City of Houston v. Johnny Frank's Auto Parts Co.

• Decision Date: 10 May 1972
• Docket Number: No. 601,601
• Parties: CITY OF HOUSTON et al., Appellants, v. JOHNNY FRANK'S AUTO PARTS COMPANY et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 774

480 S.W.2d 774

CITY OF HOUSTON et al., Appellants, v. JOHNNY FRANK'S AUTO PARTS COMPANY et al., Appellees.

No. 601.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

May 10, 1972.

Rehearing Denied May 31, 1972.

William A. Olson, City Atty., F. William Colburn, Sr., Brian L. Reade, Asst. City Attys., Houston, for appellants.

Seymour Lieberman, Lieberman & Komiss, Houston, for appellees.

TUNKS, Chief Justice.

On May 4, 1971, the City Council of the City of Houston passed an ordinance, designated as number 71--825, regulating the operation of automotive wrecking and salvage yards within the City. Johnny Frank's Auto Parts Company and several other owners of such automotive wrecking yards filed suit against the City of Houston for declaratory judgment that such ordinance was void and for injunction against its enforcement. After a non-jury trial the trial court rendered judgment adjudicating the ordinance void and permanently enjoining the City from enforcing it. The City appealed.

Ordinance number 71--825 provides that all oil, gasoline, and other flammable liquids shall be drained from wrecked automobiles placed on wrecking yards within the city limits. It provides that wrecking yards must be surrounded by a solid fence or wall. The fence on any side of the yard running generally parallel to and within 100 feet of a street right-of-way shall be at least eight feet high, and on other sides at least six feet high. It prohibits the display of or working on wrecked vehicles or parts outside the required walls.

The trial court filed findings of fact and conclusions of law. As findings of fact it was recited that the plaintiffs' businesses do not adversely affect the value of surrounding property, the health of the people of the City, the safety of such people, the comfort of the people or the welfare of the people. The conclusions of law were:

'1. The Court concludes that the enforcement of City of Houston Ordinance 71--815 will deprive these Plaintiffs of property rights without due process of law and will result in an irreparable injury thereto with no adequate remedy at law.

2. As to these Plaintiffs, the Court concludes that the enactment of Section 2 of Ordinance 71--815 dealing with flammable liquids has no substantial relationship to the public health, safety, morals or welfare of the people of the City of Houston, and, therefore, does not come within the police power vested in the City of Houston. 3. As to these Plaintiffs, the Court concludes that the enactment of Section 3 of Ordinance 71--815 dealing with fencing has no substantial relationship to the public health, safety, morals or welfare of the people of the City of Houston, and, therefore, does not come within the police power vested in the City of Houston.

4. The Court concludes that to compel these Plaintiffs to comply with City of Houston Ordinance 71--815 would be an unreasonable exercise of Defendants' police power and would constitute a taking of property in violation of the Texas Constitution. V.A.C.S., Article 1, Sections 3, 19.'

(The reference to the ordinance in question as 71--815, instead of 71--825, is admittedly a typographical error.)

The principal authority upon which the appellees rely as support for their contention that the ordinance is unconstitutional is Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921). In that case a zoning ordinance enacted by the City of Dallas was held unconstitutional. The ordinance was held not to be a constitutional exercise of the city's police power. It prohibited the construction of any business house within what it defined as a residential district except with consent of three-fourths of the owners of property within the district. Even with the required consent of property owners the ordinance required that the design of the proposed building be approved by the building inspector. It did not prescribe standards to control the inspector's approval or disapproval of such design.

In the Spann case the land owner who challenged the constitutionality of the ordinance had been denied a permit to build, within a residential district, store houses of brick, one-story in height, of artistic design, set back at least ten feet from the property line and at a cost of $6500.00. The Supreme Court, in holding the ordinance unconstitutional, said:

'Since the right of the citizen to use his property as he chooses so long as he harms nobody, is an inherent and constitutional right, the police power cannot be invoked for the abridgment of a particular use of private property, unless such use reasonably endangers or thereatens the public health, the public safety, the public comfort or welfare. A law which assumes to be a police regulation but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort or welfare, when it is manifest that such is not the real object and purpose of the regulation, will be set aside as a clear and direct invasion of the right of property without any compensation advantages. Cooley, Const.Lim. 248.

The ordinance is clearly not a regulation for the protection of the public health or the public safety. It is idle to talk about the lawful business of an ordinary retail store threatening the public health or endangering the public safety. It is equally idle in our opinion to speak of its impairing the public comfort or as being injurious to the public welfare of a community. Retail stores are places of trade, it is true, but as ordinarily conducted they are not places of noise or confusion. This is particularly true of small stores, such as it appears the plaintiff contemplated erecting . The ordinary trading that goes on within them is reputable and honorable, and can hurt nobody. According to common experience it is done in an orderly manner. It could disturb or impair the comfort of only highly sensitive persons. But laws are not made to suit the acute sensibilities of such persons. It is with common humanity--the average of the people, that police laws must deal. A lawful and ordinary use of property is not to be prohibited because repugnant to the sentiments of a particular class. The ordinance visits upon ordinary retail stores, engaged in a useful business, conducted in an orderly manner, frequented and availed of by respectable people, and doubtless serving as a convenience to many, all the prescription visited upon common unisances.

Like municipal regulations interfering with private property rights and founded upon purely aesthetic considerations, are universally held invalid.'

The Court also noted that the ordinance, in giving the building inspector discretion to deny a permit without providing any rule or standard to guide the exercise of that discretion, was invalid.

The history, since the date of the Spann case, of cities' exercise of their police powers in the enactment of zoning ordinances is significant. An opinion which gave impetus to the increase in the enactment of zoning ordinances by cities was Village of Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). There the Court said, at pages 386--388, 47 S.Ct. at page 118:

'Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which before advent of automobiles and rapid transit street railways would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspects of the police power, asserted for the publice welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim 'sic utere tuo ut alienum non laedas,' which lies at the foundation of so much of the common low of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the power. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and...