City of Elkhart v. Lipschitz
| Decision Date | 23 May 1905 |
| Docket Number | 20,454 |
| Citation | 74 N.E. 528,164 Ind. 671 |
| Parties | City of Elkhart v. Lipschitz |
| Court | Indiana Supreme Court |
From Elkhart Circuit Court; Joseph D. Ferrall, Judge.
Action by the City of Elkhart against Casper Lipschitz for the violation of a city ordinance. From a judgment for defendant plaintiff appeals.
Affirmed.
J. M Van Fleet and V. W. Van Fleet, for appellant.
James L. Harman and Edward B. Zigler, for appellee.
The question presented by this appeal is whether or not cities governed by the act of 1867 (Acts 1867, p. 63), and the acts amendatory thereof and supplemental thereto , had the power in 1903 to prohibit slaughterhouses within the corporate limits and within two miles thereof. If they had, this case must be reversed; otherwise it must be affirmed.
It has been held that a town or city may prohibit the operation or maintenance of slaughterhouses within the territory over which it has police power, if expressly authorized so to do by the legislature. McQuillin, Mun. Ordinances, § 448; Beiling v. City of Evansville (1896), 144 Ind. 644, 35 L.R.A. 272, 42 N.E. 621; Boyd v City Council, etc. (1897), 117 Ala. 677, 680, 23 So. 663; City of Portland v. Meyer (1898), 32 Ore. 368, 52 P. 21, 67 Am. St. 538; Ex parte Heilbron (1884), 65 Cal. 609, 4 P. 648; Harmison v. City of Lewistown (1894), 153 Ill. 313, 38 N.E. 628, 46 Am. St. 893; City of Spokane v. Robison (1893), 6 Wash. 547, 33 P. 960. See, also, City of Newton v. Joyce (1896), 166 Mass. 83, 44 N.E. 116.
It is the law in this State that municipal corporations possess and can exercise only such powers as are granted by the legislature in express words and those necessarily implied or incidental to those expressly granted, and those necessary to the declared objects and purposes of the corporation. No incidental powers can be implied except such as are essential to the accomplishment of the purposes of their creation or for their continued existence. Doubtful claims to power, or any doubt or ambiguity in the terms used by the legislature, are resolved against the corporations. Pittsburgh, etc., R. Co. v. Town of Crown Point (1896), 146 Ind. 421, 422, 35 L.R.A. 684, 45 N.E. 587, and cases cited.
It is claimed by appellant that such power was given by the eleventh subdivision of § 3541 Burns 1901, Acts 1895, p. 180, § 53, which reads as follows: "To direct the location of markets or slaughterhouses or powder magazines, and to regulate the same; and, for that purpose, shall have jurisdiction for two miles in all directions from the city limits." The authority granted is to direct the location of slaughterhouses. This does not empower cities to direct their location outside the two-mile limit, for they have no jurisdiction beyond such limit. The authority is to direct the location at some place or places within the territory over which the city has jurisdiction. To hold that said subdivision authorizes cities to direct the location of slaughterhouses beyond the two-mile limit would be to declare that cities were authorized thereby to prohibit slaughterhouses within said limits, when no such word, or word of like meaning, is used. It is clear that the legislature did not, by granting the power to direct the location, intend to give the power to exclude slaughterhouses from the territory over which the city had jurisdiction.
Moreover, the fourth subdivision of § 3541, supra, clearly shows that the legislature did not understand that the power to direct the location of a business or building authorized a city to exclude the same from the territory over which the corporation had jurisdiction, for that subdivision not only gave the power to direct the location, but also, in express words, the power to prohibit. Said subdivision reads as follows: "To direct the location of tallow chandleries, soap factories, and other buildings or structures; and to prohibit the erection of such buildings, or the continuance of noxious trades or business therein, whenever the health or welfare of the city shall require the same; and, for that purpose shall have jurisdiction two miles in every direction from the city limits." It is manifest that the words "to direct the location" have no broader or different meaning in the eleventh subdivision of § 3541, supra, than in the fourth subdivision of said section, where it is shown that the legislature did not intend by the use of said words to grant the power to prohibit. Pitte v. Shipley (1873), 46 Cal. 154, 160; Postal Tel. Cable Co. v. Farmville, etc., R. Co. (1899), 96 Va. 661, 32 S.E. 468; 2 Lewis's Sutherland, Stat. Constr. (2d ed.), § 399, p. 758. Anything in Rund v. Town of Fowler (1895), 142 Ind. 214, 41 N.E. 456, which may be deemed to hold the contrary, is overruled.
Appellant insists, however, that said fourth subdivision gave authority to cities to prohibit slaughterhouses within the limits named therein. Counsel for appellant say: ...
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