Wreford v. People ( 1865 )

Campbell J.

Wreford was complained of and convicted in the Recorder’s Court for violating an ordinance of the City of Detroit, which declares that no person shall slaughter or cause to be slaughtered in any building or enclosure, on or within one block of Jefferson or Woodward avenues, or Fort street, any cattle, sheep, swine or calves. He was charged with slaughtering calves, in a building on Jefferson avenue. He claims the ordinance to be invalid.

The only provisions of the charter which confer power over this subject are subdivisions 29 and 33, of section 22, chapter 5. Subdivision 29 authorises the Common Council to compel the owners and occupants of slaughter houses, and other designated establishments, to cleanse or abate them, whenever necessary for the health, comfort or convenience of the inhabitants of the city. This power can only be exercised to do away with what are legally nuisances, and does not authorize the Council, as it could not, to interfere with what is not a nuisance in fact. Subdivision 33 gives power to the Council to “ prohibit and prevent', within certain limits in said city, to be determined by the Common Council, the location or construction of buildings for * * * slaughter houses,' and yards, butcher’s shops, &e.” ; “ and such buildings, &c., now or hereafter to be constructed in said city, whether within or without the limits, to be determined as aforesaid., Sc., shall be subject to such regulations in relation to their construction and management, as the Common Council may make, with a view to the protection of any property from injury by fire, or to the health and safety of the inhabitants of said city, and to prevent them from becoming in any way nuisances.”

It will be seen that the Council have no power to prohibit slaughtering animals any where upon their owner’s premises, unless the building is devoted to that business. The ordinance in question makes no reference to the use of the building for any particular business, but punishes any act of slaughtering. This is clearly unauthorized.

It also appears that this building was used and fitted up for a slaughter house, before the ordinance was adopted. The charter only allows the Council to prevent future erections and locations of such establishments, and they have no right to put an end to any existing business of the kind, so long as it is not a nuisance'in fact. They may under this authority regulate the future location of such establishments, if their ordinances are reasonable and not oppressive. The power given to them by the latter clauses of subdivision 33, to make reasonable regulations to prevent the creation of nuisances from the exercise of such business, is ample enough for the public protection; and is all that they can exercise against any business already established. They cannot declare that to be a nuisance Avhich is not a nuisance, and they must confine their prohibitory action, aimed at fixing the locality of any business, to future erections or establishments. When any thing creates an actual nuisdnce it may b# reached and punished, without reference to its duration, and its continuance as a nuisance can be adequately prevented.

We think the by-law in question is void, and the conviction should be quashed.

The other Justices concurred.