Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-06-18
ON HABEAs CORPUS.


Judge Armstrong, in the, Case OF He'll
bron Bros.. Remands the Petitioners.
Yesterday morning, in Department one
of the Superior Court, Judge Armstrong
rendered the following decision IN the
habeas corpus case of A. d A. Helloroh'
which was argued before him last Saturday:
In the matter of the application OF Hebron
for a writ of habeas corpus, ] have prepared u
short written opinion, which Will READ.
The petitioners were charged III the PoIlce
Court of the city of sacramento Win Hlsae-
meanor in violating the following city ordi-
nance. Ii shall be unlawful for any person to
slaughter any animal within the city, or to
erect maintain, or use, or cause 10 be erected,
maintained, or used, within the city, any house,
Shed or other building a slaughterhouse, or
to dress or clean any slaughtered animal in the
city
Ii is contended by the counsel for the petition
ers that the Board of Trustees of the city had
not the power to pass the ordinance; but the
City Charter, in defining the powers OF the
Board, provides that it shall have power ito
prevent any and all domestic animals from run
ming at large within the city limits or any part
thereof or from being kept therein; to control
and regulate slaughter-hOuseS or to provide for
their exclusion from the city limits, or any part
thereof. Statutes 1863, p. AS, see. > sub. %
The ordinance is no broader than the author
ity conferred by the charter. But it is claimed
that the Legislature itself could not pass valid
Act III the language of the ordinance, and the
reason assigned for this position is that a
Saughter-hOuSe Is not per Sc a nuisance, and
that the determination that it is a nuisance by
either the Board of Trustees or the Legislature
would be a Judicial and not a legislative Act.
But i'll the case of eX parte Shrader, 30 Cal, 2S2,
the ordinance there involved was as to subject
matter, and in its object, in all respects similar
to the ordinance now in question, and the SUI
preae Court decided that it was not Il judicial
but a legislative Act That decision proceeded
a h1t q
aScertained and determined the fact that the
saughter-hOuSeS there in question were nul-
sances, and such must be the construction given
to the ordinance now involved, though there is
no such express statement in the ordinance. In
the case of the City of Taunton Taylor, 1l6
Mass. 26l, in considering an ordinance like this
one, the Court said: IL need not state III direct
terms that the trade which 1t prOhlDltS Is
nuisance 1t is sufficient if the order clearly
shows that, in the opinion of the Board of
Health, the exercise of such trade Will be hurt
full TO the inhabitants or injurious to the public
health, or be attended by noisome and injurious
odOrs.'
The powers conferred upon the Board of Trus-
tees of Sacramento are similar to the powers
which were conferred upon the Board of Health
in that case. There are many other authorities to
the same effect. Commonwealth vs.. Patch, 81
Mass, ri Johnson VS.. Simonton, As Cal, 242
Metropolitan Board VS.. Hester, 81 \. Y, COL
But there are some cases the other way. Wre-
ford VS. the People, IA Mich, AZ. The weight of
authority is i'll favor OF the validity OF the Ordl-
nance.
The petitioners are legally in custody and
must be remanded and it is so ordered.
| wish to say, however, in addition to what
have written, that at the argument it did seem
to me that the passage of this ordinance did en-
croach upon the judicial functions of the Gov
eminent, and if it had not been for the author-
ties which are referred to, and some others of a
like character, | should have felt compelled to
decide this case the other way. During the ar
gument made by General Hart it seemed to me
clear upon principle that this ordinance could
not be sustained, but upon looking into the au-
thorities l must bow obedience to them, and do