Shepard v. People

• Citation: 40 Mich. 487
• Court: Supreme Court of Michigan
• Decision Date: 09 April 1879
• Parties: Porter A. Shepard v. The People

40 Mich. 487

Porter A. Shepard v. The People

Supreme Court of Michigan

April 9, 1879

Submitted January 28, 1879

Error to Oakland. Submitted Jan. 28. Decided April 9.

Judgment ordering the removal of the dam reversed.

J. Ten Eyck for plaintiff in error. A nuisance is to be abated by removing that in which it consists, and no more than necessary should be removed, People v. Albany, 11 Wend. 539; Rex v. Pappineau, 1 Strange 688; Cooper v. Marshall, 1 Burr. 267; Babcock v Buffalo, 56 N.Y. 268; Clark v. Syracuse, 13 Barb. 32; Roscoe's Crim. Ev., 799: private property cannot be destroyed for the benefit of the public unless its destruction is shown to be absolutely necessary, People v. Platt, 17 Johns. 212; Mich. Const., Art. XV §§ 9 and 15; Art. XVIII., §§ 2, 14; 2 Kent's Com., 423-5, n.

Attorney General Otto Kirchner and M. E. Crofoot for defendant in error.

Graves J. The other Justices concurred.

OPINION

Graves, J.

The plaintiff in error was prosecuted for causing a public nuisance in the city of Pontiac by means of a mill-dam therein across the Clinton river. The information assumed to explain the effect and in what way and with what aids it was produced. The jury found a general verdict of guilty, and the court, after overruling a motion in arrest of judgment, imposed a fine of fifty dollars, enforceable by imprisonment, and ordered that the dam should be removed at the expense of plaintiff in error, but at such time and in such manner as the board of health of the city should direct.

The true question in this court is whether this branch of the judgment which requires the dam to be destroyed can be supported, and we are of opinion that it cannot.

1. This part of the determination, though separable from the rest, is an indivisible order and taken by itself cannot be broken into parts. It is an entirety and must stand or fall as such. If any portion of it is bad the whole must fall. Hence, the requirement to remove the dam must follow the fate of the condition prescribing the intervention of the board of health.

In the next place it must be observed that if the dam was subject to be destroyed as a cause of nuisance it was not imperative on the court to order it to be destroyed. It was competent to abstain from an exertion of the power. Crippen v. People, 8 Mich. 117.

The court, however, conceiving that the occasion was a proper one for its exercise under the condition, and not otherwise, that removal should be made only at such time and in such way as should be directed by a board of health, was led to assume first, that the general statute (Comp. L., § 1702) empowered it to qualify the order for abatement by a condition of that kind; and second, that the other general provision in § 1740 came in aid of the first, and for the purpose thereof provided and pointed out a board of health for the city of Pontiac.

Now, when taken by itself the earlier section (§ 1702) has no application to a city and its operation is impossible there. It is expressly confined to townships, and it cannot have effect in a particular city unless by means of an appropriate supplementary provision which in itself is operative in such city.

The subsequent section (1740), which is intended to further the general purposes of the chapter, makes the "mayor and aldermen" of each incorporated city, and the "president and council or trustees" of each incorporated village, whatever the number in either case, a board of health within the same. The court regarded this provision as operative in the city of Pontiac, and being of opinion that it so supplemented and aided the other as to cause that to operate with it, made the conditional order in question. This construction is not tenable. Whatever may have been the case prior to 1861, when Pontiac became incorporated as a city, it is certain that since that time the general provision in Comp. L., § 1740 has not been operative there.

In providing for a city government the Legislature made such special regulations on the subject of a board of health therein as were considered most proper, and in so doing practically negatived the operation of the general laws in question within the city. This is too evident to be seriously questioned, and it is not left to depend upon the rule that a general provision is deemed to be superseded as to a particular place or occasion by a new one made specially therefor.

The two classes of regulation are incompatible in their plan and operation. By the general statute a board of health in a city is to consist of the "mayor and aldermen," whatever the number of the latter, and whatever the term of service. They are ex officio members of the board. An election of mayor and aldermen involves an election of the board of health. They come in directly by popular vote and not by appointment, and are not chosen with any special reference to their capabilities for the peculiar duties incumbent on a board of health in a dense population.

If this scheme is sought to be applied to Pontiac the positive institutions and regulations of the incorporating laws cannot be made to give way; and by the amended charter the board of health must consist of the mayor, an officer elected annually, and of eight aldermen respectively elected for two years, and consequently making a body of nine persons and holding by election. 2 Sess. L. 1867, p. 605.

Now, it will be admitted that the Legislature did not intend there should be two boards of health at the same time, differently composed and organized and with jurisdiction over the same territory, and one of which in a separate capacity should not only have power to legislate for the other, but power to appoint it. But the...