In re Application of Mathews

Petitioner, Mrs. Prank Mathews, was convicted of a violation of section 14 (c) of Ordinance No. 1940 of the city of Pasadena, entitled “An ordinance of the city of Pasadena defining nuisances and prohibiting their maintenance.” Section 14 (c) provides: “It is hereby declared to be a nuisance and it shall be unlawful for any person, firm, or corporation to keep or maintain any goat within (50) feet of any dwelling-house other than that occupied by him or it, or- more than two (2) goats within one hundred (100) feet of any dwelling-house other than that occupied by him or it, or more than four goats within three hundred (300) feet of any dwelling-house other than that occupied by him or it, or more than five (5) goats within one thousand (1000) feet of any dwelling-house other than that occupied by him or it.

“(ee) It shall be unlawful to keep or maintain any male goat exceeding the age of six months within the limits of the city of Pasadena.”

Petitioner’s alleged offense consisted of keeping more than five goats within one thousand feet of a dwelling-house other than her own. Pursuant to her application therefor, a writ of habeas corpus was issued, directed to the chief of police of the city of Pasadena, and it is now claimed the section of the ordinance under which she was convicted is invalid.

Section 11, article XI, of the constitution provides that “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.” The ordinance involved was obviously adopted under the authority conferred by this section, as it also prohibits within the city limits the maintenance of such places as slaughter

Petitioner first contends that the ordinance conflicts with the state law. She points out that by section 370 of the Penal Code and sections 3479 and 3480 of the Civil Code certain things have been declared to be nuisances, they being, in so far as is material here, anything which is injurious to the health, indecent, offensive to the senses, or which interferes with the comfortable enjoyment of life or property by any community, neighborhood, or considerable number of persons. It is insisted that a municipality is without authority to determine that a specific act is within the code definitions, such a question being a judicial and not a legislative one, and that the city of Pasadena, by providing regulations on the subject of keeping goats, has recognized that when so kept they are not a nuisance, that by the ordinance, which is designated as an act to define nuisances and prohibit their maintenance, it is attempted to bring the keeping of goats within the definition of a nuisance. [1] A city clearly has power to pass general police regulations to prevent nuisances, and such power is not limited to the suppression of those things which are nuisances per se within the meaning of the code sections. In Odd Fellows’ Cemetery Assn. v. San Francisco, 140 Cal. 226 , 231 [ 73 Pac. 987 , 988], it is said that “The exercise of this [police] power is not limited to the regulation of such things as have already become nuisances or have been declared to be such by the judgment of a court. . . . The decisions of this court show that ordinances have been upheld in many cases prohibiting things which could not be said to be nuisances per se, and which had not been declared to be such by any court. . . . "Whenever a thing or act is of such a nature that it may become a nuisance, or may be injurious to the pubilc health, if not suppressed or regulated, the legislative body may, in the exercise of its police powers, make and enforce ordinances to regulate or prohibit such act or thing, although it may

The question presented here is whether the keeping of goats is a proper subject of municipal regulation, and if so, whether the regulation in question is a reasonable one. In Boyd v. City of Sierra Madre, 41 Cal. App. 520 , 527 [ 183 Pac. 230 , 233], with respect to the power of a city to pass police regulations, it is declared: “Primarily, it is for the city’s legislative body, clothed with police power by direct grant from the constitution, to determine when and what regulations are essential; and its determination in this regard, in view of its better knowledge of all the circumstances and the presumption that it is acting with due regard for the rights of all parties, will not be disturbed by the courts, unless it plainly can be seen that the regulation has no relation to the protection of health, safety, comfort, or well-being of the community, but is a clear invasion of personal or property rights under the guise of police regulation.”

[3] That the keeping of animals may be a proper subject of municipal regulation, and that by such regulation the number of animals which may be kept may be limited, does not admit of question. (In re Linehan, 72 Cal. 114 [ 13 Pac. 170 ].) The board of directors of the city of Pasadena have deemed the presence of all male goats and the unrestricted keeping of herds of female goats in the city injurious to the welfare of the residents. Petitioner alleges that the keeping of milk goats is a large, growing, and

In our opinion petitioner’s allegations are not conclusive of the question, in view of the strong presumption in favor of the validity of the ordinance. It was said in Odd Fellows’ Cemetery Assn. v. San Francisco, swpra (page 233), that “There are some allegations in the complaint intended to show that this particular ordinance is unreasonable. It is well settled, however, that, except where the court can see, in the light of facts properly brought to its knowledge, that a given police regulation has no just relation to the object which it purports to carry out, and no reasonable tendency to preserve or protect the public safety, health, comfort, or morals, the decision of the legislative body as to the necessity or reasonableness of the regulation in question is conclusive. ’ ’ (See, also, Vanderhurst v. Tholche, 113 Cal. 147 [ 35 L. R. A. 267 , 45 Pac. 266 ].)

It is a matter of common observation that the herding together of even the least offensive animals within a city may be conducive to noise, foul odors, and insect life, and may be a source of great annoyance and discomfort to persons residing in the vicinity. Assuming it to be a fact of which we may take judicial notice that female goats are, as claimed by petitioner, animals of high qualities, whose merits are underestimated by the public at large, still they might not be entirely free from all the characteristics which make other barnyard animals the proper subject of municipal regulation. [4] We cannot say that when kept in numbers in a city they are so incapable of offending the senses and affecting the health and comfort of the residents, and, that in the instance before us, are so unlikely to interfere with the pub-

Petitioner affirms as a fact that the goat-keeping industry is increasing and is as yet undeveloped in this part of the country. If this be so, and the animals tend to interfere with the comfort and health of the community, it is a stronger reason why municipal authorities should regulate their maintenance before they become too numerous, if for no other reason than to prevent the growth within the city of an industry which may subsequently become a nuisance and necessarily be suppressed.

[5] The regulation, in our opinion, is not unreasonable. Petitioner’s most serious objection is to its plan, which in effect makes each dwelling-house the center of a zone within which an excessive number of goats may not be kept. We see no objection to this method of determining what shall constitute such areas. A similar system was held valid in State v. Hord, 122 N. C. 1092 [ 65 Am. St. Rep. 743 , 29 S. E. 952 ], which decision upheld an ordinance providing that no person should keep a hog-pen with a hog in it within one hundred yards of another’s dwelling. (See, also, In re Lacey, 108 Cal. 326 [ 49 Am. St. Rep. 93 , 38 L. R. A. 640 , 41 Pac. 411 ].) In any city such a regulation would insure equal protection against the evil to all within its limits, and in a.city built up irregularly, with a population unevenly scattered, a greater freedom would be accorded the inhabitants in the matter of keeping animals than by a general ordinance dividing the territory into business and residential districts, or by attempting to divide the city into definite areas in which goats might or might not be kept.

It is claimed by petitioner that the regulation in this instance is unreasonable in that the distances prescribed in the ordinance are entirely disproportionate to the number of goats kept. Thus it is pointed out that the distances provided in the ease of six goats is three times that provided for the keeping of five. The objection to six goats may be but little greater than that to five, but in a regulation such as this some definite number must be fixed where a division is to be made. [6] The ordinance may not be held invalid unless the distances are clearly unreasonable, the question of reasonableness being primarily one for the legislative body. We cannot say that the distances up to three hundred feet

[8] Nor does the fact that the ordinance does not preclude the goat owner from keeping the animals within the prescribed distance of his own home impair its uniformity or reasonableness. In State v. Hord, supra, it was said: “The object of the ordinance is not to prevent a man from injuring himself by keeping his hog pen too near his own house, for that is a matter he can remedy at will, but to protect the public against a nuisance which they have no power to prevent except through the authority of a town ordinance acting on the offender.

“A nuisance is to the public, or to others, and not an injury or annoyance which a person causes to himself and family. It is an anomaly that the defendant, who has disobeyed the ordinance forbidding him to commit a nuisance upon the public, should be complaining that the town did not go further and forbid him being a nuisance to himself. He could refrain from that without official help.”

Finally, it is objected, first, that while it is made unlawful for one person to keep goats within the prescribed distance of another’s dwelling, there is no objection if they are kept by several persons; and, second, that the operation of the law may also be defeated when an allowable number of goats are kept within a certain distance on one side of a given person’s dwelling and an allowable number within the same distance on the other side, but the total number within the area is more than could be kept by one person. [9] Considering the first objection, we are of the opinion the

In the codes of this state the word “person” includes “persons,” for it is expressly declared that the singular shall include the plural. (Civ. Code, sec. 14; Code Civ. Proc., sec. 17; Pen. Code, sec. 7; Pol. Code, sec. 17.) No such definition is contained in the ordinance in question. When used in a statute, it would appear from the decisions that in the absence of an express declaration that it shall include the plural, “person” may or may not include “persons,” according to the context. Thus in People v. Croton Aqueduct Board, 26 Barb. (N. Y.) 240, it was held the singular included the plural as used in a municipal ordinance requiring a certain estimate to contain the name and place of residence of the person making it, where more than one person joined in making the estimate. In Dixon v. Rickets, 26 Utah, 215 [ 72 Pac. 947 , 949], the singular was construed as implying the plural in a statute imposing an inheritance tax upon any property passing by will or inheritance to any person in trust or otherwise. But in Denny v. Smith, 18 N. Y. 567 , 568, “person” was held not to include “persons” in a statute suspending the running of the statute of limitations as against any person out of the state, so that both of two joint debtors must reside out of the state the length of time required to avoid the statute.

The ordinance involved herein would be entirely ineffectual, if not discriminatory, if it made the keeping of goats lawful when done by several persons and unlawful when done by one. Construing the word “person” as including the singular only, the intention of the legislature would be defeated and an absurd result reached. We are therefore of the opinion it should be read as including the plural, and in view of this conclusion petitioner’s contention fails.

The writ is discharged.

Lennon, J., Waste, J., Myers, J., Seawell, J., Kerrigan, J., and Wilbur, C. J., concurred.

Rehearing denied.