Spear v. Ward

74 So. 27 | Ala. | 1917

MAYFIELD, J.

— It has been decided often by this court that a municipal corporation possesses and can exercise such powers, and such only, as (1) those which are granted in express words; (2) those necessarily and fairly implied by, or incident to, the powers so expressly granted; and (3) those powers which are essential to the declared objects and purposes of the municipality, which latter class does not include those powers which are convenient, but not indispensable. — Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Eufaula v. McNab, 67 Ala. 590, 42 Am. Rep. 118; New Decatur v. Berry, 90 Ala. 432, 7 South. 838, 24 Am. St. Rep. 827.

(1, 2) The Legislature has the undoubted authority to authorize municipalities and cities to pass ordinances relating to any of the subjects of municipal regulation, except such as may be inhibited by the Constitution or our municipal form of government. The preservation of the public health by the installation and maintenance of sanitary systems of sewers and closets is well recognized as one of the most important duties of municipal governments, and falls clearly within the police powers of government, subject to which the inhabitant and citizen of the municipality holds his individual rights to property and to libetry.

(3) Consequently, statutes and ordinances dealing with and relating to such subjects, together with provisions for the enforcement thereof, will be indulged by the courts, with the presumptions in their favor, as to their necessity, propriety, and validity, in the absence of a showing to the effect that they are unreasonable, arbitrary, unduly oppressive, or inconsistent with the legislative policy of the state. It must be made to appear to the courts that this police power has been manifestly transcended or abused, before courts will set aside or declare void ordinances which are intended to promote the public health. The special provisions and the extent of such ordinances are matters usually, and almost of necessity, left in a large measure to the discretion and judgment of the municipal authorities. They have, of course, no absolute power to pass any arbitrary ordinance which their caprice or whim might desire; but the law does of necessity vest in them judicial discretion to be exercised reasonably, with regard to the circumstances of each particular ease, the objects to be accomplished, and the existing necessity of the occasion.

(4) The necessity and propriety of a particular ordinance is primarily a legislative question; but whether a given one (though one of its kind is authorized) is reasonable and not arbitrary, and is consistent with the state’s policy of municipal government, is often a question for the courts. — Marion (Town of) v. Chandler, 6 Ala. 899; Greensboro v. Ehrenreich, 80 Ala. 579, 2 South. 725, 60 Am. Rep. 130.

(5) Municipal authorities are given the power in this state to prevent and to abate nuisances, but they cannot, in the exercise of this power, declare a perfectly lawful business or trade to be a nuisance, and abate it, when the business, trade, or thing is not in law or in fact a nuisance, or is not carried on or operated in such manner as to be likely to become a nuisance. In other words, such municipal authorities cannot, by their mere ipse dixit, make that a nuisance which is not in fact or in law such, nor can they arbitrarily destroy the property of a citizen, under the pretext of preventing or abating a nuisance. Of course that which is per se a nuisance may be declared a nuisance by municipal authorities, and as such abated as provided by law; but that which is not per se a nuisance may, under certain conditions, become' such, because of its location or of the mode or manner in which it is carried on, and then it may be declared such and abated.

(6) As before stated, one of the most important objects of municipal government is the preservation of the public health; and science has demonstrated that nothing contributes more to secure the end than a sanitary system of sewerage and water-closets connected therewith; and the benefits of such a system are largely lost unless the inhabitants of the city can be compelled to connect their premises with the system, and to abandon dry closets and install water-closets. To this end the Legislature has clothed municipalities with the power and authority to pass ordinances, by-laws, etc. The municipal authorities to this extent exercise the police power of the state; and they not only have the power, but the law enjoins the duty and obligation on them, to promptly abate or remove all nuisances by which the public health may be affected, and to thus provide for the safety, comfort, and convenience of the inhabitants. All the inhabitants therefore have an interest in seeing that proper ordinances are passed, as well as that, when passed, such ordinances are enforced against all, as the failure to conform thereto by a few may inflict injury and ill health upon the many. There are times when the public health is the object of paramount concern, and the law wisely lodges in municipal bodies discretion and power adequate to such emergencies. Such an emergency is shown by the answer of respondents in this case.

(7) Private property must be held subordinate to reasonable police regulations; yet lawful property cannot be destroyed or confiscated under the mere guise of police regulations for its protection. It does not appear to us that in this case there is shown anything which amounts to an unwarranted taking or confiscation of appellant’s property, under the pretext of exercising a police regulation, such as was held to be shown in the cases relied upon by appellant. See Durgin v. Minot, 203 Mass. 26, 89 N. E. 144, 24 L. R. A. (N. S.) 241, 133 Am. St. Rep. 276; Phila. v. Prov. L. Ins. Co., 132 Pa. 224, 18 Atl. 1114; State v. Asbury Park, 61 N. J. Law, 386, 39 Atl. 706; Eckhardt v. City of Buffalo, 19 App. Div. 1, 46 N. Y. Supp. 204.

In some of 3the above cases the municipal authorities had exceeded the powers given by the statute, and in others there was an unreasonable or arbitrary exercise of the power conferred. Neither of these facts is involved in the instant case. It is not contended in this case that the owner did not have notice of the proceedings had against his property, such as was provided for in the ordinance and the statute.

(8) Sections 1292 and 1293 of the Code provide as follows: 1292. “To extend or alter the system of sewerage, and extend the mains wherever, in the opinion of the city or town council, it may be necessary or expedient to do so, and to extend the mains to any point in the county in which it is situated, and for these purposes, the said city or town council shall have and exercise the full rights of eminent domain, and may acquire such lands or easements' therein and the uses of such waterways as may be necessary, by the proceedings provided by law for acquiring private property for public uses.”

1293: “To regulate water-closets and the construction thereof, and to compel the installation of the same and connection with the sewerage systems of the city or town, and in case of a failure to install or connect, after reasonable notice, then the city or town shall install proper water-closets and connect the same with the sewerage system of the city or town, at the expense of the owner, the cost thereof to be a lien upon the property, to be-collected as other-debts are collected or liens enforced.”

The amendment of section 1293 by the act of 1909 does not take away any of this power or authority, and is of no particular importance in this case. .This we hold to be ample authority to the municipality to pass the ordinance in question (which the reporter will set out), and we are not shown by this record that there has been, or that there is threatened, any arbitrary, unreasonable, or unwarranted, exercise of the power and authority so conferred, in this particular case.

It results, therefore, that the chancellor did not err in declining to enjoin the municipal authorities from enforcing the ordinance in question.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., concur.