Goodall v. City of Clinton

• Court: Oklahoma Supreme Court
• Writing for the Court: HURST, Vice Chief Justice.
• Citation: Goodall v. City of Clinton, 161 P.2d 1011, 196 Okla. 10, 1945 OK 235 (Okla. 1945)
• Decision Date: 25 September 1945
• Docket Number: 32025.
• Parties: GOODALL et al. v. CITY OF CLINTON et al.

161 P.2d 1011

196 Okla. 10, 1945 OK 235

GOODALL et al. v. CITY OF CLINTON et al.

No. 32025.

Supreme Court of Oklahoma

September 25, 1945

Appeal from District Court, Custer County; W. P. Keen, Judge.

Action by John Goodall and others against the City of Clinton and others to enjoin defendants from carrying out an order of the city board of health declaring certain frost-proof toilets in use on plaintiffs' properties to constitute a public nuisance and directing that nuisance be abated, wherein defendants cross-petitioned. Judgment for defendants, and plaintiffs appeal.

Affirmed.

A judgment rendered in a case heard without a jury will not be reversed on account of admission of incompetent evidence unless record discloses that there was no competent evidence sufficient to support judgment or in some way shows affirmatively that improper evidence affected the result. 12 O.S.1951, §§ 78, 636; 22 O.S.1951, § 1068.

Syllabus by the Court.

1. Error, if any, in refusing to strike a cross-petition in an injunction case, where no relief was given under the cross petition, is harmless.

2. A party to a suit, in which the fact of the existence of a nuisance is an issue, does not have a right to have the issue tried to a jury where the action it one an injunction and hence is one of equitable cognizance.

3. City charter provisions supersede state laws in conflict therewith only when they are of purely municipal concern and only to the extent of the conflict.

4. The provision of the charter of the city of Clinton, that 'all ordinances, except emergency ordinances, shall be published in some newspaper of general circulation in the city of Clinton, and the same shall not be in full force and effect until the expiration of ten days from the publication thereof,' when considered with another charter provision along with the construction placed thereon by the board of commissioners, construed and held not to apply to a revision of the ordinances, and held further that a publication of fifty copies of the Revised Ordinances in book form was a sufficient publication as authorized by 11 O.S.1941 § 579.

5. The ordinances of the city of Clinton creating the city board of health and conferring upon it the authority to declare a certain condition, act, or thing to constitute a nuisance, as defined by the ordinances, and to abate the same, after causing notice to be served upon the persons reponsible for the nuisance and giving them an opportunity to be heard, do not deprive such persons of due process of law, confer upon the board administrative duties, and are valid.

6. 63 O.S.1941 § 34 affords persons aggrieved by a summary order of abatement of a nuisance issued by a board of health a judicial review to determine whether the board has acted within its jurisdiction--whether it has acted in accordance with the procedure prescribed by valid statutes or ordinances and whether the board has arbitrarily declared a thing to be a nuisance which clearly is not one in fact. Such review may be secured by a suit to enjoin the carrying out of the order of abatement.

7. The requirements of 12 O.S.1941 § 611, that the trial court make findings of fact and conclusions of law under certain circumstances, are complied with when the court makes separate findings of fact and conclusions of law on the material issues on which there is conflicting evidence.

8. In a suit to enjoin a city board of health from carrying out a summary order abating a nuisance, it was not error to admit in evidence the resolution of the board declaring the thing to be a nuisance, which was one of the steps in the abatement proceedings provided for in the ordinances.

9. A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of the admission of incompetent evidence, unless the record discloses that there was no competent evidence sufficient to support it or in some way shows affirmatively that the improper evidence affected the result.

RILEY J., dissenting in part.

A. J. Welch, of Clinton, for plaintiffs in error.

Arney & Barker, of Clinton, for defendants in error.

HURST Vice Chief Justice.

This action was brought by the plaintiffs, Goodall and others, as owners and tenants in possession of three residence properties in the city of Clinton, to enjoin the defendants, the city of Clinton and the three members of its board of health, from carrying out an order of the city board of health, made October 26, 1943, declaring certain frost proof or Vogle or Vogle type toilets in use on the three properties to constitute a public nuisance and directing that the nuisance be abated. From a judgment denying the injunction, the plaintiffs have appealed.

Plaintiffs' petition for injunction was based upon three grounds, (1) that the ordinances under which the board of health acted are void because not enacted, published or signed as required by the city charter, (2) that the ordinances are void because they unconstitutionally delegate power to the board of health, and (3) that the order of abatement cannot be carried out until there has been a judicial determination by a court of the existence of a nuisance. By answer, the defendants denied the allegations of the petition, and by a cross-petition, which they denominated a 'supplement to answer,' they alleged that the toilets constituted a public nuisance and asked that the court abate the same in the event it found the abatement proceedings by the board of health to be invalid for any reason.

An examination of the evidence convinces us that the finding of the trial court that the toilets constituted a public nuisance is supported by the evidence and is not clearly against the weight thereof. The evidence reasonably tends to establish that the toilets were so constructed and installed as to permit the sewage to backflow into the water line and thereby pollute the city water supply, particularly when the water pressure was low or the toilets were stopped up or not in good working order; that they had a direct connection with the water line; and that the toilets were in fact kept in an unsanitary condition, and were open to flies, rats and vermin and gave off noxious odors constituting a health hazard and a public nuisance.

The plaintiff argues the case under six propositions, and in disposing of such propositions we will refer to other matters shown by the record.

1. It is argued that the trial court committed error in overruling the motion of the plaintiffs to strike the new matter stated in the 'supplement to answer,' which in effect constituted a cross petition asking the court to abate the nuisance if it should be held that the proceedings of the board of health were for any reason invalid. However, since the court did not abate the nuisance as therein requested, but instead simply denied the injunction, the error, if any, was harmless and does not entitle the losing party to a reversal of the judgment. 12 O.S.1941 §§ 78, 636; 22 O.S.1941 § 1068.

2. The plaintiffs argue that, since the new matter just referred to was not stricken, the court committed error in refusing the demand of plaintiffs for a jury trial. It is only in cases properly triable to a jury, such as damage suits, that the fact of the existence of a nuisance is for the jury. This being an injunction case, is one of equitable cognizance, and the plaintiffs were not entitled to a jury trial as a matter of right. 12 O.S.1941 §§ 556, 557; Mathews v. Sniggs, 75 Okl. 108, 182 P. 703; 35 C.J. 170; 28 Am.Jur. 470. Even a suit to abate a nuisance, such as the defendants' cross-petition, is not, as argued by plaintiffs, triable to a jury as a matter of right. Gragg v. State, 73 Okl. 132, 175 P. 201.

3. Plaintiffs argue that the ordinances under which the board of health acted are void because not published as required by the city charter.

In 1916, the city adopted a charter, Section 8 of Article 3 of which provides: 'All ordinances, except emergency ordinances, shall be published in some newspaper of general circulation in the City of Clinton, and the same shall not be in full force and effect until the expiration of ten days from the publication thereof.' In 1930, the board of commissioners of the city caused the ordinances to be revised, and the Revised Ordinances were adopted and published in book form, one hundred copies being published and deposited with the city clerk, but the Revised Ordinances were not published in a newspaper of general circulation in the city. The ordinance adopting the Revised Ordinances provided that they should be in full force on and after the day in which fifty copies in book or pamphlet form should be deposited with the city clerk. The Revised Ordinances consist of 768 sections and cover some 260 printed pages. The authority of the board of health to abate the nuisance in question on behalf of the city is to be found in said Revised Ordinances. No proof was made of any such ordinances that had been enacted and published prior to 1930. The plaintiffs do not contend that, if the Revised Ordinances are in force, and are constitutional, the board of health is without authority to abate the nuisance in the manner attempted.

Our statute, 11 O.S.1941 § 579, directs how city ordinances in general shall be published, and it contains this proviso:

'* * * Provided, However, that when the council of said city shall order a revision of ordinances of said city, a publication in the book or pamphlet of ordinances shall be deemed a publication under this section: Provided, Further, that not less than fifty copies of said pamphlet or book of ordinances shall be published.'

The question, then, is whether the quoted charter provision applies only to single ordinances and not to Revised...