Kays v. City of Versailles

• Decision Date: 02 December 1929
• Citation: 22 S.W.2d 182,224 Mo.App. 178
• Parties: JOE KAYS, RESPONDENT, v. CITY OF VERSAILLES, APPELLANT. [*]
• Court: Kansas Court of Appeals

22 S.W.2d 182

224 Mo.App. 178

JOE KAYS, RESPONDENT, v. CITY OF VERSAILLES, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

December 2, 1929

Appeal from the Circuit Court of Morgan County.--Hon. Henry J Westhues, Judge.

AFFIRMED.

Judgment affirmed.

A. J Bolinger for appellant.

Harry H. Kay for respondent.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action to enjoin the City of Versailles from enforcing an ordinance of said city reading as follows:

"It shall be unlawful for any person, firm or corporation to keep any swine within the corporate limits of the City of Versailles, Missouri, from and including April 1st in each year to and including October 15th in such year."

The court enjoined the city from enforcing the ordinance and it has appealed.

The facts show that the mayor and the marshal of said city let it be known by advertisement that the ordinance would be enforced. Plaintiff, a taxpayer in the city, resides upon a tract of five acres belonging to his son. The land consists of pasture land with a draw running through it. It is rough and ragged and cannot be built upon generally. In an inclosure of four and one-half acres of the land in question plaintiff keeps twenty-three pigs and six sows.

The evidence shows that while the land in question is in a residence section of the town the city is not thickly built up at this point, there being only one house on the east side of the tract, two houses on the south side, one of which is situated on a ten-acre tract, and some houses upon the north and west upon streets running along those sides of the pasture. There was evidence that there were other "acreages" of rough pasture land within the city limits.

Section 8472, Revised Statutes 1919, authorizes the board of alderman of cities of the fourth class, within which the City of Versailles falls, to regulate or prohibit the running at large of live stock, including hogs. Section 8477, Revised Statutes 1919, authorizes the board of aldermen to regulate and suppress pig pens "and to pass ordinances for the prevention of nuisances and their abatement." But the legislature has never empowered cities of this class to prohibit the keeping of animals within the city when such keeping does not constitute a nuisance per se. [Brown v. Carrollton, 122 Mo.App. 276, 281, 99 S.W. 37.] "A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surrounding." [46 C. J., pp. 664, 649.]

It is well stated in 43 C. J., pp. 314, 315:

"In the furtherance of the public health, security and comfort of its inhabitants, municipal corporations may regulate the keeping of animals within the corporate limits or within designated districts of the corporation. While an animal which is not a nuisance per se cannot be prohibited from being kept within the municipal limits and such prohibition is not warranted under the power to regulate occupations and callings, the keeping of animals within the municipal limits or within designated districts thereof may be prohibited when such keeping affects or disturbs the public health, public peace, public safety, or public decency; but only when it does so," and in 46 C. J., pp. 711, 712:

"The raising of pigs or hogs being a lawful business, the keeping thereof in hog ranches, piggeries, or other places is not a nuisance of itself or per se, even though it may cause some annoyance in the locality. But the keeping of hogs or pigs in hog-pens, hog ranches, piggeries, or other places may constitute a nuisance by reason of the manner in which they are kept or the locality or both. It may constitute both a public and private nuisance, as for instance, when it is offensive or dangerous to the health of complainant and the public. The keeping of hogs in the thickly built-up part of the city has been held to be a nuisance per se." [See, also, 2 Dillon on Municipal Corporations (5 Ed.), sec. 693.]

The ordinance in question herein does not declare the thing prohibited therein to be a nuisance, but may be upheld if it is a valid exercise of the police power of the city to abate nuisances. There is no question but that sections 8477 and 8521 empower the city to abate nuisances that are in fact such, and to regulate the keeping of animals within its corporate limits, but it cannot suppress the keeping of such animals when their keeping does not amount to a nuisance per se, under the guise of regulating their keeping. As was well said in the case of the City of St. Joseph v. Georgetown Lodge, 11 S.W.2d 1082, 1083:

"As was said in Lakeview v. Letz, 44 Ill. 81, and quoted with approval by Judge SCHOLFIELD in Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N.E. 677 (5 Am. St. Rep. 524), 'there are some things which in their nature are nuisances and which the law recognizes as such; there are others which may or may not be so, their character, in this respect, depending on circumstances. In the latter instance it is manifestly beyond the power of the municipality to declare in advance that those things are a nuisance.'

"While it is true that the court cannot substitute its discretion for that of municipal legislation (Kansas City v. McAleer, 31 Mo.App. 433), still the courts have always held that the city had no right by ordinance to make that a nuisance which is not in fact a nuisance. [Union Cemetery Ass'n v. Kansas City, 252 Mo. 466, 161 S.W. 261.]"

As the keeping of hogs is not a nuisance per se the ordinance of the City of Versailles attempting to prohibit their keeping anywhere within the city is void. The fact that hogs are prohibited in the city only from April 1st to October 15th in each year and are permitted between October 15th and April 1st, does not render the ordinance valid on the theory that because it does not in terms prohibit their keeping entirely, it is merely a regulatory ordinance. A rule that hogs may not be kept in a city from April 1st to October 15th would in many cases amount to an absolute prohibition of hogs within the city limits at all, for such a requirement would force many who had no other place to keep their hogs to sell them before April 1st regardless of market conditions. In other words the right to have hogs in the city limits is so circumscribed by the ordinance as to make it a wholly unreasonable regulation if not a prohibition.

The city in enacting this ordinance no doubt thought that hogs can be kept in a more sanitary way in winter than in summer. However, a consideration of this kind is dependent upon the manner in which hogs are kept. The keeping of hogs in a filthy pen near a dwelling in a city or town is a nuisance per se whether they are kept in winter or summer. [Whipple v. McIntyre, 69 Mo.App. 397.] Hogs may be kept even in the summer time so as not to be obnoxious to the health of human beings. It is well known that a hog is one of the cleanest of animals, so far as his person is concerned, if given a chance to be clean. However, he is often given food that no other animal will eat on account of its decayed or semi-decayed...