BRIEF OPPOSSING MOTION TO DISMISS APPEAL — Kirschke v. Houston

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Supremé Court of the United States

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BRIEF OF APPELLEE, THE CITY OF HOUSTON, IN

OPPOSITION TO APPELLANTS? APPEAL FROM

THE SUPREME COURT OF TEXAS

Ȥ

R.H. Berks

(‘ity Attorne yf

300 City Hall

llouston, Texas

Hower T. Bottom

Senior Assistant Cita Attorney

S00 City Hall

Houston, Texas

Atltorne “Ws lor Appell r.

The City of Houston,

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SUBJECT INDEX

: Paae

Questions Presented ............cccsesesseseesneseresnseneanernenneneeneensnnecneey , 1

Moatammant Of The CABO. ..<..c<ccecsecccccversececossepsosssecesescscesccseSusesssosooved a.

APAUMENE ..0........cccccesenesceseceseeesseeseneseinnesensnenesssnenerscanesnsnsnenenenenenenes 3

I. The Texas courts have given full hearing and con- .

sideration to the matters and law involted herein,. 3

Appellee by law is vested with exclusive control and

jurisdiction over its streets.............. ncieetitasedensteuninimantaninn 3

City of Houston has power to set building lines and

require building permits................cccceseeseereeeeierseeeeeners 3

II. Refusal of the building permit was not a “taking” or

“partial taking’, of thé subject property...........---:---

Appendix “A” .....:.ccccccesessscedforteresseeereennsssassnsssssessssearsnteensenensnensens » @Q

Appendix “B” ........cccscssscesssseesetenesssesensnsnensnenanensnsnsnsensnenenenenensnenens .

‘INDEX OF AUTHORITIES

Akin v. City ‘of Miami, 65 So. 2d 54, 55, 56 (1953)............... 4

American Jurisprudence, Vol. 38, Municipal Corporations,

eae 5

Carr v. ‘City of nie 235 F. 2d 780, Alaska, D.C., 114 .

F. Supp. 439, 440..........ccccscrsssecsesesnsnesnssnsneenssnsnsnsenensensenencensnnnnens 5

City of El Paso v. Sandfelder, C. Civ. App., Tex., 118 S.W.

Dd DEO,” GB2.......c.cececeviscrscvsvccsversvesnsessocesesbasenevenssensssecorossesseseeeeses 6

City of Tyler v. Ingram, 139 Tex. 600, 164 S.W. 2d 516,

BID (1942) ...cescesccocccsosesersssssecsssssvccsssvesnssonsessenesenesssensssvsssasocsevetes 4

Claussen v. City of Luverne, 103 Minn. 491, 115 N.W. 6.3,

15 L.B.A. (N.S.) S61.........cccsccsessseesesesessensesssneresesnansnnsnenseneseeens ' 4

Corpus Juris, Vol. 43, Section 1704, p. 928..........c.ccsscneseeeeneens 5

Duvall v. City of Dallas, Tex. Civ. App. {27 S.W. 2d 1105...... .

Edge v. City of Bellaire, 200 S.W: 2d 224, 228, Tex. Civ. :

App. (1947) cececsessecsssessessessssneneenssnssnenncansnssncsnsnsenennsonsnensenenenes a

Ellis v. City of West University Place, 141 Tex. 608, 175

SW. 2d 396, 398, 399 (1943) ........cccceceerenereenmnnrsesereratersnenesnenens q

Fifth Avenue Coach Co. v. City of New York, 221 U.S. 467,

55 L. Ed. 815, 31 8. Ct. 709 (1911).......... ii asiaiaapiatasaeaiiietin os 5

Gambrell v. lk Hill Theatre Co., LimitSA, Tex. Civ. App.,

205 S.W. 26, 13O.......ecccssscesseessseersneensneesssnensneessneesnnnlesanseenes 6

7

A - Os

y : ; P Piss

Halsell v. Ferguson, 109 Tex, 144, 202 S.W. 317, 321 (1918) 4

James v. City of Toledo, C. Civ. App., Obio, 157 N.E. 309,

o | “IE Ue siniadinnmmtaanmieneenieeniibinetan a y

' Johnsen y. Laticaster? Tex. Civ. App., 266 S.W. 565.......... _— 6

Kahn v. City of Houston, -- C. Tex., 121 Tex. 293, 48 S.W.

BA GOB ccccecocccscsdescoocssessocecsciossensosnssccssoocsoncsessssvossscssssoonsseosooooesecs 6

? Lewis v. Texas — atid Light Co., C. ‘Civ. App., Tex., -

gt 276 S.W. 2d 950, 99Gorseeeencinesrssseeersnnanerneineneneneneseniet 6

| -Me Cammon and Lang Lumber Co. y. Trinity and B. V. Ry.

Co., 8. C. Tex:, 104 Tex. 8, 133 S.W. 247, 249 (1911)........ 6

MeQuillin, Municipal Corporations (3rd Ed.), Vol. 9, Section

| 26.200, pr. 479 ....cceccsescteresesssneseresnsnenensentennsnsesersneneneneseensnenenenes 5

McQuillin, Municipal Corporations (Sed Ed. ), Vol. 18, See-

tion 53.37, pps 237-239... .cccecceecscnseseeeneeenenenseensenentensnensennnananens - §

Newton v. ilighland Park, Tex. Civ. App., 282 S.W. 2d 266 = 4

Norris v. City of Wacéo, S. C. Tex., 57 Tex. 635, 643.........00 6

Sinclair Pipeline Company v. Lipscomb, C. Civ. A P. é

308 S.W. 2d 584, 586 6

Sproles v. Binford, 52 S. Ct. 581, 585, 286 U. . 5)

Standard Oil Co. v. City of Marysville, 49 s. Ct. 429, 431,

© 279 U.B.. 582, 584, 5B6..........:cecccescnsssnsssnsenecsesteneenssssssnsgassenseenoes 5

State v. Richards, S. C. Tex., 301 S.W. 2d 597, 600 (1957) 5

Texas Highway Department v. Weber, 147 Tex. 628, 219

SW. 2d 70, 72 (1950) ......cccceccccsesssee -ceterrersessesesersssssrsnssenseosenes 5

Texas Jurisprudence, Eminent Domain, Vol.- 16, See. 11,

, PP. B79, PEO... cececceecsererersenenensnsnecnsnenzerseensnesnsnenenseeasneseenanaesenens 6

- Texas Jurisprudence, Municipal Corporations, Vol. 30, See.

SES, wep, S6S,- BOG caceecccssensoretangryononsesnsshestconesonsnstenennsnnsonon ao .*

Texas Jurisprudence, Municipal Corporations, Vol. 30-A, .

PP. 397-B9B oo. .cceeceseeecseeenerenersnneransennenenennenenennnnes seniliasnan gpecesesncnes 4

2 CONSTITUTIONS, STATUTES AND

CHARTER. PROVISIONS

5 Charter, City of Houston, 1958, Article II, Sections 4, 4a... 3,12

Constitution of the Sta.e of Texas, Article 1, Section 17...... 6

Verron’s Texas Civil Statutes, Article 1175, Sections 16, 17

BIE 1B n.ncecrcccrcerccccccverscenessoeees seseusssncenseasenucanennennssencconsnncsuenscensasnas 3,9

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j Sinton OSS '

Supreme Ci urt of the United States

: - “ercussr Term, 1960

No. 426 F

Jounx Kinscukk, ET AL., &

° - Appellants,

v.

Tue Crry or Houston,

Appellee.

BRIEF OF APPELLEE, THE CITY OF HOUSTQN., IN

OPPOSITION TO APPELLANTS’: APPEAL A

STATEMENT AS TO JURISDICTION

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The appellee, The City of Houston files this opposition

‘to appellants’ Appeal and Statement as to Jurisdiction.

" QUESTIONS PRESENTED

The trial court su@ained appellee’s special exceptions

contained in its answer to the effect that.as a matter of law

-the granting or refusing of a building permit is within the

police power, and a governmental function of the appellee,

and therefore appellee i is immune from liability for damages

* due to such refusal ‘of the building permit. That the refusal .

of the building permit was not a “taking”, or “partial tak- -

ing” of the subject land. Appellants stated in open Court

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that they would not an.end their petition. Appellee then

filed itg motion to dismiss the suit or action which was

grante@ by the trial court. There is no federal question

involved here. The ordinance of appellee setting the build-

ing lines is valid and constitutional and does not violate any

federal constittiongl right of any of appellants, The sub-

ject property was not “taken” or“partially taken” by appel-

lee’s refusal to grant the bullding permit. And as a matter of

_ law appellee is immune to any damage for refusing the per-

mit for the reason the granting or refusing of a building

permit is within the police power of the appellee, and is a’ |

governmental function of the-appellee. ‘ “

STATEMENT OF THE, CASE

(1) The Decisiom of the Texas Courts in This Case:

The appellants filed suit against the appellee for damages

for “taking” or “partially taking”, and by damaging appel-

lants’ land by arbitrarily and unreasonably denying appel-

lants’ application to construct a building on said land. The

trial court sustained appellee’s eight special exceptions. The

appellantsthen stating in open Court they would not amend

their petition, the Rppellee presented its written motion cto

* dismiss the suit and the trial court granted the motion and

dismissed the suit: The Court of Civil Appeals affirmed the

judgment. The Texas Supreme Court refused to hear: the

case on the ground there was no reversible error.’ -

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‘In their Application for Writ of Error to the Supreme Court

of Texas, qppellSSe assigned nineteen points of error. By deny-

ing the application, the Texas Supreme Court approved each and

® . all of the holdings of the Court of Civil Appeals which were

assigned as error. Firemen’s and Policemen’s Civil Service Com-

____ mission v. Wells, 157 Tex. 644, 306 S.W. 2d 895, 897 (1957).

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~. - - ARGUMENT

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THE TEXAS COURTS HAVE GIVEN FULL |

° HEARING AND CONS TION TO THE n

_7\ MATTERS AND’ LAW INVOLVED HEREIN. . “i

The trial court gave full we tye 9 appellants’ peti-

tion and their alleged damages. The Court of Civil Appeals,

atid the Texas Supreme Court held that appellants: failed

to allege a cause of action. And that if appellants were

wrongfully kept from making the. d¢gired improvements

onthe subject land, they may obtain relief by —

or mandatory injunction, requiring appellee to ue the

requesied. permit.

APPELLEE BY LAW IS VESTED WITH EX.

CLUSIVE CONTROL AND JURISDICTION OVER

ITS STREETS. .

“Home Rule” cities, such as the Gity of Houston, have

exclusive dominion, contrél and jurisdiction in, over and

under ifs public streets. Article 1175,4Sections 16, 17 and -

» 18, Folios Texas.Civil Statutes, Article II, Sections 4,

4a, of the Charter ofthe City of Houston, 1958. Such power

includes that today out, establish, widen, lower, extend, and

narrow the streets within the City. Section 4, Article IT,

1958, Charter, City of Houston.

SITY OF HOUSTON HAS POWER TO SET

BUILDING LINES AND: REQUIRE BUILDING

PERMITS. :

The City of Houston, a “Home Rule” city, has the power 4

to set building lines and require building permits of persons

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constructing buildings within the City? Vol. 30-A, Tex. Jur.,

| “Municipal Corporations”, pages 397:39% Newton v. H igh-

land Park, writ vef. Tex. Civ. App., 282 S.W. 2d 266; Edgev.

City of Bellaire, err. ref. u.r.e., Tex. Civ. App., Gal., 200

S.W. 2d 224. Sy n

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Appellants’ petition ‘does not, allege actual physical in-

vasion or appropriation of the subject property. As a

matter of law the refusal of the building permit is not a

“taking”, or a “partial takjag” of the subject property.

The statutory Article js attached as Appendix “A”, and

the Charter provisions as Appendix “B”.

The Supreme Court of Texas,’ and the Courts of Civil -

~ Appeals of Texas, have held repeatedly that the granting or.

refusing of such permits is within the police power of a city,

and is a governmental function. Halsell v. Ferguson, 109

Tex. 144, 202 S.W. 317, 321 (1918) ; City of Tyler v. Ingram,

139 Tex. 600, 164 SW. 2d 516, 519 (1942); Edge v. City of

Bellaire, err. ref., 200 S.W. 2d 224, 228, Tex. Civ. App.

— (1947), and that a city is immune from liability for damages

in exereising its governmental function. Ellis v. City of

West University Place, 141 Tex. 608, 17545.W. 2d 396, 398,

399, (1943). 2 ae

The same rule of law is upheld by the Supreme Courts of

sister states. The exercise of the power to grant or refuse

a building permit is a purely governmental funétion, and

the municipality is immune from damages#ex_ wrongful

vefmaal of such a permit. Akin ¥. City of Miami, 65 So. 2d

54, 55, 56 (1953) ; Claussen v. City of Luverne, 103 Minn.

491, 115 N.W. 643, 15 1. R. A. (N.S.) 861. That rule of Jaw

is clearly stated and huthoritieserited in James ¥. City of

Toledo, no writ history, nr App., Ohio, 157 N.E. 309, 310, ~

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311, and-in Carr v. City of Anchorage, app. dis. w.j., 235 F.

2d 780, Alaska, D. C., 114 F. Supp. 439, 448.

That the issuance of building perhits is a governmental

function ofa city, and therefore, the city is immune from

damages is recognized as established law and is stated ir

Volume 9, MeQuillin, “Municipal Corporations”, (3rd Ed.),

Section 26.200, page 479; Volume 18, MeQuillin, “Municipal

Corporations”, (3rd Ed.), Section 53.37, pages 237-239; 43

C. J. 928, Section 1704; 38 Am. Jur., “Municipal Corpora-

tions”, Section 605.

If'a municipal ordinance is proper exercise of police

power, a person forbidden to make a certain. use of his

property is not deprived of his property thereunder, without

due process of law. Fifth Avenue Coach Co. v. City of New

York, 221 U.S. 467, 55 L. Ed. 815, 31'S. Ct. 709 (1911); State

_ y. Richards, 8. C. Tex., 301 S.W. 2d 597, 600 (1957).

When the subject lies within the poljce power of the state,

debatable questions as to the reasonableess are not for the

~ eourts but for the legislature which is entitled to forny its

“own judgment, and its action within its range of discretion

cannot be set aside because compliance is ”burdensome.

Sproles ¥. Binford, 52'S. Ct. 581, 585, 286 U.S. 374, 388, B89;

Standard Oil Co. v. City of Marysville, 49 S. Ct. 430, 431,

279 U.S. 582, 584, 586. | ’

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REFUSAL OF THE BUILDING PERMIT WAS

NOT A “TAKING” OR “PARTIAL TAKING”,

OF THE SUBJECT PROPERTY.

The subject property was not taken and,applied to public

use. Therefore, there was no “taking”, or “partial taking”

of the-land. Texas Highway Department v. Weber, 147 Tex.

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628, 219 S.W. 2d 70; 72 (1950) ; McCammon and Lang Lum-

ber Co. v. Trinity and B, V. Ry. Co., S. 6. Tex., 104-Tex. 8,

133 S.W. 247, 249 (1911). |

The “taking” within the seqpe of Article 1, Section 17 of

the Constitution of the State of Texas, is solely the taking

of property for public ,use under the right of. eminent

doniain. Norris v. City of Waco, S. C. Tex., 57 Tex. 639, 643 ;

16 Tex. Jur., “Eminent Domain”, 279, 280, Section Ll ; Sin-

clair Pipeline Company v. Lipscon /, err. ref. n.r.e., C. Civ.

App., Tex., 308 S.W. 2d 584, 586, Lewis v. Texas Power

and Light Co., err. ref. n.t.e., C. Civ. App., Tex., 276 S.W.

2d 950, 956; City of El Paso v. Sandfelder, err. dis., C. Civ.

App., Tex., 118 S.W. 2d 950, 952; 30 Tex. Jur., “Municipal

Corporations”, 363, 364, Section 363. |

There was no physical invasion of ‘appellants’ property,

thus, there was no “taking” of the property under Article 1,

Section 17, of the Texas Constitution. Duvall v. City of

Dallas,’err. ref., Tex. Civ. App., 27 S.W. 2d 1109; Johnson

vy. Lancaster, Tex. Civ. App., 266 S.W. 565; Kahn v. City

of Houston, S. C. Tex., 121 Tex. 293, 48 S.W. 2d 595; Gam-

brell v. Chalk Hill Theatre Co., Limited, err. ref. n.r.e., Tex.

Civ. App., 205 S.W. 2d 126, 130.

Appellants, by the refusal: of said building permit have

not been deprived of any property. The refusal of such per-

mit by appellee has not violated any constitutional right

of appellants. . a

"lhe refusal of appellee to grant the building permit was

within its police power, a governmental function, and appdl- ,

lee is not liable for damages to appellants for refusing to

issue the permit.

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Wuererore, appellee respectfully submits that appel-

lants’ Appeal should be in all things denied. ‘

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Respectfully submitted,

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R. tb. Burks

City Attorney

300 City Hall

Houston, Texas

De art thn J on

~ an T. Bov.pin

. Senior Assistant City Attorney

300 City Hall

Houston, Texas

Attorneys for Appellee,

Thé City of Houston, Texas.

I certify that a copy of the foregoing Brief has been

“served upon Patterson, McDaniel and Moore, and Mr. Ben-,

nett.B. Patterson, Attorneys for Appellants, by depositing

same in the Ufiited States Mail with sufficient postage, duly

certified, addressed to Mr. Bennett B. Patterson, 510 Citi-

‘ gens State Bank Building, Houston 2, Texas.

Homer T. BouLpin

Senior Assistant. City Attorney

City of Houston, Texas

Attorney for Appeéllee,

The City of Houston.

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APPENDIX “A”

16. To have exclusive dominion, control, and jurisdiction

in, over and under the public streets, avenues, alleys, high-

-ways and boulevards, and public grounds of su¢h city and

to provide for the improvement of any public street, alleys,

highways, avenues or boulevards by paving, raising, grad-

ing, filling or otherwise improving the same and to charge

the cost of making such improvement against the abutting

property, by fixing a lien against the same, and a personal

charge against the owner thereof aecording to an assess-

' ment specially levied therefor in an amount not to exceed

the special benefit any such property received in enhanced

value by reason of making such improvement, and to pro-

vide for the issuance of assignable certificates coverttithe

payments for said cost, provided that the charter al

s atid

apportion the cost to be paid by the property owner

the amount to be paid by the city, and provided further, that

all street railways, steam railways, or other railways, shall

pay the cost of improving-the said street between the rails

and tracks of any such railway companies and for two

feet on each side thereof. The city shall have the power to

provide for the construction and building of sidewalks and

charge the entire cost of constructing of said sidewalks,

includ.ag the curb, against the owner of abutting property,

and to aake a special charge against the owner for such

cost and to provide by special assessment a lien against such

property for such cost; to have the power to provide for

the improvement of any such sidewalk or the construction

of any such curb by penal ordinance and to declare defective

sidewalks to be a publie nuisance. The power herein granted

for making street improvements and assessing the cost by

special assessment in the manner herein stated shall not

be construed to prevent any city from adopting any other

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method or plan fo€phe improvement of its streets, side-

walks, alleys, curbs, or boulevards, as it may deem advis-

able by its charter. -

17. To opentextend, straighten, widen any publie street,

alley, avenue Or boulevard and for such purpose to acquire

the necessary lands and to appropriate the same under the

power of ‘eminent domain and to provide that the cost of

improving any such street, alley, avenue or boulevard by

opening, extending and widening thé same shall be paid by”

the owners of property specially benefited whose property

lies in the territory of such improvement and to provide

that the cost shall be charged by special assessment and

that a personal charge shall be mede against any owner for

the amount due by him and-to provide for the appointment

by the county judge or other officer exercising like or similar

powers, of three special commissioners for the purpose of

condemning the said lands and for the purpose of apportion-

ing the said cost, which apportionment of said cost shall be

specially assessed by the governing authorities against the

own@rs and the property of the owners lying in the territory

so found to be specially benefited in enhanced value by said

special commissioners. The city shall pay such portion of

such cost as may be determined by the saidbspecial commis:

siongrs, provided the same shail never exceed one third the

cost, and the property owners and their property shall be

liable for the balance of the same as may be apportioned »

by said commissioners. The city may issue assignable cer-

tifieates for the payment of any such cost against such

property owners and may provide for the payment of any

cost in deferred payments, to bear interest at such rate as

may be prescribed by the charter not to exceed eight pert

cent. The city may adopt any other method for the opening,

straightening, widening or extending of its streets as herein

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provided for as may be deemed advisable, and charge the

cost of same against the property and the owner specially

benefited in enchanced value and lying in the territory of

said improvement, that ,its charter may — The

authority to adopt any other method shall include the man-

ner of appointing commissioners, the manner of giving

notice and the manner of fixing assessments or providing

for the paf¥ment of any such improvement. :

18. To control, regulate and remove all obstructions or

other encroachments or encumbrances on any public street,

alley or ground, and to narrow, alter, widen or straighten

any such streets, alleys, avenues or Moulevards, and to

vacate and abandon.and close any ‘such streets, alleys,

avenues or boulevards, and to regulate and control the mov-

ing 0 buildings or other structures over and upon the

streets or avenues of such city. 7

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APPENDIX “B”

Sec. 4. Street powers.

The City of Houston shall have power to lay out, estab-

lish, open, alter, widen, lower, extend, grade, narrow, care

for, sell, pave, supervise, maintain and improve streets,

- alleys, sidewalks, squares, parks, public places and bridges,

and to vacate and close th? same; and to regulate the use

thereof; and to require the removal from the streets and

sidewalks of all obstructions, telegraph, telephone, street

railway or other poles carrying electric wires, signs, fruit

stands, showeases, and encroachments of every character, ‘i

upon said stregts or sidewalks; to vaeate and close private : A

ways. (Act of RHO.) ' ~

Sec. 4a. Power of improvement by condemnation.

The City gf Houston shall also have power to open, ex-

tend, straighten, widen and improve any public street, alley,

avenue or boulevard and for such purposes to acquire the

necessary lands and to appropriate tlie same under the i

power of eminent domain, and to provide that the cost of ,

improving any such street, alley, avenue or boulevard by

opeping, extending and widening the same shall he paid bys

the owners of the property specially benefited whose prop-

erty lies in the territory of such improvement, and to pro-

vide that the cost shall be charged by special assessment,

and that a personal charge shall be maWe against any owner

for the amount due by him and to provide for the appoint-

ment, by the County J udge or other officer exercising like or

similar powers, of three spectal commissioners for the pur-

pore of condemning the said lands and for the purpose of

apportioning the said cost, which apportionment of said

coat shall be specially assessed by the governing authorities

against the owners and the preperty of the owners lying in

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the territory so found to y specially benefited in enhanced

value by the said special commissioners. That the eity shall

pay such portion of such cost as may be determined by the

said special commissioners, provided the same shall never

exceed one-third of the cost, and the property owners and

their property shall be liable for the balance of the same as

may be‘apportioned by said commissioners That the city

may issue assignable certificates for the payment of any,

such @st against such,property owners, and may provide

for tke payments of any such cost in deferred, payments, to

hear interest at such rate as may he prescribed by the Char-

ter, not to exceed 8 per cent... That the city may adopt any

.», other method for the opening, straightening, videning or

extending of its streets as herein provided for as may be

deemed advisable and charge the cost of Same against the

property and the owner specially be nefited in enhanced value

and lyirfg in the territory of said i improv ement that its Char-

ter may provide. That the authority to adopt any other

method shall include the manner of appointing commis-

sioners, the manner of giving notice and the manner of

fixing assessments or providing for the payment of any such

improvement.

The City Counci! shall have power to pass any and ail

ordinances necessary to carry out the provisions: of this

section. (Act of905, added by amendment, 1913.) -