Darcantel v. People's Slaughter House & Refrigerating Co. , 44 La. Ann. 632 ( 1892 )

The opinion of the court was delivered by

Fenner, J.

The following ordinance and amending ordinance were adopted by the City Council of New Orleans:

No. 5180 — Council Series.

1! Whereas, The sanitary conditions and conveniences of slaughter houses supplying this city are defective and obsolete, and constitute a monopoly contrary to Art. 248 of the Constitution of Louisiana; and

“ Whereas, The inspection now provided by law is deficient and. beyond the control of the city of New Orleans; and

“ Whereas, It is of vital importance that all the articles of human food be subjected to a right inspection; and

“ Whereas, Article 248 of the Constitution guarantees to every parish and municipality the undoubted right and privilege to establish slaughter houses within the respective limits; therefore

“ Section 1. Be it resolved, That permission is hereby granted to A. J. Forstall, PierrelLanaux, J. W. Westerfield, J. Trisconi, their heirs and assigns, for the term of fifty years, to construct, use, maintain and operate a plant for the landing, penning, sheltering and slaughtering of all kind of live stock; to construct, use, maintain and operate, in connection with the above plant for the manufacture of ice and other cooling and refrigerating substances, with a view of keeping, preserving, refrigerating or freezing the carcasses or other parts of the various animals slaughtered in said above mentioned establishment; and to sell or dispose of to others the meats so slaughtered or refrigerated, and also the ice and other refrigerating substances which may be in excess of their consumption; and generally to conduct and carry on a slaughtering and refrigerating business in all its branches, storing, importing and exporting.

“ Sec. 2. Beil further resolved, That the said persons or corporation shall execute a bond with one or more good and solvent sureties to the satisfaction of his honor the mayor, in favor of the city of New Orleans, in the sum of twenty thousand dollars ($20,000), conditioned that the said persons or corporation shall not at any time sell, transfer or dispose of this franchise to any persons or corporation, except for the purpose of organizing a company or corporation to carry into effect this resolution, and in any case of sale, disposition or transfer, for any other purpose, this resolution shall become null and void, and shall4 be of no force or effect.

“ Sec.' 3. Be it further resolved, That there shall he appointed by the Board of Health and confirmed by the City Council a special inspector who shall be a veterinary surgeon, or a person skilled in the knowledge of the diseases of cattle, whose duty it shall be to inspect the carcasses and interior organs of all animals intended for food, and who shall have power to destroy and throw away any diseased or unhealthy meat unfit for food; that the Board of Health, with the concurrent approval of the City Council, or either, shall have the right to remove said inspector for cause; that said inspector shall receive a salary to be fixed by the City Council, and which shall not exceed the sum of one hundred dollars per month, to be paid monthly through the treasury of the city by the persons or corporation availing themselves of the privileges of this ordinance. It being well understood that this shall in no manner dispense with the inspection now provided by law.

“ Sec. 4. Be it further resolved, That all pen slaughter houses, refrigerators, constructed and operated under this ordinance shall be constructed upon plans and specifications approved by the City Council and the Board of Health; and shall be supplied with all modern conveniences necessary to carry on the business contemplated, and to remove daily, according to law, all the offal, droppings and blood from slaughtered animals.

“Sec. 5. Be it further resolved, That there shall not be allowed within a radius of two thousand feet of said slaughter houses and refrigerators any establishment for rendering dead animals, or those known as bone yards.

“Sbc. 6. Be it further resolved, That all ordinances, or parts of ordinances, in conflict with the provisions of this ordinance, and especially Ordinance No. 7336, A. S., entitled ‘Anordinance designating the places of slaughtering animals intended for food in the parish of Orleans, under Art. 248 of the Constitution.’

“ And Ordinance No. 1409, O. S., entitled ‘An ordinance regulating the slaughtering of animals within the limits of the city of New Orleans.’

“And providing for the designation of the places for slaughtering-the same, and repealing all provisions of Ordinance No. 7376, A. S., adopted October 13, 1881, and Ordinance No. 7437, A. S., adopted. November 18, 1881, designating the territorial limits within which, slaughtering could be done within the city of New Orleans.

“And Ordinance' No. 2709, O. S., granting permission to Louis .'Barthet to reopen and operate a slaughter house under certain conditions, within the city of New Orleans..

“ And Ordinance No. 2911, O. S., granting permission to any person or persons, etc., to erect slaughter houses within certain limits.

“ And Ordinance No. 3710, O. S., granting permission to the New Orleans Slaughter House and Live Stock Company, Limited, to erect and operate a slaughter house under certain conditions and restrictions, be and the same are hereby repealed, except in so far as this may affect any and all slaughter houses now operated in this city, under any ordinance, resolution or State law.”

No. 5242 — Council Series.

“An ordinance amending and re-enacting Ordinance No. 5180, C. S., granting permission to A. J. Forstall and others to erect and maintain a plant for the slaughtering of cattle, etc.:

“Be it ordained by the Qouneil of the City of New Orleans, That Ordinance No. 5180, C. S., be and is hereby amended by adding, after the last word in See. 1, the following: ‘Within the area comprised between the Mississippi river and St. Claude street, the projected line of Caffin avenue and Adams street, in the third municipal district of this city.’

“Be it further ordained, etc., That Ordinance No. 5180, C. S., as herein amended, be and is hereby re-enacted, and shall not be construed as granting a,n exclusive privilege.. ■

“Adopted by the Council of the city of New Orleans, April 21, 1891.”

These ordinances were approved by the Board of Health in the ■following resolution:

“Whereas, It is important and indispensable for the health of ■the inhabitants of the city of New Orleans that the inspection of the sanitary condition of all animals destined to be slaughtered for human food, before slaughter, as well as the inspection of animal food and meats intended for consumption as human food by the inhabitants of this city, should be under the complete control of the board and ■within its territorial jurisdiction, and the inhabitants of this city ought to have better protection against the spread of disease, ■through the medium of diseased animal food, than can be expected from the action of the health officers of rural parishes, acting beyond the local jurisdiction of the authorities of the parish of Orleans and not having local interest therein;

“Beit resolved, That this board reconsider its action in the matter of the application of A. J. Forstall, Pierre Lanaux, J. M. Wester-: field and J. Trisconi, the persons named in the ordinance of the city of New Orleans, No. 5180, Council Series, adopted respectively March 31, 1891, and April 21, 1891, for the action of this board, under Art. 248 of the Constitution of the State, in approval of the location of the slaughter house provided for in said city ordinances ‘ within the area comprised between the Mississippi river and St. Claude street, the projected line of Caffin avenue and Adams street, in the third municipal district of this city,’ and acting under the authority conferred on this board by Art. 248 of the Constitution and the law of the State, does now concur with the council of the city of' New Orleans in said ordinance designating the place for slaughtering as located in said Ordinance No. 5180, Council Series, as amended by said Ordinance No. 5242, Council Series, approved April 22, 1891, subject to all of the conditions and restrictions contained therein. The board reserving to itself the full right to the inspection of all plans for the construction of said slaughter house, and requiring the same to embody and contain the most approved modern devices and appliances for maintaining, not only the sanitary conditions and health of animals before slaughter, but the preservation of meats-between slaughter and sale and the prompt removal and disposition of blood and all other offal, and the perfect cleanliness of the live stock stalls and the premises and surroundings (but any officers or committee of this board, or any other officer designated by this board, shall at all times, and without previous notice, have free access to all parts of said premises for purposes of inspection and report to this board), and the proprietor or proprietors of said slaughter house shall promptly comply with any order or request of this board in any matter relating to the sanitary conditions of said premises, whether it relates to the slaughtering, removal of offal or the condition, surrounding or health of animals before slaughter or meats after slaughter, with the right to condemn all diseased animals and meats determined to be not fit for human food, besides to exercise all other rights and powers conferred on the board by the Constitution and laws of the State, and that the mayor and City Council be notified of this action.”

Under these ordinances the defendants were about to proceed in the establishment of a slaughterhouse in conformity therewith, when the plaintiffs, who are property owners and residents in the vicinity of the premises, brought this suit to restrain them by injunction.

From a judgment of the District Court dissolving the injunction and rejecting their demand the plaintiffs appeal.

The grounds of injunction, so far as pressed in this court, are three, viz.:

1. That the ordinance of the City of New Orleans granting to the defendants the right to establish the said ■ slaughter house is illegal and unconstitutional.

2. The Board oi Health has never concurred in the ordinances-designating the place for slaughtering, and defendants’ grant is-therefore imperfect and incomplete.

3. That the establishment of a slaughter house in the immediate-vicinity of the plaintiffs’ residences would constitute an intolerable nuisance, which they have the right to.enjoin, even if it were to be established under legal authority.

We shall consider the several grounds in the above order.

I.

Article 248 of the Constitution provides that: “ The police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided, no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation; provided, the ordinances designating the places for slaughtering shall obtain the concurrent approval of the Board of Health or other sanitary organization.”

In construing the scope and meaning of this article, this court has already used the following strong and emphatic language:

“ From the language of the article it appears that the framers of the Constitution intended to vest in the enumerated subdivisions of the State, within their respective limits, the whole, power inherent to a sovereign touching the regulation of the slaughtering of animals for food. The power thus delegated is as complete, unrestrained and unshackled as it originally existed in the State itself, and its exercise can be circumscribed by no limits or conditions which could not apply to the State or to the sovereign whence it emanates.

“ Its description in American jurisprudence is the police power, a governmental power which can not be the subject of a contract, and to the exercise of which no estoppel can be interposed.” Villavaso vs. Barthet, 39 An. 252.

We have thus held that the Constitution of the State confers upon the City of New Orleans the whole police power over this subject, which belongs to the State herself, and subject to no liniitations except those expressly imposed by the terms of the constitutional grant itself.

When we inquire into the nature and extent of the police power over this subject inherent in the State, in absence of voluntary abdication or limitation thereof by her organic law, the decision of the Supreme Court of the United States in the famous Slaughter house cases shows that it is more than ample to authorize such an exercise thereof as is presented by the ordinance under consideration, and places it beyond question that the ordinance violates no provision of the Constitution of the United States. Slaughter House Cases, 16 Wall. 36.

This decision further eliminates all applicability of the following decisions, and others like them, to the instant case: Yick Wo vs. Hopkins, 118 U. S. 356; State vs. Mahner, 43 An. 496; State vs. Garibaldi, 44 An.

These latter cases relate to such businesses as laundries, dairies and private markets, as to which the necessity of police control is less exigent, and moreover, the municipal ordinances therein involved were not sustained by any such broad grant of power as that delegated by our Constitution over the subject of slaughter houses.

Our inquiry is, therefore, narrowed to the question whether or not -the ordinance violates Art. 248 of the State Constitution.

When we analyze that article, we find only three limitations imposed on the city’s power over this subject, which, as above shown, we have held to embrace the whole police power of the State, except so far as thus limited.

These limitations are:

1. That no monopoly or exclusive privilege shall be granted.

2. That the business shall not be restricted to the land or houses of any individual or corporation.

3. That the city’s action mnst receive the concurrent approval of the Board of Health.

The Oonstitution imposes no other limitations and we can add none.

These ordinances simply grant to certain persons, who applied for the same, the privilege of establishing and operating a slaughter house within certain designated limits, upon certain terms and conditions. No monopolous or exclusive privilege is conferred by either the terms or any possible construction of the ordinance, nor does it contain any provision restricting the business of slaughtering to the land or houses of defendants. Nothing prevents the city from permitting the establishment of other slaughter houses by other persons, either within the limits designated or, for that matter, elsewhere.

The decision in the slaughter house eases, above referred to, distinctly recognized the right of the State, in the exercise of its inherent police power, to establish public slaughter houses or to delegate the power of establishing such either to a municipal corporation, or to a private corporation or to individuals; and the court, in commenting on' the statute then before it, proceeded to say: “ Unless, therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the power of the Legislature of Louisiana, there can be no just exception to the validity of the statute.”

The dissenting justices in that case did not question the general power of the State over this subject, save in the single feature of the exclusiveness of the grant.

On the contrary, in a later case, Mr. Justice Field, who was the organ of the dissenting justices, said: “No one of the judges who then disagreed with the majority of the court denied that the States possessed the fullest power ever claimed by the most earnest advocate of their reserved rights to prescribe regulations affecting the health, the good order, the morals, the peace and the safety of so - ciety within their respective limits. * * * The act of Louisiana required that the slaughtering of cattle and the preparation of animal food for market should be done outside the limits of the city of New Orleans. It was competent to make this requirement, and furthermore to direct that the animals, before being slaughtered, should be inspected in order to determine whether they were in fit condition to be prepared for food. The dissenting judges in the slaughter house cases found no fault with these provisions, but, on the contrary, approved of them.

“ Had the act been limited to them, there would have been no, dissent. But it went a great way beyond them. It created a corporation, and gave to it an exclusive right for twenty-five years to keep within an area of 1145 square miles, a place where, alone, animals intended for slaughter could be landed and sheltered, and where, alone, they could be slaughtered and their meat prepared for market.” Butchers’ Co. vs. Crescent City Co., 111 U. S. 754.

In the case just cited, the unanimous court held that the provision of Art. 258 of our present Constitution, repealing the “monopoly features” in the charter of this and of other corporations, was valid and effective, but shorn of these “ monopoly features,” no one questions that the charter remains otherwise in force, and secures the right of the company to continue its business at least until withdrawn by competent authority.

Inasmuch as the ordinances now under consideration contain no “ monopoly features,” it can not be doubted that they would be sustained' by the Supreme Court of the United States.

“A monopoly,” says Justice Field, “ is defined to be an institution or allowance from the sovereign power of the State, by grant, commission or otherwise, to any person or corporation for the sole buying, selling, making, working or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.”

No allowance of any such sole or exclusive right is contained in these ordinances. No person is restrained of any freedom or liberty they had before or is hindered in any lawful trade.

The most that can be said is that the ordinances do not expressly confer upon others than the defendants the present right to establish slaughter houses within the limits designated. Non constat that others wish to do so, or have applied and been refused, or will encounter any hindrance whatever in doing it. It will be time enough for us to pass upon such issues when they arise. Certainly these plaintiffs set up no infringement of their rights in this respect. The unrestricted privilege of establishing slaughter houses within the limits designated would not relieve, but aggravate, the injury complained of by them.

There is nothing, however, in the language of Art. 248 of the Constitution which supports the contention that the power delegated is confined to that affixing limits within which all persons shall be at liberty to establish slaughterhouses on complying with the conditions prescribed. The article contains two affirmative delegations of power, viz.:

1. Exclusive power “to regulate the slaughtering of cattle and other live stock within their limits.”

2. The power to pass “ ordinances designating the places for slaughtering.”

Tho second is a mere branch of the first general power and not exclusive in its terms.

Considering the importance of the police power over this subject and that the whole police power of the State over it is delegated to the city, we are bound to give it a liberal construction and to respect the discretion of the city in a matter so important to the health and well-being of the citizens, unless convinced, upon complaint of parties whose rights are infringed, that it operates the creation of a monopoly or exclusive privilege in violation of the Constitution.

No such consequence necessarily flows from the execution of these ordinances, and no parties are before us claiming infringement of their equal rights to pursue the business within th,e designated limits. See Cooley Const. Lim., 4 Ed., p 199.

II.

The next ground is that the ordinance is not operative for want of the “concurrent approval of the Board of Health,” as required by Constitution.

We have reproduced the resolutions of the Board of Health approving the ordinances, the genuineness of which is not disputed. But it appears that when the ordinances were first presented to the board, it adopted resolutions declining to approve them, which action was communicated to the City Council; and it is claimed that, after this, the board could not rescind its action and grant a valid approval.

The Constitution requires'nothing but that the ordinances shall be passed by the council and shall be approved by the Board of Health. We have before us the ordinances duly passed and the approval of the Board of Health expressed in a formal resolution adopted by the board. What more can we require? The Constitution fixes no time or mode in which the approval of the board shall be made.

The first disapproval by the board did not annul or cancel the ordinance. It simply remained ineffective for want of such approval. The council has never reconsidered or rescinded the ordinance. It still stands upon the city’s records as an existing ordinance, and since we hear no complaint from the council as to the time or method of the board’s action, we may presume that it persists in its action as expressed thereby. We can perceive no reason why the board’s, action in first disapproving should prevent it from afterward changing its mind, for reasons doubtless good, and approving it, so long, at least, as the council maintained the ordinance. The council, could repeal the ordinance before or after approval by the board. Not having done so, the ordinance and the approval coexist and the constitutional requirement is satisfied. Nor can we listen to complaints of violation by the board of its own rules of parliamentary proceeding. We, and the public, are simply concerned'with the fact and not with the method of the board’s approval. The constitutional purpose was to protect the people against inconsiderate action by the council in establishing slaughter houses in localities where they might endanger the public health, and with that end in view, to require such ordinances first to receive the sanction of the authorities specially charged with the care of the public health, and so organized as to enable them to give an expert and scientific judgment on such matters. That purpose is fully accomplished in this case, in which the Board of Health has acted deliberately and unequivocally.

The argument of plaintiff’s able counsel is based upon a false-analogy which likens the action of the council and Board of Health to that of two concurrent legislative bodies such as the Senate and House of Representatives in the General Assembly.

The Board of Health is not vested with any proper legislative function in this case. It has no part in passing the ordinances, and no power to amend them. Its only function is to say whether they approve or disapprove them. The case is not dissimilar to one recently decided by us, where the statute required certain action in relation to tax assessments to be submitted to the City Council “ for its approval or rejection.” We then said: “ The action here involved no function of law making. It was simply an expression of the will of the council, approving the report of the committee,. which was all the statute required. The action conclusively shows that the council approved the report. It is not a law in any sense; it is a simple decision by the council of a question required to be submitted to it under the statute, viz., ( shall the report of the committee be approved or rejected.’ ” Board vs. Thoman, 42 An. 609.

III.

The final ground for injunction is that the slaughter house proposed to be erected will be a private nuisance, injurious to plaintiffs. We consider this ground entirely untenable.

The competent legislative authority under which defendants are proceeding is a complete protection against any restraint by injunction taken out in advance.

It would be a complete nullification of the police power granted to the city by the Constitution to authorize and fix the location of slaughter houses, if private persons might enjoin in advance the execution of ordinances for that purpose duly passed.

No authority is quoted sustaining relief by injunction in such a case. The general dictum quoted from various authorities to the effect that a party can always prevent by injunction the doing of an act which would give him a claim for damages obviously refers, and must be confined, to unlawful acts. The act here sought to be enjoined is a strictly lawful act, made so by the valid ordinance of the city passed in the exercise of power conferred by the Constitution itself.

In the performance of this lawful act it may be that damages will be inflicted on plaintiffs for which even the legislative authorization may not exempt defendants from compensatory liability.

We shall not now enter into any discussion of the kinds and degrees of injury which might sustain an action for damages. It is sufficient to say that plaintiffs’ rights are necessarily limited to compensation for any actionable injury the execution of the law may inflict.

Mr. High lays down the principle as follows: “ A public nuisance can not exist in acts which are warranted (by law or authorized by legislative sanction, even though the act complained of might, independent of the statute, be a nuisance. Nor will a charge in the bill of special and peculiar injury to the complainant avail, if the work sought to be restrained is authorized by special legislative enactment.” High on Injunctions, Sec. 767.

He cites numerous authorities sustaining the proposition, which need not be here reproduced.

The principles involved in the following decisions of this court sustain the same conclusion: Hottinger vs. New Orleans, 42 An. 629; Bell vs. Riggs, 38 An. 555; Werges vs. Railroad, 35 An. 641; Harrison vs. Railroad, 34 An. 462.

The injuries complained of are purely prospective, and the evidence in the ease leaves it doubtful whether they will arise, or whether, at least, they have not been greatly exaggerated.

Judgment affirmed.