City of Portland v. Cook

• Decision Date: 04 December 1906
• Citation: 87 P. 772,48 Or. 550
• Parties: CITY OF PORTLAND v. COOK et al.
• Court: Oregon Supreme Court

87 P. 772

48 Or. 550

CITY OF PORTLAND v. COOK et al.

Supreme Court of Oregon

December 4, 1906

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by the city of Portland against J.H. Cook and others. From a judgment for plaintiff, defendants appeal. Affirmed.

S.B. Linthicum and Zera Snow, for appellants.

Milton W. Smith, for respondent.

MOORE, J.

This action was commenced April 7, 1905, in the municipal court of Portland by that city against J.H. Cook, James M. Neal, and T.W. Bigger for an alleged violation of an ordinance, prohibiting the killing, within the city limits, of animals, the flesh of which was intended to be sold, and also forbidding the maintenance within such territory of a slaughterhouse. The cause was tried and the defendants were convicted, June 30th of that year, and severally adjudged to pay a fine, from which sentence they appealed to the circuit court for Multnomah county, where they were again tried on a stipulation of facts, a jury having been waived, and, their motion to be acquitted having been overruled, they were again found guilty, and appeal to this court from the judgment which followed. The facts so stipulated are to the effect that, pursuant to a clause of the municipal charter then in force, which authorized the council "to license, tax, control and regulate slaughterhouses, *** and to provide for their exclusion from the city or any part thereof" (Laws Or. 1891, p. 806) ordinance No. 9641 was passed, February 12, 1896, granting to "L. Zimmerman and his assigns" the right to establish and maintain on his land in the city of Portland particularly describing the premises, a packing house for curing all kinds of meat, and to erect other buildings in which to slaughter animals. Thereafter Zimmerman, who then was, ever since has been, and now is, the owner in fee of the real property so described, erected thereon the specified buildings, expending in such improvements more than $40,000 but subsequent thereto an ordinance was passed, repealing ordinance No. 9641. Notwithstanding such abrogation Zimmerman thereafter continued to operate the business until November 1, 1901, when he leased the real property mentioned for a term of five years to the Northwestern Meat Company, a corporation, which, with his consent, sublet the premises for the remainder of the term to the Pacific States Packing Company, a like artificial being. The defendants, Cook, Neal and Bigger, are the president, manager, and secretary, respectively, of the corporation last mentioned, and, as the agents thereof, were, on April 7, 1905, when this action was begun, engaged in killing, within the city limits and on the land so leased, animals, the flesh of which was intended to be sold, and were also maintaining on such premises a slaughterhouse. At that time ordinance No. 13,885, adopted April 6, 1904, was in force and provided that it should be unlawful for any person, within the city limits, to kill any animal, the flesh of which was intended to be offered for sale, or to maintain or use, within such territory, any building as a slaughterhouse, and prescribing as a penalty for a violation thereof a fine of not less than $5 nor more than $300, or imprisonment not less than five days nor more than 90 days. After this action was commenced, but before it was tried in the municipal court, ordinance No. 14,639 was passed, regulating the slaughter of animals and the inspection of meats, from which we take the following excerpts, deeming them the only parts thereof involved herein: Section 3. "That from and after the passage of this act it shall be unlawful for any person, firm or corporation to slaughter, sell, or offer for sale the meat of any animal not considered 'game,' intended for human food, within the city of Portland, unless the same has been inspected and approved by the officers appointed and empowered by the city board of health. ***" Section 6. "That the Pacific States Packing Company be known as 'the Portland Abattoir' where animals may be taken for slaughter and be inspected, and that not more than the following prices may be charged and collected by the person or corporation who now are or who may hereafter be operating the Portland Abattoir, or such other place or places as may be fixed by the board of health for slaughtering animals intended for human food within the city of Portland. ***" Section 15. "That the firm, person or corporation violating any of the provisions of this ordinance shall, upon conviction, be fined not less than ten ($10.00) dollars, nor more than twenty-five ($25.00) dollars for each offense. ***" Section 16. "That this ordinance shall take effect from and after its passage, the welfare of the city requiring it."

It is contended by defendants' counsel that, conformable to the provisions of the municipal charter quoted, ordinance No. 9641 was passed, granting to Zimmerman the rights hereinbefore stated, acting on the faith of which he expended a vast sum of money in making permanent improvements upon the real property specified, whereby such right became a subsisting contract between him and the city which could not be impaired by subsequent legislation; that, the grant having also been extended to his assigns, the defendants, as agent of the corporation which secured a lease of the premises with his consent, had the same authority that he possessed to conduct the business thereat, subject only to municipal regulation that the slaughterhouse should not become a public nuisance or detrimental to the health of persons residing in the vicinity, and hence the circuit court erred in refusing to give a judgment of acquittal. The preservation of the public health and public morals is a duty devolving on the state, the discharge of which is denominated an exercise of the police power. This prerogative, though incapable of exact definition or limitation, may be delegated by the state to its agent, a municipal corporation, which is authorized to employ the measure of authority conferred. As the perpetuity of a stable government necessarily depends upon the security of the public health and the maintenance of public morals neither the state nor its agent can bargain away this branch of sovereignty. As a corrollary deducible from this principle, it results that any permission by statute or ordinance whereby such authority is temporarily surrendered is only a license, a cancellation of which is not violative of a state or of the federal Constitution prohibiting the passage of laws impairing the obligation of contracts. Thus a grant of the right to maintain a lottery, for which money has been given, will not prevent a repeal of the authority to conduct such business. Boyd v. Alabama, 94 U.S. 645, 24...