Town of Greensboro v. Ehrenreich

• Decision Date: 11 July 1887
• Parties: TOWN OF GREENSBORO v. EHRENREICH.
• Court: Alabama Supreme Court

2 So. 725

80 Ala. 579

TOWN OF GREENSBORO v. EHRENREICH.

Supreme Court of Alabama

July 11, 1887

Appeal from circuit court, Hale county.

Prosecution for violation of town ordinance against dealing in second-hand clothing.

In this case Jacob Ehrenreich, the defendant below, was charged before the mayor's court of the town of Greensboro with the violation of a certain ordinance of said town, hereafter set forth in full, and was convicted. From this conviction he appealed to the circuit court, where he demurred to the complaint and ordinance. His demurrer was sustained, and the town appeals.

"Ordinance 8. Whereas, it has been officially resolved and recommended by the health officers of Hale county, and all the physicians, members of the board of health, resident in the town of Greensboro, that the bringing into this town and selling, or offering for sale, second-hand or cast-off clothing, blankets, bedding, and bed-clothes from abroad, is dangerous to the health of this community, therefore, (1) be it ordained by the mayor and council of said municipality that it shall be unlawful for any person to import, sell, or otherwise deal in second-hand or cast-off garments, blankets bedding, or bed-clothes in said town of Greensboro; provided that this ordinance shall not apply to the sale of said articles not imported, and that have not been used by persons having infectious diseases. ***"

Coleman & Coleman, for appellant.

Thos. R. Roulhac, contra.

CLOPTON J.

The charter of the town of Greensboro confers authority "to pass and enforce all ordinances deemed necessary or proper to prevent the introduction of infectious or contagious diseases, and to preserve the health of the inhabitants of the same." Under this power the corporate authorities passed an ordinance declaring "that it shall be unlawful for any person to import, sell, or otherwise deal in second-hand or cast-off garments, blankets, bedding, or bed-clothes in said town of Greensboro; provided, that this ordinance shall not apply to the sale of said articles not imported, and that have not been used by persons having infectious diseases;" and prescribing a penalty for its violation. The validity of the ordinance is the question for determination.

The legislature has undoubted power to authorize-and the authority conferred is ample to pass ordinances on the enumerated subjects-the prevention of the introduction of infectious or contagious diseases, and the preservation of the public health. Ordinances having for their object the protection of the health of the inhabitants, which is one of the principal purposes and most important duties of municipal governments, are generally regarded as police regulations subject to which the individual holds his rights of liberty and of property. Presumptions will be indulged in favor of their necessity, propriety, and validity, and when not unreasonable, nor partial, nor oppressive, nor inconsistent with the legislative policy of the state, should and will be sustained. Considered a part of a system of police regulations in aid of the preservation of the public health, the courts will not interfere with or set them aside, unless the power has been manifestly transcended. By the grant of power, the character and special provisions of the ordinances are largely left to the discretion and judgment of the corporate authorities-" deemed necessary or proper,"-not, however, an absolute power to pass any ordinances which they may perchance judge necessary or proper; not to be exercised capriciously, but with regard to the circumstances, the object to be accomplished, and the existing necessity. Notwithstanding the grant of power is general,-"to pass and enforce ordinances deemed necessary and proper,"-ordinances passed under the power must not be unreasonable, partial, or unfair; must not be in...