Yo and Aldermen of Savannah.

thes apele Ho the said land, and bind the same in prefeCog, once or demands whatsoever; and the said his Jamby mrgeable and subject to this condition, lien rovided that in the event of the said land bening divided held by different proprietors, that the said pricios and their said portions of the land respectively held Is there shall be so held and considered liable only in proportion to hold, for all the covenants and agreements contained in this contract provided, nevertheless, and it is hereby fully understood and agreed by the said Mayor and Aldermen, for themselves and their successors in office, that this agreement, and every clause and part thereof, is accepted and entered into, subject to the following conditions and terms-that is to say, that the said William Mein, his heirs, executors, administrators and assigns, shall be at full liberty to make use of water, and in all manner whatsoever, to overflow the said land, and every part thereof, prior to the first day of March, in each and every year hereafter, and from and after the first day of March, of each and every year hereafter, to cultivate in dry culture or keep the land dry until the next succeeding first day of December, without the let, suit, trouble or hinderance of the said Mayor and Aldermen, or their successors in office, or any person or persons acting under their authority; and also, upon the further proviso and condition, that the said William Mein, his heirs, executors, administrators and assigns, shall be allowed, at all times, if necessary, the use of the tide water, for the purpose of aiding in and bringing up the seed of dry culture plants. And in case of a drought between the first day of March and December, the further use thereof to overflow said land, provided that the said land does not remain under water, after such overflowing, more than a single tide, and provided, also, that the said flowing thus permitted, shall be considered as a termination of the drought, as it relates to the said land so overflowed; and provided, also, that the said William Mein, for himself, his heirs, executors, administrators and assigns, may, from time to time, as thought useful or necessary to his or their interests, make and cut canals through the said land, from Savannah river to back river, without let, hinderance or molestation; and the said Mayor and Aldermen of the City of Savannah, as certified by the signature of the Hon. Thos. U. P. Charlton, Mayor of the said City, and authorized under the seal of their incorporation, do, for themselves and their

Green vs. The Mayor and Alderm

successors in office, in consideration of the

ed into, on the part of the said William Mom 161 delivery of these presents, engage and agree to pay paid, to the said William Mein, the sum of thirty dis of said land, now fit and prepared for the dry culture, o to the sum of twelve thousand dollars, for four hundr now fit and prepared for the dry culture contemplated b agreement, and the further sum of six thousand dollars, bang thirty dollars per acre, for two hundred acres of the said tract, mat yet fit and prepared for the culture aforesaid; and the said Mayor and Aldermen of the City of Savannah, for themselves and their successors in office, further engage and agree, that on the first day of March next, the further sums of ten dollars shall be paid for each and every acre of the said land, to the said William Mein, his heirs, executors, administrators and assigns, deducting, nevertheless, from the said ten dollars per acre, when paid, the amount of interest, at seven per cent. on the advance made of the last mentioned sum of six thousand dollars, from the day of payment to the day the said land shall be certified to be fit and prepared for dry culture; and it is hereby further agreed by all the contracting parties hereto, that whenever the said William Mein, his heirs, executors, administrators or assigns, shall notify, by giving a written notice to the said Mayor and Aldermen, or the Board created for carrying the object of this agreement into execution, that said last mentioned acres of land, that is to say, the said last mentioned two hundred acres of land, are fit and prepared for the cultivation of dry culture, that then the parties interested shall each appoint one respectable person to examine and report the state of the said land, and if the balance of the money ought to be paid; and in case of disagreement between the said two persons, they shall choose a third, and the report of any two shall be received and acted upon; and it is further understood and agreed by the contracting parties, that a sufficient margin shall be left outside of the dams, as shall be judged necessary and safe, by the said William Mein, his heirs, executors, administrators and assigns, as well for the protection of said banks, as for procuring earth and materials for the repair and keeping the said dams in order, from time to time.

In witness whereof, the said Thomas U. P. Charlton, Mayor of the said City, hath hereunto set his hand and the seal of the said

Mayor and Aldermen of Savannah.

Wins, and the Wam Mein hath also set his hand and seal, The Tayant above mentioned.

THOMAS U. P. CHARLTON, Mayor.

WILLIAM MEIN.

Seed cost indivered in presence of)

[L. S.]

In 1825, the Legislature of Georgia passed an Act entitled "An Act, to amend and consolidate the several Acts which have been passed in relation to the powers and privileges of the corporation of the City of Savannah, and the hamlets thereof, and for the purposes herein mentioned," by the 1st section of which it was enacted, that "the jurisdictional limits of the City of Savannah, and the hamlets thereof, shall be extended to one mile beyond the present boundary, so as to enable the Mayor and Aldermen, for the time being, to pass an Ordinance or Ordinances, prohibiting the cultivation of rice within the aforesaid extended limits; and if any person, so prohibited in the cultivation of rice, within the limits of the said City, shall feel himself aggrieved by the said prohibition, he shall have the privilege of appeal to a special Jury, before the Superior Court of Chatham County, and the point at issue shall be, Is the cultivation of rice in the place prohibited, injurious to the health of any portion of the citizens or inhabitants of Savannah ? And if it shall be determined that the said cultivation, in said prohibited place, be not injurious to the health of said citizens or inhabitants of said City, then, and in that event, the said prohibition shall be null and void, otherwise to remain in full force and vigor-Provided, nevertheless, that nothing herein contained shall authorize the said Mayor and Aldermen to impose any tax upon persons or property in the aforesaid extended limits."

In 1831, the Legislature passed an Act amendatory of the foregoing, by the 1st section of which it was enacted, that "it shall and may be lawful for the Mayor and Aldermen of the City of Savannah, and hamlets thereof, to pass such Laws and Ordinances as they may consider fit and proper for the purposes of carrying fully into effect the plan and system for reducing to, and keeping in a state of dry culture, the low or swamp lands situate around and lying about the City of Savannah and hamlets thereof; and also to remove such nuisances, or causes of disease, which may affect the citizens thereof, or in any wise injure their health-Pro

Green vs. The Mayor and Alder

tided, the said Laws and Ordinances so pa contrary to, or in violation of, the Cons States, or of this State."

In January, 1826, the Mayor and Aldermen vannah passed an Ordinance, by which, after re 1825, it was ordained that the cultivation of rice w limits be prohibited. By the 2nd section, it was prov any person who shall plant, rear, or cultivate rice, or cau planted, reared or cultivated, in contravention of the provis this Ordinance, shall be subject, and is hereby made subject, to penalty of one hundred dollars, for each and every day that he, she or they shall so plant, rear, cultivate, &c."

The 4th section provided for the collection of those fines by warrant of distress.

On the 29th day of May, 1848, the Mayor and Aldermen of the City of Savannah passed an Ordinance, which, after referring to the power conferred by the Act of 1831, ordained “that it shall be the duty of the Mayor, whenever he shall receive information that rice is planted or cultivated upon any of the lands around the City, subject to dry culture contracts, to serve a notice upon the owner, tenant or cultivator of the said land, or any person having charge of the same, or his, her or their agents, requiring the said persons to desist from the said culture, and to destroy the said rice, if growing; or to appear before Council, at a time and place in said notice to be specified, not exceeding ten days from the date thereof, and to show cause, if any they have, why the said rice should not be removed and destroyed as a nuisance."

Sect. 2. "If the said owner, &c. shall not, upon said notice, comply with the terms of the same, or shall fail to appear before` Council, or if having appeared, no sufficient cause should be shown why the said rice should not be removed, and its culture abandoned; in such case, the said Mayor and Aldermen may direct the City Marshal, forthwith, to remove the said rice, and to destroy the same effectually, wherever it may be growing or planted on the said dry culture contract."

On the 31st May, 1848, a notice was served upon Thomas Green, (an owner of a portion of the tract of land included in the foregoing contract of William Mein,) signed by the Mayor of the City of Savannah, requiring said Green to desist from the cultivation of rice upon the lands included in said contract, and to destroy

Mayor and Aldermen of Savannah.

- tipe Mep before Council on Thursday, 1st of June, in the afternoon, and show cause why the said Stowice strahld not be removed and destroyed as a nuisance. Simon inferred and showed cause, by introducing testimony, 16 ore than the rice was not a nuisance: Whereupon, upon hearIngargiment upon the law and testimony, the Council overruled the swing, and ordered the growing rice to be destroyed. To which decision, Green, by his counsel, excepted, and obtained from the Hon. William B. Fleming, Judge of the Eastern District, a rule nisi, requiring the said Mayor and Aldermen to show cause before him, on 12th June, 1848, at ten o'clock, A. M. at the Court House in the City of Savannah, why a writ of certiorari should not be granted.

Upon said hearing, Judge Fleming refused to grant a certiorari, and decided, among other things, that the Act of 1825, extending the jurisdictional limits of the City of Savannah, one mile, and authorizing the Mayor and Aldermen of the City of Savannah to pass an Ordinance, or Ordinances, prohibiting the cultivation of rice within said limits, is constitutional, so far as it embraces lands which are subject to the dry culture contracts; that said law does not impair the obligation of contracts, nor violate vested rights; that the Act of 1831, and the Ordinance of the City thereon, are constitutional; that said contract binds Mein, his heirs, executors, administrators and assigns, not to cultivate rice upon lands covered by said contract; that rice was not a dry culture plant, in contemplation of said contract; that neither the said Mein, nor his assigns, can deny that the planting of rice, and the crop therefrom, is a nuisance, which can be abated under the Law of 1831; that, as a nuisance, it can be abated under the Act of 1831, by the Mayor and Aldermen.

To which decision, Green, by his counsel, excepted, and has assigned the same as erroneous.

H. R. JACKSON, for plaintiff in error.

BARTOW & LAW, for defendants.

By the Court.-WARNER, J. delivering the opinion.

The two main questions presented for our consideration, on