Whitson v. City of Kingfisher

• Decision Date: 28 January 1936
• Docket Number: Case Number: 25712
• Citation: 176 Okla. 145,1936 OK 97,54 P.2d 616
• Court: Oklahoma Supreme Court
• Parties: WHITSON v. CITY OF KINGFISHER

1936 OK 97

54 P.2d 616

176 Okla. 145

WHITSON v. CITY OF KINGFISHER

Case Number: 25712

Supreme Court of Oklahoma

Decided: January 28, 1936

Syllabus

¶0 1. MUNICIPAL CORPORATIONS - Statutory Authority for Ordinance Prohibiting Game of Snooker.

Under sections 2425 and 5998, O. S. 1931, cities and towns of Oklahoma are authorized to enact ordinances to restrain, prohibit, and suppress the game of snooker, and the operation of snooker tables.

2. SAME - Ordinance Prohibiting Maintenance of Pool and Billiard Halls Held to Prohibit Game of Snooker.

A municipal ordinance which prohibits the maintaining of places where billiards or pool are played upon pool or billiard tables, and which prohibits the maintaining of places where any games are played with cues or balls for hire upon tables is sufficiently broad and definite to prohibit the maintaining of halls and parlors where the game of snooker is played for hire upon tables similar to pool or billiard tables with balls or cues similar to billiard balls or cues.

3. MUNICIPAL CORPORATIONS - Exercise of Initiative and Referendum Powers - Necessity for Compliance With Statutes.

Where a city has not provided for manner of exercising initiative and referendum powers, citizens desiring to initiate a proposition must show substantial compliance with sections 5874, 5887, and 5890, O. S. 1931, and an initiative petition which is not in substantial compliance with the statutes of this state upon the subject is of no force and effect.

4. SAME - Invalidity of Referendum on City Ordinance not in Substantial Compliance With Constitution and Statutes.

A referendum petition upon a city ordinance must be in substantial compliance with the Constitution of Oklahoma, art. 18, secs. 4(a), 4(b), and with sections 5867, 5869, 5872, 5887, 5888, O. S. 1931, and an attempted referendum petition not in compliance with such constitutional provisions and such statutes is invalid and will not suspend the operation of a city ordinance against which it has been filed.

5. SAME - Validity of Emergency Ordinance.

Where the title and each section of a city ordinance are read separately and voted upon and passed separately, and then voted upon as a whole, and such city ordinance contains a sufficient emergency clause in a separate section which is voted upon and passed by a three-fourths vote of the members of the board of commissioners separately, such ordinance is a valid emergency measure and takes effect upon the date of its passage and publication.

6. SAME - Ordinance Operative at End of 30 Days Though Emergency Clause Invalid.

Even though the emergency clause of a city ordinance is invalid, said ordinance becomes operative at the expiration of 30 days.

7. SAME - Validity of Ordinance Providing Total Penalty not Exceeding $20 Including Costs.

A city ordinance which provides for total penalty, including costs, for not more than $20 is valid.

8. INJUNCTION - Injunction Against Ordinance Properly Dissolved After Enactment of Valid Ordinance Legalizing Acts Restrained.

An injunction will be dissolved where subsequent to its issuance a valid ordinance which legalizes the acts restrained has been enacted.

Appeal from District Court, Kingfisher County; J.W. Bird, Judge.

Action by Carl Whitson against the City of Kingfisher. Judgment for defendant, and plaintiff appeals. Affirmed.

Carl Whitson, for plaintiff in error.

E.M. Bradley, for defendant in error.

PER CURIAM.

¶1 This is an action brought in the district court of Kingfisher county, Okla., by Carl Whitson, as plaintiff in error, against the city of Kingfisher, a municipal corporation, as defendant in error. The parties will hereafter be designated as they appeared in the trial court.

¶2 Upon April 10, 1934, the plaintiff filed his action in the district court of Kingfisher county against the defendant for an injunction seeking to restrain the defendant from enforcing a certain ordinance of the city of Kingfisher, by which ordinance the defendant claimed that the maintaining, keeping and conducting of a "snooker parlor, or hall" was prohibited.

¶3 In addition to the petition, upon said date the plaintiff filed a motion in said cause seeking the issuance of a temporary injunction against the defendant and its agents, restraining them from interfering with the plaintiff in the business of maintaining and keeping said snooker hall. On the 12th day of April, 1934, O.C. Wybrant, district judge, issued an order of temporary injunction restraining the defendant and its officers from interfering with such business of said plaintiff, and restraining said defendant and its officers from arresting the plaintiff, or any of his agents, because of the operation of said snooker parlor or hall.

¶4 The only ordinance of the city of Kingfisher in existence at that time which could be conceived to apply to snooker parlors was what was known as ordinance No. 376, which was as follows:

"Section 1. It shall be unlawful for any person to keep, open, establish, conduct, maintain, manage, operate or carry on within the limits of the city of Kingfisher, Okla., any billiard and pool room, hall, or place wherein any billiard, pool, combination billiard and pool, croquet, billiard or pool, Jenny-Lind, bagatelle, or pigeon-hole table or tables and any billiard or pool tables upon which croquet, so called, is played with cues, balls and wickets, and any other pool and billiard tables upon which any game is played with cues and balls and any devices whatsoever, are or may be kept or operated for hire; and each day any such hall room or place is open, operated, maintained or carried on shall constitute a separate unlawful act and offense.

"Section 2. It shall be unlawful for any person to keep or operate any billiard, pool, combination billiard and pool, croquet billiard or pool, Jenny-Lind, bagatelle or pigeonhole or tables, or any billiard or pool or other tables upon which croquet or hinge-pin or any other game is played with cues and balls, or played with cues and balls aided by any other device whatsoever, in any public place in the city of Kingfisher, Okla.; and each day any such table or tables, or devices or contrivances are kept in any public place in said city shall constitute a separate unlawful act and offense."

¶5 In granting the temporary injunction the trial judge must have reached the conclusion that ordinance No. 376 did not apply to snooker halls, parlors, and snooker tables. It is not clear to us by what line of reasoning the trial judge reached such conclusion. It would seem that ordinance No. 376 was in all respects a valid exercise of the police powers of the city, and was sufficiently broad to cover snooker parlors and halls and was sufficiently definite to prohibit their operation.

¶6 The original answer of the defendant, after pleading certain portions of the charter of the city of Kingfisher, pleads ordinance No. 376, which we have heretofore quoted, and alleges that said ordinance prohibited the operation of snooker parlors or halls of the plaintiff. This answer was filed on the 18th day of April, 1934.

¶7 Thereafter, on the 7th day of May, 1934, the board of commissioners of the city of Kingfisher enacted ordinance No. 400, which is as follows:

"Section 1. That it shall be unlawful for any person or persons to keep open, conduct, manage, operate, maintain or carry on within the limits of the city of Kingfisher, Okla., any parlor, room, hall, or other public place of any kind or character whatsoever, wherein any snooker table or tables, or tables equipped with pockets and also used for playing the game of snooker are kept for hire, and upon which table or tables the game of snooker is played for hire paid by persons participating in such game or games; and each and every day any such parlor, hall, room or public place is so kept, open, conducted, managed, operated, maintained or carried on for hire in any public place in said city shall constitute a separate and distinct offense.

"Section 2. That it shall be unlawful for any person whomsoever, acting as a servant or employee or any person or persons engaged in said prohibited business or occupation, to aid or assist in violation of any of the provisions of section 1 of this ordinance, and each and every day any such servant or employee aids or assists in violating any of the provisions of section 1 of this ordinance shall constitute a separate and distinct unlawful act and offense.

"Section 3. That any person who shall violate any of the provisions of either section 1 or section 2 of this ordinance shall upon conviction thereof be punished by a fine of not less than $10 or not more than $20, including in such fine to be so imposed the costs of the action.

"Section 4. That all ordinances and parts of ordinances in conflict herewith will be repealed when this ordinance becomes effective.

"Section 5. For the immediate preservation of the public peace, health and safety an emergency is hereby, declared to exist, and by reason thereof this ordinance shall become operative and in full force and effect immediately after its passage, approval and publication."

¶8 This ordinance was published for the first time on the 10th day of May, 1934. The minutes of the board of city commissioners of the city of Kingfisher for May 7, 1934, reveal that ordinance No. 400, prohibiting snooker parlors, was read, considered first as to the title, then section by section, and then as to the whole, and that the title and each section of the entire ordinance were separately read and on motion carried and approved separately, and that then the ordinance was read and adopted as a whole.

¶9 It further appears that on the 15th day of March, 1934, a so-called initiative petition was filed with the city clerk of the city of Kingfisher, or with the board of commissioners, requesting the board of commissioners to submit the question of legalizing and licensing snooker parlors to the people of said city at the next election. This so-called...