City of Dallas v. Rogers

• Decision Date: 26 December 1952
• Docket Number: No. 14630,14630
• Citation: 257 S.W.2d 117
• Parties: CITY OF DALLAS et al. v. ROGERS.
• Court: Texas Court of Appeals

Page 117

257 S.W.2d 117

CITY OF DALLAS et al. v. ROGERS.

No. 14630.

Court of Civil Appeals of Texas, Dallas.

Dec. 26, 1952.

On Rehearing Feb. 20, 1953.

Dissenting Opinion Feb. 25, 1953.

Rehearing Denied March 27, 1953.

H. P. Kucera, City Atty., H. Louis Nichols and W. M. Parks, Asst. City Attys., Dallas, for appellants.

James L. Mitchell and W. R. Sessions, Dallas, for appellee.

CRAMER, Justice.

This is an appeal from an order granting a temporary injunction. Rogers, a produce dealer, filed suit against the City and the market master of the municipal produce market, seeking to restrain the City and its market master from refusing to rent him space for his truck and a stall for his use as a produce dealer. Rogers alleged that he was not guilty of violating any of the provisions of the City's ordinance No. 4801 applicable to said market and that the market master's refusal to permit him to rent and occupy a stall on the market, was arbitrary, wrongful, and an unreasonable discrimination against him, depriving him of an equal opportunity to engage in his business in competition with other members of the same group or class as himself, and depriving him of a license privilege granted by the City and its market master, which has not expired; alleged his damage at $100 per day for each day he was denied the right to rent and deal on the market by the City. Rogers also alleged that section 75-6, subdiv. D, of ordinance 4801, under which the City and its market master claimed the right to bar him, is invalid in that it is arbitrary, unreasonable, discriminatory, vague and uncertain; is a grant or delegation of power and authority not within the City's right under its charter and the laws of Texas; that the City has no authority or right to withhold from him the right to do business on the market under the valid provisions of ordinance 4801.

The City and its market master answered by motion to dismiss for the reason that Rogers' petition was insufficient, stated no cause of action, in that there is no allegation of fact to show the City and its market master were insolvent and unable to respond in damages; and Rogers failed to allege that he had a valid vested property right to operate his business on the market; and by general answer that Rogers was ejected from the market under the provisions of ordinance 4801 because, (1) he had, on July 20, 1952, illegally and unlawfully committed assault and battery upon an assistant market master; (2) had refused to pay the fee due under ordinance 4801 for a motor truck used by Rogers in handling produce on the market; (3) that Rogers made threats to the effect that he would whip and commit assault and battery upon the market master and his assistant; (4) that he used loud and boisterous language in an effort to threaten and frighten the market master; and that it was necessary by reason of the above that Rogers should be evicted from and barred from the market in order to protect the market and maintain it in the manner provided in ordinance 4801, and to prevent dealer from carrying out his threats.

A hearing on the application resulted in the trial court's overruling the City's motion to dismiss; the issuance of the temporary injunction as prayed for by Rogers; and by a further order requiring Rogers to maintain the public peace and abide by all rules and rugulations for the operation of the market; and set temporary injunction bond at $1,000. The City, after giving notice of appeal, moved the court to set an amount for a supersedeas bond, which the trial court refused.

This appeal has been duly perfected from the order, etc., and the cause is now properly before us for review.

The City briefs four points of error.

The first point asserts error in the overruling of its motion to dismiss, no facts being alleged by Rogers to show that he had no adequate remedy at law or vested property right which was being threatened or invaded by the City or its market master.

The market here involved was before this Court in its inception in Gillham v. City of Dallas, 207 S.W.2d 978, error ref. n. r. e., in which this Court upheld the right of the City to provide the market in question, and there called attention to the wide discretion of the City in the maintenance and operation of such market.

Ordinance 4801 authorizing the establishment, maintenance and operation, is general in scope; its caption showing it to be 'An Ordinance Amending Chapter 75 of Title XXII of the 1941 Code of Civil and Criminal Ordinance of the City of Dallas as Amended by Providing Regulations for the Municipal Produce Market; Defining Terms; Prohibiting Marketing on Streets; Establishing the Area of the Municipal Produce Market; Creating Office of Supervisor of Weights, Measures and Markets; Providing for Duties of Supervisor of Weights, Measures and Markets; Fixing Rental Fees on Stalls; Limiting Use of Stalls to Producers and Produce Dealers; Prohibiting Spielers; Prohibiting the Throwing of Refuse on the Market; Prohibiting the Use of Market During Closed Hours; Prohibiting the Holding of Stalls by Trick, Scheme, or Artifice; Providing for Disposition of Unattended Produce; Fixing Minimum Quantities; Restrictions on Type of Produce; Restricting Use of Market to Producer and Produce Dealers; Prohibiting Loitering; Making It Unlawful to Bring Beer or Alcoholic Beverages onto Municipal Market; Collusion among Dealers to Fix Prices Prohibited; Animals on Market Prohibited; Cull Produce Prohibited Signs Required; Parking Prohibited in Certain Areas; Speed Limit Fixed at Twelve (12) Miles per Hour; Parking Limited; Broken or Sliced Melons Prohibited; Blocking Sidewalks Prohibited; Providing a Penalty; Providing for Severability; Repealing Clause; and Declaring an Emergency.'

Article 75-4 creating the position of supervisor of weights, measures and markets in the Department of Public Works also creates assistants under him to be designated as 'market master,' and 'assistant market masters.' It provides that '* * * where any duty is placed on the supervisor under this chapter relating to the 'municipal produce market' the same may be performed by any market master or assistant market master. * * *.' Those named are given and granted powers of police officers and are authorized to make arrests with or without warrant where a regular police officer would be authorized to do so. It provides, 'Any person violating any lawful order' of said officers 'shall be guilty of a misdemeanor and subject to the penalties provided for in this chapter.' It provides for a $1,000 surety bond by each of said officers for 'the faithful performance of the duties of their respective offices, * * *.' The duties of such officers are set out in Art. 75-5, which gives them '* * * general supervision and control over the 'Municipal Produce Market' and the conduct of business therein, and to enforce all of the terms and provisions of this Chapter, and the rules and regulations promulgated hereunder. Second: To assign stalls to the producers and dealers attending the 'Municipal Produce Market,' and collect the rental fees for the use thereof, and pay the same to the City Auditor. Third: To regulate traffic and enforce order in and about the 'Municipal Produce Market.' Fourth: To order or remove from the market in a summary manner any person who is guilty of violent or disorderly conduct, or who shall in any way interfere with him in the performance of his duties, or who shall disturb the producers, dealers, buyers, or any other person lawfully using said market. Fifth: To prescribe rules and regulations governing the conduct of business in the 'Municipal Produce Market' not inconsistent with the provisions of this chapter. * * * Seventh: To designate the various stalls in the market which shall be used by producers, to designate the various stalls which shall be used by produce dealers, and to designate the areas and parking spaces to be used by customers and buyers.'

Art. 75-6 provides in section (B) for application to the named officers and for payment of a fee for the rental of stalls to dealers, and a different fee for automobiles. Section (C) provides that the fee '* * * shall entitle the producer or produce dealer to the use of said stall between the opening and closing hours of the Municipal Produce Market, of the day for which the fee is paid, or until the load which he had on his vehicle at the time he rented said stall has been sold; provided, however, that in no event shall said producer or produce dealer be entitled to use said stall longer than the day for which the fee was paid without the payment of an additional fee for each day. No produce or merchandise may be placed in a stall in addition to that upon which a fee was originally paid, without the payment of an additional fee. The term 'day' as used herein shall mean the period of time from 12:00 Noon of any calendar day to 12:00 Noon of the following calendar day, or any portion thereof.'

Section (D) is as follows: 'The supervisor of weights, measures and markets shall have the right to refuse to rent a stall to any producer or dealer who has been guilty of willful violation of the provisions of this chapter, or of any of the rules or regulations promulgated thereunder. Said supervisor shall have the authority to eject any producer or dealer or any other person who willfully refuses to conform to the provisions of this chapter, or the rules and regulations promulgated thereunder, or any other ordinance of the City of Dallas, or any law of the State of Texas, without refunding to said producer or dealer the rental paid for said stalls. No person shall sell on the Municipal Produce Market any of the produce of a producer or dealer, or act as the agent or employee of a dealer who has been barred from the Municipal Produce Market by the Supervisor of Weights Measures and Markets. No produce dealer shall hire as agent or employee any person who has been barred...