Schulman v. City of Houston, 244

• Decision Date: 21 July 1966
• Docket Number: No. 244,244
• Citation: 406 S.W.2d 219
• Parties: Al SCHULMAN et al., Appellants, v. CITY OF HOUSTON et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 219

406 S.W.2d 219

Al SCHULMAN et al., Appellants, v. CITY OF HOUSTON et al., Appellees.

No. 244.

Court of Civil Appeals of Texas.

Tyler.

July 21, 1966.

Rehearing Denied Sept. 22, 1966.

Joseph D. Jamail, John Gano, Houston, for appellants.

Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for appellee, city of Houston.

Fulbright, Crooker, Freeman, Bates & Jaworski, Alton F. Curry, DeLange, Hudspeth, Pitman & Katz, M. Marvin Katz, Eugene J. Wilson, Houston, for appellee, United Compost Services, Inc.

DUNNAGAN, Chief Justice.

This is an injunction suit. The City Council of the City of Houston, Harris County, Texas, in discharging its lawful duties for the regulation and disposal of garbage for the city, investigated the various means and methods of disposal of garbage to meet the further needs of the city. Pursuant thereto, the duly qualified voters of the city were asked to vote on and voted in favor of a contract for disposal of garbage by composting or other effective methods for a term not to exceed twenty years.

After advertising for public bids, on or about March 24, 1965, the city negotiated and entered into a contract with United Compost Services, Inc., for the construction and operation of a compost plant at 4200 Beechnut Street located in the southwest area of the City of Houston.

Appellants instituted this suit seeking a temporary injunction, and permanent injunction upon final hearing, to prohibit appellees, City of Houston and United Compost Services, Inc., from further contruction of a garbage compost plant under the contract executed between the city and United Compost, and to prohibit the operation of the plant once completed.

After a hearing before the 129th District Court of Harris County, appellants' application for temporary injunction was denied, and appellants duly and timely appealed from said order.

The appellants in their brief make the following contentions: 'The Appellee, City of Houston, and the Appellee, United Compost Services, Inc., are unlawfully engaged in the performance of an invalid contract by their construction and intended operation of a garbage compost plant on the site in question situated in the 4200 block of Beechnut Street. The Appellees are unlawfully engaged in the expenditure and intended and threatened expenditure of public funds illegally and pursuant thereto. The Appellee, City of Houston, is unlawfully engaged in donating public properties to, and in aid of the Appellee, United Compost Services, Inc. The Appellee, City of Houston, is unlawfully engaged in lending its credit to and in aid of the Appellee, United Compost Services, Inc. * * * the City of Houston is unlawfully engaged in the illegal diversion of bond funds, and is unlawfully engaged in putting such site to the private use of the Appellee, United Compost Services, Inc., in violation of the dedication and use imposed upon such property. * * * the Appellees threaten a continued and repeated violation of statute in their proposed and intended dumping of 300 tons of garbager per day within less than 300 years of a public highway, and the Appellees further threaten the conduct of a public nuisance upon such site. * * *' Appellants further contend that they have no adequate remedy at law and that the court erred and abused its discretion in denying appellants' application for injunction.

Appellants are resident citizens of, and the owners of, taxable real property in the City of Houston. Each appellant is a taxpayer of and to the City of Houston, ad valorem taxes being, and having been, levied and assessed upon their property and collected from each appellant, by the City of Houston. Appellants contend that they are beneficiaries of and have a real interest in the trust funds and the public funds of the City of Houston, and in the breach of each trust and diversion of such funds by the city.

Appellee, United Compost Services, Inc., contends that the trial court properly denied the application for temporary injunction as appellants have no standing to maintain this suit. The City of Houston joins in this contention. We sustain this contention.

The City Council, in the exercise of its discretion, selected the present site of the compost plant in the southwest part of the city on property already owned by the city, adjacent to an existing city police substation where the parking lot was currently being used for parking of the city garbage trucks. The tract is completely surrounded by the police substation, a city sewage disposal plant, the City of Bellaire Truck Maintenance and Repair Barn, Bellaire Sewage Treatment Plant, the Southern Pacific Railroad line, the Humble pipe line and the light and power company strip.

The manner or method of the disposal of garbage and the site for such disposal are in the sound discretion of the governing body of a home-rule city such as the City of Houston; and neighboring land-owners cannot enjoin the construction or operation of such plant unless it is shown that the city's selection of the site was arbitrary and capricious. Bright v. City of Corpus Christi, 172 S.W.2d 763 (Tex.Civ.App.) 1943, n.w.h.; Stone v. City of Wylie, 34 S.W.2d 842 (Tex.Com.App.) 1931; Sheffield v. Town of Duncanville, 236 S.W.2d 851 (Tex.Civ.App.) 1951, writ ref., n.r.e.; Cheek v. Beckworth, 292 S.W.2d 158 (Tex.Civ.App.) 1956, writ ref., n.r.e.; Kimbrough v. Walling, 371 S.W.2d 691 (Tex.S.Ct.); City of San Antonio v. San Antonio Irrigation Co., 118 Tex. 154, 12 S.W.2d 546 (Tex.Com.App.); and 64 C.J.S. Municipal Corporations § 1803, page 265.

The Bright case cited is similar to the case now before us. In that case, citizens sought to enjoin the city and a Texas Gulf Construction Company from construction of a garbage disposal plant in close proximity to their residences and properties. The Court of Civil Appeals affirmed the trial court's judgment for the defendants on an instructed verdict, holding, 172 S.W.2d, p. 764:

'* * * The selection of a site for a garbage disposal plant was a matter addressed to the sound discretion of the City Council and their action in such matters cannot be disturbed unless it is shown that they have abused their discretion and acted arbitrarily and capriciously. * * * The burden was upon appellants to show that there was no reasonable basis for the selection of the site made by the city. This they failed to do. * * *'

The record in this case does not reveal any act of the City Council of the City of Houston which is arbitrary, capricious or unreasonable.

Furthermore, the garbage compost plant is a permanent improvement designed to take care of the ever increasing needs of the city for the disposal of garbage, and it is to be maintained for the public purpose of disposing of garbage and for the welfare of the community . It is a lawful business and an operation not subject to abatement by injunction by citizens of the city. Appellants' remedy, if any at all, is at law if the compost plant should in fact be operated as a nuisance to their damage. Stone v. City of Wylie, supra; Atkinson v. City of Dallas, 353 S.W.2d 275 (Tex.Civ.App.) 1961, writ ref., n.r.e., cert. denied, 370 U.S. 939, 82 S.Ct. 1587, 8 L.Ed.2d 808; City of Dallas v. Winans, 262 S.W.2d 256 (Tex.Civ.App.) 1953, n.w.h.; Dudding v. Automatic Gas Co., 145 Tex. 1, 193 S.W.2d 517 (Tex.S.Ct.) 1946; Williams v. City of Dallas, 52 S.W.2d 373 (Tex.Civ .App.) 1932, n.w.h.; Boyd v. City of San Angelo, 290 S.W. 833 (Tex.Civ.App.) 1927, err. ref.; Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (Tex.S.Ct.) 1950.

In the Boyd case, supra, the Court of Civil Appeals affirmed the trial court's judgment denying the appellants' application for injunction against the city erecting and maintaining a sewage disposal plant next to appellants' property. The court held, 290 S.W. p. 835:

'If operation of such plant, which is essential to the welfare of the community, damages appellants' property, they have their remedy at law, but that question must be left to the test of operation. * * *'

Appellants attempt to sustain their right to bring this suit by virtue of being taxpayers and because they claim injury to them would necessarily result from the construction and operation of a compost plant. This claim of injury is made even though not any of their witnesses were in a position to testify that they had any knowledge whatever of the particular process to be used by appellee, United Compost.

A reading of the evidence shows that appellants have wholly failed to show any special damage to themselves or that they have no adequate remedy at law. It is significant that there has been no attempt made to show that the cost of processing garbage by composting would exceed the current cost of garbage disposal by other methods. Nor has it been shown that the city and/or United Compost are not able to respond in damages.

The general rule setting forth the circumstances which will enable a taxpayer to institute a suit for injunctive relief is set forth in 40 Tex.Jur.2d, Municipal Corporations, Sec. 427, where it is said, p . 118:

'A taxpayer may bring an action to enjoin the making or the performance of an invalid contract where he is able to show that the execution of the contract will financially affect him, and that he has no adequate remedy at law. He is not authorized to maintain a suit by the mere fact that the contract is illegal. * * *

The above language is clearly supported by the Texas cases, beginning with the Supreme Court decision in Altgelt v. City of San Antonio, 81 Tex. 436, 17 S.W. 75, 13 L.R.A. 383 (Tex.S.Ct.) 1890, wherein a taxpayer sought to set aside a contract between the city and water-works company and to restrain the city from paying out any municipal funds pursuant to said contract, which was alleged to be illegal and unauthorized. The plaintiff contended, among other things, that a monopoly was being permitted; that the city was exempting...