People v. Burtlesen
| Decision Date | 23 October 1896 |
| Docket Number | 683 |
| Citation | 47 P. 87,14 Utah 258 |
| Court | Utah Supreme Court |
| Parties | PEOPLE, RESPONDENT, v. ANDREAS BURTLESON, APPELLANT |
Appeal from the First district court, Territory of Utah. Hon. W. H King, Judge.
Andreas Burtleson was convicted of having committed a public nuisance, and appeals.
Affirmed.
Samuel A. King, for appellant.
A. C Bishop, Attorney General (Benner X. Smith, of counsel), for the people.
This is a criminal prosecution under section 4566, Comp. Laws. Utah 1888, and the defendant was charged with having committed a public nuisance by unlawfully and willfully driving, herding, and keeping about 2,000 sheep in and upon a small stream, the water of which was used for culinary and domestic purposes by the inhabitants of the town of Annabella, in Sevier county, Utah, and by rendering the said water impure, and thereby endangering the comfort and health of three persons, named in the complaint, and divers other persons, residents of said town, and using the water for said purposes. Upon conviction, and sentence to pay a fine and costs, the defendant appealed to this court.
The statute above referred to, so far as material to this decision, reads as follows: "A public nuisance is a crime against the order and economy of the territory, and consists in unlawfully doing any act, or omitting to perform any duty, which act or omission, either: (1) Annoys, injures or endangers the comfort, health, repose or safety of three or more persons," etc. Counsel for the appellant contends that this section is in conflict with sections 4, 5, c. 63, Sess. Laws 1892, and is repealed to the extent of such conflict, and that the court erred in refusing to instruct the jury, at the close of the prosecution's testimony, to return a verdict in favor of the defendant there being no evidence nor any claim that he had violated any provisions of the act of 1892. If this contention be correct, then the former law is repealed by the later, and this by implication, because there are no words of repeal in the act. An implied repeal will not result unless the necessary operation and effect of the new law cannot be harmonized with the necessary operation and effect of the old, or unless it is clear that the legislature intended the new law to be a substitute for the old; but such intention will not be presumed. It must appear from the context. So, in case of repugnancy, which renders the statutes irreconcilable, the former in point of time will be repealed only to the extent of such repugnancy. Sections 4 and 5 of the act of 1892, which, it is insisted, repeal the statute under which this prosecution was instituted, amend section 2264, Comp. Laws Utah 1888, relating to "befouling waters," and were enacted as subdivisions thereto. Under section 4 it is made unlawful "to dip or wash sheep in any stream, or to construct or maintain or use any pool or dipping vat for dipping or washing sheep in such close proximity to any stream used by the inhabitants of any city, town or village, for domestic purposes, or to construct or maintain any corral, yard or vat, to be used for the purpose of shearing or dipping sheep, within seven miles of any city, town or village, where the refuse or filth from said corral or yard would naturally find its way into any stream of water used by the inhabitants of any city, town, or village, for domestic purposes." Under section 5 it is made unlawful "to establish and maintain any corral, camp or bedding place for the purpose of herding, holding or keeping any cattle, horses or sheep, within seven miles of any city, town or village, where the refuse or filth from said corral, camp or bedding place will naturally find its way into any stream of water used by the inhabitants of any city, town or village for domestic purposes." It will be noticed that section 4 is limited to sheep, and denounces and forbids the washing, dipping, or shearing of them, and maintaining any corral for that purpose, along a stream at any point within seven miles of any city, town, or village, where the refuse will naturally find its way into the stream, the waters of which are being used for domestic purposes by the inhabitants of such town, city, or village. The same may be said of section 5, except that its operation is not limited to sheep alone, but includes cattle and horses. It will further be noticed that both of these sections apply only to the inhabitants of cities, towns, and villages, and leave wholly unprotected all persons who are not such inhabitants, but live in the more isolated portions of the state, and even the very acts prohibited may, for aught that appears in the provisions of the sections, be committed with impunity without the seven-mile limit, no matter how great the nuisance may be which is thereby created. How can it be contended that an act with such limitations can repeal by implication a law general in its nature? Section 4566 relates to public nuisances in general, and is applicable whenever a nuisance affects three or more persons. The act of 1892 relates to...
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...into the Union. The judgment of the lower court sentencing the defendant to be executed was affirmed. ¶97 In the case of People v. Burtleson, 14 Utah 258, 47 P. 87, the defendant was convicted in the first district court of Utah, prior to the admission of the state into the Union, for the c......
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