Huntsville's Privy Wars

A Vintage Vignette by John P. Rankin

May 9,2014

While digitally preserving Madison County Chancery Court Record Book BB (1888 - 1890), it was observed that Case Number 1606 involved a heated dispute between property owners and city officials regarding the use of outdoor toilets in the days before city sewers were provided. The case is partially documented on pages 76 - 94 of book BB, then continued in book HH, which is not yet digitized as of this writing date. An outdoor toilet then was called a privy with a sink or a vault for the holding tank. Such was the normal accommodation for human waste in the pioneer days of the county.

Noted in the records as early as 1874 there were official indications of problems with the proliferation of privies on the bluff over the Big Spring. That spring was used to provide a municipal water system by mechanically pumping water to a reservoir at the courthouse or beside the bank on the bluff before 1823, possibly by 1816 according to some sources. Aqueducts from that point provided the water to homes on the bluff. However, there was no associated municipal sewer system at the time. As the town and its government grew, a Board of Health was formed, consisting of several local physicians. By 1874 the Health Board had recommended that the city ban the use of privies within the city limits. When the city finally enacted such an ordinance and started to enforce it, a suit in the Chancery Court was filed by property owners on the bluff on July 4, 1888. The litigation dragged on for six years, running to1894, when it was finally settled by the court with a permanent injunction against the city's enforcement of the ban on privies. The excerpts which follow from Chancery Record Book BB provide some insight into the primary issues and positions of both sides in dealing with this highly offensive, dangerous, urgent, and delicate situation.

The suit as initially filed begins on page 76 and runs to page 79 of Book BB. It was worded as follows:

Morris Bernstein, William D. Allen, Oscar Goldsmith, James R. Stevens, Wilhelmina Dentler, J. Klaus, James B. White, Eliza G. Beirne, Robert E. Coxe, Thomas W. White, and William W. Gordon, as Executor of George S. Gordon, deceased, bring this their bill of complaint against the Mayor and Aldermen of the City of Huntsville, Edward J. Mastin, Brittain Franks, J. R. Stegall, A. S. Fletcher, Sydney J. Mayhew, James Conway, and J. R. Jones, and thereupon Complaintants show unto your Honor:

1) Complainants are all over the age of twenty-one years and are residents and citizens of the City of Huntsville in the County of Madison in the State of Alabama. The Defendants, the Mayor and Aldermen of the City of Huntsville,are a municipal corporation organized and existing under the legislature of the State of Alabama, being the governing body of the City of Huntsville in said Madison County. The other Defendants are residents of said City of Huntsville. The Defendant Edward J. Mastin is the Mayor of said City of Huntsville and is acting as such. The said Brittain Franks is the Marshal of said City and is acting as such. The said Stegall, Fletcher, Mayhew, Conway, and Jones are acting members of the Board of Aldermen of said City.<br><br>

2) The Complainant Morris Bernstein is now and for several years past has been the owner of certain real estate situated on the south side of Gates Street, between Green and Franklin Streets in said City of Huntsville. Upon his said property said Complainant has a residence occupied by himself and his family and also other residences occupied by his tenants. In connection with said residences and for the convenience of the occupants thereof, said Complainant at great expense has had privies erected and has had a sink or vault connected with each of said privies. Each of said sinks was made at considerable expense to Complainant, and when they were made there was no law or ordinance of any kind prohibiting making or use thereof in said City of Huntville. Said privies or sinks have been used and attended to in a proper and careful manner, and so far as said Complainant is informed and believes, have never cause any injury or inconvenience to anyone. Each of the other Complainants herein owns and occupies certain land a premises in said City of Huntsville upon which there is now and for a long time past has been a vault or privy sink connected with or attached to a privy upon said several premises. Said several vaults or sinks have been attended to and and used in a careful and proper manner. They were made at great expense to the owners thereof.<br><br>

3) After said privey sinks or vaults were made and after Complainants had been severally in the long, undisturbed, and unquestioned use thereof, and about two weeks before filing of this bill, said Mayor and Aldermen of the City of Huntsville attempted to enact an alleged ordinance, which was promulgated by publication in the Huntsville Mercury, a newspaper published in said City of Huntsville on the 20th day of June 1888.... Said alleged ordinance was passed and promulgated by said Board of Mayor and Aldermen without any complaint against or notice to Complainants or either of them, and without any trial or hearing of Complainants or either of them and without any opportunity being afforded for such trial or hearing. So far as Complainants are informed and believe, no complaint was made against them or either of them in regard to said privies or said several privies or in regard to said sinks or vaults connected therewith.<br><br>

4) Said Mayor and Aldermen of the City of Huntsville are proceeding to enforce said alleged ordinance and and as Complainants are informed and believe said Mayor has already undertaken to impose fines upon divers persons who are owners or occupants of premises in said City where vaults or privy sinks are used in connection with or attached to a privy in the city without any inquiry whatever as to whether such sinks or vaults are noxious or hurtful or whether they are kept in a careful and proper manner or not. And said Mayor and said city authorities are proceeding against Complainants and threaten to impose fines and imprisonment upon Complainants because they have not filled up their said vaults or privy sinks, and further threaten to enter upon Complainants said premises and take forcible possession of and fill up said vaults and privy sinks. And Complainants verily believe that unless said Defendants are restrained and enjoined by the order of this Honorable Court they will proceed to carry out their said threats and will undertake pursuant to the terms of said alleged ordinance to punish Complainants for said sinks or vaults without any evidence of the noxious or hurtful character thereof and without any trial of the question and will forcibly enter and trespass upon Complainants' said premises and destroy Complainants' said vaults or sinks greatly to the damage and injury of Complainants severally.<br><br>

5) Complainants show unto your Honor that said "The Mayor and Aldermen of the City of Huntsville" were at the time of the passage of said alleged ordinance and are now wholly without any power or authority to make or enforce the same - that said alleged ordinance {is} unconstitutional, null, and void: that the provisions of said alleged ordinance are wholly unreasonable and arbitrary and regardless of the Constitutional guarantee of due process of law: that said City of Huntsville has no general system of sewage and has made no provision for carrying excrementary matter from Complainants' privies by sewers or otherwise: that the sinks or vaults on Complainants' several premises are reasonable and proper arrangements for the purpose, and the use thereof has been a lawful and proper use: and until the passage of said alleged ordinance the making and use of said sinks or vaults was countenanced and and the right of Complainants thereto was unquestioned. And Complainants show unto your Honor that unless Defendants are restrained and enjoined from proceeding against Complainants and their said premises under said alleged ordinance, Complainants will be harassed and and vexed by a great multiplicity of suits and prosecutions thereunder for successive violations of said alleged ordinance.

The Complainants had to post a $500 bond to get their requested injunction, but it was in fact issued by Circuit Court Judge Henry C. Speake and witnessed by J. B. Cabaniss on the day of initial filing, July 4, 1888, as a matter of obvious urgency. An undated copy of the ordinance in question was recorded in the Chancery Record book on page 79 as Exhibit A. The feared ordinance was worded accordingly, as reported in the Bill of Complaint to have been published in theHuntsville Weekly Mercury newspaper of June 20, 1888:

Be it enacted by the Mayor and Aldermen of the City of Huntsville:

That all vaults and privy sinks connected with or attached to any privy in the City are hereby condemned and the use of the same prohibited, and it is hereby made the duty of each and every owner or occupant of any premises in the City where such vaults or privy sinks are now used to have the same filled up with fresh earth even with the surface of the ground within ten days from the passage of this ordinance, so that all excrementory matter shall not be deposited below the surface of the earth. Be it further ordained by the Mayor and Aldermen of the City of Huntsville that if any owner or occupant of any premises in the City where vaults or privy sinks are now used in connection with or attached to any privy in the City shall fail or refuse to have the same filled up within the period of ten days in the manner required by the preceding ordinance shall be fined not less than five dollars nor more than fifty dollars, and they also in addition to the fine be sentenced by the Mayor to hard labor on the streets of the City for not exceeding ten days. Be it further ordained by the Mayor and Aldermen of the City of Huntsville that it shall be the duty of the Mayor of Huntsville, where any owner or occupant of premises where a vault or privy sink is now in use or connected with a privy in the City, refuses or fails to have the same filled up within ten days in the manner provided in {the} previous section, to order the Marshal of the City to proceed without delay to fill up said vault or privy sink, and any effort offered by any one to hinder or delay the Marshal in the discharge of his duty by any person whomsoever and in any manner whatsoever shall be guilty of the offense of resisting an officer, and on conviction shall be fined not less than fifty dollars and be sentenced to hard labor for the City for not more than ten days. That all existing ordinances or parts of ordinances in conflict with these ordinances are hereby repealed. {Signed by} Ed J. Mastin, Mayor.

While the 1888 ordinance had been rushed into effect with almost no warning to property owners and occupants to make other arrangements than use of privies, the issue had for some time been simmering as a known concern. A written report to the Mayor and Aldermen by physicians J. J. Dement and L. C. Pynchon dated March 17, 1874, clearly identified the threat to the health of citizens from (in effect) drinking their own toilet water from the Big Spring. That report was incorporated into the record as follows:

There are a number of sinks scattered over the City, which have been in use for a number of years. In view of the probability of another visitation of Cholera during the coming summer, we would suggest that the sinks be filled up with earth, which is one of the best disinfectants, and new sinks be dug. To those who are able, we would recommend dry earth closets....

It is necessary to call your attention to the fact that in the cellars under the Store houses on the north side of the Public Square that the sinks are placed immediately over crevices, which lead in all probability to cliffs {clefts} in the rock, which communicate with the Spring. These sinks should be abolished at once. It will be seen that sinks which cannot be purified either by disinfectants or by having the offending matter removed should not be tolerated. All this can be remedied by Sewers, as recommended in another part of this report. {Signed by the two above-named doctors and also by H. W. Bassett, M.D. plus J. C. Steel and J. E. Seat.}

Another exhibit in the record was the March 25, 1880, letter to the Mayor and Aldermen from Health Officer W. H. Bassett. {Probably H. W. and W. H. Bassett were the same person, and the recording secretary may have gotten the initials transposed.} That letter included the following statements:

The chief source of damage to the City is in the privy vaults system. This system should be abolished at once and forever. No one should be allowed to have {a} vault of this kind upon his premises. If the earth closet system is too expensive, we insist that the deposit should be made upon the surface of the earth and removed from time to time, outside the City limits. We believe that in this way we are only doing our duty when we insist upon a rigid enforcement of this advice.

Notices written by the Madison County Board of Health Officer, physician M. C. Baldridge, in 1881 and 1884 added, among other things, ... The existence of privy sinks, wherever located in the City, will continually add to the soil pollution, which in time, we know not how soon, will culminate in the outbreak of diseases most pernicious in type. Then it will be too late to prevent the trouble....

In July of 1887, Doctor Baldridge as President of the Madison County Board of Health received the following letter from five citizens, and the letter was incorporated into the Chancery Court record: We respectfully direct your attention to the impurities and disease producing causes which exist in our locality in this City, and ask for protection for the health of ourselves and families by the prompt removal of these causes. We refer especially to the neglected and foul condition of the privy vaults, which as soon as night comes on fills the atmosphere with poisonous gases and oders {odors}, so offensive that our back windows must be closed in this torrid period to exclude them, and in the same locality, at the stable of Duncan and Rand, is a rotting and corrupt mass of decaying vegetable matter, mingled with the putrefying human and animal excreta, the cleansing of animals filled with ... scabs and animal diseases, and dead rats. This foul mass is continually saturated by rains and a stream of hydrant water, with hogs delving into it and turning it up to the rays of the hot sun, emitting noxious and poisonous gases from organic corruption, putrefying excreta, breeding the organized germs of zymotic bacteria, disease carriers, begotten in filth, and swarming in our drink from precipitation into our wells, or infectious germs in the dried condition needing only to reach water or moist atmosphere for quickening and propagation. We have appealed to our Honorable Mayor for relief, and his reply was that your attention had been directed toward the nuisances and that you had declined to give the order for their removal and abatement... We believe that during the summer that the vaults should be required to be cleansed every two weeks at least, and where the parties are unable to pay themselves to have this done, that it should be done at the expense of the owners of the property occupied by such tenants, or at the expense of the City, for the public welfare. We would be unwilling to inflict these evils, which we have endured so long, upon others, but if at 8 p.m. You will spend 1/2 hour in this locality, you will fully recognize our right for complaint. Furthermore, during the last 4 years, there is scarcely a family in the block that has escaped from having from one to 4 cases of Typhoid or similar type of slow fever.... {Signed by} B. C. Curry, M. Berney, J. Coons, John Hooper, Jas. Vann, and Jas. G. Scott.

It would be easy today to blame the city officials for delay and short-sightedness in dealing with the unsanitary situations related to privies in densely populated areas. However, there was almost no recognition in the late 1800s of any particular connection of the odors and ground contamination to such diseases as typhoid. However, typhoid is believed to have been a factor in the demise of Athens in Greece, when power transitioned to Sparta around 425 B.C. Poor sanitation limited the effective size of European cities for centuries, allowing plagues of various types to decimate the population as crowding led to unsanitary conditions. It was 1909 before general awareness of the typhoid connection to poor sanitation and inadequate waste disposal practices led to vaccination of of U. S. Army soldiers against the disease. A number of notable people had died of the disease before appropriate measures were enforced anywhere. Wilbur Wright of the first airplane fame died of typhoid in 1912, even though the first suspected linkage of the disease to sanitation was recorded in 1838 by English doctor William Budd. At that time the role or even existence of micro-organisms was relatively unknown. It was in 1896 that British bacteriologist Almroth Edward Wright introduced the first vaccine against typhoid.

Therefore, to a degree, Huntsville can be seen in the 1880s as being somewhat ahead of most of the world in recognizing this as a significant problem, probably due to some obvious seepage into the drinking water reservoir of the city, Big Spring. In fact, the city not only had physicians advocating better sanitation, but the city officials moved carefully and deliberately over a period of years on the issue. There is much more detail of activities in this case documented in the Chancery records than what has been excerpted here. Of course, as with most governmental issues, first there was "buck passing" -- as when the physicians of the Health Board initially and strongly advocated city action to address the privy issue, then after some citizens later complained to the mayor and aldermen, lack of action by the Health Board was blamed by the officials for the delays. Still, the city officials had consulted their City Attorney, William Richardson, on the issue of privies. It is recorded on pages 93 and 94 of Chancery Court Record Book BB that the attorney gave his opinion (in part) as follows:

If the privy sinks complained of are offensive to adjoining inhabitants or to persons passing along the streets, or are calculated to endanger public health, my opinion is ... that it is the duty of the Mayor to order the City Marshal to remove or abate such nuisance without delay and without the interposition of a jury.

While this opinion gave a sort of "green light" to the Mayor and Aldermen to proceed, it was based upon the need for a "calculation" showing an endangerment of the public health - and that could not be proven at the time. In other words, enforcement was relegated to dealing with a "nuisance" from the odors, lacking proof of the linkage to diseases and effects of pollution of the Big Spring. The suit was ruled by the Chancellor of the Chancery Court, Thomas Cobb, on September 20, 1894, in favor of the initial Complainants. He set a permanent injunction against city enforcement of their ordinance of 1888, based primarily upon the fact that the city had not allowed the property owners the legally-required opportunity to defend their privies as being non-noxious and not a threat to public health. During the time of litigation, the City may have begun providing sewers and/or changed the source of city drinking water away from the Big Spring.

This case possibly has some similarities to the recent debate about allowing city residents to keep chickens. Naturally, the aspect of chicken yards polluting Big Spring today by seepage through fissures in the rock of the bluff would be somewhat insignificant compared to the effects of the ducks and geese that inhabit the area anyhow. Surely the rocks and soil would still provide a degree of filtration and purification that exceeds the result of the "direct dumping" and other pollutions of the water fowl - or should it be said the "water foul" instead? At least, the public is no longer drinking any untreated toilet water from the Big Spring. Huntsville has pure and safe water, with appropriate sanitation throughout the city today.