Spann v. City of Dallas

• Decision Date: 28 October 1916
• Docket Number: (No. 7591.)
• Citation: 189 S.W. 999
• Parties: SPANN v. CITY OF DALLAS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

189 S.W. 999

SPANN v. CITY OF DALLAS et al.^*

(No. 7591.)

Court of Civil Appeals of Texas. Dallas.

October 28, 1916.

Rehearing Denied December 9, 1916.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Suit for writ of mandamus and for writ of injunction by John R. Spann against the City of Dallas and H. J. Emmins. From a judgment denying the writs, plaintiff appeals. Judgment affirmed.

Read, Lowrance & Bates, of Dallas, for appellant. C. F. O'Donnell and Barry Miller, both of Dallas, for appellees.

RAINEY, C. J.

John R. Spann, appellant, instituted this suit against the city of Dallas and H. J. Emmins for the writ of mandamus to compel the issuance of a building permit by Emmins to him for the erection of storehouses upon lots of his at the northwest corner of Ross and Fitzhugh avenues in the city of Dallas, and for a writ of injunction restraining the defendants and their agents from interfering in the erection of said houses or arresting him for engaging in such work. A hearing was had and the writs of mandamus and injunction were denied, and this appeal was taken.

On May 17, 1915, appellant bought the piece of ground at said corner, which was vacant, with the intention to erect storehouses thereon, and learned from the city attorney that there was no law prohibiting the erection of same on such lot. Soon thereafter, during the first part of June, he approached Otto Lang, commissioner of streets and buildings, and asked for a permit to build such a house, but was refused, Lang stating that "we are waiting to hear from the other citizens in that neighborhood." Afterward appellant made a request of defendant Emmins, building inspector, for a permit to build such a house, which was refused by Emmins because of instructions from Lang, commissioner, not to issue it.

On July 19, 1915, an ordinance was adopted by the city commissioners prohibiting the building of business houses in the resident part of the city without the application was accompanied with the consent of three-fourths of the property owners within a radius of 300 feet of the center of such location.

Appellant seeks to recover in this action upon two theories:

First: "His right to erect storehouses upon his lot is a valuable property right, and, having asserted this right and demanded a building permit at a time when there was no law, either in statute or ordinance, forbidding the erection of such structures, this right became fixed as of the date when he first applied for such building permit, and could not be taken away or limited by the ordinance thereafter adopted by the city, and he is entitled to a writ of mandamus to compel the issuance of the building permit, and to an injunction restraining the city from interfering with his building operations, without regard to the ordinance of July 19, 1915."

Second: "The ordinance adopted by the city July 19, 1915, presents no obstacle to the granting of the relief sought by the plaintiff because it is void on constitutional and other grounds."

These theories embody all the right, if any, of recovery by appellant and will be treated in their order. The first, in effect, invoked the principle of the passage of the ordinance of July 19, 1915, as retroactive, and therefore did not affect his right to erect a storehouse on said lot. For the ordinance to be retroactive it must affect some vested right of appellant in the use of the lot as he desired by reason of his intention to erect thereon a storehouse and make application for a permit to build prior to the passage of the ordinance. The ordinance, as passed, only applied to property in its then condition and to its future use. The appellant had not started the erection of a building for use as a storehouse, and we see no difference in his ownership of said lot than the ownership of any other citizen to any other residence lot in the city of Dallas, so the ordinance is not illegal in that respect, and the question resolves itself into his second contention, which, in effect, is that it was beyond the powers of the board of commissioners to enact such an ordinance as here relied on by the defendants, which prohibits the erection of buildings for business purposes under certain restrictions.

The charter of the city of Dallas was granted it by the Legislature of the state of Texas, and its authority to act in this matter was given it by subsection 2 of section 1, art. 2, of its charter, which provides:

"The city of Dallas shall have power to enact and to enforce ordinances necessary to protect health, life and property and to prevent and summarily abate and remove nuisances, and to preserve and enforce the good government, order and security of the city and its inhabitants; to protect the lives, health and property of the inhabitants of the said city; and to enact and enforce any and all ordinances upon any subject: Provided, that no ordinance shall be enacted inconsistent either with the laws of the state of Texas, or inconsistent with the provisions of this act: And provided, further, that the specification of particular powers herein authorized shall never be construed as a limitation upon the general powers herein granted, it being intended by this act to grant and bestow upon the inhabitants of the city of Dallas full power of self government, and it shall have and exercise all powers of municipal government not prohibited by this charter, or by some general law of the state of Texas, or by the provisions of the Constitution of the state of Texas."

This clause of the charter was evidently intended by the Legislature to empower the city of Dallas to pass all laws essential for the welfare, good order, and prosperity of the citizens resident therein. Such laws fall within what is known as the police powers of the government. The extent to which the police powers of the government will be carried in the enforcement of the welfare of its citizens is not susceptible of precise determination, but it must be limited to exigencies of each case. In the case of Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. 501, 59 L. Ed. 835, where the question of police powers was involved, in an opinion by Mr. Justice Day, the court said:

"The limitations upon the police power are hard to define, and its far-reaching scope has been recognized in many decisions of this court. At an early day it was held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the state, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the state. New York v. Miln, 11 Pet. 102, 139, 9 L. Ed. 648, 662. The police power, in its broadest sense, includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923. It is not subject to definite limitations, but is coextensive with the necessities of the case and the safeguards of public interest. Camfield v. United States, 167 U. S. 518, 524, 17 Sup. Ct. 864, 42 L. Ed. 260, 262. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health. Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. Ed. 596, 609, 4 Ann. Cas. 1175. In one of the latest utterances of this court upon the subject it was said: `Whether it is a valid exercise of the police power is the question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity, * * * and further, "it is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government."' Eubank v. Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192."

In the case of Reinman v. Little Rock, 237 U. S. 170, 35 Sup. Ct. 511, 59 L. Ed. 900, a brick livery stable conducted in the business district was declared by ordinance to be detrimental to the health, interest, and prosperity of the city, and which required its removal, but it was contended by the defendant that the conducting of such business at that place had been encouraged by the city of Little Rock and expenditures made; that the passage of...