The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1908-08-06
Finds That 1t Has No Power to
Abate Alleged
Nuisance.
AN OPINION IS RENDERED
BY Courts Lawyers After a
Careful Examination of
Law in the Case.

Late last evening the county court
resclnded and annulled a former or
der to abate an alleged nuisance at
the plant of the Clarksburg Zinc
Company and to close the plant down.
This action was taken on the ground
that while the law as passed by the
legislature gave the court the power.
yet an examination of the law and
that PAT of the state Constitution re-
latlng to the powers OF county courts
resulted in the opinion That the law
was unconstitutional and the court.
therefore, had no Jurisdiction in the
case. The order vacating the former
order was entered after the prosecut-
ing attorney and special counsel E.
G. Smith, had submitted an opinion
to the court as follows:
TO the County Court OF Harrison
County:
In response to your request for
an opinion, respecting the law in GER
tain matters, We submit:
That heretofore 1t was assumed
that all parties conceded the power
of the County Court to act in the
premises and the form OF order up
on that assumption was the only
question propounded for an opinion.
Now, the power of the County
County Court power to abate said
question propounded.
More fully, you have submitted
for an opinion the proposition follow
ing:
Assuming the Clarksburg Zinc
Company is, in the operation OF It's
plant at NorthWiew, generating and
emitting therefrom over the sur
rounding inhabited community,
chlorine gas and other fumes which
have been and now are prejudicial to
the health OF the people of the sec.
tion Of said county adjacent to and
in the neighborhood OF said plant and
within three-quarters OF mile
thereof.
And further assuming the inhab-
itants Of said neighborhood have pc
titioned the County Court in writing
for an abatement of said plant as
nuisance, Drejudicial TO their health,
as aforesaid
And still further assuming the
said company appeared TO said petit
tion and said facts stated in said pc
tition have been proven by sworn
testimony taken at the bar of the
County Court, the said company being
present by counsel and resisting the
relief prayed in said petition on the
merits.
Now. upon these facts, has the
County Court power tot abate said
plant as a nuisance?
In our opinion, Section 25, Of
Chapter 80, of the Code of West Vir-
gtuta, is, in its language. broad
enough fully to authorize such abate-
ment by an order OF the County Court
to that effect, and further fully to au-
thorize IT'S complete enforcement by
the sheriff under the order of the
County Court locking up said plant
and barring the doors thereof, and
by fine for contempt in the event OF
any disregard by said company Of
said order.
This is an act OF the legislature
passed in 1891, Chapter 5, Section 25.
The serious question is, did the
legislature have power to pass this
act? II so, the legislature must
have been authorized so to do by the
Constitution of the State. An exam
lnation OF Article s, Section "a, OF
the Constitution. which defines the
powers of the County Court, reveals
no such authority in specific terms.
In general terms, however, power
is there conferred on the County
Court over Internal police affairs.
and such courts may exercise such
other powers and perform such other
at ~ . inIipin1 ~ "a,
may be prescribed by law
The police power relates to sani-
tary laws. the prevention of contag-
eous and infectious diseases by quar-
antine, slaughtering Of diseased cat
tie, destruction of decayed or un-
wholesome food, pollution OF city
waters by private sewers, and pollu-
ton of the air of the city by smoking
therein and the like. But the police
power has never so far as We can
find, been held to apply to abate-
ment by County Court of an in
dustrial plant on account OF fumes
In a summary proceeding in the
County Court where the proceeding
involves petition, trial and judgment
as here.
The general clause such courts
may exercise such other powers. and
perform such other duties, not OF a
judicial nature, as may be prescribed
by law expressly inhibits the legis-
lature prescribing by law for the
County Court the performance OF any
act or duty of judicial nature.
The case here Is, in our opinion,
of judicial nature, under the de-
cision defining those words made by
our Supreme Court, in the case OF
Arkle VS.. Board of Commissioners,
reported in Al w. Va, Al.
1--WE are. therefore, of opinion that
while the legislature has passed an
Continued on page s.