Zimmerman v. Gritzmacher ( 1909 )

Decided February 9, 1909.

On Petition for Rehearing.

[98 Pac. 1185.]

MR. Justice Bean

delivered the opinion of the court.

Counsel is in error in assuming that the court held or intended to hold that a municipal officer could not, in a proper proceeding, question the validity of a city ordinance. The holding is that a city cannot maintain a criminal prosecution against one for maintaining a nuisance in doing that which it expressly authorizes, as long as the ordinance, authorizing the act complained of, remains unrepealed. This is not an action or suit between Zimmerman and Gritzmacher, but is a habeas corpus proceeding, instituted by Zimmerman to obtain his discharge from arrest under a warrant issued on a complaint, filed by the city, charging him with maintaining a slaughter house within the corporate limits, which an ordinance authorized him to do.

Rehearing Denied.