Town of Davis v. Davis , 40 W. Va. 464 ( 1895 )

TIolt, Judge :

This was a proceeding' on the part of the incorporated town of Davis against S. T. Davis, to have declared to be and abated, as a nuisance, a steam riding gallery, commonly called a “merry-go-round,” operated by defendant Davis in the town, on lot No. 73. Such proceedings were had that the town council, by judgment rendered on the 10th day of August, 1894, declared the same to be a nuisance, and ordered it to be abated — to be stopped, we infer. On the 17th day of August, S. T. Davis presented to the Circuit Judge, in vacation, his petition for a writ of certiorari, but on mature consideration it was refused, and to such refusal this writ of error was granted. Defendant Davis appeared at the time and place mentioned in the process before the members of the town council, and moved to quash and dismiss the summons, as unauthorized by law, and as otherwise .faulty and defective.

Was such motion improperly overruled? Section 28 of chapter 47 (see Code, 1891, p. 426) which defines the powers and duties of the council, and among them the power to prevent injury and annoyance to the public or to individuals, and to abate, or cause to be abated, anything which, in the opinion of the majority of the whole council, shall be a nuisance, does not prescribe the forms and methods of procedure. Therefore they are allowed a wide discretion, within the limit of reasonable fairness. In this case there was a petition and information, signed by fifty residents of the town, supported by two supplementary affidavits, suggesting the location of the riding gallery, the name of defendant as the owner operating it, and praying that he might be summoned to show cause why the same should not be declared to be a nuisance and abated, being complained of as both a public and private nuisance. Upon tbis tbe summons in the nature of a scire facias, or rule to show cause, was issued. It gives the defendant notice of the injury and annoyance suggested and complained of, commands the officer to sunl-mon him to appear at a certain time and place “to show cause, if any he can, why the steam riding gallery, commonly known as the ‘merry-go-round/ owned by him, and operated on lot No. 73, as shown by the map of the town of Davis, between the hours of eight and ten p. m. each day, since the 3d day of August, 1894, until this date, shall not be declared a nuisance, and abated as such. (Dated and signed by the mayor.)” I know of no law requiring it to be signed by the members of the council. In view of the purpose the summons and forms of procedure are intended to accomplish and subserve, I can call to mind no more short, simple and efficient form than this, to give the party written notice of the thing complained of, the relief asked, and of the time, place and tribunal when and where he is to appear and show cause why the same should not be granted. As to the authority for it, it finds justification in the forms of the various writs of scire facias and rules to show cause which have been in use for the like purpose time out of mind. They were used before the ordinary distinctive forms of common-law actions came into existence, and they still survive as efficient and simple methods of notice and procedure in daily use.

But it is said that it is a- writ, and void because it does not' run in the name of the state, as required by section 8, article II of the Constitution. See Code, 1891, p. 21. I do not regard it as a writ or process of any tribunal acting as a court, but simply a notice, in the name and on the behalf of the town of Davis, that defendant should appear before the council at the time and place designated, and show cause, if any he could, why they should not, in the exercise of their police power, abate his riding gallery, as a nuisance — a method deemed expeditious enough to meet the exigencies of this particular case, and certainly proper in itself, and fair to the defendant; for it not only gave him an opportunity to show cause, but to remove or stop it himself if he saw fit. The defendant demanded, as matter of right, a continuance of the cause for seven days, as allowed by section 58 of chapter 50 of the Code in an ordinary civil action before a justice. This was refused, but the further hearing was deferred for twenty four hours.

Such refusal was not error, for three reasons: First. It was not a cause within the meaning of that section. Nor was the mayor acting as a justice of the peace to try a case between parties, but as the chief executive officer of the-town, according to section 39 of chapter 47 of the Code, which makes it his especial duty to see that the peace and good order of the town are preserved, and that persons and property therein are protected. Therefore, when fifty residents lodged with him their sworn information and complaint of a nuisance, and asked its abatement, and that defendant, might be cited before the council to show cause, if any he-had, against it, the mayor caused such citation to be issued and served, in the name and on the behalf of the municipality, for a hearing of the matter before the common council,, having first fixed the time and place. Second. If, within the meaning of the section, defendant made no affidavit, and in. such .case the statute requires it. Third. And when the examination took place, on the next day, defendant appeared with, and examined on his own behalf, some twenty five-witnesses.

Again it is said there was error because the council heard the case when the recorder was absent. Section 27 of chapter 47 says, “The mayor and recorder shall vote as members’ of the council.” But section 24 of chapter 47 says, “A ma-ority of the council shall be necessary to form a quorum for the transaction of business.” And the inference is that no-greater number is required, unless the law in the given case specially makes the presence of the whole, or such greater-number, necessary. I can find no such law. The section relied upon for this contention is section 28, which says the council shall have power to abate, or cause to be abated, anything which in the opinion of a majority of the whole council, shall be a nuisance. This does not mean that more than a quorum must in such case be present, but that a majority of the whole, including those absent as well as those present, must concur in such opinion. Here five out of the whole seven concurred in the opinion to abate.

The defendant urges that the remedy by injunction should have been resorted to. In most cases — in many cases, rather —it is hard to conceive of a judicial remedy more full and complete, more flexible in adaptability to the peculiar exigencies and ever-varying requirements of the-cases, or, what may be more to the point, more simply efficient and speedy; ■so much so that it has become a common judicial remedy in a common criminal nuisance, where abatement is necessary, and in a large class of cases has well-nigh superseded actions of law, except, perhaps, where mandamus is added to what we would call common-law suits, as an ancillary remedy, or mode of carrying a specific judgment into effect. But I take it for granted that some sort of- a nuisance, great or small — and many of a petty character — arises almost every -day in cities and towns. It would be intolerable to have to apply to a Circuit Court, in such cases; and it would seem not to be necessary under this statute, in most cases, where the party is properly heard before he is condemned, though it is easy to imagine grave and perplexing questions where such resort to the ordinary courts would be prudent and discreet, and especially sale, on the part of the common council. Long experience, the great practical test of general fitness and convenience in such matters, has shown that self-governing municipalities must have large powers over such affairs, for the prevention of injury and annoyance to individuals, and the protection of the public from things dangerous, offensive, or unwholesome; in other words, to see that each one has the full enjoyment of his rights of life, liberty and property, and therefore that each one shall so use such rights of his own as not to invade or injure those of another. This is the main purpose of their creation, and the chief function in their existence; so that their fair and honest efforts in that behalf should be liberally construed, and steadily upheld. But, on the other hand, it would be intolerable for such local municipal authorities of a town to meet in private, and declare a particular thing to be a nuisance, without giving the party an opportunity to be heard and show cause against it. See Yates v. Milwaukee, 10 Wall. 498. Hence what seems to me to be the fair and prudent course was pursued"by the mayor and council of the town of Davis in this instance.

Now the question arises, and has been discussed, what is the nature of such proceeding? It is plainly judicial in its character. I hardly see how it can be regarded otherwise. It is true that it is in the exercise of the general police power delegated by the legislature. But is the judicial ascertainment of a fact in a proceeding in the concrete case against a particular person and thing, after due notice given, in order to ascertain the character or status of the thing as a nuisance, followed by execution of the judgment, any the less a judicial proceeding, in the particular instance, because it is done under the delegated police power? It is mérely a concrete case of the administration of justice, like all other cases judicial. This defendant complains of this seizure of his property as unreasonable, the condemnation of it as a public nuisance as unlawful. Can it be that such seizure and condemnation are final and conclusive? It has been held not to be conclusive, and that the party proceeded against can test the validity of the action of the council by certiorari, if not by distinct action against the town for damages. See Cole v. Kegler, 64 Iowa 59 (19 N. W. Rep. 843).

Neither do I agree with counsel for appellee that his remedy was by prohibition, and not by certiorari, for here no question is made that the statute in question is not constitutional, and that the town authorities did not have jurisdiction of the subject-matter; so that if they failed to follow the law, in applying it to the facts of the case, the remedy is by certiorari, and not by writ of prohibition. Mayor, etc., of Montezuma v. Minor (1883) 70 Ga. 191. The statute gives no appeal in such cases, and, being the creature of statute law, it does not lie, except where it is given by express terms.

The rule with regard to a certiorari is the very reverse. It always lies, unless expressly taken away, and it requires very strong words to do so. The reason of this is that it is an extremely beneficial writ, being the medium through winch the court of queen’s bench exercises its corrective jurisdiction over the summary proceedings of inferior courts. 2 Smith Lead. Cas. (9th Ed.) p. 998, note to Crepps v. Durden. And, so far from this common-law writ being taken away in this state, the constitution, in express terms, gives the circuit court supervision and control over all proceedings before justices and other inferior tribunals by certiorari (see Const. Art. VIII, s. 12); and by section 2 of chapter 110 of the Code (Ed. 1891, p. 761) the common-law jurisdiction of the writ is declared, and in every case, matter, or proceeding before a council of a city, town or village it is expressly provided that, subject to certain exceptions mentioned, the record or proceeding may, after a judgment or final order therein, be removed by a writ of certiorari to the proper Circuit Court, and such writ may be' awarded by the judge in vacation as well as by the court. Fof mode of procedure see section 4, etc., of chapter 110.

It is true that the question of what is a nuisance in a given case is a very perplexing one, and one that the tribunals are constantly called upon to decide; but so far from that being a .reason why it should be left to the sole and unappealable decision of the council, with unlimited power to say what is a reasonable exercise of such power, it must for that reason be liable to frequent and grievous abuse, in the illegal and unnecessary injury of private property and invasion of private right, and must strengthen rather than weaken, the claim of the party affected that he should have the right to subject the proceeding to the scrutiny of the ordinary courts. I think, therefore, that the Circuit Court had jurisdiction of the case.

As we have already seen, this was a summary Conviction of defendant for the creation of a nuisance, which has been affirmed in the Circuit Court on certiorari. In such a case the clause which determines the jurisdiction of this Court by the value of the matter in controversy does not apply, an appellate jurisdiction is expressly given in cases of certiorari by section 3 of article VIII of the Constitution. See Code, (Ed. 1891) p. 38. And even if it were a civil case, and one in which the jurisdiction is to 'be determined by the value of the thing declared to be a nuisance, it would not be going iar to assume, as a matter of general knowledge, that a steam engine, boiler, riding apparatus, etc., were of greater value than one hundred dollars.

The Circuit Judge to whom the record — made up of the evidence given and proceedings had before the council — was presented, together with a petition praying that a writ of certiorari might be awarded, heard the application upon the merits, and refused to award the writ. The question now reached is, was such refusal right? Reviewing the proceeding of the council upon the merits, and determining all questions arising on the law and the evidence, as certified, and rendering such judgment upon the whole matter as law and justice require, should the order of the town council have been affirmed, if the certiorari had been allowed?

Many of the questions raised by the plaintiff in error have already been discussed and considered. Was the riding gallery a nuisance at that particular place and time? is the only one that remains. That depends upon the place, the time, the circumstances, the manner in which it was operated, and the effects it produced. Did the noise and crowd, and other effects of this riding gallery, invade any public or private right? Did it materially interfere with and impair the ordinary physical comfort of any one of normal sensibility and ordinary mode of living, in his home or place of business? The place has much to do with it. It seems to have been on a vacant lot in a populous part of the town, with at least four dwellings near by. The time is important. It was operated up to ten and half-after ten o’clock in the night, tending to prevent and disturb sleep, and had been kept up continuously for six days. The attending circumstances are important. It drew tq the place a large and noisy and boisterous crowd. The nature of the thing itself is important. It was run by a steam engine. The whistle blew every few minutes. The music played, the gallery ran around, the crowd hallooed, etc., until ten o’clock at night. That it was a mere idle amusement, perfectly legitimate in a proper place, or at a proper time, is, not wholly unimportant. That which calls together a disorderly crowd in a public place was held to be a public nuisance in King v. Moore, 3 Barn. & Ald. 184. The making of loud music, with instruments ■or otherwise, in the night time, to the disturbance of a neighborhood, was held to be a public nuisance in Rex v. Higginson, 2 Burrows 1233; Com. v. Oaks, 113 Mass. 8; Com. v. Smith, 6 Cush. 80. Those who participated did not regard it as a nuisance. Some of the witnesses attended. Some permitted their children to attend. ' They thought it a harmless amusement for the children. It did them good, rather than harm, and the proprietor was careful, polite, and kept good order. This, I take for granted, is true, at a proper time and in a proper place. . Other witnesses lived at a distance. They, of course, were not annoyed, and they thought it was not a nuisance to those who lived near by. Four witnesses who lived close by say that it was a nuisance, disturbed and annoyed them at their homes, and prevented or interrupted their sleep. One witness, who lives on the same street, five lots below, says it was a considerable annoyance, and, to some extent, kept him awake. Quite a number of witnesses who live or'do business near by were not annoyed by it, and do not regard it as a nuisance. From all this, and from the general character of such machines in operation, with their usual accompaniments, it is not hard for one to form a pretty accurate opinion on the question involved; that is, that when kept up day and night, for days together, in such a place, it ivas a decided nuisance to some! people, of ordinary sensibility, who lived or had their place of sleeping adjoining or close to the vacant lot No. 73, while to those who lived at a distance, those who participated, and some of those who lived close to the place, it was 'not a nuisance — did not annoy them to any material extent. Such questions can not be decided by a mere count of those two classes, or by taking a vote of the town. Whether a thing is or is not a nuisance does not depend upon the notions of people living in a designated locality. “No man has a right to take from another the enjoyment of what are regarded by the community as the reasonable and essential comforts of life because the notions of some individuals, or of the people of a given locality, may not correctly estimate the standard of such comforts.” Owen v. Phillips (1881) 73 Ind. 284, 295. See Snyder v. Cabell, 29 W. Va. 48 (1 S. E. Rep. 241); Powell v. Furniture Co., 34 W. Va. 804 (12 S. E. Rep. 1085).

On lie wliole I think that a merry-go-round, run by a steam engine, the whistle of which blew every few minutes,, accompanied by a band, and attended by a large, noisy and boisterous crowd till after ten o’clock at night, disturbing-some of the people living near by it, is such a nuisance as a town council has power to abate, after proper investigation under Code, chapter 47, section 28.

In reaching this conclusion as to the results produced by the acts complained of, I lay great stress upon the finding of the council — men whose duty it was to ascertain them, and who had a right to observe and inspect for themselves,, as well as to hear testimony. The law lays down no fixed method of procedure, and we may well believe that they resorted to means found to be so useful in like cases; that is, they went upon the ground and viewed the place in question and heard and observed for themselves the facts relating to the controversy. See section 30, chapter 116, Code. With, this view of the law and the facts of the case, the judgment complained of is affirmed, but by an equally divided court.