Deckard v. City of Port Lavaca
| Decision Date | 22 February 1973 |
| Docket Number | No. 741,741 |
| Citation | 491 S.W.2d 748 |
| Parties | Charles DECKARD, Appellant, v. CITY OF PORT LAVACA, Texas, Appellee. |
| Court | Texas Court of Appeals |
Cullen, Carsner, Edwards & Williams, Kemper Williams Jr., Victoria, for appellant.
Michael M. Fricke, Port Lavaca, for appellee.
The City of Port Lavaca passed an ordinance designating certain areas of the city as commercial and residential and restricting on-premises sale and consumption of beer to the commercial area. Charles Deckard, appellant herein filed suit against the city to enjoin the operation of the ordinance as to his property, which was placed in the residential area. Trial was to a jury which answered the one question submitted: '. . . that the City Council . . . acted in an arbitrary and capricious manner in zoning the property located at 1819 George Street residential?' 'Arbitrary and capricious' was defined as: '. . . willful and unreasoning action taken without consideration and in disregard of the facts and circumstances of the case.' Judgment non obstante veredicto was rendered. Deckard has perfected this appeal.
The sole question to be decided is whether there was evidence to support the jury's finding.
The caption of the ordinance in question states:
SECTION 1. That for the purposes of this ordinance, the following terms shall have the meaning set out therewith:
A. Commercial: The commercial area for the City of Port Lavaca, Texas for the purpose of this ordinance shall be within the area described below:'
There follows a metes and bounds description of the commercial area. Such area described does not include Deckard's property. The other provisions of the ordinance are:
'B. Residential: The residential area of the City of Port Lavaca, Texas, shall be the entire area contained inside the City Limits except that which is defined as commercial.
SECTION 2. The retail sale of beer for consumption on the premises where the same is sold is hereby prohibited in the residential section of Port Lavaca, Texas.'
Section 3 of the ordinance provides that violation is a misdemeanor and that the ordinance shall be in force July 1, 1971. First reading of the ordinance was May 10, 1971; second reading was May 24, 1971; and it was passed and approved May 24, 1971.
The appellant complains of unreasonableness of the ordinance in that it discriminates against him by its classification. He urges that the J.D. Club and the Satellite Club are in areas similar to that of Robert's Barbeque. Robert's Barbeque, by being placed by the ordinance in a residential section, becomes a location where the right to sell beer on premises is precluded. The other two establishments, by being placed by the ordinance in a commercial section, remain locations where the right to sell beer on premises is retained.
Deckard, the appellant, purchased property known as Robert's Barbeque in June, 1971, after the ordinance in question had been passed. For nearly ten years prior to his purchase of the property, Robert's Barbeque had been a place where beer could be lawfully sold and consumed on premises. The passage of the ordinance made it unlawful thereafter to sell or consume beer thereon. It was stipulated by the parties that the City of Port Lavaca is a Home Rule City located in Calhoun County, Texas.
The sole witness for the appellant was Deckard himself. He testified that Robert's Barbeque was the only on-premises beer establishment included in the new area designated as residential. Further, the J.D. Club and the Satellite Club were in areas in which both commercial and residential uses were in existence, as was the situation as to Deckard's property. The J.D. Club and the Satellite Club were left in the commercial area. Deckard's testimony in conjunction with...
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