City of Breckenridge v. McMullen

• Decision Date: 24 November 1923
• Docket Number: (No. 10804.)
• Citation: 258 S.W. 1099
• Parties: CITY OF BRECKENRIDGE v. McMULLEN.
• Court: Texas Court of Appeals

Page 1099

258 S.W. 1099

CITY OF BRECKENRIDGE v. McMULLEN.

(No. 10804.)

Court of Civil Appeals of Texas. Fort Worth.

November 24, 1923.

Appeal from District Court, Stephens County; W. F. Schenck, Judge.

Suit by D. W. McMullen against the City of Breckenridge. Judgment for plaintiff, and defendant appeals. Reversed.

T. Edgar Johnson, of Breckenridge, for appellant.

Benson & Dean and A. O. Arnold, all of Breckenridge, for appellee.

BUCK, J.

D. W. McMullen brought suit in the district court of Stephens county against the city of Breckenridge, its mayor, commissioners, and city secretary, seeking to restrain them from enforcing against him a certain ordinance passed by the board of commissioners, dealing with various matters, and among those with the handling of garbage and creating the office of a licensed garbage officer, and making it an offense for any one but a licensed garbage officer of said city or his assistants "to haul, move, carry, convey or in any way transport along, over, or across any street, road or right of way within said city, any night soil, trash, débris, or any matter which is not valuable." The ordinance provided a penalty of $100 for each day that any one not a garbage officer hauled or transported such described garbage over the streets of the city.

Appellee alleged that for some time prior to the filing of the petition for injunction he had been engaged in the legitimate business of hauling and moving from the premises for various and sundry persons the material designated in and defined in said ordinance as "garbage," and that he had earned $1,200 per year therefrom; that such occupation was the business of plaintiff whereby he made a living for himself and those dependent on him; that said occupation is a legitimate one, and that it is the desire of plaintiff to perform the duties of said business in a legitimate manner; also that this ordinance excluded and prohibited plaintiff from hauling and moving garbage off his own premises; wherefore he prayed that the city of Breckenridge and its officers be restrained from interfering with plaintiff or any of his employés while hauling the materials designated and defined as "garbage." Upon the presentation of the petition, the judge, in vacation, granted the writ as prayed for, but upon final hearing he perpetuated the injunction only so far as to restrain the city and its officers from interfering with the petitioner while hauling "any trash, manure, refuse matter, broken ware, discarded tin, dishwater, slops, swill, boxes, discarded meat, bread stuffs, and fruits of all kinds, whether of value or not, so long as the same is hauled and transported in a careful and prudent-like manner."

The court dissolved the temporary restraining order in so far as it restrained the officers of the city from interfering with the petitioner while hauling and transporting over the streets and alleys of Breckenridge "any night soil, offal, dead fowls, dead cats, rats, and all stale and discarded garbage, the accumulation of which or decomposition of which has become nauseous or produces offensive odors." From this judgment, the defendant city of Breckenridge has appealed.

Appellant has filed its brief in this court, but no brief has been filed by appellee, though he cites some authorities claimed to be in support of his contention in his petition.

No question is raised as to the legal requirements being observed in the passage of this ordinance. It is, in effect, conceded that the ordinance was passed with due regard to such requirements, though there is a contention that the ordinance is invalid because it interferes with the lawful exercise of petitioner's business, claimed to be a legitimate one, and creates a monopoly in favor of the garbage officer designated by the city. It is further claimed that the ordinance is in violation of article 1, § 19, of the Constitution of the state of Texas, which says:

"No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land,"

in that it deprives the plaintiff of his property rights. That the right to pursue a chosen legal occupation and employment is a property right, and that he is entitled to pursue this occupation without the fear of being disturbed and harassed by false arrests and detention and being forced to employ legal advice and counsel, etc.

Ordinarily, a court of equity cannot be invoked to enjoin criminal prosecutions. This is true where the applicant has a plain, adequate, and complete remedy at law. This rule has been applied alike whether the prosecutions or arrests sought to be restrained arose under statutes of the state or under municipal ordinances. This general rule is based upon the principle that equity is concerned only with the protection of civil and property rights, and is intended to supplement, and not usurp, the functions of the courts of law. See cases cited in City of Tyler v. Story, 44 Tex. Civ. App. 250, 97 S. W. 856. It has been held that there are some exceptions to this rule, for instance, where the intervention of equity becomes necessary to protect the franchise of a business corporation. City of Austin v. Cemetery Association, 87 Tex. 337, 28 S. W. 528, 47 Am. St. Rep. 114; City of Atlanta v. Gaslight Co., 71 Ga. 106; Southern Express Co. v. Ensley (C. C.) 116 Fed. 756; and other cases cited in City of Tyler v. Story.

Another exception to the rule is that equity may intervene to restrain a multiplicity or oppressiveness of criminal prosecution. In City of Tyler v. Story, supra, it is said:

"Thus, where some 77 prosecutions were pending under a city ordinance, a court of equity stayed all but one, so the liability of the defendant might be determined without a multiplicity of suits. Third Ave. R. Co. v. New York, 54 N. Y. 159. Also, where complainant was arrested several times under an ordinance for occupying a wharf to which he claimed title, and fined in each case in an amount too small to allow an appeal, equity enjoined further proceedings until claim of title was determined. Shinkle v. Covington, 83 Ky. 420. But to give a court jurisdiction to prevent a multiplicity of suits at law, there must be a right affecting many persons; and, if the right is disputed between two persons only, not for themselves and all others, a bill for an injunction will not lie unless the complainant's rights have been established at law. Chicago, B. & Q. R. Co. v. Ottawa, 148 Ill. 397, 36 N. E. 85; Wallack v. Society for Reformation of Juvenile Delinquents, 67 N. Y. 23."

In the case of Davis v. American Society, 75 N. Y. 362, cited in Greiner-Kelley Drug Co. v. Truett, 97 Tex. 377, 79 S. W. 4, it was alleged that plaintiffs were engaged extensively in the business of slaughtering hogs in the city of New York, and that they conducted their business in the most approved, humane, and painless manner. They further alleged that Bergh, the president of the Society, came to their place of business and announced to them and their employés that they must discontinue slaughtering hogs by the methods then used, and thereupon arrested the plaintiff Crane and one of such employés for alleged cruelty to animals, and threatened that he would return in one week, and, if he then found the plaintiffs or others carrying on said business in the same way, he would arrest all persons engaged in it, and stop the business, as often as he found plaintiffs conducting it in that way. The New York court held that Bergh was acting under a valid law and regular authority, and that he had the right to make the threatened arrests if the plaintiffs were actually engaged in violating the law to prevent cruelty to animals. The only question involved for contestation was whether, as a matter of fact, they were guilty or innocent of such violation, and the court held that a court of equity could not be invoked to determine that question. So, in Greiner-Kelley Drug Co. v. Truett, supra, it was held that a court of equity would not issue an injunction to restrain criminal prosecutions of a wholesale druggist who was selling liquors to retail druggists in the ordinary course of trade. A local option law prohibiting the sale of intoxicating liquors in Grayson county having been passed, and the drug company, being domiciled in that county, and engaged in selling drugs by wholesale, instituted this proceeding to enjoin the county attorney of Grayson county from prosecuting its salesmen for sales of alcohol as a drug to retail druggists in the ordinary course of plaintiff's business. The court decided this issue without a determination of whether such act...