Opinion
No. 4604.
December 7, 1933. Rehearing Denied January 4, 1934.
Appeal from District Court, Lamar County; Newman Phillips, Judge.
Suit by the Sinclair Refining Company and others against the City of Paris and others. From an interlocutory order denying their application for a temporary injunction, plaintiffs appeal.
Order affirmed.
The appeal is from an interlocutory order made by the district judge after notice and hearing denying the appellants a temporary injunction, sought upon petition therefor.
The Trustees of the First Presbyterian Church, U.S. of Paris, Tex., acting with full authority to do so, on March 18, 1933, executed a written lease to the Sinclair Refining Company, a corporation, of a certain lot 75 feet by 109 feet, owned by the church and situated on the east side of South Main street and on the south side of Sherman street in the corporate limits of the city of Paris. The lease was to be "for and during the full period of ten years." The instrument stipulates, namely: "Lessor hereby gives and grants to lessee the right and license to enter upon the above described premises on the date on which lessee finally approves lessor's title to the leased premises to erect and install a service station thereon and to do all things on said premises which may be necessary to be done in order to complete an oil and gasoline service station thereon." The lessee, the Sinclair Refining Company, incorporated under the laws of the state of Maine, has a permit to do business in Texas, and is marketing and distributing gasoline, lubricating oils, and other products of petroleum oil. On March —, 1933, the date of the month not given, the church, acting through an authorized officer, presented to the city council of the city of Paris a written application "for permit for the Sinclair Refining Company to erect a business building to be used as service station" on the leased premises. The application stated, "The business to be conducted in same is selling of gasoline, oils, washing and greasing of cars," and "plans and specifications of building to be erected are hereby attached." On March 30, 1933, the representative of the church and an agent for the Sinclair Refining Company both appeared before the city council in session, as is reflected by the minutes of the city council, in prosecution of the written application for a building permit. As recited in the minutes of the city council, "After a hearing from both of the men the matter was referred to Public Improvement Committee, and to the Attorney for legal advice, and to report back on Monday night, April 3, 1933." On April 3, 1933, the city council met, and the minutes of the meeting show that the agent at Paris for the Sinclair Refining Company "presented a written application for a permit to erect a filling station on corner of Sherman and Maine Streets" (the leased premises), and that a protest to the application was presented signed by numerous citizens and property owners in the district of the premises. The minutes recite that: "After a hearing on both sides in regard to the filling station, it was moved a notice of public hearing be given through the press stating the date to be April 10, 1933, at 7:30 o'clock P. M. The motion was carried unanimously." On April 10, 1933, after notice, the public hearing was held by the city council, and the hearing was attended by the applicants for the building permit and the contestants thereto, and attorneys representing both sides. And "after hearing from both sides and from several witnesses the permit from the City was denied by unanimous vote of the City Council." The evidence offered in opposition to granting the building permit was to the effect that the erection and operation of a service station of the kind in a residential district will be detrimental to the comfort and convenience of the people residing in the immediate vicinity of the station, and will decrease the value of their property, and will be an interference with traffic on the adjacent streets and a menace to the safety of the public using such streets. The site of the proposed station is in the heart of an exclusive residential section of the city. The leased ground is outside of the established fire limits of the city.
On August 18, 1933, the Sinclair Refining Company entered into a written contract with R. B. Butler, a contractor, resident of Bryan, Tex., "for the erection and completion of a service station" on the above-mentioned leased premises, to be according to the plans and specifications furnished by the Sinclair Refining Company and made a part of the contract. The contractor, R. B. Butler, acting through his superintendent of construction, made an oral application to the city engineer, who was also the building inspector of the city, for a permit to erect a filling station building, and the city engineer refused it upon the statement, as the superintendent testified, that "he had been instructed not to by the City Council." According to the engineer: "I told him I could not give him the grades until the permit was issued — I had no authority to do so." Thereafter, on August 25, 1933, the superintendent, acting in the name of the contractor, R. B. Butler, filed with the city engineer the following written application duly signed: "Dear Sir: We wish to make application for a permit to erect a Sinclair type No. 1 service station to be erected at the corner of South Main and Sherman Streets in the City of Paris. A complete set of plans and specifications are accompanied with this application." When this written application was delivered to the city engineer, the city engineer stated to the superintendent, as the superintendent testified: "He told me when I made the written application, (as) he told me before, that he could not issue the permit, the City Council would have to do it." The city engineer did not question the sufficiency of the plans and specifications to meet the building regulations of the city of Paris. The city engineer testified: "Q. So far as you have examined the plans and specifications for the construction of this station there is nothing in the plans and specifications that would prevent you from granting a permit under the code of the City? A. No, sir." The contractor's superintendent testified that he and the contractor at all times stood ready, able, and willing to comply with the building ordinance, providing a code regulating the construction of all buildings in the city of Paris. It appears that on August 21, 1933, after the oral application for building permit was denied, the superintendent ordered the delivery of building material on the leased ground and began excavation of the earth to lay the foundation of the station building. After a full day's work as stated on the premises was finished, the superintendent was arrested and placed under bond on a criminal complaint charging him with violation of the city building ordinance. As he testified, the mayor told him: "If you continue the construction of the station you would be arrested every day by the City."
On September 1, 1933, the Sinclair Refining Company, and the contractor, R. B. Butler, filed suit naming as defendants the city of Paris, its mayor, the members of the city council, the chief of police, and the city engineer. After setting up the facts as substantially stated above, the petition charges: "That plaintiffs have fully complied with all applicable and valid ordinances and regulations of the City of Paris, including requirements set forth in Chapter 6 of the Revised Ordinances of the City of Paris relating to application for and issuance of building permits by the City Building Inspector, and have performed and have offered to perform as aforesaid the requirements of all applicable valid ordinances and regulations of the City of Paris, but the Building Inspector did and continues to refuse to issue to plaintiff a permit for the construction of such service station. That the action of defendants is and has been arbitrary and without legal justification or excuse and without probable cause in this; the said defendants have and are refusing to issue such permit by reason of an invalid and unconstitutional ordinance of the City of Paris known as Ordinance No. 854, an exact copy of which is attached hereto and marked Exhibit A. Said ordinance No. 854 is unconstitutional, illegal and void, in that it deprives these plaintiffs, and particularly the Sinclair Refining Company, of its property and the use and enjoyment thereof without due process of law and violates the property rights and liberties guaranteed said plaintiffs under the Constitutions of Texas and the United States."
Actual and exemplary damages were sought. The prayer reads: "Wherefore, plaintiffs pray that this honorable court cause to be issued its writ of injunction against the defendants and each of them that said defendants be enjoined and restrained from interfering in any way with the construction by plaintiffs of the said service station, and be restrained and enjoined from arresting or causing to be arrested or molesting in any way plaintiffs' workmen and employees engaged in the construction of said service station; that this court issue its mandatory injunction requiring and ordering W. F. Hicks, Building Inspector of the City of Paris, to issue to the plaintiff R. B. Butler, a building permit for the erection and construction of said service station in conformity with the plans and specifications on file with said Building Inspector; that defendants be cited to answer this petition and that on final hearing hereof said injunction be made permanent; and that plaintiffs have judgment for their damages against defendants, jointly and severally, in their individual capacities as well as officials and representatives of the City of Paris, as herein alleged; and that plaintiffs have their judgment for general relief and for costs of suit."
The defendants answered, specially denying that they acted arbitrarily in refusing the application of the plaintiffs for a building permit for erection of a filling station and alleged, stated in effect, that their action was authorized by Ordinance No. 854, which was a constitutional and valid ordinance; that the site of the proposed filling station was in a district exclusively residential, and the operation of a filling station would reduce the market value of the homes; that the operation of a filling station would constitute a nuisance in that district. It was further specially alleged in the answer: "Defendants further allege that in the operation of a filling station such as that contemplated by plaintiffs it will be necessary to store hundreds of gallons of gasoline, and that plaintiffs have not complied with Section 195, page 64 of the Revised Ordinances of the City of Paris of the year 1917, which prohibits the storage of more than two barrels of kerosene oil or oil compounds which are explosive, or more than fifty gallons of liquid of a combustible nature, unless in a fire-proof magazine, established and recognized by resolution of the City Council."
The prayer of the answer reads: "Wherefore, defendants pray that the plaintiffs' application for a temporary injunction be refused, and that a temporary injunction be issued restraining plaintiffs and each of them from the further prosecution of the work of building said filling station during the pendency of this suit, and that upon final trial hereof said injunction against plaintiffs be made permanent, and they pray for general and special relief."
The trial judge set September 8, 1933, as the day for hearing the plaintiffs' application for temporary injunction and ordered notice to defendants, and upon that day heard the evidence, and then entered the order: "It is ordered, adjudged and decreed that the plaintiffs' application for a temporary Injunction be and the same is hereby denied and refused; and upon the Court having refused the plaintiffs' application, the counsel for defendants stated that they would not insist at this time on action by the court on their prayer for temporary injunction against the plaintiffs, and action upon the defendants' prayer for such temporary injunction is reserved."
Ordinance No. 854 appears in the record. It is too lengthy to copy in full in this statement. The caption of the ordinance reads: "An ordinance regulating and controlling the granting of permits for the erection of certain businesses within the residence districts of the City of Paris, defining a residence district, providing for a Board of Appeals or Review, prescribing a penalty and declaring an emergency." A "residence district" is defined; and a "business building" is defined. Section 3 requires an application to be made and filed with the city secretary for erection of a business building or the operation of a business in a residence district. A hearing after notice with the right of appeal is given the applicant in case "it should appear to the Mayor and City Council that the building when constructed, in view of the purpose for which the proposed building is to be used, or the proposed business to be engaged, is likely to become hazardous in fire risk — would seriously offend morals, good order, convenience, comfort, prosperity and general welfare of the inhabitants adjacent." It is provided: "Section 5. That no person shall establish, maintain or conduct in a residence district of the City of Paris any of the hereinafter described businesses without first making application to the City Council and obtaining permit therefor. * * * That the businesses herein referred to are as follows: Hospitals, insane asylums, livery stables, steam laundries, public garages, gasoline or oil filling stations" etc. "When an application is filed the City Council is required to order a public hearing, by giving public notice in the official newspaper, and the City Secretary is required to serve notice on all persons owning property within the residence district. At the conclusion of the hearing the City Council is required to enter such final order as may be warranted by the facts." Appeal lies to the Board of Appeals. This ordinance was passed after the date the Zoning Law (Acts of 1927, c. 283 [Vernon's Ann.Civ.St. arts. 1011a to 1011j]) became effective.
Chapter 6 of the Building Ordinance adopts the "building code published by the Texas Fire Insurance Commission of Austin." The building code referred to is in the record. It regulates the erection of a building within the defined fire limits of the city and requires a permit to do such work to be obtained from the city building inspector. The inspector is authorized to refuse to "issue such permit, if in his judgment, the proposed new location of the building would seriously increase the fire hazard of the surrounding buildings."
The city of Paris was granted a charter by the Legislature, Act of 1905, Special Laws, c. 6, p. 31. Section 273 provides that judicial notice shall be taken of the act, and it is therefore unnecessary to set out sections of the charter. Section 6 particularly confers corporate powers, viz.: "Section 6. Said corporation of the City of Paris may pass and establish such acts, laws, rules, regulations and ordinances not inconsistent with the constitution of this State, as shall be advisable or needful for the government, interest, welfare, sanitation, health and general good of said corporation and of the inhabitants thereof," etc. Section 229 particularly authorizes the city council by suitable ordinances, namely: "To do all acts and to make all regulations which may be necessary and proper for the promotion of health or the suppression of disease; to compel the owners or occupants of any unwholesome house or place to cleanse, remove or abate the same, as may be necessary for the health, comfort and convenience of the inhabitants of the City," etc. Section 195 of the Revised Ordinances of 1917 reads: "It shall be unlawful for any person, firm or corporation, within the limits of the City to keep on hand for sale or otherwise, in any one house, store, shop or building, more than fifty pounds in all of gun or blasting powder, or more than two barrels in all of kerosene oil or other oil or compound which is explosive, or more than fifty gallons of turpentine, oil or vitriol, or other liquid of a combustible nature, unless in a fire-proof magazine, established and recognized by resolution of the City Council." There appears no evidence of compliance by appellants with the terms of this last-mentioned ordinance.
Cantey, Hanger McMahon, of Fort Worth, for appellants.
A. P. Dohoney and Long Wortham, all of Paris, for appellees.
There is involved in the controversy the right of the appellants to have the relief allowed of an interlocutory order restraining public city officials from acts complained of in the certain matters of building a service station for motor vehicles and the pursuit of business therein on particular premises in the city of Paris. The appellants claim that the temporary restraining order should have been allowed, because the refusal of the city officials to grant the permit to construct the filling station and pursue the business on the particular premises was unjustified: First, in the enforcement of a valid city ordinance in respect thereto; second, in the exercise of the police power of a municipal corporation in the regulation and control of such things as become hurtful to the safety and welfare of their inhabitants, or a public nuisance.
It becomes unnecessary to presently consider the phase of the case of whether the action of the city officers was in bad faith or arbitrary or amounted to gross abuse of authority. It may be presumed, in the view of the statement in the brief, that there was evidence justifying the conclusion of fact by the trial judge, as involved in the order entered, that the city officials did not act in a manner distinctively arbitrary, and in clear abuse of authority, in refusing to grant the permit to construct the building upon the leased premises. The position of appellants on appeal is thus stated: "If Ordinance No. 854 be valid, then for purposes of this appeal, it may be conceded that the City Council proceeded in strict conformity with the Ordinance and heard evidence which in the unbridled discretion of the members of the City Council was deemed sufficient to justify the refusal of the application. If, on the other hand, the ordinance is invalid, as claimed by us, then appellants are absolutely entitled to the equitable relief prayed for. * * * Much evidence was offered by the appellees which they will claim supported their action in refusing the permit on the ground that the construction of the station and the operation thereof affected the people living in and affected the value of their residences in that district. This might be a material inquiry were we (appellants) attempting to enjoin arbitrary action under a valid ordinance, but it is not a material inquiry where we are seeking equitable relief against any action at all under an invalid ordinance."
It is claimed by appellants the ordinance in evidence, appearing as Ordinance No. 854, is the same in all material respects as the one set out in the case of City of Wichita Falls v. Continental Oil Co. (Tex.Civ.App.) 5 S.W.2d 561, and which was held invalid in part in 42 S.W.2d 236. As the case is reported in 5 S.W.2d 561, supra, the Court of Civil Appeals reversed the judgment of the district court upon the ground that the ordinance in suit was entirely valid and not legally void. The Commission of Appeals, in 42 S.W.2d 236, supra, held to the contrary of the Court of Civil Appeals, and sustained the judgment of the trial court awarding a permanent injunction against the plaintiff in favor of the defendant. The ruling of the Commission of Appeals was, in effect, that the right of the city to prevent the erection of the business establishment could not be rested on the city ordinance simply on account of its illegality as and when applied to certain kinds of buildings and business, and that the judgment of the district court should be affirmed in view of the conclusion of fact by the trial court that the property owners would not be affected by the erection and operation of the station as a nuisance, public or private. It was concluded by the court that the ordinance was invalid as respects the erection of a structure and the pursuit of business not constituting a nuisance. Assume, then, for the moment, the invalidity, as urged, of Ordinance No. 854 in so far as attempting to regulate and control subjects not affecting safety, health, and general welfare of the community, the invalidity of the ordinance on such particular grounds and subjects, simply, would not necessarily warrant setting aside the trial judge's interlocutory order. The ordinance might be legally valid as purely a police regulation. Quoting for illustration from opinion in case of City of Fort Worth v. Gulf Refining Co. (Tex.Com.App.) 55 S.W.2d 792, 793:
"It is quite true that the operation of a gasoline filling station is a necessary and lawful business. The nature of the business and the method of its operation is such, however, as to bring it clearly within the general police power of a city to regulate. In the first place, these stations store and distribute highly explosive and inflammable products in such proximity to the streets and sidewalks and adjacent property as to constitute a danger and menace to life and property in the immediate vicinity. Again, the operation of gasoline filling stations reduces parking space upon the streets and otherwise tends to cause traffic congestion. Of necessity the city must by proper regulation keep open traffic lanes in order that drive-in stations may operate. The existence of these conditions furnishes a substantial basis for the exercise of the city's general police power. Standard Oil Co. v. City of Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856; Pierce Oil Corporation v. Hope, 248 U.S. 498, 39 S.Ct. 172, 63 L.Ed. 381; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; McKelly v. City of Murfreesboro, 162 Tenn. 304, 36 S.W.2d 99; Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223.
"While the direct question involved has never been before our Supreme Court, it has been presented to several Courts of Civil Appeals. It has been rightly decided by such courts that the operation of a gasoline filling station is a business of such a nature as to render it subject to reasonable regulation under the general police power accorded to cities of this state. City of San Antonio v. Robert Thompson Co., Inc. (Tex.Civ.App.) 23 S.W.2d 796; City of San Antonio et al. v. Humble Oil Refining Co. (Tex.Civ.App.) 27 S.W.2d 868; Scott et al. v. Champion Bldg. Co. et al. (Tex.Civ.App.) 28 S.W.2d 178; McEachern v. Town of Highland Park et al. (Tex.Civ.App.) 34 S.W.2d 676. The San Antonio ordinance was also upheld by the Circuit Court of Appeals in the case of City of San Antonio v. Rubin, 42 F.2d 107."
The legal rights of appellant to pursue business of operating a filling station on the particular lot is not so certain, in point of fact as well as in point of law, as to warrant setting aside the conclusion of the trial judge in respect thereto. The controversy is one best determined upon final trial and judgment, and not through means of an interlocutory order, as a ruling, as it might be, would finally determine the suit. In accordance with the general rule, the matter which may be considered upon the review of an interlocutory order granting or refusing an injunction is restricted to the propriety of the order. 24 Tex.Jur. § 250, p. 307; Coffee v. Bank (Tex.Civ.App.) 38 S.W.2d 187; Neill v. Johnson (Tex.Civ.App.) 234 S.W. 147. An interlocutory injunction is a remedy provisional and intermediate only, and ordinarily it will not be granted where its issuance would have the effect to practically dispose of the whole case and of granting all the relief that could be obtained by a final decree. 32 C.J. § 2, p. 20; 24 Tex.Jur. § 99, p. 140.
The order is affirmed.