Kemp Hotel Operating Co. v. City of Wichita Falls

• Decision Date: 31 March 1943
• Docket Number: No. 2457-8038.,2457-8038.
• Citation: 170 S.W.2d 217
• Parties: KEMP HOTEL OPERATING CO. et al. v. CITY OF WICHITA FALLS et al.
• Court: Texas Supreme Court

170 S.W.2d 217

KEMP HOTEL OPERATING CO. et al. v. CITY OF WICHITA FALLS et al.

No. 2457-8038.

Commission of Appeals of Texas, Section A.

March 31, 1943.

Rehearing Denied April 28, 1943.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by the Kemp Hotel Operating Company and others against the City of Wichita Falls, L. B. Green, and others to enjoin defendant city's law enforcement officers from arresting or molesting plaintiffs and defendant Green from coming on plaintiffs' premises or interfering with their business on ground of invalidity of a city garbage disposal ordinance. A judgment granting an injunction was reversed and a judgment dissolving the writ rendered by the Court of Civil Appeals, 162 S.W.2d 150, and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

Bert King, Harold Jones, John Davenport, and Sam B. Spence, all of Wichita Falls, for appellants.

Thelbert Martin, Leslie Humphrey, and T. A. Hicks, all of Wichita Falls, for the City.

H. W. Fillmore and B. D. Sartin, both of Wichita Falls, for Greene.

HICKMAN, Judge.

The petitioners are in two groups. One group will be referred to collectively as restaurant keepers and the other group as garbage haulers. As plaintiffs they all joined in an action in the trial court seeking to enjoin the law enforcement officers of the City of Wichita Falls from arresting or molesting them and seeking to enjoin respondent L. B. Green from coming upon their premises or in any way interfering with their business. The theory upon which the suit was brought and prosecuted was that a certain ordinance of the City of Wichita Falls providing for gathering and disposing of garbage was void and for that reason prosecution could not be based thereon. The trial court granted the injunction as prayed for, decreeing that the ordinance was void and enjoining the officers of the city from arresting any of the plaintiffs for any violation of the ordinance or any part thereof, and further enjoining L. B. Green, with whom the city had contracted for the removal of garbage, from interfering in any way with the food products of the plaintiffs or from going upon the premises of the plaintiffs. Upon appeal the judgment of the trial court was reversed and judgment was rendered dissolving the writ of injunction and upholding the validity of the ordinance. 162 S.W.2d 150.

The petition attacked the ordinance upon many grounds but, under our view of the applicable principles of law, they need not be recited. The City of Wichita Falls is a home rule city operating under R.C.S., Title 28, Chap. 13, Art. 1165 et seq., Vernon's Ann.Civ.St. art. 1165 et seq. Section 121 of its charter prescribes the requisite steps to be taken for the granting of a public utility franchise and those steps were admittedly not taken in the enactment of the ordinance in question. It appears that the requisite steps for the enactment of ordinances generally were taken, but not the special steps prescribed by Section 121. It is stated in the briefs that the trial court condemned the ordinance as a whole on the ground that same granted such a franchise to L. B. Green and the principal question considered in the opinion of the Court of Civil Appeals was whether or not that conclusion was correct. The petition did not allege that a franchise was granted; neither did it refer to a franchise or to the provisions of Section 121. But we need not take notice of this apparent defect in the pleadings, because the question is not raised and further, because our opinion will rest upon another ground. One of the principal grounds urged by the respondents in the Court of Civil Appeals for the reversal of the trial court's judgment was that no vested property rights of the plaintiffs were involved, and that they were therefore without authority to maintain the action. Our opinion will rest upon that ground.

The ordinance in question is No. 1326 and the amendment thereof is No. 1332. Ordinance No. 1326 was passed and approved on July 21, 1941, and ordinance No. 1332 was passed and approved on November 3, 1941. Such ordinance, as amended, is a comprehensive ordinance relating to the general subject of gathering and disposing of garbage within the City of Wichita Falls. It requires occupants of residences and other buildings to provide garbage cans and receptacles for refuse and rubbish, specifying the kind of receptacles required. It defines wet and dry garbage. It divides the City of Wichita Falls into zones and fixes charges for the collection and disposal of trash and garbage in such zones, having varying rates for varying types of buildings. It provides that:

"The Board of Aldermen may enter into a contract with some suitable person or persons, firm or corporation, for the removal and disposal of said garbage and refuse, and such contract to continue in force for a period of not less than five years, provided such contractor or garbage collector shall furnish a good and sufficient bond of not less than Fifteen Thousand Dollars ($15,000.00) by a good and solvent surety company, conditioned for the faithful performance of such contract and all the requirements of this ordinance."

It then provides that any person or persons, firm or corporation to whom such contract is let shall provide twelve trucks, to be equipped from a sanitary viewpoint with the most modern and standardized bodies particularly suited to the business. It further provides that such contractor shall assume all responsibility of the city as to dump ground. It repeals all ordinances and parts of ordinances in conflict therewith and further provides that, should any section, paragraph, sentence, clause or phrase thereof be declared unconstitutional or invalid for any reason, the remainder of said ordinance shall not be affected thereby....