Relator's counsel have filed a very able and exhaustive brief on motion for rehearing, exhibiting much research and learning. We have studied the authorities therein cited, and considered the able reasoning of relator's counsel, but it has not changed our opinion as to the constitutionality of the ordinance in question. That portion of the ordinance quoted in the original opinion, which it is claimed renders the ordinance invalid, is the clause which provides that before a person can establish or maintain a slaughter house, bone boiler establishment, etc., or stock pens, containing more than six head of cattle, within 300 feet of a private residence, "a permit must be obtained from the citycouncil," it being contended this clause would authorize the city council to act arbitrarily; to grant a permit to one citizen and refuse another the privilege, and this renders the ordinance unconstitutional. Relator admits that the United States Supreme Court sustained the validity of just such an ordinance in the case of Fischer v. St. Louis, 194 U.S. 361. (48 Law. Ed., 1018), but he insists that in that case it was not shown that the city council had under the provisions of the law acted arbitrarily, and then adds: "We believe we can show that the decisions of the Supreme Court of the United States, when *Page 339 carefully considered with reference to the record presented in this case, are not against our position, but, when so considered, clearly support us. With due respect to the United States Supreme Court, it must be said and admitted that probably no court in this country has rendered more conflicting decisions than it has. There is hardly a question that has come before it for decision upon which its decisions are not apparently in almost hopeless conflict. It is, therefore, a matter of great importance, in determining the weight to be attached to its decisions, to examine same carefully and consider the same with reference to the very record and point presented." And then relator cites the case of Yick Wo v. Hopkins, 118 U.S. 356, and upon which he relies to sustain his contention that the ordinance is violative of the provisions of the Fourteenth Amendment to the Constitution. We would hardly feel authorized to thus assume to criticise the Supreme Court of the United States, and we do not think the two cases above cited authorize such conclusion, nor that the cases of Yick Wo v. Hopkins, and Fischer v. St. Louis are in hopeless conflict, but they both announce correct rules of law, and this is apparent when one takes into consideration the questions and issues being dealt with in those cases.
In the case of Yick Wo v. Hopkins, the City of San Francisco had prohibited any person in the city from pursuing the laundry business in a frame house in that city, without first having obtained permission of the city authorities. It was shown in that case that under such ordinance permits had been granted to all persons other than Chinese, and that permits had been refused to all Chinamen, more than two hundred in number, who had theretofore engaged in that business. The court holds that laundering is a legitimate business, and the pursuit thereof is not injurious to the public health or welfare of the city, and it was not a class of business which any man could be prohibited from pursuing, and not being hurtful nor harmful to the public welfare, the council could not prohibit it from being pursued, nor prohibit any man from pursuing that business. And as the ordinance by its operation, construction and application was so administered as to show that the intent and purpose of it was to prohibit a certain race of people from pursuing a legitimate trade or calling, which in and of itself could not be hurtful, it was illegal. Boiled to its last analysis, this was all that was held in that case. But in the case of Fischer v. St. Louis, the court and council were dealing with an entirely different business — one that in its nature was harmful, and which the city council would have the right to prohibit — the keeping of large herds of cattle within the corporation limits and near the thickly settled portions of the town. As said by the court: "We do not regard the fact that permission to keep cattle may be granted by the municipal assembly as impairing, in any degree, the validity of the ordinance, or as denying to the disfavored dairy keepers the equal protection of the laws. Such discrimination might well be made where one person desired to keep two cows, and another fifty; where one desired to establish a stable in the heart of the city, and another in the suburbs; or, where one was known to keep his *Page 340 stable in a filthy condition, and another had established a reputation for good order and cleanliness. Such distinctions are constantly made the basis for licensing one person to sell intoxicating liquors and denying it to others. The question in each case is whether the establishing of a dairy and cow stable is likely, in the hands of the applicant, to be a nuisance or not to the neighborhood, and to imperil or conduce to the health of its customers. As the dispensing power must be vested in someone, it is not easy to see why it may not properly be delegated to the municipal assembly which enacted the ordinance." As is seen, the court was dealing in this case with a business, in the interest of public health, that might be altogether prohibited, and of necessity different rules of law apply in one instance and in the other. It is a matter of common knowledge that the herding or keeping of large herds of cattle in the narrow confines of a lot within the limits of a city, and near private residences or the business portions of the town produces offensive odors and conditions that breed disease and epidemics endangering human life. The droppings not only produce offensive odors, but attract numerous flies and other insects, and what is termed the "stable fly" is now recognized by the medical world as the carrier of the deadly diseases that infect at times our southern climate. Beaumont, as we know, is situated in the heart of the rice belt, where the land is low and in the main of a flat surface, near the Sabine river, with irrigation ditches abounding in that section, and it must protect itself and its citizens by proper sanitary regulations from what is termed malarial diseases. As is said in all the standard law books, the reason why the power to enact sanitary and health regulations is always conferred upon cities and municipalities is that they best know their conditions and needs, and what regulations will best subserve the health of its citizens, and when an ordinance is passed with this end in view, it must be clearly violative of some provisions of the Constitution before the courts will nullify it. While no State or municipality can arbitrarily deprive a citizen of his property, or the legitimate or proper use thereof, neither has the citizen the right to so use his property as to be hurtful and harmful to his neighbors, or the public. When a civil government was formed for our mutual protection and benefit, each citizen of necessity surrendered some rights and privileges, and could no longer be law unto himself. Mr. Dillon, in his work on Municipal Corporations, in discussing the class of ordinances involved in this case, says:
"Ordinances prohibiting certain acts without the consent or permit of the common council or the mayor or other executive officer, have in some cases been held to be unreasonable and void, because they submit the right of individuals to the unrestrained discretion of the council or official. It has been said of ordinances of this nature that they remove the rights of the individual from the domain of law and subject them to the exercise of arbitrary discretion on the part of the council or the officer upon whom the dispensing power is conferred; that it is unreasonable to reserve the right to grant or withhold the privilege as *Page 341 it may suit the pleasure of the council or officer, and that to be valid an ordinance of this nature must lay down a uniform rule of action governing the exercise of the dispensing power.
"In these cases the remarks of the court appear to have been directed to the denial of any right or authority on the part of the city to subject the individual to an arbitrary discretion on the part of the council or of the officer upon whom the dispensing power is conferred. It is, however, to be observed that in the great majority, if not in all, of the cases cited, the ordinance was prohibitory in its nature, and in the view of the courts the acts sought to be prohibited were not ofthemselves harmful or of such a nature as to justify prohibition. But whilst the principles so laid down are supported by a respectable body of authority, it is believed that they arecontrary to the weight of the decisions. Many cases are to be found sustaining ordinances prohibiting acts or even the following of trades or occupations without procuring permits which may be issued at the discretion of the council, mayor, or some other city officer or department, and the fact that the dispensing power was apparently conferred without restraint or qualification has been regarded as arising merely from the difficulty of defining in advance upon what conditions the permit shall be given or the dispensing power exercised. It has also been said that it is not to be assumed that the council or officer in exercising the dispensing power will act arbitrarily or otherwise than in the exercise of a sound discretion.
"It is, however, to be observed that in sustaining these ordinances in some instances the courts declared that it was within the power of the Legislature, or of the city council by virtue of delegated authority, to prohibit the act absolutely, and that the right to absolutely prohibit necessarily includes the authority to determine under what circumstances the act may be permitted, as the greater power contains the less. But in other cases this distinction does not seem to have been adverted to, and it appears to have been held that the constitutional rights of the individual are not affected in any way merely because the discretion to grant a permit to do an act or to exercise a trade or calling has been vested in a municipal board or officer. In these cases it appears to be assumed that if the trade or calling is properly of a nature which may be regulated or controlled by virtue of the police power, such regulation or control may be exercised by a prohibition unless a permit be obtained." (Sec. 598, 5th ed.)
Under the first paragraph of the above quotation will be found nearly all the cases cited by relator in his brief, and on pages 937, 938, 939 and 940 of volume 2, same edition, will be found a long list of authorities sustaining the view taken by that eminent law writer, Mr. Dillon, and conclusively showing that the weight of authority in this country is against relator's contention in this case, and where the city council is dealing with a subject, which is in the interest of public health, it may, if it is deemed proper, absolutely prohibit, unless permission is granted by the council, and reserve to itself the right to say whether or not a permit shall be granted. *Page 342
And why should this not be so? The council is the legislature or law-making body of the city. At the granting of each license it may throw about such restrictions and regulations as the necessities of the case demand, and no one would contend that the same regulations would apply to the keeping of ten head of cattle as would be necessary if one hundred were to be kept, or that the city ought in any instance allow the keeping of a hundred head of cattle within the corporation within 300 feet of a residence or adjacent to the business portion of the city. In this instance the power is not delegated by the council to any other board or body of men, but it provides that the application shall be made to the council itself — the law-making body. Where could the discretion necessary to be exercised in instances of the character described in this ordinance more properly be lodged than in the council, which of necessity must pass the law, and that they reserve to themselves in granting permission to place all restrictions they deem necessary for the public welfare. And in those instances where the council deems that the keeping of more than six head of cattle would be hurtful and harmful to the health of its citizenship, or that the person applying is not such a person as would comply with the necessary regulations, or where it was desired to keep an unlimited number of cattle, to refuse permission altogether. As said in the original opinion, the facts are not sufficiently developed for us to determine whether or not the council in this instance has or has not acted arbitrarily in refusing relator permission to keep more than six head of cattle. There is no allegation as to the number he desired to keep within the city limits; no allegation that he would comply with all reasonable rules and regulations that might be prescribed by the council, or that he had offered to do so. He has not been tried for the offense, but when arrested for violating the provisions of the ordinance he sued out a writ of habeas corpus alleging that the ordinance on its face was unconstitutional. We do not deem it so, and he does not bring himself within the rules of law that would authorize us to grant him any relief, and the motion for rehearing is overruled.
Overruled.