Board of Adjustment of City of Fort Worth v. Stovall

• Citation: 216 S.W.2d 171
• Decision Date: 05 January 1949
• Docket Number: No. A-1754.,A-1754.
• Parties: BOARD OF ADJUSTMENT OF CITY OF FORT WORTH v. STOVALL et al.
• Court: Supreme Court of Texas

Page 171

216 S.W.2d 171

BOARD OF ADJUSTMENT OF CITY OF FORT WORTH v. STOVALL et al.

No. A-1754.

Supreme Court of Texas.

January 5, 1949.

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

Certiorari proceeding by Philip Stovall and others against Board of Adjustment of the City of Fort Worth and others to review a decision of Board of Adjustment granting a permit to build outdoor theater on designated tract of land. Appeal by Board of Adjustment from judgment of district court setting aside Board's order allowing theater to be built was dismissed by the Court of Civil Appeals, 211 S.W.2d 303, and the Board of Adjustment brings error.

Judgment of Court of Civil Appeals reversed and cause remanded to that court.

R. E. Rouer, City Atty., Heard L. Floore and Sam A. Woodward, Asst. City Attys., all of Fort Worth, for petitioner.

M. Hendricks Brown, Wardlaw & Freeman and A. L. Wardlaw, all of Fort Worth, for respondents.

HART, Justice.

The respondents, Philip Stovall et al., filed this suit in the district court of Tarrant County under the provisions of Article 1011g, Vernon's Annotated Civil Statutes, to review the order of the Board of Adjustment of the City of Fort Worth, granting a permit to Interstate Circuit, Inc., to build an outdoor moving picture theater, as a nonconforming use of property zoned for two-family dwellings. The Board of Adjustment and its members, as well as the applicant and its agents, were named as defendants. Upon a trial, the district court rendered judgment setting aside the order of the Board of Adjustment, but dismissing the suit as to the defendants other than the Board of Adjustment without prejudice. Only the Board of Adjustment excepted to the judgment and gave notice of appeal.

In the Court of Civil Appeals the appellees, Philip Stovell et al., filed a motion to dismiss the appeal on the ground that the appellant, the Board of Adjustment, had failed to file an appeal bond. This motion was overruled, but upon consideration of the record the Court of Civil Appeals upon its own motion dismissed the appeal upon the ground that the Board of Adjustment had no appealable interest in the subject matter of the controversy. Tex.Civ.App., 211 S.W.2d 303.

This court has not directly passed upon the question presented here, but in City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, a writ of error was granted upon the application of the Board of Adjustment of the City of San Angelo and it was necessarily assumed that the Board of Adjustment was a proper party to the suit and that it had an interest in the litigation sufficient to give it the right to prosecute an appeal. In other cases it has likewise been assumed that boards of adjustment are proper parties. See Harrington v. Board of Adjustment, Tex.Civ.App., 124 S.W.2d 401, writ of error refused; Board of Adjustment v. Jones, Tex.Civ. App., 153 S.W.2d 510; Driskell v. Board of Adjustment, Tex.Civ.App., 195 S.W.2d 594, writ of error refused, n. r. e. Upon consideration of the question when directly raised in this case, we have concluded that our assumption in the San Angelo case was correct and that the Court of Civil Appeals erred in dismissing the appeal.

As the opinion in the San Angelo case points out, Articles 1011g through 1011j are a virtual adoption of a standard zoning statute sponsored by the Federal Department of Commerce. In providing that the review of the orders of the board of adjustment shall be by certiorari, the statute differs from the majority of Texas statutes prescribing the procedure for the review of orders of administrative boards. These statutes usually provide that a petition shall be filed against the board or commission as defendant and expressly authorize appeals. See for example, Articles 911a, § 17, 911b, § 20, 911d, § 14, 6049c, § 8, 6059, 6066a, § 9, and 6453, Vernon's Ann. Civ.St., relating to the review of orders of the Railroad Commission; Article 7567, Vernon's Ann.Civ.St., relating to the review of orders of the Board of Water Engineers; and Article 666-14, Vernon's Ann.P.C., relating to the review of orders of the Liquor Control Board.

However, the review authorized by Article 1011g, although designated by a different name and involving somewhat different procedure, is not essentially different in nature from the review contemplated by the other statutes we have referred to. It was held in the San Angelo case that the review by certiorari under Article 1011g is broader than under the common-law certiorari, but the court does not undertake to substitute its discretion for that of the board, and merely determines whether on the whole record the board abused its discretion. Under other statutes, where essentially the same kind of review is authorized, the right of a board or commission to appeal from judgments nullifying its orders has apparently never been questioned in the numerous cases in which boards or commissions have prosecuted such appeals. Where a suit was brought against the State Comptroller to set aside his order cancelling a liquor license, it was directly held that the Comptroller had the power to appeal from an adverse judgment under general statutes allowing appeals in civil cases, although no statute specifically granted the right of appeal in the particular kind of case there involved. Lane v. Hewgley, Tex.Civ.App., 155 S.W. 348. This holding was reaffirmed by the same court in a later appeal, Lane v. Hewgley, Tex. Civ.App., 156 S.W. 911, at page 912, in which the court said:

"We conclude, as in our former opinion, that this cause is a civil case, and that this court has appellate jurisdiction over it. We cannot believe that it was ever contemplated that the district court should be vested with the authority to set aside and render nugatory the acts of the Comptroller exercised in the control and regulation of the liquor traffic, or have the power given him, on the other hand, to sustain the actions of that official, and appellate courts have no revisory powers over his judgment and decrees."

In Article 1011g there is no designation of the persons who shall be made defendants, but the plaintiffs in the district court in the present case made the Board of Adjustment a party defendant, and we think that they were correct in doing so. Under a comparable statute, Article 734a, § 22-A, Vernon's Annotated Penal Code, providing for appeals from orders of the Board of Barber Examiners, it has been assumed that the Board is a proper defendant, although the statute does not say who shall be made parties. See Lackey v. State Board of Barber Examiners, Tex.Civ.App., 113 S.W.2d 968; see also 42 Am.Jur. 679, "Public Administrative Law", Sec. 239.

In proceedings of this kind, the board represents the public interest in the proper enforcement of the particular law or regulation involved. In zoning cases, the public is properly interested in the granting or withholding of permits for nonconforming uses. Article 1011g authorizes the delegation of functions to boards of adjustment in the following terms:

"Such local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this Act may provide that the said board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained."

The ordinance of the City of Fort Worth creating the Board of Adjustment, and under which it claims authority to act in this case, provides in part as follows:

"Jurisdiction: The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made...