City of Dallas v. Rogers , 1952 Tex. App. LEXIS 2349 ( 1952 )


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  • On Rehearing.

    DIXON, Chief Justice.

    In my opinion the appellant’s motion for rehearing should be granted, the judgment of the trial court reversed, and judgment rendered denying appellee a temporary injunction.

    The Municipal Produce Market, owned and operated by the City of Dallas, is public property. No one has a vested right to occupy its premises or to use its facilities for his own private business- for profit. Persons allowed to do so must exercise the permission granted-to them subject to all reasonable rules and regulations imposed by the governing authority;, 35 Am. Jur. 140, and cases there cited.

    In the case at bar the regulations make it the duty of the market master “to order or remove from the Market in a summary manner any person who is guilty of violent or disorderly conduct, * * *;” Art. 75-5, Ordinance 4801; and the market master “shall have the right to refuse to rent a stall to any producer of dealer who has been guilty of wilful violations of the provisions of this Chapter, or of any of the rules or regulations promulgated thereunder.” ' Art. 75-6, Ordinance 4801. Violation of the ordinance is punishable by a fine of not more than $200. Art. 75-27, Ordinance 4801.

    Ordinances similar to the one in question have been upheld in other jurisdictions. In the case of Hutchins v. Town of Durham, 118 N.C. 457, 24 S.E. 723, 727, 32 L.R.A. 706, it is said: “One who occupies a stall under a license granted in pursuance of the provisions of an ordinance defining-the rights and duties of the town (such as that under which plaintiff entered) is not a lessee, but a mere licensee. He ac*122quires no right in the soil, but is an occupant at the absolute pleasure and discretion of the licensor.” See also City Council of Charleston v. Goldsmith, 2 Speers, S.C., 428, where appellee, as in the case here, was expelled from a public market for becoming involved in a fight.

    Here the appellee had been occupying a stall on a day to day basis. Viewed in the most favorable light, he could be only a tenant at will. Under similar circumstances our Supreme Court has held that it was improper to grant a temporary injunction restraining city authorities from excluding such a tenant from further occupancy of a public market. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307.

    It is a well-established rule that unless vested property rights are involved, equity will not intervene to restrain public officials in their administrative efforts to enforce regulatory city ordinances which carry a penal provision. I quote from the case of State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178, 181, the Court there quoting from 28 Am.Jur. -414: “ * * * equity concerns itself only with property rights, and will not intervene for the purpose of restraining the enforcement of a criminal statute or of a regulatory ordinance providing a penalty for its violation, even though it is being enforced in an oppressive and unlawful way." (Emphasis mine.) The Supreme Court of Texas has held to similar effect in Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294. Both of the above cases hold that the trial courts had improperly granted temporary injunctions. See also Prater v. Storey, Tex.Civ.App., 249 S.W. 871.

    Regardless of whether appellee Rogers, or the assistant market master Mc-Kinnon, was more to blame for the fight, the fact situation here, in my opinion, did not warrant the issuance of the injunction. It is only when the ordinance or regulation itself is invalid (and not always then), or, when the conduct of the enforcing officials is arbitrary and capricious, or they are acting in bad faith, that injunctive power will be exercised to stay the efforts of public officials in administering regulatory ordinances which carry penal provisions. Parsons v. City of Galveston, 125 Tex. 568, 84 S.W.2d 996; Gurtov v. Williams, Tex.Civ.App.; 105 S.W.2d 328. There is no testimony in this record that Curtis, the market master,' acted arbitrarily or in bad faith in refusing to re-rent space to Rogers. The ordinance authorized such action by the market master. Consequently I think it was improper to restrain him in such a way that Rogers may continue to occupy space notwithstanding the market master’s refusal to continue renting a stall to him. But for the 'injunction, the market master could eithter eject appellee or prefer criminal charges against him for wrongfully occupying a stall contrary to th'e provisions of a penal ordinance. As it is, the market master cannot db either.

    In the case before us the city authorities refused to re-rent space to the appellee, among other grounds because he had become involved in a fight with the assistant market master, McKinnon, The fight took place in connection with performance by McKinnon of his duty to check stalls and vehicles to see that the proper fees had been paid. As may be expected, the two participants give different versions of the fight. If the assistant market master’s testimony is true, the fight was an unjustified assault by appellee. But for the purposes of this opinion we shall consider only appellee’s own testimony. Here it is:

    “Q. Did you hit Mr. McKinnon in the face and break his glasses, down there on the market Sunday? A. I reached up with one hand and as the man jerked me by the arm, jerked me around, I reached up and got his glasses with one hand and hit him.
    “Q. You sure did hit him? A.
    “Q. And you broke his glasses? A. The glasses were broke, I broke them with this hand, jerking them off.
    “Q. And you hit him again, didn’t you? A. Yes. * * *
    "Q. - When you hit Mr. McKinnon he was on the public market, wasn’t he, at *123the time? A. Yes, he was on the market.
    “Q. And he was there as assistant market master, wasn’t he? A. Yes.
    “Q. And at the time- you were there as a person in one of the stalls, after buying it under a fee ? A. I was there.
    “Q. Yes, sir. A. I was selling the peaches.
    “Q. Why did you hit Mr. ■ McKinnon ? A. Because he jerked me around by the arm and told me to — that the rent had not been paid on that, and I have got the tickets here. I will show them to you. * * *
    “Q. And because he said that it had not been paid, you hit him? A. He reached out and jerked me around, and that’s the reason I hit him.
    “Q. That’s the reason you hit him? A. That is right. * * *
    “Q. Didn’t you tell Mr. McKinnon that you would pay for his glasses? A. Yes, but I changed my mind.
    “Q. You haven’t paid for them, have you? A. I haven’t paid for them. ⅜ ⅜ *
    “Q. When you hit Mr. McKinnon, what happened? A. After I hit him, he fell down.
    “Q. And then what happened? A. Well, he got back up and I hit him again.
    “Q. And then what happened? A. That’s all that happened.
    “Q. Now you hit him the first time because he was pulling on your arm? A. Yes.
    “Q. What did you hit him the second time for? A. Because I wanted to win it. I didn’t want to lose any fights.
    “Q. You hit Mr. McKinnon when he came around to inquire about the fees on those stalls? A. I was selling some stuff and he jerked my arm and jerked me around and said, ‘This stall hasn’t been paid on.’ Well, it had been paid on. I said, ‘I have the tickets; I will show you.
    “Q. All right, what else happened right after that? A. What happened after that ? I reached up and got his glasses and hit him.
    “Q. All right. Now after you hit Mr. McKinnon the second time — A. Yes, sir.
    “Q. —What happened? A. What happened? He walked on off.”

    Even if we accept appellee’s version that McKinnon grabbed him by the arm (which McKinnon denies), and if we say that McKinnon was wrong in so doing, appellee’s act in striking McKinnon a second time “because he wanted to win it,” was far beyond what was necessary for self-defense under the circumstances, as depicted by appellee himself, and was an act of aggressiveness beyond what was called for under the circumstances. To say the least, appellee did not come into court with clean hands.

    In short, as I see it, if we allow the temporary injunction to stand, appel-lee has successfully invoked the aid of equity, though he has no vested property right involved, though he has not come into court with clean hands, and though he is,"in effect, restraining a public official from filing criminal charges • against him for wrongfully occupying a stall contrary to the terms of a penal ordinance.

    Appellant’s motion for rehearing is granted; the judgment of the trial court granting temporary injunction is reversed and judgment is here rendered denying a temporary injunction to appellee.

    YOUNG, J., concurs.

Document Info

Docket Number: No. 14630

Citation Numbers: 257 S.W.2d 117, 1952 Tex. App. LEXIS 2349

Judges: Cramer, Dixon, Young

Filed Date: 12/26/1952

Precedential Status: Precedential

Modified Date: 11/14/2024