Whitson v. City of Ada

• Decision Date: 09 April 1935
• Docket Number: Case Number: 24842
• Citation: 1935 OK 414,171 Okla. 491,44 P.2d 829
• Parties: WHITSON v. CITY OF ADA
• Court: Oklahoma Supreme Court

1935 OK 414

44 P.2d 829

171 Okla. 491

WHITSON v. CITY OF ADA

Case Number: 24842

Supreme Court of Oklahoma

Decided: April 9, 1935

Syllabus

¶0 1. NUISANCE - Legislative Power to Declare - Billiard and Pool Halls.

Within constitutional limitations, the Legislature has the power to declare what shall constitute a nuisance; and in the exercise of that power it is not restricted to declaring only such things a nuisance as were so at common law or are so per se. It may declare billiard and pool halls nuisances and forbid them.

2. SAME - Delegation of Power to Municipalities.

The Legislature may lawfully delegate to municipal corporations, to be exercised within their corporate boundaries, the power to declare what shall constitute a nuisance and to prevent the same.

3. MUNICIPAL CORPORATIONS - Ordinance Long in Existence Presumed Properly Enacted and Published.

Where an ordinance passed by a municipality acting within its authority has been in existence for many years, during which time its validity has not been questioned, it will be presumed to have been properly enacted and published, until the contrary is proven.

4. SAME - City's Right to Prohibit Pool Halls not Restricted by Power of County Judge to License.

Statutory power of county judge to license pool and billiard halls held not to restrict city's right to regulate or prohibit them.

Appeal from District Court, Pontotoc County; J.F. McKeel, Judge.

Action by Carl Whitson against the City of Ada, T.J. Chambless, J.H. Pryor, and Lee Daggs, City Commissioners, and Joe Neal, Chief of Police. Judgment for defendants, and plaintiff appeals. Affirmed.

H.W. Cabeen and Jeff H. Williams, for plaintiff in error.

J. Wm. Crawford, for defendants in error.

PER CURIAM.

¶1 This is an appeal from a judgment of the district court of Pontotoc county. The parties appear in the same order in which they appeared in the trial court. The action was to procure an injunction to prevent the defendants from enforcing an ordinance of the city of Ada.

¶2 The record discloses that between June 7, 1933, and June 14, 1933, the plaintiff installed the necessary tables and other equipment for conducting a public snooker parlor and pool and billiard hall in the city of Ada; that the plaintiff had a large sum of money invested in his business; that the plaintiff prior to opening his place had procured a license from the county judge of Pontotoc county, authorizing him to maintain and operate a pool and billiard ball at the location where he was operating his business; that the defendants ordered him to close and cease operating his place of business; that they threatened to arrest and prosecute the plaintiff daily, and threatened to close his pool hall and snooker parlor as a nuisance.

¶3 The city of Ada is a city of the first class operating under a special charter. The charter provisions material to a consideration of the issues in this case are as follows:

¶4 Sec. 2. "The city of Ada shall have power to enact and enforce all ordinances necessary to protect health, life and property and to prevent and summarily abate and remove nuisances and to preserve and enforce good government and order for the security of the city and its inhabitants; to enact and enforce all ordinances upon any subject; Provided, that no ordinance shall be enacted inconsistent with the general laws of this state, the state Constitution, or this charter"

¶5 Section 1, art. 3, vests the legislative powers in board of three commissioners.

¶6 Section 7, art. 3:

"* * * All ordinances passed by the board of commissioners, except emergency ordinances, shall take effect and become valid and binding at the expiration of 30 days from the date of their passage, unless otherwise provided in this charter."

¶7 Section 8: "No ordinance, except an emergency ordinance, shall be enacted on the day of its introduction; but all ordinances except emergency ordinances, after being introduced, shall lie over for at least one week before being voted on and adopted."

¶8 Section 9: "The board of commissioners, by unanimous vote, may pass an emergency ordinance when the public peace, public health, or public safety shall, in the judgment of the board, demand it. Every emergency ordinance must, as a part of the title, contain the words, 'And declaring an emergency', and every such ordinance shall, in a separate section, state such emergency and provide that such ordinance shall take effect and be in full force immediately upon its passage."

¶9 Section 10: "Except as otherwise, provided by the Constitution and laws of the state, all ordinances, except emergency ordinances, shall be published in some newspaper of general circulation in the city of Ada, such publication to be within ten days from the passage of the ordinance."

¶10 Two ordinances were pleaded by the defendants and offered in evidence at the trial, numbered 334 and 624, respectively.

¶11 The material parts of ordinance No. 334 are as follows:

¶12 Section 1: "That it shall be unlawful for any person or persons, * * * to own, maintain, or operate any public pool and billiard hall or room, within the corporate limits of the city of Ada. * * *"

¶13 Section 2 prescribes penalties for violation of the ordinance.

¶14 Section 3 repeals ordinances in conflict, and provides, "That this ordinance shall take effect and be in force from and after its passage, approval and publication, as provided by the charter of the city of Ada."

¶15 This ordinance was passed and approved February 9, 1915.

¶16 The evidence does not prove that this ordinance was ever published. On the other hand, the evidence does not prove that it was not published. The evidence establishes, however, that from the time of the adoption of this ordinance until the plaintiff sought to open and maintain his pool and billiard hall, a period of about 18 years, no pool and billiard hall was maintained or operated in the city of Ada.

¶17 The portions of ordinance No. 624 material to the issues are as follows:

¶18 Section 1: "The operation or maintenance of any billiard, pool, or snooker table or tables, or combination thereof within the corporate limits of the city of Ada, for hire or gain or whereby a charge is made for playing thereon, is hereby deemed to be and declared a public nuisance and prohibited within the corporate limits of this city."

¶19 Section 2 prescribes penalties.

¶20 Section 3: Each day's continuance of the violation of the terms of this ordinance shall constitute a separate offense.

¶21 Section 4: "For the preservation of the public peace, health, and safety of the city of Ada and of the peace, health and safety of the inhabitants thereof, an emergency is hereby declared to exist by reason whereof it is necessary that this ordinance take effect and be in full force from and after its passage and approval as provided by the charter of the city of Ada."

¶22 This ordinance was passed and approved November 29, 1932. It was published June 15, 1933, two days before plaintiff's petition was filed in this case.

¶23 The trial court held that ordinance No. 624 was valid, and denied plaintiff an injunction.

¶24 In his brief the plaintiff asks a reversal of this judgment and relies upon two propositions:

¶25 First, Ordinance 624 of the city of Ada, which the trial court held was a valid ordinance and upon which ordinance the court below denied the injunction, is void, either as an emergency ordinance, or general ordinance.

¶26 Second. A pool hall is not a nuisance per se, and the city of Ada, acting under its charter or under the statutes of the state of Oklahoma, had no right or authority to enact an ordinance declaring a pool hall a nuisance.

¶27 The defendants contend that both ordinances No. 334 and No. 624 are valid.

¶28 The charter of the city of Ada does not require the publication of emergency ordinances. It does provide that ordinances other than emergency ordinances must be published within ten days from the passage of the ordinance.

¶29 Ordinance 624 was published about six months after its passage and two days prior to the commencement of this action. It is urged by plaintiff that the charter provision is void because in conflict with section 4521, C. O. S. 1921 (6361, O. S. 1931) and section 6649, C. O. S. 1921 (section 5889, O. S. 1931).

¶30 Section 4521, C. O. S. 1921 (sec. 6361, O. S. 1931), provides in part:

"All ordinances shall be published as soon as practicable after they are passed, in some newspaper printed within the city, * * * and no ordinance having any object beyond the bare appropriation of money shall be in force until published as herein provided."

¶31 Section 6649, C. O. S. 1921 (sec. 5889, O. S. 1931), is as follows:

"No ordinance or resolution of a municipal Legislature shall become operative until 30 days after its passage and approval by the executive officer, unless the same shall be passed over his veto, and in that case it shall not take effect and become operative until 30 days after such final passage, except measures necessary for the immediate preservation of peace, health or safety, and no such emergency measure shall become immediately operative unless it shall state, in a separate section, the reasons why it is necessary that it should become immediately operative, and the question of emergency shall be ruled upon separately and be approved by the affirmative vote of three-fourths of all the members elected to the city council taken by

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