Neiman-Marcus Co. v. City of Houston, 10395.

• Decision Date: 21 August 1937
• Docket Number: No. 10395.,10395.
• Citation: 109 S.W.2d 543
• Parties: NEIMAN-MARCUS CO. v. CITY OF HOUSTON et al.
• Court: Texas Court of Appeals

109 S.W.2d 543

NEIMAN-MARCUS CO. v. CITY OF HOUSTON et al.

No. 10395.

Court of Civil Appeals of Texas. Galveston.

August 21, 1937.

Rehearing Denied October 14, 1937.

Error from District Court, Harris County; Ben F. Wilson, Judge.

Suit by the Neiman-Marcus Company against the City of Houston and others, to enjoin enforcement of city ordinance.

A judgment on an instructed verdict for defendants, and plaintiff brings error.

Affirmed.

Baker Botts Andrews & Wharton, J. C. Hutcheson, III, and Gains G. Gannon, all of Houston, for plaintiff in error.

R. R. Lewis and Fulbright, Crooker & Freeman, all of Houston (C. A. Perlitz, Jr., and C. A. Leddy, both of Houston, of counsel), for defendants in error.

PLEASANTS, Chief Justice.

For convenience and brevity the parties will be hereinafter designated as plaintiff and defendants.

The following statement of the nature and result of the suit is in substance the statement contained in plaintiff's brief supplemented by statement in the brief of defendants:

Neiman-Marcus Company, a corporation, brought this suit against the City of Houston, its mayor and commissioners, and George A. Woods, director of public health and safety of the City of Houston. The object of the suit was to restrain the enforcement against the plaintiff, its agents and employees, of a certain police ordinance of the City of Houston regulatory of itinerant vendors. A prayer for equitable relief by way of injunction was predicated on the claim that the enforcement of the ordinance, which was alleged to be unconstitutional and void, illegally deprived plaintiff of valuable civil and vested property rights. It was alleged that the plaintiff, Neiman-Marcus Company, in the past had engaged, and in the future desired to engage, from time to time within the City of Houston in the conduct of its business of selling ladies' ready-to-wear in such manner as to subject it to the terms and provisions of the ordinance above referred to; that Neiman-Marcus Company enjoyed an established good will in the City of Houston as a merchant, which was a vested property right; that as aforesaid the ordinance complained of was illegal and void under the Constitutions of both the United States and of the State of Texas, and that its enforcement operated to deprive plaintiff of its property without due process of law and contrary to the due course of the law of the land. The ordinance was further alleged to work an unreasonable discrimination against plaintiff in favor of other itinerant vendors of the same class as plaintiff, so as to deny plaintiff equal protection of law, and as well due process of law and due course of the law of the land. There were appropriate allegations to support the prayer for equitable relief.

The ordinance complained of by plaintiff, and which will be hereinafter set out, was duly passed by the city council of defendant City of Houston on January 4, 1933.

In October, 1933, plaintiff company joined by some of its employees filed suit in the Fifty-Fifth district court of Harris County attacking the constitutionality of the ordinance upon the grounds above set out in the proceedings now before us, and seeking the same relief now prayed for. The defendants presented a general demurrer to the petition then before the court. After hearing argument for several days by the attorneys of the respective parties, Judge Boyd sustained the general demurrer. Thereafter plaintiffs asked leave to amend their petition and, upon such leave being given, plaintiffs then asked leave to take a nonsuit, which was also granted.

After such suit had been thus dismissed, the attorneys representing the plaintiff filed a suit attacking the constitutionality of the ordinance in the United States District Court for the Southern District of Texas, Houston Division. While such suit was pending, it appeared that the court did not have jurisdiction thereof, and it was accordingly dismissed at the cost of the plaintiff. The plaintiff herein thereupon filed the instant suit in the district court of Harris County, Tex., which attacks the ordinance on practically the same grounds as had theretofore been alleged in the prior suit heard before Judge Boyd.

The trial in the court below with a jury resulted in a verdict and judgment in favor of defendants, the jury having been instructed by the court to render such verdict. Pending the appeal the trial court on motion of plaintiff for a temporary injunction pendente lite made the following order:

It is, therefore, ordered, adjudged, and decreed by the court on this the 15th day of September, A.D.1934, that the general demurrer of the defendants, and each of them, to the petition of the plaintiff be, and the same is hereby, in all things overruled and denied, to which action of the court in so overruling the general demurrer of the defendants, and each of them, the defendants and each of them, then and there in open court excepted. Thereupon the court announced that he was of the opinion that plaintiff was entitled to the temporary relief prayed for by it upon giving a statutory injunction bond in the sum of $100, and upon the following additional conditions:

(1) That Neiman-Marcus Company first deposit in the registry of the court the sum of $100, this amount to remain in the registry of the court subject to the further orders of the court, to be returned to plaintiff if the ordinance involved in this case shall eventually be declared invalid but, if the ordinance is eventually upheld, to be used to pay the City of Houston the license fees which the said City of Houston will be entitled to under the ordinance involved herein, on account of any business transacted by Neiman-Marcus Company as an itinerant vendor in the City of Houston under the protection of the injunction of this court during the pendency of this case.

(2) That Neiman-Marcus Company make and file with the clerk of this court the bond required by the ordinance involved herein for the use and benefit of any person or persons who may sustain damage caused by or arising from or growing out of the wrongful, fraudulent, or illegal conduct of plaintiff while engaging as an itinerant vendor within the meaning of the ordinance of the City of Houston involved herein. This bond shall be in a sum of not less than $2,000 and shall be executed by plaintiff as principal with either two or more good and sufficient personal sureties satisfactory to the clerk of the court, or with a solvent surety company authorized to do business in Texas.

(3) Compliance with the foregoing conditions shall entitle Neiman-Marcus Company to show for one continuous period beginning any time in the month of September, 1934.

As conditions precedent to the injunctive relief hereinafter ordered in connection with any additional showings other than one continuous showing to commence some time within the month of September, 1934, the plaintiff shall:

(1) Deposit with the Clerk in the registry of this court an additional $50.00.

(2) File an additional bond in the sum of not less than $2,000, conditioned as and with the sureties or surety above provided.

(3) Notify the City of Houston by notifying its attorneys of record herein at least ten days prior to the date of any contemplated sale or exhibit to be held in the City of Houston. This notice must be accompanied by a statement showing the kind and character of the goods or merchandise to be offered for sale or exhibited by plaintiff.

It is, therefore, ordered, adjudged, and decreed by the court that upon plaintiff, Neiman-Marcus Company, filing herein a statutory injunction bond in the sum of $100, and upon complying with the foregoing conditions, and each of them, that the defendants, and each of them, their agents, servants, and employees, be restrained and enjoined during the pendency of this suit from prosecuting or instituting prosecutions against the plaintiff, its agents, servants, and employees, and from arresting or otherwise molesting plaintiff, its agents, servants, and employees, under color of the ordinance attacked in this case.

The ordinance complained of by plaintiff is in substance as follows:

Be it ordained by the city council of the City of Houston, Tex.:

Section 1. Definitions: The term "Itinerant Vendor" means and includes and shall be construed to mean and include all persons, firms, and corporations, as well as their agents and employees, who engaged in the temporary or transient business in the City of Houston, Tex., of selling, or offering for sale, any goods, or merchandise, or exhibiting the same for sale or exhibiting the same for the purpose of taking orders for sale thereof; and who for the purpose of carrying on such business or conducting such exhibits thereof either hire, rent, lease, or occupy any room or space in any building, structure, or other enclosure in said City of Houston, in, through, or from which any goods or merchandise may be sold, offered for sale, exhibited for sale, or exhibited for the purpose of taking orders for the sale thereof. The word "temporary" as used above means and shall be construed to mean any such business transacted or conducted in the City of Houston for which definite arrangements have not been made for the hire, rental, or lease of premises for at least one month in or upon which such business is to be operated or conducted. The word "transient" as used above means, and shall be construed to mean, any such business of any such itinerant vendor as may be operated or conducted by persons, firms, or corporations, or by their agents or employees who reside away from the City of Houston, or who have fixed places of business in places other than the City of Houston, or who have their headquarters in places other than the City of Houston, or who move stocks of goods or merchandise or samples thereof into Houston with the purpose or intention of removing them or the unsold portion thereof away from said City of Houston before the...