Ex parte Mayor of Birmingham , 134 Ala. 609 ( 1902 )

HARALSON, J.

The charter of Birmingham bestows on the mayor and alderman power “To establish streets, avenues and alleys, and regulate and control the paving and curbing of streets and sidewalks, and the giving of the grade thereof.” — Acts, 1882-3, p. 312. This statute, does not prescribe, the kind of paving to be put down in any instance, but leaves it discretionary with the mayor and aldeirmen as to the paving of any particular street, and the material with which it shall be paved. This power is not absolute, bnt is one to be exercised for the public good, having regard to' established conditions. The maxim e‘sic uterc tuo ut alien-urn non. lacdas ” is applicable in such case.

It is shown by the petition, paragraph 5, “That prior to June 2, 1902, youir petitioner [the mayor and aider-men], as authorized by its charter, caused said Twenty-first street, from First, avenue to Eighth avenue, north, to be paved with vitrified brick, which said pavement was laid in a scientific and approved manner, under plans commonly used for such purposes, and that before said date in June, said Twenty-first street, as paved, between Third and Fourth avenues was open for, and was used by the public, as above described.”

The answer admits the averments of this paragraph of the petition, “but says that said street had been paved with vitrified brick only a¡ very short time prior to the. issuance of respondent’s older, on June 2d, 1902, to-wit, about 90 days, and that- prior to the time the said street was paved with vitrified brick, it was not paved ait all, but was laid with gravel or cbert and earth, so that travel thereon, including the passage of heavy vehicles and street oars, was comparatively noiseless. This had been the condition of the street for a great many years prior to June 2d, 1902, in fact, since the building of the said court house in the year 1887; that said! vitrified brick pavement, while laid in a scientific manner, -is of siich material, and necessarily so laid and constructed as to' emit, an extraordinary loud and roaring kind of noise during the passage of vehicles over the same, and even light vehicles, unless they have rubber tires, cause a rattling and roaring noise, which can he as plainly heard in respondent’s court room as by a person standing on the sidewalk of said street; indeed, it can he truthfully said, that the noises made by vehicles and street cars in said street in front of said court room, are greater and more resounding inside of the court room than outside, the acoustic principles of said court room being such as that the noises coming from -said street reverberate in the court room to a much greater extent than in tlie air.” Tlie answer proceeds' to state, in substance, that the noises created by the passage of vehicles and cars is so great as' to create a combination of roaring and rattling noises, which fill tlie court room, drowning all other sounds, therein, which cannot be kept out by shutting all the doors and windows, as respondent often tried to do ; that these noises are sb great as to stop the proceedings of the court for much of its. time, because what is being said by the court, attorneys and witnesses can not he heard; that before said pavement was laid petitioners were warned and notified that it would cause the very disturbance it lias caused, and interfere with the business of the court, hut in spite of such warning petitioners proceeded to lay the same.

If this case were decided upon tlie- mere equities of the equality of rights, it would seem, that the court house having been established long before the street, the petitioners coming to exercise the power of paving conferred on them by their charter, should have done so in a manner not to so- seriously interrupt and interfere with the due'administration of public justice, such as is shown lias been done. The street should have been paved in.a mamtner and with materials; such as would not have caused the disturbance of the court complained of, and which the judge sought by his restraining order to prevent. Especially is this true, since it appears, that by paving with some other materials, the disturbance might have been largely avoided.

Aside from this view, however, it, may be stated as a truism, that every court of record has inherent power, irrespective of statute, to make rules for: the regulation and transaction of its business, not in conflict with the constitution and laws of the land (4 Am. & Eng. Ency. Law, 450) ; and that, such courts endowed with this power, may punish all persons for contempt of their rules and orders, for disobedience of their process, or for disturbing them in their proceedings. — 3 ’Am. & Eng. Ency. Law, 780. Furthermore, it is provided by statute in this State, 'that “Every court has power, to preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance or hindrance, to its proceedings.” — Code, § 2639, subclliv. 1. This common law and statutory power of the court, well known to 'the petitioners at the time they laid the. pavement, oir caused the same to be; laid, was a warning to them, that it should be laid in a manner not to hinder or prevent the due administration of justice at the place long theretofore ordained by law for it to- he administered. A proper regard for the public interests should have so influenced them.

Wo are not. without precedents for the action of the court, in quelling these disturbances. The ease of the City of New Orleans v. Bell, 14 La. Ann. 214, was one of a rule taken against the sheriff, Bell, to show cause why he should not be enjoined: from placing a barricade in the street, ordered by the judge of the First District Court to he so placed, to prevent, the disturbance of the pro-' ceedings of the court, while in session, by the passage of horses and vehicles. The Supreme -Court, on appeal from the order denying injunction, held that the judges of the courts in New Orleans are vested with full power to regulate the police; of their courts, and to- prevent the disturbances to the administration of justice referred to. Again, in Belvin v. City of Richmond, 1 L. R. A. 807, it was be-ldl, that a judge of the Hustings court of the city of Richmond had authority to order ropes stretched across a street during the hours his court was sitting, to prevent travel in front of the court bouse, where the. noise of passing vehicles was sufficient to obstruct the proper administration of justice therein. These decisions do not appear to have been based on statutes, and there is nothing in the statutes; of this State, which makes them inapplicable; here.

It. is to be admitted that any unauthorized obstruction of a. public highway, such as impedes its lawful use as such, is a, public nuisance at common Iuav, Avhich the p-uhlic have the right to abate. But that rule does not apply to this case. If during court hours, the unobstructed 'travel on TAventy-first street between Third and Fourth avenues, does in fact obstruct, interrupt or hinder the proceedings of said court, in the manner sIioavu. then the power- of the court to- abate such obstruction, hindrance or interruption to the administration of justice would seem both on principle and authority clearly to follow, and the order of the judge cannot be said to-have been unauthorized.

This order, a.s amended, does not appear to have gone any further than was absolutely essential to- abate the disturbance, and protect the court from interruption. It cannot be characterized as arbitrary or excessive.

We need not consider the question whether the court was under obligation to move into some other room in the court house occupied by other officers. It. appears that this privilege was not open to it. Besides, the room it did occupy, was the one in - the building long theretofore dedicated to its uses for holding court.

The question has been raised by the respondent, as to whether tlie remedy here invoked is the proper one in such a case. We may forego its decision', however, since having no- wrongs to- avenge, the consideration of the petitioner’s remedy is. unnecessary.

The prayer for mandamus is denied, and the petition therefor is. dismissed.

Mandamus denied, and petition dismissed.