Ex Parte Glass , 49 Tex. Crim. 87 ( 1905 )

This is an original application for the writ of habeas corpus. The facts show that the city of Tyler is incorporated under the general incorporation act for cities of over 1,000 inhabitants. Relator was arrested and convicted in the corporation court of the city of Tyler, fined $5, for violating an ordinance of said city, forbidding hogs to be kept within one mile of the courthouse in the city of Tyler. The corporate limits of the city of Tyler extended one and one-half miles in each direction from the courthouse, and extended one-half mile or more beyond the place where relator kept his hogs. This case was appealed to the county court, and appellant was there convicted, and the fine imposed was $5. Thereupon he applied to this court for the writ of habeas corpus, which was granted as above stated. The facts show that the hogs in question were kept in a clean pen, and no complaint had been made by any one of the manner in which they were kept. The last cause of article 538, Revised Civil Statutes, provides, as follows: "To abate all nuisances of every description, which are or may become injurious to the public health in any manner that they may deem expedient, and from time to time do all acts, make all regulations, and pass all ordinances which they shall deem expedient for the preservation of health and the suppression of disease in the city." "The authority to preserve the health and safety of the inhabitants, and their property, as well as authority to prevent and abate nuisances is a sufficient foundation for ordinances to suppress and prohibit whatever is intrinsically and inevitably a nuisance. The authority to declare what is a nuisance is somewhat broader, but neither this, nor the general authority mentioned in the last preceding sentence will justify the declaring of acts, vocations or structures not injurious to health or property, to be nuisances. Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with, unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights or clearly transcend the powers granted to them, in which case the contemplated action may be prevented or the injuries caused redressed by appropriate suit or proceedings." Dillon's Mun. Cor., sec. 379; Ex parte F.M. Robinson, 30 Texas Crim. App., 493. A hog pen or pig sty in a city has been held to be a nuisance. St. Louis v. Stearn, 3 Mo. App., 48; Whipple v. McIntyre, 69 Mo. App., 397; Amer. Eng. Ency. of Law, 2nd ed., p. 684. An ordinance may be valid, although it does not include the entire corporate limits of the city. 13 Pac. Rep., 170; Barbier v. Conley, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703. An ordinance is valid that regulates the location of anything that is offensive to public health, so long as the same is reasonable. We think the ordinance under consideration is a reasonable ordinance. The mere fact that it prohibits the keeping of hogs within one mile of the courthouse, and permits hogs to be kept in the corporate limits, outside of the one-mile limit, would not be an unreasonable regulation. We therefore hold that the ordinance of the City Council of Tyler is a reasonable and valid ordinance. Relator is accordingly remanded to the custody of the officers, and the costs are taxed against him.

Relator remanded to custody.

[Motion for rehearing overruled without written opinion. — Reporter.]