Kansas City v. McAleer

• Decision Date: 13 June 1888
• Parties: CITY OF KANSAS, Appellant, v. L. F. MCALEER, Respondent.
• Court: Kansas Court of Appeals

31 Mo.App. 433

CITY OF KANSAS, Appellant, v. L. F. MCALEER, Respondent.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Jackson Criminal Court, HON. HENRY P. WHITE, Judge.

Reversed and remanded.

The case is stated in the opinion.

R. W QUARLES and W. A. ALDERSON, for the appellant.

I. The running of a rock-crushing machine, at the place charged in the information, constituted a nuisance; and the ordinance under which defendant was prosecuted--the violation of which he admitted--is valid. Charter Kansas City, art. 3, sec. 1 subdivs. 5, 33; Acts 1879, pp. 204, 207; St. Louis v Frein, 9 Mo.App. 590; Leete v. Pilgrim Society, 14 Mo.App. 590; St. Louis v. Stern, 3 Mo.App. 48; State ex rel. v. Beattie, 16 Mo.App. 131; Catlin v. Valentine, 9 Paige (N. Y.) 575; Coker v. Birge, 9 Ga. 425; Narrows v. Thomas, 51 Me. 563; Inhabitants v. Mayo, 109 Mass. 315; Grady v. Widner, 46 Ala. 381; McKeon v. Lee, 51 N.Y. 308; In re Lead Co., 96 Pa.St. 116; S. C., 42 Am. Rep. 534, and note; Dittman v. Repp, 50 Md. 518; S. C., 33 Am. Rep. 325; Emory v. Powder Co., 22 S.C. 476; S. C., 53 Am. Rep. 730; Hutchinson v. Smith, 63 Barb. 251; Ross v. Butler, 19 N.J.Eq. 294; Wood's Law of Nuis. [2 Ed.] secs. 1, 495, 504, 505, 506, 507, 508, 509, 513, 543, 545, 743, 744, and 745; Tied. Lim. Pol. Pow., secs. 1, 122 c, 104; Railroad v. Husen, 95 U.S. 465; Butchers' Co. v. Crescent City Co., 111 U.S. 746; Barlier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703; Dill. Mun. Corp. [3 Ed.] secs. 379, 396, 407; Horr and Demis' Mun. Pol. Ords., secs. 250, 255.

II. It does not avail the defendant anything that he had placed his rock-crusher at the place charged in the information and was operating it there before the ordinance was in force. State ex rel. v. Board of Health, 16 Mo.App. 8; Hayden v. Tucker, 37 Mo. 214; Harmon v. Chicago, 110 Ill. 400; S. C., 51 Am. Rep. 698; Railroad v. Lake View, 105 Ill. 207; Commonwealth v. Fenton, 139 Mass. 195; Campbell v. Seaman, 63 N.Y. 568, 584; Baker v. Boston, 12 Pick. 184, 193; Coates v. Mayor, 7 Cow. 585, 603; Fertilizing Co. v. Hyde Park, 97 U.S. 656; Weir's Appeal, 74 Pa.St. 230; Slaughter House Cases, 16 Wall. 36, Taylor v. The People, 6 Park. Cr. Rep. 347, 352.

III. It is no answer to the charge in the information, that " the defendant" , to quote from the special finding of facts by the trial court, " in preparing his machine has made use of the most modern, improved, and approved appliances, thereby reducing its offensiveness and the annoying character of the machine to the minimum." Wood's Law of Nuis. [2 Ed] sec. 552, and cases cited; State v. Ball, 59 Mo. 321; Pennoyer v. Allen, 14 N.W. 609; Cooper v. Randall, 53 Ill. 24.

No brief for the respondent.

ELLISON J.

Defendant was convicted before the city recorder of Kansas City on an information in which it was charged that he, " within the corporate limits of the said City of Kansas, and in and upon a block wherein there were at said times three residences or dwellings occupied, did then and there unlawfully cause, allow, commit and maintain a nuisance by running and operating a rock-crushing machine." The section of the ordinance which the defendant was charged with violating, is as follows: " Section 1: The running or operating of a rock-crushing machine in any block or square wherein there are three or more residences or dwellings occupied, is declared to be a nuisance, and is by this ordinance prohibited."

That portion of the charter on which this ordinance is founded is as follows:

" The common council * * * shall have power within the jurisdiction of the city, by ordinance:

Fifth. To make regulations to secure the general health of the inhabitants, to prevent, abate and remove nuisances within the city and within one mile thereof, and to punish the authors thereof, by penalties, fine and imprisonment; to define what shall be deemed nuisances, and to direct the summary abatement thereof. * * *"

The defendant appealed to the criminal court of Jackson county, where he contended that the ordinance under which the complaint was drawn is invalid. The criminal court, a jury having been waived, sustained such contention and discharged the defendant, from which judgment of the court, the City of Kansas appealed.

Defendant admitted at the outset, " that he ran a rock-crushing machine in the block at the times charged in the information where there were at such times, three occupied dwelling-houses." This was tantamount to a plea of guilty, unless defendant intended to supplement the admission by showing the ordinance to be wholly unreasonable and oppressive. The city, however, assumed the burden of showing the act to be a nuisance in fact, without reference to the municipal declaration to that effect. This was an unnecessary burden.

I. A nuisance is defined by Blackstone to be " anything that worketh hurt, inconvenience or damage." One of the chief functions of the police power is to regulate and abate nuisances. This power, though inherent in every state, is not easily defined; though circumscribed, it is nearly impossible to say, by what specific line. It belongs primarily to the state, but may be, and is, in this country, in large part, delegated to municipalities. Its exercise extends to the entire property and business interests within their jurisdictions. And it is in respect to nuisances that this power, if properly applied, does the most good, but if improperly, will work the greatest harm. The City of Kansas not only has the power to abate nuisances, but by its charter, has the extraordinary power to define and declare what is a nuisance; this is broader than general authority to abate. But neither will justify a wanton declaration that an act or avocation is a nuisance which unquestionably is not. " Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the po wers granted to them.' 1 Dillon Mun. Corp., sec. 379. Whether such ordinance is unreasonable and, therefore, invalid, is a question for the court and not a jury, Ib., sec. 327. In determining whether it be reasonable, the court should not substitute its discretion for that of the municipal legislation. The power of the court in this respect, should not be hastily or incautiously exercised. Fisher v. Harnsberg, 2 Grant (Pa.) 291; Commonwealth v. Robertson, 5 Cush. 438; City of St. Louis v. Weber, 44 Mo 547. " In doubtful cases, where a thing may, or may not, be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering (to declare and define what shall be a nuisance), their action, under such circumstances, would be conclusive of the question." Railroad v. Lake View, 105 Ill. 207. The case should have been considered in accordance with this view of the law and if so considered, there is nothing in the evidence justifying the court in declaring the ordinance invalid.

II. That the machine was in operation at the place charged before the passage of the ordinance, is of no avail as a defence. Hayden v. Tucker, 37 Mo. 214; Campbell v. Seaman, 63 N.Y. 568; Wells' appeal, 74 Pa.St. 230; Coates v. Mayor, 7 Cowen 585. In the case last cited, the charter of New York City gave authority to pass by-laws to prevent the interring of dead bodies within the city. In 1813 the common council passed an ordinance forbidding,...