Lake v. City of Aberdeen

| Miss. | Oct 15, 1879

Campbell, J.,

delivered the opinion of tlie court.

The plaintiff in error was entitled to an appeal to the Circuit Court from the “ final judgment or sentence of the mayor,” in the “ cause or prosecution ” by which his business was condemned as a nuisance ; and his appeal was improperly dismissed by the Circuit Court.

The mayor and selectmen of Aberdeen are vested by its charter with the power, by ordinance, “ to regulate and prevent the carrying on of manufactories dangerous in causing or promoting fires,” and “ to prevent and remove all nuisances.” We are not informed by the record -how this power has been exercised, and what ordinances on the subject have been passed. The elaborate petition by which this proceeding was commenced contains no allusion to any ordinance of the city. There is in it no averment that the things complained of are a nuisance within any ordinance of the city. The prayer of the petition is that the “ steam mill of the said David Lake be declared a nuisance, and that it be taken down and removed, or that he erect a proper building,” and do certain other things mentioned; and the petition concludes with a prayer for “such other and further relief” as the Council of Mayor and Selectmen may think the petitioner entitled to. The petition is addressed “To the Mayor and Selectmen.” It appears to be an application to the mayor and selectmen to examine into the matters complained of in the petition, and to declare the mill a nuisance, and to order it removed, or that certain other things mentioned shall be ordered to be done. While the charter confers the power on the municipal authorities of the city to pass ordinances on the subject of nuisances, ft does not confer the right to declare that a particular structure or business, not condemned by any law or ordinance, is a nuisance, and to have the structure removed or the business stopped or interfered with. Such a power is not to be tolerated. It would place “all the property in the city at the uncontrolled will of the temporary local authorities.” The city may have such ordinances as its charter authorizes, and a structure erected or a business conducted in violation of such ordinance may be dealt with in accordance with the ordinance, but it is not allowable for one or more citizens to exhibit a bill of complaint, alleging that certain buildings or operations are a nuisance, not within any law or ordinance previously passed and operating on all, but because of certain facts set forth in the petition; and to procure a decree to abate such alleged nuisance, not as being a violation of a precedent enactment, but by virtue of a decree of the mayor and selectmen that it is so in the given case. The property and pursuits of the citizen are not held by so frail and uncertain a tenure as the mere declaration of a body acquiring temporary control of the affairs of a city or town. There must be a law applicable to the subject, and it must be legally tried and determined whether the law has been violated. If the city of Aberdeen has an ordinance applicable to the case set forth in the petition, and the proceeding was under such ordinance, it should have been made to appear so.

Judgment reversed and petition dismissed.