Green v. Mayor of Savannah

6 Ga. 1

• Court: Supreme Court of Georgia
• Decided: January 15, 1849
• Docket: No. 1
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

The two main questions presented for our consideration, on the argument of this cause, were — First, the construction of the contract entered into on the 29th of April, 1817, between William Mein and the Mayor and Aldermen of the City of Savannah; and, Second, whether the Mayor and Aldermen of the City had the right, under the Constitution of the United States, the Constitution of the State of Georgia, and the Laws thereof, to enact the Ordinances of 26th January, 1826, and 29th May, 1848, in pursuance of which, the growing crop of rice of the plaintiff in error was cut down and destroyed.

Not being unanimous in our opinions as to the construction to be given to the contract, in regard to the absolute prohibition of the cultivation of rice on the lands embraced therein, by the dry culture system, we place our judgment entirely on the other ground, independent of the contract.

[1.] Had the Mayor and Aldermen of the City of Savannah the power and authority, under the Constitution and Laws of the State, to enact the Ordinances of the 26th of January, 1826, and the 29th of May, 1848, and to direct the destruction of the growing crop of rice of the plaintiff in error, in the manner stated in the record? By the 1st section of the Act of the 24th of December, 1825, the jurisdictional limits of the City were extended one mile beyond the then present boundary, so as to enable the Mayor and Aldermen, for the time being, to pass an Ordinance, or Ordinances, prohibiting the cultivation of rice within the aforesaid extended limits. By the 6th section of said Act, the Mayor and Aldermen have full power to remove all nuisances within the limits of the Corporation. Dawson’s Compilation, 464. By the Act of 1831, which is amendatory of the Act of 1825, the Mayor and Aldermen of the City of Savannah are empowered to pass such Laws and Ordinances as they may consider fit and proper, for the purposes of keeping in a state of dry culture the low or swamp lands, situated around and about the City and the hamlets thereof; and also, to remove such nuisances or causes of disease, which may affect the citizens thereof, or in any wise injure their health: Provided, the said Laws and Ordinances shall not violate the Constitution of the United States or of this State. By the 24th section of the 10th division of the Penal Code, it is provided ihat any nuisance, which tends to the immediate annoyance of the citizens in general, or is manifestly injurious to the public health and safety, or tends greatly to corrupt the manners and morals of the people, which may exist in a town or city,, under the government of a mayor, intendant, aldermen, wardens or council, or commissioners, such nuisance, by and with the advice of said aldermen, wardens, or council, or commissioners,may be abated and removed by order of said mayor, or intend-ant, or commissioners, which order shall be directed to, and executed by the marshal of said town, or city, or his deputy; and reasonable notice shall, in every case, be given to the parties interested, of the time and place of meeting of such mayor, intendant and aldermen, wardens or council, or* commissioners. It is also provided, that if the' nuisance complained of, shall be a grist or saw mill, or other valuable water machinery, then, the manner* of proceeding, to abate- the nuisance, is different. Prince's Dig, 648. The Ordinance of the City, passed in January, 1826, under the authority of ’the Act of the Legislature of 1825, prohibited the rearing or cultivating rice within the limits of the City, or within one mile beyond the then present boundary of the same: The plaintiff in error, in the spring of 1848 violated the Ordinance of 1826, by planting rice on Hutchinson’s Island, within the corporate limits of the City, as declared by the Act of 1825, The rice was planted and growing in open violation of a public law of the City, which the plaintiff in error was bound to know; and this law of the City was as binding upon him (if constitutional) as any law enacted by the" General Assembly of the State. By the 22d section of the 1st article of the Constitution, the General Assembly have power to make all Laws and Ordinances which they shall deem necessary and proper, for the good of the State; which shall not be repugnant to the Constitution. Prince, 905.

The General Assembly, by the Act of 1825, delegated the authority to the Mayor and Aldermen of the City of Savannah, to enact the Ordinance of 1826; prohibiting the cultivation of rice within the prescribed limits.

But it is said that the Acts of the General Assembly of 1825 and 1831, and the City Ordinances of 1826 and 1848, made under the authority of those Acts, are unconstitutional; because they violate the contract between the' government and its citizen, under which the latter is entitled to the full and uninterrupted enjoyment of his rights of property. The Mayor and Aldermen derive their authority to make the Ordinances in question, from the General Assembly, and if the General Assembly have not the power and authority to enact such laws and regulations with regard to .the private property of the citizen, under the Federal and State Constitutions, then, the Mayor and Aldermen of the City of Savannah cannot do so. The proposition that the citizen is entitled to the full, absolute and uninterrupted enjoyment of his rights of property, under all circumstances, cannot, for a moment, be admitted. This vested right to his property, is not, under all circumstances, absolute and illimitable, so as to authorise him to use it in any manner, when and where he pleases, regardless of the rights of others. The citizen may have a vested right to malte gunpowder, and have a vested right to the same when made; but he has not a vested right to deposit his gunpowder in the heart of a populous City, in such manner as to endanger the safety and lives of the inhabitants of the City. The plaintiff in error has a vested right to his land, on Hutchinson’s Island; but he has not a vested right to use it, or cultivate it, in such manner as to injure the health of the inhabitants of the City. No one can have a vested right to create or continue a public nuisance, by the use of his property; the fundamental principles of the social compact forbid it. Rut the plaintiff in error contends, that it has not been established, that the cultivation of rice by him on Hutchinson’s Island, did endanger the health of the inhabitants of the City. We have already shown, that the authority was conferred on the Mayor and Aldermen, to pass such Laws and Ordinances as they might consider fit and proper, to remove such nuisances, or causes-of. disease, which might affect the citizens,of the City of Savannah, or in any wise injure their health. The Mayor and Aldermen have already adjudged, that the cultivation.of rice, within the corporate limits of the City, was injurious to the health of the City, by the enactment of the Ordinances of 1826 and 1848. In Martin vs. Mott, (12 Wheat. 19,) it was held, whenever a Statute gives a discretionary power to any person, to be exercised by him, upon his own opinion of-certain facts, it is a sound rule of construction, that the Statute constitutes him the sole and exclusive judge of the existence of those facts.

The principle settled in Martin vs. Mott, applies with much greater force to the law-making power itself, than to a single officer of the Government. Legislative bodies judge of the exigency upon which their laws are founded; and when they speak, their judgment is implied in the law itself. Stuyvesant vs. The Mayor, &c. of New York, 7 Cowen, 607. In the case before us, the enactment of the Ordinance is not the only evidence disclosed by the record, that the growing rice within the corporate limits, was injurious to the health of the City, and therefore a nuisance. The plaintiff in error, was notified to appear before the City Council, and show cause why his growing crop of rice should not be abated as a nuisance. He appeared, and showed cause by introducing testimony: Whereupon, hearing argument upon the law and the testimony, to show the cultivation of the rice was not a nuisance, the City Council overruled the showing, and ordered the growing rice to be destroyed. The judgment of the City Council, upon the question of the existence of a nuisance, within the corporate limits of the City, was, in our opinion, conclusive evidence of that fact. It is also insisted, that the Ordinance of 1848, altered and changed the remedy prescribed by the Ordinance of 1826, to prevent the growing rice within the corporate limits of the City ; that when the plaintiff in error planted his rice, the only penalty which he incurred, was, that he should be liable to pay one hundred dollars, for each and every day he should plant, rear or cultivate rice; whereas, by the Ordinance of 1848, the growing crop of rice is directed to be removed, and destroyed as a nuisance. This latter remedy, it is said, interfered with the vested rights of property of the plaintiff, to the rice planted by him, and destroyed by order of the City Council, and is void, as being repugnant to the fundamental law of the land. The plaintiff’s rice, as we have already shown, was planted by him in open violation of the Ordinance of 1826. Can the plaintiff have a vested right to his growing crop of rice, which was planted, and growing, in open violation of a public law of the City ? Can he be said to have a vested right in that which is unlawful, and prohibited by competent authority 1 The additional, and more efficient remedy, prescribed by the Ordinance of 1848, did not divest any right of the plaintiff, previously acquired, to the growing crop of rice, for the reason that it was planted and growing, in open violation of a public law, of which he was bound to take notice. The Ordinance of 1848, it is said, is unconstitutional, because it destroys the property of the citizen, for the benefit of the public, without compensation. In Young vs. McKenzie, et al. (4 Kelly, 31,) we held, that private property could not be taken and appropriated for the permanent use of the public, without just compensation being made; but there is a wide and marked distinction, in our judgment, between an appropriation of the private property of the citizen, to the permanent use of the public; and a police regulation, prescribing the manner in which the citizen shall use his private property, so as not to injure others. In the one case, the property is taken by the public, and appropriated to its use; the citizen is deprived of it — evicted from it. In the other, the citizen is not deprived of his property; the police law merely regulates the manner in which he shall use it, for the good of the public. The plaintiff in error here, is not deprived of his land, for the use of the public; he has not been evicted from it; he is only restrained from using it in a particular manner, because such particular use operates as a nuisance, and is destructive of the public health. The sovereign power, in a community, therefore, may, and ought to prescribe the manner of exercising rights over property. It is for the better protection and enjoyment of that absolute dominion, which the individual claims. The power rests on the implied right and duty of the Supreme power, to protect all, by statutory regulations; so, that, on the whole, the benefit of all is promoted. Every public regulation, in a City, may, and does, in some sense, limit and restrict the absolute right that existed previously ; but this is not considered as an injury; so far from it, the individual, as well as others, is supposed to he benefited. Vanderbilt vs. Adams, 7 Cowen, 351. If it should he held, that the corporate authorities of the City of Savannah have not the right to regulate the use of private property in the City, so as to prevent its proving pernicious to the health and morals of the citizens, generally, it would strike at the very foundation of all police regulations. Every right, from an absolute ownership in property, down to a mere easement, is purchased and holden, subject to the restriction, that it shall be so exercised as not to injure others. Stuyvesant vs. The Mayor, &c. of New York, 7 Cowen, 605. Baker vs. The City of Boston, 12 Pickering, 193, ’4. The Ordinance of 1848, being a mere police regulation for the protection of the health of the City, does not, in any way, violate the 10th sect, of the 1st art. of the Constitution of the United States, which prohibits the States from passing ex post facto laws, or laws impairing the obligation of contracts. In Gibbons vs. Ogden, (9 Wheaton, 1,) it was held that Inspection Laws, Quarantine Laws, and Health Laws, of every description, form a portion of that immense mass of legislation, which embraces every thing within the territory of the States, not surrendered to the General Government ; all of which can be most advantageously exercised by the States themselves. Our judgment then, is, that the Ordinances of the City Council of Savannah, passed in January, 1826, and in May, 1848, are good and valid, and binding upon the plaintiff’ in error, as folice regulations of the City; and that the Mayor and Aldermen of the City, under the authority of the Acts of the General Assembly, passed in the years 1825, 1831 and 1833, had the power and authority to judge of and declare, the planting and growing of rice, within the corporate limits of the City, to be injurious to the health of the City, and a public nuisance, and to abate the same.

Let the judgment of the Court below be affirmed.