Mayor and Council of Mount Airy v. Sappington

• Decision Date: 10 May 1950
• Docket Number: 112.
• Citation: 73 A.2d 449,195 Md. 259
• Parties: MAYOR & COUNCIL OF MOUNT AIRY v. SAPPINGTON et ux.
• Court: Maryland Court of Appeals

73 A.2d 449

195 Md. 259

MAYOR & COUNCIL OF MOUNT AIRY v. SAPPINGTON et ux.

No. 112.

Court of Appeals of Maryland.

May 10, 1950

Stanford Hoff, Westminster (Sponseller & Hoff Westminster, and L. Pearce Bowlus, Mt. Airy, on the brief) for appellant.

D. Eugene Walsh and Charles O. Fisher, both of Westminster, for appellees.

Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL JJ.

MARKELL, Judge.

This is an appeal from a decree holding invalid, and enjoining defendant from enforcing, an ordinance approved March 7, 1949, which purports to make it 'unlawful for any person to erect maintain or operate a slaughterhouse or animal killing shed within the corporate limits of Mount Airy.' The only question presented is whether the ordinance is valid or is ultra vires of the municipality. Plaintiffs propose to construct, 'maintain and operate a plant for the killing and processing of certain livestock' in connection with the operation of 'a locker refrigerator plant' which they 'have been operating' for several years on their land in Mount Airy, 'all of which [is] to be done in strict compliance with the state requirements' for the construction and operation of such a plant. Shortly after they informed the Mayor of 'the contemplated construction and operation', the ordinance was passed and approved.

Mount Airy is a town of about 800 inhabitants in Carroll and Frederick Counties. It was incorporated by Chapter 91 of the Acts of 1894. Its charter was revised and rewritten by Chapter 341 of the Acts of 1900 and amended by Chapter 785 of the Acts of 1906. Under section 1, N of the Act of 1900 the municipality has 'power to pass all ordinances necessary within the limits of said town to preserve the health, peace and safety of the inhabitants thereof; to prevent and remove nuisances and annoyances; * * *'; under section 1, O, 'to regulate or prevent the going at large within the corporate limits of horses, cattle, sheep, goats, swine, geesc or any other brute or fowl or beast; * * *'; under section 2 of the Act of 1906, 'to suppress and remove all nuisances affecting or liable to affect the peace, quiet or health of the town'; and under section 3 of the Act of 1906 very limited zoning power to 'make reasonable regulations in regard to buildings to be erected in said town and grant building permits for the same; to establish five districts in said town and regulate the kind of materials used in the erection of buildings within such districts, with special reference to the prevention and suppression of fires'. P.L.L. 1930, Art. 7, secs. 223, 224, 236, 237. Manifestly power under the Act of 1906 to 'suppress and remove' specified nuisances is no broader than general power under the Act of 1900 to 'prevent and remove' nuisances. Power to prevent animals from going at large is not power to prohibit keeping and slaughtering animals. Nor is power to regulate locations power to prohibit. By Chapter 731 of the Acts of 1947 every incorporated municipality, except Baltimore, is given express power 'to regulate slaughter houses, packing houses, and all places where offensive trades may be carried on.' Code 1947 Supp.Art.23A, 'Corporations--Municipal', sec. 2(16). Such power to regulate is not power to prohibit. A slaughterhouse is not a nuisance per se. Burley v. City of Annapolis, 182 Md. 307, 312, 34 A.2d 603.

Thus the question is whether power to 'prevent and remove nuisances' includes power to prohibit slaughterhouses. By repeated decisions of this and other courts for more than eighty years this question has been answered in the negative. As recently as 1935, 1946 and less than a month ago this court has applied the rule 'that municipal corporations have only such powers as have been conferred upon them by the Legislature, and these are to be strictly construed. To doubt such a power in a given case is to deny its existence.' Hanlon v. Levin, 168 Md. 674, 677, 179 A. 286; Mayor & City Council of Baltimore v. Canton Co., 186 Md. 618, 631, 47 A.2d 775; Duvall v. Lacy, Md., 73 A.2d 26.

The law on the specific question of power to prevent and remove nuisances is concisely stated by Judge Dillon, quoting the opinion, by Mr. Justice Miller, in Yates v. Milwaukee, 10 Wall. 497, 505, 19 L.Ed. 984, which has frequently been quoted or cited, and followed, by this court. 'It is to secure and promote the public health, safety, and convenience that municipal corporations are so generally and so liberally endowed with power to prevent and abate nuisances. This authority and its summary exercise may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not such. Speaking upon this subject in a very important case, where a city, under authority to prevent and restrain encroachments on rivers running through it, commenced a summary proceeding to remove a private wharf, an eminent judge uses this language: 'But the mere declaration by the city council that a certain structure was an encroachment or obstruction did not make it so, nor could such declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws either of the city or of the state within which a given structure can be shown to be a nuisance, can, by the mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business, and all the property in the city, at the uncontrolled will of the temporary local authorities." (Italics in the text.) Dillon on Municipal Corporations, (5th Ed.) § 684, quoting Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984. This statement by Dillon was also supported, in the first edition (1872), by earlier cases, including English and American slaughterhouse cases.

At the time of State v. Mott, 1884, 61 Md. 297, 48 Am.Rep. 105, the Baltimore charter conferred power 'to prevent and remove nuisances' and also to 'regulate the places for, * * * the erecting of slaughter-houses and distilleries, and where every other offensive trade is carried on.' The court, by Chief Judge Alvey, cited this section of Dillon (§ 374 in the 3d. Ed., 1883) in support of a statement, 'Here the power conferred by the statute and attempted to be exercised by the general prohibitory ordinance, cannot be taken to authorize the extra judicial condemnation and destruction of that as a nuisance, which, in its nature, situation or use, is not or may not be such.' 61 Md. 307, 48 Am.Rep. 105. State v. Mott was followed in Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 539-540, 192 A. 417. The language of Mr. Justice Miller quoted by Judge Dillon has been quoted or cited in New Windsor v. Stocksdale, 95 Md. 196, 215, 52 A. 596; Frostburg v. Wineland, 98 Md. 239, 244, 56 A. 811, 64 L.R.A. 627, 1 Ann.Cas. 783; Frostburg v. Hitchins, 99 Md. 617, 627, 59 A. 49; Hagerstown v. Baltimore & Ohio R. R. Co., 107 Md. 178, 188, 68 A. 490, 126 Am.St.Rep. 382; Burley v. City of Annapolis, 182 Md. 307, 314, 34 A.2d 603; Mayor and Councilmen of Frostburg v. Sleeman, 185 Md. 393, 397-398, 45 A.2d 113.

It has been suggested that § 690 of Dillon on Municipal Corporations (5th Ed.) supports the claim of corporate power in the municipality of Mount Airy to prohibit slaughterhouses. The first sentence in § 690 shows that it is applicable only to broader corporate powers than those mentioned in § 684 or conferred by the Mount Airy charter, viz., 'Under statutory authority conferred upon a municipal corporation to declare and to abate and remove nuisances, the acts and things which may be the subject of the exercise of the power have, for some purposes and in some jurisdictions, been divided into three classes.' (Italics in the text.) In the fifth edition of Dillon § 684, but not § 690, is supported by Maryland cases, obviously because the Maryland municipal charters which have been construed by this court have usually conferred power to 'prevent and remove', not to 'declare and remove', nuisances. Strange to say, by the Hagerstown charter in the Code of 1860, P.L.L. Art. 21, sec. 126, power was conferred to cause 'to be abated or removed * * * all nuisances, whether such at common law or so declared by any ordinance of said town,' but when the charter was revised by the Act of 1886, Ch. 409, P.L.L. 1888, Art. 22, sec. 171, (if not earlier), this unusual grant of power was supplanted by the more usual language quoted in Hagerstown v. Baltimore & Ohio R. R. Co., supra. If any Maryland municipal charters contain grants of power to 'declare' nuisances, such grants have not come before this court for construction.

In the Mount Airy charter the power to 'prevent and remove nuisances' is expressed in the same words as in the Annapolis charter Burley v. City of Annapolis, supra, 182 Md. 313, 34 A.2d 603, and the original Baltimore charter, Acts of 1796 ch. 68, sec. 8; State v. Mott, supra and substantially the same as in the Hagerstown charter from 1886 to 1918, Hagerstown v. Baltimore & Ohio R. R. Co., supra, 107 Md. 187, 68 A. 490, 126 Am.St.Rep. 382, and the charters of most Maryland municipalities. Examination of a few of the many Maryland municipal charters indicates that most of the larger cities and towns by expansion of former narrower grants of power or by additional grants, have been expressly authorized to prohibit slaughterhouses, hog pens or any 'noxious trades' within the municipal limits. Since 1898...