Ex parte Lacey , 108 Cal. 326 ( 1895 )

Ga-ROUtte, J.

The petitioner has been convicted and imprisoned for violating a city ordinance of the city of Los Angeles, which provides: “No person or persons shall establish or conduct any steam shoddy machine, or steam carpet-beating machine, within one hundred feet of any church, schoolhouse, residence, or dwelling-house.” He now alleges the judgment void upon the ground that the ordinance is void, and seeks his release by writ of habeas corpus. He claims the ordinance void upon the ground that it interferes with certain of his inalienable rights vouchsafed to him by the constitution. Upon the part of the city it is claimed that the passage and enforcement of the ordinance is but the exercise of a police power granted to it in terms by the constitution of the state.

The constitution of the state of California, article XI, section 11, provides: “Any county, city, town, or township may make and enforce, within its limits, all such local, police, sanitary, and other regulations as are not in conflict with general laws.” It will thus be observed that Los Angeles city is vested with certain powers by direct grant from the constitution, and that grant of power is not confined within narrow limits, but is broad and far-reaching in its scope and effect. Under this grant of power the city had the right to pass this ordinance, unless it is in conflict with general laws; and we know of no general laws which conflict with it, unless it can be said to be violative of those general principles of constitutional liberty which form the very foundation of both state and federal constitution. We see nothing in the language of this ordinance contrary to these great principles of our government. We see nothing there depriving petitioner of any fundamental right. In the exercise of its police and sanitary power the city has attempted to regulate the business of beating carpets by steam-power. Under its constitutional grant it had the right to regulate this business. The use of steam-power of itself within municipal territory has always been recognized as a proper subject of regulation; and, in addition here, it may wrell be assumed that the dust and other disagreeable and unhealthy matters arising in such quantities from the beating of carpets, as would naturally be indicated by the use of steam-power, are a constant source of danger and menace to the good health and general welfare of the neighborhood where located.

Conceding the business covered by the provisions of this ordinance not to constitute a nuisance per se, and to stand upon different grounds from powder factories, street obstructions, and the like, still the case is made no better for petitioner. This is not a question of nuisance per se, and the power to regulate is in no way dependent upon such conditions. Indeed, as to nuisances per se, the general laws of the state are ample to deal with them. But the business here involved may properly be classed with livery stables, laundries, soap and glue factories, etc., a class of business undertakings in the conduct of which police and' sanitary regulations are made to a greater or less degree by every city in the country. And in this class of cases it is no defense to the validity ■of regulation ordinances to say: “I am committing no nuisance, and I insist upon being heard before a court •or jury upon that question of fact.”

In this class of cases a defendant has no such right. To the extent that it was material in creating a valid ordinance, we must assume that such question was decided by the municipal authorities and decided against petitioner and all others similarly situated. This court ■said in Ex parte Shrader, 33 Cal. 284: “The legislature can add to the mala in se of the common law the mala jprohibita of its own behest.....The power to regulate or prohibit conferred upon the board of supervisors not only includes nuisances but extends to every thing expedient for the preservation of the public health and the prevention of contagious diseases. Now, there are many things not coming up to the full measure of a common-law or statute nuisance that might, both in the light of scientific tests and of general experience, pave the way for the introduction of contagion and its uncontrollable spread thereafter. Slaughterhouses, as ordinarily, and perhaps invariably, conducted in this country, might within the limits of reasonable probability be attended with these consequences. A competent legislative body has passed upon the question of fact involved, and we cannot go behind the finding. So far as we can know by this record, the power conferred has been exercised intelligently and in good faith.” It must be borne in mind that the court was not discussing this question from the standpoint that the conduct of a slaughterhouse within municipal territory constituted a nuisance per se. And in the case of Johnson v. Simonton, 43 Cal. 249, which involved the constitutionality of an ordinance of the board of supervisors of San Francisco, prohibiting the feeding of still slops to milch cows, the court says: “ If, indeed, it be a fact that the milk of cows fed in whole or in part upon still slop is unwholesome as human food, there can be no doubt of either the authority or the duty of the board to enact the ordinance in question, and the scientific correctness of the .determination by the board of the matter of fact involved • is not open to inquiry here.”

In the case of In re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, the court declares the following rule for testing the validity of ordinances enacted under the police power of a municipality: “ When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property, without due process of law, the courts must be able to see that it has at least, in fact, some relation to the public health; that the public health is the end naturally aimed at, and that it is appropriate and adapted to that end.” Tried by this rule the ordinance in question fairly and fully fills the requirements of the law. Neither can it be urged that petitioner is deprived of his property without due process of law, for, as is said by Judge Dillon in his work upon Municipal Corporations, section 141, in speaking of police and sanitary regulations: “It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury it is either damnum absque injuria, or in the theory of the law he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure.”

This ordinance is not unreasonable nor arbitrary nor discriminating. It treats all persons alike who are engaged in the business named therein. All have the same rights, and all are subject to the same burdens. It is rio.t unreasonable in the limits of distance fixed. As to the location of the exact spot distant from a church or a schoolhouse or a dwelling-house, where an ordinance would cease to be reasonable, it is not for this court now to say. The limits here prescribed are those with which we are to deal, and those limitations of distance may well be said to be reasonable. We see no substantial objection that can be made to the validity of this ordinance. Upon the contrary, the subject matter covered by it is clearly one with which the city had the constitutional right to deal, and the businesses there enumerated are unmistakably those which the municipal authorities had the right to regulate in the interest of the comfort and good health of the people of the city. The power is vested in the city by direct grant from the constitution to control and regulate business undertakings of the character here involved, and petitioner's constitutional rights have in no way been trespassed upon.

It is therefore ordered that petitioner be remanded.

McFarland, J., Harrison, J., Van Fleet, J., and Temple, J., concurred.