City of Corpus Christi v. Jones

• Citation: 144 S.W.2d 388
• Decision Date: 02 October 1940
• Docket Number: No. 10630.,10630.
• Parties: CITY OF CORPUS CHRISTI et al. v. JONES et al.
• Court: Texas Court of Appeals

144 S.W.2d 388

CITY OF CORPUS CHRISTI et al. v. JONES et al.

No. 10630.

Court of Civil Appeals of Texas. San Antonio.

October 2, 1940.

Rehearing Denied November 6, 1940.

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Appeal from Twenty-eighth District Court, Nueces County; W. B. Hopkins, Judge.

Suit in equity by D. M. Jones and others, partners, doing business under the firm name and style of Independent Ice Company, against the City of Corpus Christi and others to enjoin enforcement of a zoning ordinance as against plaintiffs or their property, in which defendant city filed a cross-action to enjoin further operation of plaintiffs' ice plant in violation of the ordinance. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered in part, and reversed and remanded in part.

Carr & King and J. P. Simpson, all of Corpus Christi, for appellants.

Mobley, Roberts & Lockett and Boone, Henderson, Boone & Davis, all of Corpus Christi, for appellees.

NORVELL, Justice.

This is an appeal from a judgment of the District Court of Nueces County wherein the City of Corpus Christi, its governing officials, servants and employees are perpetually enjoined and restrained from enforcing, or attempting to enforce, a zoning ordinance for said City of Corpus Christi, which was adopted on August 27, 1937, as against appellees or their property.

Plaintiffs in the court below, appellees here, are: D. M. Jones, Frank M. Jones, A. D. Jones and A. G. Gill, who are partners and doing business under the firm name and style of Independent Ice Company.

Trial was to the court and, upon proper request, lengthy findings of fact and conclusions of law were prepared and filed in the case. The trial court held that said zoning ordinance was void in its entirety and also that the particular provisions affecting appellees' property were invalid and unenforcible in their application to said property.

The record in this case is very lengthy and a seriatim discussion of the trial court's findings of fact and the evidence relied upon to support the same would unduly lengthen this opinion and for that reason is impracticable.

The ordinance under attack here was adopted by the City of Corpus Christi on August 27, 1937, in pursuance of the provisions of Chapter 283 of the Acts of the 40th Legislature. This Act is codified as Articles 1011a to 1011j, Vernon's Annotated Texas Civil Statutes, and is sometimes referred to as the "Zoning Enabling Act." In the case of Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, this Act was fully discussed and held to be a valid constitutional exercise of legislative power. That case also held that the Zoning Ordinance of the City of Dallas was in general a valid constitutional exercise of the police power delegated to the governing body of the City of Dallas by the Zoning Enabling Act of the Legislature.

The Zoning Ordinance of the City of Corpus Christi involved here is patterned after the Zoning Ordinance of the City of Dallas, which was involved in the Lombardo case. The two ordinances, however, do differ as to certain particulars hereinafter mentioned.

On October 18, 1937, after the adoption of the Corpus Christi Zoning Ordinance, appellees purchased a tract of land located at 507 South Staples Street in the City of Corpus Christi, within the boundaries of the Commercial District, as defined by the Zoning Ordinance. They secured a permit to erect a building thereon from the office of the City Engineer of Corpus Christi. This building was erected and machinery installed for the purpose of manufacturing ice. It is the intention of appellees also to erect a cold storage plant upon their property. Appellees were engaged in the business of manufacturing and selling ice in their plant on South Staples Street when the officials of Corpus Christi threatened to close the plant, contending it was being operated in violation of the Zoning Ordinance. Appellees thereupon filed this suit.

Appellees contend that the City of Corpus Christi is estopped from enforcing the provisions of the Zoning Ordinance with reference to their property as the City Engineer issued a permit for the erection of the building, and no city official informed appellees that the erection of an ice manufacturing plant would be violative of a zoning ordinance, although there was considerable newspaper publicity as to the proposed construction of the plant. This contention was overruled by the trial court and that holding must be sustained here.

A zoning ordinance, or use regulation, is for the purpose of promoting the health, safety, morals and the general welfare of the community. Such regulations represent an exercise of the police power by a municipality in its governmental capacity. The fact that a city official or employee fails in certain particulars to enforce the regulation cannot render it invalid, nor estop the City from asserting its validity. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229. We are not here concerned with a situation where a long-continued failure to enforce a zoning ordinance has resulted in the development of a de facto industrial district in a restricted area, which would render a belated attempt at enforcement ineffective and useless in promoting the public health, safety, morals or general welfare of the community.

Appellees also present the contention that the zoning ordinance of the City is void in its entirety because of a lack of public notice or publication as required by law.

Article 1011d provides that "no such [zoning] regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality."

On July 23, 1937, there was published in the Corpus Christi Church Press and Weekly News a notice that a public hearing would be held by the City Council of the City of Corpus Christi on the 9th day of August, concerning the establishment of zoning districts and adopting regulations and restrictions therein. This notice was dated the 20th day of July, signed by the Mayor and City Secretary of the City. Immediately following this notice there was also published a copy of the proposed zoning ordinance. This ordinance makes reference to a map showing the respective areas within the limits of the City classified as to uses. This map did not appear as a part of the publication notice or of the ordinance.

Hearings were had before the City Council in pursuance of said notice, and as a result thereof certain minor changes were made in the terms of the proposed ordinance and boundaries of the use districts provided for therein. None of these changes affected the property afterwards purchased by appellees in any way. No further publication of notice was made prior to the enactment of the ordinance on August 27th. On September 3, 1937, the entire ordinance and map which was a part thereof were published in the Corpus Christi Press and Weekly News, the same paper that published the notice on August 9th, but it had eliminated the word "Church" from its name between the dates of the two publications.

Appellees contend that this newspaper was neither "an official paper," of the City "nor a paper of general circulation" in the municipality, and the trial court agreed with these contentions. As Article 1011d provides that the notice presented therein may be published in either the official paper of the City or one of general circulation in the municipality, it is not necessary for us to determine whether or not the Corpus Christi Church Press and Weekly News was the "official paper" of the City at the time of the publication of the notice, on July 23, 1937, as in our opinion the evidence conclusively shows that such newspaper was on that date a paper of general circulation.

The only evidence introduced upon this point was the testimony of the editor, Frank B. Harrison, and copies of the paper, the issues of July 23 and September 3, 1937. Mr. Harrison testified that these two issues were representative of the usual contents of his paper; that it had a circulation of about 4000 in a city of about 45,000 population; that about 1200 copies were delivered to paid subscribers, and although it featured church and Corpus Christi news, it was not dedicated to any private enterprise. An inspection of the issues of the paper contained in the statement of facts indicates that although publicity was given to the activities of churches and religious organizations, the news coverage was not restricted to such activities. The paper contained news items of general interest, editorials and advertisements. It was a paper of "general circulation" as that term is used in Article 1011d. Hurt v. Cooper, 63 Tex. 362; Meyer v. Opperman, 76 Tex. 105, 13 S.W. 174; Kerr v. Hitt, 75 Ill. 51, 53; Kellogg v. Carrico, 47 Mo. 157, 158; Hernandez v. Drake, 81 Ill. 34; Hull v. King, 38 Minn. 349, 37 N.W. 792; Hanscom v. Meyer, 60 Neb. 68, 82 N. W. 114, 48 L.R.A. 409, 83 Am.St.Rep. 507; Burak v. Ditson, 209 Iowa 926, 229 N.W. 227, 68 A.L.R. 538; Culclasure v. Consolidated Bonding & Mortgage Co., 94 Fla. 764, 114 So. 540; Baldwin v. Brown, 193 Cal. 345, 224 P. 462; In re Labor Journal, 190 Cal. 500, 213 P. 498; Lynn v. Allen, 145 Ind. 584, 44 N.E. 646, 33 L.R.A. 779, 57 Am.St.Rep. 223.

Appellees further contend that as certain minor changes were made in the ordinance recommended by the Zoning Commission prior to its final enactment by the City Council, on August 27, 1937, the Ordinance is invalid. These contentions are overruled. The Zoning Enabling Act provides for the appointment of a Zoning Commission, which shall make a final report to the legislative body of the City as to boundaries of proposed zoning districts and regulations relating thereto. (...