Calkins v. Ponca City
| Decision Date | 27 March 1923 |
| Docket Number | 13484. |
| Citation | 214 P. 188,89 Okla. 100,1923 OK 170 |
| Parties | CALKINS v. PONCA CITY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The Constitution and statutes delegate to cities power to declare and abate nuisances.
Article 18 of the Constitution authorizes cities of over 2,000 population to adopt a charter consistent with and subject to the Constitution and laws of the state.
Sections 6 and 35 of the charter of the defendant city authorize it to adopt ordinances for the protection of life, health, and property of its inhabitants, and to declare, prevent and summarily remove nuisances.
A municipal corporation has a dual character, one public and the other private. In its public character it acts as an agency of the state, the better to govern that portion of its people residing within the municipality. The exercise of such powers is legislative and discretionary. Under its charter and the statutory provision, the defendant city, in abating nuisances, is carrying out its public function and duties as an agency of the state.
The authority of the city to declare a public nuisance is a delegation of police power, primarily lodged in the state, in order that it may be more effectively exercised by officers locally acquainted with the necessities of the particular community.
If it appears that the question of a nuisance or not is one as to which there might be an honest difference of opinion in impartial minds, the action of the city commissioners is conclusive of the question.
The extent of the power of the court in the proceeding at bar is limited to a determination as to whether the ordinance in question is under the facts unreasonable and arbitrary, and if such ordinance is not unreasonable or arbitrary, the determination by the commissioners that the buildings in question were injurious to the health and safety of the community, and a public nuisance, is conclusive upon the court.
Record examined, and held, that the action of the commissioners was neither unreasonable nor arbitrary.
Additional Syllabus by Editorial Staff.
A "public nuisance" is not necessarily one affecting the government or the entire community of the state, but it is public if it affects the surrounding community generally or the people of some local neighborhood.
Appeal from District Court, Kay County; J. W. Bird, Judge.
Action by C. F. Calkins against the City of Ponca City. From a judgment for defendant, plaintiff appeals. Affirmed.
L. A Maris, of Ponca City, for plaintiff in error.
James Q. Louthan, of Ponca City, for defendant in error.
The parties to this cause appeared as plaintiff and defendant in the district court, respectively, as they appear here in this proceeding in error.
Lots 23 and 24, block 40, in the town site of Hartman, a subdivision of the city of Ponca City, Kay county, Okl., and the improvements thereon, were at all times herein mentioned the property of the plaintiff, C. F. Calkins. Two small frame buildings are located on said lots, and have been rented by the plaintiff, one for a grocery store. The photographs of the buildings presented in the record as exhibits revealed the same as most unsightly, especially considering the surroundings thereof. But a fairly accurate description of the condition of the buildings in question is disclosed by the testimony in this cause, which will be hereinafter referred to.
The defendant city in 1920 adopted a charter under and by virtue of article 18 of the Constitution of the state (Williams' Constitution, pp. 204 to 212, inclusive). The charter of the said city vests the control thereof in a board of commissioners, with the power vested in said board of commissioners to prescribe the manner in which any power of the city may be exercised. Under the said constitutional provision, the powers of the city are derived from the state, and must be consistent with and subject to the Constitution and laws of the state. The record discloses that in section 35 of said charter, defining the powers of said city, among other things is found:
"To define what shall be determined nuisances within the city; * * * to abate such nuisances, either summarily or by process; and to provide punishment for and inflict punishment upon the makers or keepers thereof."
Section 6 of the said charter, among other things, provides:
"The city of Ponca City shall have power to enact and enforce all ordinances for the protection of the life, health and property of the inhabitants; to prevent and summarily abate and remove nuisances, both public and private; to provide, preserve and enforce good government, and to do and provide for the doing of all things which may be proper and necessary for the promotion of the general welfare of the inhabitants."
Acting under and in pursuance of the said charter provisions and the statutes of the state (sections 594, 4250, and 4251, R. L. Okl. 1910) the board of commissioners of the said defendant city passed an ordinance which in substance, material here, is: That after full, free, careful, and complete investigation, examination, and consideration of the premises the board of commissioners of the city of Ponca City, Okl., found that the structures, consisting of wooden, paper, and sheet iron buildings, and all other structures and their appurtenances situated and located on lots 23 and 24 in block 40 in the town site of Hartman, a local subdivision of the city of Ponca City, Okl., have become and now are in unsafe, decaying, dirty, unsanitary and dangerous conditions, and that such conditions existed for several years theretofore; that the said structures are rotten, unstable, and unsafe, and in danger of falling down and injuring occupants thereof, and passing pedestrians, and are what is known as fire traps, and are in great and continuous danger of taking fire, owing to their age, decay, general unkept condition, and the appearance of great numbers of rats infesting them, and are a constant menace to the health and safety of the people, and greatly increase the fire hazard to the adjoining and nearby properties; and the said structures constitute public nuisances, and as such, of imminently dangerous character, require abatement at once. The remainder of the ordinance is, constitutes, and gives authority to certain officials to enforce its determination as to said buildings, the manner and method of doing so, and the declaration that any one interfering with the proper performance of the duty of such officials in carrying out the declaration and determination that the said buildings constitute nuisances commits an offense, defining and prescribing the punishment therefor.
The said condemning ordinance was adopted on the 29th day of December, 1921, and on the 4th day of January, 1922, the plaintiff secured a temporary injunction against the defendant, in the county court of Kay county (the judge of the district court being absent from the county), enjoining the city from enforcing the said ordinance, or in any wise interfering with the said buildings.
In his petition the plaintiff, in substance, pleaded that he is the owner of the property hereinabove described, and that on the 29th day of December, 1921, the defendant city passed and adopted an ordinance condemning said frame buildings, declaring them to be nuisances, ordering their destruction and removal from said described premises at once, and providing for the removal and destruction of said buildings, by the chief of the fire department; that the defendant has threatened to enter upon said premises and remove and destroy said buildings, and, unless prevented by an order or injunction from this court, it will so enter upon said premises and destroy and remove said buildings, all to the great injury and damage to this plaintiff; that the board of commissioners of the defendant city is not a court, and has no judicial authority and no jurisdiction to hold a hearing and decide, determine, and adjudge the said buildings to be a nuisance; that the said board of commissioners is a legislative body, and is without authority to sit as a judicial body, and that judicial authority cannot be conferred upon the commissioners, because of its being a legislative body, and that the finding of the said commissioners that said buildings are unsafe, unsanitary fire traps, and dangerous, is a usurpation of judicial powers assumed, but not possessed, by the said commissioners, and is in excess of and beyond their authority, under the law.
The defendant city filed an answer, in which it pleaded the provisions of the city charter, the ordinances, etc., on the trial in the district court of Kay county the temporary injunction was on May 17, 1922, dissolved, and the plaintiff brings the cause here, and assigns as error in effect:
Plaintiff in his brief says that in an equitable action this court will weigh the evidence, and, if the judgment of the trial court is clearly against the weight thereof, will cause to be rendered such judgment as the lower court should have rendered (Pelham Petroleum Co. v. North, 78 Okl 39, 188 P. 1069; Schock et al. v. Fish, 45 Okl. 12, 144 P. 584), and to this...
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