Hunstiger v. Kilian

• Decision Date: 23 July 1915
• Docket Number: Nos. 19,348-(234).,s. 19,348-(234).
• Citation: 130 Minn. 474
• Parties: FRANK HUNSTIGER v. HENRY KILIAN and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

130 Minn. 474

FRANK HUNSTIGER v. HENRY KILIAN and Others.¹

Nos. 19,348-(234).

Supreme Court of Minnesota.

July 23, 1915.²

Frank Hunstiger petitioned the town board of the town of St. Cloud, and ex-officio board of health of that town, for permission to conduct a rendering plant on the premises described in the petition. From its order denying the application, petitioner appealed to the district court for Stearns county. The appeal was heard before Roeser, J., and a jury which rendered a verdict in favor of petitioner. From an order denying the motion of respondent members of the town board of St. Cloud for judgment notwithstanding the verdict or for a new trial, they appealed. Reversed and new trial granted.

R. B. Brower, for appellants.

J. D. Sullivan, for respondent.

HALLAM, J.

Frank Hunstiger made application to the town board of the town of St. Cloud for a license to operate a rendering plant at a given place within said town. The board denied the application and the applicant appealed to the district court.

1. The first question before us is, does the statute give the applicant any right of appeal?

Section 4666, G. S. 1913, provides that no person shall, without written permission of the board of health of any town, engage therein in any trade or employment from which noisome odors may arise. The town board is the board of health (G. S. 1913, § 4643), and a rendering plant is within the statute.

Section 4667 provides that "such local boards, from time to time, may designate places within their respective jurisdictions wherein such trades or employments may be carried on, by orders filed with the town * * * clerk, and may revoke the same by like orders. Within twenty-four hours after written notice of any such revocation, every person exercising such trade or employment in the locality to which it relates shall cease to do so."

Section 4668 provides that "within five days after service of such notice, any party aggrieved by an order made under sections 4666, 4667, may appeal therefrom to the district court of the county."

It is the contention of the town that an appeal lies only from an order revoking permission to conduct a business in which the person to whom the notice is directed is already engaged. The sections we have quoted are not clear upon this point. Section 4668 gives the right of appeal to "any party aggrieved by an order made under sections 4666, 4667," and these sections cover orders granting permission to carry on such trade or employment, designating places where the same may be carried on, and revoking such orders of designation. The doubt arises from the opening words of section 4668 that, "within five days after service of such notice," a party aggrieved may appeal. Notice of the action of the board is required only in case of an order of revocation, and the town contends that the right of appeal is accordingly limited to the cases where such notice is required. The above sections are the same as sections 2143-2146, R. L. 1905. The original enactment is found in chapter 222, p. 292, Laws 1885, §§ 1-4 (G. S. 1894, §§ 1489-1492). The language of the original statute is more clear. In terms quite plain it provided for action of the board assigning a locality for the exercise of such trade or employment, and prohibiting its exercise in places not so assigned, granting of a permit to carry on such trade or employment, revocation of such assignment, and notice of such revocation. It is then provided in unequivocal terms that "any person or corporation aggrieved by any order of such board may appeal therefrom to the district court." The same aggravating provision that "appeal shall be taken * * * within five (5) days after the service of such order" appears later in the section. From the position in which this language appears it could hardly be understood as nullifying any part of the right of appeal which was so unequivocally given. We think the original statute manifested an intent to give a right of appeal to one to whom permission and assignment of place had been refused. Invoking the rule of construction that changes made by a revision of statutes will not be construed as altering the law unless it is clear that such was the intention (State v. Stroschein, 99 Minn. 248, 109 N. W. 235), we hold that the present statute likewise gives to a person to whom a permit is denied the right of appeal to the district court.

2. The remaining questions in the case relate to the nature of the

issues to be tried on appeal. The trial court charged the jury as follows:

"The fact that permission has been refused Mr. Hunstiger to operate this rendering plant by the town board is not to carry any weight with the jury. They are to decide this matter and render their verdict without any reference to the town board;" and further that:

"If the jury believe from the evidence that Mr. Hunstiger, if he properly operates this rendering plant, can do so without such operation being hurtful to the inhabitants of the town, or dangerous to the public health, or injurious to neighboring property, or that noisome odors will not arise therefrom, then the jury may grant him permission to operate this rendering plant. But if the jury believe to the contrary, that the location is of such a character that it will be improper to permit a rendering plant to be operated at this place, then it may refuse such permission."

In other words the jury were instructed to resolve themselves into a licensing board and to grant or withhold a license, as, in their judgment, should seem expedient and wise. We are of the opinion that this is an incorrect rule of law. The statute is not very explicit as to the precise functions of the court on appeal. Section 4668 provides that, "upon the return of the verdict, the court may either alter or amend the order of the board, or confirm or amend it in full, to conform to such verdict. If the matter be tried by the court, it shall have and exercise the same power." This is perhaps broad enough to give the court any power which it may constitutionally exercise. We must determine the power of the court on appeal, not alone by reference to the language of the statute, but by referring to the Constitution of the state as well.

The powers of government of this state are divided by the Constitution into legislative, executive and judicial. Const. Art. 3, § 1. Only judicial functions are vested in the courts. Judicial power is the power that adjudicates upon the rights of persons or property, and to that end declares, construes and applies the law. People v. Chase, 165 Ill. 527, 538, 46 N. E. 454, 36 L.R.A. 105; People v. Simon, 176 Ill. 165, 169, 52 N. E. 910, 44 L.R.A. 801, 68 Am. St 175. It seems clear that the issuance of a permit to operate a rendering plant is not a judicial act. If a statute should confer upon the district court and a jury in the first instance the power or authority to grant a permit for such purpose, no one would seriously doubt that such a statute imposed on the court the exercise of nonjudicial power. It does not make the power any more a judicial power to confer it by appeal from the action of a board that must act in the first instance, if, when the matter comes into court, it is to be disposed of in the same manner as though it had originated there and without regard to the action of the board from which the appeal is taken.

3. The power to issue a permit or license to operate a rendering plant, and to assign the locality within which such a plant shall be operated, is an exercise of the police power of the state. The purpose of such regulation is to secure and safeguard...