City of Dallas v. Rogers

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

Opinions

CRAMER, Justice.

This is an appeal from an order granting a temporary injunction. Rogers, a produce dealer, filfed suit against the City and the market master of the municipal produce market, seeking to restrain the City and its market master from refusing to rent him space for his truck and a stall for his use as a produce dealer. Rogers alleged that he was not guilty of violating any of the provisions of the City’s ordinance No. 4801 applicable to said market and that the market master’s refusal to permit him to rent and occupy a stall on the market, was arbitrary, wrongful, and an unreasonable discrimination against him, depriving him of an equal opportunity to engage in his business in .competition with other members of the same group or class as himself, and depriving him of a license privilege grant ed by the City and its market master, which has not expired; alleged his damage at $100 per day for each day he was denied the right to rent and deal on the market by the City. Rogers also alleged that section 75-6, subdiv. D, of ordinance 4801, under which the City and its market master claimed the right to bar him, is invalid in that it is arbitrary, unreasonable, discriminatory, vague and uncertain; is a grant or.delegation of power and authority not within the City’s right under its charter and the laws of Texas; that the City has no authority or right to withhold from him the right to do business on the market under the valid provisions of ordinance 4801.

The City and its market master answered by motion to dismiss for the reason that Rogers’ petition was insufficient, stated no cause of action, in that there is no allegation of fact to show the City and its market master were insolvent and unable to respond in damages; and Rogers failed to allege that he had a valid vested property right to operate his business on the market; and by general answer that Rogers was ejected from the market under the provisions of ordinance 4801 because, (1) he had, on July 20, 1952, illegally and unlawfully committed assault and battery upon an assistant market master; (2) had refused to pay the fee due under ordinance 4801 for a motor truck used by Rogers in handling produce on the market; (3) that Rogers made threats to the effect that he would whip and commit assault and battery upon the market master and,his assistant; (4) that he used loud and boisterous language in an effort to threaten and frighten the market master; and that it was necessary by reason of the above that Rogers should be evicted from and barred from the market in order to protect the market and maintain it in the manner provided in ordinance 4801, and to prevent dealer from carrying out his threats.

A hearing on the application resulted in the trial court’s overruling the City’s motion to dismiss; the issuance of the temporary injunction as prayed for by Rogers; and by a further order requiring Rogers to maintain the public peace and abide by all rules and regulations for the operation of the market; and set temporary injunction bond at $1,000. The City, after giving notice of appeal, moved the court to set an amount for a supersedeas bond, which the trial court refused.

This appeal has been duly perfected from the order, etc., and the cause is now proper.ly before us for review.

The City briefs four points of error.

The first point asserts error in the overruling of its motion to dismiss, no facts being alleged by Rogers to show that he had no adequate remedy at law dr vested property right which was being threatened or invaded by the 'City or its market master.

The market here involved was before this Court in its inception in Gillham v. City of Dallas, 207 S.W.2d 978, error ref. n. r. e., in which this Court upheld the right of the City to provide the market in question, and there called attention to the wide discretion of the City in the maintenance and operation of such market.

Ordinance 4801 authorizing the establishment, maintenance and operation, is general in scope; its caption showing it to be “An Ordinance Amending Chapter 75 of Title XXII of the 1941 Code of Civil and Criminal Ordinance of the City of Dallas as Amended by Providing Regulations for the Municipal Produce Market; Defining Terms; Prohibiting Marketing on Streets; Establishing the Area of the Municipal Produce Market; Creating Office of Supervisor of Weights, Measures and Markets; Providing for Duties of Supervisor of Weights, Measures and Markets; Fixing Rental Fees on Stalls; Limiting Use of Stalls to Producers and Produce Dealers; Prohibiting Spielers; Prohibiting the Throwing of Refuse on the Market; Prohibiting the Use of Market During Closed Hours; Prohibiting the Holding of Stalls, by Trick, Scheme, or Artifice; Providing for Disposition of Unattended Produce; Fixing Minimum Quantities; Restrictions on Type of Produce; Restricting Use of Market to Producer and Produce Dealers; Prohibiting Loitering; Making It Unlawful to Bring Beer or Alcoholic Beverages onto Municipal Market.; Collusion among Dealers to Fix Prices Prohibited; Animals on Market Prohibited; Cull Produce Prohib ited; Signs Required; Parking Prohibited in Certain Areas; Speed Limit Fixed at Twelve (12) Miles per Hour; Parking Limited; Broken or Sliced Melons Prohibited; Blocking Sidewalks Prohibited; Providing a Penalty; Providing for Severa-bility ; Repealing Clause; and Declaring an Emergency.”

Article 75-4 creating the position of supervisor of weights, measures and markets in the Department of Public Works also creates assistants under him to be designated as “market master,”' and “assistant market masters.” It provides that “ * * * where any duty is placed on the supervisor under this chapter relating to the ‘municipal produce market’ the same may he performed hy any market master or assistant market master. * * Those - named are given and granted powers of police officers and are authorized to make arrests with or without warrant where a regular police officer would be authorized to do so. It provides, “Any person violating any lawful order” of said officers “shall be guilty of a misdemeanor and subject to the penalties provided for in this chapter.” It provides for a $1,000 surety bond by each of said officers for “the faithful performance of the duties of their respective offices, * * */> Tlle duties of such officers are set out in Art. 75-5, which gives, them “ * * * general supervision and control over the ‘Municipal Produce Market’ and the conduct of business therein, and to enforce all of the terms and provisions of this Chapter, and the rules and regulations promulgated hereunder. Second: To assign stalls to the producers and dealers attending the ‘Municipal Produce Market,’ and collect the rental fees for the use thereof, and pay the same to the City Auditor. Third: To regulate traffic and enforce order in and about the ‘Municipal Produce Market.’ Fourth: To order or remove from the market in a summary manner any person who is guilty of violent or disorderly conduct, or who shall in any way interfere with him in the performance of his duties, or who shall disturb the producers, dealers, buyers, or any other person lawfully using said market. Fifth: To prescribe rules and regulations governing the conduct of business in the ‘Municipal Produce Market’ not inconsistent with the provisions of this chapter; * * * Seventh: To designate the various stalls in the market which shall be used by producers, to designate the various stalls which shall be used by produce dealers, and to designate the areas and parking spaces to be used by customers and buyers.”

Art. 75-6 provides in section (B) for application to the named officers and for payment of a 'fee for the rental of stalls to dealers, and a different fee for automobiles. Section (C) provides that the fee “* * * shall entitle the producer or produce dealer to the use of said stall between the opening .and closing hours of the Municipal Produce Market, of the day for which the fee is paid, or until the load which he had on his vehicle at the time he rented said stall has been sold; provided, however, that in no event shall said producer or produce dealer be entitled to use said stall longer than the day for which the fee was paid without the payment of an additional fee for each day. No produce or merchandise may be placed in a stall in addition to that upon which a fee was originally paid, without the payment of an additional fee. The term ‘day’ as. used herein shall mean the period of time from 12:00 Noon of any calendar day to 12:00 Noon of the.following calendar day, or any portion thereof.”

Section (D) is as follows: “The supervisor of weights, measures and markets shall have the right to refuse to rent a stall to any producer of dealer who has been guilty of willful violation of the provisions of this chapter, or of any of the rules or regulations promulgated thereunder. Said supervisor shall have the authority to eject any producer or dealer or any other person who willfully refuses to conform to the provisions of this chapter, or the rules and regulations promulgated thereunder, or any other ordinance of the City of Dallas, or any law of the State of Texas, without refunding to said producer or dealer the rental paid for said stalls. No person shall sell on the Municipal Produce Market any of the produce .of a producer or dealer, or act as the agent or employee of a dealer who has been barred from the Municipal Produce Market by the Supervisor of Weights, Measures and Markets. No produce dealer shall hi-re as agent or employee any person who has been barred from the Municipal Produce Market for violations of any ordinance or regulation promulgated by the Supervisor of Weights', Measures and Markets' under the authority herein granted.”'

Art. 75-8 provides: “ * * * It shall be unlawful for any person to make an outcry or' do any hawking or spieling, or to use loud, boisterous, or profane language, or give a musical or other entertainment for the purpose of drawing customers or attfacting attention in ■ said Municipal Produce Market.”

Art. 75-17 provides: “It shall be unlawful' for any person to bring any beer or alcoholic ‘ beverage' upon the Municipal Produce Market, or to consume any sucli beer or alcoholic beverage on the Municipal Produce Market, or to be under the influence of such beer or alcoholic beverage or any narcotic drug while on the Municipal Produce Market.”

Art. 75-25 provides: .“Any person víot lating any pf the provisions of this chapter, or any of the rules and regulations promulgated hereunder, . shall be deemed guilty of a misdemeanor, and. upon conviction shall be subject, to a fine of not more than Two Hundred and No/100 ($200.0Q) Dollars,”

The motion considered in connection with the record above shows a barring of Rogers from the city market in the future, under pleadings which raise a question of fact as to whether Rogers has an adequate remedy at law, and in our opinion also a question of fact as to whether the market master did or did not abuse his discretion in barring Rogers , from the market in the future. The market in question was a public market, conducted not for profit, but for the public good, with public funds obtained by the issuance of bonds.

A public market is, “A market which is not only open to the resort of the general public as purchasers, but also available to all who wish to offer their wares for sale,' stalls, stands, or places being allotted to those who apply, to the limits of the capacity of the" market, .on payment of fixed rents or fees.” “Public” means “The whole -body politic, or the ag-gregaté of the citizens of a state,' district, or municipality.” Black's Law Dictionary, 3rd Ed.

Art. 1015, subd. 31, Vernon’s Ann.Civ. St., authorizes the city not only to establish markets, but to “ * * .* ’ control and regulate market places ánd- .privileges; * * .

Under said- ordinance' the City in the conduct, of its market had the authority to make all reasonable regulations necessary for the conduct of business on tire market. Bruce v. City of Gainesville, Tex.Civ.App., 183 S.W. 41; Gillham v. City of Dallas, supra. Rogers, under the ordinance, had an equal right to do business on the market with all other members of' th¿ public under the reasonable and valid regulations thereof by the City in its conduct of the market for the purpose for which it was created. .

■ The statement of facts shows Rogers testified he had been a produce dealer on the market since 1923; operated' trucks and sells off the trucks there and on market stalls.' On July 20, 1952 he paid all fees on the stalls he was using on that date; knew the regulations' of the market with reference to'fees; that on the' occasion in question he had no vehicle or produce or stall on the market for which he had not paid á fee and received a receipt. The dispute which occasioned the fight, made the basis of barring Rogers from the market, arose over the payment of a fee for a truck standing near one of Rogers’ stalls,' and started when Rogers was waiting on a customer.

It is undisputed that in the fight, Rogers struck the assistant market master, and was arrested on the market master’s complaint to the City police.

The evidence of Rogers.as a whole with reference to the fight, in our opinion> made a question of fact for the purpose of the hearing on the temporary injunction as to who was to blame for the fight.

Under such record a civil, not a property right, was involved and the trial court did not err in holding that' Rogers had no adequate remedy at law and in overruling the motion to dismiss. Point 1 is overruled.

Points 2, 3, and 4 assert error in the granting of the injunction because the evidence was undisputed, that Rogers was guilty of violating ordinances regulating the operation of the-market,, asserting that the regulation of .the market is solely within the discretion of the City and there is no evidence that the market master was not acting in good faith or was motivated by private reasons in his acts, and in the trial court’s holding that the City could not refuse to rent a stall in the municipal produce market to Rogers who had been guilty of assaulting the assistant market master who was in the performance of his duties at the time, and where Rogers had been guilty of conduct detrimental to the safe and proper operation of the market. As heretofore stated, this is an appeal from a temporary injunction, and the court’s discretion in the granting thereof can only be reversed for an abuse of such discretion. Bates v. Texas Electric Ry. Co., Tex.Civ.App., 220 S.W.2d 707, by this Court; City of Dallas v. City Packing Co., Tex.Civ.App., 86 S.W.2d 60; Burke v. Shafer, Tex.Civ.App., 219 S.W.2d 590; Haden Employees’ Ass’n v. Lovett, Tex.Civ.App., 122 S.W.2d 230, syls. 4, 5. This Court does not determine the ultimate facts, and the judgment here has no influence or weight whatsoever on the trial on the merits. It destroys no ultimate right, and if wrongfully issued, the party damaged is entitled to recover such damages against the party to whom the relief was granted. It merely preserves the status quo until a final hearing. The evidence of Rogers and his witnesses raised an issue as to whether he had, or had not; been guilty of the acts testified to by the City’s witnesses, sufficient to sustain the trial court’s judgment here appealed from.

Under such record we cannot hold, as a matter of law, that the trial court abused his discretion to such an extent as to justify a reversal of his order granting the temporary injunction.

If either party is refused an early trial on the merits, he has his remedy under Art. 1824, V.A.C.S. Points 2, 3 and 4 are overruled.

Finding no reversible error in the judgment below, it is

Affirmed.