Patterson v. City of Dallas

• Decision Date: 23 February 1962
• Docket Number: No. 15989,15989
• Citation: 355 S.W.2d 838
• Parties: Andrew Jackson PATTERSON et al., Appellants, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 838

355 S.W.2d 838

Andrew Jackson PATTERSON et al., Appellants, v. CITY OF DALLAS, Appellee.

No. 15989.

Court of Civil Appeals of Texas, Dallas.

Feb. 23, 1962.

Rehearing Denied March 16, 1962.

Erhard, Cox & Ruebel, dallas, for appellants.

H. P. Kucera, City Atty., and Ted. P. MacMaster, Asst. City Atty., Dallas, for appellee.

WILLIAMS, Justice.

Appellants sought to enjoin the City of Dallas from enforcing the provisions of Section 8-28 of the Code of Civil and Criminal Ordinances of the City of Dallas, said Section of the City Code being a part of a comprehensive Ordinance regulating the operation of massage establishments. The Section of the Code under attack reads as follows:

'It shall be unlawful for any person to administer a massage as defined in Section 8-12 to any person of the opposite sex; provided, however, that this Section shall not apply to any Chiropractor, nor shall it apply to any registered physical therapists, or registered nurse operating under the direction of a physician. (Ord. 7856, Sec. 15; Ord. 8491, Sec. 1.)'

Appellants alleged that they had procured a valid license issued under the provisions of the Code regulating massage establishments but contended that the above quoted section of the Code was unenforceable in that it was arbitrary, discriminatory and unreasonable, and also was in violation of the State and Federal Constitutions. The City, in its answer, contended that Section 8-28, as well as the entire Code regulating such massage establishments was enacted under express Charter powers and under the general exercise of its Police Powers to prohibit, abate and suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the City of Dallas.

The trial court rendered judgment denying appellants' injunctive relief, specifieally holding that the Section of the Code under attack was a reasonable exercise of the Police power of the City of Dallas and did not violate the Constitutional rights of appellants. From this order appellants appeal, contending in five points of error, that Section 8-28 should be declared invalid because (1) the Section complained of constitutes an unreasonable exercise of legislative authority of the City of Dallas; (2) that it constitutes an unreasonable regulatory act which is a prohibition of the occupation of appellants; (3) that the Ordinance violates and contravenes Section 3, Art. 1, of the Constitution of the State of Texas, Vernon's Ann.St; (4) that the Ordinance contravenes Section 19, of Art. 1, of the Constitution of the State of Texas; and (5) that the Ordinance violates and contravenes the Fourteenth Amendment to the Constitution of the United States dealing with equal protection and due process of law. We are unable to agree with appellants on any of these points and therefore overrule them.

Section 8-12 through Section 8-28 of the City of Dallas' Code of Civil and Criminal Ordinances constitutes a very comprehensive ordinance dealing with the establishment and regulation of massage establishments. By its various Sections it is made unlawful for any person to operate a massage establishment without a license; requires an investigation by the Chief of Police as to the character, criminal record and general reputation for common decency ot the applicant, or any employee; requires information to be supplied to the Health Department; requires medical certificates from the Health Department; governs appeals from refusal to grant or renew a license; grant rights of inspection; establishes comprehensive sanitary requirements; and finally makes it unlawful for any person to administer a massage to any person of the opposite sex, with the named exemptions. The testimony is without dispute in this record that the appellants obtained a license to operate a massage establishment known as AVALON BATHS in the City of Dallas pursuant to the provisions of the regulatory Code described above. At the time the application was made for a license it was represented to the Police Department that only registered nurses or registered physical therapists operating under the direction of physicians were employed at the AVALON BATHS. It was stipulated that the AVALON BATHS does not have any registered physical therapists or registered nurses registered by the State of Texas operating under a july licensed physician. Captain W. P. Gannaway, Captain of Detectives, and commanding officer of the Special Service Bureau of the Police Department, of the City of Dallas testified that he had made an investigation of the AVALON BATHS and that same was being operated in violation of the Ordinance. He testified further that over the past several years the Police Department had an increase in problems confronting the Department with reference to the proper operation of massage establishments and that recommendations were made to the City for proper Ordinances to regulate same; that specifically the Police Department was confronted with a general problem that lewd acts were committed by the operators of the AVALON BATHS; that one of the appellants, Evelyn DeWitt, had been arrested at another location for offering to commit a lewd act on one of the undercover agents of the City.

That the City of Dallas had the right and authority to license and regulate persons or groups of persons engaged in business, occupation, profession or trade is not questioned. Section 5, Charter of the City of Dallas; Section 23, Art. 1175, Vernon's Ann.Civ.St. Appellants concede this authority but contend that this regulation by the municipal authority must be reasonable and not arbitrary or discriminatory. It is their contention that while the Police power of the City is broad and expansive, it must bear a reasonable and substantial relationship to the end sought to be achieved by the legislative body. The question is directly presented: Does Section 8-28 of the Code of Civil and Criminal Ordinances of the City of Dallas bear a reasonable and substantial relationship to the ends sought to be achieved by the legislating body, or does same arbitrarily establish a fixed Code of conduct which bears but a remote speculative and conjectual relationship to any valid results sought to be achieved under the Police power?

To answer this question we are governed by the well-established rules which are succinctly stated by the court in Sitterle v Victoria Cold Storage Co., (Tex.Civ.App.), 33 S.W.2d 546, 549:

'The power being expressly granted by the Legislature, the time for assuming and the manner of exercising it rest within the sound discretion of the governing board of the municipality. Under such authority, the board may determine the questions of the necessity of exercising the power, and of the method of giving effect thereto, and its determination of those questions is final and conclusive, and may not be revised by the courts, in the absence of clear and conclusive evidence that the board had acted arbitrarily and without reason. And is such situation the burden rests upon those aggrieved to make such showing.'

Thus, we are not authorized to declare the Ordinance void vel non unless it clearly and unequivocally appears that the Ordinance was enacted without any basis of reason therefor. Moreover, we are governed by the well-established rule of construction of Statutes and Ordinances that a presumption exists that the legislative body has acted within its power. 12 Tex.Jur.2d Sec. 42, p. 385; Chimine v. Baker, 32 Tex.Civ.App.520, 75 S.W. 330; Houston & T. C. R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850.

From the undisputed testimony of Captain Gannaway, and considering the record as a whole it is apparent that the Police Department of the City of Dallas was confronted with a real problem in the operating of massage establishments because of lewd acts committed or arising from the massaging of a person of one sex by a person of another sex. In an effort to correct this evil the Police Department of the City of Dallas made investigations and collected facts which were presented to the attention of the City Council of the City of Dallas with the recommendation that the Ordinance in question be passed in an attempt to curb the evil which then existed. It is to be observed that the Section under attack prohibits a member of one sex from administering a massage to a person of the opposite sex, with the exception noted. It does not prohibit, but permits, a masseur to administer a massage to a member of the male sex, and a masseuse to administer a massage to a member of the female sex. The right to conduct a massage establishment, after complying with the Massage Ordinances and securing a permit, is not prohibited but is merely regulated. This record does not demonstrate failure on the part of the City Council to perform its legal functions. Appellants have failed to sustain their burden of proof to show that the Ordinance complained of was enacted without reason or that it was enacted arbitrarily.

In construing a municipal ordinance we are governed by the same rules as to the construction of Statutes. Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720; Town of Port Acres v. City of Port Arthur, (Tex.Civ.App.), 340 S.W.2d 325. In construing Legislative Statutes, as well as Ordinances, it is the duty of the court to ascertain the Legislative intent and this intent should be given effect if it is reasonable and not arbitrary. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680. Municipalities have the right to classify persons and the constitutional guarantee of equal rights and privileges to all citizens is not violated by discrimination provided there is a reasonable ground for such discrimination. Mims v. City of Fort Worth, Tex.Civ.App., 61 S.W.2d 539. Based upon these fundamental rules and applying them to the record in this case, we are of the opinion that the clear legislative intent of the City of Dallas in enacting the...