Portland v. Cook

87 P. 772, 48 Or. 550, 1906 Ore. LEXIS 124

• Court: Oregon Supreme Court
• Decided: December 11, 1906
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

This action was commenced April 7, 1905, in the municipal court of Portland by that city against J. H. Cook, James M. Neal, and T. W. Bigger for an alleged violation of an ordinance, prohibiting the killing within the city limits of animals, the flesh of which was intended to be sold, and also forbidding the maintenance within such territory of a slaughterhouse. The cause was tried and the defendants were convicted, June 30th of that year, and severally adjudged to pay a fine, from which sentence they appealed to the circuit court for Multnomah County, where they were again tried on a stipulation of facts, a jury having been waived, and, their motion to be acquitted having been overruled, they were again found guilty, and appeal to this court from the judgment which followed. The facts so stipulated are to the effect that, pursuant to a clause of the municipal charter then in force, which authorized the council "to license, tax, control and regulate slaughterhouses, * * and to provide for their exclusion from the city or any part thereof” (Laws 1891, p. 806), Ordinance No. 9641 was passed, February 12, 1896, granting to "L. Zimmerman and his assigns” the right to establish and maintain on his land in the City of Portland, particularly describing the premises, a packing house for curing all kinds of meat, and to erect other buildings in which to slaughter animals. Thereafter Zimmerman, who then was, ever since' has been, and now is, the owner in fee of the real property so described, erected thereon the specified buildings, expending in such improvements more than $40,000; but subsequent thereto an ordinance was passed repealing Ordinance No. 9641. Notwithstanding such abrogation, Zimmerman thereafter continued to operate the business until November 1, 1901, when he leased the real property mentioned for a term of five years to the Northwestern Meat Company, a corporation which, with his consent, sublet the premises for the remainder of the term to the Pacific States Packing Company, a like artificial being. The defendants, Cook, Neal and Bigger, are the president, manager and secretary, respectively, of the corporation last mentioned, and, as the agents thereof, were, on April 7, 1905, when this action was begun, engaged in killing, within the city limits and on the land so leased, animals the flesh of which was intended to be sold, and were also maintaining on such premises a slaughterhouse. At that time Ordinance No. 13,885, adopted April 6, 1904, was in force and provided that it should be unlawful for any person, within the city limits, to kill any animal the flesh 'of which was intended to be offered for sale, or to maintain or use, within such territory, any building as a slaughterhouse, and prescribing as a penalty for a violation thereof a fine of not less than $5 nor more than $300, or imprisonment not less than five days nor more than 90 days. After this action was commenced, but before it was tried in the municipal court, Ordinance No. 14,639 was passed, regulating the slaughter of animals and the inspection of meats, from which we take the following excerpts, deeming them the only parts thereof involved herein:

Section 3. “That from and after the passage of this act it shall be unlawful for any person, firm or corporation to slaughter, sell or offer for sale the meat of any animal not considered ‘game/ intended for human food, within the City of Portland, unless the same has been inspected and approved by the officers appointed and empowered by the city board of health * *

Section 6. “That the Pacific States Packing Company be known as ‘the Portland Abattoir’ where animals may be taken for slaughter and be inspected, and that not more than the following prices may be charged and collected by the person or corporation who now are or who may hereafter be operating the Portland Abattoir, or such other place or places as may be fixed by the board of health for slaughtering anímala intended for human food within the City of Portland. * *

Section 15. “That the firm, person or corporation violating any of the provisions of this ordinance shall, upon conviction, be fined not less than ten ($10.00) dollars, nor more than twenty-five ($25.00) dollars for each offense. * *

Section 16. “That this ordinance shall take effect from and after its passage, the welfare of the city requiring it.”

It is contended by defendants’ counsel that, conformable to the provisions of the municipal charter quoted, Ordinance No. 9641 was passed, granting to Zimmerman the rights herein-before stated," acting on the faith of which he expended a vast sum of money in making permanent improvements upon the real property specified, whereby such right became a subsisting contract between him and the city which could not be impaired by subsequent legislation; that, the grant having also been extended to his assigns, the defendants, as agent of the corporation which 'Secured a lease of the premises with his consent, had the same authority that he possessed to conduct the business thereat, subject only to municipal regulation that the slaughterhouse should not become a public nuisance or detrimental to the health of persons residing in the vicinity, and hence the circuit court erred in refusing to give a judgment of acquittal.

1. The preservation of the public health and public morals is a duty devolving on the state, the discharge of which is denominated an exercise of the police power. This prerogative, though incapable of exact definition or limitation, may be delegated by the state to its agent, a municipal corporation, which is authorized to employ the measure of authority conferred. As the perpetuity of a stable government necessarily depends upon the security of the public health and the maintenance of public morals, neither the state nor its agent can bargain away this branch of sovereignty.

2. As a corollary dedueible from this principle, it results that any permission by statute or ordinance whereby such authority is temporarily surrendered is only a license, a cancellation of which is not violative of a state or of the federal constitution prohibiting the passage of laws impairing the obligation of contracts. Thus a grant of the right to maintain a lottery, for which money has been given, will not prevent a repeal of the authority to conduct such business: Boyd v. Alabama, 94 U. S. 645 (24 L. Ed. 302); Stone v. Mississippi, 101 U. S. 814 (25 L. Ed. 1079); Douglas v. Kentucky, 168 U. S. 488 (18 Sup. Ct. 199, 42 L. Ed. 553). A license to manufacture or sell intoxicating liquor does not create a contract, and for that reason the privilege may be annulled before the expiration of the term for which it was given: Beer Co. v. Massachusetts, 97 U. S. 25 (24 L. Ed. 989) ; State ex. rel. v. Bonnell, 119 Ind. 494 (21 N. E. 1101); Fell v. State, 42 Md. 71 (20 Am. Rep. 83); State v. Cooke, 24 Minn. 247 (31 Am. Rep. 344); Wallace v. Mayor, 27 Nev. 71 (73 Pac. 528, 63 L. R. A. 337, 103 Am. St. Rep. 747).

3. Though the slaughtering of animals, the flesh of which is designed for human food, does not tend to corrupt the public morals and is a legitimate business, which may be classed by some as a necessity, the place where it is conducted may, by reason of its proximity to the residence portion of a city or village, demand its removal, notwithstanding it may have been established pursuant to a statute or an ordinance authorizing it: Butchers’ Union Co. v. Crescent City Co., 111 U. S. 746 (4 Sup. Ct. 652, 28 L. Ed. 585); Villavaso v. Bartlet, 39 La. Ann. 254 (1 South. 599). As illustrative of this principle see, also, Fertilizing Co. v. Hyde Park, 97 U. S. 659 (24 L. Ed. 1036). All property is acquired and held subject to the rule that it shall be so used as not to injure another, and, though at the time of establishing a lawful enterprise in a place where the probability of injury to others arising therefrom is remote, if the undertaking should become offensive by reason of many persons moving into the vicinity or passing it daily, whereby the public health is menaced, the business must yield to the paramount right of an exercise of the police power for the suppression of nuisances: Coates v. Mayor of New York, 7 Cow. 584; Brady v. Weeks, 3 Barb. 157.

4. The occupation of a building in a city as a slaughterhouse is prima facie a nuisance to persons residing near it: Wood, Nuisance (3 ed.), §571; Catlin v. Valentine, 9 Paige 575 (38 Am. Dec. 567).

5. Though under a general grant of power over the subject a common council, has no authority to adopt an ordinance declaring a thing a nuisance which in fact is not one, yet in doubtful cases, depending upon a variety of circumstances requiring an exercise of judgment and discretion, their action is conclusive, and, pursuant to such grant, they are empowered to adopt an ordinance declaring a slaughterhouse within the corporate limits a nuisance: Harmison v. City of Lewiston, 115 Ill. 313 (38 N. E. 628, 46 Am. St. Rep. 893).

6. Ordinance No. 9641, pursuant to and upon the faith of which Zimmerman made valuable improvements upon his real property, did not, in our opinion, create a contract between him and the municipality, and the common council were authorized, when the public health so demanded, to repeal the law and to cancel the license granted to him, as was done December 2, 1897, by the passage of Ordinance No. 10,560; for, the authority to provide for the exclusion of slaughterhouses from the city or any part thereof having been expressly granted (Laws 1891, p. 806), of which Zimmerman is presumed to have had knowledge, the exercise of the power thus conferred must be as efficacious as though the council had been granted authority to declare what constituted a nuisance and to provide for the abatement thereof.

7. It will be remembered that, after the repeal of the ordinance granting to Zimmerman the right to maintain a packing house, etc., the council, on April 6, 1904, passed Ordinance No. 13,885, making it unlawful for any person to slaughter within the city limits any animal the flesh of which was intended to be offered for sale. At that time the city charter had been amended in some particulars, but the clause herein-before quoted had not been materially changed, and now confers upon the council the following authority:

“To regulate, restrain, and to provide for the exclusion from the city, or any part thereof, of * * slaughterhouses.” Sp. Laws 1903, pp. 3, 30.

Based on this grant of power, the remaining question is whether or not the passage of Ordinance No. 14,639, without referring to Ordinance No. 13,885, was a repeal thereof by implication so far as it relates to the Pacific States Packing Company, and, as the abrogating ordinance does not contain a saving clause respecting violations of the prior law or of penalties incurred thereunder, but was passed before the judgment was rendered, was an error committed in refusing to acquit the defendants?

■ The repeal of a law imposing a penalty will prevent any trial or judgment for an offense committed against it while it was in force, unless the annulling act expressly stipulates to the contrary or the penalty may be inflicted under some existing general law: Bndlich, Int. Stat. §478; Sutherland, Stat. Const. § 166. “Where, however,” says the latter author (section 143), “the new statute contains no reference for repeal or otherwise to existing statutes, and defines an offense made punishable by a prior law, and imposes a new punishment, it will not repeal such prior law as to existing eases; for, as the new law will only operate prospectively, there is, as to offenses already committed, no conflict. The prior law will operate as to all offenses against it committed up to the time that the new law goes into effect, and the trial may be had and judgment pronounced afterwards.” Without quoting from, or commenting upon, some of the provisions of Ordinance No. 14,639, we shall, without deciding the question, assume that the enactment licensed the Pacific States Packing Company to operate a slaughter-house on the premises which were leased from Zimmerman, but, as the ordinance relates to the killing of animals within the city “from and after the passage of this act,” which by its terms went into immediate effect, and prescribes penalties for a violation thereof different from Ordinance No. 13,885, it did not repeal the latter act in respect to violations thereof committed prior to the passage or Ordinance No. 14,639. Commonwealth v. Wyatt, 6 Eand. (Ya.) 694; Commonwealth v. Pegram, 1 Leigh (Ya.) 569; Allen v. Commonwealth> 2 Leigh (Ya.) 727; Pitman v. Commonwealth, 2 Eob. (Ya.) 800; Miles v. State, 40 Ala. 39; Mongeon v. People, 55 N. Y. 613.

8. At the trial in the circuit court testimony was received, over objection and exception, to the effect that the operation of the slaughterhouse by the Pacific States Packing Company tended to create a nuisance. The defendants were charged with unlawfully killing within the city limits, animals, the flesh of which was intended to be sold, and also maintaining within such territory, a slaughterhouse. The testimony so objected to was therefore irrelevant.

9. As the cause was tried without the intervention of a jury, and the defendants admitted the charge but claimed immunity therefrom, the error complained of is not material, and hence the judgment is affirmed. Affirmed.