Comfort v. City of Kosciusko , 88 Miss. 611 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

On the 2'Tth day of July, 1905, the city of Kosciusko passed the following ordinance:

"Be it ordained by the mayor and board of aldermen of the city of Kosciuslco, That in order that the said city shall be clean and put and kept in a good sanitary condition to prevent the generation and spread of disease, it shall be unlawful for any person to keep or permit to be kept on or about his or her premises within the corporate limits of said city any rubbish, garbage, or filth of any kind, or to keep or permit to be kept on his said premises any stagnant or filthy water, or to drain any'bath, kitchen, or otherwise polluted water into any of the streets of said city, or to keep or permit to be kept within the corporate limits of said city any pig, or pigs, hog, or hogs. Any person who shall be guilty of any act or acts enumerated in this ordinance shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in a sum of not less than five dollars.”

On the 14th day of August, 1905, an affidavit was made against Comfort in the mayor’s court of Kosciusko, charging in substance that Comfort did, on and about the 11th day of August, 1905, in the corporate limits of the city of Kosciusko, willfully and unlawfully permit to be kept hogs, and did keep hogs penned and inclosed, on and about his premises in said city, against the ordinance of said city. Mr. Comfort was convicted in the mayor’s court, appealed to the circuit court, demurred to the affidavit, which demurrer was overruled by the circuit court, and he was again convicted in the circuit court, and prosecutes this appeal, claiming that the ordinance under which he is convicted is void.

Section 2928 of the annotated code of 1892 empowers municipalities to suppress hog pens. It also gives the power to make regulations to secure the general health of municipalities and to prevent, remove, and abate nuisances. The keeping of hogs in a municipality, or the erection of hog pens, may or may not be a nuisance, and it is only when they are such that a municipality has the power to interpose and suppress hog pens or prevent the keeping of hogs in a municipality. An ordinance which provides generally that hogs may not be kept in a municipality, without reference to whether they are or are not a nuisance, is too broad and sweeping in its provisions, and cannot be upheld. When the keeping of hogs within a municipality becomes a nuisance, no matter where they may be kept therein, it not only has the power, but it is its duty to abate the same. In the case of Darlington v. Ward (S. C.), 26 S. E. Rep., 906 (38 L. R. A., 326), cited by counsel, we think the court went too far. In truth, this case seems to stand by itself in the extent to which it has gone in upholding municipalities in the right to prohibit the keeping of hogs within its borders. Ex parte O’Leary, 65 Miss., 80 (3 South. Rep., 144; 7 Am. St. Rep., 640).

Let the case he reversed, and affidavit dismissed.