Stone v. Kendall

• Decision Date: 22 January 1925
• Docket Number: (No. 222.)
• Parties: STONE, Mayor, et al. v. KENDALL et al.
• Court: Texas Court of Appeals

268 S.W. 759

STONE, Mayor, et al. v. KENDALL et al.

(No. 222.)

Court of Civil Appeals of Texas. Waco.

January 22, 1925.

Appeal from District Court, McLennan County; Sam R. Scott, Special Judge.

Suit by Ben G. Kendall, administrator of the estate of Mrs. R. P. Chamberlain, deceased, and others, against Thomas P. Stone, Mayor, and others. From an order granting a temporary injunction, defendants appeal. Affirmed.

John McGlasson and W. L. McConnell, both of Waco, for appellants.

Sleeper, Boynton & Kendall, of Waco, for appellees.

GALLAGHER, C. J.

This is an appeal from an order of the district court, granting a temporary injunction. Ben G. Kendall, administrator of the estate of Mrs. R. P. Chamberlain, deceased, Miss Jessie Cora Chamberlain, and the American National Bank, a corporation, appellees herein, complaint of Thos. P. Stone as mayor, and of the several other commissioners of the city of Waco, constituting its governing body, appellants herein, and allege that appellees are the owners of certain lands in the city of Waco; that such lands contain large and valuable deposits of gravel; that appellees are and have been for a long time prior to the passage of a certain ordinance of said city, hereinafter set out, operating a gravel pit on said land, and in course of said operation excavating, removing, and marketing said gravel; that the chief value of said land consists of the removal and sale of the gravel therefrom, and that such land has little value for any other use or purpose; and that appellees derive a substantial profit and return for marketing such gravel.

Appellees further allege that appellants, as the governing body of said city, have passed a certain ordinance, which omitting formal parts, is as follows:

"Sec. 1. It shall hereafter be unlawful for any person, firm or corporation to make any excavation, or cause to be made any excavation upon any premises within the city of Waco, for the purpose of removing from such premises, dirt, gravel or any other natural substance in the soil of any premises.

"Sec. 2. It shall also be unlawful for any person, firm or corporation to remove or cause to be removed from any premises in the city of Waco, any dirt, gravel or any other natural substance in the soil.

"Sec. 3. Nothing in this ordinance shall prohibit excavation and removal of substance from premises necessary for the purpose of erecting, building or making other improvements thereon, which improvements shall begin within sixty days after the removal as herein contemplated and construction continued until final completion.

"Sec. 4. Any person, firm or corporation violating any of the terms of this ordinance, shall upon conviction be deemed guilty of a misdemeanor and fined in any sum not exceeding two hundred ($200.00) dollars."

Appellees further allege that appellants have notified them that they intend to enforce said ordinance, and that they intend to cause the arrest and prosecution of appellees and their agents and employees, if they continue to excavate and remove gravel from said lands.

Appellees attack said ordinance, and contend that the same is illegal, unconstitutional, and void for the following reasons:

"(a) That the enforcement of said ordinance would deprive your petitioners of their property and of their privileges and rights therein without due course of law.

"(b) That said ordinance undertakes by its provisions to make unlawful the conduct of a lawful business by your petitioners in the ownership of their property.

"(c) That said ordinance and its provisions are unreasonable and oppressive, and therefore void and of no effect."

Appellees further allege that, if appellants permitted to enforce said ordinance against them, they will be deprived of the use of their property and of the receipt of the profits and income from the same arising out of the operation of said gravel pit; that the value of said property will be practically destroyed; and that they will suffer...