Opinion
No. 33413.
February 6, 1939.
1. MUNICIPAL CORPORATIONS.
Where notice to citizens of municipal authorities' intention to adopt zoning ordinance together with plans setting forth character of zoning ordinance to be adopted was not published before adoption of ordinance, the ordinance was void (Code 1930, sections 2475-2477).
2. AUTOMOBILES. Health.
That intended occupant of proposed building and filling station was a bootlegger and syphilitic did not bar owner of lot from erecting building and filling station.
3. AUTOMOBILES. Health.
The alleged fact that prospective occupant of proposed building and filling station was a bootlegger and syphilitic did not bar him from possession of premises and conducting a filling station and café thereon.
4. AUTOMOBILES. Health.
That lot on which proposed filling station and café were to be erected was close to school building did not bar landowner from erecting the filling station and café.
5. EQUITY.
Allegation of bill of complaint stood admitted, where defendant merely denied each and every allegation of the complaint (Code 1930, section 380).
6. EVIDENCE.
Supreme Court judicially knows that at certain stages of the disease and under some circumstances syphilis may be transmitted from one having it to another by personal contact or by such other coming in personal contact with articles recently handled by the syphilitic.
7. NUISANCE.
If the defendant were suffering from syphilis at such a stage thereof that the disease might be transmitted, the defendant could be enjoined from personally dispensing food and drink to patrons of defendant's proposed café unless state board of health had valid regulation covering situation and facilities to enforce it, and would do so if called on therefor.
APPEAL from the chancery court of Marion county; HON. BEN STEVENS, Chancellor.
R.H. Dale, of Columbia, for appellants.
This court has frequently held that a court of equity will not enjoin the mere apprehension of an injury, but that there must be some immediate and impending danger of an injury.
Edgell v. Clark, 76 Miss. 66; Griffith's Chancery Practice, par. 436.
I submit that appellee fell short in producing evidence to substantiate the allegations of its bill, as to the appellant being a notorious bootlegger or that he was suffering from syphilis.
The purpose of Section 1536 of the Code of 1930 giving to the patient the privilege stated, cannot be taken away from the patient by showing that the physician who examined the patient was not the physician of the patient. In other words, appellant, Jackie Williamson, cannot be denied the privilege of this statute by showing that the physician who made the examination was not his physician, but a physician of the Veterans Administration.
Haworth v. Kansas City R.R. Co., 94 Mo. App. ___; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320.
The law will not permit a party to make a memorandum of a fact and introduce it as evidence of that fact when he is by statute denied the right to testify.
10 R.C.L. 341; Post v. Kenerson, 72 Vt. 341, 82 A.S.R. 948; Wells v. Shipp, 1 Walk. (Miss.) 353; Gueen v. Hepburn, 7 Cranch (U.S.) 290; Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 123 Am. Rep. 415; 28 R.C.L. 534, par. 123.
If the facts as alleged in the bill were true, that would not constitute a nuisance and the erection of the building on the lots in question would not constitute a nuisance, and if no nuisance existed at the time of the filing of the bill of complaint and securing the temporary writ of injunction, then the writ of injunction should have been dissolved on the motion made for that purpose. It would have been sufficient time to have filed the bill after the building was completed and after Williamson began its operation in such a manner as to cause the same to be a nuisance, but to hold that an injunction could issue for the mere apprehension that a nuisance might exist sometimes in the future is not sufficient.
The statute authorizing municipalities to pass a zoning law, specifically sets out the manner and method of procedure. Section 2476 of the Code of 1930 specifically states that the regulations shall be made in accordance with a comprehensive plan, and then sets out the purpose for which it was designed. This section contemplated that before such ordinances should be adopted, and before any notice was given of a public hearing in relation thereto, that the Board of Aldermen must formulate plans which consisted of regulations, restrictions and boundaries and making a map or plat showing the location of the various districts and the regulations restrictions and boundaries of such districts, and this must be reduced to writing, and filed with the clerk of the Board of Aldermen before the notice is given for the public hearing in relation thereto.
The purpose of the notice of a meeting in relation to such an ordinance is to give the citizens of the town an opportunity to appear and see whether or not they would be affected by the passage of such an ordinance, and to give them an opportunity to object to the passage of such an ordinance, and ask that the plans in regard thereto be changed, so that the districts would be equal and uniform, and that the buildings to be erected in each district should be uniform for each class or kind of building throughout each district, so as to get the best results from the passage of such a zoning ordinance. The procedure laid down for the passage of such an ordinance was not followed in the least, and for that reason the ordinance in question is void and of no effect, and the Chancellor was correct in so holding.
When a statute provides a mode of procedure for municipal councils designed to protect the citizens and taxpayers from hasty and ill considered legislation or to enforce publicity in the actions of the council the mode of procedure thus prescribed must be strictly observed. Such statutory provisions constitute conditions precedent, and unless an ordinance or resolution is adopted in compliance with the conditions and directions thus prescribed it will have no force.
19 R.C.L. 888, par. 188.
If the ordinance in question was void, then the erection of the building in question would not be unlawful, and an injunction could not issue restraining and enjoining its erection unless the erection of said building would constitute a nuisance.
Building Commission v. Kunin, Ann. Cas. 1916C, 963; Rochester v. Walters, Ann Cas. 1916C, 965; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446.
The erection of the building in question would not, within itself, constitute a nuisance, and, therefore, the court had no right to enjoin its erection on the ground that the occupancy of the building and its use would be detrimental to the interest and welfare of the school children and the public generally, and, therefore, a threatened nuisance. Hall Hall, of Columbia, for appellee.
Appellee's zoning ordinance was legally adopted and the trial court was not warranted in declaring it void.
Section 2476, Code of 1930; State v. Traylor, 56 So. 521, 100 Miss. 544; City of Hazelhurst v. Mayes, 51 So. 890, 96 Miss. 656; Hamner v. Yazoo Delta Lbr. Co., 56 So. 466, 100 Miss. 349; Section 2479, Code of 1930; 15 C.J., pages 832-834, sec. 150; Weston v. Hancock County, 98 Miss. 800, 54 So. 307.
This court has already upheld the validity and constitutionality of municipal zoning ordinances adopted under authority of the Standard State Zoning Law.
Jackson v. McPherson, 138 So. 604, 162 Miss. 164; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; 54 A.L.R. 1030.
It has been held that statutes conferring upon the municipal corporations the power to enact zoning regulations should be liberally construed.
43 C.J. 334; Utica v. Hanna, 202 App. Div. 610, 195 N.Y.S. 225.
The federal statute created the Veterans Administration, formerly known as the United States Veterans Bureau, and made provision for the keeping of certain records and files and then provided that these records and files should be deemed confidential and privileged and that no disclosure thereof should be made except under certain enumerated conditions, among which conditions was a provision to the effect that these records, reports and files should not be deemed confidential and privileged in any judicial proceeding when in the judgment of the Director of the Veterans Administration a disclosure should be deemed necessary and proper.
38 U.S.C.A., sec. 456, par. (c); 22 C.J. 791, sec. 901; Long v. U.S., 59 F.2d 602.
The Chancellor was warranted in decreeing that appellant Jackie Williamson is a syphilitic regardless of the competency or incompetency of the testimony in question.
Section 380, Code of 1930; Griffith's Chancery Practice, 353, sec. 348.
The injunction was properly granted.
The appellants contend that the city should stand by and let the building be erected and let the business be put in operation in charge of a bootlegger and syphilitic under the very shadow of its high school, before any action could or should be taken. If our contention with reference to the validity of the zoning law, as argued under the first division of this brief, is well taken, then of course appellant's point now under consideration does not merit any further answer, but, even if our position as to the zoning law is incorrect, still we submit that the Chancellor was abundantly warranted in granting the injunction under the facts in this case. Judge GRIFFITH says that injunction will lie when "there is a reasonable probability that an injury will occur" and in this case we feel that there is certainly such a reasonable probability that the Chancellor was fully warranted in granting the injunction and putting an end to the whole nauseating mess before it went any further.
For many years the rule has been followed that courts will judicially know that syphilis is a serious disease and may be transmitted to a person without actually engaging in sexual intercourse with a syphilitic.
23 C.J. 148, sec. 1969; Metropolitan Life Ins. Co. v. Goodman, 10 Ala. 446, 65 So. 449; Cecil's "A Textbook of Medicine," (4 Ed.), pages 362-363.
The Mississippi State Board of Health has recognized the danger of permitting a person suffering with an infectious disease, such as syphilis, to handle and serve foods in hotels and restaurants. Article 19 of the Sanitary Regulations of the Mississippi State Board of Health provides as follows: "No person suffering from cancer or any contagious or infectious disease or who has recently been exposed to a quarantinable disease shall be employed in any hotel or place where food is served."
Section 4875, Code of 1930.
Section 2396 of the 1930 Code of Mississippi confers on municipalities the following authority: "Nuisances and cognate matters. — To make regulations to secure the general health of the municipality; to prevent, remove, and abate nuisances; . . ." It will be noted that by this code section a municipality is not only authorized and charged with the duty of making regulations to secure the general health of the municipality and of removing and abating nuisances, but also of preventing nuisances.
Section 4881, Code of 1930.
It is our position that under Section 2396 and Section 4881, the City of Columbia had a perfect right to bring this suit to prevent the communication by the syphilitic Jackie Williamson of his highly dangerous disease to the school children of the community and to others, and it is our further position that the fact the constituted health authorities were vested with the right to act toward such prevention neither restricts nor enlarges such right vested in the City of Columbia.
43 C.J., pages 206, 207 and 208.
Morris owns a vacant lot in the City of Columbia in the same block and fronting the same street as does a public school. He placed thereon a lot of building material for the purpose of erecting a house and a gasoline filling station, of both of which he intends to put Williamson in possession, who will operate the filling station and a café in the building. The city sued out an injunction against both Morris and Williamson restraining both of them from constructing the building and filling station and Williamson from operating the filling station and café. On final hearing, this injunction was made perpetual. The grounds on which the injunction was sought are: (1) That the construction of this building and filling station violates the city's zoning ordinance; and (2) That Williamson is a bootlegger (of intoxicating liquor) and a syphilitic. The court below heard the case on bill answer to proof and held that the zoning ordinance was void, but that Williamson was both a bootlegger and a syphilitic, and sustained the injunction on that ground.
Municipal zoning ordinances are authorized by Section 2474 et seq., Code 1930. Section 2475 provides for the division of a municipality into districts and that: "within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land." Section 2476 provides that: "Such regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets;" etc. Section 2477 provides that: "no such regulation, restriction or boundary shall become effective until after a public hearing, in relation thereto, at which parties in interest, and citizens, shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality."
Pursuant to a resolution therefor adopted at its regular June 1936 meeting, the board of mayor and aldermen of the City of Columbia published a notice to the public setting forth its intention to adopt a zoning ordinance and setting Monday, June 22, 1936, at 7:30 P.M. as the time for hearing expressions of opinion from citizens of the municipality thereon. No one appeared pursuant to this notice and the board at the time set forth therein adopted a resolution so reciting and instructed the city attorney "to draft a Standard Zoning Ordinance and submit same to the Mayor and Board of Aldermen for their approval or disapproval at their regular July 1936 meeting." No further action thereon was taken by the board until September 2, 1937, when a zoning ordinance, the one here invoked, was adopted.
The sections of the code hereinbefore referred to require the governing authorities of a municipality, before publishing notice to the citizens of their intention to adopt a zoning ordinance, to adopt a comprehensive plan therefor setting forth either specifically or substantially (which we are not here called on to decide) the character of the zoning ordinance which they intend to adopt so that the citizens may know exactly what is intended to be done and be able to express an intelligent opinion thereon. This was not here done before June 22, 1936, not until the ordinance itself was thereafter adopted. Consequently, the zoning ordinance is void.
That Williamson is a bootlegger and a syphilitic does not bar Morris from erecting this building and filling station, although his purpose is to put Williamson in possession thereof; nor do the same facts bar Williamson from the possession of the premises and conducting a filling station and café thereon; nor does their proximity to the public school so do. Should Williamson hereafter sell intoxicating liquors at this place, a different question will be presented.
Paragraph XI of the bill of complaint is as follows: "Complainant further alleges that the said Jackie Williamson is now infected and suffering with the disease of Syphilis and it is his purpose and intention to operate a lunch counter upon said premises and to sell sandwiches and other food products and beverages therein, and particularly to sell and dispense the same to the school children of said city, as well as to the general public, and to handle and dispense the same personally, and if the erection of said building continues, and if the said Jackie Williamson is permitted to operate said business, there is great danger that the said school children, as well as the general public, might be exposed to the said disease of Syphilis, with which the said Jackie Williamson is now suffering, and might thereby be caused to be infected with said dangerous disease, and the health of said children and of the general public will thereby be seriously endangered." On these allegations the question arises as to whether Williamson can be enjoined from personally dispensing food and drink in the proposed café. These allegations were denied by Williamson in the following language: "This defendant specifically denies each and every allegation in Paragraph XI of said bill of complaint. . . ." Section 380, Code 1930, provides: "The defendant shall answer fully all the allegations of the bill without being specially interrogated. All matters of fact averred in the bill and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted." Griffith's Chancery Practice, Secs. 348, et seq. Williamson's denial of the allegations of paragraph XI of the bill of complaint do not meet the requirements of this section, and therefore the allegations stood as admitted in the court below. We judicially know that at certain stages of the disease and under some circumstances, syphilis may be transmitted from one having it to another by personal contact with him or by such other coming in personal contact with articles recently handled by the syphilitic. A prima facie case is therefore presented as to Williamson being a syphilitic and of the consequence here to flow therefrom. Whether his condition, if he in fact has syphilis, is now such as to cause such danger to arise, is within his own knowledge or may be ascertained by a test for syphilis, to which he, if he so desires, may submit himself. This feature of the case was not passed on in the court below, it not being necessary under its decree so to do. The decree of the court below will be reversed, the preliminary injunction will be dissolved and the bill dismissed as to Morris and also as to Williamson except in so far as it seeks to restrain him from personally dispensing food and drink at his proposed café; and the case will be remanded to the court below for the determination of that question.
On return of the case to the court below, if it should then appear that Williamson is suffering from syphilis at such a stage thereof that would probably result in his communicating it to the patrons of his proposed café by his personally dispensing food and drink to them, he should be enjoined from so doing unless it should be made to appear that the State Board of Health has a valid regulation covering the situation, has the facilities to enforce it and will so do if called on therefor. Should this appear, the bill of complaint should be wholly dismissed without prejudice to the appellee's right to again apply for the injunction in event the State Board of Health cannot and will not act effectually.
We express no opinion on objections made by Williamson to evidence introduced by the appellee as they may not arise on another trial.
Reversed, bill dismissed in part and remanded.