Peck v. City of Austin

• Decision Date: 01 January 1858
• Citation: 22 Tex. 261
• Parties: RICHARD H. PECK AND ANOTHER v. CITY OF AUSTIN.
• Court: Texas Supreme Court

22 Tex. 261

RICHARD H. PECK AND ANOTHER

v.CITY OF AUSTIN.

Supreme Court of Texas.

1858.

The granting of a license, by a municipal corporation, for the carrying on of a particular trade, within its limits, such as that of selling butchers' meat at a stall in the city market, in consideration of the payment of a stall rent and license tax, is not a contract to secure such lessee against competition by unlicensed persons; notwithstanding the existence of an ordinance prohibiting the same, and affixing a penalty to its violation.

The failure of the proper officers of the corporation to enforce the provisions of such ordinance against unlicensed sellers, is no defense to a bond given by the lessee for the payment of the stall rent.

Such neglect of duty on the part of its officers, being contrary to the will of the corporation, as expressed in its ordinance, constituted no breach of its contract with the lessee of the market stall.

ERROR from Travis. Tried below before the Hon. Alexanander W. Terrell.

An ordinance of the city of Austin, “to establish a market house for the city of Austin, and to provide regulations for the government thereof,” provided, that no person should establish any slaughter-house within the limits of the city, without the permission of the city council, nor slaughter any butchers' meat, within the same, except for the use of the person so slaughtering, under penalty of fines provided by the section containing this provision. Market house, grounds, and regulations thereof, and for the rent of the stalls to the highest bidder, with license to the renters thereof, to carry on the business of butchering, for one year, in the city market, were provided for by the said ordinance. And further, it was provided, that it should not be lawful for any person, or copartnership of persons, in the city market, directly or indirectly, in person or by another, to sell, barter, or deliver, or knowingly to permit to be sold or delivered, any butchers' meat, game, etc., without a license first obtained, etc., under penalty of such fine, as therein provided.

It was further provided that, upon complaint being made to the mayor, that any provision of the said ordinance had been violated, he should issue his warrant for the arrest of the offender, and try him for the alleged infraction. This ordinance was set forth in defendant's answer, by a copy thereof, attached as an exhibit.

The other facts are stated in the opinion.

Sneed and Walton, for plaintiff in error.

Smith and Campbell, for defendant in error. The city excepted to answer of the plaintiff in error, on the ground that it does not set up or allege any matters that constitute a legal defense to the action; and specially, that the city, as a corporate body, is not responsible for the consequences of the nonfeasance, malfeasance, or unauthorized acts of its officers; that the damages complained of by the plaintiff in error, are too remote to be a proper subject for reconvention; that the remedy for the plaintiff in error (if he has any) is against the city officers, in their individual capacity, and not against the city; and that the answer is too general, vague and uncertain.

The court sustained the exceptions to the answer; and this ruling of the court, is the principal error assigned and complained of. We submit, that there was no error in the ruling of the court. The consideration for the bond, was the use of the market stall, and license to slaughter and sell butchers' meat therein and throughout the corporate limits of the city, without interference or...