Johnson v. Town of Philadelphia

47 So. 526 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

The town of Philadelphia derives its power as a municipal corporation from the Code chapter on municipalities. On Janruary 24, 1907, its mayor and board of aldermen passed the following ordinance, viz-:

“Sec. 1. Be it ordained by the board of mayor and aldermen of the town of Philadelphia, Mississippi, that the poolrooms, billiard parlors, dance halls, and skating rinks, doing business at this time or hereafter, in said town, shall close at six o’clock p. m. and remain closed until six o’clock a. m. and that any person managing or operating any such poolroom, dance hall or skating rink after six o’clock p. m. and before six o’clock a. m. or any person found playing pool or billiards, dancing or skating in any public hall or place herein between such hours shall be fined not less than $5 nor more than $100, or be imprisoned not more than thirty days, or both.

“Sec. 2. Be it further ordained that the necessities and interest of tbp town demanding it this ordinance be in full force and effect after this date.”

At the time the above ordinace was passed, Johnson was conducting a skating rink in the town of Philadelphia, having previously paid all state and municipal taxes, and, after the passage of the ordinance he procured an injunction against the town of Philadelphia enjoining the enforcement of the ordinance on the ground that it destroyed his business, was unreasonable, and void.

The great preponderance of testimony shows that Johnson conducted, his business in an orderly manner, and that he allowed no such conduct in his place of business as would warrant the board of mayor and aldermen in suppressing it. But, if •this were not true, the ordinance plainly shows that it was enacted under Code 1906, § 3340, giving municipalities the power “to regulate, suppress and impose a privilege tax on all circuses, shows, theaters,” etc., “skating rinks, * * * and other like things.” If we were disposed to consider this ordinance as an ordinance suppressing a nuisance, it could have no validity, as a skating rink is not a nuisance per se, and no general declaration of the mayor and board of aldermen, through the medium of an ordinance declaring it to be a nuisance, without any notice to the party conducting the business and without reference to the fact of whether it is in fact a nuisance, can make it so.

Into every charter power given a municipality to pass bylaws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general law, and not destructive of á lawful business. It is manifest that, if Johnson is not allowed to operate his skating rink except between the hours of six o’clock a. m. and six o’clock p. m., business will be destroyed. His is a place of amusement, and so far as this record shows, a place of innocent amusement, the main business of which is done after six o’clock p. m. Under pretense of regulating a business, the business attempted to be regulated cannot be destroyed. This was not the intention of the legislature. If the legislature had intended that amusements of this character could be prohibited by a municipality, they would have said so in unequivocal terms.

In Freund on Police Power, section 63, it is said: “There is implied in every delegation of power to a municipal corporation a condition that the power must be exercised reasonably, and that therefore every unreasonable ordinance is ultra vires, and the court in treating it as null and void merely enforces the legislative will and principles or policies embodied in it.”

And again, in section 158, it is further said: “The requirement of reasonableness is so general in its nature that it allows the courts to exercise a very efficient control over ordinances without being under the necessity of formulating in. each case a principle which would be a guide for other cases.”

The section of the Code giving a municipality the power to regulate and suppress gives no power to prohibit. Skating rinks and such like can be suppressed only when as a fact they become nuisances, and when they are regulated it must be in a reasonable way. In McQuillin on Municipal Ordinances, p 79, it is said: “The power ‘to regulate’ will not be construed to include the power to prohibit. ‘A power simply to regulate does not embrace a power to prohibit or destroy a trade or occupation.’ Therefore ordinances to be valid cannot interfere with lawful employment.”

The fact that the state law authorizes the conducting of the business is evidence that it was in contemplation of the law that the places should exist. State v. Mott, 61 Md. 297, 48 Am. Rep. 105; Dillon on Municipal Corporations, § 325.

In the case of Crittenden v. Booneville, 92 Miss. 277, 45 South. 723, the court said that the power given the municipality, under Code 1906, § 3340, “to regulate, suppress and impose a privilege tax on all circuses, shows,’ etc., does not carry with it the power to prohibit, unless it is in the exercise of the police power to suppress a nuisance. The municipality may regulate; that is to say, it may provide the hours during which these places may keep open, etc., and if the conduct of tire owner is such as to warrant so doing, or if tire place is conducted in a boisterous or immoral way, so as to become a nuisance, it may suppress altogether. But the power to regulate and suppress when the business has become a nuisance is one thing and the power to pass a general ordinance prohibiting the operation of a poolroom, which has been legalized by the statute, is another thing. The first a municipality has the power to exercise. The second it is without power to do.”

We can establish no fixed and permanent guide to settle in future cases what is and what is not a reasonable exercise of the power of regulation. Each case must largely be determined by its own facts. In the Crittenden case we held that the municipality may provide the hours during which a place of business •of the character under discussion may be kept open, etc., yet, when the hours prescribed ruin the business under the guise of regulating, such a regulation is unreasonable.

The nature of the business being conducted forms an element for the consideration of the court in determining whether or not an ordinance is unreasonable as an ordinance regulating a business. It is unreasonable to say that a skating rink shall be kept open only between the hours of six a. m. and six p. m., and such ordinance cannot be upheld. Nights cannot bo stealthily taken away under the power to regulate. The power to regulate is given for a wholesome purpose. It is a defensive power of municipalities, and not a weapon of destruction.

Reversed arid rennanded.