42 So. 673 | Miss. | 1906
delivered the opinion of the court.
The cases of Ex parte O'Leary, 65 Miss., 80 (3 South. Rep., 144; 7 Am. St. Rep., 640), and Quintini v. Board of Mayor and Aldermen, 64 Miss., 483 (1 South. Rep., 625 ; 60 Am. St. Rep., 62), have no application to this case. The ordinance we are construing is a police regulation, dealing with the public streets of the city of Vicksburg, and having as its object the preservation of the health, comfort and safety of the public, and additionally to compel a proper use of the streets by the waterworks plant. The streets are the common property of the public, and the subject of the proper regulation and protection of the streets and their control is a matter of especial power and
We can find no clause of the constitution, either federal or state, that is violated by this ordinance. It is clearly within the power of the municipality to pass it. It discriminates against no one. It is general in its nature and impartial in its application, and affects all of the same class alike. When an ordinance does this, it needs no citation of authority to uphold the proposition that it is a valid ordinance; but, if authority is required, a long list of authorities will be found under fourteenth amendment to constitution of United States (Code 1906,
The ordinance under construction is enacted for the purpose of preventing a bad condition of tbe streets, brought about by leaky mains. It is general in its nature, in that it affects all waterworks plants alike. It is made an offense for any waterworks plant in the city of Vicksburg, or the superintendent, managing director, or manager of any waterworks plant, to allow the pipes, mains, or conduits of the plant to be out of repair or in a leaky condition, so as to permit the water to escape therefrom and flow over the streets, etc., for as long as two days in succession. This ordinance applies to all waterworks plants, whether owned by a corporation, individual, company, or persons. It applies to all alike, and to the manager, superintendent or managing director of any waterworks plant, it matters not by whom it may be owned. “Laws, public in their objects, may be confined to a particular class of persons, if they are general in their application to the cases to which they apply, provided the distinction is not arbitrary, but rests upon some reason of public policy.” Murphy v. Mulgrew (Cal.), 36 Pac. Rep., 857 (41 Am. St. Rep., 200), and authorities cited under note quoted from. This ordinance answers all the requirements of the rule laid down above. It does not apply to private consumers of the water, for reasons of public policy that are obvious ; but, because it only applies to waterworks plants, and not to individual consumers who may own their own pipes, if it be conceded that the consumers own their pipes so as not to render the water company liable, if they are in a leaky condition for longer than two days, it is not discriminatory on that account. It applies to the class it is aimed at without any discrimination. The classification is not arbitrary. The waterworks company traverses every street in the city, and it owns many mains and pipes located in the streets throughout the city. The danger of the streets getting into bad repair by reason of leaky mains
There was no error in admitting testimony showing the condition of the street prior to the time of the affidavit. This testimony was explanatory of the cause, and it was necessary for the city to show a leaky condition of the street for at least two days. Mr. Grumpier cannot be again prosecuted for allowing the mains to be out of order on this street for any length of time prior to the date of the affidavit. 1 Wlgmore on Evidence, 437, notes 2, 5. ■
We notice no other error assigned, except to say that we do not think that the court erred in refusing the application for a continuance. The evidence offered was not material, and furnished no excuse, as it was the duty of the waterworks company to so construct its mains that the leak would be prevented. That this could have been done is shown by the record. This waterworks plant had been in operation since 1886, and owned by the present company since 1900, and it had had ample opportunity to properly construct its mains. The fact that it did not do so doubtless caused the city to pass this ordinance.
Affirmed.