Town of Kosciusko v. Slomberg

• Decision Date: 20 April 1891
• Court: Mississippi Supreme Court
• Parties: TOWN OF KOSCIUSKO v. SOLOMON SLOMBERG

9 So. 297

68 Miss. 469

TOWN OF KOSCIUSKO v. SOLOMON SLOMBERG

Supreme Court of Mississippi

April 20, 1891

APPEAL from the judgment of the HON. C. H. CAMPBELL, Judge, on habeas corpus.

The appellee, Solomon Slomberg, was convicted before the mayor of the town of Kosciusko under an ordinance of said town, which is set forth in the opinion of the court. He refused to pay the fine imposed, and sued out a writ of habeas corpus before the circuit judge, who, upon the hearing, discharged him from custody, upon the ground that the ordinance under which the conviction was had was void. From this judgment the town of Kosciusko appeals.

The opinion contains a further statement of the case.

Affirmed.

Anderson Haden & Davis, for appellant.

The only question for consideration is whether the ordinance of the town of Kosciusko, under which the relator was tried, is valid. We contend that it is, and in support of our view cite the following authorities: Summerville v. Pressley, 11 So. 545, decided by the supreme court of South Carolina in 1890; Soon Hing v. Crowley, 113 U.S. 703; Folmar v Curtis, 86 Ala. 354.

We ask the court to note the difference between the ordinance in question and that passed upon in Greensboro v Ehrenreich, 2 So. 725, cited by opposite counsel.

The ordinance of Kosciusko does not attempt to reach beyond the scope of necessary protection and prevention, but falls within the rule laid down by the supreme court of Alabama in above case. A municipal corporation, under its ordinary police powers, certainly has the right to pass such an ordinance. This ordinance is not objectionable as shifting the burden of proof to the defendant. It only requires those dealing in second-hand clothing to satisfy the mayor that the same did not come from a locality in which there is contagion or infection. This is in accord with the laws of most of the states and of the United States. It is to be presumed that the mayor will exercise a sound discretion.

All second-hand clothing is not per se dangerous to life, but such clothing may come from hospitals infected with loathsome diseases. In the exercise of police power it is proper for the municipal authorities to take this into consideration. Certainly it is not necessary for the town to prove the clothing to be absolutely dangerous before prohibiting the sale.

Allen &amp McCool, for appellee.

The ordinance under which appellee was convicted is a nullity. Greensboro v. Ehrenreich, 2 So. 725, decided by the supreme court of Alabama.

Second-hand clothing is not per se a nuisance. New goods might be infected with disease while second-hand clothing would be free of it. Whether there is danger from having and selling an article must depend upon circumstances, and this is not to be left to the arbitrary opinion of one man. Barling v. West, 29 Wis. 307; s. c. 9 Am. Rep. 576.

The business of dealing in second-hand clothing is a perfectly legitimate one, and is extensively carried on in all large mercantile centres like Kosciusko. The ordinance in question was passed to prevent competition, and it was intended to benefit certain merchants rather than to protect the health of the town.

In addition to the above authorities, we call the attention of the court to Westcott v. Middleton (N. J.), 11 A 490; 42...