Wood v. City of Chickasha
| Decision Date | 22 March 1927 |
| Docket Number | 17125. |
| Citation | 257 P. 286,125 Okla. 212,1927 OK 77 |
| Parties | WOOD v. CITY OF CHICKASHA et al. |
| Court | Oklahoma Supreme Court |
Withdrawn Corrected, Refiled, and Rehearing Denied June 21, 1927.
Syllabus by the Court.
A poultry and hide business is not a nuisance per se. Whether it be a public nuisance depends upon its surroundings, the manner in which it is conducted. It may become a nuisance per accidens.
A municipal corporation of this state in the exercise of its police power delegated to it by chapter 67, Compiled Oklahoma Statutes 1921, has authority by Legislative act to declare what shall constitute a nuisance, and has power to abate the same.
The extent of the power of the court in the proceedings at bar is limited to a determination as to whether the ordinance in question is, under the facts, unreasonable and arbitrary. Held further, if such ordinance is not unreasonable or arbitrary, the determination by the mayor and city council that the business as it existed was a menace to the health and safety and repose of the community, and a public nuisance, is conclusive upon the court.
The use of a public sidewalk as an instrumentality of a business is accorded as a mere privilege and not as a matter of natural right.
The acts of a court of record are known by its records alone and cannot be established by parol testimony.
Appeal from District Court, Grady County; Will Linn, Judge.
Action by T. B. Woods against the City of Chickasha and others, to enjoin the enforcement of a nuisance ordinance. Judgment for defendants, and plaintiff appeals. Affirmed.
Bailey & Hammerly, of Chickasha, for plaintiff in error.
Barefoot & Carmichael, of Chickasha, for defendants in error.
This action was instituted in the district court of Grady county by the plaintiff in error, Woods, against the city of Chickasha for the purpose of enjoining the enforcement of Municipal Ordinance No. 889 of said city, which ordinance declared and provided for the abatement of a public nuisance which nuisance as declared consisted of (1) a platform or loading dock extending across and blockading the sidewalk adjacent to lot 14, block 31, in said city, and (2) the poultry and hide business conducted by T. B. Woods in and around a building located on lots 12, 13, and 14, block 31 of said city. The abatement provided in said ordinance was (a) the removal of the platform or loading dock obstructing the sidewalk, (b) the closing and discontinuance of the poultry and hide business at such location, and the removal of the refuse from which the odor and stench was derived.
Woods petitioned that said ordinance was unreasonable, arbitrary, and discriminatory, therefore void and unenforceable. Upon final hearing the lower court dissolved a temporary restraining order theretofore granted, denied a temporary injunction, but permitted the judgment to be superseded pending filing of this appeal.
Upon appeal the plaintiff contends as follows: First. The ordinance is arbitrary and unreasonable, and therefore void: (a) For the reason the same is based upon an assumption of facts that the evidence clearly discloses to be false; (b) the evidence discloses that the business of plaintiff is not detrimental or injurious to any one, therefore not a nuisance; (c) that the ordinance seeks to prohibit as distinguished from seeking to regulate a lawful and legitimate business. Second. The ordinance is discriminatory, and therefore void. We shall consider these assignments of error as grouped. It is the law that, if such an ordinance is arbitrary and unreasonable, it is void and unenforceable. Finkelstein v. City of Sapulpa, 106 Okl. 297, 234 P. 187.
A municipal corporation of this state in the exercise of its police power has authority to declare by legislative act what shall constitute a nuisance, and power to abate the same. This power is derived by express grant from the state (chapter 67, Compiled Oklahoma Statutes 1921), and municipal corporations possessed power to summarily remove public nuisances under the common law. Ex parte Jones, 4 Okl. Cr. 74, 109 P. 570, 31 L. R. A. (N. S.) 548, 140 Am. St. Rep. 655; Cummings v. Lobsitz, 42 Okl. 704, 142 P. 993, L. R. A. 1915B, 415.
In the case at bar we cannot weigh the evidence and render judgment according to the weight thereof. This cause is not on the plane with the ordinary equity case. The city of Chickasha by its mayor and city council in enacting Ordinance No. 889 determined the business of plaintiff as conducted to be a public nuisance. Such a determination is conclusive upon this court, for a city may declare anything a nuisance which is so per se, or which by reason of its setting or surrounding has become so. Calkins v. Ponca City, 89 Okl. 100, 214 P. 188. Since, therefore, the city of Chickasha did not exceed its delegated authority in enacting the ordinance, the next question affecting its validity is whether it is arbitrary or unreasonable.
The record discloses evidence tending to show, and showing, about this business an offensive and disagreeable odor and stench constantly arising from the presence of fowls, blood, feathers, and green hides; that there were noises emanating from large numbers of chickens, turkeys, and other poultry kept in said place of business; that there were a number of people who at times worked at night; and that disagreeable odors and noises affected many people living in the immediate neighborhood. There was the testimony of a Mrs. Davis who lived 75 feet east of the building-a Mrs. Lockabaugh who owned property north of the business and who conducted a rooming house and whose tenants threatened to leave on account of the stench and noise of this business. There was testimony of several eminent physicians, all of which tended to show that the business was conducted in such a manner as to endanger the health and safety of the people who lived in the neighborhood. Certainly such evidence establishes at least a case where there might have been an honest difference of opinion as to whether such business was in fact a nuisance. If so, then the determination of that question by the mayor and city council in the enactment of the ordinance, if not arbitrary, is conclusive on this court. Duncan Electric & Ice Co. v. City of Duncan, 64 Okl. 211, 166 P. 1048. We hold, therefore, that the ordinance of the city is not unreasonable and arbitrary.
Counsel in their argument cite Marland Refining Co. v Hobart, 113 Okl. 36, 237 P. 857, in support of their contention. The writer dissented in that case and does not now think that the same supports the contention herein. As to a supporting view and based upon facts similar to the Hobart Case and later expressing this court under a set of facts where there was no question of injunctive relief as a mode of enforcing an ordinance which was admitted to be unenforceable by criminal prosecution because of an excessive penalty being provided in the ordinance (Ex parte Johnson, 20 Okl. Cr. 66, 201 P. 533, and Ex parte Bochmann, 20 Okl. Cr. 78, 201 P. 537), see Magnolia Petroleum Co. v. Wright (Okl....
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