
    Ex parte HARRIS.
    (No. 8136.)
    (Court of Criminal Appeals of Texas.
    May 7, 1924.)
    1. Municipal corporations <&wkey;605~Municipality cannot prohibit occupation not a nuisance in fact.
    A municipality has no power, under the general authority embraced in city charter to abate nuisances, to prohibit by criminal ordinance an occupation'not a nuisance in fact.
    2. Nuisance <&wkey;6l— Business of curing hides not a nuisance per se.
    The vocation of curing hides is lawful when conducted in a lawful manner, and is not a nuisance per se, but may become a nuisance according to manner or place of its -pursuit.
    3. Municipal corporations <&wkey;622 — Ordinance prohibiting curing of green hides held invalid.
    An ordinance, prohibiting curing or poisoning hides within the city limits, held prohibitory and unenforceable as against a business of curing hides which was conducted without complaint.
    (SssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Habeas corpus by C. R. Harris to secure bis release under a commitment issued upon conviction for violation of an ordinance.
    Relator discharged.
    Brooks, Hart & Woodward, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

In an ordinance of the city of Austin it is declared that “it shall be unlawful for any person to cure green hides or poison dry hides within the limits of the city of Austin.” Held under a commitment issued upon the conviction for the violation of this ordinance, the relator seeks his release by way of habeas corpus, charging that the ordinance is unreasonable and oppressive, in that it absolutely prohibits the conduct of a lawful business within the limits of the city of Austin, without reference to the manner or the particular locality in which the business is conducted.

So far as we are aware, the city relies upon no specific statutory authority, but depends upon the general authority embraced in the city charter to abate nuisances. Under such conditions it seems to be the rule that a city has no power to prohibit by criminal ordinance an occupation which is not a nuisance in fact. Ruling Case Law, vol. 20, p. 389, § 12; Wood on Nuisances, vol. 2, p. 977; Joyce on Nuisances, § 332; Yates v. Milwaukee, 10 Wall. 498, 19 L. Ed. 984. This principle has been reasserted and applied in many cases which will be found collated in Rose’s Notes on U. S. Rep. Rev. Ed. vol. 7, pp. 139, 140; Ex parte Lacey, 108 Cal. 326, 41 Pac. 411, 38 L. R. A. 640, 49 Am. St. Rep. 93.

It is believed that to “cure green-hides or to poison dry hides” would not, under all circumstances, be a nuisance in fact. The precedents, so far as we are aware, are to the contrary. The vocation of curing or tanning hides is a lawful one when conducted in a lawful manner, and in the eyes of the court is not a nuisance per se, but is of such a nature that it may become a nuisance according to the manner or place of its pursuit. Wood on Nuisances, vol. 2, § 588; State v. Street Commissioners of Trenton, 36 N. J. Law, 283. Inasmuch as it is an occupation which might become offensive owing to its location or the manner in which it is conducted, it is doubtless an appropriate subject for reasonable regulation. This, however, the ordinance under consideration does not.attempt. It inhibits the curing of any green or the poisoning of any dry hide within the city limits. The evidence adduced upon the present trial was to the effect that the manner in which the business was conducted was not the subject of complaint; that disinfectants were freely use'd, and reasonable effort towards cleanliness made; that a great number of hides had been received and shipped by the relator.

The ordinance is not regulatory but prohibitory, and cannot, in the judgment of this court, be upheld.

The relator is ordered discharged.  