Ex parte Jones

• Decision Date: 08 June 1910
• Citation: 109 P. 570,4 Okla.Crim. 74,1910 OK CR 158
• Parties: Ex parte JONES.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

109 P. 570

4 Okla.Crim. 74, 1910 OK CR 158

Ex parte JONES.

Court of Criminal Appeals of Oklahoma

June 8, 1910

Syllabus by the Court.

The powers of a municipal corporation are only those granted by express words; those fairly implied in, or incident to, the powers expressly granted; and those indispensable to the declared objects and purposes of the incorporation.

Within constitutional limitations the Legislature has the power to declare what shall constitute a nuisance; and in the exercise of that power it is not restricted to declaring only such things a nuisance as were so at common law or are so per se. It may declare billiard and pool halls and bowling alleys nuisances and forbid them.

The Legislature may lawfully delegate to municipal corporations to be exercised within their corporate boundaries, the power to declare what shall constitute a nuisance and to prevent the same.

A statutory grant of power to a municipality to declare what shall constitute a nuisance does not empower the municipality to declare a thing a nuisance which is clearly not one; but it does empower the municipality to declare anything a nuisance which is so per se, or which by reason of its location, management, or use, or of local conditions and surroundings, may or does become such within the common law or statutory definition of a nuisance, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds.

Where a thing may or may not be a nuisance, depending upon its location, its management or use, and the conditions existing in the municipality, thus requiring judgment and discretion in determining the matter, the determination of the question by a municipality having power to declare what shall be a nuisance is conclusive upon the courts.

Under section 4751 of Snyder's Compiled Laws and by the common law, anything which annoys, injures, or endangers the comfort, repose, health, or safety of others is a nuisance.

The operation of a billiard hall or a poolroom for gain is not recognized by the law as necessary or useful, or as a business which a person has an inherent right to engage in and a municipal ordinance declaring them a nuisance and forbidding them, passed under statutory authority to declare what shall constitute a nuisance and to prevent the same, is valid.

Where a judgment of a justice of the peace recites that after duly considering the "evidence as produced and confessed" the court finds the defendant guilty, in the absence of an affirmative showing that no evidence was introduced, it will be presumed that evidence was taken.

Application of W. C. Jones for writ of habeas corpus. Writ discharged and petitioner remanded.

J. T Shive and Henry Bulow, for petitioner.

W. C. Austin and Shartel, Keaton & Wells, for respondent.

RICHARDSON, J. (after stating the facts as above).

It is contended by petitioner that the ordinance in question is void, for the reason that the incorporated town of Eldorado had no statutory grant of power to pass the same; that municipal corporations are creatures of the Legislature, and can exercise only such powers as are expressly conferred by their charter or by statute; that a grant of power to them must be strictly construed, so that they take nothing by implication; and that they have no power to declare anything a nuisance unless it is so per se. It is true that a municipal corporation has no power except that which is specifically granted or necessarily implied. Dillon on Municipal Corporations defines the powers of such corporations as, "First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable." And he also states that, "Any fair, reasonable doubt concerning the existence of power is resolved by the court against the corporation, and the power is denied. Of every municipal corporation, the charter or statute by which it was created is its organic act. Neither the corporation nor its officers can do any act or make any contract or incur any liability not authorized thereby. All acts beyond the scope of the powers granted are void." The foregoing statements of the law have been quoted, approved, and adopted by courts innumerable; and constitute perhaps as clear, accurate, and succinct a rule for determining the power and the limitations upon the power of municipal corporations as could be formulated. Bearing this rule in mind, then, as our guide, let us examine our statutes, and see if such power as that attempted to be exercised by the passage of this ordinance is granted to incorporated towns in this state.

Cities of the first class are by express statute authorized "to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution, and other disorderly houses." Section 683, Snyder's Comp. Laws 1909. But no such express grant of power is given to incorporated towns and villages so far as billiard halls and bowling alleys are concerned. It is provided by section 847 of Snyder's Comp. Laws 1909, with respect to towns and villages that, "The board of trustees shall have the following powers, namely, (4) to declare what shall constitute a nuisance, and to prevent, abate and remove the same. ***" And it is clear that if the town of Eldorado had the power to enact the ordinance in question that power must be found in the fourth subdivision of the section just quoted; and from the title and wording of the ordinance it is also clear that it was from this source that the trustees claimed the power which they sought to exercise.

Within constitutional limitations the Legislature has the power to declare what shall constitute a nuisance; and in the exercise of that power it is not restricted to declaring only such things a nuisance as were so at common law or are so per se. Joyce on the Law of Nuisances, §§ 81, 82, 83; Bepley v. State, 4 Ind. 264, 58 Am. Dec. 628; Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N.E. 929, 59 Am. Rep. 113; Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381; Moses v. United States, 16 App. D. C. 428, 50 L. R. A. 532; Lawton v. Steele, 119 N.Y. 226, 23 N.E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. It may declare billiard and pool halls and bowling alleys nuisances and forbid them. That is a legitimate exercise of the police power. State v. Noyes, 30 N.H. 279; Freund on Police Power, § 193.

Now, the Legislature may delegate this power to municipal corporations to be exercised within their corporate boundaries. "After repeated challenge of municipal authority to exercise the police power, on the ground that it is a sovereign power and therefore nondelegable, the doctrine is firmly established and now well recognized that the Legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power within their boundaries; the measure of power thus conferred is subject to legislative discretion." 28 Cyc. 693, and the many cases there cited. And Judge Freeman states in his note to Robinson v. Mayor of Franklin, 34 Am. Dec. 625, 632, that, "Discretionary powers granted to a municipal corporation, to be exercised according to its judgment as to the necessity or expediency of a given measure, vests the corporation, within the sphere of the powers delegated, with a control as absolute as the Legislature would have possessed if it had never delegated the powers, and the discretion of the municipality in respect to the exercise of the powers granted is as wide as that possessed by the government of the state." And in support of the statement he cites the following cases: Gas Co. v. Des Moines, 44 Iowa, 509, 24 Am. Rep. 756; Dillon on Munic. Corp. § 308 (3d Ed.); Ex parte Burnett, 30 Ala. 469; Osborne v. Mayor, 44 Ala. 498; Ex parte Wall, 48 Cal. 321, 17 Am. Rep. 425; Covington v. East St. Louis, 78 Ill. 550; Indianapolis v. Gas Light & Coke Co., 66 Ind. 402; Perdue v. Ellis, 18 Ga. 591; Kniper v. Louisville, 7 Bush (Ky.) 601; Mayor v. Morgan (La.) 7 Mart. (N. S.) 5, 18 Am. Dec. 234; Portland v. Water Co., 67 Me. 137; Heland v. Lowell, 3 Allen (Mass.) 407, 81 Am. Dec. 670; State v. Dwyer, 21 Minn. 513; St. Paul v. Colter, 12 Minn. 46 (Gil. 16), 90 Am. Dec. 278; Taylor v. Carondelet, 22 Mo. 110; Metcalf v. St. Louis, 11 Mo. 103; State v. Noyes, 30 N.H. 288; Howe v. Plainfield, 37 N. J. Law, 146; Presb. Church v. New York, 5 Cow. (N. Y.) 541; Markle v. Akron, 14 Ohio, 590; Respub. v. Duquet, 2 Yeates (Pa.) 500; State v. Williams, 11 S.C. 291; Trigally v. Memphis, 6 Cold. (Tenn.) 389; Milne v. Davidson (La.) 5 Mart. (N. S.) 409, 16 Am. Dec. 189, and note.

Now turning again to the statute under consideration, we find that the board of trustees of incorporated towns are expressly empowered to declare what shall constitute a nuisance, and to prevent the same. This delegation of authority is apparently as broad and comprehensive as the Legislature could make it, and according to some decisions grants to a municipality the power to declare anything local in its character and operation a nuisance which the Legislature could constitutionally include in a statutory definition of the word, and thus leaves the municipal power in this respect limited only by the state and federal Constitutions. But according to the greater weight of authority this grant empowers a municipality to declare only those things a nuisance which are so per se, or which by reason of their location or use may become such within the common-law or statutory definition of a nuisance, or those things "which...