City of Galveston v. Mistrot

• Decision Date: 21 June 1907
• Citation: 104 S.W. 417
• Parties: CITY OF GALVESTON v. MISTROT.
• Court: Texas Court of Appeals

104 S.W. 417

CITY OF GALVESTON v. MISTROT.

Court of Civil Appeals of Texas.

June 21, 1907.

Rehearing Denied October 10, 1907.

Appeal from District Court, Galveston County; Lewis Fisher, Judge.

Action by Simon P. Mistrot against the city of Galveston. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

M. E. Kleberg, City Atty., for appellant. Jas. B. & Chas. J. Stubbs, for appellee.

REESE, J.

Appellee brings this suit to enjoin the city of Galveston and certain of its officers from prosecuting appellee for alleged violations of a certain penal ordinance of the city with regard to the obstruction of the sidewalks. Upon trial the plaintiff had judgment enjoining such prosecutions as long as the ordinances should remain in force, saving to the city the right to amend or repeal the same. From the judgment the defendants appeal.

The ordinance in question is article 512 of the Code of Ordinances of the city, and so much of the same as is material to the decision of this appeal is as follows: "Art. 512. The sidewalks of the city of Galveston shall be sixteen feet wide, and it shall in any manner whatever by goods, wares or merchandise of any kind, and merchants, shop-keepers and other persons are required to move the goods, wares and all other objects which might obstruct or encumber the sidewalks, into their houses, yards, or other places under a penalty of not exceeding twenty-five dollars for every day such obstruction or encumbrance shall exist; provided any merchant, shop-keeper or other person occupying and doing business in any house in this city shall be allowed four feet of the inner side of the sidewalk fronting such house for the shelter and display, but not for the sale, of such goods, wares and merchandise as are sold and dealt in by such person within such house. * * * Any person who shall violate any provisions of this article shall be fined not exceeding twenty-five dollars for such offense and each day such violation shall continue shall constitute a separate offense." The petition alleges that appellee has been prosecuted and convicted in three separate cases for alleged violation of this ordinance, and that he is threatened by the officers of the city with further arrests and prosecutions for each day that he continues to obstruct the sidewalks in the manner charged. It is further alleged that appellee and his firm under the terms of the ordinance are allowed four feet of the inner side of the sidewalk fronting said building for the shelter and display, but not for the sale of such goods, wares, and merchandise as are sold and dealt in by him and them within said building; that a part of such goods, wares, and merchandise consists of packing cases or boxes which are purchased by plaintiff and his firm from retail dealers, and are sold and dealt in by him and them within said house or building, and are also used as the receptacles of goods which are shipped, and are necessary to said business; that under the above authority he and his firm place, shelter and store said cases or boxes on the inner side of the sidewalk fronting said house, and within the four feet next to said building allowed for the shelter and display of said merchandise, but not for the sale thereof, and no sales are made upon or from said sidewalk. It is alleged that he is threatened with continuous prosecutions because of his use of said four feet of the inner side of the sidewalk for the shelter of said merchandise, and that the ordinance is invalid on several grounds set out in the petition. It is to be gathered from the judgment that the trial court did not hold the ordinance invalid, but did hold that the acts charged by appellants to be violations thereof were not, in fact, violations of the ordinance, but that the use made by appellee of the sidewalk was such use as was authorized by the terms of the ordinance.

The case made by appellee by his pleadings and evidence is that he has been prosecuted and convicted for an offense of which he is not guilty, and that, without the interposition of a court of equity by its writ of injunction, he will be continually arrested and prosecuted and convicted for violation of an ordinance which he has not violated and which he does not propose to violate. In this view as presented by the petition, it is immaterial that the ordinance is void. We know of no case, and have been referred to none, in which a court of equity has interfered by injunction upon the grounds upon which its aid is invoked in...