City of Tyler v. Story

• Citation: 97 S.W. 856
• Parties: CITY OF TYLER et al. v. STORY.
• Decision Date: 21 November 1906
• Court: Texas Court of Appeals

Page 856

97 S.W. 856

CITY OF TYLER et al. v. STORY.

Court of Civil Appeals of Texas.

November 21, 1906.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Action by Ed Story against the city of Tyler and others. From a decree in favor of plaintiff, defendants appeal. Reversed and remanded.

This is an appeal from a decree perpetually enjoining the city of Tyler, its mayor, city attorney, and marshal, their agents, servants and employés from prosecuting or enforcing a certain ordinance of said city against the appellee.

The bill upon which the decree was rendered alleges in substance: That the city of Tyler has an area of territory three miles square. That said city, through its officers, passed an ordinance, which became effective in 1905, which is as follows: "Sec. 15. It shall be unlawful for any person, firm, association or corporation, to keep or have any hog or hogs, in any lot, yard, pen and pasture or in any other place within one mile from the center of the public square in said city. And any person or firm or the individual members of any firm or any corporation, or the managing official of any corporation, who shall violate this section of this ordinance, shall be deemed guilty of a misdemeanor, and on conviction shall be fined not less than five nor more than one hundred dollars; and each day that this section is violated constitutes a separate offense." That plaintiff (Ed Story) is engaged in raising fine hogs in the city of Tyler for sale, and was so engaged long before said ordinance was passed. That his premises where he raises and keeps his hogs are within one mile from the center of the public square of said city. That such premises are isolated from the public, not on any public street, nor close to any residence, and are kept clean, free from any stench or odor, and in a sanitary condition. That plaintiff has invested large sums of money in such business and realizes an annual net income therefrom of $800. That said ordinance is void because (1) unauthorized by the city charter, and, it not being a nuisance per se for one to keep hogs on his own premises, the city had no authority to declare such keeping a nuisance; (2) it discriminates against plaintiff in favor of persons keeping hogs one mile from the public square in the city, while it inhibits their being kept within one mile from the square; (3) it contravenes article 1, § 17, of the Constitution of the state, in that it takes, damages, and destroys the property and privileges of plaintiff for public use without compensation; (4) it contravenes article 1, § 19, of the Constitution, in that it deprives plaintiff of property, privileges, and immunities without due process of law; and (5) it is unreasonable, in that it declares the keeping of hogs on one's own premises a nuisance, regardless of whether the premises are kept in a sanitary condition or not. That the city of Tyler, through its officers, is threatening him with a multiplicity of vexatious and unfounded prosecutions under said ordinance; and that said prosecutions will be illegal and unjust, will cause plaintiff great trouble and expense in defending same, loss of time, attorney's fees, besides deteriorate, damage and destroy his business. That he has no remedy at law, and that the loss will be irreparable, and a great injustice and injury will be done him if said ordinance is allowed to stand. The bill closes with a prayer for a writ of injunction against the city of Tyler, its servants, agents, and employés, forbidding them enforcing said ordinance in any manner. The city of Tyler and such of its officers as were made defendants answered by general and special exceptions to the bill, and by plea admitted the passage of the ordinance in question, averring that it was authorized and valid; that plaintiff was keeping hogs in the city in violation of it, and admitted their intention of prosecuting him for its violation for the purpose of enforcing it. The case was tried without a jury, and, upon hearing the evidence, the court rendered the decree appealed from.

The evidence introduced, after showing the passage and publication of the ordinance in question, is as follows: "That said ordinance, after its said publication, was sought to be enforced by the mayor, city attorney, and city marshal of said city, and a warrant for his arrest on complaint had been filed against him. That Ed Story controls a building situated within 300 feet of the center of the public square of said city. That in said building he carries on a livery stable business, having and keeping within said building a large number of horses. That said building is 60 feet wide by 120 feet long. That in the rear of said building and south of it is a lot 60 feet wide by 50 feet long which adjoins and communicates with said building. That in said building and in said lot adjoining, said Story keeps and has hogs, averaging in number five. That said Story keeps the premises whereon the hogs run in a clean condition. That said building and lot is situated in the block immediately south of the public square, in the place permitted by the city to be used as livery stable and less than a mile from the center thereof. That the block in which said building and lot is situated is a business block of said city. That south and east of said block are residences 300 yards distant and about 200 feet north are business houses and the public square. That west of said premises are business houses and residences, which are about 400 feet distant. That Ed Story has made and erected said lot with view to raise some fine hogs, has expended money in the erection of the lot, and made preparation for same, and the property for which he used the place to keep his fine hogs will be greatly damaged and depreciated. The corporate limits extend 1½ miles from courthouse square in...