own ground can be taken away. The use is of all uses the most lawful. It is not a common. It is not a public highway. It does not endanger health, property, or life. It would be a prohibition to use the property for any other purpose to which a town-lot might be used, so that the rights of property owners in towns or cities could be utterly destroyed. The act of 1882 did not give a power simply over erections for improper or hurtful uses, but to prevent the use of buildings for any purpose.

Is it conceivable that because in a city I happen to have a house fronting toward the shore, that an owner of ground between me and the sea cannot build on it, that people on a back street may have the houses between them and the sea torn down?

A dwelling-house is not a nuisance, it matters not which way the wind blows. A market-house for meats has never been held to be a nuisance, though a slaughter-pen may be. The city may limit the places where animals may be slaughtered and prevent the deposit of bones or offal within the inhabited parts. Sanitary regulations may embrace private sewerage and public sewerage, and even regulate privies, but to condemn the use of private property for dwellings because they must have water-closets is the climax of absurdity.

The legislature may give power to declare saloons a nuisance, as they affect public morality. It may suppress them altogether so it may curtail the imperfect right or custom of allowing cattle to roam at large, because this is not essential to their use. Certain trades may be nuisances in crowded cities--noxious trades. So trades not noxious but attended with great and painful noises, such as to affect materially the comfort not of one nervous or fantastic man or woman but a number of neighbors of the common sort, as Mr. Knight Bruce would say, but it will be in vain to search for an instance where a dwelling-house has been declared a nuisance because it was a house, on a private lot in a city.

If public taste is to be consulted, if the aspect would be more ornate by dedicating private property to the public for these objects, the city must seek it through the right of eminent domain or by purchase. It can acquire no power from any source to gratify these fancies by declaring innocent uses of property a nuisance. 1 Dillon on Mun. Corp. 383, § 379.

Posey &amp Bowers, for the appellees.

1. Appellant maintains that she has a right to build her market upon the beach and that the ordinance in question contravenes her right. On this point we specially call the attention of the court to the case of Green v. Mayor, etc., reported in 6 Georgia Reports 1 and 12. The court there says.

"The plaintiff's rice, as we have shown, was planted in open violation of a public law of the city. * * * Can he be said to have a vested right in that which is unlawful, and prohibited by competent authority?" This question, so significantly propounded, seems to contain its own answer.

The ordinance there attacked was one prohibiting the growing of rice within the corporate limits of the city of Savannah. The court held it good and in so doing says:

"The plaintiff in error is not deprived of his land for the use of the public; he has not been evicted from it; he is only restrained from using it in a particular manner because such particular use operates as a nuisance and is destructive of public health." Green v. Mayor of Savannah, 6 Georgia 13. To the same effect see Green v. Lake, 60 Miss. 451; Alexander v. Mayor, 54 Miss. 659; 4 Wait's A. & D. 618; Ferguson v. Selma, 43 Ala. 398.

But granting, for the sake of argument, that appellant had a right that is contravened by this ordinance, was it not competent to do even that when expressly authorized by statute? Mr. Dillon so lays down the law. See 1 Dillon on Mun. Corp., 3 ed., § 325; Ib., § 328; Ib., § 375.

The legislature in express terms declares that buildings such as appellant is erecting (or, in fact, has erected while protected by this injunction) shall be nuisances. That is conclusive of one point. The legislature manifestly had the power to make such a declaration, and that declaration stamps such buildings as nuisances in the prohibited limits.

Even under the general police power, this municipal corporation has the power to regulate markets and assign limits to them as affecting the public health, convenience, and comfort. Such powers have always been upheld as general and implied police powers.

2. But we come now to the minor question, whether upon the pleadings and evidence the injunction was properly dissolved.

We say that even on the face of the bill, if demurred to, the injunction should have been dissolved. The bill prays for an injunction against an inferior court, the mayor's court of Bay St. Louis, to restrain it from exercising its lawful jurisdiction, the trial of persons charged with violating an ordinance of the city.

A threat by an officer of the law that he will arrest a person if he persists in violating the law and bringing the alleged offender to trial before a court, cannot possibly be a ground for injunction.

OPINION

COOPER, C. J.

The appellant exhibited her bill in the Chancery Court of Hancock County to enjoin the board of mayor and aldermen of the town of Bay St. Louis from interference with her in the erection of a residence and market-house on a certain lot in that town of which she is the owner.

She avers the fact to be that on the lot there has existed a market-house for more than forty years, that she bought it for the purpose of keeping a market-house thereon, but finding the building old and decayed she took it down, and at considerable expense has prepared it for another larger and better building, and was about to erect the same when the marshal of the town, acting under an ordinance of the town, forbade her from proceeding with the building, and threatened to arrest her and her workmen whereby they were intimidated, and she has been unable to procure them to proceed with her improvements.

The municipal authorities, answering the bill, admit the facts charged by the complainant, and insist upon the validity of the ordinance by which buildings on lots situated as complainant's lot is are prohibited.

Reliance is placed by the defendants upon the peculiar location and character of the town as related to the lots referred to in the ordinance, and give this description of what is termed by its charter the "city of Bay St. Louis."

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