City of Houston v. Freedman

• Decision Date: 28 June 1956
• Docket Number: No. 12995,12995
• Citation: 293 S.W.2d 515
• Parties: The CITY OF HOUSTON, Appellant, v. Sam FREEDMAN, d/b/a Freedman Packing Company et al., Appellees.
• Court: Texas Court of Appeals

Page 515

293 S.W.2d 515

The CITY OF HOUSTON, Appellant, v. Sam FREEDMAN, d/b/a Freedman Packing Company et al., Appellees.

No. 12995.

Court of Civil Appeals of Texas, Galveston.

June 28, 1956.

Rehearing Denied Sept. 20, 1956.

Geo. D. Neal, City Atty. and Homer T. Bouldin, Asst. City Atty., Houston, for appellant.

Aaron Goldfarb, Houston, for appellee, Sam Freedman, d/b/a Freedman Packing Co.

Calvin B. Garwood, Jr., Houston, for appellee, Port City Packing Co.

GANNON, Justice.

This is an appeal by the City of Houston from a summary judgment against it in a suit for mandamus and injunction to require the City to issue a building permit to Sam Freedman for the construction of an abattoir and to enjoin the City from interfering with the construction of the abattoir.

Plaintiffs filed their verified petition. The defendant City of Houston answered solely by unverified general denial. The summary judgment followed, though not necessarily under the provisions of Rule 166-A, Texas Rules of Civil Procedure.

Under the rules of pleading and practice in mandamus actions where defendants stand solely on an unverified general denial, plaintiff is entitled to summary judgment if his pleadings state facts entitling him to the relief sued for. See 28 Tex.Jur., page 641, 'Mandamus,' Sec. 67; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App. Austin, 1927, 289 S.W. 425, writ refused; and Marr v. Reynolds, Eastland, Tex.Civ.App.1941, 151 S.W.2d 263, 264.

We quote from Marr v. Reynolds, supra:

'From the record it appears that no issues of fact were joined by the pleadings. The defendants only answered by a general demurrer and general denial. In mandamus suits, a general denial does not join issues upon the facts alleged in plaintiffs' petition. Plaintiffs were not put to the necessity of proving the facts alleged by them; but, in effect, such facts were admitted. Townes' Texas Pleading, p. 572; Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62, 2 Am.St.Rep. 505; McKenzie v. Baker, 88 Tex. 669, 675, 32 S.W. 1038, 1039; May v. Finley, 91 Tex. 352, 354, 43 S.W. 257, 258; Brown v. Ruse, 69 Tex. 589, 592, 7 S.W. 489, 492; Donna Irr. Dist. (Hidalgo County, No. 1) v. West Coast Life Ins. Co., Tex.Civ.App., 103 S.W.2d 1091; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App., 289 S.W. 425; Singleton v. Austin, County Judge, 27 Tex.Civ.App. 88, 65 S.W. 686.'

Since the appeal is determinable on the face of plaintiffs' petition, we summarize it, quoting where necessary for accurate understanding:

It is alleged that in October of 1954 appellee, Sam Freedman, doing business as Freedman Packing Company, contracted with Port City Packing Company to purchase a three acre tract of land within the corporate limits of the City of Houston, intending to erect thereon an abattoir, but that said contract was expressly made contingent upon appellee Freedman obtaining a permit from the City of Houston for the erection of an abattoir and packing plant upon the subject land.

It is then alleged.

'Thereafter, on or about August 15, 1955, Plaintiff, Sam Freedman, under the name and style of Freedman Packing Company, in strict compliance with Section 887 of the Houston City Code (1942) and all applicable provisions of the City Building Code and other ordinances, duly filed with the City Secretary of The City of Houston, his application to construct the said abattoir, together with all plans and specifications therefor, a plan of the property proposed to be employed as a plant site and all other information required by said Section 887. * * * That since the date of the filing of the application for permit for construction and erection of the abattoir by Plaintiff, Sam Freedman, the plans and specifications have been given approval by Dr. R. S. Martin, Chief of Meat Inspection Division of the City Health Department, and likewise the sewer system of said abattoir and packing plant has received approval by the Department of Public Workds for the City of Houston.'

This is followed by allegations of diligent, timely, but unsuccessful, efforts of appellees to prevail upon appellant, through its City Council, to act upon appellees' application for the permit within a reasonable time. It is then alleged,

'Plaintiff, Sam Freedman, dba Freedman Packing Company, would respectfully show to the Court that at great expense to him, he employed a reputable architect to prepare the plans for the building in which the proposed abattoir is to be housed; that such plans fully comply with all appropriate Federal, State and Municipal laws covering construction of buildings of this nature; that to revise such plans in order to adapt the buildings to another location would prove costly and time consuming; the Plaintiff, Sam Freedman, is ready and willing to pay such lawful fees as may be imposed for the issuance of said permit and by this petition does hereby tender unto Respondent the amount of such fees.

'Plaintiffs would further allege that Respondent not only has the power and authority to issue the said building permit, but that, the application therefor being in full conformity to all requirements of the City Building Code and other laws and ordinances applicable thereto, Respondent is charged with a mandatory, non-discretionary duty to issue said permit, and in this connection the attention of the Court is respectfully invited to Section 887 of the Houston City Code (1942), which reads as follows:

'Sec. 887. Application for and issuance of permit for abattoir.

"Any butcher or other person desiring to erect, construct or maintain any abattoir plant for the purpose of a slaughtering animals to be used as food, exhibited for sale or sold for food within the city, shall, prior to the beginning of the erection or construction of same, file with the city secretary a written request addressed to the city council, stating that he desires to erect, establish and maintain an abattoir plant for the purpose of slaughtering animals to be used o sold as food in whole or in part, within the city, the proposed location and probable cost of same. The application shall be accompanied by complete plans and specifications showing in detail the proposed arrangement, materials, equipment and operation of said building, stock pens, chutes, etc. The application, plans and specifications shall be examined by the director of public works and the city council or a committee thereof, and if the proposed abattoir complies in all material respects with the provisions of this article and the proposed location of same as satisfactory to the city council, it shall instruct the health officer to issue a permit for the erection, establishment and maintenance of said abattoir. If said application is for any reason refused by the city council, the health officer shall notify the applicant to that effect in writing.'

'Respondent having failed and refused to perform its lawful, mandatory duty to issue the building permit within a reasonable length of time, after plaintiffs have made three formal appearances before the City Council, numberous informal requests and one specific formal demand for action, as hereinabove alleged, and there being no legal impediment to the issuance of said permit. Plaintiffs have no recourse or remedy other than by way of this petition for Writ of Mandamus to compel its issuance.'

The prayer is for mandamus requiring the City Council to direct the issuance of a building permit authorizing the construction of the abattoir and for injunctive relief restraining the City from interfering with such construction.

Upon submission and in oral argument, counsel for the City asked us to go beyond the face of the petition and take judicial notice of Sections 886 and 888 of the Code of the City of Houston of 1942. These sections respectively precede and immediately follow Section 887 of the Code which is pleaded by plaintiffs. Though requested to furnish authorities which would authorize us to take judicial notice of these unplead sections, counsel for the City have not furnished or suggested any. We have located Dallas Railway & Terminal Co. v. Price, Tex.Civ.App., Dallas, 1936, 94 S.W.2d 884, 893. That case differs somewhat from the present in that there the Railway Company plead an ordinance by reference to Article number of the City Code and purported by its pleadings to summarize the substance of the entire article as it appeared in the Revised Ordinances of the City of Dallas of 1921. The Dallas court said, 'As the ordinance was pleaded by reference to article number, we were authorized, in determining the correctness of the action of the court in striking out the plea, to take cognizance of the entire article. Courts are at liberty to take judicial notice of a city ordinance either when its existence is admitted, or the same is pleaded by reference to its title or article. See 23 C.J., Evidence, 139, § 1961; Seattle, R. & S., R. Co. v. (City of) Seattle, C.C., 190 F. 75; Buhner v. Reusse, 144 Minn. 450, 175 N.W. 1005. Also see 33 Tex.Jur. p. 557, § 122. So, we do not think it can be said that we added to or amplified the record, as contended by appellant; we simply took judicial knowledge of the entire article pleaded by number, the existence of which, in this way, was admitted by the appellant.' (Emphasis supplied.)

The present pleading is distinguishable from that involved in Dallas Railway & Terminal Co. v. Price, supra, in that here the only provision of the Code which is pleaded by article or section number is Section 887 which is set out in haec verba, though it is true as appears from the foregoing quoted part of the petition that there is a reference to 'all applicable provisions of the city building code and other ordinances' and to 'all appropriate Federal, state and municipal laws covering construction of buildings of this nature.'

For purposes of clarity, we attach hereto as an exhibit the provisions in full of Sections 886-888, both inclusive, of the Code...