City of Graham v. Seal

• Decision Date: 15 October 1921
• Docket Number: (No. 9850.)
• Citation: 235 S.W. 668
• Parties: CITY OF GRAHAM et al. v. SEAL et al.
• Court: Texas Court of Appeals

235 S.W. 668

CITY OF GRAHAM et al. v. SEAL et al.

(No. 9850.)

Court of Civil Appeals of Texas. Fort Worth.

October 15, 1921.

Rehearing Denied November 26, 1921.

Appeal from District Court, Young County; H. F. Weldon, Judge.

Action by W. P. Seal and others against the City of Graham and others, to enjoin a prosecution for violation of an ordinance. From a judgment granting the injunction, defendants appeal. Reversed, injunction dissolved, and judgment rendered for defendants.

McFarlane & McFarlane, of Graham, for appellants.

Stine & Stine, of Graham, for appellees.

DUNKLIN, J.

The city of Graham and its mayor and city counsel were perpetually enjoined by the district court of Young county from enforcing a certain ordinance passed by the city requiring all parties operating motor or jitney passenger cars for hire from operating the same within the corporate limits of the city of Graham without first procuring a license from the city for that privilege, and also to procure a state chauffeur's license from the tax collector of Young county, in which the city of Graham is located. The license fee fixed by the city ordinance was $50 per annum with power in the city council to revoke the same if the holder thereof should be convicted of an offense against the ordinances of the city or laws of the state of Texas. The power to revoke the license was also given the corporation court in the event of a conviction in that court of a violation of the provisions of the ordinance. It was further provided that in the event a license should be revoked no further license should be issued to the same person, unless expressly authorized by the city council. It was further provided by the ordinance that if any person should violate the provisions of the ordinance he would be subjected, upon conviction, to a fine in any sum not to exceed $20. Section 7 of the ordinance reads as follows:

"The holding of any section or clause hereof as invalid shall not be held to invalidate the remaining sections or clauses hereof."

The suit was instituted by W. P. Seal, Ben Williams, C. H. Ozmer, Reece Ritchie, E. J. Hawkins, J. J. Thompson, Cal Nance, and Rome Smith, who sued in their own behalf, and in behalf of about 20 others similarly situated against the city of Graham, its mayor, all the members of its city council, its city attorney and its corporation judge.

It is alleged in the petition that the city of Graham is a city of over 5,000 population and is duly incorporated; that plaintiffs are engaged in the business of transporting passengers for hire in motor driven vehicles between points in the city of Graham and other points, cities, and towns outside that city. It was further alleged that plaintiffs have never taken out the license required by the ordinance, and that prosecution has been instituted in the corporation court of said city against plaintiffs Seal and Nance for alleged violation of the ordinance in accepting and receiving passengers in motor vehicles to points outside the city limits of Graham without taking out the required license, and that the city officers are demanding the payment of said license fee of $50 from each of the plaintiffs, which, if not paid, will be followed by prosecutions against those persons for violating said ordinance; that by reason of such prosecutions plaintiffs will be subjected to vexatious litigations which will result in irreparable injury, against which they have no adequate legal remedy.

It thus appears that by this suit a court, in the exercise of jurisdiction over civil suits, is asked to enjoin prosecutions under a criminal ordinance when no property rights are involved and no extraordinary circumstances are shown which would warrant the interposition of a court of equity to grant that relief.

The principal grounds upon which this suit is based is the contention that the ordinance is void for several stated reasons. One of the reasons alleged is that the amount required to be paid as a license fee is an occupation tax designed for the purpose of raising revenue for the city, no such tax being authorized by law, that the amount of the fee is unreasonable and exorbitant and not in the exercise of legitimate police power, and that it is class legislation and oppressive. Another ground of attack on the ordinance relates to the requirement that a state chauffeur's license should be procured from the tax collector of Young county, and that one of the plaintiffs already holds such a license, issued in another county of the state, which entitles him to operate a car in any portion of the state outside the city limits of Graham. Still another ground of attack was that the city has no power to revoke a license which has already been issued.

The general rule is that a criminal prosecution cannot be enjoined in a civil action even where the ordinance or statute under which the prosecution is instituted is void, unless the enforcement of the ordinance or statute would result in the destruction or deterioration of the value of property; but that if the enforcement of the law would result in injury to property, or if the facts incident to its enforcement are so extraordinary or of such an exceptional nature as that injunctive relief is the only adequate relief that can be afforded the complaining party, then an action for injunction will lie. See City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114; Greiner-Kelly...