"An Ordinance.
"Whereas, the Oriental Oil Company, Grover C. Cain and P. J. Cain have cut the sidewalk at the southwest corner of Travis and St. Mary's streets, on both the Travis street and St. Mary's street sides, for the purpose of permitting and inviting the ingress and egress of automobiles to and from a gasoline filling station, which they propose to establish and maintain at said point; and
"Whereas, said sidewalks have been cut without the proper permission, required by the ordinances of the city of San Antonio; and
"Whereas, said sidewalks are located in one of the busiest and most populous parts of the city and the use of same by autos will be extremely dangerous to the public and practically destroy the use of said sidewalks as such; and after a public hearing at which said parties were represented the commission has decided that such use of the sidewalks is a public nuisance: Therefore,
"Be it ordained by the commissioners of the city of San Antonio:
"Section 1. That the operation or maintenance of a gas-filling station to be reached by cars driving over, across or upon the sidewalks at the corner of Travis street and St. Mary's street as aforesaid would be and the same is hereby declared to be a menace to the public safety and a public nuisance.
"Sec. 2. That the Oriental Oil Company and the said Grover C. Cain and P. J. Cain, their servants, agents and employés, and all other persons, are hereby forbidden to establish or maintain a gas-filling station at said point, to be reached by cars driven over or upon said sidewalks or to proceed further with the work being done at that point upon said sidewalks.
"Sec. 3. The said Oriental Oil Company and the said Grover C. Cain and P. J. Cain are hereby ordered and instructed to forthwith restore said sidewalks to the condition in which same were prior to the time they were out, said restoration to be done under the supervision and direction of the city engineer, and said sidewalks in their present condition are hereby declared to be a public menace and a public nuisance. In the event said parties shall fail and refuse same forthwith, then and in that event the city engineer is directed to restore said sidewalks at the expense of the said Oriental Oil Company, Grover C. Cain and P. J. Cain.
"Sec. 4. The chief of police of the city of San Antonio and the other police officers acting under his direction, are specially instructed to enforce the provisions of this ordinance by obstructing any further work on said sidewalks, save as provided for herein, and by restraining the use of said sidewalks at this point by automobiles crossing or attempting to cross same or drive thereon.
"Sec. 5. Any person, firm or corporation, their agents or employés, violating any provisions of this ordinance or refusing to comply with any provision thereof, shall be guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not less than five ($5.00) dollars nor more than twenty-five ($25.00) dollars, and each separate day on which said parties shall violate said ordinance or refuse to comply therewith shall constitute a separate offense.
"Sec. 6. This ordinance, being an urgent public necessity by reason of the facts apparent upon the face thereof, and being for the immediate preservation of the public safety and welfare, and being passed by a four-fifths vote of the commissioners, shall take effect from and after its passage and approval.
"Passed and approved, this 10th day of October, A. D. 1917.
________
"Mayor of the City of San Antonio
"Attest: _______, City Clerk."
"That the plaintiff Oriental Oil Company has leased certain property in the city of San Antonio, in accordance with a lease, a copy of which is hereto attached, marked `Exhibit A' and made a part hereof for all purposes, as fully and completely as if incorporated herein, said contract providing, among other things, for a lease by the said Oriental Oil Company of certain property at the corner of St. Mary's and Travis streets in city block 403 in the city of San Antonio, Bexar county, Tex., said property having a frontage of 62 feet on the west side of St. Mary's street and extending back 168 feet to the south side of Travis street. Said lease also provides for the erection of a building to cost $2,500 more or less, and for the payment of a monthly rental by the Oriental Oil Company to the Bancroft Building Company of $325 per month, payable in advance, the first payment becoming due on October 15, 1918. Said lease further provides that it cannot be assigned without the consent of the lessor, and many other provisions fully set out in said lease, Exhibit A.
"That said lease was executed on the 16th day of August, 1918, and shortly thereafter the Oriental Oil Company entered into a contract with Ed. N. Oeffinger for the construction of a certain building on said property to cost $3,600; that a copy of said contract is attached hereto, and marked `Exhibit B,' and made a part hereof for all purposes, and that, among the provisions of the said contract, is an agreement by the said E. N. Oeffinger to complete said building in accordance with certain plans and specifications, a copy of which is attached hereto and made `Exhibit C.' And to secure said contract a bond was executed, a copy of which is hereto attached, marked `Exhibit D,' and made a part hereof for all purposes. Said contract further provides that the work shall be done in accordance with the city ordinances covering this class of work, and it further provides that the Oriental Oil Company agrees to pay to the said Ed. N. Oeffinger $3,600 on the completion of the job, on presentation of the receipted bills for labor and material entering into said building.
"Plaintiffs further represent that thereafter the Oriental Oil Company, through its proper agents, applied to the building inspector, John
L. Richter, of the city of San Antonio, for the permit for the erection of said building, and that they secured said permit on September 4, 1918, a copy of same being hereto attached, marked `Exhibit E' and made a part hereof for all purposes.
"That thereafter M. J. Kane, a subcontractor under plaintiff Oeffinger, applied to the city engineer of the city of San Antonio, for the furnishing of grades and directions for cutting the sidewalks and curb on Travis street and also on St. Mary's street, and for the driveways for the oil-filling station, said driveways being fully shown in the plan for said building, shown and exhibited to the building inspector at the time said building permit was issued, and that in pursuance of that request an assistant to the city engineer, who was duly authorized to do so, did come to the property described herein, showed the subcontractor where to cut the sidewalk and curb on each of said streets, and did give them the grade of the sidewalk, and did tell them how to construct said driveways and entrances thereto, and told them to proceed with the work.
"That said work was done in strict accordance with said instructions, and proceeded toward completion until October 6, 1918, when Phil. L. Wright, one of the defendants herein, acting under his own initiative, or under instructions from the mayor, appeared at the side of the building, stopped all work, and threatened to put in jail any one doing any further work on this property of any kind or character, with reference to the use of the driveways and contemplated construction of the sidewalks and curbs.
"Plaintiff Ed. N. Oeffinger represents that he is unable to complete the driveways provided for in the contract because the city of San Antonio, through its mayor, Sam C. Bell, and its commissioner of fire and police, Phil. L. Wright, has stated to the said M. J. Cain, subcontractor, and to the agents of the Oriental Oil Company, that if they continue with the work, and if they do not restore the sidewalk and curb as it was prior to the time it was changed, they will have all of them arrested and prosecute them for a violation of some of the city ordinances.
"Plaintiffs further represent that the city of San Antonio, through its building inspector, knew that the driveways, as shown by said map attached hereto, and marked `Exhibit F' were to be placed as now partially constructed, and that same was known to many of the officials of the city of San Antonio, including the mayor of the city, chief of the fire department, and the fire and police commissioner, Phil. L. Wright.
"That more than one week before the said work was stopped on said building, and while it was under construction, the mayor and Fire Chief Goetz appeared on said property and instructed these plaintiffs to change the location of the gasoline tank that was to be placed underground. That thereafter the mayor of the city of San Antonio and Phil. L. Wright, commissioner of fire and police, appeared on said property, on or about October 4, 1918, and instructed these...
