109 P. 570 | Okla. Crim. App. | 1910
It is contended by petitioner that the ordinance in question is void, for the reason that the Incorporated Town of Eldorado had no statutory grant of power to pass the same; that municipal corporations are creatures of the Legislature, and can exercise only such powers as are expressly conferred by their charter or by statute; that a grant of power to them must be strictly construed, so that they take nothing by implication; and that they have no power to declare anything a nuisance unless it is soper se.
It is true that a municipal corporation has no power except that which is specifically granted or necessarily implied. Dillon on Municipal Corporations defines the powers of such corporations as, "First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable." And he also states that, "Any fair, reasonable doubt concerning the existence *77 of power is resolved by the court against the corporation, and the power is denied. Of every municipal corporation, the charter or statute by which it was created is its organic act. Neither the corporation nor its officers can do any act or make any contract or incur any liability not authorized thereby. All acts beyond the scope of the powers granted, are void." The foregoing statements of the law have been quoted, approved and adopted by courts innumerable; and constitute perhaps as clear, accurate, and succinct a rule for determining the power and the limitations upon the power of municipal corporations as could be formulated. Bearing this rule in mind, then, as our guide, let us examine our statutes and see if such power as that attempted to be exercised by the passage of this ordinance is granted to incorporated towns in this state.
Cities of the first class are by express statute authorized "to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution, and other disorderly houses." Section 683, Snyder's Comp. Laws. But no such express grant of power is given to incorporated towns and villages so far as billiard halls and bowling alleys are concerned. It is provided by section 847 of Snyder's Comp. Laws with respect to towns and villages that, "The board of trustees shall have the following powers, namely: 4th, to declare what shall constitute a nuisance, and to prevent, abate and remove the same, * * *." And it is clear that if the town of Eldorado had the power to enact the ordinance in question that power must be found in the 4th sub-division of the section just quoted; and from the title and wording of the ordinance it is also clear that it was from this source that the trustees claimed the power which they sought to exercise.
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.
Joyce on the Law of Nuisances, sections 81, 82 and 83; Ripley v.State, *78
Now, the Legislature may delegate this power to municipal corporations to be exercised within their corporate boundaries. "After repeated challenge of municipal authority to exercise the police power, on the ground that it is a sovereign power and therefore non-delegable, the doctrine is firmly established and now well recognized that the Legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power within their boundaries; the measure of power thus conferred is subject to legislative discretion." 28 Cyc. 693, and the many cases there cited. And Judge Freeman states in his note to Robinson v. Mayor of Franklin, 34 Am. Dec. 625, 632, that, "Discretionary powers granted to a municipal corporation, to be exercised according to its judgment as to the necessity or expediency of a given measure, vests the corporation, within the sphere of the powers delegated, with a control as absolute as the Legislature would have possessed if it had never delegated the powers, and the discretion of the municipality in respect to the exercise of the powers granted is as wide as that possessed by the government of the state." And in support of the statement he cites the following cases: Gas Co. v.Des Moines,
Now, turning again to the statute under consideration, we find that the board of trustees of incorporated towns are expressly empowered to declare what shall constitute a nuisance, and to prevent the same. This delegation of authority is apparently as broad and comprehensive as the Legislature could make it, and according to some decisions grants to a municipality the power to declare anything local in its character and operation a nuisance which the Legislature could constitutionally include in a statutory definition of the word, and thus leaves the municipal power in this respect limited only by the state and federal Constitutions. But according to the greater weight of authority this grant empowers a municipality to declare only those things a nuisance which are so per se, or which by reason of their location or use may become such within the common law or statutory definition of a nuisance, or those things "which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds"; and according to all the cases it does not and could not authorize a municipality to declare that a nuisance which is clearly not so.Laugel v. Bushnell,
"We do not at all question the general proposition, which has been argued with so much elaboration by appellant's counsel, that under a general grant of power over nuisances, like the one in question, town authorities have no power to pass an ordinance declaring a thing a nuisance which in fact is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary, would be an abuse of it. But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question."
The same doctrine was adhered to in Harmison et al. v.Lewistown,
"Under a general power over nuisances, town authorities cannot declare a thing a nuisance which is clearly not one; but if the *81 thing is of such character that it might or might not be a nuisance, depending upon circumstances, the action of such authorities, in the exercise of their legislative functions, will be conclusive."
In Kansas City v. McAleer,
"We are not unmindful of the rule that a municipal corporation has no power to treat a thing as a nuisance which cannot be one; but while we recognize this rule, we also recognize the equally well settled rule that it has the power to treat as a nuisance a thing that from its character, location and surroundings, may and does become such. In discussing this general subject it was said, in a recent case: `But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question.' North Chicago City Ry. Co. v. Townof Lake View,
See also Walker v. Towle,
Now, under our statute (sec. 4751, Snyder's Comp. Laws), and by the common law, anything which annoys, injures or endangers the comfort, repose, health or safety of others, is a nuisance. And who can say that a public billiard hall or poolroom operated for gain in a small town may not through its management or use, or on account of local conditions and surroundings, become a nuisance, or that it is not a thing "which in its nature may be a nuisance, but as to which there may be honest differences of opinion in impartial minds?" Bowling alleys, tenpin alleys and stages for rope dancing were held at common law to be nuisancesper se. 1 Hawk. P.C. by Curwood, c. 32, sec. 6; Jacob Hall'scase, 1 Mod. 76, 2 Keb. 846. In Tanner v. Trustees of Albion, 5 Hill (N.Y.) 121, 40 Am. Dec. 337, it is held that a ten-pin alley kept for gain is a nuisance at common law, and may be prohibited by a municipal corporation under a charter authorizing it to make by-laws relative to nuisances, although the printed rules of such alley posted up therein prohibited all betting and the attendance of minors. In the opinion the court said:
"Establishments of this kind in populous communities are, at best, and even when used without hire, very noisy, and have a tendency to collect idle people together and detain them from their business. When built and kept on foot for gain, the owner is interested to invite and procure as full an attendance as possible, day after day; and for this purpose temptations beyond mere amusement *83 are often resorted to, such as drinking and gaming. So far as I have been able to discover, erections of every kind adapted to sports or amusements, having no useful end, and notoriously fitted up and continued with the view to make a profit for the owner, are considered in the books as nuisances. Not that the law discountenances innocent relaxation; but because it has become matter of general observation, that, when gainful establishments are allowed for their promotion, such establishments are usually perverted into nurseries of vice and crime. Common stages for rope-dancers have been adjudged nuisances at the common law; `not only,' says Hawkins, `because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which can not but be very inconvenient to the neighborhood': 1 Hawk, P.C., by Curwood, c. 32, sec. 6 * * * I mention common stages for rope-dancing, because bowling-alleys were long since held to stand on the same footing: Jacob Hall's Case, 1 Mod. 76. Hall, a rope-dancer, had erected a stage, or was about erecting one, at Charing Cross, which the Court of King's Bench pronounced to be a nuisance. Hale, C.J., mentioned as a precedent, `that in the eighth year of Charles I., Noy came into court and prayed a writ to prohibit a bowling alley erected near St. Dunstan's Church, and had it.' In the report of Hall's Case, in 2 Keb. 846, Chief Justice Hale is represented as saying that `Noy prayed a writ to remove a bowling alley; and had it, without any presentment at all.' Thus we see Hawkins is sustained by the highest authority in saying that such places can not but be nuisances.
"The tendency of the alley being well known, it was adjudged to be a nuisance of itself; and a writ accordingly issued to remove it without any trial; Now this is not because rope dancing or playing at nine-pins, or any other game with bowls is a mischief; nor that being a spectator at a rope dance is censurable in the least. Such acts are not nuisances. In themselves they are entirely innocent. The nuisance consists in the common and gainful establishment for the purpose of sports, having the aptitude and tendency of which Hawkins speaks; not that this always produces the consequences of which he complains, but because there is imminent danger of its doing so."
This decision was followed in Updike v. Campbell, 4 E.D. Smith (N.Y.) 570, where it was held that a contract leasing *84
certain premises for the purpose of conducting a bowling alley therein was void, because the leasing was for an illegal purpose. And State v. Haines,
The case of Ex parte Murphy (Cal.)
"We may concede at the outset that the business of conducting a public billiard hall and poolroom is not per se a nuisance. In the case of Ex parte Meyers (Cal.App.)
The Supreme Court of Kansas in the case of Burlingame v.Thompson,
"Many games and practices may be detrimental to the welfare of a community which are unaccompanied by boisterousness and cannot be classed with nuisances of the disturbing kind. Some of the most enticing are reported as `gentlemen's games,' in playing which the nicest decorum is observed. So the constant tendency to become disorderly may be but one of the faults of the small-town poolroom. It may be vicious and not be loud. The Supreme Court of Nebraska has said that a poolhall in a village is *87
apt to degenerate into a trysting place for idlers and a nidus for vice. (Morgan v. State,
They are evidently so regarded by the lawmaking power in our state, for by section 681 of Snyder's Comp. Laws we find it provided that cities of the first class "shall have authority to levy and collect a license tax on * * * dramshops, saloons, liquor sellers, billiard tables and other gambling tables, bowling alleys," etc.; and by section 683, that "the city council shall have power to enact ordinance to restrain, prohibit and suppress tippling shops, billiard tables, bowling alleys, houses of prostitution and other disorderly houses," etc. To say the least, the statute casts a shadow on their reputation by the company to which it assigns them. And also it would be peculiar if the statutes, which have granted to cities of the first class ordinarily well policed, the power to suppress billiard halls and poolrooms, should be construed to withhold that power from towns and villages often possessing little or no police protection. In our opinion our statutes are not susceptible of that construction.
Our conclusions therefore are: First, that the Legislature may lawfully delegate to municipal corporations the power to declare what shall constitute a nuisance within its corporate boundaries, and the power to prevent, abate or remove the same. Second, that under such delegation of power the municipality may not lawfully declare a thing a nuisance which clearly is not one, but that it may declare anything a nuisance which is so per se, or which by reason of its location, management or use, or on account of local conditions or surroundings, may or does become a nuisance within the common law or statutory definition thereof, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. Third, that where a thing neither necessary nor useful may or may not be a nuisance, depending upon a variety of facts and circumstances, or upon local conditions and surroundings, the determination of the question by the municipality through its *88 legislative body, is, under such a grant of power, conclusive upon the courts. And fourth, that billiard halls and poolrooms are not protected as necessary or useful institutions; that they may or may not be nuisances, depending upon circumstances, and that the determination of that question locally by the town trustees of Eldorado is conclusive upon us. We therefore hold the section of the ordinance in question to be valid.
Was there such a trial of the case before the town justice as would warrant a judgment of conviction? The judgment, omitting the caption, reads in part as follows:
"And now, on this the 25th day of January, 1910, came on to be heard the above entitled matter, the plaintiff present by W.C. Austin, special attorney for the plaintiff, and the defendant present in person and by his attorney, J.T. Shives. The defendant having waived arraignment in open court enters a plea of not guilty, and both parties having announced ready for trial, defendant waives jury and thereupon the plaintiff reads and offers the complaint charging the defendant with wilfully and unlawfully engaging in, establishing, opening, keeping, carrying on and assisting in carrying on, maintaining and assisting in maintaining a poolroom and place by then and there, to wit, on Jan. 24, 1910, in Eldorado, Oklahoma, keeping pool tables for hire and for public use in violation of ordinance Number 40 of the said incorporated town of Eldorado, Oklahoma. And the defendant after the plaintiff had proven the ordinance under which said charge was made enters a confession on his part of having committed the corporal acts and matters therein charged against him; and the court after hearing the argument of the counsel and after duly and fully considering the law applicable thereto, and the evidence as produced and confessed, finds the defendant guilty as charged; and it is the order of the court that a fine of $25.00 be and the same is entered against the said defendant . ."
This judgment purports to have been rendered upon "the evidence as produced and confessed"; no attempt has been made to show by evidence of any kind that no testimony was in fact taken; and in the face of the judgment recital we will not presume that the justice did not in fact hear testimony.
We therefore hold that the petitioner's imprisonment is not *89 illegal. The writ of habeas corpus heretofore issued will accordingly be discharged, and the petitioner will be remanded to the custody of the town marshal. It is so ordered.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.
