
    STATE v. JAMES E. TRASK, JR.
    
    January 14, 1927.
    No. 25,766.
    Permit for keeping horses.
    1. In a prosecution for keeping horses in the city of St. Paul without a permit, held that there was no legal requirement to get such permit.
    Adoption of health regulation.
    2. A health regulation, penal in its nature, cannot rest in parol but must be officially adopted, reduced to writing and made a public record.
    Health, 29 C. J. p. 251 n. 62.
    Municipal Corporations, 28 Cyc. p. 744 n. 12.
    Defendant appealed from an order of the municipal court of St. Paul, Olson, J., denying his motion for a new trial, and from the judgment.
    Reversed.
    
      James E. Trash, for appellant.
    
      Arthur A. Stewart and Hilary J. Flynn, for the state.
    
      
      Reported in 211 N. W. 673.
    
   Wilson, C. J.

Defendant was convicted for keeping two horses on his premises in the city of St. Paul, without first obtaining a permit from the health department of the city. He appealed from an order denying his motion for a new trial and also from the judgment.

The ordinance involved provides that horses cannot be kept on the same lot or premises with a dwelling house “except under such conditions as may be prescribed by the Health. Officer.” § 2689, Compiled Ordinances City St. Paul 1922.

The accusation is failure to procure a permit to keep horses. But what law requires such a permit? No ordinance so commands. Defendant applied to the commissioner of public buildings and received a permit pursuant to the official building code, ordinance No. 5580, to construct the building in which he kept the horses. But this in no way relieved him from complying with the requirements of the health officer. The health officer may prescribe conditions under wbicb hoTses may be kept wbicb means that be may make regulations consistent with tbe purpose of bis office. Doubtless tbe regulation is directed at tbe manner of keeping borses. Lead v. Inch, 116 Minn. 467, 134 N. W. 218, 39 L. R. A. (N. S.) 234, Ann. Cas. 1913B, 891. Tbe right to regulate does not include tbe right to prohibit. Administrative and executive functions but not legislative power may be delegated. Tbe council is tbe only lawmaking body of tbe city. State ex rel. Labovich v. Redington, 119 Minn. 402, 139 N. W. 430. Tbe record fails to show any oral or written regulation commanding defendant to get a “permit” to keep bis borses. Tbe record shows that tbe bealtb officer has orally adopted tbe uniform practice that, if there are no objections on tbe part of tbe immediate neighbors and tbe building is constructed with waterproof flooring and connected with tbe sewer, be approves tbe application. It is said that such conduct is a permit on tbe part of tbe department to keep such animals. This is claimed to have been tbe custom for several years. Defendant’s building did not meet these requirements. Whether tbe bealtb department could make such an inflexible rule we need not consider. It does not appear that tbe so-called rule or practice ever bad any publicity or that defendant knew of the same. Nor do we appreciate bow a citizen could be expected to know of tbe existence of tbe same.

Tbe accusation in tbis case is based on'a failure to comply with tbis traditional policy. Being penal in its nature and operation tbe requirement should not rest in parol. Such a regulation is not a public law wbicb is conclusively presumed to be known. To permit a criminal conviction to stand thereon would lead to opportunity for oppression. Our attention has not been called to any authority that permits such procedure. It would seem that a statute or ordinance is tbe written will of tbe enacting body. 26 Am. & Eng. Enc. (2d ed.) 529. It is equally important that a penal regulation be officially adopted, reduced to writing and made a public record so that the citizens may become informed thereof. The People v. Tait, 261 Ill. 197, 103 N. E. 750.

Our conclusion is that (1) there is no requirement for a “permit” as charged in the complaint, and (2) that such “conditions” as the health officer may prescribe, pursuant to the ordinance, must be specified in writing, and that his oral regulations of which the public are not advised cannot be the basis for a criminal prosecution.

Reversed.  