City of Waco v. O'Neal, 1008.

• Decision Date: 13 November 1930
• Docket Number: No. 1008.,1008.
• Citation: 33 S.W.2d 205
• Parties: CITY OF WACO et al. v. O'NEAL et al.
• Court: Texas Court of Appeals

33 S.W.2d 205

CITY OF WACO et al. v. O'NEAL et al.

No. 1008.

Court of Civil Appeals of Texas. Waco.

November 13, 1930.

Rehearing Denied December 5, 1930.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by T. J. O'Neal and others against the City of Waco and others. From orders granting an injunction, the defendant named appeals.

Reversed, and temporary writ of injunction dissolved.

John McGlasson and George Morrow, both of Waco, for appellant.

J. W. Spivey and F. R. Valantine, both of Waco, for appellees.

BARCUS, J.

Appellees instituted this suit against the city of Waco, a municipal corporation, and H. A. Barron, its chief of police, to restrain by injunction said defendants, their agents, servants, and employees, from enforcing the following ordinance passed by the city of Waco on May 20, 1930: "It shall hereafter be unlawful for any person, firm, corporation or association of persons, acting for himself or itself individually or as agent, servant or employee of any other person, firm, corporation or association of persons, to sell, barter, exchange, or offer for sale, barter or exchange, from any vehicle, pack, package, bundle or any character of receptacle, any kind of personal property, or sell, barter or exchange or offer for sale, barter or exchange, livestock or poultry from any kind of vehicle upon any part of the public square in the City of Waco, including the sidewalks thereof." Said ordinance provided a penalty for a violation thereof of a fine not exceeding $100.

Appellees, being eight in number, alleged that they lived in McLennan county and were farmers, truck, vegetable and fruit growers, stock and poultry raisers, and raised feed-stuff and other products and commodities commonly grown or raised upon farms and truck gardens; and that they brought this suit for themselves and all others similarly situated. They alleged that the public square in Waco had been by deed conveyed to the city of Waco in 1850; that same had been since said time used as a public market place, where farmers, truck growers, and people dealing therein could bring their products for sale; that if the ordinance was enforced it would destroy their business, because they would have no place in which to display their farm and truck products for sale; that the ordinance was in violation of their constitutional right to enjoy life, liberty, and the pursuit of happiness; that they had a prescriptive right to the use of the public square as a place for the sale of their farm products; and, further, that the city was estopped from denying them said privilege by reason of its acquiescence for a long period of time in said public square being so used.

The trial court, when the petition was presented, granted a temporary restraining order. Appellant filed a motion to dissolve upon the ground, among others, that appellees' petition did not state any cause for either a temporary or permanent injunction being granted. The court, in chambers, heard the motion to dissolve, and overruled same and continued in force the temporary injunction until the further orders of the court. The city of Waco alone prosecutes this appeal from said injunction.

Appellees contend that, since the granting of a temporary injunction is lodged largely in the discretion of the trial judge, the judgment should be affirmed, unless it clearly appears the trial court has abused his discretion. As we understand, appellant does not take issue with appellees upon the above general proposition of law. Appellant's contention is that appellees' petition does not, taken in its most favorable aspect, present any ground or reason for the trial court's granting either a temporary or permanent injunction, its contention being that, if each and every fact contained in appellees' petition is true, the trial court would not then have the right to enjoin the enforcement of said ordinance. The underlying question, therefore, to be determined is the right of appellant as a municipal corporation to control the public square, and whether, in the exercise of its control thereof, it has the inherent power and right to absolutely prohibit the barter and sale of farm products, stock, and poultry thereon.

The original deed conveyed the public square, streets, and alleys to the city of Waco, to be used perpetually for said purposes. Appellant is a municipal corporation, acting under the Home Rule Amendment Act and organized under the commission form of government. Article 238 of its charter provides: "The board of commissioners shall have exclusive control and power over the streets, alleys, public commons, grounds and highways of the City, both upon, above and below the surface thereof, and to abate and remove obstructions thereof * * * to prevent the encumbering the same and sidewalks in any manner whatsoever, to regulate the use thereof by the public."

Article 35 of said charter reads: "The ownership, right of control and use of the streets, alleys, parks, reserve in front of the city facing the river, known as commons, and all other real property of the City of Waco is hereby declared inalienable to said City and dedicated to public use only."

Article 36 of said charter reads: "The board of commissioners shall take such steps as may be necessary to recover and restore to public use only, within a reasonable time, all and every part of the property conveyed by J. de Cordova and N. A. Ware by deed dated the 10th day of June, 1850 (being the property specifically described in the petition filed by appellees in this case), and said board shall take such steps as may be necessary to remove, within a reasonable time, from said property all persons occupying, holding or using the same, or any part thereof, for private purposes or to the exclusion of the public."

It is thus seen that by special charter provisions, in addition to the general powers conferred by statute, the board of commissioners of appellant have absolute and unconditioned control over the public square, streets, alleys, and all other property belonging to it.

The question whether the governing body of a municipal corporation has the right to prohibit the use of the streets and public squares or other property owned by it, by the public generally as a place on which they may ply their trade or business, has been the source of much litigation, not only in Texas, but in the entire United States. The courts have uniformly held that the individual citizen has no vested right in public property owned by a city, and that its governing body has the right, with reasonable limitations, to control same, and may absolutely prohibit the use of its streets and public property for any private use when it determines same is for the best interest of the public. 44 C. J. 1100, states the rule as follows: "The municipality holds the property (such as parks, public squares and commons) in trust for the use of the public, and cannot use or permit its use for purposes other than that for which it was dedicated or acquired and appropriated * * * The municipal...