City of Waco v. Powell

Morrill, C. J. That every man has a right to his own property, audio use it in such a manner and for such purposes — 268 — as to him may seem best' calculated to promote his interest, pleasures or fancies, in a republican government, may be considered as a maxim of political economy as well as of law. But as this holds true when applied to one man, it is no less true in its application to all men. Hence, a person living at such a distance from others as to have no intercourse or interference with their persons or property, could, use his property without restriction. But if his residence or business pursuits are in such proximity to the dwelling places or occupations of others that an unlimited use or enjoyment of his property or pursuits abridges the rights and privileges of person or property of his neighbors, then the same political economy, justice and law requires “sie tolere tuo, ut alienum non laedar” While society furnishes its advantages and pleasures, it' also abridges some of the privileges of a country life. A man living in the country, and at a remote distance from others, can have such animals in his j>ossession, and use them in such a way and manner as may gratify his own fancies, and whether his fancies coincide with those of others or not concerns himself alone; while, on the contrary, a man living in a village or city has no right to have such animals about him, or pursue such occupations, as are calculated to impair the health, offend the natural senses, or destroy the property of others. On the 27th of January, 1858, the Legislature passed an act to provide for the incorporation of towns and cities. (Páscli. Dig., Arts. 5247, 5281.) Article 5263 provides, “the board of aldermen shall have and exercise control over the streets and other public places in the town. They shall, as far as practicable, prevent any nuisances within the limits of the corporation, and cause such as exist to be removed, at the expense of the persons by whom they were occasioned,” etc. The citizens of Waco became incorporated under and by virtue of the provisions of this act, and elected their' city •officers. In March, 1866, the-board of aldermen of the city of Waco ■adopted the following ordinance: — 269 — “An Ordinance to provide for removing the nuisance of hogs from our streets, alleys and other public places in the city of Waco. “ Be it ordained T)y the Mayor and Council of the city of Waco, That hogs going at large upon the streets, alleys and other public places in this city, constitute a public nuisance, which it is by law made the duty of this Council to cause to be removed at the expense of the persons by whom it is occasioned,’ therefore, be it further ordained : “ Section 1. It shall be the duty of the marshal of the city to cause to be taken up any and all hogs that may be found going at large upon any street, alley, or other public place in the city of Waco, after ten days from the publication of this ordinance, and cause the same to be placed and kept in a secure inclosure, to be provided for that purpose, until the same are disposed of in the manner hereinafter provided. He shall, immediately after taking up such hogs, post up written notices at three or more public places in the city (one at the court house), describing therein the marks and class of all such hogs, and giving notice that the same will be sold five days after the date of such notice, unless the owners shall come forward and reclaim the same, as hereinafter provided. “ Sec. 2. At any time before the sale of any such hogs, under this ordinance, the owner thereof may reclaim the same, by making affidavit or giving other satisfactory evidence of his ownership, and paying the fees of the marshal for taking up, etc. “ Sec. 3. If no owner shall demand any hog taken up under this ordinance by the day of sale, as advertised under § 1 hereof, the marshal shall proceed to sell the same at public outcry, to the highest bidder for cash, in Hnited States treasury notes, and shall forthwith pay the amount of sales to the city treasurer, retaining in his hands the amount of fees allowed him under this ordinance. The marshal shall keep a correct description of the marks and class of every hog so sold by him, and the price sold for, in a book to be by him kept for that purpose, where it may, at all times, be examined by any citizen. — 270 — “ Sec. 4. The owner of any hog that may be sold under this ordinance, may at any time within thirty days after such sale, appear before the mayor and identify and prove his ownership of such hog; and thereupon the mayor shall give such owners a draft upon the city treasurer for the amount for which such hog was sold, less all costs accruing upon such taking up, selling, etc. “ Sec. 5. For each hog taken up and advertised by him under this ordinance, and which is not sold, the city marshal shall receive one dollar, to be paid by the owner who proves him away; and for each hog so taken up, advertised and sold, he shall receive one dollar and fifty cents, to be paid out of the amount of the sale of such hog.” Which ordinance was published immediately after its passage, in a semi-weekly newspaper in the town of Waco, for more than ten days. On the 9th day of July, 1866, the execution of said ordinance was, by resolution of the board of aldermen of the city of Waco, suspended. On the 6th day of May, 1868, the board of aldermen adopted a resolution rescinding said order or resolution of suspension, and notice of said recision was duly published in a semi-weekly newspaper published in the city of Waco, for more than ten days immediately after said 6th day of May, and more than ten days preceding the acts complained of in this suit. About the 25th of May, 1868, the town marshal did find hogs belonging to some of the appellees running at large in the public streets of Waco, in violation of provisions of the ordinance, and did seize them, and was proceeding to deal with them in accordance with the provisions of the ordinance, when this suit was filed and injunction granted. In their petition appellees attack the legality and validity of the ordinance, allege that their hogs are being seized by the city marshal, and pray injunctions, etc., restraining further execution of the ordinance, which was granted. Appellants appeared, and moved to dissolve the injunction ; — 271 — motion overruled. Answered: alleging incorporation of the city of Waco, setting up the ordinance aforesaid, passed by the board of aldermen of said city; alleging that the hogs were seized in the streets of Waco by virtue of its provisions, etc., and justified under said ordinance. Jury waived. Case submitted to the court on an agreed statement of facts. Judgment for appellees, declaring the ordinance invalid, perpetuating the injunction, and for cost against appellants. All the rulings of the court exce pted to, and notice of appeal to the Supreme Court given. Statement of facts agreed on and certified to. Appeal bond within the terms and time prescribed by law filed and approved. The city of Waco was originally chartered by the Legislature of Texas, but reorganized under the act of the Legislature of January 27th, 1858. The pleading, statement of facts and bill of exceptions, in connection with the judgment rendered, it is believed present for adjudication in this court but one que stion, and that is whether the power resides in the eorpo rate authorities of the city of Waco to enact and enforce the ordinance complained of in this case. The streets of a city do not belong to any one man of the city, but to the public at large ; and every person has a right to use the public streets of a city in conveying his person or property from one place to another. This is the only right he has in the streets. He has no right to use the land set apart for streets for a habitation, for a pasture, or for anything else, except to travel on and over, than he has to use any other person’s land for that purpose, and for the like reason : because it Is not his property. The streets being the property of the public, whoever represents the public not only has a right, but it is their duty, to see that these streets shall subserve the interests of those who wish to use them for their designed purposes. The Legislature represents the sovereign power; and, as — 272 — such, is competent to declare that it shall not be lawful for any person to appropriate the property of another, or of the public, to his own use. The Legislature can make a general law, applicable to every part of the State, and it can make a general law applicable to cities and towns having a designated population, authorizing the towns and cities to legislate in any particular manner, not inconsistent with the constitution. We see nothing in the act of the Legislature conferring power on villages and communities to become incorporate cities and towns, or in the ordinance of the city of Waco, herein stated, assailable for being unconstitutional. The mayor and aldermen, as the protectors of the public health, public convenience, and public good generally, have power to declare that the public property of the city of Waco shall not be used for the benefit of individuals, even if it should not be detrimental to citizens of the city; and more especially when otherwise the streets would he made unfit for their destined use, the travelers incommoded, and the citizens generally or specially in any manner troubled. Should the citizens of the city of Waco he aggrieved, by the action of the mayor and council of the city, their remedy lies at the ballot box. bTeither the citizens of Waco, or the courts of the State, have the right or power to review or revise the-ordinances passed by the legally constituted authorities, except as to their constitutionality. In reversing the judgment of the District Court we are sustained by the following authorities, cited by the counsel in their very able brief: Hope v. Deaderick, 8 Humph., 1; Brown v. Mayor, 3 Barbour, 258; Milhau v. Sharp, 17 Barbour, 438 ; Milhau v. Sharp, 15 Barbour, 240; Van Wormer v. Mayor, 15 Wendell, 264; Nolin v. Mayor, 4 Yerger, 163; McKee v. McKee, 8 B. Monroe, 433; Jarmon v. Patterson, 7 Monroe, 647. Our remarks may be liable to criticism from their prolixity upon plain principles of an elementary character; but as the-allegations in the petition that the animals interdicted against running at large in the streets are styled street scavengers, and — 273 — are really beneficial to the city, places the plaintiffs in no other than a hostile attitude to the city authorities, and in a defiant position to the ordinances of the city, and as assuming to act as the owners of the public streets and guardians of the public health, we have endeavored to correct this position. The remedial part of the ordinance, as well as the ordinance entire, partakes of the character and nature of an estray law, as applicable to the city, for the animals therein mentioned, in addition to declaring the animals a nuisance. The ordinance adopted by the mayor and council was based upon the authority conferred, hereinbefore specified, giving this body “ power to have and exercise control over the streets,” and “ to cause nuisances to be removed at the expense of the persons by -whom they were occasioned.” Judgment reversed, and cause dismissed and injunction dissolved. Ordered accordingly.