Bielecki v. City of Port Arthur

• Decision Date: 23 January 1929
• Docket Number: (No. 975-5119.)
• Citation: 12 S.W.2d 976
• Parties: BIELECKI et al. v. CITY OF PORT ARTHUR et al.
• Court: Texas Supreme Court

12 S.W.2d 976

BIELECKI et al. v. CITY OF PORT ARTHUR et al.

(No. 975-5119.)

Commission of Appeals of Texas, Section B.

January 23, 1929.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Stanislow Bielecki and others against the City of Port Arthur and others. Judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiffs bring error. Reversed and rendered.

Howth, Adams & Hart, of Beaumont, for plaintiffs in error.

J. W. O'Neal, City Atty., of Port Arthur, for defendants in error.

LEDDY, J.

This was a suit brought in the district court of Jefferson county by Stanislow Bielecki and others, plaintiffs in error, against the city of Port Arthur, its mayor, chief of police, and judge of the corporation court. It was therein sought to enjoin the city and its officials from prosecuting plaintiffs in error under an ordinance duly enacted by the city council of said city.

A temporary injunction was granted by the trial court, but upon final hearing the court refused to restrain defendants in error from enforcing the ordinance against plaintiffs in error, and entered an order dissolving the temporary injunction. An appeal from this judgment resulted in an affirmance by the Court of Civil Appeals for the Ninth District.

The ordinance in question declared any building or structure used and maintained as a public dance hall to be a nuisance, if located within 150 feet of a private residence or residence occupied by a private family, regardless of whether such dance hall was so operated as to constitute it a nuisance in fact. Each day's operation of same was constituted a separate offense, and a heavy penalty affixed for its violation.

It was also provided in said ordinance that the judge of the corporation court, or any court to which a prosecution for a violation thereof might be removed, should ascertain if the nuisance continued to exist, and, if found to do so, should thereupon enter an order requiring the chief of police, or any public officer of the city, to abate such nuisance forthwith, and the court was authorized to render judgment against the owner for the expenses incurred in abating same.

The authority to enact such an ordinance is claimed to exist by reason of certain provisions of the city charter. We do not deem it necessary to set forth these provisions, for the reason that it was clearly beyond the power of the city to enact this ordinance, even if authority to do so should be expressly granted by the charter.

There is no statute in this state declaring public dance halls to be nuisances, nor were they such at common law. Wood on Nuisance, § 35; Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N. E. 677, 5 Am. St Rep. 524; Whitcomb v. Vigeant, 240 Mass. 359, 134 N. E. 241, 19 A. L. R. 1439; Shreveport v. Leiderkrantz, 130 La. 802, 58 So. 578, 40 L. R. A. (N. S.) 75, 20 A. L. R. 1496.

A city cannot, by an arbitrary standard, declare that to be a nuisance which is not so in fact. Crossman v. City of Galveston, 112 Tex. 303, 247 S. W. 811, 26 A. L. R. 1210; Stockwell v. State, 110 Tex. 550, 221 S. W. 932, 12 A. L. R. 1116; Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387.

Even the Legislature itself cannot, by mere legislative fiat, destroy a citizen's property by declaring the use of same to be a nuisance, regardless of whether existent facts constitute it such. Stockwell v. State, 110 Tex. 550, 221 S. W. 932, 12 A. L. R. 1116; Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387; Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385; 20 R. C. L. 486; Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161.

The operation of a public dance hall not being a nuisance within itself or at common law, the owner of property using it for such purpose cannot be foreclosed of his right to a judicial determination, as to whether the same is so used, as to render it a nuisance. Crossman v. City of Galveston, supra; Stockwell v. State, supra.

Under the terms of this ordinance, property could be summarily destroyed, although it was not in fact a nuisance. A citizen, by constitutional guaranty, is protected from the destruction of his property under such circumstances. The rule is well stated by Chief Justice Cureton in the Crossman Case, cited...