City of Brownsville v. Fernandez

• Decision Date: 13 March 1918
• Docket Number: (No. 5992.)
• Citation: 202 S.W. 112
• Parties: CITY OF BROWNSVILLE et al. v. FERNANDEZ.
• Court: Texas Court of Appeals

202 S.W. 112

CITY OF BROWNSVILLE et al. v. FERNANDEZ.

(No. 5992.)

Court of Civil Appeals of Texas. San Antonio.

March 13, 1918.

Appeal from Cameron County Court; H. L. Yates, Judge.

Action by Jose Fernandez against the City of Brownsville and others. From an order granting temporary injunction, defendants appeal. Reversed, and cause remanded.

Amos Rich, of Brownsville, for appellants. E. T. Yates, of Brownsville, for appellee.

SWEARINGEN, J.

This action was brought in vacation by petition to the county judge in chambers, presented on August 25, 1917, by Jose Fernandez, alleging that he is a citizen of the state of Texas; that he had taken all of the necessary steps under the law to procure a retail liquor dealer's license to pursue the business of a retail liquor dealer in a storehouse located on lots 11 and 12, in block 57, in the city of Brownsville; that the city of Brownsville was incorporated under the general laws of the state of Texas in the year 1885, and that during the year 1915, at an election held for that purpose, adopted a new charter under the laws of the state of Texas passed in 1913, authorizing cities of more than 5,000 inhabitants to adopt or amend their charters; that defendants A. A. Browne, C. H. More, R. B. Rentfro, W. H. Putegnat, and E. C. Garcia are the duly elected commissioners of said city; that the other defendants named in said petition are officers of said city duly appointed as provided by said charter; that on October 20, 1916, an ordinance was enacted by the city of Brownsville establishing a saloon district in the city of Brownsville; that the location of plaintiff's saloon is outside of said saloon district, and that said ordinance establishing a saloon district is void and unreasonable in that it does not provide a penalty to secure its enforcement; that the charter of the city of Brownsville does not confer upon said city power to enforce said ordinance; that the charter of the city of Brownsville provides a penalty not to exceed $200 for violation of its ordinances; that said established district does not include all of the business section of said city; and that it includes blocks having more residence houses than business houses and leaves out blocks that have more business houses than residence houses.

Plaintiff prays for an injunction to restrain the city officers of the city of Brownsville from interfering with plaintiff and for writ of mandamus to compel the city manager, F. H. Williams, or other officers, to issue to him an occupation tax receipt and a permit to pursue his business on lots 11 and 12, in block 57, as a retail liquor dealer.

On August 25, 1917, the court made an order in chambers requiring all of the defendants to appear on August 29, 1917, to show cause why plaintiff should not be granted his occupation tax receipt and license as prayed for and to show cause why plaintiff should not be granted his injunction and mandamus as prayed for and provided the character of notice to be served. At the request of the defendants this hearing was reset for September 3, 1917, and on September 5, 1917, after hearing evidence, an order was made and entered by the court declaring the ordinance void and unreasonable and granting the plaintiff's prayer for injunction and for writ of mandamus and further ordered the clerk of the county court to not issue said writs until this appeal should have been passed upon by the Court of Civil Appeals of the Fourth supreme judicial district of San Antonio, Tex.

Appellee's petition for injunction and mandamus alleges that plaintiff is a resident of Cameron county, Tex.; that C. H. More, R. B. Rentfro, W. H. Putegnat, A. A. Browne, and E. C. Garcia are the commissioners of said city, Amos Rich is its attorney, F. H. Williams is its business manager, Elmores Grider is its tax collector, Santiago Garza is its secretary and clerk, and W. B. Linton, Henry Gordon, Francisco Villareal, Joaquin Trevenio. Fred Tate, Roy H. Weller, Manuel Flores, Pauline Ramos, Emelio Munez, Conardo Barreda, Desedirio Cavazos, Oscar Gennett, M. Y. Dominguez, and J. L. Bradshaw are its police; that all of said defendants reside in Cameron county, Tex.; that the city of Brownsville is a municipal corporation, incorporated in 1875, under the general laws of 1875; that said city adopted a new charter in 1915, under the laws of 1913, and retained all its former powers in its adopted charter; that said adopted charter provides that said city can levy a fine of $200 for violations of its ordinances; that said charter provides that said city can establish a saloon district for the sale of intoxicating liquors, and can forbid the location of saloons or the sale of such liquors outside the limits of such district; that on October 20, 1916, said city established such a saloon district; that said district leaves out half of the business section of the city of Brownsville, and includes numerous residence blocks; that policing would be easier if the district had been confined to the business section of the said city; that said district runs down a back alley to cut plaintiff's location out of the district; that said adopted charter cannot confer power upon said city to enforce any ordinance; that said ordinance and district are unreasonable and are void; that appellee was engaged in the business of retail liquor on said location when said ordinance was passed; that his license expired on the 10th day of July, 1917; that he applied to the comptroller of the state for a permit to continue to engage in said business on said location, and said permit has been granted and issued to him; that appellee has applied to the county judge of Cameron county, Tex., for a state and county license to continue to do business as a retail liquor dealer on said location, and said judge has granted him said state and county license; that defendants refuse to issue him a city license and occupation tax receipt as such liquor dealer; that said location is out of said saloon district, but is in the heart of the business section of said city; that appellee tenders in court the full amount of his license fees for his state, county, and city license, and demands such license, and tenders in court his liquor dealer's bond; that plaintiff has spent $400 for saloon fixtures on said location, and unless he is granted the relief prayed for these fixtures will be worthless, and he will be damaged in the said sum of $400; that plaintiff wishes to continue to engage in his said business, but is afraid of defendants, and fears he will be arrested and humiliated and forced to employ counsel, and that his business will be injured if these things are done; that he has no adequate remedy at law, and will be irreparably damaged; that he cannot be granted relief by injunction alone; that Elmores Grider and Santiago Garza have heretofore issued such license and occupation tax receipt, but now claim they have no such authority; that F H. Williams is business manager of said city, and he or said Grider and Garza have such power and authority, and the court can determine who of them has such power and authority and compel him to issue such license and occupation tax receipt. Plaintiff prayed for a writ of injunction against the city of Brownsville, its commissioners, attorney, and police, restraining them from interfering with plaintiff in engaging in said business on said location, and prayed for a writ of mandamus against F. H. Williams, Elmores Grider, and Santiago Garza, and the officer among these three who had such power and authority, and compel such officer to issue said license and occupation tax receipt. This petition was sworn to.

Appellants presented general demurrers and special exceptions, directed to the jurisdiction of the court, and a special exception directed to the point that the defendants were required to perform an act that requires the exercise of judicial discretion. Appellants then filed a general denial,...