Birch v. Ward

75 So. 566, 200 Ala. 118, 1917 Ala. LEXIS 320

• Court: Supreme Court of Alabama
• Decided: April 5, 1917
• Docket: 6 Div. 438.
• Status: Published

Opinions

ANDERSON, G. J.

This was an action of trespass against the defendants for tearing down a house belonging to the plaintiff, the defense being that said house constituted a nuisance, and that the defendants acted under the authority of and in behalf of the city of Birmingham, and the jury found that it was a nuisance. Indeed, the (argument of counsel of the chief legal questions is upon the hypothesis that the house was a nuisance at the time of its destruction.

[1] 4s to- whether or not the municipality, the city of Birmingham, had the authority, under the common law, to abate nuisances, and whether or not it could do so by removing or destroying same, or whether or not the right went to public as distinguished from private nuisances, we are not concerned, as the statute gives this right as to all nuisances. Sections 1264, 1278, Code 1907. In fact, the appellant’s counsel do not seriously question .the authority of the city, but contend that this authority could not be delegated or authoz’ized except by an ordinance. The act being zninisterial, we think that it could be delegated to an agent or official of the city by general ordinance or authorization, and need not have been by a special ordinance to do the specific thing. While the act providing for the ■ commission form of government for the city of Bii-mingham attempts to define the duties of the commissioners, respectively, it contains a general clause which z-eads as follows:

“This provision shall not be construed however so as to prevent the said board from delegating or.assigning to one or more of its boards or to such boards, commissions, officei’S or employes as may be created or selected by it, the perfoi-manee of such executive and judicial power’s and duties as may be necessary or convenient, provided the same is done.by resolution, by-law or ordinance duly enacted according to the terms of this act.”

[2J In pursuance to this authority it appears that Ordinance 27-0 was adopted. Section 1 provides for a general division of the powers; section 3 prescribes the duties of the head of each department, and gives the commissioners, respectively, the supervision and control oyer all subordinates belonging to their departments; and section 4 defines the duties and the authority of the department over which the defendant, Geo. B. Ward, presided, and which included the building inspector. This court takes judicial notice of the said ordinance. Section 7, Acts 1915, p. 294. We not only think that the defendant, Ward, had the authority to act for tire city in the abatement or the destruction of the nuisance; but, if such was ziot the case, the act of Bostick in tearing down the building was ratified by tbe city in paying him for doing the identical thing. If this house was not a nuisance, and there was a suit against the city for destroying same, we hardly see how it could escape liability under the facts disclosed, upon the theory that Ward and Bostick had no authority to act for and were not in fact acting in its behalf.

We also think that the defendants showed a substantial compliance with the building’ code in and about the destruction of the building. The foregoing sufficiently disposed of groups 1 and 2 of the assignments of error as,well as group 4.

Group 3 of the assignments of error relates to the plaintiff’s refused charges. The bill of exceptions recites:

“Tbe following written charges wore requested by the plaintiff and refused by the court.”

This recital would indicate that the charges were not only asked in bulk, but were also refused in bulk, as there is nothing to indicate that they were acted upon separately and severally. Therefore, unless all of said charges were good, the trial court cannot be put in error. Southern R. R. v. Douglass, 144 Ala. 351, 39 South. 268; Verberg v. State, 137 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17; Suell v. Derricott, 161 Ala. 261, 49 South. 895, 23 L. R. A. (N. S.) 996, 18 Ann. Cas. 636; Stowers Co. v. Brake, 158 Ala. 639, 48 South. 89. It is sufficient to say that charges A, B, and C were manifestly bad.

The judgment of the city court is affirmed.

Affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.