*1 355 per- complains Exception state was 6 that Bill of No. deceased, through neighbor deceased’s that prove, of mitted to night homicide, feeble- daughter, was who at home the of was carry talk a conversation. minded and could not or on prov- Appellant proof tantamount contends that such ing that, talked, if she would the feeble-minded child could have appellant. have testified to We are unable matters hurtful right reasoning, follow his had the but do observe that the state explain non-production eye witness to the homicide. Appellant telephone complain con- seeks to a certain about evening versation had of the homicide. deceased on the raising observe, find exception question. We however, bill no We meager relating the court evidence withdrew the jury’s perceive injury thereto from the consideration and no re- testimony. flected
Appellant’s jury motion for new trial on mis- based any allegation jury conduct or received new evidence during Only their deliberations. are we authorized cases raising exception to consider the same the absence of a bill of question. 760e, Article C. P.C. questions Said motion seeks to raise several correct- rulings ness the court’s on the admission exclusion evi- exceptions during dence. These should have been made the course of the trial and cannot be raised on motion for new trial. appellant’s The motion further seeks to show that counsel utilizing made a during mistake in not certain witnesses nothing course of the trial. Such a presents contention for our review.
Finding error, judgment reversible of the trial court is affirmed. Naylor.
Ex Parte Harold R. 25,537. January 30, No. 1952. Rehearing May 28, Denied *2 Presiding. Judge Harry Carroll, Hon. N. Corpus Christi,
Brycun Wingo, Jones, and Luther E. both Austin, Stayton, appellant. and Black & Thompson, Singer, Attorney, Hodge L. M. Assistant City Attorney, Christi, Corpus George Blackburn, P. State’s Attorney, Austin, for the state. Judge.
BEAUCHAMP, city Appellant corporation court of was convicted kept charge and conducted Christi on a chickens he slaughtering limits, contrary to an city business within the city promotion passed by health owning, maintaining, general prohibited welfare * ** chickens, using, keeping having possession any tur- exceptions, keys, guineas, geese, ducks, pigeons, certain with obtaining purpose. The ordinance a permit for such without permit for which number further fixed a limit on the issued. hands of placed in the The ordinance was enforcement of the inspections make officer who was authorized to regulations prescribe bounds certain
ordinance. appellant of this bounds
It is exceeded the admitted per se: ordinance. contention is that the ordinance void First, delegates power because health officer regulations; second, caption not set make does because third, ordinance; and, ap- purposes forth the because *3 plied deprives to relator him without due of his process of law. purpose copy
For the of the first and second attacks we ex- cerpts from the ordinance as follows:
“ORDINANCE NO. 3089 “For the PROMOTION OF HEALTH GEN- PUBLIC AND ERAL OWNING, WELFARE THE PROHIBITING MAIN- TAINING, USING, KEEPING, OR IN POSSESSION HAVING * * * CHICKENS, TURKEYS, GUINEAS, GEESE, ANY DUCKS, PIGEONS, THE WITHIN CITY LIMITS THE OF * * * CHRISTI, CITY OF CORPUS EXCEPT THAT CHICK- ENS, TURKEYS, GUINEAS, GEESE, DUCKS AND HOM- ING IN LIMITED PIGEONS NUMBERS MAY BE KEPT BY OBTAINING SPECIAL PERMIT FROM THE CITY HEALTH OFFICE; PRESCRIBING PROCEDURE FOR OBTAINING PERMIT; THE REGULATING OF ANI- KEEPING SUCH MALS PERMITS; AND POULTRY UNDER SUCH PROVID- PERMITS; FOR ING REVOCATION OF DEFINING CER- TERMS; TAIN PENALTY PRESCRIBING OF NOT TO EX- A CEED FINE OF MORE THAN TWO HUNDRED DOLLARS * * ($200) ORDINANCE; FOR THE VIOLATION OF THIS any per- “SECTION 1. That and shall be unlawful for son, firm, corporation own, maintain, or keep, use or have in * * * possession their any chickens, guineas, geese, turkeys, ducks, pigeons, or corporate City within the limits of the * * * Corpus Christi; except guineas, turkeys, chickens, geese, ducks, homing pigeons may kept be under the condi- provided tions permit hereinafter set forth a be first obtained * * * provided. hereinafter to, required referred Permits as hereinafter “SECTION 2. maintaining, owning, keeping, pre-requisite be had as * * * turkeys, chickens, any using, having possession or their applica- by guineas, geese, written be obtained and ducks forth requirements as set sanitary complinace tion with the application with filing by Officer, by City a written Health affirmatively City Officer, application shall Health keeping animals for applicant show that has facilities City meeting poultry quarters standards set or poultry within Officer, animals or Health confine said which will exterior (100’) feet to limits than one hundred not closer ap- any any dwelling than one other limits resided plicant. permit if issued be valid No shall be issued or Corpus permitting City of Christi premises any any or within area within the (12) fol- a combined of more than twelve Christi total * * * ** ducks; guineas, geese *. lowing: chickens, turkeys, revoked, permit, and ef- shall valid Each such unless sooner (12) of is- from date fective for not more than twelve months suance thereof.”
Appellant permit secured no to conduct his business authority permit officer had no to issue business, fully as shown later. more originated proceeding
This in the trial court *4 city purpose testing validity the of of the of the of Corpus question and ad- have other before us Christi. We by discussing many only dress ourselves to that a few of the presented appeal. authorities to us in the al, Francisco v. 2d Dental et 149 S.W. Board of Examiners grant- may prescribe regulations 619. The state reasonable ing may delegate licenses to and an dentists to administrative authority pass qualifications applicants, board power to on of with the grant may
to or refuse a license. The state revoke such delegate agency, license or function a to board or even though right practice, acquired, right the to once is a subject protection process of under the due clause of the State and Federal Constitutions. State, 430,
Williams v. 146 Tex. Cr. R. 2d 176 S.W. power” “Police power lodged every is incidental munici- pality, local, state or federal. It incident the to enforcement altogether of depend laws specific grant. not upon does As delegate authority, regarding legislature power of the the declaring policy a legislative body may, is said after the fixing primary standard, ad- executive or a confer prescribing power ministrative the details officers to fill out legis- regulations purpose rules and of the the with power carry lation and to The exercise of them into effect. delegation against does not violate the constitutional inhibition legislative 1, of Ann. Vernon’s St. functions. See Art. Sec. Const. proclamation It was held in this case that of the Gov- the
ernor, pro- duly according promulgated when and filed the law, legis- subject. visions of has a the force of the law on The provide lature create an at ex- offense and the time same ceptions authorizing application (as its the the ordinance granting officer). permits by city of certain the health
Margolin State, v. 151 Tex. 2d 775. Cr. R. 205 S.W. prosecution This was a pure violation of the food laws sugar use of saccharin instead of in the manufacture of soda prohibiting water. The State Health Officer an order had issued purpose. use of saccharin for this trial court certified that he entered his order as violation It was of this order. legislature may, declaring policy asserted that after fixing primary standards, delegate tribunal, to administrative Officer, power prescribe in this case the State details Health carry legislative so purpose. out the This was re- cause manded, invalidity of because of law or health order, officer’s but because the trial court’s was that being guilty violating of of the order the State Health Officer pure when should have been for violation food law passed by legislature. opinion brings very
It is our this us to the discussion city study which is now before us. A ordinace very makes it clear that Christi set regulations subjects standards for the enumerated in the delegated ordinance and then officer carry purposes expressed to fill in the details and out the in the *5 agent granted ordinance as the no council. He was power none, say and exercised to vio- that the ordinance was as inspection lated a matter of law. He and made his reached conclusion, right do, his violated; as had law he a to that had been imposed it
but is not this conclusion which the fine in question. city, taking The executive officer of the the facts dis- where alone resorted to the courts inspection, closed guilty. lodged say was that relator is to rely conclusion upon we for our authorities
The same delegated authority passing in made ordinance was that support our also contrary provisions of the Constitution to rights deprived his without was not that relator conclusion transacting was his business process of law. He due city contrary The That is admitted. facts
to ordinance. hazard amply he created a health support a the casb in a residential section a nuisance and his business constituted city. growth busi- had enormous since his Christi has surrounding property him owned was ness was established. The by right adopt develop they a it to the and had to it and others uses, advancing industrial purposes residential or to section right surrounding they fit. owners had no as saw The he, turn, appellant’s in will a and create hazard to business right jeopardize the interests of have no his own interest govern- general public. principle a of our It is foundation rights rights. yield public ment individual Bad must large affect where num- conditions will industrial areas people just certainly to work as bers come as residential business, according to the districts. The relator maintained his evidence, against rights resi- workers and industrial both right regulate dents in his area. in the The had health, did, legal public proceeded interest of as it in a prosecution. manner to institute this Relator resorted to the corpus proceeding district court in habeas to have bring only way declared void. This available to him to court, only question question to this which we can legality decide is the relator of the ordinance. not Whether question violated that which we do not ordinance is over jurisdiction. have presented by
We have relator considered authorities very argument. in a deal able cited not brief cases do conditions, general proposition. They with health not as a are in point as we view the reason not dis- case and for that are though cussed. The difficult. It is not novel it is new, presented us, illustrated the authorities burden cast is a relator his business the conduct of great interest, during day of new and one but the this depart- outbreaks, greater. is much are not serious disease We *6 361 though courts, ing we and other from of this former decisions meeting are to some extent new situations. prayed denied.
The relief relator is MOTION REHEARING. ON FOR MORRISON, Judge. rehearing
Appellant predicates his the fol- motion lowing assertions error: “the That ordinance is because not void it does state the
conditions exist Health must before the Officer empowered to act.” specific
The ordinance in forth sets certain limita- requirements city tions and that must exist the before grant empowered among being permit, officer is to them may legally kept number of named animals and fowls that and the distance from the residence of another where same kept. be so The relator admits that has met these he requirements specifically which are in enumerated the ordinance itself. question must, therefore,
Our review of this be limited to city’s power prohibiting constitutional to enact ordinance keeping of more than 12 chickens within 100 feet of residence another. parte Broussard, In Ex 74 Tex. Cr. R. 169 S. 660W.
(1914), exhaustively ques- we had an occasion to write on the constitutionality tion giving of an ordinance grant council the permit keep- or withhold a ing of more than private 6 head of cattle within 300 feet of a residence. bar,
As we view the facts of the at case the Broussard case controlling, depart is here and we see no reason from holding therein. (2) applied That the ordinance is as be- void relator deprives liberty proc- cause it him of without ess of law. Supreme early Court United States as Louis, 1018, writing upon
Fischer v. St. 48 Law Ed. valid- ity prohibiting of a of cattle within following prescribed limits, made statement of law: legislature municipalities its power authorize “The occupations as, regulate places suppress all its likely injurious *7 judgment, to the health of its inhabi- are to be neighbor- living tants, people in immediate or the to disturb odors, clearly the so within or offensive hood loud noises longer open question.” police as to be reasoning impressed with soundness of the of are the We City Supreme in Mitchell of New Mexico v. Ros- Court of the There, (1941). well, (2d) the court had under con- 41 111 P. making validity unlawful of an ordinance the sideration city. area the within restricted of We keep certain livestock therefrom, part, follows: as quote rights subject property held are to the property and “All (3 McQuillin, police power Ed., par. 2d of the exercise fair regulation the ; enacted the benefit of 939) reasonable and a convenience, safety general health, or welfare is not an public taking property of in violation of the contract unconstitutional protection clause, equal process clause, or the clause due the 10; 1, par. Article Amend. 14. Constitution. the Federal Goldsboro, 548, Ry 232 34 Co. v. U. Ct. Line S. S. Coast Atlantic 364, A vested interest cannot as Ed. 721. 58 L. theory against upon the was that the business estab serted passed. or ordinance was the statute When the before lished power reasonably enforced, it matters is authorized not that alleged here, property, prior it is made was investment the ordinance, prop passing of the or that the value of the to erty materially by thereof; reduced reason or that any purpose. not so useful valuable for other property is of the individual interests are subordinated to the su private public. Rock, Reinman v. Little 237 perior interest U. S. 511, 900; 171, City 59 L. Ed. 35 Ct. of Little Rock v. Rein S. Livery Co., 174, 155 105; Automobile Ark. man-Wolfort 107 S. W. Hadacheck, 416, parte 584, 1916B, 165 Cal. 132 P. Ex L.R.A. 1248; Sebastian, 394, Hadacheck 239 143, v. U.S. 36 S. Ct. 60 . 348, 1917B, 927; Connolly, Ed. Ann L. Cas. Barbier v. 113 * * 27, 357, 31, 924; 923, 5 28 L. S. Ct. Ed. U.S. *.” policy uphold regulations
“It is the courts to intended health, protect public plain they unless it is that have no object ostensibly real relation to the acted, they were en- prima they facie Syracuse, are reasonable. Miller v. 230, 411, L.R.A., 168 Ind. 80 N.E. 8 Rep. N.S. 120 Am. St. 366; Cemetery Odd Fellows’ Francisco, Ass’n v. San 140 Cal.
363
Madre,
City
41 Cal.
226, 233,
987, 989; Boyd
of Sierra
73 P.
v.
App. 520,
The relator must
overcome
“necessary
ordinance,
preamble
it wa§
stated in
prohibit
health and welfare to
interest of
regulate
keeping
of cer-
of certain animals and to
City
City
poultry
tain other animals and
limits of the
findings
Corpus Christi,
enactment of
Texas.” These
showing
prima
ordinance made
facie
placed
disap-
was
prove
relator
reasonable and
the burden
Hislop
Joplin,
625;
parte
it.
v.
Ex
S. W.
Glass,
49 Tex.
R.
Cr.
It must be remembered that for our determina- *8 tion here is the constitutional council health matters.
An only examination of record herein not reflects that burden, the relator was unable to meet this also but shows that the trial court had before it sufficient to authorize a evidence business, operated by relator, reasonably that the endangered public. and threatened
Remaining disposed properly convinced that we of this originally, appellant’s rehearing cause motion for is overruled.
Raol v. Valdez State. 25,780. March 1952. No. Rehearing April Denied 1952. Appellant’s Rehearing (Without Second Motion for Denied May 28, Opinion) Written