115 Ky. 382 | Ky. Ct. App. | 1903
Opinion of phe court by
'Reversing.
At the May term, 1902, of the Scott circuit court, an indictment was returned against appellant, a city of the fourth class, in the usual and proper form, charging, In substance, that it did unlawfully suffer and permit in an open gutter, drain and sewer between the gas plant and “Big Spring Branch,” two points within the limits of the city, all sorts of filth, excrement, vegetable and animal matter, refuse and waste from the gas plant, and the ordinary sewerage of the community in, through' and along the open gutter, drain and sewer to flow therein, and to remain rotting and festering, and giving forth and emitting noxious and poisonous gases, charging and burdening the atmos
If the corporation, the appellant, is liable to be indicted and fined for such an offense as proven in this case, then the judgment ought to stand. The only question to be determined is whether or not it is liable. As this is an important question to the State and all the cities and towns in the State, we have taken great pains to examine all the authorities touching the subject within our reach. This direct question, so far as we have been able to find, has never been before this court before; that is, as to whether or not a municipal corporation can be indicted and fiined for its failure to cause the abatement of. a nuisance, or cause the punishment of the individuals creating and suffering the same on their private property. There is no pretense that the city or its officials created or caused the
Counsel cite, as sustaining the judgment of the lower
. Dillon on Municipal Corporations, section 933, is as follows: “Neglect of duty in respect of repairs of streets, etc. In Tennessee a municipal corporation is considered liable, upon the general principles of common law, to indictment for neglecting its duty to keep it's streets in reasonable repair, and it is no defense that the street is little used, and is in a remote part of the town. And the mayor and aldermen may also be personally indicted for like neglect of duty. So in the same State it is held, upon the general principles of the law, that if a municipal corporation has power by its charter to pass such ordinances as may be necessary ‘to preserve the health of the town and to prevent and to remove nuisances,’ it is its positive duty to exercise this power, and that for a neglect of this public duty it or its officers are liable to an indictment. An indictment against the mayor and aldermen was accordingly .sustained for permitting a slaughter house to be kept upon the private property of the citizen or the town, to the annoyance of the inhabitants and the endangering of the public health; the court remarking that ‘an indictment against the corporation is the proper mode of redress by the public for a grievance of this nature.’ In Vermont a town is liable to an indictment as at common law for not erecting a bridge pursuant to an order from a competent tribunal. In Maine towns charged' with the maintenance of public highways are by statute indicted for failure to discharge
A. & E. Enc. of Law (2d Ed.), vol. 20, page 1209, is as follows: “A municipal corporation is liable for the creation.
We have already discussed the Tennessee cases referred to.
The case of Richardson v. Boston was where the plaintiff, Richardson, was the owner of two wharves running from high to low water mark. Tlhe city owned a strip of ground 30 feet wide between the two wharves. The plaintiff sued the city for creating and maintaining a nuisance upon its property. The statement of the case shows that it has no
We have found two cases decided by the superior court of this state which are apparently in conflict with the views herein expressed by this court. One case is The City of
We have been unable to find any authority in any state sustaining the contention of the Commonwealth, except the case of State v. Shelbyville, 4 Sneed, 176, above referred to. Wherefore the case is reversed, and the cause remanded for further proceedings consistent herewith.