168 Ind. 230 | Ind. | 1907
Appellant was convicted of violating an ordinance of the town of Syracuse, which prohibited the keeping of hogs in a pen within the corporate limits when within two hundred feet of a street or alley of the town.
The only error assigned is the overruling of appellant’s demurrer to the amended complaint.
The sufficiency of the complaint is attacked upon the ground that the provisions of the ordinance upon which it is based are too broad and sweeping to be a valid exercise of the police power.
The court of criminal appeals of Texas upheld an ordinance which prohibited the keeping of hogs within one mile of the court-house, the corporate limits of the town extending one and one-half miles in each direction from the court-house. Ex parte Glass (1905), (Tex. Cr.), 90 S. W. 1108.
In the case of Smith v. Collier (1903), 118 Ga. 306, 45 S. E. 417, the supreme court of Georgia held that an ordi
The supreme court of North Carolina held an ordinance to be valid which prohibited the keeping of hog-pens within one hundred yards of another’s residence. State v. Hord (1898), 122 N. C. 1092, 29 S. E. 952, 65 Am. St. 743.
The supreme court-of Massachusetts sustained an ordinance prohibiting the keeping of swine within particular districts of the city, and declared that, in the absence of evidence to the contrary, the court will presume that such ordinance is reasonable. Commonwealth v. Patch (1867), 97 Mass. 221.
The supreme court of Iowa confirmed a conviction under an ordinance of the city of Cedar Rapids for maintaining a pen in which one hog was kept, in violation of a regulation of the board of health. It- was admitted in the ease that the pen was kept clean, and was not a nuisance by reason of filth, but was a nuisance, if at all, because of the regulation of the board of health. The court said in concluding the opinion: “Before an ordinance or regulation
of a board of health can be said to be unreasonable, it should clearly so appear. The question should not remain doubtful, and the. exercise of the discretion necessarily reposed in the officers and boards of cities making regulations for the preservation of the health of the inhabitants cannot be declared invalid unless it clearly so appears. A legal restraint may be imposed on the few for the benefit of the many. We conclude that the regulation and ordinance cannot, as a matter of law, be said to be unreasonable.” State, ex rel., v. Holcomb (1885), 68 Iowa 107, 26 N. W. 33, 56 Am. Rep. 853. As illustrative cases see, also, Hoops v. Ipava (1893), 55 Ill. App. 94; Ex parte
The strongest cases cited by appellant in support of his contention are, Ex parte O’Leary (1887), 65 Miss. 80, 3 South. 144, 7 Am. St. 640, State v. Speyer (1895), 67 Vt. 502, 32 Atl. 476, 29 L. R. A. 573, 48 Am. St. 832, and McKnight v. City of Toronto (1883), 3 Ont. 284. We need not attempt to distinguish these cases, or to reconcile the apparent conflicts, as we are satisfied that our conclusion is in accord with the authorities, sound legal principles, and a wholesome administration of the law.
The ordinance in question is the product of the legitimate exercise of a legislative power and administrative discretion lodged in the municipality for the promotion of the public health and comfort, and we are not warranted in saying, as a matter of láw, that its provisions are unreasonable or improperly invade private rights. The court did not err in overruling appellant’s demurrer to the amended complaint.
The judgment is affirmed.