City of Houston v. Houston Independent School Dist.

• Decision Date: 18 December 1968
• Docket Number: No. 179,179
• Citation: 436 S.W.2d 568
• Parties: CITY OF HOUSTON, Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 568

436 S.W.2d 568

CITY OF HOUSTON, Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 179.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

Dec. 18, 1968.

Rehearing Denied Jan. 22, 1969.

William A. Olson, Homer T. Bouldin, Houston, for appellant.

Joe H. Reynolds, John R. Cochran, Jr., Reynolds, White, Allen & Cook, Houston, for appellee.

SAM D. JOHNSON, Justice.

The Houston Independent School District, appellee, brought this action for a temporary injunction against the City of Houston, appellant. The purpose of the temporary injunction was to restrain the City from enforcing its newly enacted ordinance which amended its Building Code against the School District.

In addition to its prayer for a temporary injunction, the School District prayed that the temporary injunction be made permanent, that the court declare the ordinance unconstitutional, or, in the alternative, that the State has preempted the field now sought by the subject ordinance to be applied to the appellee, and that the City refund the School District the funds previously paid to comply with subject ordinance. The appellant City filed its original answer, including Plea to Lack of Jurisdiction, General Denial, Special Denials and Special Answer. The temporary injunction prayed for against the City of Houston was granted to the School District by the trial court.

The Building Code, which was amended by the subject ordinance on October 4, 1967, provided for the inspection and supervision of the construction, maintenance and repair of buildings within the corporate limits of the City of Houston. It provided for the payment of various fees for such inspection and supervision and set forth penalties for non-compliance by fines of not more than $200.00 . ¹ The ordinance provides, however, that the City of Houston, any county governments, the State of Texas and the United States Government were to be exempted from the payment of the fees that were set forth in the City's Building Code ².

The City appeals from the order granting the temporary injunction.

The City contends that the ordinance in issue is a penal ordinance and the trial court erred in overruling its Plea to Lack of Jurisdiction. The School District responds that the trial court's order overruling the Plea to the Lack of Jurisdiction and Plea in Abatement can only be presumed to have been presented and overruled in that the record does not reflect an order to that effect, and that such pleas are interlocutory and an appeal therefrom is not permitted.

We are of the opinion that this contention has been heretofore resolved in favor of the City's position. For instances of appeals in temporary restraining order or temporary injunction cases in which questions of jurisdiction of the trial courts were determined see Ex Parte Sterling, (1932), 122 Tex. 108, 53 S.W.2d 294; State v. Ferguson, (1939), 133 Tex. 60, 125 S.W.2d 272; City of Ballinger v. Boyd, 173 S.W.2d 363, no writ hist.; State ex rel. Flowers v. Woodruff, (1947), 150 Tex.Cr.R. 295, 200 S.W.2d 178; Malone v. City of Houston, Tex.Civ.App., 278 S.W.2d 204, writ ref., n.r.e., and Bell Dental Laboratory v. Walton, Tex.Civ.App., 307 S.W.2d 342, no writ hist.

Out Supreme Court has stated: 'The general rule is that equity will not enjoin enforcement of the criminal law. * * * However, there is an exception to the effect that when the criminal statute is unconstitutional, or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in an irreparable injury thereto, equity will intervene to protect those property rights by enjoining enforcement of such void law. * * * If either one of the requirements of equitable relief in this type of situation--void law and irreparable injury to property rights--is lacking, the courts of equity have No jurisdiction to entertain such suit.' (Emphasis added). State v. Logue (Tex.Sup.Ct.1964), 376 S.W .2d 567, 569.

In Shoppers Fair of North Houston v. City of Houston, 406 S.W.2d 86, 88, writ ref., n.r.e., the trial court denied a temporary injunction against the City to the plaintiff. The court there said: 'Appellees contend that their pleas to the jurisdiction were good and should have been sustained. Appellees say the ordinance is penal and courts of equity will not enjoin enforcement of a criminal ordinance, unless (1) it is unconstitutional and void and (2) its enforcement will violate vested property rights and cause irreparable injury thereto. We think this is an accurate statement of the law. State v. Logue, (Sup.Ct.), 376 S.W.2d 567, 572; Crouch v. Craik, (Sup.Ct.), 369 S.W.2d 311, 315; Ex Parte Sterling, 122 Tex . 108, 53 S.W.2d 294, 295.' The court then additionally sustained the contention that the issue of a statute's constitutionality is for the trial court in a trial on the merits and cannot be determined in a hearing on a petition for a temporary injunction. To the same effect see Houston Belt & Terminal Ry. Co. v. Texas & N.O. Ry. Co., (1956), 155 Tex. 407, 289 S.W.2d 217.

It does not appear to be contested that the City's amended Building Code is penal in character. It prohibits particular acts and imposes penalties for the commission of those acts that are prohibited. The real issue is whether the School District places itself within the narrow area wherein injunctive relief is available . That narrow area has been described by our Supreme Court with the following language: 'It is only where a criminal statute is void and vested property rights are being impinged as the result of an attempt to enforce such void statutes that the jurisdiction of the courts of equity can be invoked.' Crouch v. Craik, (Sup.Ct.1963), 369 S.W.2d 311, 315.

The general authority of the City to establish building and construction regulations applicable to an independent school district is now apparent. Port Arthur Independent School Dist. v. City of Groves, (Tex.Sup.1964), 376 S.W.2d 330. The School District makes no contrary contention in this regard. With this premise, and assuming vested property rights of the School District, we look to the issue of whether the School District has discharged its burden of establishing that the ordinance in issue is unconstitutional and void. We conclude that it has not.

In its brief and in its argument, the School District lays its case on the improper classification alleged to be inherent in the ordinance. It is to be recalled that the ordinance exempts 'The City of Houston, any county governments * * * the State of Texas, and the United States Government * * *' from the payment of the required fees. The School District apparently concedes the propriety of exempting State and Federal governments from the payment of the required fees. The School District contends, however, that the exemption may not be extended to county and city governments, without likewise exempting the School District. It is on this basis that the School District claims it to be '* * * an unreasonable, void, arbitrary and discriminatory ordinance, because said ordinance discloses an unequal, unreasonable and non-uniform classification.'

The School District contends that the ordinance must be non-discriminatory in treatment of like entities or between those similarly situated. The School District contends that it, the City and County, have similar legislative delegations of power, that the relative functions of each are identical and that their relationship to the State is identical. The ordinance, contends the School District, distinguishes between these like entities, and therefore is discriminatory. It is this discrimination that occasions the 'unequal, unreasonable and non-uniform classification.'

In Bradford v. City of Houston, Tex.Civ.App., 4 S.W.2d 592, no writ hist., the court considered a city ordinance requiring an examination and licensing of stationary steam engineers, and exempting mobile stationary engineers. The attack upon the ordinance claimed that such classification was arbitrary and unconstitutional....