The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1912-02-16
JUDGE MASON

u UO0VG t1IttOOtbt
Continued from page onel.
Tappear before the council and rule Ii
sued and served upon him requiring
him to appear and show cause VIII,
the alleged nuisance should not b
4 abated. He appeared IN person an,
lby, attorney. Defense was made, Wit
'lnesses for both sides were examined
land Judgment rendered by council
that the factory in question be de
4 clared a nuisance. This order o
Judgment was at the request of Park
er, suspended for thirty days to ALLOW
thine for writ of certiorari. The wri
lof certlorari was never applied for
but instead thereof a paper signed b,
Parker and wife, and N. w. Talking
'Iton was presented to the, mayor Of the
city, proposing that If time be giyeI
until February fss. 1912, in which tc
ALLOW the plant TO be changed so as tc
obyiate the necessity OF burning coal
that they would and indeed gid thereby
bind themselves not to, burn coal in
the operation of the factory. and not
to maintain any nuisance in connec-
ton Herewith on and after February
list, 1912. The order was suspended
as requested. 1t will be observed that
the order of council does not direct
or require the use OF gas. 1t simply
declares the factory as then being ope-
rated to be nuisance. Mr.. Parker
now asks review of the proceedings
by Injunction. Is this the remedy?
This is not a question Of first impress
sion in this State. The town Of Davis
against S. T. Davis, 40 w. Va. 464, is a
case in point. In that case, as in this,
the proceeding was by rule requiring
Davis to appear before council and
show cause why the business COM
planned Of should not be declared a
nuisance, and abatea as SucR!s Davis
App cared, had a hearing and the coun=
.giifdsclaSaf4Y vs. Z f6mt1 FroSmliinbIaFned OIL
1ta ftsat 6i a merry 60 roIhd4a nuisance
and made an order 2abatings II From.
this 6fder a writ Of certiofari was TAX
en- and the action If the city council
reviewed by the Supreme Court, and
tha nroceedines before the CITY couIl-
III annroved Nv tbe supreme Court 40
~ Va asa ME case If har and Davis
20 Dayis raise nrecisely the same.
questions of law If this decision Of
ia snnreme Cont Is the law then
Sart ihTarI a ne q nroner remedy d and
InTot inipnnSctionn n III noassing "a On the Da.
II w VT Davis case .assj tbe Court saws:
Hoint 4 wv 4 " nroceedine b Il ' ,s Town
esenncil ogainst a nerson nj for ms, MAINTAIN.
ing . nuisance is indicial in its char.
ac1or and tho decision 10 snbiect to
raviow" point : "Wbnra a nerson
a ccn.od ~ maints;n,np nuisance
sseIs aqerieved nv tho decision n, the
toun oo"nc,l bis remadv a. tho stamte
,r;,as mn onnaoI and M onestion is
NOD +bot mo sta4nte Il nnconstlhi.
t,ono1 or that the town anthoritles
ala ~. hova irriodiction ~ tho snh.
100. mo+tsr 10 hy cortiorari and not
h. nrobihition y
This oninion :, NV Judgment IN
Wow ~ III tho sacts and nIesdings Is
~ mic once PARKER has
~ odonnate and effective remedy at
low and givas M snf,cient reason for
! nn,ying 70 a court Of comfy Repatd.
Il a. y do tba coso of Dov,s ys IA.
nc &c nronound,ng the law or mis-
500 on th;s subject !, is clearly nv
Intv n follow. n must stand as
No law until oveTTTnled lTbe ru.e
.he.a ar,,nototod con he cbanyod Nv
Nc Srnrane Court only ~ nv the Lee.
s,otura Rut i,+is said that Davis vs.
aris ~,s SeciSoS bv divided caur;
,md hos s,nco hee,, criticised nv The
s Wv. Cour, in eoilroad Comnanv
- Tnmn ~ Trioda,nhie 20 w Va
100 Trno noris We Davis voc decid.
~ hv d,r,doJ conrt hut nv reter.
,aoo 20 +Sa nn,,ions - Tho Judges
.iIoS IN thot cosa II will ho yonnd that
no d,sosresment, hetweep the fonr
I,,a.as s1ttina In tho nosa was IN ra-