41 Cal.App. 520, Civ. 2910, Boyd v. City of Sierra Madre

Docket Nº:Civ. 2910
Citation:41 Cal.App. 520, 183 P. 230
Opinion Judge:FINLAYSON, Judge
Party Name:JOHN BOYD, Appellant v. CITY OF SIERRA MADRE et al., Respondents
Attorney:Rose & Scoville for Appellant. Charles C. Montgomery for Respondents.
Judge Panel:JUDGES: FINLAYSON, P. J. Sloane, J., and Thomas, J., concurred. Sloane, J., and Thomas, J., concurred.
Case Date:June 10, 1919
Court:California Court of Appeals

Page 520

41 Cal.App. 520

183 P. 230

JOHN BOYD, Appellant

v.

CITY OF SIERRA MADRE et al., Respondents

Civ. No. 2910

Court of Appeals of California, Second District, Second Division

June 10, 1919

Page 521

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge.

Affirmed.

COUNSEL:

Rose & Scoville for Appellant.

Charles C. Montgomery for Respondents.

JUDGES: FINLAYSON, P. J. Sloane, J., and Thomas, J., concurred.

OPINION

FINLAYSON, Judge

Page 522

This is an action to enjoin the city of Sierra Madre from enforcing an ordinance that forbids, in the residence district of the city -- defined by the ordinance -- any livery-stable or corral for the keeping therein of horses, mules, jennies, jacks, or burros for hire, and which likewise forbids, in the business district -- defined in the ordinance -- any such livery-stable or corral without a permit from the city board of trustees, on written application specifying the number and kind of animals desired to be so kept, the period of time and the place of keeping and the kind of business to be transacted. Plaintiff is engaged in the business of furnishing burros and mules for hire. For that purpose he has ten burros and four mules, keeping them in a corral within the residence district of the city.

Page 523

The appeal is upon the judgment-roll. The lower court found that appellant has kept and maintained his corral " in a cleanly, wholesome (sic ) and sanitary manner"; but that, prior to the passage of the ordinance, there were, in the vicinity of appellant's corral, two other corrals, wherein such animals were kept for hire, in which there was " an accumulation of manure and other filthy substances of various kinds, generating noxious odors and breeding and attracting flies and other vermin; that said corrals and the business conducted therein and thereupon were the source of many loud, disagreeable, and discordant noises from the braying of the animals, their footbeats on the street and sidewalk, the cries and loud talk of their attendants, and otherwise; and that said businesses were the cause of much dust, dirt and discomfort to the inhabitants of the residential district described in the ordinance."

Appellant claims that the ordinance is unreasonable [183 P. 231] and unjustly discriminatory, and that its enforcement will deprive him of his constitutional rights.

In this state the constitution itself makes a direct grant of police power to municipalities. (Const., art. XI, sec. 11 .) The power so conferred is as broad as that possessed by the legislature itself, subject to the two exceptions that its exercise by any city must be confined to the municipality and must not conflict with the general laws of the state. (Odd Fellows' Cemetery Assn. v. San Francisco, 140 Cal. 226, 230, [73 P. 987] .) The exercise of this power is not limited to the regulation of such things as already have become nuisances or have been declared such by the judgment of a court. A city's power to prohibit or regulate not only includes nuisances, but extends to everything expedient for the preservation of the safety, health, or comfort of the city's inhabitants. (Odd Fellows' Cemetery Assn. v. San Francisco, supra; Ex parte Quong Wo, 161 Cal. 220, [118 P. 714] .)

A municipality has power, by ordinance, to divide its territorial limits into business and residence districts, and prohibit in the residence district the maintenance of any corral wherein mules and burros are...

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