Ex Parte Robinson

• Decision Date: 28 November 1891
• Parties: <I>Ex parte</I> ROBINSON.
• Court: Texas Court of Appeals

17 S.W. 1057

Ex parte ROBINSON.

Court of Appeals of Texas.

November 28, 1891.

Appeal from Ellis county court; B. McDANIEL, Judge.

F. N. Robinson, arrested on a complaint for violating a city ordinance declaring it a misdemeanor to keep stallions, etc., within the city limits for service, was, on the hearing of a writ of habeas corpus remanded to custody, from which judgment he appeals. Reversed.

W. H. Fears, for relator.

WHITE, P. J.

The city of Ennis, in Ellis county, Tex., contains about 3,500 inhabitants, and is incorporated under the general laws of the state of Texas. On the 1st day of June, 1891, the city council of said city passed an ordinance in the following words, to-wit: "Be it ordained by the city council of the city of Ennis that if any person shall keep any stallion, jackass, or bull within the corporate limits of the city of Ennis to serve mares, jennetts, and cows, he shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than five nor more than twenty-five dollars: provided, that each day after conviction under this article shall be deemed a separate offense." Complaint was made in the mayor's court of the city of Ennis, charging appellant with the violation of this ordinance, in that on the 26th day of June, 1891, he kept a stallion within the corporate limits of the city of Ennis, and did then and there serve a mare with said stallion within the city of Ennis. Appellant, having been arrested by the city marshal under process issued by virtue of this complaint, applied for a writ of habeas corpus to the county judge of Ellis county, which writ was granted, and upon a hearing of said writ the county judge remanded him to the custody of the city authorities, from which judgment this appeal is taken.

The main object and purpose of this appeal is to determine the validity and legality of the ordinance above set out; plaintiff contending that it is illegal and void because in restraint of trade, and attempts to prohibit the carrying on of a legitimate business in said corporate limits, which business is not per se a nuisance. The authority in behalf of the city to pass such an ordinance is predicated upon articles 403 and 408 of the Revised Statutes. Article 403 provides that the city council shall have authority to abate all nuisances which may injure or affect the public health or comfort in any manner they may deem expedient, and article 408 confers upon them the power to abate and remove nuisances, and to punish the authors thereof by penalties, fines, and imprisonment, and to define and declare what shall be nuisances, and authorize and direct similar abatement thereof. By article 383 the city council is also authorized to license, tax, and regulate trades, professions, occupations, and callings, the taxing of which is not prohibited by the constitution and laws of the state. The question is, do these statutory provisions empower the corporation to pass the ordinance in question? It is contended by appellant that the ordinance does not attempt to declare the keeping of a stallion to be a nuisance, nor attempt to define it as a nuisance, but simply prohibits the keeping thereof for breeding purposes. We do not deem it necessary to rest the decision of the question upon such hypercritical distinctions. We will treat the ordinance, on the other hand, as tantamount to an effort upon the part of the corporation to abate the keeping of a stallion within the corporate limits as a nuisance. It is a well established rule that municipal corporations can exercise no powers except those which are conferred upon them by the act by which they are constituted, or such as are necessary to the exercise of the corporate powers, the performance of their corporate duties, and the accomplishment of the purpose of their association. They can exercise no power which the charter does not grant in express words, or which is not necessarily or fairly implied...