88 Neb. 247 | Neb. | 1911
In the police court of the city of Kearney the Union Pacific Railroad Company, defendant, was convicted of violating a city ordinance regulating the location of stockyards. Upon appeal to the district court for Buffalo county, defendant was ordered to pay a fine of $10 for the offense described, and as plaintiff in error it now presents to this court for review the record of its conviction.
Among the powers which the legislature delegated to the city of Kearney to be exercised by ordinance are the following: “To make regulations to secure the general health of the city, to prescribe rules for the prevention, abatement, and removal of nuisances; to make and prescribe regulations for the construction, location, and keeping in order of all slaughter-houses, stock-yards, warehouses, sheds, stables, barns, dairies, or other places where offensive matter is kept, or is likely to accumulate, within the corporate limits or within five miles, and to limit, or fix, the maximum number of swine or neat cattle that may be kept in sheds, stables, barns, feed lots, or other inclosure within the city.” Comp. St. 1909, ch. 13, art. III, sec. 48, subd. 46.
In exercising the powers thus granted, the city of Kearney passed an ordinance containing the following provisions: “It is hereby made unlawful for any person or persons, firm, partnership, corporation or association, to erect, keep or maintain any stock-yards or pens which are kept or used for the yarding or keeping of any horses, cattle, hogs or sheep in the city of Kearney within the following limits, bounded as follows: By Tenth avenue on the Avest, on the north by Thirty-first street, thence south on Q street to the Union Pacific railroad tracks,
It is established by the evidence without any controversy that within the limits thus described defendant’s stock-yards were located and maintained at the time charged in the information, namely, May 28,1908. It was for this infraction of the laAV defendant was fined, and the only defense1 to the prosecution is the invalidity of the ordinance. The stock-yards have been in the present location seAren or eight years. The ordinance, if valid, Avill require their removal, and defendant argues that the city of Kearney had no express power to make such a regulation. This proposition is clearly at variance with the language copied from the charter, which grants to the city in express terms power to make and prescribe regulations for the location of stock-yards, where offensive matter is kept or is likely to accumulate.
It is further argued: “The ordinance was void, because maintaining stock-yards within the prescribed limits was made illegal even though maintained in a perfectly legal manner, and no distinction was made between such as might be thus properly maintained and those that might be as a matter of fact a nu-'.mnee.' In other words, the ordinance makes illegal that which might otherwise be perfectly legal; that is to say, it makes illegal the maintaining of the stock-yards though maintained in a manner not open to criticism.” These and other reasons are urged to show that the regulation is an unreasonable and unconstitutional invasion of i>rivate rights and of private property. Apparently the ordinance is on its face a sanitary measure adopted by the city for the purpose of promoting public health, comfort and Avelfare. The exorcist1 of the police poAver for such a purpose is an essential function of municipal government and does not necessarily await
The right to make regulations for the public health and welfare may be asserted directly by the- legislature or delegated to municipalities. Chicago, B. & Q. R. Co. v. State, 47 Neb. 549. When the latter method is adopted, as in the present case, a city ordinance stands on the same footing as a statute. Within the jurisdiction of the city government it has the force of law, and can only be held void for reasons which would justify a court in declaring a statute invalid. In re Anderson, 69 Neb. 686. Like a statute, an ordinance passed in the exercise of police power properly delegated to a city is presumably valid, and “the courts will not interfere with its enforcement until the unreasonableness or Avant of necessity of such measure is made to appear by satisfactory evidence.” Peterson v. State, 79 Neb. 132. This court in an opinion by Judge Barnes said: “All property in this state is held subject to - rules regulating the common good and the general welfare of our people. This is the price of our ad
Some of defendant’s employees testified that the stockyards were in good condition and were properly managed when the ordinance was passed, though generally admitting that offensive conditions had existed at times. It was also testified that accumulated matter had been removed once or twice a year, and that the surface of the ground had been raised and the drainage improved by the nse of cinders, sand, stone and brickbats. One of the witnesses for defendant further testified in effect that a place on or near defendants right of way five blocks east of the pres
On behalf of the state a number of witnesses residing in the vicinity gave testimony tending to prove in substance the following facts: The stock-yards had been located in a residence neighborhood within five blocks of the principal street of the city. The natural surface of the ground Avas Ioaa’, and occasionally stagnant water collected there. The raising of the surface did not entirely remedy the defect. In addition to the use of the grounds for shipping stock, hog-buyers were permitted to use them constantly for feeding purposes. The yards were frequently in a bad condition. Offensive matter Avas allowed to accumulate, and it emitted noisome and nauseating odors which entered dwelling houses in the neighborhood or interfered with the Auntilation thereof. The trial court evidently believed testimony of this nature, and it indicates that the police regulation in question had some relation to public health or public welfare, and that such was in fact the end sought to be attained, when the ordinance and the presumption in favor of its validity are considered.
It was not satisfactorily shown that the site Avithin five blocks of the present location was in a residence portion of the city, or that it would be inconvenient or otherwise unsuitable, or that it would require the condemnation of additional land for railway purposes. Neither Avas it shown what it would cost to make the change, nor that additional tracks would be required. The general statement of a witness that the people there would object to such a location, without disclosing the nature of their objections or facts showing their right to make them, is not alone a sufficient reason for rejecting it or for con-
The record does not show the trial court was in error in holding it had not been satisfactorily shown that the regulation was an arbitrary or unreasonable interference with the rights of defendant under the guise of police regulation. On the entire record the ordinance was properly upheld, and the judgment is
Affirmed.