Ex parte Houston

• Decision Date: 27 September 1950
• Docket Number: No. A-11446,A-11446
• Citation: 93 Okla.Crim. 26,224 P.2d 281
• Parties: Ex parte HOUSTON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 281

224 P.2d 281

93 Okla.Crim. 26

Ex parte HOUSTON.

No. A-11446.

Criminal Court of Appeals of Oklahoma.

Sept. 27, 1950.

Rehearing Denied Nov. 22, 1950.

SYLLABUS BY THE COURT

1. Where the basis of petitioner's confinement in a city jail is the charge of violation of a city ordinance, this court will consider the complaint of petitioner attacking the constitutionality of the ordinance in question, but will limit its inquiry strictly to the jurisdictional question.

2. Where the jurisdiction of this court is invoked by habeas corpus to declare void a statute or ordinance, every presumption is indulged in favor of the validity of the statute or ordinance. This court will not declare such to be void if it can reasonably be sustained.

3. Acts of municipality performed in exercise of powers of municipal corporation for its own benefit or for benefit of its citizens alone, both of municipality and its immediate locality, are corporate or ministerial actions, as distinguished from acts performed in exercise of powers for benefit of people generally, as an arm of the state, such as enforcing general laws made in pursuance of general policy.

4. Municipal corporation while engaged in operation of municipal airport terminal owned by it, held engaged in a purely corporate or proprietary capacity, (the same as where it operates an electric light and power system, or a water system) and not in a governmental capacity.

5. A government entity, authorized to perform proprietary function, is expected to do so under like rules as those pursued by private individuals, and impliedly has all necessary power to perform such function in same efficient manner as a private person would.

6. Municipality, clothed by statute with proprietary function, in the exercise of which it is responsible to public for prompt and efficient service, must be clothed with power to enable it to meet such requirements.

7. Where municipality under legislative authority, Tit. 3 O.S.A. §§ 21-148, and in proprietary capacity, acquires title to and operates an airport terminal, located outside the corporate limits of the city, and by reason of such undertaking and by reason of contract with various airlines using said terminal, is contractually as well as impliedly obligated to provide airline passengers with transportation facilities between said airport and downtown district of municipality, and said municipality contracts with a third party, Airport Limousine Service, to perform such obligation, held: that the contract entered into and the city ordinance implementing the same (No. 6331) did not constitute a franchise.

8. Where municipality contracted with third party to assume its implied and contractual duty to transport passengers to and from its airport terminal from downtown section of municipality, and municipality was to share in the proceeds from fares paid, held: that such contract did not violate Sec. 4, Art. 9 of the City City Charter requiring advertisement for competitive bidding, in that such contract did not involve an outlay of money on the part of the municipality, nor maintenance of its public property, nor purchase of supplies, etc.

9. Where airport terminal owned by municipality is so constructed as to provide space at entrance to terminal and adjacent to ingress and egress road to nearby highway, for exclusive parking of airport limousines to be used for the transportation of airline passengers, and sets aside such space for said purpose by ordinance, and delegates by contract the transportation of such passengers to the operator of Airport Limousine Service; held, that such acts by the municipality do not violate Tit. 47 O.S.A. § 22.11, which in effect provides that no municipality shall ever restrict the free use of the streets and public highways of the State to all people equally, in that no exclusive right to occupy or use the streets was made the subject of specific grant, the rights of the Airport Limousine Service in this respect being governed by classification and license made and issued by the State, and their exclusive parking privilege not covering any part of the roadway in and out of the airport, and the right involved existing only as an incident to contract with municipality and which right will cease to exist whenever the contract for any reason ceases to exist.

10. Where a penal ordinance is challenged as an improper exercise of the police power, the courts will indulge every presumption in favor of the validity of the ordinance, and will not declare it void unless it clearly appears that it goes beyond the legislative power.

11. The police power is very broad and comprehensive and is exercised to promote the health, comfort, safety and welfare of society. Under it, conduct of an individual, and the use of property may be regulated so as to interfere to some extent with the freedom of one and the enjoyment of the other. Applying this principle to Ordinance No. 6331, of the City of Oklahoma City, and to the facts developed, held: that said ordinance does not constitute an improper exercise of the police power of said City.

On Petition for Rehearing.

1. On habeas corpus court will consider issue in petition for rehearing that was not raised in original petition.

2. By legislative provision, Section 65.20, the Municipal Airport Act, 3 O.S.Supp. § 65.20, Tit. 3, Laws 1947, p. 23, § 20, shall be so interpreted and construed as to make uniform so far as possible the laws and regulations of this State and other states and of the government of the United States having to do with the subject of municipal airports.

3. In construing statutory provisions, the primary duty of this court is to seek the legislative intent, and to arrive at this intent, the entire statute must be considered, and where such intention can be gathered from an entire statute, words may be modified, altered, or supplied to give the statute the force and effect which the Legislature intended, and the real purpose and intent of the legislative body will prevail over the literal import of the words employed. The general purpose of the act and any legislative rule for interpretation and construction in the Act contained will be duly considered.

4. Municipal Airport Act must be construed in such manner as to bring it within the legislative authority and make it consistent with the validity of the statute in which it is used. The apparent purpose of the Legislature in declaring that airport operation is a public and governmental function is directed to the powers granted counties and the general rule restricting the activities of counties to public and governmental purposes as subdivisions of the State. Such declaration is simply in justification of the powers granted; and in addition in justification of the powers of condemnation and police power, and so far as the function authorized is concerned, erasing all technical distinctions between counties, cities, towns and authorities designated in the act, and that it was the intent of the Legislature to declare that the acquisition, construction, operation and maintenance of an airport by a municipality was a governmental function in the sense that it was for a public purpose, thus bringing the Act within the constitutional provision. Const. of Okla. Art. 10, § 14.

Pat Brogan, Schwoerke & Schwoerke, Oklahoma City, Dixie & Ryan, Houston, Tex., for petitioner.

A. L. Jeffrey, Municipal Counselor, P. J. Demopolos, Asst. Municipal Counselor, Oklahoma City, Loyd Benefield, Oklahoma City, amicus curiae, for respondent.

POWELL, Judge.

This is an original action in habeas corpus instituted by the petitioner, Jack Houston Jr., for the purpose of securing his release from the city jail of Oklahoma City, where he is confined by reason of a charge filed in the municipal court of Oklahoma City, charging him with the violation of Ordinance No. 6331 of the ordinances of Oklahoma City. It will be noted that he has not as yet been tried. This is not an appeal after conviction. But petitioner alleged that his restraint to answer said charge of violation of said ordinance is unauthorized, and contrary to the laws of Oklahoma in that said ordinance is void, by reason of being unconstitutional.

In the response filed in compliance with rule to show cause issued by this court, L. J. Hilbert, Chief of Police of Oklahoma City, sets out Ordinance No. 6331, complained of by petitioner, and alleges that the same is valid and constitutional, and prays that the writ applied for be denied.

On the hearing before this court on June 21, 1950, it developed that petitioner had, prior to this action, made application to the district court of Oklahoma County for writ of habeas corpus and hearing was had before Hon. Baker H. Melone, District Judge, on April 14, 1950, and the writ was denied. This is not an appeal from such judgment, as stated by out-of-state counsel representing petitioner, as in this jurisdiction no appeal lies from such a judgment. Ex parte Johnson, 1 Okl.Cr. 414, 98 P. 461; Garrett v. Kerner, 6 Okl.Cr. 47, 115 P. 1027; Ex parte Walters, Okl.Cr.App., 221 P.2d 659, not yet reported in state reports. But the basis of confinement being the violation of a city ordinance, this court will consider the complaint of petitioner attacking the constitutionality of the ordinance in question, but will limit its inquiry strictly to the jurisdictional question. Ex parte Pappe, Okl.Cr.App., 201 P.2d 260; Ex parte Small, Okl.Cr.App., 221 P.2d 669, not yet reported in state reports. And where the jurisdiction of this court is invoked by habeas corpus to declare void a statute or ordinance, every presumption is indulged in favor of the validity of the statute or ordinance, and this court will not declare such to be void if it can reasonably be sustained. Ex parte Hall, 49 Okl.Cr. 366, 294 P. 823; Ex parte Westellison, 38 Okl.Cr. 207, 259 P. 873; 62 C.J.S., Municipal Corporations, § 208, p. 392.

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