City of Groves v. Port Arthur Independent School District

HIGHTOWER, Chief Justice. This is an original proceeding in this Court by appellee for a temporary injunction against appellant. It was precipitated by a district court’s declaratory judgment in favor of appellee to the effect that certain ordinances of appellant, City of Groves, regulating the construction of buildings within its city limits was void as to ap-pellee. Said judgment also permanently enjoined City of Groves from enforcing any of its building ordinances against appellee in its construction of school buildings. See for additional facts, opinion of this Court this day announced in Port Arthur Ind. School District v. Gary et al., 364 S.W.2d 446. From this judgment (No. B-80072 in the district court) appellant perfected its appeal to this court on the 2nd day of January, 1963, the submission and determination of which only awaits part of the time in which appellee is allowed for filing its brief. Meanwhile, we have entertained (Jan. 24) appellee’s petition for temporary injunction aforesaid in which it is represented that appellants, having superseded the trial court’s judgment under authority of Art. 1174, Vernon’s Ann.Civ.St., threaten ap-pellee and its agents with immediate criminal prosecutions from day to day if they continue to build in defiance of said building ordinances. It is urged that the school building must be completed for occupancy for the period 1963-64 school year, beginning in September, 1963, and that there exists no adequate remedy at law, and that if appellant is not enjoined from enforcing its building ordinance, appellee has no alternative but to conform to said ordinances, thereby causing the merits of the case before us on appeal aforesaid to become moot and judgment ineffectual. This Court has authority to protect its jurisdiction and may issue proper writs therefor. Art. 1823, V.A.T.S. It is said that if criminal prosecutions are carried on by the City against those working upon the school building, no other result would follow than that the School District will have to give in, obtain permit and comply with the City’s building ordinances, and that consequently the principal case before us will become moot. At the time arguments were heard on this application for temporary writ of injunction, affidavits were presented by the School District showing that because of threats of criminal prosecutions all construction work on the school building has been stopped. There is no attack made upon the validity of the City’s ordinances as such, but merely that they are not applicable to or controlling 450 upon the School District. In this situation, it may be doubted whether an injunction would lie against such criminal enforcement. Lowe & Archer, Injunctions and Extraordinary Proceedings, p. 242. If injunction should be granted we would be restraining the enforcement of valid ordinances of the City. It is only contended they do not apply to the School District. This is the point that is in doubt. If we fail to grant the injunction work will probably be held up on the school construction. In such event, the appellee may suffer some damage if required to wait upon the outcome of the appeal of the original action, before proceeding with the construction of the school. However, we have no jurisdiction to issue an original writ to prevent damage to a litigant pending appeal. R. R. Comm. v. Roberts, Tex.Civ.App., 332 S.W.2d 745.