35 Tenn. 298 | Tenn. | 1855
delivered the opinion of the Court.
The Corporation passed an ordinance, “Forbidding the erection of. a horse rack, or place for hitching to horses, on the Public Square or streets, or alleys of the city,” under a penalty of not less than ten nor more than fifty dollars. The plaintiff in error violated this ordinance, and was sued for the penalty. A recovery was had against him before the Recorder, and upon appeal in the Circuit Court.
The defence was, that he was acting under the order and employment of the County Court of Davidson, to plant posts or racks on the outside of the brick wall enclosure around the court house, in the public square, sufficient for the hitching of several hundred horses.
The case depends upon the question of paramount authority between these two municipal corporations, as to the matter in contest. In favor of the County
But, on the other hand, the incidental powers of the Court cannot be so exercised as to inflict a nuisance upon the citizens. To protect themselves against this, ample powers are given by every city or town charter, and it is essential to their health, comfort and prosperity. It is not material whether the nuisance is inflicted by individuals or other
It is not material, then, whether the title to the square is in the county or the city, or neither. If in the former, it would have no more right to erect a nuisance upon it than an individual lot owner, or a private corporation, as a bank, owning a lot. So the ownership of the ground cannot affect the question. Every man or corporation must so use their own property as not to injure others. A nuisance would have this effect, and therefore may be prohibited.
In the exercise, then, of this inherent, paramount, and necessary power, the ordinance in question was made by the proper authority, and the defendant having violated it, was rightfully subjected to the penalty prescribed, as the County Court could not give him authority to do an unlawful act, or shield him from its consequences.
Let the judgment be affirmed.