174 P. 717 | Or. | 1918
The chronology of events involved in this litigation may be thus set down: first, the admitted regular establishment of the county road; next, the digging of the mill-race; then the incorporation of the town under the general law of 1893; and, finally, the enactment of a new charter by the initiative process, containing the excerpt already quoted. Under the general law by virtue of which the plaintiff was first incorporated it had a right
“to exercise any and all police regulations concerning the public morals, public safety, public health and public convenience of the inhabitants of any such city or town”: L. O. L., § 3229.
In addition to the power assumed by the initiative charter as stated, that instrument gave the council power “to prevent and remove nuisances and to declare what shall constitute the same.” (Section 15.) By Section 1 the town was awarded the power “to sue and be sued, defend and be defended, and plead and be impleaded in all courts of justice of the State of Oregon and of the United States in all actions, suits and proceedings whatever; to purchase, hold, own, lease and acquire and possess by purchase, gift or otherwise, both real and personal property within said town for public buildings, public works and improvements and may and shall have the right of possession and control of all public parks and all tracts of land within the limits hereinafter described, which have heretofore and may be-hereafter dedicated, or in whatsoever manner obtained, for public purposes.”
“Any person or persons having the right to a water privilege shall not be required to construct or .keep in repair a bridge or bridges across any race convey*419 ing water to or from Ms or their mill on any road or roads.”
This contention is without foundation for the following reason: The section was part of an act of the territorial legislature entitled “An act fixing the rate of toll for grinding.” This legislation was had undei the authority of the congressional act of August 14, 1848, entitled, “An act to establish the territorial government of Oregon.” The last sentence of Section 6 of the enabling act reads thus:
“To avoid improper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.”
No proper reasoning can include in a title “fixing the rate of toll for grinding” an exemption from bridging a piill-race. So far as the latter provision is concerned it is of no force or effect and nothing can be claimed by the defendant under its provisions. Moreover, the use of all property whatever is subject to the general police power of the State, to be exercised either directly or through subordinate agencies of the government to whom the state may intrust the exercise of that prerogative.
In Mugler v. Kansas, 123 U. S. 623, 678 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273), the court had under consideration the thirteenth section of an act of the State of Kansas declaring, among other things, that all places where intoxicating liquors were manufactured, sold, bartered or given away in violation of the act should be common nuisances. It was contended that equity had no jurisdiction to enforce that provision without a previous judgment at law. After quoting from 2 Story’s Eq., Sections 921, 922, Mr. Justice Hablan used this language:
“The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy, than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in prog'ress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury: District Attorney v. Lynn & Boston R. R. Co., 16 Gray (82 Mass.), 242, 245; Attorney General v. New Jersey R. R., 3 N. J. Eq.*423 136, 139; Attorney General v. Tudor Ice Co., 104 Mass. 239, 244 (6 Am. Rep. 227); State v. Mayor etc., 5 Port. (Ala.) 279, 294 (30 Am. Dec. 564); Hoole v. Attorney General, 22 Ala. 190, 194; Attorney General v. Hunter, 16 N. C. (1 Dev. Eq.) 12; Eden on Injunctions, 259; Kerr on Injunctions (2 ed.), 168.
“As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits of equity brought to .abate a public nuisance.”
The opinion goes on further to hold in substance that while proof of the hurtful character of the thing in question must be afforded notwithstanding the legislative direction that such a thing shall be construed a nuisance, yet the equity tribunal is as competent to determine that matter as a court of law.
It would be intolerable to hold that the owner of property could defy the proper authority of a city or town by remaining outside its territorial jurisdiction while the use of his property in the manner forbidden by the police regulations would continue indefinitely. Nor does it avail the defendant to say that he has leased the property to another, for that is merely contracting with that other to manage the defendant’s mill-race in a way forbidden by the police regulations.
The decree of the Circuit Court is therefore reversed and the cause remanded to that court with directions to enter a decree according to the prayer of the complaint, with a' proviso that the defendant be allowed a reasonable time, there to be fixed, within which to comply with the demand of the plaintiff that the race be covered with substantial planking in a manner rea
Beversed and Bemanded. Behearing Denied.