Wygant v. McLauchlan

• Decision Date: 04 May 1901
• Parties: WYGANT v. McLAUCHLAN, Chief of Police. Ex parte WYGANT.
• Court: Oregon Supreme Court

64 P. 867

39 Or. 429

WYGANT v. McLAUCHLAN, Chief of Police. Ex parte WYGANT.

Supreme Court of Oregon

May 4, 1901

Appeal from circuit court, Multnomah county; Arthur L. Frazer Judge.

Petition by Cass Wygant against D.M. McLauchlan, as chief of police of the city of Portland, for a writ of habeas corpus to secure the petitioner's release from imprisonment. From a judgment discharging the petitioner, defendant appeals. Affirmed.

The plaintiff was convicted in the municipal court of the city of Portland of a violation of City Ordinance No. 9,188, and sentenced to pay a fine of $35, in default of the payment of which he was committed to jail under a commitment issued directed, and delivered to the defendant, McLauchlan, who is the chief of police. The complaint upon which the conviction was had charged the plaintiff with a violation of the ordinance by willfully and unlawfully interring and causing to be deposited a certain dead body within prohibited territory in the city of Portland, "thereby creating a nuisance," contrary to the ordinance, etc. The ordinance under which the complaint was drawn provides, by section 1 that it shall be unlawful, and it is declared a nuisance and misdemeanor, for any person or persons, at any time after the 1st day of April, 1895, to dig, or cause to be dug or opened any grave, or to inter or deposit, or cause to be deposited, in such grave, any dead body, within the city of Portland, except within certain specified districts; and, by section 2, that no person or persons shall, after the day named, dig, or cause to be dug or opened, any grave, or cause to be deposited or interred in such grave any dead body, except in those portions of the city designated in section 1. Section 6 prescribes a penalty for a violation of the ordinance. The charter empowers the city to prevent the introduction of contagious diseases, etc., and "to provide for the health, cleanliness, ornament, peace, and good order of the city," and, by a subsequent clause, "to prevent and remove nuisances, and to declare what shall constitute the same." Section 32, subds. 6, 9. The plaintiff, being imprisoned, sued out a writ of habeas corpus, alleging that he is unlawfully restrained of his liberty by the defendant, to which the latter made return that he is lawfully detaining the plaintiff under and by virtue of the commitment to him issued and directed. The judgment being favorable to the plaintiff, the defendant appeals.

John K. Kollock and R.R. Duniway, for appellant.

Raleigh Stott, W.L. Boise, and Geo. C. Stout, for respondent.

WOLVERTON J. (after stating the facts).

The plaintiff bases his argument in support of the judgment of the circuit court upon the ground that Ordinance 9,188 is invalid, for the reason that the charter does not authorize the city of Portland to declare the burial of the dead within the city limits, outside of the excepted districts, to be a nuisance, or to punish persons for doing the acts thereby declared to be offenses against the city. It may be premised that a cemetery is not a nuisance, except conditions be present which corrupt or foul the atmosphere by unwholesome or noxious stenches, or impregnate the water of wells or springs in the vicinity by percolation through the soil, thereby endangering the public health; hence the authorities agree that it is not nor can it be regarded a nuisance per se. Wood, Nuis. § 6; 1 Dill.Mun. Corp. (4th Ed.) § 373; 5 Am. & Eng.Enc.Law (2d Ed.) 791; Kingsbury v. Flowers, 65 Ala. 479; Henry v. Trustees, 48 Ohio St. 674, 30 N.E. 1122; Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191. And whether the act of depositing a dead body in its place of sepulture is the commission of a nuisance depends entirely upon its proximity to the habitations of the living and the manner in which it is accomplished. In so far as the language of the charter conferring power upon the city to declare what shall constitute a nuisance is involved by the contention, the case of Grossman v. City of Oakland, 30 Or. 478, 41 P. 5, 36 L.R.A. 593, is precisely in point. Within the scope of the doctrine there announced and settled, the city is not thereby authorized to declare that to be a nuisance which is neither such per se nor under the common law, nor made so by statutory enactment. It would seem to follow, therefore, that the city council was not authorized to declare generally that to deposit a dead body in any portion on the inhibited district shall constitute a nuisance, when it is conceded, as here, that such an interment may be made in the usual way in some sections thereof, without giving offense to the senses of any human inhabitant, or endangering in the least measure the health of the community.

Defendant's counsel insist, however, that the authority requisite for excluding burials from within the city limits may be referable to the general police power incident to all municipal corporations, and, beyond this, it is urged that the words of the charter, "to provide for the health cleanliness, ornament, peace, and good order of the city," are commensurate for the purpose. The power thus conferred is no doubt ample to authorize the city to adopt reasonable measures prescribing rules and regulations, as it respects the place and manner of burials within the city limits; but the city cannot arbitrarily prohibit them, unless such prohibition be a reasonable exercise of the power. The legislature, in its wisdom, may, by express delegation of authority, empower the city to adopt measures of a specified and defined character, and the exercise of such authority cannot be questioned on the ground of its unreasonableness. People v. Pratt, 129 N.Y. 68, 29 N.E. 7; Cronin v. People, 82 N.Y. 318; Coates v. Mayor, etc., 7 Cow. 585,--are illustrative of the principle. In the first, the authority delegated was "to make, modify, and repeal ordinances and by-laws to regulate the burial of the dead"; and it was held that the power to regulate was tantamount to the power to prohibit, the court referring to Cronin v. People, which involved the authority to prohibit the operation of slaughter houses in certain portions of the city of Albany as conclusive of the point. So, in the last case cited, the authority extended to making by-laws "for regulating *** or preventing the interment of the dead" within the city, which language is so express and explicit as to leave no doubt touching the power to prohibit. But where the authority to adopt specific measures is referable merely to the general power, or where the authority to legislate with respect to a given subject is conferred and the mode of its exercise is not prescribed, there goes with it the condition that the exercise thereof, to be valid and efficacious, must be reasonable, and not oppressive. 1 Dill.Mun. Corp. (4th Ed.) § 328; Trenton Horse R. Co. v. Inhabitants of City of Trenton (N.J.Sup.) 20 A. 1076; Haynes v. Cape May, 50 N.J.Law, 55, 13 A. 231; Coal Float v. City of Jeffersonville, 112 Ind. 15, ...