33 La. Ann. 1011 | La. | 1881
The opinion of the Court was delivered by
The defendant appeals from a judgment rendered by the Becoi’der’s Court of the City of Monroe, decreeing that he pay a fine of twenty-five dollars and costs and, in default of his payment of said fine, that, he work on the public streets, to be computed at one dollar per day until said fine is paid. This fine was imposed for violation by the defendant of Ordinance No. 413 of said city, in failing and refusing, after due notice given to him, to fill up the vaults or sinks of privies on premises in said city, belonging to, or under the control and agency of, defendant.
Appellant urges the illegality and unconstitutionality of said ordinance, on the grounds:
That it is not a general law, under which these or any other vaults-are declared and can be shown to be nuisances; nor is it a law, under which any structure, of any description, can be'sliown to be a nuisance; 2d. That a condition precedent to enforcing the removal of any given structure as a nuisance, when said structure is not built or erected in violation of a prohibitory law, is to first declare said structure a nuisance;: that said ordinance does not so declare the vaults which it is attempting to do away with, and, for that reason, is null and void; 3d. That the-City Council may enact-laws to prevent, as well as remove,, nuisances, but cannot punish by fine and imprisonment for failure, to- remove a.
The act of the Legislature, approved May 4th, 1871, incorporating the City of Monroe, is very full and explicit in its grant of municipal powers; among others, it specially confers the power “ to regulate and preserve the peace and good order of the city, and provide for, and maintain its cleanliness and salubrity in a manner not inconsistent with the laws,” ?¿ 9. In the same section, the city is authorized “ to abate nuisances, suppress houses of ill-fame, and to cause the arrest and punishment of vagrants,” “ to cause persons sentenced to fine and imprisonment, or either, to be placed at work upon the streets and other public works of said corporation, in the event of the failure of said persons so sentenced, as aloresaid, at one dollar per day.” Under the authority thus granted, “ to make and pass such laws and ordinances as are necessary and proper,” the city adopted Ordinance 413, “ in reference to the public health of Monroe, prohibiting the digging o.r excavating of privy vaults, requiring all privy vaults and excavations now existing to be filled up, and prescribing penalties for the violation of any provision of (this) ordinance.” That eminent author, Judge Dillon, in his work on Municipal Corporations, vol. 1, ?369, says: “Our municipal corporations are usually invested with power to preserve the health and safety of the inhabitants. This is indeed one of the chief purposes of local government, and reasonable by-laws in relation thereto have always been sustained in England, as within the incidental authority of corporations to ordain.” And in ?¿ 374: “It is to secure and promote the public health, safety and •convenience, that municipal corporations are so generally and liberally endowed with power to prevent and abate nuisances. This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to authorize the extraj udicial condemnation and destruction of that as a nuisance, which in its nature, situation or use, is not such.” We think the right exists in the council of a municipal corporation to
It is, therefore, ordered, adjudged and decreed that the judgment appealed fro m be affirmed at appellant’s costs.