(dissenting). This is an appeal from a judgment enjoining the city of Eargo from the enforcement of an ordinance against maintaining a morgue or undertaking establishment in any part of the city occupied mainly for residence purposes. It appears that pending the passage of the ordinance the plaintiff purchased a lot in the best residence part of the city and commenced the erection of a morgue or undertaking establishment. It seems that he run a race with the city commissioners by trying to get the establishment well under way before the passage of the ordinance. He avers that prior to the passage lie had expended $1,000 on the building and incurred obligations to pay on a building contract $15,000, and that subsequently he paid the same. The plaintiff contends that the city counsel had no legal power to pass and enforce the ordinance restraining him from conducting the business. Also, that the ordinance is indefinite, uncertain, and that the business is not a nuisance.
The ordinance makes it unlawful for any person to maintain within parts of the city of Eargo occupied mainly by residences any morgue, undertaking parlors, rooms or places used mainly for the purpose of embalming, preserving or caring for the dead, or any chapel or room used mainly for funeral purposes.
Eor violation the punishment is a fine not exceeding $100 or imprisonment not exceeding three months, or both. Now it seems entirely clear that neither the ordinance nor the act of the legislature is in any way ambiguous, indefinite, or uncertain. By statute, § 3818, the city commission is given power to pass the ordinance in question. The power is given by §§ 52, 54, 75.
Section 52: To declare what shall be a nuisance and abate the same and to impose fines upon persons who may create, continue, or suffer a nuisance to exist.
Section 54: To do all acts and make all regulations which may be necessary or expedient for the promotion of health or for the suppression of disease.
' Section 75: To regulate the location of hospitals and undertaking establishments.
The ordinance is strictly within the letter and spirit of the law and the power granted to the city commissioners. Contrary to the ordinance *175the plaintiff undertook to construct and maintain an undertaking establishment in a part of the city used mainly for residence purposes. Indeed, it is in the very best residence part of the city. The ordinance prohibits the keeping of an undertaking establishment within “those parts of the city of Fargo occupied mainly for residences.” By the use of his eyes any person can see and determine as to whether any part of a city is occupied mainly for residences. There is no claim that the undertaking establishment is in a part of the city that is not occupied mainly and almost exclusively for residence. It is true the plaintiff avers that an undertaking establishment is not a nuisance per se, and the same is true of a livery stable; but it may become an. actual nuisance by reason of its location. This the statute clearly contemplates. Hence it gives the city commissioners power to regulate the location of undertalcing establishments. But it seems the plaintiff claims a pre-emption right to carry on the business because in the race against time he succeeded in getting the morgue well under way before the passage of the ordinance. But that is a matter of no account. Even though it had been wholly constructed and long used before the ordinance the city commissioners had perfect authority to condemn it and declare it to be a nuisance. Under the law as it is no person can acquire any pre-emption right to conduct a business that may become a nuisance. In every city like Fargo there are districts that are used mainly for residences, — districts in which the people have a special right to cheerful, sanitary, happy, and even esthetic homes and in such a district a morgue or undertaking establishment is offensive and out of place. And indeed it is justly considered an actual nuisance and it cannot be otherwise. It subjects the adjacent people to' disease and the fear of infectious diseases. It offends the sight and the sense of smell by the collation of dead bodies that may be embalmed or held for post mortems and kept for a time more or less exposed. It tends to surcharge the atmosphere with gloom and sadness, pestilential fear .and forebodings. It tends to drive mirth and cheerfulness from the homes of the people, for who can be cheerful and happy within view of a corpse or a funeral rite ? Of course it is true that soon or late death, sadness, and gloom is the lot of all, but that is no reason why the misfortunes or calamities of others should be thrust upon the homes, the sense, and sight of any people.
The plaintiff claims the right to enjoy life, liberty, and property *176without any restraint by tbe ordinance. But those whom he offends have equal rights with him and the maxim of law is that every man must so use his own rights as not to infringe on the rights of others. Comp. Laws, § 7248. The ordinance in question is very plain, simple, direct, and unambiguous. No one can misunderstand its import. It is simply that no one shall maintain a morgue or undertaking establishment in that part of the city which is used mainly for residences. Indeed to most people a morgue in the residence part of a city is more offensive than a livery stable. It is like unto a pest house. It lessens the value of all adjacent property. Without any ordinance the morgue in question might well be adjudged a nuisance.
Were the case one of doubt, which it is not, the injunction should not be granted. The case presents no equity. The plaintiff should have known well that he had no right to operate a morgue or undertaking business in that part of the city. The ordinance is clearly authorized by statute. It is reasonable, definite, and in no way ambiguous.