King v. Guerra

• Decision Date: 02 November 1927
• Docket Number: (No. 7830.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 1 S.W.2d 373
• Parties: KING et al. v. GUERRA.
• Court: Texas Court of Appeals

1 S.W.2d 373

KING et al. v. GUERRA.

(No. 7830.)^*

Court of Civil Appeals of Texas. San Antonio.

November 2, 1927.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Mandamus by Henry A. Guerra against Dr. W. A. King and others, in which third parties intervened and prayed for injunction against plaintiff. From a judgment granting writ of mandamus and denying injunction, defendants and interveners appeal. Judgment set aside, judgment refusing injunction affirmed, judgment granting mandamus reversed, and judgment rendered refusing writ.

Joseph Ryan, T. D. Cobbs, Jr., and Martin J. Arnold, all of San Antonio, for appellants.

George M. Clifton and Carl Wright Johnson, both of San Antonio, for appellee.

SMITH, J.

The district court, in response to jury findings, granted a writ of mandamus requiring the board of commissioners of the city of San Antonio and its health officer to approve and issue a permit authorizing appellee to construct and operate an undertaking establishment upon premises purchased by appellee for that purpose, and situated on Quincy street, between San Pedro avenue and Jackson street, in said city.

It appears that previous to a formal presentation of the matter to the city commission appellee approached the mayor and two of the commissioners, separately and privately, for the purpose of ascertaining their probable attitude towards appellee's project. The mayor was approached while in a public barber shop, one of the commissioners while passing along a corridor in the city hall, and another while ill at his residence. Upon these occasions, according to appellee's testimony, each of these officials, in one form and degree or another, expressed himself favorably towards appellee's project or the granting of a permit therefor. But when appellee's application for a permit was formally presented to the city commission, while in open session, the commissioners, having in the meantime investigated the matter, unanimously rejected the application, and the refusal thereof was duly entered as the official act of that body. The city health officer whose approval of the application was requisite to the issuance of the permit, declined to grant such approval. The permit having been refused, appellee sought and procured the writ of mandamus requiring its issuance. A large number of the residents of the locality in which appellee seeks to do business joined in a protest, filed with the city commission, against the approval of the requested permit, and intervened in this suit to defeat the mandamus proceeding. Both the city and the interveners have appealed.

It is true, as a matter of course, that the friendly expressions obtained from the mayor and two commissioners, in private conversations — whether made casually, upon impulses of the moment and without definite knowledge or consideration of the true facts of the proposed projects, or whether given deliberately and after mature consideration of all the ascertainable facts — can have no bearing upon the case. Even had they been so disposed, which they deny is the case, those officials, acting singly, individually, and separately, at different places and times and upon different occasions, could not bind themselves in their official capacity, nor the board of city commissioners as a body, nor the government of the city, nor any of its departments. Those expressions, whether of casually friendly acquiescence, or of solemn promises, can have no more bearing upon the official matter of the issuance of the permit than would similar expressions from any private citizen wholly disconnected from the city government.

The order granting the writ of mandamus was based upon general findings of the jury that in rejecting appellee's application for a permit the board of commissioners acted capriciously and arbitrarily, and upon specific findings, in effect, that the proposed site is within a "business district," not "thickly populated," and that a proper operation of appellee's undertaking establishment would not "materially endanger the health of any of the inhabitants of said district, by reason of infectious or contagious diseases," would not "materially endanger the comfort of the inhabitants"; that it is reasonably possible for appellee to operate his business in such manner as will not endanger the health of the persons occupying any of the property of the interveners because of contagious or infectious diseases or dangerous germs, or result in depreciation of the value of interveners' property.

The three adjoining blocks on the west, northwest, and north of the proposed site are occupied exclusively by private residences and boarding and apartment houses; the adjoining block on the northeast is similarly occupied, except for a gasoline filling station on the southwest corner; the adjoining block on the east, and the block in which the proposed site is situated, are occupied indiscriminately, in about equal proportions, by business and dwelling houses, some of the latter being used as boarding and rooming houses; the adjoining block on the south is largely occupied by business concerns, and merges into a strictly business section extending from there south into the heart of the business district. Within a radius of two or three blocks from the proposed site are located three churches, three hospitals, and one of the two public senior high schools of the city, attended by more than 1,400 pupils. San Pedro avenue, on which the proposed site abuts, is traversed by a double track street car line, in one of the "most important thoroughfares" of the city, and is but one of at least five streets which converge into a small triangle located within a block of the proposed site, and into which at least two street car lines converge. These conditions create a traffic problem which is necessarily inferred from the facts shown by plats in the record, although not elaborated upon in the evidence.

The record shows that in the operation of the proposed undertaking business the dead bodies of human beings will be carried to appellee's establishment and there "washed," embalmed, and otherwise made ready for burial, and either returned to the place of death, or moved direct to the grave. In the course of appellee's business, now operated at another location in the city, he conducts, on an average, one funeral each day. In the ordinary process, when informed of a death and a desire for his services, appellee dispatches his "dead wagon" to the place of death, where his employees in charge of the wagon receive the body, wrap it in a sheet, place it in a basket, and remove it to the wagon, in which it is transported to appellee's place of business. There it is placed in the dead or embalming room, is "washed," embalmed, prepared for burial, and taken thence in funeral procession directly to the grave, or returned to the place of death, where, in such case, the funeral services are held, and whence the body is carried in procession to the grave; when the body is carried directly from appellee's place to the grave, the funeral services are held in the chapel of appellee's establishment. We pretermit the details of the melancholy processes through which the bodies are received, transported, and made ready for burial, which are dwelt upon in morbid detail in the evidence; and of the relaxations of the bodies during these processes; and of the nauseous conditions preceding and attending the embalming process, which, if this permit be granted, would take place within 15 or 20 feet of the kitchen of an adjacent boarding house in which 15 to 25 people eat and sleep and live the only homes lives vouchsafed them by their conditions, and in close proximity to other and even larger boarding and rooming houses.

From the record disclosed in the foregoing statement arises the controlling question in the case, Shall the official action of the board of city commissioners in refusing the permit be set aside, and the permit issue in spite of their adverse action thereon? As will be hereafter seen, the question may be narrowed to this inquiry, Shall the finding of the board upon issuable facts governing them in a matter intrusted by law to their discretion in a purely governmental function be set aside and a finding of a jury substituted therefor?

The undertaking business is not only lawful, but it is a necessary business. But it is of such nature as to render it subject to regulation under the police powers inherent in municipalities; and, although such business cannot be regarded as a nuisance per se in any situation, yet where it has been sought to establish or operate it in a residential neighborhood, and thus encroach upon and disturb or impair the repose, the comfort, and the freedom of those dwelling in the neighborhood, depreciate the value of their property, depress their spirits, or weaken their power to resist disease, it becomes a nuisance in fact, and courts of equity will restrain such business by injunction. Saier v. Joy, 198 Mich. 295, 164 N. W. 507, L. R. A. 1918A, 825; Meagher v. Kessler, 147 Minn. 182, 179 N. W. 732; Beisel v. Crosby, 104 Neb. 643, 178 N. W. 272; Densmore v. Evergreen Camp, 61 Wash. 230, 112 P. 255, 31 L. R. A. (N. S.) 608, Ann. Cas. 1912B, 1206; Goodrich v. Starrett, 108 Wash. 437, 184 P. 220; Streett v. Marshall (Mo Sup.) 291 S. W. 494; Osborn v. Shreveport, 143 La. 932, 79 So. 542, 3 A. L. R. 955.

But this action is not one brought by the city officials for the suppression of a nuisance by injunction, and the cause is not determinable by the rules applicable to such action. In that case the burden would rest upon those complaining to show by affirmative evidence that the business would constitute a nuisance in fact. Here, however, the rule is quite different, as will be seen. For, instead of the burden being upon the city government, the extraordinary burden rests upon appellee to show that no conclusive, or even controversial or...