Oklahoma City, Okl. v. Dolese
| Decision Date | 02 April 1931 |
| Docket Number | No. 367.,367. |
| Parties | OKLAHOMA CITY, OKL., et al. v. DOLESE et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. H. Jarman and A. L. Hull, both of Oklahoma City, Okl. (M. W. McKenzie and Joe Bailey Allen, both of Oklahoma City, Okl., on the brief), for appellants.
D. A. Richardson, of Oklahoma City, Okl. (John Tomerlin, Tomerlin & Chandler, and Hayes, Richardson, Shartel, Gilliland & Jordan, all of Oklahoma City, Okl., on the brief), for appellees.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
The city of Oklahoma City joined by its mayor and other officials appeal from a decree of the District Court which, in a suit of Peter Dolese and Dolese Bros. Company against them, enjoined the enforcement of Ordinance No. 3584, passed by the city on March 12, 1929, declaring the business of the company located within the city on the right of way of the Atchison, Topeka & Santa Fé Railway Company and adjacent lots to be a public nuisance, and directing its discontinuance by the owner, or, on its failure so to do, then by city officers. The jurisdiction of the District Court was based on diversity of citizenship and the complaint that the ordinance was invalid under the due process and equal protection clauses of the Federal Constitution.
The issues were made up by bill and answer. From the evidence introduced at a trial, the following facts were shown without dispute:
The plant of the company is located in a residential section between Thirteenth and Sixteenth streets, running east and west — as many blocks north from the business center of the city, on certain lots leased from Peter Dolese and an adjacent leased portion of the right of way on the west side of the railroad.
Since 1910 the company has carried on there the business of buying, storing, and selling coal, gravel, stone, sand, and other contractors' supplies and has constructed spur tracks for its use, at a cost of $12,000. The leases are worth $10,000, the buildings $25,000, and the entire plant $100,000. The retail business yields over $750,000 per annum, at a net profit of $59,000.
By a zoning ordinance passed on September 24, 1923, property between Tenth and Twenty-Sixth streets and lying from one half to a full block west of the railroad right of way, was designated as district U-3, in which retail business, light manufacturing, storage of builders' supplies, maintenance of tracks, etc., were permitted. Various other industries are located along the west side of the railroad throughout the zone, and two of them are of the same kind as the Dolese Company. There are apartment and dwelling houses in the blocks west of and adjacent to all those industries.
There was a protest of citizens to the city council against the business of the Dolese Company. A committee appointed by the council recommended corrections in operating the plant, and they were made, and are still continued, by oiling the yards, sprinkling cars and materials, and muffling cranes. The company also offered to comply with any other reasonable ordinance for reduction of noise in operating the plant. Another committee appointed by the council reported that no other suitable location could be found for the company.
The ordinance in question was adopted on March 12, 1929, after four complaining parties had indemnified the city against costs in case of action in court. It contains preliminary recitals, in substance, that the dust, dirt, noise, danger arising from, and the unsightly appearance presented by, the plant and its operation create and constitute injury to the health, comfort, and peace of the inhabitants as well as to the property in the vicinity; that great noise is made by the machinery and trucks in handling materials, and dirt, dust, fine sand, and stone are blown throughout the residence community; that great mounds of materials and railroad cars parked there are unsightly, obstruct the view of travel over the Fourteenth street crossing, and create a dangerous condition; that the trucks used interfere with the general use of the streets; that the scattering of materials impairs the street paving; that by reason of the foregoing the comfortable and peaceable enjoyment of the homes in the locality is seriously affected; and that the conditions are a constant menace to the health, peace, and safety of the city and the adjacent community, and diminish the use and value of the property in the district. The ordinance then proceeds to declare the plant and its operation a public nuisance and to direct that it be abated on notice within 120 days, and, if this should not be done by the company, then the chief of the fire department or chief of police, at the instance of the mayor, was directed to abate and remove it. Provisions are added that each obstruction thereto and an attempt each day to operate the plant are punishable by fine.
There was evidence on both sides bearing on the question of objectionable results from the operation of this plant. It showed some conflict, but it may be fairly summed up as establishing that the findings in the ordinance concerning them are by no means sustained, and that the results were no more than were due unavoidably to the nature of the business. Counsel for the city describe the conditions in their brief as follows: "The Dolese Company had done everything possible to abate the nuisance in the operation of its plant, but had been unable to relieve the situation to the extent that there could be comfortable enjoyment of the homes in the vicinity."
It is not questioned in this case that the city is invested with the police power, in a legislative capacity only, to abate nuisances by the state Constitution and laws, and by the city charter. The state Supreme Court has decided that a legislative determination by a city that a nuisance exists is conclusive on the courts if it is one where there may be an honest difference concerning it in impartial minds, and it is not unreasonable or arbitrary in character. Calkins v. Ponca City, 89 Okl. 100, 214 P. 188. In that case, the ordinance condemned two buildings because as maintained they were a menace to the health and safety of the community, and the contention that the city sought to exercise judicial powers and its remedy was in the courts was rejected. Other decisions followed this precedent. Finkelstein v. City of Sapulpa, 106 Okl. 297, 234 P. 187; Wood v. City of Chickasha, 125 Okl. 212, 257 P. 286. These decisions are said to control the present case. We observe at the outset that we are bound by the construction the state court gives to the state laws, but not by its conclusion in determining their constitutional validity. Truax v. Corrigan, 257 U. S. 312, 325, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375.
Counsel for the city also cite decisions from the Supreme Court of the United States to sustain the power of the city to...
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