Ex Parte Broussard

• Decision Date: 03 December 1913
• Docket Number: (No. 2759.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 169 S.W. 660
• Parties: Ex parte BROUSSARD.
• Court: Texas Court of Criminal Appeals

169 S.W. 660

Ex parte BROUSSARD.

(No. 2759.)^†

Court of Criminal Appeals of Texas.

December 3, 1913.

On Motion for Rehearing, April 1, 1914.

Dissenting Opinion April 11, 1914.

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

Habeas corpus. On petition of J. J. Broussard to obtain his discharge from prosecution for violating an ordinance of the city of Beaumont prohibiting the maintenance of stock pens in a city within 300 feet of a notel or private residence without a license. From a judgment dismissing the writ and remanding relator to custody, he appeals. Affirmed.

Dougherty & Gordon, of Beaumont, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The city council of the city of Beaumont passed the following ordinance:

"Art. 991. It shall be unlawful hereafter for any person, corporation or association of persons to establish or maintain any slaughter house, bone boiler or soap making establishment, in the city of Beaumont or any brick yards, livery stable, horse lots and stock pens, within a distance of 300 feet of any hotel or private residence in the city of Beaumont, without first obtaining a permit from the city council."

Other provisions of the ordinance provided that the term "stock pen," as used in the ordinance, should include any lot wherein more than six head of cattle were kept, and the penalty fixed thereto was by fine not less than $25, nor more than $100.

Appellant was arrested, charged with a violation of this ordinance, in that he maintained a stock pen containing more than six head of cows on lots 3 to 6, in block 2, in Blanchette second addition to the city of Beaumont, without having obtained a license or permit from the city council.

There is no claim that the complaint is not a valid one, if the ordinance is valid. When appellant was arrested on the complaint, he sued out a writ of habeas corpus before Hon. W. H. Davidson, judge of the Fifty-Eighth district court, who granted the writ and set the cause down for hearing. When heard, the court held the ordinance valid, and remanded the relator to custody, from which judgment and order he prosecutes this appeal, assigning the following errors: That the court erred in holding the ordinance valid for these reasons: (1) That the ordinance is not fair, impartial, and uniform; (2) that the ordinance delegates to the city council despotic and arbitrary power; (3) that said ordinance is in contravention of section 28 of article 1 of the Constitution of this state; (4) that said ordinance is in contravention of section 19 of article 1 of the Constitution of this state; (5) that said ordinance contravenes section 1 of the fourteenth amendment to the Constitution of the United States.

Relator's counsel have filed a very able brief, in which they take up and discuss all of these assignments. That the ordinance is not violative of the fourteenth amendment to the Constitution of the United States, nor any other provision thereof, has been specifically held by the United States Supreme Court in the case of Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018. In that case they passed an ordinance which read as follows:

"No dairy or cow stable shall hereafter be erected, built or established within the limits of this city without first having obtained permission so to do from the municipal assembly."

This ordinance was assailed upon every ground upon which relator assails this ordinance. The Supreme Court upheld the ordinance, saying:

"Defendant's main contention, however, is that, by vesting in the municipal assembly the power to permit the erection of dairy and cow stables to certain persons, a discrimination is thus declared in favor of such person and against all other persons, and the equal protection of the laws denied to all the disfavored class. The power of the Legislature to authorize its municipalities to regulate and suppress all such places or occupations as, in its judgment, are likely to be injurious to the health of its inhabitants or to disturb people living in the immediate neighborhood by loud noises or offensive odors is so clearly within the police power as to be no longer open to question. The keeping of swine and cattle within the city or designated limits of the city has been declared in a number of cases to be within the police power. The keeping of cow stables and dairies is not only likely to be offensive to neighbors, but it is too often made an excuse for the supply of impure milk from cows which are fed upon unhealthful food, such as the refuse from distilleries, etc. Re Linehan, 72 Cal. 114, 13 Pac. 170; Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860; Love v. Recorder's Court Judge, 128 Mich. 545, 87 N. W. 785, 55 L. R. A. 618.

"We do not regard the fact that permission to keep cattle may be granted by the municipal assembly as impairing, in any degree, the validity of the ordinance, or as denying to the disfavored dairy keepers the equal protection of the laws. Such discrimination might well be made where one person desired to keep 2 cows and another 50; where one desired to establish a stable in the heart of the city and another in the suburbs; or, where one was known to keep his stable in a filthy condition and another had established a reputation for good order and cleanliness. Such distinctions are constantly made the basis for licensing one person to sell intoxicating liquors and denying it to others. The question in each case is whether the establishing of a dairy and cow stable is likely, in the hands of the applicant, to be a nuisance or not to the neighborhood, and to imperil or conduce to the health of its customers. As the dispensing power must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance. Of course, cases may be imagined where the power to issue permits may be abused and the permission accorded to social or political favorites and denied to others, who, for reasons totally disconnected with the merits of the case, are distasteful to the licensing power."

This so clearly expresses the rule of law applicable to this case, we adopt the language there used.

That the council may act arbitrarily under the authority there granted does not render the ordinance void. The presumption of law is that the council will act within the spirit and intent of the law; that is, in such manner as they deem necessary for the public health and welfare of the city. If they do act arbitrarily in the premises, this would not, in and of itself, render the ordinance void, but such action would be revised and controlled by the proper tribunal. As said by some of the courts, the practice of nearly a century shows that there is little to fear from an abuse of this power. In the government of affairs of a municipality many powers must necessarily be confided to the jurisdiction of its officers, and it can be productive only of mischief in the treatment of such questions to substitute the discretion of strangers in place of that of the officers best acquainted with the circumstances, conditions, and necessities of the case. That the law furnishes ample remedies for the abuse of such discretion, when the action taken is but an arbitrary exercise of power, can hardly be questioned. It is a discretion confided that must be exercised in the interest of the public welfare, in the interest of the public health, and the public peace, and if the facts should show that in the refusal of the permit or license no such incentives or purposes were behind the action of the council, then, in application for a writ of mandamus made to the proper tribunal, the council would be compelled to issue the license or permit. The facts as agreed to in this case, while not full and complete, might indicate, as contended by relator, that perhaps the council acted rather arbitrarily in this instance, but from such action we could give no relief; that would be the office of the civil court in an action for a writ of mandamus to compel the issuance of the license to the relator. However, upon a full development of all the facts, it may be that the council acted properly, and the refusal of the license was necessary for the preservation of the health and welfare of the city. It is not disclosed by the application nor the evidence how many cattle the relator desired to keep within the city limits. If he desired to keep on the lots mentioned a herd of cattle for barter and sale, and such lots were near to and adjacent to the resident portions of the city, the city council would and did act properly in refusing him a permit to keep cattle within such territory. At least we hold that the ordinance, in requiring that a person desiring to keep more than six head of cattle within one inclosure within the limits of the city to obtain a permit to do so from the city council, is not void, and violative of no provision of the Constitution of this state or the United States; for if the council should seek to exercise this power in an arbitrary and unreasonable manner, its power can and will be controlled by the courts, and by a writ of mandamus any injustice can and will be prevented, should the officers so far forget their official oath and duties as not to administer it in a fair, impartial way as applicable to all citizens. As to the facts necessary, or the rules governing the writ of mandamus, it is not necessary nor proper for us here to discuss, as it is a civil, and not a criminal, proceeding. However, we will state, the general rule seems to be as stated in Cyc. vol. 23, p. 137:

"Where a court or board of officers invested with a discretion as to the grant or refusal of a license, and where in the exercise of such discretion it has examined and rejected a particular application for license, mandamus will not lie to review the case and compel the grant of a...