Town of Cuba v. Mississippi Cotton Oil Co.

• Decision Date: 20 April 1907
• Parties: TOWN OF CUBA v. MISSISSIPPI COTTON OIL CO. TOWN OF CUBA v. EAGLE COTTON OIL CO. TOWN OF CUBA v. MERIDIAN FERTILIZER FACTORY.
• Court: Alabama Supreme Court

43 So. 706

150 Ala. 259

TOWN OF CUBA v. MISSISSIPPI COTTON OIL CO.

TOWN OF CUBA v. EAGLE COTTON OIL CO.

TOWN OF CUBA v. MERIDIAN FERTILIZER FACTORY.

Supreme Court of Alabama

April 20, 1907

Appeal from Chancery Court, Sumter County; Thomas H. Smith Chancellor.

Suits by the Mississippi Cotton Oil Company, by the Eagle Cotton Oil Company, and by the Meridian Fertilizer Factory against the town of Cuba. From a decree for complainants in each case, defendant appeals. Affirmed.

Patton & Patton, for appellant.

C.J Brockaway, for appellees.

DENSON J.

These causes originated in the chancery court of Sumter county. They all involve the same legal questions, and were in that court submitted together and determined on the same evidence. From a decree in favor of the complainant, in each case, the respondent appealed. The three appeals are here presented in a single record, and we shall determine all of them in one opinion.

Each of the complainants is a corporation organized under the laws of the state of Mississippi, with its principal place of business in the city of Meridian, in that state, and is engaged in manufacturing oil and other products from cotton seed. In the successful operation of the business it is necessary to purchase large quantities of seed, and they purchase them in towns and villages located on the lines of railroads that run into the city of Meridian. In such towns and villages they have erected houses on the rights of way near the railroad stations, in which to store the seed they purchase to await shipment, and from which the seed are loaded into cars for transportation. In the town of Cuba, in Sumter county, each of the complainants had such a house. The town of Cuba passed an ordinance declaring the seedhouses of complainants a nuisance and ordering their removal on or before October 10th, 1905. For convenience we here set out the ordinance as it appears in the record. It is in the following language:

"Ordinance 39.

"Section 1. Be it ordained by the mayor and council of Cuba, that the cotton seed houses and the warehouses located on the A. G. S. R. R. Company's right of way on the north side of tracks and west of depot are hereby declared a nuisance, and the owners of said houses are hereby ordered to remove them on or before October 10th, 1905.

"Sec. 2. Be it further ordained that, should any of said owners fail or refuse to remove said houses within the time above specified, the said town of Cuba shall have the right to have the houses torn down and removed at the expense of the respective owners.

"Sec. 3. Be it further ordained that any person found guilty of violating section 1 of this ordinance may be fined not more than one hundred dollars in addition to the penalty hereinabove in section 2 of this ordinance. This ordinance shall go into effect from and after its passage; the welfare of the town requiring it."

Each of the complainants filed its bill against the town to prevent the enforcement of the ordinance, alleging therein that the ordinance is arbitrary and unreasonable, and that its enforcement will result in irreparable injury to the business of the complainant. It is averred in the bills that the houses are neither nuisances per se nor by the manner in which they are conducted and used. The prayer of the bills is for an injunction to prevent the municipality from interfering with the employés of the complainants in storing seed in the houses, and to prevent the enforcement of the ordinance in respect to the removal of the houses.

A court of equity does not generally look with favor on bills to prevent the enforcement of municipal ordinances, nor concern itself with irregularities in municipal procedure. "If, however, some other matter of equitable cognizance becomes entangled with or is the outcome of such irregularities, courts of equity do not hesitate to intervene. For instance, if an irregular municipal proceeding will lead to an injury which is otherwise irreparable, it will be restrained." Port of Mobile v. L. & N. R. R. Co., 84 Ala. 115, 4 So. 106, 5 Am. St. Rep. 342; Montgomery v. L. & N. R. R. Co., 84 Ala. 127, 4 So. 626; Morris Canal & Bkg. Co. v. Jersey City, 12 N. J. Eq. 252. If the town has no power to declare the houses a nuisance and have them abated in the method adopted (as the chancellor held it does not), then a demolition of the buildings, as shown by the pleadings and evidence, would result in irreparable injury to the complainants, in that their lack of a place for housing seed would make it impracticable and unadvisable for them to purchase seed in large quantities, or, at least, in larger quantities than they could get quick and ready shipment for, thus cutting off the supply of seed to the mills, and, as a consequence, reducing their business and profits. These considerations, in connection with the demolition of the buildings, we think bring these cases within the pale of irreparable injury as a distinct head of equity jurisdiction. Authorities supra. See, also, Coast Company v. Mayor of Spring Lake, 58 N. J. Eq. 586, 47 A. 1131, 51 L. R. A. 657. As shown by the answer to the bills, the city authorities, in passing the ordinance, proceeded upon the theory that the houses, from the manner in which they were used and conducted, were nuisances, and a menace to the health of the inhabitants of the city. But the ordinance on its face does not take into account any such considerations, but premptorily declares the houses a nuisance.

In the charter of Cuba the power of the municipality in respect to the abatement of nuisances, is found couched in the following language: "* * * The mayor and council of the town of Cuba shall, within the limitations of this act, have power by ordinances * * * to prevent and remove all nuisances at the expense of the owner or person causing the same or upon whose premises the same may be found." Loc. Acts 1900-01, p. 2515. Speaking of the power to prevent and remove nuisances, Mr. Dillon, in his valuable work on Municipal Corporations (2d Ed., p. 308), says: "This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance. Conferred in general terms, it cannot be taken to authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation, or use is not such." In section 312 of the same volume the author says: "But, under the power to abate nuisances, property lawfully erected and existing, or a house which is only a nuisance because occupied by a business which is such, cannot be destroyed or demolished. The public can proceed by indictment, or the business carried on in the house suppressed." In Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984, speaking on this subject in a case where a city, under authority to prevent and restrain encroachments on rivers running through it, commenced summary proceedings to remove a private wharf, the Supreme Court of the United States, through Miller, J., said: "But the mere declaration by the city council that a certain structure was an encroachment or obstruction did not make it so; nor could such declaration make it a nuisance, unless it in fact had that character. It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws either of the city or of the state within which a given structure can be shown to be a nuisance, can, by the mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property in the city at the uncontrolled will of the temporary local authorities."

On the same subject Wood on the Law of Nuisances says: "Nor does the power to abate nuisances warrant the destruction of valuable property which was lawfully erected, or anything which was erected by lawful authority. It would, indeed, be a dangerous power to repose in municipal corporations to permit them to

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