{
  "id": 8652067,
  "name": "THE STATE v. JAMES WILSON",
  "name_abbreviation": "State v. Wilson",
  "decision_date": "1890-02",
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  "last_updated": "2023-07-14T20:21:20.066111+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE STATE v. JAMES WILSON."
    ],
    "opinions": [
      {
        "text": "MereimoN, C. J.:\nThe statute (Pr. Acts 1885, ch. 40, sec. 56) makes it a misdemeanor to violate an ordinance of \u201cThe City of Statesville,\u201d and the general statute (The Code, \u00a73820) makes it a misdemeanor to violate the ordinance of any town or city, and the offender may be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days. Of course, such ordinances must be valid \u2014 such as the town or city has authority to make. State v. Langston, 88 N. C., 692;. State v. Brittain, 89 N. C., 574.\nThe statute (The Code, \u00a73818) gives the Mayor, or other chief officer of such towns or cities, jurisdiction of such offences. State v. Cainan, 94 N. C, 880; State v. Crenshaw, Id., 877; State v. Debnam, 98 N. C., 712; State v. Smith, 103 N. C., 403. So (hat the Mayor had jurisdiction in this case, if, indeed, the offence, as charged, was committed, and for the present purpose, it must be taken that it was. But it is earnestly contended by the defendant\u2019s counsel that the ordinance in question\u2014that above recited\u2014creates no offence; that it is void, because it is its purpose to create an offence defined, recognized and punishable by the general laws of the State, of which the Superior, Criminal and Inferior Courts have jurisdiction, and he relied mainly on Town of Washington v. Hammond, 76 N. C., 33; State v. Edens, 85 N. C., 522; State v. Langston, supra, and State v. Brittain, supra. The contention is that the acts forbidden by the ordinance-, of themselves, constitute a public nuisance.\nWe think otherwise. The mere obstruction of a waterway, so that water shall accumulate on the street, or so as to prevent the flow of water through, or from, the streets, does not per se and necessarily constitute a public nuisance. The obstruction might be slight, occasional, temporary\u2014 such as would not interfere with the use of the street or occasion perceptible harm. Such obstruction would not constitute such a nuisance unless it should interfere with the use of the street \u2014 hinder, delay, impede, or render less safe and convenient travel on foot, or otherwise, over it, or cause the water to accumulate, remain, become stagnant, and give rise to noxious vapors and the like, along and near the street.\nThe very purpose of the ordinance is to prevent such nuisances \u2014 to go beyond, extend and enlarge the advantage, convenience and protection ordinarily afforded by the general law's of the State. State v. Edens, supra; State v. Cainan, supra. The ordinance was, therefore, valid, and a violation of it constituted the offence charged, not very formally, but sufficiently, in the warrant.\nThe affidavit and warrant constituted one proceeding, and embodied the criminal charge \u2014 the violation of the ordinance \u2014 not a nuisance, in the ordinary legal sense. State v. Sykes, 104 N. C., 695. The facts stated in them, and the express reference therein to the ordinance, plainly charged, and it was intended thereby to charge, a violation of the ordinance, and the words, \u201c thereby damaging said street,\u201d etc., which the Court allowed to be stricken from the warrant, could not change or affect the nature of the offence charged \u2014 they were mere surplusage, serving no necessary purpose.\nThe mere addition in an indictment of unnecessary words applicable to another and higher offence than that charged, does not vitiate the indictment or change the nature of the offence. Hence, in State v. Keen, 95 N. C., 646, where the indictment charged a misdemeanor, it was held that, charging the act to have been done \u201cfeloniously\u201d was no substantial ground of objection \u2014 this unnecessary word was treated as surplusage. State v. Thorne, 81 N. C., 555; State v. Edwards, 90 N. C., 710; State v. Watts, 82 N. C , 656; State v. Slagle, id., 653.\nThe amendment of the warrant complained of was really not necessary, but clearly the Court had authority to make it \u2014 it did not change the nature of the offence, and the Mayor had jurisdiction thereof. State v. Smith, 103 N. C., 410, and cases there cited.\nThere is error. The judgment quashing the warrant must be set aside, and the case disposed of according to law.\nError.",
        "type": "majority",
        "author": "MereimoN, C. J.:"
      }
    ],
    "attorneys": [
      "The Attorney General and Sir. C. II. Armfield, for the State.",
      "Messrs. II. Bingham, S. 0. Caldwell and W. I). Turner, for defendant."
    ],
    "corrections": "",
    "head_matter": "THE STATE v. JAMES WILSON.\nJurisdiction \u2014 City unci Town Ordinances \u2014 Amendment \u2014 Nuisance.\n1. The Maj'ors of towns and cities have jurisdiction of the offence of violating town or city ordinances.\n2. The mere obstruction of a water-way, so that the water cannot flow through a street, does not, per se, constitute a nuisance.\n8. An ordinance of a town which prohibits the obstruction of a waterway, and thereby prevents a nuisance, is not invalid, because the offence of creating a nuisance is cognizable under the general law of the State.\n4. Where it appears from the allegations in the affidavit and warrant, and upon the proofs, that the Mayor or Justice of the Peace really had jurisdiction, an averment that takes the case out of such jurisdiction may be cured by amendment or treated as surplusage.\nThis ACTION was begun before the Mayor of Statesville, and, on appeal, was tried at Spring Term, 1890, of the Superior Court of Iredell County, Shipp, J., presiding.\nThe defendant was held to answer, criminally, before the Mayor of \u201cthe city of Statesville\u201d for a violation of an ordinance of that town, whereof the following is a copy:\n\u201cOrdered by the Board of Aldermen of the city of States-ville, that no person shall place any obstruction in any water-way, so that the water shall accumulate in any street, or in any manner obstruct the flow of water through or from any street of the city of Statesville, whether such obstructions be placed upon his own property or that of any other; and any one so offending shall be fined $50.\nThe affidavit upon which the State warrant was founded charges that the defendant, at and in said city, &c., at the time specified, did \u201cdarn up and obstruct the water-way and flow of water from the south side of Walnut street, between Rose street and Oak, in violation of the ordinance of the said cit}, passed July 2d, 1888,\u201d &c. The warrant refers to and recites the charge so specified in ihe affidavit. The defendant was convicted before the Mayor, and appealed to the Superior Court. In the latter Court he pleaded not guilty.\nWhen the case was called for trial, \u201cthe defendant moved to quash the warrant upon the ground that the Mayor had no jurisdiction, and as he had no jurisdiction, this Court had no jurisdiction. The State aslced to amend the warrant, and the Court allowed the amendment, by striking out the words in the warrant, \u2018thereby damaging said street by ponding the water thereon, which became foul and malarious, to the great damage and nuisance of the city of Statesville,\u2019 and insert in lieu thereof the words, \u2018 thereby obstructing the flow of water from said streets,\u2019 to which amendment the defendant excepted. The Court, being of opinion that the Mayor had no jurisdiction, rendered judgment quashing the warrant,\u201d and the Solicitor for the State, having excepted, appealed to this Court.\nThe Attorney General and Sir. C. II. Armfield, for the State.\nMessrs. II. Bingham, S. 0. Caldwell and W. I). Turner, for defendant."
  },
  "file_name": "0718-01",
  "first_page_order": 744,
  "last_page_order": 747
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