78 Fla. 186 | Fla. | 1919
— Plaintiff in error was taken into custody under a warrant issued by the city authorities charging a violation of Section One of “an ordinance to provide for the construction and maintenance of privies,” it being contended that the ordinance is void. The relator was remanded to custody and on Avrit of error argues here the invalidity of the ordinance, the material portion of which is as follows: “That every house and building located within the limits of the City of Pensacola in which people live, or where they congregate or assemble, or any kind of business is carried on, shall be provided
If a municipal ordinance directly affecting the rights of individuals is arbitrary and unreasonable it is invalid and will not be enforced. Ex parte Harrell, 76 Fla. 4, 79 South. Rep. 166; Curry v. Osborne, 76 Fla. 39, 79 South. Rep. 293.
The ordinance in specific terms requires a sanitary privy to be constructed. and maintained in everp house and, buildUng in the city in which people live, or where they congregate or assemble, or any kind of business is carried on. Common experience teaches that there are buildings in cities where people congregate or assemble or transact business in which privies are not appropriate or perhaps not permissible in the interest of the public health and general welfare. This ordinance makes no exceptions, but is absolute and comprehensive in its provisions. Even if it is competent for the city to require the construction and maintenance of privies in all houses in which people live, and in other houses in which people assemble or conduct business where the public health and welfare will be thereby conserved, it is manifestly not within the power of the city to require a privy to be constructed and maintained in all the classes of houses named in the ordinance except where such a utility is appropriate' or permissible to subserve the public health and general welfare. The attention and expense necessary to the utility cannot be enforced unless the public health and well being are to be thereby promoted; and as a privy in some houses where people congregate may manifestly be a detriment to health, if not a nuisance, the ordinance
The ordinance is void for its unreasonable and arbitrary, requirements, and the petitioner should have been discharged from custody.
Judgment reversed.