Crossman v. City of Galveston

• Citation: 247 S.W. 810
• Decision Date: 17 January 1923
• Docket Number: (No. 3304.)
• Parties: CROSSMAN et al. v. CITY OF GALVESTON et al.
• Court: Supreme Court of Texas

Page 810

247 S.W. 810

CROSSMAN et al. v. CITY OF GALVESTON et al.

(No. 3304.)

Supreme Court of Texas.

January 17, 1923.

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

Suit by R. A. Crossman and others against the City of Galveston and others, for injunction and mandamus. Judgment adverse to plaintiffs was affirmed by the Court of Civil Appeals (204 S. W. 128), and plaintiffs bring error. Reversed and remanded to the district court.

Frank S. Anderson, of Galveston, for plaintiffs in error.

M. H. Royston and P. A. Drouilhet, both of Galveston, for defendants in error.

CURETON, C. J.

R. A. Crossman and others, plaintiffs in error, brought this suit in the district court of Galveston county against the city of Galveston and its board of commissioners, for the purpose of enjoining and restraining them from destroying a certain building owned by plaintiffs in error located in the city, and for a writ of mandamus requiring defendants in error to grant an application for leave to repair the building. On the trial an instructed verdict in favor of defendants in error was returned, and judgment entered denying the injunction and mandamus prayed for. This judgment, on appeal, was affirmed. 204 S. W. 128. Writ of error was granted, and the case is before us for review.

Defendants in error predicate their defense upon section 34 (i) of the charter of the city of Galveston of 1903, and article 241 of the Revised Ordinances adopted thereunder. The charter provision gives the city authority:

"(a) To regulate the building, maintenance and use of party walls, partition fences, parapet and fire walls, smoke flues, hot air flues, smokestacks, fireplaces of all sorts and all appliances therewith connected; (b) to require, provide, fix and regulate the inspection, safe construction, repair and maintenance of all public or private buildings; (c) to regulate, restrain or prohibit the constructing, placing, moving or repairing of wooden or frame buildings, or structures of any kind within the limits of said city or any part thereof, and to regulate, define and describe building materials that may or may not be used in the city or any part thereof; (d) to require or provide for the taking down and removal, by the city or by the owner, and at the expense of the owner, of buildings, walls or structures of any kind that are or may become dangerous, and generally to make and enforce any and all regulations concerning buildings and building materials requisite, necessary or proper to protect said city or any part thereof from fire and to protect the health and safety of the inhabitants; (e) and to declare all wooden buildings in the fire limits which they deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and require or cause the same to be removed in such manner and at the expense of the owner; (f) and generally to establish such regulations for the prevention and extinguishment of fires as said board of commissioners may deem expedient; (g) and any and all cost and expense incurred by the city in the removal or destruction of any structure for any of the purposes aforesaid shall, under such regulations as the board may prescribe, be collected of the owner, and be secured by lien on the land whereon the same is or was situated."

The ordinance relied on reads:

"When any building, awning, shed or other structure of any kind shall, from age, neglect, or other cause, become dilapidated, the same is hereby declared a nuisance, and the mayor-president, on his own motion, may, and upon complaint being made to him in writing by ten or more citizens that any such building, awning, shed or other structure has become dilapidated and a nuisance, shall cause the same to be inspected by the health physician, the city engineer and the chief of the fire department, as a committee of inspectors, and if said inspectors, or a majority thereof, shall report the same to be dilapidated and a nuisance, setting forth the facts upon which they base their report, the mayor-president shall lay said report before the board of commissioners for their consideration and action, and said board shall give five days' notice to the owner or agent of said dilapidated building, awning, shed or other structure, if residing in the city of Galveston, and, if not residing in said city, said owner or agents shall be given notice by registered letter for such time as said board may determine, to appear before said board, stating why said dilapidated building, awning, shed or other structure shall not be declared a nuisance and abated and removed, and if the board shall adopt the report of the inspectors by a majority of two-thirds of the board, the mayor-president thereupon shall, in case said building, awning, shed or other structure is within the fire limits, cause the same to be pulled down and removed as he may deem best, giving reasonable notice to the owner or agent to remove or pull down the same so that the nuisance may be abated, and if said building, awning, shed or other structure be outside of the fire limits, the mayor-president shall require the owner or agent to repair the same or abate it, giving reasonable notice to the owner or agent to repair or abate the same, so that the nuisance be abated."

The insistence is made by defendants in error that the charter provision quoted is express statutory authority for the ordinance declaring that dilapidated buildings are nuisances; that is, that this ordinance is based upon a direct grant of authority from the Legislature, rather than upon the general police power of the city. We cannot accede to this construction. There is nothing in the charter provision quoted authorizing the city to declare dilapidated buildings nuisances. The authority authorized by the charter is "to declare all wooden buildings in the fire limits which they deem dangerous to contiguous buildings or in causing or promoting fires to be nuisances, and require or cause the same to be removed in such manner and at the expense of the owner." Neither this paragraph of the charter provision nor any other shown above authorized the declaration contained in the ordinance that a dilapidated building should be a nuisance. Not having express statutory sanction for the ordinance, the city was without authority to declare any dilapidated building a nuisance unless it was so in fact. The rule is that, in the absence of express legislative sanction, a city is without authority to declare that a nuisance which is not so per se or at common law. Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; Spann v. City of Dallas, 235 S. W. 513, 514, 19 A. L. R. 1387; People v. City of Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A. (N. S.) 438, 442, Ann. Cas. 1915A, 292; Allison v. City of Richmond, 51 Mo. App. 133; Shreveport v. Leiderkrantz Society, 130 La. 802, 58 South. 578, 40 L. R. A. (N. S.) 75, 79; 20 R. C. L. pp. 389, 390, 414, 431, and notes; Dillon on Municipal Corp. (5th Ed.) § 684.

The ordinance declares that all dilapidated buildings are nuisances, even though none of the elements necessary to constitute a nuisance may exist. It does not require that such buildings shall injure, hurt, or harm any one. It is not limited to those instances where the dilapidated building may "hurt or annoy the lands, tenements, or hereditaments of another." It is not confined to those dilapidated buildings which endanger life or health, violate the laws of decency, or obstruct the reasonable and comfortable use of property, or which are subversive of public order, decency, or morals, or which constitute an obstruction of public rights. It amounts merely to a general condemnation of dilapidated buildings as nuisances, and authorizes their destruction. It is apparent that, even with express legislative sanction, such a definition of a nuisance would be void. Not even the Legislature can declare that a nuisance which is not so in fact. Stockwell v. State, 110 Tex. 550, 554, 221 S. W. 932, 12 A. L. R. 1116; Spann v. City of Dallas, supra; Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499, 38 L. Ed. 385; 20 R. C. L. pp. 486, 487; 4 R. C. L. p. 413; Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161. Other authorities hereafter cited support both the above propositions.

It is also well established that the mere unsightliness of a building, which is the usual and natural result of dilapidation, does not make it a nuisance, and a city would have no authority to declare it a nuisance for that reason alone. 20 R. C. L. p. 429, § 45; Whitmore v. Brown, 102 Me. 47, 65 Atl. 516, 9 L. R. A. (N. S.) 868, 120 Am. St. Rep. 454. See, also, Spann v. City of Dallas, supra. So, if the ordinance be considered as having been enacted either under express legislative sanction or under the general police power of the city, it is void, and must fall.

The other provisions of article 241 of the ordinances quoted above relate only to the method of ascertaining the existence of and the destruction of the nuisances defined by that article of the ordinances. They have no relationship to the various other paragraphs of section 34 (i) of the charter. The matters of procedure specified in the ordinance relate only to the abatement of the particular class of nuisance therein defined, and, since the definition of a nuisance given in the ordinance is void, the method of procedure prescribed is void, and must fall.

The terms of the ordinance were substantially followed by the city in this instance, except, perhaps, that some of the plaintiffs in error were not served with notice, with the result that the city commissioners ordered the destruction of the building of plaintiffs in error. The building was ordered destroyed because it appeared that it was in a "dilapidated condition on account of age, use, and lack of attention, and that in its present condition it was unsanitary and dangerous to persons leaving and going...