Desporte v. City of Biloxi

Anderson, J.," delivered the opinion of the court. Appellant, Mrs. Sophie Desporte, filed her bill in the chancery court of Harrison county against appellee, city [547] of Biloxi, to enjoin the latter from the enforcement of a certain nuisance ordinance adopted by it, affecting the wholesale oyster business of appellant and others similarly situated. There was a trial on bill, answer, and proofs, and a final decree rendered, dismissing appellant’s bill, from which she prosecutes this appeal. In substance the ordinance in question prohibits wholesale pyster shops within a certain area in the city of Biloxi, fixed by said ordinance, “wherein oysters are opened and the shells piled within or without the building thereof.” The chancellor who tried the case in a very able and lucid opinion set out his finding of facts as well as his conclusion of law. The chancellor found, and he was justified from the evidence in so finding, that appellant’s wholesale oyster business, as operated by her, did not constitute a public nuisance, but nevertheless he reached the conclusion that the ordinance could and should be substained, under the authority of Reinman v. City of Little Rock, 237 U. S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900, and Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. 348, Ann. Cas. 1917B, 927. The authority of appellee to adopt ordinances concerning nuisances and cognate matters is contained in section 3319, Code of 1906 (section 5816, Hemingway’s Code), which is in this language: “To make regulations to secure the general health of the municipality; to prevent, remove, and abate, nuisances; to regulate or prohibit the construction of privy vaults and cesspools, and to regulate or suppress those already constructed; to compel and regulate the connection of all property with sewers and drains; to suppress hog pens, slaughterhouses, and stockyards, or to regulate the same and prescribe and enforce regulations for cleaning and keeping the same in order, and the 'cleaning and keeping in order of- warehouses, stables, alleys, yards, private ways, outhouses, and other places where offensive matter is kept or permitted to accumulate; and to compel [548] and regelate the removal of garbage and filth beyond the corporate limits.” The ground on which appellee sought to justify the ordinance in question was the public health. The evidence in the case both for appellee and appellant was addressed mainly to the question whether or not the business of appellant was a public nuisance, in that it was a menace to the public health. The validity of the ordinance depends on whether appellant’s business was a public nuisance. Under Ex parte O’Leary, 65 Miss. 80, 3 So. 144, 7 Am. St. Rep. 640; Comfort v. City of Kosciusko, 88 Miss. 611, 41 So. 268, 9 Ann. Cas. 178; Crittendon v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190 — the business could not be prohibited as a nuisance if in fact it ivas not. It was held in the O’Leary case that a municipal ordinance prohibiting the keeping of hogs in hog pens or permitting hogs to run at large within any inclosed place in the municipality, except certain designated places, was invalid. Judge Campbell, who wrote the opinion of the court, said, among other things: “Hogs in the city of Jackson may or-may not be a nuisance, and any ordinance on the subject should be framed accordingly. ’ ’ In the Comfort case the court construed section 2928 of the Code of 1892, of which section 3319, Code of 1906 (section 5816, Hemingway’s Code), is a rescript. It was held in that case that under the authority given by this statute, empowering municipalities to prevent and abate nuisances and to suppress hog' pens,, a municipality could only prevent hogs being kept within its limits when the keeping was a nuisance; that an ordinance providing generally, as the one in that case did, that hogs should not be kept within the municipal limits without reference to whether their keeping was a nuisance or not was invalid. In the Crittendon case it was held that section 3340, Code [549] of 1906, conferring the power, among others, upon municipalities to regulate and suppress billiard tables and pool rooms, only authorized their prohibition when so ,. conducted as to become a nuisance. In the Fitzhugh case the court held in short that a municipality could not make a thing a nuisance that was not in fact a nuisance. It follows, from these views, that the principle which was the foundation of the chancellor’s conclusion of law embodied in the two decisions of the supreme court of the United States, referred to by him and relied on by appellee to sustain the decree of the chancellor, does not come into play in this case. We simply hold that under our statute a municipality has no authority to prohibit any condition on the ground that it is a nuisance and inimical to the public health, unless in truth and in fact-the evidence shows it is such a nuisance; that a municipality is without authority to pass an ordinance denominating a thing a nuisance, when in truth it is not a nuisance. We therefore do not reach the question of the power of the legislature under the Constitution on this subject. Reversed, and judgment for appellant. Holden, J., dissents.