City of El Paso v. Jackson, 2586.

• Decision Date: 25 June 1931
• Docket Number: No. 2586.,2586.
• Citation: 40 S.W.2d 845
• Parties: CITY OF EL PASO et al. v. JACKSON et al.
• Court: Texas Court of Appeals

40 S.W.2d 845

CITY OF EL PASO et al. v. JACKSON et al.

No. 2586.

Court of Civil Appeals of Texas. El Paso.

June 25, 1931.

Rehearing Denied July 9, 1931.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Suit by Rudolph Jackson against the City of El Paso and others, wherein E. T. Anderson and another intervened. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

J. Walker Morrow and J. H. McBroom, City Atty., both of El Paso, for appellants.

Jones, Goldstein, Hardie & Grambling and Fryer & Cunningham, all of El Paso, for appellee.

PELPHREY, C. J.

On April 2, 1931, the council of El Paso, Tex., passed the following ordinance:

"Ordinance forbidding the sale, or offering for sale in the City of El Paso, of any any ice manufactured outside the City of El Paso, except ice manufactured wholly with distilled water, and declaring an emergency:

"Whereas the public health authorities of the City of El Paso are empowered within the City of El Paso to inspect the methods used in the manufacture and storage of ice, and to test the wells from which the water is obtained, and to supervise the sanitary methods surrounding the manufacture and storage thereof; and,

"Whereas, it is impracticable to inspect and test for purity, ice manufactured outside the City of El Paso.

"Now, Therefore, to guard the public health against typhoid fever and other diseases, the germs of which may be transmitted in ice, be it ordained by the City Council of the City of El Paso, Texas:

"Sec. 1: It shall be unlawful for any person, firm or corporation to sell or offer for sale, or distribute in the City of El Paso any ice manufactured outside the City of El Paso, except ice manufactured wholly with distilled water.

"Sec. 2: Any person violating the foregoing ordinance shall be deemed guilty of a misdemeanor, and shall be fined the sum of of $10.00, and each sale, or offering for sale shall constitute a separate offense.

"Sec. 3: There being no sufficient ordinance now forbidding or preventing the sale of impure ice within the City of El Paso, manufactured outside the City of El Paso, creates a case of great public emergency, necessitating the suspension of the rule requiring ordinances to be read in open meeting of the City Council at two regular meetings as provided in Sec. 33 of the Charter of the City, and for that reason said rule is hereby suspended by unanimous vote of the Aldermen present and with the consent of the Mayor, and this ordinance is hereby passed and approved, and takes effect from its passage, approval and publication."

Thereafter appellee Rudolph Jackson filed this suit against the city of El Paso, its mayor, its aldermen, its chief of police, and the judge of its corporation court, seeking to restrain them from enforcing or attempting to enforce said ordinance. Appellees E. T. and R. N. Anderson were allowed to intervene.

The cause was tried to the court and resulted in a judgment permanently enjoining the appellants from enforcing, or in any manner threatening to enforce, said ordinance.

This appeal is from such judgment.

Opinion.

It is agreed by the parties to this appeal, that the trial court's action in holding the ordinance void was based upon his conclusion that it was discriminatory, and imposed a burden on interstate commerce.

Appellants contend that the trial court was in error in so concluding, and cite the case of Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1066, as supporting their position, while appellees assert the correctness of the judgment, and in support thereof cite Minnesota v. Barber, 136 U. S. 313, 10 S. Ct. 862, 34 L. Ed. 455.

We cannot agree that the case of Adams v. Milwaukee, supra, is in point. In that case the city council had concluded that milk from tubercular cows was injurious to the health of the citizens of Milwaukee, and had, therefore, prohibited the sale in the city of milk from cows which had not been given the tuberculin test. In the case at bar, the council has not decided that ice manufactured from raw water is injurious, and, from the fact that a major part of the ice manufactured and sold within the city is made from raw water, we must conclude that they do not so consider it.

It appears to be well settled that states are clothed with plenary police power and large discretion in exercising that power for the protection of the public health, but that, in order to determine whether the act of the state is really a usurpation of power, the courts should look to the effect and operation of the law, and are not bound by mere form. In re Barber (C. C.) 39 F. 641; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205.

Therefore, in passing upon the ordinance here in question, we must look to its effect and operation, and are not bound by the recitals in the ordinance of its purpose, and the reasons for its enactment.

While there is some evidence in the record to the effect that the El Paso...