Town of Fulton v. Norteman.

• Decision Date: 20 November 1906
• Citation: 60 W.Va. 562
• Parties: Town of Fulton v. Norteman.
• Court: West Virginia Supreme Court

60 W.Va. 562

Town of Fulton

v.Norteman.

Supreme Court of Appeals of West Virginia.

Submitted June 29, 1906.

Decided November 20, 1906.

1. Municipal Corporations Ordinances Unjust Discrimination.

To be valid, municipal ordinances must be free from such vices as discrimination against the sale or use of articles of lawful trade, merely on the ground of the place of their production, as well as promotive of the purposes for which the power to pass and enforce them has been delegated by the legislature, or is inherently possessed, (p. 564.)

2. Same Manufacture of Fertilizers Use of Dead Animals.

A municipal ordinance, declaring it unlawful for any person to bring into the town, the authorities of which passed it, the carcass or dead body (or any portion thereof) of any animal intended for burial, cremation or manufacture into fertilizer of any kind, and for any person to bury, cremate or manufacture into fertilizer, or cause to be buried, cremated or manufactured into fertilizer, any such carcass, dead body or a portion thereof, so brought in, and for any person to receive such a carcass or dead body within the town, but not prohibiting the bringing in of such carcass or dead bodies for other purposes, nor making it unlawful to manufacture fertilizer in the town from such materials, discriminates against valuable articles used in lawful 'trade and business, on the ground of location with reference to municipal lines, in so far as it forbids importation thereof for the purpose of manufacture into fertilizer, and is, therefore, void to the extent aforesaid, although, but for such discrimination, it might be valid as an ordinance promotive or protective of health and restrictive of an injurious and offensive transaction, pursuit or business, (p 576.)

Appeal from Circuit Court, Ohio County. Action by the town of Fulton against William Norteman. Judgment for plaintiff, and defendant brings error.

Reversed.

Caldwell & Caldwell and Dovener & Fickeisen, for plaintiff in error.

James W. Ewing, for defendant in error.

poffenbarger, judge:

The question presented by this record is whether or not an ordinance passed by the town of Fulton is valid. William Norteman was convicted in the criminal court of Ohio county, on a charge of having violated it. The circuit court of that county affirmed the judgment on a writ of error. This Court granted a writ of error to the two judgments aforesaid.

The material sections of the ordinance read as follows:

"Section 1. It shall be unlawful for any person to bring into the town, the carcass or dead body (or any portion thereof) of any animal intended for-burial, cremation or manufacture into fertilizer of any kind.

"Section 2. It shall be unlawful for any person to bury, cremate or manufacture into fertilizer, or to cause to be buried, cremated or manufactured into fertilizer within the said town, any carcass or dead body mentioned in section 1 of this ordinance, or any portion of such body.

"Section 3. It shall be unlawful for any person to receive within the town any carcass or dead body mentioned in section 1 of this ordinance, or any portion of such carcass. In any prosecution under this section, if the delivery of such carcass or portion thereof at any fertilizer plant be proved, it shall be presumed that it was permitted by the owners and operators of such plant and each of them, unless it appear that such person did not know or suspect any such delivery, or that he endeavored to prevent it and gave prompt notice thereof and full information to the mayor before the prosecution."

The material parts of an agreed statement of facts hied in the case read as follows: "It is further agreed that said defendant, Wm. Norteman did, on the 16th day of May, 1905, in violation of said ordinance, bring into said town portions of a carcass, or carcasses, or dead body or dead bodies of animals, intended for manufacture. It is further agreed that Wm. Norteman, the defendant, was on the day last aforesaid in the employ of The Wheeling Butchers' Association, which association operated on said last named date, and for a long time prior thereto in the town of Fulton, a fertilizer plant; that said association was incorporated under the laws of the State for the purpose of manufacturing fertilizer; that dead bodies of animals were used as necessary ingredients in said fertilizer; that said Norteman brought into said town on said day portions of a carcass, or carcasses, or dead body or dead bodies of animals to be manufactured into fertilizer in said town by the said Wheeling Butchers' Association, which said dead bodies of animals, were necessary for the conduct of said business as aforesaid; and that in order to reach the said plant of the said Butchers' Association it was necessary for said William Norteman to pass into the said town of Fulton. The purpose of this agreed state of facts on appeal to the Criminal Court is to have the validity of said ordinance tested and adjudicated by said court."

The ordinance took effect on the 15th day of May, 1905, and, on the next day, Norteman violated it, and these proceedings immediately followed.

In presenting the case, counsel for the plaintiff in error, discuss, at considerable length, the law relating to the powers of municipal corporations to abate nuisances and the requisites of procedure in the exercise of such power; but the consideration of the validity of this ordinance does not seem to involve extensively legal principles of that kind. The osten sible purpose of the ordinance is not to suppress the business of manufacturing fertilizer in the town, nor does it provide for abatement of the fertilizer plant, which, the agreed statement of facts shows, is in operation in the town. Furthermore, the ordinance is not sufficiently broad, either in the terms used or in the spirit thereof, to prevent or abate, as a nuisance, the transportation of carcasses of dead animals along the streets. It merely inhibits the bringing into town of such carcasses from beyond its limits, and the burial, cremation and manufacture into fertilizer of carcasses brought in from the outside. The most that can be said of it is, that it inhibits the bringing in of such articles for any of the three purposes named, and this inhibition extends to citizens and residents as well as to non-residents. Limited and restrained in its operation to this extent, its object can hardly be said to be the suppression of any business as a nuisance. It might be better described, as regards its object, as an ordinance passed, under the general power, given in the charter, to prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholsome, for the purpose of curtailing or limiting a practice which the council deems offensive and unwholsome.

It does not prohibit generally the bringing in of the carcasses of dead animals. They may be hauled through the streets from one side of the town to another and deposited beyond its limits, or brought in for any purpose other than those of burying, cremating and manufacturing them into fertilizer.

Owing to the peculiarity of this ordinance, in respect to the object thereof, as indicated by its terms, the determination of the question presented necessitates a rather extensive inquiry into, and careful consideration of, the legal principles involved. The decisions are uniform to the eifectthat ordinances must not be oppressive, nor in restraint of trade, nor against common right. They must be impartial and general in operation. A further restriction is, that the vesting in an officer or tribunal of power tc» act arbitrarily or capriciously, in giving or withholding permission to use property in any lawful manner, or to carry on a business or occupation, is not within the competency of a municipal corporation, although it may have the power of regulating the use of the property or the pursuit of such business or occupation. Smith Municipal Corporations, section 526; 21 Am. & Eng. Ency. Law, 983, 988. Most of these limitations are generally specified by the courts and law writers as mere elements of unreasonableness; but, iu the final disposition of most of the cases arising under ordinances which are held to be/void, the conclusions are, that the ordinances, in their operation and effect, go entirely beyond mere abuse of discretionary power and violate some legal right, or contravene some principle of public policy. There is, however, a class of cases in which ordinances have been overthrown apparently on the ground of mere abuse of discretionary power. Here it seems to me to be entirely proper to say the ground of the decision is unreasonableness of the ordinance.

Thus, in Lord v. Standard Oil Company, 32 N. Y. App. Div. 596, an ordinance, relating to the inspection of oil by the sealer of weights and measures, which permitted him to charge for such services of inspection eight and one-third per cent, of the entire value of the oil inspected, and imposed no restrictions upon him and prescribed no rules for the regulation of his conduct, was held to be unreasonable and oppressive. The power of the city of Auburn to cause oil to be inspected and to charge a fee for the service was undoubted, but the mode of the exercise of that power was such as to amount to an abuse of the discretion vested in the municipality by the statute. It required no more trouble and expense to test a thousand barrels of oil than to test one, but the ordinance made the cost, in the one case, only a few cents, and, in the other, a large amount of money. In Buffalo v. Baking Co., 39 N. Y. App. Div. 432, an ordinance providing that all bread baked and sold, or offered for sale, by licensed bakers in the city, should be made into loaves weighing one and one-half pounds, and imposing a penalty for its violation, was held to be an unreasonable exercise of police power and an unwarrantable interference with the rights of individuals engaged in trade. The city...