City of Dallas v. Mitchell

SERGEANT, C. J. On April 29, 1922, C. S. Mitchell, appellee, who owned a lot on the southeast corner of Davis and Edgefield streets in the city of Dallas, fronting 60 feet on Edgefield and 150 feet on Davis, applied to the board of commissioners of the city of Dallas, appellants, for a permit to erect thereon a brick building to be divided into sections and used for grocery and drug stores. It was shown that the building pro [945] posed would conform to tlie city ordinances relative to distance from property line and tlie direction to be faced; that tbe building plans were submitted to tbe city building inspector and approved by bim, and that tbe proposed uses of tbe building were tbe same as that of other like buildings used for similar businesses. Tbe board of commissioners set a day for bearing the application, notified all interested parties, including all persons residing within a radius of 300 feet of tbe proposed location, many of whom were present and objecting, and on such bearing declined to issue tbe permit. Appellee appealed from tbe ruling of tbe board of commissioners to tbe board of appeals or review, which body upheld the decision of tbe former board. Appellee thereupon instituted suit in tbe district court of tbe Fourteenth judicial, district of Texas against the city of Dallas, its board of commissioners, building inspector, chief of police, and city attorney, seeking to have declared void Ordinance No. 742 of the city of Dallas, under tbe terms of which ordinance said city bad refused the granting of tbe permit, and for a writ of mandamus, commanding the defendants to issue a building permit to bim, and for an injunction to restrain tbe defendants from interfering with the erection by bim of tbe proposed building. On hearing the court granted petitioner tbe relief prayed for, and directed tbe issuance of tbe mandamus and tbe injunction as prayed. From this ruling appellant brings tbe case to this court by appeal. •^The appeal involves the validity of Ordinance No. 742 of the city of Dallas, known as tbe building ordinance. A former building ordinance of said city contained in articles 1965 to 1967 of tbe Revised Ordinances of tbe city of Dallas, dealing with this same subject, was declared void and unconstitutional by tbe Supreme Court of Texas on November 2, 1921, in the case of Spann v. City of Dallas, 235 S. W. 513. Thirty days thereafter tbe present ordinance was enacted, intending to circumvent tbe decision of the Supreme Court on the former ordinance. But in our opinion it has failed to do so./ The present ordinance requires a bearing at which all persons residing within 300 feet of tbe proposed building shall be notified to appear and testify, thereby making the granting of tbe permit subject to the wishes, whims, and caprices of appellant’s neighbors. On this very ground, as well as on others, the Supreme Court in the case above referred to declared the former ordinance invalid. Again, in the instant case the board of appeals in rejecting the application for a permit declared that it did so because the health, safety, and welfare of the community would be endangered should the building be erected. While the testimony before them showed that immediately across the street there had been for some years, and still was, a chain of stores dealing in drugs, groceries, meats, cold drinks, and the like and that no complaint had been made that any of these stores had been offensive, nor had the city attempted to declare a nuisance existing there by reason of the existence of danger to the public health, safety, or welfare, the Spann Case specifically says: “It is idle to talk about the lawful business of an ordinary retail store threatening the public health or endangering the public safety.” And on the specific ground that this very character of business does not, in itself, endanger the health, safety, morals, or welfare of the community, the Supreme Court declined to uphold the former ordinance. It is unnecessary for us to go into an extended discussion of this case. Practically every issue in it was decided in the Spann Casé adversely to appellant. And the reasons therefor were fully set out in that decision. The present ordinance in its ultimate effect and in its final analysis violates both the inherent and constitutional right of a citizen to use his own property as he sees fit, so long aá it does not interfere with the rights of others. It is an abuse of the police power of the state. It invades the fundamental liberties, of the citizen. It is not founded on public necessity, nor does the proposed use of the building endanger the public safety, health, morals, or welfare. Therefore such ordinance cannot stand. Should a building of the kind in question be put to an improper and unlawful use after its erection, such use can be prevented by application of the proper legal remedies. As the ordinance in question is void, the trial court did not err in granting the writs of mandamus and injunction and its judgment is therefore affirmed.