Tomassi v. City of San Antonio

• Citation: 268 S.W. 273
• Decision Date: 24 December 1924
• Docket Number: (No. 7259.)
• Parties: TOMASSI v. CITY OF SAN ANTONIO et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

268 S.W. 273

TOMASSI v. CITY OF SAN ANTONIO et al.^*

(No. 7259.)

Court of Civil Appeals of Texas. San Antonio.

December 24, 1924.

Rehearing Denied January 21, 1925.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by William Tomassi to enjoin the City of San Antonio and others from interference with the operation of his butcher shop. From an interlocutory order denying a temporary writ, plaintiff appeals. Affirmed.

Dilworth & Marshall, of San Antonio, for appellant.

Joseph Ryan, T. D. Cobbs, Jr., and W. B. Halbig, all of San Antonio, for appellees.

FLY, C. J.

This is an appeal from an interlocutory order by the lower court denying a temporary writ of injunction which was sought by appellant against the city of San Antonio, its mayor and commissioners, its collector of licenses and dues, and its city clerk, to retrain them from interfering with appellant in the operation of a butcher's shop on his property at 901 West Travis street.

This appeal being based on the denial of the temporary writ of injunction, we do not intend to discuss the propriety of a general demurrer being sustained, except as an incident to the application for injunction. The only question before this court is, was the injunction properly denied, and if the bill was not sufficient to obtain an injunction, of course, it was properly denied. To obtain the injunction it became necessary under the bill to assail the validity of a certain ordinance which is as follows:

"Be it enacted by the city council of the city of San Antonio:

"It shall be unlawful for any person or persons or corporation to establish a meat market where the carcasses of animals are sold or offered for sale within six blocks of the City Market House."

An appropriate penalty is provided for a violation of the ordinance. No assignments of error are found in the record and the appeal can be entertained only on the ground that fundamental error is involved in refusing the writ of injunction on the matters and things alleged in the bill. On the assumption of fundamental error 15 propositions of law are urged in the brief, which merely amount to reasons advanced by appellant on the one proposition that the ordinance in question is null and void.

The ordinance was not repealed by the enactment of a subsequent general ordinance providing for the licensing of food products establishments. Repeal of laws by implication are not favored, and such repeal will not be held to have been desired unless it was the evident intention of the lawmakers to repeal the first statute. As said by the Supreme Court in Railway v. Kay, 85 Tex. 558, 22 S. W. 665:

"Such repeals are not favored; and unless there be a repugnancy or inconsistency between two statutes, the general rule is, that the latter will not repeal the former in the absence of express words to that effect."

There is no repugnancy or inconsistency between an ordinance requiring persons firms or corporations desiring to establish, maintain or operate food products establishments to apply for and obtain a license from the city board of health, and an ordinance fixing certain limits in which private meat markets shall not be maintained. By the terms of the ordinance, claimed to repeal the other ordinance by implication, it is provided that the applicant for a license must comply with all the "requirements of the laws of the state of Texas, or of the ordinances of the city of San Antonio relating to the conduct and operation of the business named in such application." No reference is made in the so-called repealing ordinance to meat markets.

The ordinance in question has been held by this court to be valid and binding, and the Supreme Court, by refusing a writ, must necessarily have approved the decision of this court, because the opinion of this court could not have been a legal one if the ordinance was not valid. Its validity formed the only basis upon which to rest the decision. Altgelt v. Gerbic (Tex. Civ. App.) 149 S. W. 233. It was held in that case:

"There is nothing unreasonable in the ordinance pleaded by appellee, and neither is it against any `common right,' nor does it foster a monopoly. It is clearly authorized by the charter (article 2,...