164 Ind. 671 | Ind. | 1905
The question presented by this appeal is whether or not cities governed by the act of 1867 (Acts 1867, p. 63), and the acts amendatory thereof and supplemental thereto (§3531 et seq. Burns 1901), had the power
1. It. has been held that a town or city may prohibit the operation or maintenance of slaughterhouses within tire territory over which it has police power, if expressly authorized so to do by the legislature. McQuillin, Mun. Ordinances, §448; Beiling v. City of Evansville (1896), 144 Ind. 644, 35 L. R. A. 272; Boyd v. City Council, etc. (1897), 117 Ala. 677, 680, 23 South. 663; City of Portland v. Meyer (1898), 32 Ore. 368, 52 Pac. 21, 67 Am. St. 538; Ex parte Heilbron (1884), 65 Cal. 609, 4 Pac. 648; Harmison v. City of Lewistown (1894), 153 Ill. 313, 38 N. E. 628, 46 Am. St. 893; City of Spokane v. Robison (1893), 6 Wash. 547, 33 Pac. 960. See, also, City of Newton v. Joyce (1896), 166 Mass. 83, 44 N. E. 116.
2. It is the law in this State that municipal corporations possess and can exercise only such powers as are granted by the legislature in express words and those necessarily implied or incidental to those expressly granted, and those necessary to the declared objects and purposes of the corporation. Eo incidental powers can be implied except such as are essential to the accomplishment of the purposes of their creation or for their continued existence. Doubtful claims to power, or any doubt or ambiguity in the terms used by the legislature, are resolved against the corporations. Pittsburgh, etc., R. Co. v. Town of Crown Point (1896), 146 Ind. 421, 422, 35 L. R. A. 684, and cases cited.
3. It is claimed by appellant that such power was given by the eleventh subdivision of §3541 Burns 1901, Acts 1895, p. 180, §53, which reads as follows: “To direct the location of markets or slaughterhouses or powder magazines, and to regulate the same; and, for that purpose, shall have jurisdiction for two miles in all directions from the city
4. Moreover, the fourth subdivision of §3541, supra, clearly shows that the legislature did not understand that the power to direct the location of a business or building authorized a city to exclude the same from the territory over which the corporation had jurisdiction, for that subdivision not only gave the power to direct the location, but also, in express words, the power to prohibit. Said subdivision reads as follows: “To direct the location of tallowchandleries, soap factories, and other buildings or structures ; and to prohibit the erection of such buildings, or the continuance of noxious trades or business therein, whenever the health or welfare of the city shall require the same; and, for that purpose shall have jurisdiction two miles in every direction from the city limits.” It is manifest that the words “to direct the location” have no broader or different meaning in the eleventh subdivision of §3541, supra, than in the fourth subdivision of said section, where it is shown that the legislature did not intend by the use of said words to grant the power to prohibit. Pitte v. Shipley (1873), 46 Cal. 154, 160; Postal Tel. Cable Co. v. Farmville, etc., R. Co. (1899), 96 Va. 661, 32 S. E. 468; 2 Lewis’s Sutherland, Stat. Constr. (2d ed.), §399, p. 758. Anything in
5. Appellant insists, however, that said fourth subdivision gave authority to cities to prohibit slaughterhouses within the limits named therein. Counsel for appellant say: “Here is expressed power absolutely to prohibit the location within two miles of the city limits of any tallowchandlery or soap factory ‘and other buildings or structures.’ These ‘other buildings or structures’ must mean something different from, but similar to, tallow-chandleries and soap factories; and if slaughterhouses do not come within that idea of similarity we do not know what would.” It is sufficient answer to this contention of appellant to say it is a familiar rule that when there is in the same statute a particular enactment, and also a general one, which in its most comprehensive sense may reasonably, though not necessarily, be construed to include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. ' In other words, the special mention of one thing indicates that it was not intended to be covered by a general provision in said act which would otherwise include it. Endlich, Interp. of Stat., §§396, 399; Felt v. Felt (1865), 19 Wis. *193, *196; State, ex rel., v. Hobe (1900), 106 Wis. 411, 423, 82 N. W. 336; Mason v. City of Ashland (1898), 98 Wis. 540, 544, 545, 74 N. W. 357; Long v. Culp (1875), 14 Kan. 412, 414, 415; State v. Showers (1885), 34 Kan. 269, 272-274, 8 Pac. 474; Kountze v. City of Omaha (1901), 63 Neb. 52, 54, 55, 88 N. W. 117. Under* this rule, even if the fourth subdivision were broad enough to include slaughterhouses, it is clear that the express mention of slaughterhouses in the eleventh subdivision of §3541, supra, indicates that said fourth subdivision was not intended to include slaughterhouses.
6. Appellant insists further that “the implied powers
Applying the rule that doubtful claims to power or any ambiguity or uncertainty in the terms used by the legislature are resolved against the corporation, it is evident that appellant had no power in 1903 to prohibit slaughterhouses within the territory over which it had police control.
Judgment affirmed.
