City of Houston v. Adams

• Decision Date: 02 July 1959
• Docket Number: No. 13442,13442
• Parties: CITY OF HOUSTON et al., Appellants, v. W. S. ADAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 627

326 S.W.2d 627

CITY OF HOUSTON et al., Appellants, v. W. S. ADAMS et al., Appellees.

No. 13442.

Court of Civil Appeals of Texas, Houston.

July 2, 1959.

Rehearing Denied July 23, 1959.

R. H. Burks, City Attorney; Homer T. Bouldin, Asst. City Atty., Houston, for appellants.

Bradshaw & Bradshaw, John Bradshaw, Houston, for appellees.

WERLEIN, Justice.

This suit was instituted by appellees on behalf of themselves and all persons similarly situated, as a class, against appellants for a permanent injunction and a temporary injunction pending a final hearing, enjoining appellants from enforcing or attempting to enforce the following ordinance:

'Section 1: That Section 3-25 of the 1958 Code of Ordinances of the City of Houston be and the same is hereby amended so that it shall hereafter read as follows:

'It shall be unlawful, except as provided in Sections 3-26 and 3-28 hereof, for any person to keep, possess or maintain in the city limits of the city any chickens, turkeys, geese, ducks, peafowls, or any other bird or fowl, except parakeets, canaries or similar size birds, or any pens, enclosures, or other structures in which any such fowls are kept or possessed within one hundred feet of any actual residence or habitation of human beings, or within one hundred feet of any church, school or hospital, other than the residence of the keeper, possessor or owner of such fowls, such distance of one hundred feet to be measured in a straight line from the nearest point of any pen, enclosure, or other such structure in which such fowls are kept to the nearest point of such actual residence or place of human habitation, or church, school or hospital, other than that of the keeper, possessor or owner of such fowls.

'Section 2: There exists a public emergency requiring that this ordinance be passed finally on the date of its introduction, and the Mayor having in writing declared the existence of such emergency and requested such passage, this ordinance shall be passed finally on the date of its introduction, this 13th day of August, A.D. 1958, and shall take effect immediately upon its passage and approval by the Mayor.'

Appellees alleged that such ordinance was invalid and unconstitutional, arbitrary, unreasonable and capricious and that its enforcement deprived them of their property without due process of law. Appellants denied that the ordinance was unconstitutional or invalid for any reason. Only Section 3-25 of the ordinance as amended, without the exceptions provided in Sections 3-26 and 3-28, appear of record herein.

The Trial Court granted a temporary injunction commanding appellants to desist from prosecuting or further prosecuting appellees, or any other person living within the city limits of the City of Houston, for violations of said ordinance.

The case is before us without a statement of facts and without any findings of fact or conclusions of law other than the findings and conclusions contained in the order granting the temporary injunction. In such order the Court stated:

'The Court finds further that under and by virtue of this ordinance the City of Houston, acting through its officers and courts are prosecuting and threatening to prosecute and will prosecute the plaintiffs and all those in the City of Houston who keep, possess or maintain one or more of the birds, fowls, pens or enclosures mentioned in said ordinance, and that W. S. Adams him, and that the city, through its pending against him and R. B. Bergman has approximately twentyfive such prosecutions pending against him, and that the city, through it agents, intends to enforce such ordinance and that those possessing such fowls have no alternative except to dispose of such properties in order to avoid such prosecutions.

'The Court finds further upon the basis of the evidence adduced at this hearing that there is a probability that the applicants for the injunction would secure a finding by a jury upon a trial on the merits for permanent injunction that the mere keeping, possessing or maintaining of one or more birds or fowls, other than parakeets or canaries, or similar size birds, or pens or enclosures in which they are kept within 100 feet of the nearest residence, church, school or hospital, regardless of the condition of sanitation under which they are kept, possessed or maintained, has no substantial relation to the public health, safety, welfare, or comfort, and that the ordinance is unreasonable, arbitrary and capricious; and further, that there is a multiplicity of prosecutions under this ordinance threatened by the City of Houston, placing those having one or more of said birds, fowls or pens in terror of the law, and that to compel them to dispose of said properties is an unwarranted invasion of the property rights of said persons, depriving them of their property without due process of law.'

The Court concluded that for the foregoing reasons the temporary injunction should issue, and so ordered. Appellants duly perfected their appeal to this Court. They also applied to the Court of Criminal Appeals of Texas in State of Texas ex rel. Richard H. Burks, City Attorney, et al., Relators, v. Thomas J. Stovall, District Judge, et al., Respondents, for a writ of prohibition to prohibit Judge Stovall, who had granted the temporary injunction, from making any order in the case other than to dissolve the injunction or dismiss the petition for want of jurisdiction and to prohibit appellees from prosecuting the injunction. The Court of Criminal Appeals , in denying the writ of prohibition, stated that it did not clearly appear that the District Court was without jurisdiction to entertain the suit for injunction. The Court did not pass upon the constitutionality of the ordinance, but held that if it is unconstitutional, the owners of fowls, birds and pens in the City have a property right therein which a court of equity may protect from invasion by the attempted enforcement of such void ordinance, without interfering with the jurisdiction of the Court of Criminal Appeals. We are in accord with such holding. The Court further stated that the jurisdiction of the District Court to entertain the suit for injunction was not questioned in the Court.

Appellants' contentions on this appeal are that the Trial Court had no power or jurisdiction to grant the temporary injunction in effect restraining the enforcement of a penal ordinance presumably valid without pleading and proof that it had been adjudged unconstitutional or was void on its face, and that its enforcement would constitute an invasion of appellees' vested property rights, and further that the Trial Court erred in making the foregoing findings and in granting the temporary injunction since it in effect disposed of the case, and also because appellees had an adequate legal remedy.

Appellees conceded in their argument before this Court that a court has no power or jurisdiction on a hearing for temporary injunction to determine the constitutionality vel non of a penal ordinance not void on its face. They assert, however, that if on such hearing it appears probable that when the case is tried on its merits evidence will be adduced from which the court may find the ordinance which invades their property rights is unreasonable, a temporary injunction may properly be granted to maintain the status quo until it is determined whether or not the ordinance is valid.

In Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219, the Commission of Appeals, through Judge Hickman, stated:

'As a general rule, courts of equity will not enjoin a criminal proceeding. It is the function of courts of law created for the purpose of trying criminal cases to pass upon the validity of criminal statutes or ordinances. Courts of equity may be resorted to for the purpose of enjoining the enforcement of a criminal statute or ordinance only when same is void and when its enforcement invades a vested property right of the complainant.'

See also State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178; State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760; Malone v. City of Houston, Tex.Civ.App., 278 S.W.2d 204, writ ref., n. r. e.; City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 336, 28 S.W. 528. Other authorities to the same effect are correlated under 21-A, Texas Digest, Injunction k105(2).

We quote from the opinion of the Court of Crininal Appeals in State ex rel. Burks v. Stovall, supra, as follows .

'Applying this rule, injunctions restraining the enforcement of void ordinances were upheld on appeal in: City of Houston v. Richter, Tex.Civ.App., 157 S.W. 189 (requiring journeymen plumbers to procure license and give bond); Dibrell v. City of Coleman, Tex.Civ.App., 172 S.W. 550 (prohibiting the keeping of hogs in a sparsely settled portion of the city); City of Dallas v. Urbish, Tex.Civ.App., 252 S.W. 258 (failure of workers to have a building permit); Stone v. Kendall, Tex.Civ.App., 268 S.W. 759 (prohibiting excavations for removing gravel); Bielecki v. City of Port Arthur, Tex.Com.App., 12 S.W.2d 976 (public dance hall within 100 feet of private residence).' (emphasis ours)

The present case is distinguishable from Flowers v. Woodruff, supra; Kemp Hotel Operating Co. v. City of Wichita Falls, supra; Bell Dental Lab. v. Walton, Tex.Civ.App., 307 S.W.2d 342, ref. n. r. e.; Stecher v. City of Houston, Tex.Civ.App., 272 S.W.2d 925, ref. n. r. e.; City of Graham v. Seal, Tex.Civ.App., 235 S.W. 668, writ dism.; and similar cases, in which it clearly appears that a prosecution under the statute or ordinance involved did not constitute an invasion of vested property rights. Appellees alleged that the City is forcing and compelling them to dispose of their fowls and pens under penalty of prosecution for disobedience, and the Court so found as hereinabove stated. In the absence of a statement of facts, it must be presumed that sufficient evidence...