Opinion
No. A-1874.
Decided October 27, 1948.
Direct appeal from the District Court of Potter County, Texas, to the Supreme Court.
As originally filed in the district court, this was a suit by Fred Teichman against Ben McGraw and others seeking an injunction to restrain them from constructing a commercial building on property adjacent to that of plaintiff's, the erection of which they had commenced under a building permit issued to them by the City of Amarillo Engineering Department. Plaintiff, Teichman, among other things, alleged that said building would be in violation of an order of the Zoning Adjustment Board of said city, which had designated this portion of the city as residential, for private residences and apartments. The trial court issued a temporary injunction and defendant McGraw, under Rules 385 and 499a has brought a direct appeal to the Supreme Court.
Appeal dismissed.
Riley Strickland, of Amarillo, for appellant.
The Supreme Court has jurisdiction of this case under Rule 499a (b) because the validity of a statute of this State, to-wit: Article 1011g R.C.S. and the validity of an administrative order issued under said statute are involved. Washington v. City of Dallas, 159 S.W.2d 579; Glenn v. Dallas County Bois D Arc Island Levee Dist., 268 S.W. 452; City of San Angelo v. Boehme Bakery, 190 S.W.2d 67.
J.L. Bagwell, of Amarillo, for appellee.
F.C. (Fred) Teichman, plaintiff in a suit filed in the 47th District Court of Potter County, Texas, against Ben McGraw, procured the issuance out of that court of a temporary injunction enjoining McGraw, his agents and employees, from further proceeding with the erection of a business building on a lot admittedly within an area theretofore zoned by the City of Amarillo as a residential and apartment area. McGraw, under the purported authority of a building permit issued to him by the Amarillo Board of Adjustment, had begun construction of the proposed building when the writ of injunction was served on him. The interlocutory order recited as the basis for its issuance the alleged use of unlawful authority of the Board of Adjustment, "in and for the City of Amarillo, Texas," in issuing the permit. (Emphasis added). It appears from the foregoing statement, the facts of which are reflected by the transcript of the proceedings below, that the agency which issued the permit is nor a state board or commission, but is a city board.
The cause is before us on appeal by McGraw from the action of the district court in issuing the temporary injunction. We are confronted at the outset with the question of jurisdiction to entertain the appeal, which appellant McGraw contends he is entitled to prosecute directly to this Court.
The contention is overruled. No "administrative order issued by a state board or commission" is involved in the suit; nor is a question of "the constitutionality or unconstitutionality of a statute," involved. This Court is therefore without jurisdiction to hear the cause on direct appeal, and it should be dismissed. Art. 1738a, Vernon's Ann. Civ. St.; Rules of Civil Procedure, Rule 499-a, Sec. b. It is accordingly so ordered.
Opinion delivered October 27, 1948.
No motion for rehearing filed.