Mayor of Montezuma v. Minor , 73 Ga. 484 ( 1884 )

Branham, Judge.

This.is a proceeding under the charter of Montezuma (Acts 1871, p. 123) to abate a mill-pond within the limits of the town, on the ground that it is a public nuisance, injurious to the health of that community. The evidence, on the trial of the case, was conflicting. The mayor and council adjudged the pond to be a nuisance, and ordered it abated. The defendants eertioraried the case ; the superior court sustained the certiorari, and ordered a new trial, and the plaintiff in error excepted.

1. After the decision of the equity cause by this court between these parties (70 Ga., 191) was rendered, by which the jurisdiction of the mayor and council to abate nuisances within the town, on the report of the board of health, was sustained, and on the 12th day of April, 1883, the case came on again to be heard. The report of the board of health, condemning the pond as a nuisance, was made on the 9th day of April, 1883, after the defendants had been summoned, but before the hearing of the case. This report, or the neglect or refusal of the board of health to perforin this duty, is necessary to the exercise of jurisdiction by the mayor and council, and it would have been better if the report had been made before the summons was issued. But as the report was made before the trial, and before any decision was rendered, it was a mere irregularity which does not affect the real merits of the case.

2. This report was “tendered,” on the trial, by counsel for the plaintiff in error, and objected to by counsel for defendants in error on several grounds, none of which, under the view we take of the case, were very • material. The mayor and council overruled the objections, and ordered the report to be rea'd in .evidence. The statute provides that the mayor and council may act summarily upon the report of the board of health, and cause nuisances to be abated within the town. Such summary action, in ordinary cases, would be unobjectionable; but in this case, the mayor and council were not acting summarily. They had summoned the defendants before them to show cause “why the Drumright and Minor mill-pond should not be declared a nuisance, and if so. found, why it should not be abated.” The town alleged it to be a public nuisance, the defendants denied it; and this was the sole issue between the parties on the trial. The,.report of the board of health, therefore, was not legal'evidence. It was only hearsay. The members thereof were competent witnesses, and if their testimony was desired, they should have been sworn, that the defendants might have had an opportunity to cross-interrogaté them. It is true there was no express objection on this ground to the admission of the report in .evidence ; but, as it was ordered to be read in evidence, it is best that its legitimate use and effect should be hereafter understood.

3. All that portion of the testimony in relation to the alleged tender of $800.00 to Drumright, in his lifetime, designed to prevent the re-building of the dam, related to nothing more than a proposition made with a view to á Compromise of the controversy. It was not legal evidence. Code, §37S9. It ought to have been ruled out, and the evidence confined to the issue, whether the pond was a public nuisance or ndt.

4. This court has held in 70 Ga.—before cited—that the mayor and council of the town has jurisdiction of this question. Though that body may have employed an attorney to prosecute the case, this alone would not disqualify them to try the case. Tift vs. County of Dougherty (present term): Nor would the interest which such officers have, in common with other citizens of the town, by reason of their residence therein, disqualify them. Dillon ón Mun. Corporations, Sec. 360-1, and Georgia cases there cited. But this court has not 'held that a judge, personally interested in the result of a suit, is competent to preside therein oh the trial of the case. Defendants alleged “that J. E. DeVaughn, one of the council, owned land flooded by the pond, and had said that the pond was a nuisance, and if the mayor and council would not abate the same, he could have the water removed from his-'land, and intended to do so,” and they offered to prove these facts. This motion was over • ruled, and DeYaughn presided on the trial of the case. He has since filed a bill against Minor, which was determined in his favor at the September term, 1883, of this court. 72 Ga., 208.

If the facts alleged by defendants to be true, in relation to DeYaughn’s interest in the issue on trial, are trae, then he was not qualified to preside either as judge or juror in the case. “ So tender is our law of bias on the part of the noblest and purest in behalf of self-interest, that no judge is permitted to sit in a case in which he has any interest.” Mayor, etc., of Macon vs. Huff, 60 Ga., 224-5; Code, §205. If DeVaughn is pecuniarily or personally interested in the issue, let him retire from the court, and let the mayor and remaining aldermen, who have no more interest in the question than that of any other good citizen of the town, proceed with the trial.

5. “A particular use of property may sometimes be forbidden, where, by a change of circumstances and without the fault of the owner, that which was once lawful, proper and unobjectionable, has now become a public nuisance, endangering the public- health or public safety. Mill-dams are sometimes destroyed on this ground.” See Cooley Con. Limitations, 595; Miller vs. Craig, 3 Stockton, 175. If, on a re-hearing of the case, it should appear that the pond is prejudicial to, or endangers the health of the town, or any part thereof, then it ought to be declared a nuisance and abated. If it does not prejudice or endanger the health of the town; on the contrary, if the sickness there is produced by other causes, the right of private property ought to be respected, and the pond should not be disturbed. See Milne vs. Davidson, 16 Am. Dec., note, 194; Baker vs. Boston, 22 Am. Dec., 421.

What we have said is sufficient to show that the judgment of the superior court was right. We do not deem it necessary to decide the other questions raised in the case.'

Judgment affirmed.