In re Pye

• Decision Date: 01 January 1876
• Citation: 45 Tex. 312
• Parties: R. V. PYE ET AL. v. JULIA R. PETERSON.
• Court: Texas Supreme Court

45 Tex. 312

R. V. PYE ET AL.

v.JULIA R. PETERSON.

Supreme Court of Texas.

1876.

APPEAL from Grimes. Tried below before the Hon. James R. Burnett.

The facts are stated in the opinion.

R. V. Pye & John R. Kennard, for appellants, cited Gabel v. Houston, 29 Tex., 335; Abbot's Dig., (of Municipal Corp.,) 493, 511, 514, and cases; Brady v. N. W. Ins. Co., 11 Mich., 425;Miller v. Burch, 32 Tex., 210; 2 Kent, 340; Slaughterhouse Cases, 16 Wall., 62;Vanderbilt v. Adams, 7 Cowen, 349;Roberts v. Ogle, 30 Ill., 459;City of Waco v. Powell, 32 Tex., 258; Wadleigh v. Gilman, 12 Me., 403; 1 Dill. on Mun. Corp., 430, and cases.

Randolph & McKinney, for appellee, cited Sedg. on Stat. & Con. Law, 466; Cooley's Const. Lim., 192, 194, 195, 203; 2 Kent, 298; Beaty v. Lessee of Knowles, 4 Peters, 152;Miller v. Burch, 32 Tex., 210; Angel on Corp., ch. 2, sec. 6; 3 Bl. Com., 216; 4 Ib., 166; Hodges v. City of Buffalo, 2 Denio, 110;Burditt v. Swenson, 17 Tex., 502;Dirgan v. Waddell, 9 Ired., 245;Kirkman v. Handy, 11 Humph., 406; 1 Strange, 636.

GOULD, ASSOCIATE JUSTICE.

The appellee brought this suit to enjoin the enforcement of an ordinance of the city of Navasota establishing fire limits, declaring wooden buildings thereafter erected within these limits to be nuisances, and providing for the removal of such buildings and the punishment of parties erecting them. The injunction was granted, and, on the final hearing, was made perpetual, and from this judgment the city has prosecuted an appeal. Whether, under its charter, the city was empowered to pass such an ordinance, is the sole question presented for our consideration.

The charter contains no express grant of such power. It is claimed under the general grant of power in the first section of the charter, authorizing the city to “ordain and establish such acts, laws, regulations, and ordinances not inconsistent with the Constitution or laws of this State, as shall be needful for the government, interests, welfare, and good order of said body politic.” It is also claimed under a clause conferring on the city council power, by ordinance, “to abate and remove nuisances, and to punish the authors thereof by penalties, fine, and imprisonment, and to define and declare what shall be nuisances.” The form of the ordinance indicates that it was framed under this latter clause.

The clause of the charter just cited certainly does not convey an unlimited authority to declare that to be a nuisance which, “in its nature, or its situation, or use, is not such.” (1 Dillon on Mun. Corp., sec. 308; Yates v. Milwaukee, 10 Wall., 498.)

Neither in its legal nor general meaning does the word nuisance apply to wooden buildings, even in towns and cities. The erection and occupation of such buildings is an ordinary exercise of the property rights of the owner of the lands, and is far from falling within the legal definition of a nuisance, at common law. The power to prohibit such buildings in certain localities is statutory, and is a limitation on the ordinary rights of property. Whilst the legislative power to authorize such prohibitions is now conceded, the nature of the power is so high and the subjects themselves so far various that it seems not naturally embraced in the subordinate power to declare and abate nuisances. To so construe it would be to extend the grant of power to a subject not, we think, within the intention of the law-makers in the clause cited.

This conclusion is strengthened by reference to the former and existing general act, providing for the incorporation of towns and cities, and to numerous special acts of incorporation which show that these subjects-- nuisances and fire limits--have usually been treated as distinct, and provided for by distinct and separate grants of power. (Paschal's Dig., arts. 5263, 5275,; Laws of 1875, p. 130, sec. 64, p. 143, sec. 105; Spec. Laws of 1870, p. 72, &c.)

We are also of opinion that the general grant of power to establish ordinances needful for the welfare of the city did not authorize the passage of such ordinances as the one in question.

Municipal corporations can exercise those powers only “which are expressly or impliedly conferred, subject to such regulations or restrictions as are annexed to the grant.” (Cooley on Const., 192.)

“The general disposition of the courts of this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them; thus applying substantially the same rule that is applied to charters of private corporations. The reasonable presumption is, that the State has granted, in clear and unmistakable terms, all it has designed to grant.” (Cooley, 195.)

This presumption applies with undiminished force when the power sought to be implied is one to limit those rights of property which are secured to every citizen under the general laws of the State. (Potter's Dwarris, p. 146.)

To infer the power to establish fire limits, from the general terms used in this charter, would be to disregard the rules of construction just cited, and would go far in the direction of the opposite proposition--that specific grants of power are unnecessary. If this general clause includes the power claimed, it would seem difficult to place limits on its meaning.

It is true that Judge Dillon, in his work on Municipal Corporations, says: “Municipal...