Spann v. City of Dallas

• Decision Date: 02 November 1921
• Docket Number: (No. 3090.)
• Parties: SPANN v. CITY OF DALLAS et al.
• Court: Texas Supreme Court

Page 513

235 S.W. 513

SPANN v. CITY OF DALLAS et al.

(No. 3090.)

Supreme Court of Texas.

November 2, 1921.

Rehearing Denied November 30, 1921.

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

Suit for mandamus and for writ of injunction by John R. Spann against the City of Dallas and another. Judgment denying writs affirmed by the Court of Civil Appeals (189 S. W. 999), and plaintiff brings error. Reversed.

Read, Lowrance & Bates, of Dallas, for plaintiff in error.

C. F. O'Donnell, City Atty., Barry Miller, Jas. J. Collins, and Carl B. Callaway, all of Dallas, for defendants in error.

PHILLIPS, C. J.

The question in the case is the validity of an ordinance of the City of Dallas, prohibiting, under penalty, the construction of any business house within what the ordinance denominates a residence district of the City, except with the consent of three-fourths of the property owners of the district, and on the building inspector's approval of the design of the proposed structure.

The ordinance defines a residence district to be any part of the City where there are more dwelling houses than business houses within a radius of 300 feet from the place where any business houses intended for the barter and sale of goods and merchandise of any description or for the conduct of any business, is sought to be constructed.

Any one desiring to erect such a business house at any place within the City outside the fire limits, as designated at the time of the enactment of the ordinance or as may be hereafter designated by ordinance, is by the ordinance required to apply to the Board of Commissioners for a permit for that purpose, showing the location of the proposed building. If the Board is satisfied that there are not more residences than business houses within a radius of 300 feet from the proposed site, "and that the applicant is entitled to such permit," then, under the ordinance, the permit shall issue.

If, however, the site of the proposed business house be within "a residence district," that is, a district containing more residences than business houses within a radius of 300 feet from the contemplated site, there must accompany the application the consent of three-fourths of the property owners owning property within the district. In such event the permit shall issue, provided "that the building for which such permit is granted must be of a design approved by the building inspector."

Where, within "a residence district," there are two or more adjoining business houses which were erected prior to the enactment of the ordinance, and the proposed business house is to be constructed "adjoining, immediately contiguous to or in extension of an existing business house," then the consent of property owners as otherwise required is not necessary.

Violation of the ordinance is made a misdemeanor, subject to a fine of not less than $50.00 nor more than $200.00. Every act done toward the location and erection of a business house without the required permit, is made a separate offense.

The plaintiff owns a lot at the corner of Ross and Fitzhugh Avenues in the City of Dallas, fronting 80 feet on Ross Avenue, and within "a residence district" as defined by the ordinance. It was purchased by him for the purpose of erecting business houses upon it. As a residence lot it was worth at the time of the trial $4,500.00; as a business lot, $8,500.00. The ordinance was not in force at the time plaintiff contracted to purchase the lot in May, 1915. It was not enacted until July 19, 1915. Before purchasing the lot the plaintiff was advised by the City Attorney that there was no law prohibiting its use for store houses, but that one might be enacted. Early in June, 1915, the plaintiff sought a permit for the erection of his houses, but it was refused by the Commissioner of Streets and Buildings. He renewed his effort on July 14, by written application, stating that the proposed store houses were to front on Ross Avenue, to be of brick, one story in height, of artistic design, set back at least ten feet from the property line, to cost approximately $6,500.00, and to be constructed in accordance with the laws of the City. His application was again denied. A few days later the ordinance was enacted.

The suit was one to compel the issuance of a building permit and to restrain the City and its officers from interfering with the plaintiff's erection of store houses on his lot. The ordinance was pleaded as the defense to the action.

A judgment for the defendants was affirmed and the validity of the ordinance sustained by a majority of the Honorable Court of Civil Appeals for the Fifth District (189 S. W. 999), Associate Justice Talbot dissenting from the decision.

The ordinance takes no heed of the character of business to be conducted in the store house which it condemns. It disregards utterly the fact that the business may be legitimate, altogether lawful, in no way harmful and even serve the convenience of the neighborhood. Its prohibition is absolute. No business house of any kind, for the sale of goods of any character, or for the conduct of any business whatsoever, is its command, shall be permitted within "a residence district" without the consent of three-fourths of the property owners of the district, and, in addition, the building inspector's approval of the design of the structure. Even if the necessary consent of the property owners is obtained, and though the building is to be one safe and substantial, yet, according to the ordinance, if its architectural design does not accord with the taste of the building inspector, its construction is no less positively interdicted. No rule, no standard, no regulation of any kind is given whereby the applicant may know to what particular design of building he must conform. If the design, whatever its merits, does not suit the inspector, it is within his uncontrolled power to prohibit the building.

The justification for this far-reaching municipal law, as urged on behalf of the City, is that it is but a rightful exercise of its police power, as conferred by a general charter provision granting it the authority to protect by ordinance "health, life and property," abate nuisances, preserve and enforce "the good government, order and security" of the City, and to protect "the lives, health and property" of its inhabitants.

Passing by the question as to whether the specific power to regulate the location of store houses—limiting rights of property secured to every citizen under the general laws of the State, may be deduced from any such general charter provision, or may not be exercised by a city at all in the absence of express statutory or charter grant (Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; People v. City of Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A. [N. S.] 438, Ann. Cas. 1915A, 292; Clements v. McCabe, 210 Mich. 207, 177 N. W. 722), we will deal at once with what we consider the larger question in the case, namely: Whether under the authority of the police power the citizen may be denied the right to erect, and in effect the right to own, a store house in a residence portion of a city, for the conduct of a lawful, inoffensive and harmless business.

Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right. Therefore a law which forbids the use of a certain kind of property, strips it of an essential attribute and in actual result proscribes its ownership.

The police power is a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort and the welfare of the public. In its nature it is broad and comprehensive. It is a necessary and salutary power, since without it society would be at the mercy of individual interest and there would exist neither public order nor security. While this is true, it is only a power. It is not a right. The powers of government, under our system, are nowhere absolute. They are but grants of authority from the people, and are limited to their true purposes. The fundamental rights of the people are inherent and have not been yielded to governmental control. They are not the subjects of governmental authority. They are the subjects of individual authority. Constitutional powers can never transcend constitutional rights. The police power is subject to the limitations imposed by the Constitution upon every power of government; and it will not be suffered to invade or impair the fundamental liberties of the citizen, those natural rights which are the chief concern of the Constitution and for whose protection it was ordained by the people. All grants of power are to be interpreted in the light of the maxims of Magna Charta and the Common Law as transmuted into the Bill of Rights; and those things which those maxims forbid cannot be regarded as within any grant of authority made by the people to their agents. Cooley, Const. Lim. 209. In our Constitution the liberties protected by the Bill of Rights are, by express provision, "excepted out of the general powers of government." It is declared that they "shall forever remain inviolate," and that "all laws contrary thereto shall be void."

To secure their property was one of the great ends for which men entered into society. The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty—an expression of his freedom, guaranteed as inviolate by every American Bill of Rights.

It is not a...