Zimmerman v. Gritzmacher

98 P. 875 | Or. | 1909

Lead Opinion

Opinion by

Mr. Chief Justice Bean.

1. There is no allegation or claim that the slaughter or packing house operated and maintained by petitioner is, in fact, a nuisance, either on account of its location or the manner in which it is being conducted. On the contrary, it is alleged in the petition, and for the purpose of this case admitted to be true, that such packing house is situated in a sparsely settled portion of the city, and that it is in no way injurious to the health or offensive to the public. The contention of the city is apparently that it has plenary power under its charter to exclude slaughter houses from the corporate limits, whether they are, in fact, a nuisance or not, and that the previous grant or license to petitioner to construct and maintain a slaughter house on his premises is no barrier to the exercise of this power. The petitioner, on the other hand, contends that the slaughtering of animals for human food is a lawful business, which the city may regulate and control, but cannot prohibit, when, in fact, it is not a nuisance, and that the grant or license to him cannot be revoked or recalled by the city without showing that the slaughter house or packing plant erected in pursuance thereof has, in fact, become a nuisance, either on account of an increase in the population in the vicinity of the plant or the manner in which it is operated. But this case does not call for a decision of any of these questions, interesting as they are. The slaughter or packing house of petitioner was at the time of his arrest being maintained by the consent and authority of the municipality. He cannot be prosecuted by the city for doing that which it expressly sanctions. By section 6 of the abattoir ordinance, the Pacific States Packing Company, which was then in possession of and operating the Zimmerman plant, was designated as the “Portland Abattoir,” where animals may be taken for inspection and slaughter, thus expressly authorizing the slaughtering of animals at such place. As long as this ordinance remains unrepealed, the city cannot maintain a criminal prosecution against one who is observing its provisions and doing that which it authorizes.

2. It is argued on behalf of the city that the ordinance is void because it creates a monopoly, delegates legislative and arbitrary power to the city board of health, and imposes unreasonable and burdensome restrictions upon the right to slaughter and sell meats within the city, etc. Some of these objections would merit serious consideration if urged by parties other than the city whose interests are affected thereby. But the city cannot do so in support of a prosecution for doing that which the ordinance authorizes.

3. The right of a state or municipality by virtue of authority granted to it by the State to regulate slaughter houses or to prohibit their erection within certain prescribed limits is because they are or may become injurious to health or offensive to the public, and therefore a public nuisance. But, when express legislative authority is given for the erection and maintenance of such business, it cannot become such a nuisance; for, as said by Mr. Justice Hand, in Harris v. Thompson, 9 Barb. (N. Y.) 364, “It is a legal solecism to call that a public nuisance which is maintained by public authority.” See, also, Wood, Nuisance, §§ 753, 757. Whether the ordinance granting the petitioner the right to erect and maintain a slaughter house was valid, and, if so, whether it can be repealed and the authority withdrawn, after he has expended a large sum of money in its furtherance thereof, as long as the business is not a nuisance, in fact, were questions ably debated at the hearing, but are not necessary to a decision of this case.

For the reasons given, the judgment of the court below is reversed, and the cause remanded, with directions to discharge the petitioner. Reversed.

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Rehearing

Decided February 9, 1909.

On Petition for Rehearing.

[98 Pac. 1185.]

MR. Justice Bean

delivered the opinion of the court.

Counsel is in error in assuming that the court held or intended to hold that a municipal officer could not, in a proper proceeding, question the validity of a city ordinance. The holding is that a city cannot maintain a criminal prosecution against one for maintaining a nuisance in doing that which it expressly authorizes, as long as the ordinance, authorizing the act complained of, remains unrepealed. This is not an action or suit between Zimmerman and Gritzmacher, but is a habeas corpus proceeding, instituted by Zimmerman to obtain his discharge from arrest under a warrant issued on a complaint, filed by the city, charging him with maintaining a slaughter house within the corporate limits, which an ordinance authorized him to do.

Rehearing Denied.