South Carolina Railroad v. Ells

40 Ga. 87

• Court: Supreme Court of Georgia
• Decided: December 15, 1869
• Status: Published

Opinion

Brown, C. J.

Section 4023 of the Code specifies what nuisances may . be abated, and .gives jurisdiction to any two or more Justices of the Peace, of the county, to abate such nuisance by order, founded upon the opinion of twelve freeholders of said county, summoned, sworn and empaneled for that purpose. Section 4024, is in these words: “If the nuisances complained 'of exists, in a town, or city, under the government of a Mayor, Intendant, Aldermen, Wardens, or Common Council, or Commissioners, such nuisance, by and with the advice of such Aldermen, Wardens, Council, or Commissioners, may be abated and removed by order of said Mayor, Intendant, or Commissioners, which order shall be directed to, and executed by the Sheriff, or the Marshal of said town, or city, or their deputy.” This is substantially the law, as it existed in the original Act of the Legislature, organizing Courts composed of Justices of the Peace, and freeholders, to abate nuisances in this State. See Cobb’s Digest, 817.

The question presented 'by the record before us, is whether the Justices of the Peace of the county have jurisdiction with a jury of twelve freeholders, to abate a nuisance in the city of Augusta, which is governed by a Mayor and Council, who have very full powers, under their charter, to pass all ordinances, and do all acts necessary to the good government of the city, which are not in conflict with the constitution or laws of this State. We are satisfied that no such power has been conferred upon the Justices of the Peace.

This is not a case where the Justices originally had this jurisdiction in the towns and cities and by subsequent legislation the power was conferred upon the authorities of the towns and cities, to exercise the same jurisdiction. If it were so, and the Act, giving jurisdiction to the city authorities, contained no words denying it to the Justices, they would still retain concurrent jurisdiction. The same Act which conferred this jurisdiction on the Justices of the Peace of the county, to abate nuisances, also conferred the same authority, in towns and cities, upon the officers having the government of said towns and cities. The Act, when properly construed, means that the Justices of the Peace, with the aid of a jury, may abate a nuisance in any part of the county, except in a town or city having a legal government under its charter, where it may be done, not by the Justices of the Peace, but by the officers of the town or city'.

We think this not only the true construction of the Act, but we are satisfied the Act is a wise one. If two Justices of the Peace, living in a remote part of the county, had power to summon a jury from the county, and go into the city, and abate whatever they might consider a nuisance, there would be constant conflict of authority, and it would be very difficult, if not impossible, to maintain good order and advance the prosperity of the city. When the nuisance becomes an indictable offence under the Penal Code, the city authorities no longer have jurisdiction; but the Legislature leaves it with them, subject to the legal rules prescribed, to abate any nuisance within the chartered limits of the city, the maintenance of which does not amount to an indictable of-fence under the Penal Code. Taking this view of this case, it is not necessary for us to decide whether the conduct of the railroad companies, which is complained of, amounts to a nuisance in law, or whether the movant in this proceeding (Colonel Vason,) has sustained damage in the legal sense. If his legal rights have been infringed, the Courts are open to him, and he is entitled t® relief, when he institutes the proper proceeding in the proper Court.

2. We hold that the Justices of the Peace had no jurisdiction of the subject matter in controversy, and that their acts were wholly unauthorized by any law qf this State. And we hold further, that the writ of prohibition was the proper remedy to restrain them from proceeding with the case, to the annoyance or damage of the corporations suing out the writ.

J udgmcnt reversed.