City of Dallas v. Mitchell

• Citation: 245 S.W. 944
• Decision Date: 25 November 1922
• Docket Number: (No. 8952.)
• Parties: CITY OF DALLAS et al. v. MITCHELL.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

245 S.W. 944

CITY OF DALLAS et al. v. MITCHELL.^*

(No. 8952.)

Court of Civil Appeals of Texas, Dallas.

November 25, 1922.

Rehearing Denied December 22, 1922.

Appeal from District Court, Dallas County; Royall R. Watkins, Special Judge.

Suit by C. S. Mitchell against the City of Dallas and others, to have an ordinance declared void and a writ of mandamus and a writ of injunction. From a judgment directing the issuance of the mandamus and the injunction, the defendants appeal. Affirmed.

J. J. Collins and Allen Charlton, both of Dallas, for appellants.

Thomas, Frank, Milam & Touchstone, of Dallas, for appellee.

SERGEANT, C. J.

On April 29, 1922, C. S. Mitchell, appellee, who owned a lot on the southeast corner of Davis and Edgefield streets in the city of Dallas, fronting 60 feet on Edgefield and 150 feet on Davis, applied to the board of commissioners of the city of Dallas, appellants, for a permit to erect thereon a brick building to be divided into sections and used for grocery and drug stores. It was shown that the building proposed would conform to the city ordinances relative to distance from property line and the direction to be faced; that the building plans were submitted to the city building inspector and approved by him, and that the proposed uses of the building were the same as that of other like buildings used for similar businesses. The board of commissioners set a day for hearing the application, notified all interested parties, including all persons residing within a radius of 300 feet of the proposed location, many of whom were present and objecting, and on such hearing declined to issue the permit.

Appellee appealed from the ruling of the board of commissioners to the board of appeals or review, which body upheld the decision of the former board. Appellee thereupon instituted suit in the district court of the Fourteenth judicial district of Texas against the city of Dallas, its board of commissioners, building inspector, chief of police, and city attorney, seeking to have declared void Ordinance No. 742 of the city of Dallas, under the terms of which ordinance said city had refused the granting of the permit, and for a writ of mandamus, commanding the defendants to issue a building permit to him, and for an injunction to restrain the defendants from interfering with the erection by him of the proposed building. On hearing the court granted petitioner the relief prayed for, and directed the issuance of the mandamus and the injunction as prayed. From this ruling appellant brings the case to this court by appeal.

The appeal involves the validity of Ordinance No. 742 of the city of Dallas, known as the building ordinance. A former building ordinance of said city contained in articles 1965 to 1967 of the Revised Ordinances of the city of Dallas, dealing with this same subject, was declared void and unconstitutional by the Supreme Court of Texas on November 2, 1921, in the case of Spann v. City of Dallas, 235 S. W. 513. Thirty days thereafter the present ordinance was enacted, intending to circumvent the decision of the Supreme Court on the former ordinance. But in our opinion it has failed to do so.

The present ordinance requires a hearing at which all persons residing within 300 feet of the proposed building shall be notified to appear and testify, thereby making the granting of the permit subject to the wishes, whims, and caprices of appellant's neighbors. On this very ground, as well as on others, the Supreme Court in the case above referred to declared the former ordinance invalid.

Again, in the instant case the board of appeals in rejecting the application for a permit declared that it did so because the health, safety, and welfare of the community would be endangered should the building be erected. While the testimony before them showed that immediately across the street there had been for some years, and still was, a chain of stores dealing in drugs, groceries, meats, cold drinks, and the like and that no complaint had been made that any of these stores had been offensive, nor had the city attempted to declare a nuisance existing there by reason of the existence of danger to the public health, safety, or welfare, the Spann Case specifically says:

"It is idle to talk about the lawful business of an ordinary retail store threatening the public health or endangering the public safety."

And on the specific ground that...