Eckert v. Jacobs
| Citation | 142 S.W.2d 374 |
| Decision Date | 26 June 1940 |
| Docket Number | No. 9004.,9004. |
| Parties | ECKERT et al. v. JACOBS et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Travis County; H. A. Dolan, Judge.
Suit by La Rue Jacobs and others against J. C. Eckert and others to enjoin the City of Austin, and its named officers, from interfering with the sale of beer and wine by La Rue Jacobs at and upon his place of business. From a judgment granting a temporary injunction, defendants appeal.
Injunction dissolved, and cause reversed and remanded.
Trueman E. O'Quinn and Horace W. Morelock, both of Austin, for appellants.
Cofer & Cofer, of Austin, for appellees.
Appellees, as plaintiffs below, sued to enjoin the City of Austin, and its named officers, from interfering with the sale of beer and wine by Jacobs at and upon his place of business at 1816 San Jacinto Street. After a hearing, a temporary injunction was granted as prayed for; hence this appeal.
While Jacobs, as tenant, was joined in this suit by the owner of the property, he is the party primarily interested and will be referred to as appellee. And for convenience the appellants will be referred to as the City.
The suit involves the validity, and application to appellee, of the general comprehensive zoning ordinance adopted by the City in July, 1937. It classified all properties within the city, that here involved, facing upon San Jacinto Street between 15th Street and 19th Street, being classified as "C-2" Commercial, on which sale of beer was thereafter prohibited, but excepted therefrom those already legally engaged in such business in this area at the time the ordinance took effect. Jacobs knew these facts when he leased said premises in June, 1939. He first applied for a permit from the City to sell beer on said premises, which was denied. He then sought a reclassification of these premises so as to authorize the sale of beer under the ordinance, and this was unanimously denied by the Zoning Board and by the City Council. He thereupon filed this suit.
The grounds asserted were that the ordinance was invalid in several specific respects; or, if valid, that it was sought to be enforced against him in a discriminatory manner. The asserted invalidity was predicated upon the following contentions:
1. That it violated Sec. 10 of Art. I of the Constitution, Vernon's Ann.St., and Art. 3 of the Penal Code, in that it made a violation thereof a criminal offense, and was so indefinite and uncertain as to be void. This for the reason that the area involved was not defined by any field notes, monuments or natural objects, but only by reference to a "Use District Map" which was attached to, and by reference made a part of, the ordinance.
2. That it violated the City Charter provision, in so far as the map was concerned, requiring all ordinances to be signed by the Mayor, or two Councilmen, and to be recorded before same became effective.
3. That the area involved was arbitrarily zoned contrary to the actual facts as they then existed.
4. That it was in conflict with Art. 667—10½ Penal Code as amended, Vernon's Ann.P.C. art. 667—10½ (see Acts 44th Leg. 2nd C.S., Ch. 467, p. 1795; amended by Acts 45th Leg. 1st C.S. Ch. 13, p. 1768), commonly known as the Liquor Control Act.
We do not find it necessary to determine whether the ordinance in question is sufficiently definite and certain as a penal ordinance to sustain a criminal conviction for a violation of it or not. This is not a criminal prosecution and that issue is not here presented. This is a civil proceeding involving the exercise by the City of its police power to regulate, by inhibiting in defined areas of the City, the right to carry on a character of business which the citizen does not have the inherent right under the Constitution and laws of the State to engage in; but one which he may engage in only by permission of the State. Even if the penal provisions are invalid, which we do not determine, that would not necessarily render void the other provisions as a zoning regulation which constitute a rule of civil conduct. As to the latter, the rule of strict construction does not apply; and an act which is insufficient as a penal act may still be valid as a rule of civil conduct. West Texas Coaches v. Madi, Tex.Com. App., 26 S.W.2d 199; Houston & T. C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W. 2d 995; 42 C.J. 631. Criminal prosecution was not the only method by which the City could enforce such ordinance, hence the criminal provisions are severable from the regulatory provisions. Violation of the latter could, under the express provisions of the ordinance itself, have been effectively enforced by injunction against the pursuance of such business in prohibited areas.
The ordinance proper did not undertake to define classified areas in the City by metes and bounds nor by lot and block numbers on the streets and avenues of the City. It referred to and made a part of the ordinance an official "Use District Map" attached thereto. Appellee urges that this map was not recorded as required by law and by the City Charter, until after this suit was filed. While this original map was, it appears, at one time detached from the original ordinance for the purpose of making official copies thereof for use by the City; no contention is made that such map did not correctly reflect and delineate the true location and classification for zoning purposes of all the properties within the City. The map was available, as a part of the ordinance, for public inspection at all times, and readily disclosed the zoning classification of the property involved. Appellee Jacobs encountered no difficulty in ascertaining the classification of the property involved and knew such facts before he leased it. So far, therefore, as the zoning classification was concerned, we think this ordinance by reference to, and by expressly making a part thereof, an official map attached to it, which was at all times available for public inspection, and the correctness of which is not questioned, was sufficiently definite and certain to inform anyone of the zoned status of any area in the City, and to readily disclose the classification of the property involved. As a rule of civil conduct, and in the exercise of the police power by the City, such zoning ordinance, the general character of which has been repeatedly before the courts of the country, was valid. While the exact contention here made was not urged in Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the...
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