Ex Parte Roper

134 S.W. 334, 61 Tex. Crim. 68, 1910 Tex. Crim. App. LEXIS 589

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 1910
• Docket: No. 916.
• Status: Published

Opinions

RAMSEY, Judge.

—On October 29th of this year an application for writ of habeas corpus was presented to Judge McCord of this court, was by him granted, and the case set down for submission before the full bench on November 9th of the present year.

The application is based on a number of grounds, all of which will be hereafter noticed. It appears in the record that about the 17th day of December, 1909, the county attorney of Johnson County made application to Hon. O. L. Lockett, judge of the Eighteenth Judicial District, alleging in substance that Ward Roper and R. B. Roper, who are alleged to be partners, had made application through relator, Ward Roper, to secure a license to engage in the sale of liquor on prescription. At this time local option was in effect in Johnson County, and had been for some years; that subsequent to this and a short time before the filing of the petition for injunction relator had violated the provisions of said license and had made sales of whisky to certain persons named in the petition. After setting all of these matters out in great detail, the petition contains the following averment: “Plaintiff would further aver that R. B. Roper and Ward Roper, doing business as druggists in the place above mentioned, have under the pretense of selling and dispensing intoxicating liquors on a prescription in said Johnson County, Texas, where the unlawful sale of intoxicating liquors has been prohibited by law since the 19th day of June, 1904, and up to the filing of this petition, sold said intoxicating liquors in violation of the law, as above mentioned, and have thereby become the creators and promoters of a common and public nuisance that ought and should be abated.” The petition prays, therefore, for a writ of injunction to issue restraining relator and B. B. Boper, or either of them, their agents, servants, employes and assigns from selling or permitting to be sold, or kept for the purpose of unlawful sale any intoxicating liquors in their said place of business situated in Cleburne, Johnson County,' Texas, as above mentioned, and from creating and promoting a common and public nuisance at their place of business. In his fiat indorsed on said petition on the 17th day of December, the district judge directed the issuance of a writ of injunction as prayed for. The injunction, which was in fact issued, goes rather beyond the terms of the petition and is to this effect: “You, your agents and employes are hereby commanded to restrain and desist from in any manner or way selling intoxicating liquors in any place in Johnson County, Texas, and from establishing, maintaining or conducting in any place in said county where intoxicating liquors are sold, kept or drank, and from permitting the same to be sold, stored, kept or drank in any place controlled by you, your agents in said county, until the _ further order of said District Court.” In the answer of relator, which included a number of matters as grounds of resisting the attempted imprisonment, it is alleged as a matter of fact, by relator Ward Boper, that he had no financial interest in the business which, he says, was conducted by his son B. B. Boper. He admits in this answer that he had obtained the license from the State, as well as the federal license, on account of the fact that his son B. B. Boper was then a minor and presumably unable to obtain same, and that he took it out for his son. It is shown further in the testimony of relator that he rented the building in which was conducted the business, but claims that this was for his son. The answer was not sworn to. The petition charges a partnership between B. B. Boper and Ward Boper. In the absence of any denial of partnership, the court is authorized to assume its existence. Besides, if such inquiry could be permitted there is evidence in the record sufficient to show relator’s connection with the business. On hearing the court found relator guilty of a violation of the injunction, and assessed a fine against him of $100, and adjudged that he be confined in the county jail for two days.

1. Among other grounds of relief it is urged that the District Court has n'o authority to issue an injunction under conditions as disclosed in this record, for the reason that in substance it is an attempt to prevent the commission of crime by an' injunction, and that this is not permitted or sanctioned by law. Almost this precise question came before this court in the case of Ex parte Allison, 48 Texas Crim. Rep., 634. The injunction in that case was issued by Hon. O. L. Lockett, restraining Allison from the use of certain premises as a gaming house. Passing on this question Judge Henderson, speaking for the court, says:

It is urgently insisted by relator that the injunction granted was without authority of law, because it was au attempt on the part of the court to enjoin the commission of a criminal offense. This contention may be conceded as a general proposition. State v. Patterson, 14 Texas Civ. App., 465, 37 S. W. Rep., 478; Ex parte Warfield, 40 Texas Crim. Rep., 413. However, the respondent insists that the grant of the injunction in this case was not an attempt to enjoin the commission of a criminal offense, but was an injunction granted against the use of property, the using thereof constituting it a nuisance; and furthermore, respondent urges that, notwithstanding, under the English system of equity jurisprudence, which has come down to us, that courts will not enjoin the commission of crime as crime, yet it is entirely competent for the Legislature to create other matters the subject of equitable cognizance than those recognized under the general system of equity.

“With regard to the first proposition, we believe it will be conceded that where property rights are involved, courts will issue injunctions notwithstanding it may embrace a crime; or if it should not be so conceded, we believe, on principle and authority, that this proposition can not be gainsaid. It will be noted that the Act in question is aimed at the restraining of persons from using certain premises or buildings, for the purpose of gaming, or of keeping or exhibiting games prohibited by the laws of this state; and does not seek to punish such persons for so using said premises or buildings. As was said in Warfield’s case, 40 Texas Crim. App., 413, ‘An injunction is a mere restraining order, and it will be presumed that the party against whom it is granted will obey it as long as it continues in force; otherwise, as the issuance of the writ is a proper exercise of equity, he will move to dissolve it. A gambling house, under our statute and as recognized by our courts, is a nuisance, and even at common law, as we understand it, such a nuisance could be enjoined at the instance of any one who was injured thereby. Our statute enlarges this right, and assumes that any person within the jurisdiction is injured, and that he can make complaint and have the restraining order issued. Patterson v. State, supra, relied on by relator, recognizes the rule that a gambling house is a nuisance and can be abated; and that the writ will lie when property or civil rights are involved and some irreparable injury to such right? is threatened or about to he committed for which no adequate remedy exists at law. It is said further: ‘The injury threatened to such rights may, if committed, constitute a crime, and subject its perpetrator to punishment under the criminal law, yet, as his punishment would furnish him whose property or civil rights had been irreparably injured by the acts constituting the offense no compensation for such injury, courts of equity will interfere to prevent such an injury, notwithstanding the commission would constitute a criminal offense, not because it would be a crime, but because the injury to such rights would be irreparable. It can not be said that such interference by a court of equity is an invasion into the domain of criminal law, for no crime has been committed where equity interposes its arm for the protection of property or civil rights. In extending such protection, it may prevent a crime; but, as no one has a right to commit crime, no one should be heard to complain that he is restrained from its commission, when such restraint has been exercised in the jurisdiction of a court for the purpose of preventing him from irreparably injuring another in his property or civil rights.’ The court in that case even recognizes the right of the State, through her proper officers, to enjoin a public nuisance, but that the State must show in such case that the nuisance is an injury to the property or civil rights of the public at large. It was there held that the State did not show such injury to property or civil rights of the public, and an injunction would not lie. This case was decided before the Act of the Legislature upon which the injunction at bar was granted, was passed. The Act in question was evidently passed to meet the defects pointed out by the court. Here it is provided that such injunction may issue at the instance of any citizen of the State, who is authorized to sue in his own name; and that such person shall not be required to show that he is personally injured by the acts complained of. How, if the Legislature was lawfully authorized to make the provisions in the law, as above pointed out, no one can question the legality of the writ of injunction; and it lies with those challenging the power of the Legislature to point out that provision of the Constitution inhibiting the Legislature from passing such an Act. And see Carleton v. Rugg, 5 Law Rep. Ann., 193, and for authorities, 11 Am. & Eng. Ency. of Law, pp. 195-197. It must be presumed that the Legislature recognized that the use of such property for gaming purposes was injurious to the public welfare and morals of the community; and under its police power it had the right to enjoin such use.” Later this same ease came before our Supreme Court. See Ex parte Allison, 99 Texas, 455. That case, as the record will show, was most elaborately briefed and thoroughly considered. Chief Justice Gaines, speaking for the court, in his usual masterly style, disposes of this contention in this manner:

“It is also urged in argument, in a somewhat indefinite way, that the enjoining of crimes or public nuisances was unknown to the common law, and that therefore the Legislature was without power to provide for such injunction. This involves the question whether the procedure provided for in the Act is ‘due course of the law of the land.’ This question has been answered by the Supreme Court of the Hnited States in the ease of Mugler v. Kansas, 123 U. S., 623. There the court say: ‘Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law.’ ‘In regard to public nuisances,’ Mr. Justice Story says, ‘the jurisdiction of the courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is ap plicable not only to the public nuisances, strictly so-called, but also to purpresture upon the public rights and property. ... In case of public nuisances, properly so-called, an indictment lies to abate them, and to punish the offenders. But an information, also, lies in equity to redress the grievances by way of injunction.’ (2 Story’s Eq., secs. 921, 922.) 'The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of only new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury.’ If it be asserted that the procedure for the prevention of crime is novel and unknown to the common law, the answer is obvious. It seems that from the days of Edward the Confessor it was competent for any subject of the realm of England to cause any person to be brought before a magistrate, and to compel him to enter into an obligation, with sureties, to' keep the peace, not only as against the complaining party, but also as against all persons in general. (4 Blackstone Com., 251.)

“Besides the whole of title 3 of our Code of Criminal Procedure is devoted to the means for the prevention of crime, and provides very much of the same remedies as were allowed at common law. Such being the facts, we fail to see that there is any peculiarity about the writ of injunction, or any peculiar sanctity about criminal or quasi criminal acts, which debar the Legislature from providing that one may be enjoined by a suit in equity from establishing a public nuisance —stich as a gaming house.” There is also a most satisfactory treatment of this question by the Court of Appeals in Kentucky, in the case of Respass v. Commonwealth, 115 S. W., 1131, where they considered quite a similar question. That court says:

“But it was earnestly insisted that the rule should not be applied to nuisances which affect only the morals of the community. We can not see the force of the distinction. The State is interested in the character of its people, no less than in their health or personal safety. The character of a State depends upon the character of the individuals constituting it. If the people become depraved the State can not long exist. If they have wealth it may have all that goes to make a great State, and yet, if its men are without character, it is a crumbling ruin. The State is as much interested in restraining those things which destroy the character of its people as in those things which destroy their health or personal security. A house such as is described here is not only a rendezvous for the vicious, but a training school to make others like them. That such a house is a public nuisance has been often declared. See Bollinger v. Commonwealth, 98 Ky., 574, 55 S. W., 553; Cheek v. Commonwealth, 79 Ky., 359; Commonwealth v. Enright, 98 Ky., 635, 33 S. W., 1111; Commonwealth v. Respass, 50 S. W., 549, 21 Ky. Law Rep., 140; Cawein v. Commonwealth, 61 S. W., 275, 22 Ky. Law Rep., 1734. To say that a court of equity may not enjoin a nuisance of this sort, when the criminal laws have proven inadequate, is to say that the commonwealth is unable to protect its citizens. If it may protect its citizens by injunction from such a use of property, as would breed a pestilence among the people, upon what principle can it be maintained that it may not by injunction prevent that use by which, while it does not destroy the body, destroys the character, and leaves only the image of a man, unfitting him for the duties of citizenship? We held in Commonwealth v. McGovern, that a court of equity may enjoin the owner of property from allowing it to be used for a prize fight, which congregated upon it a large body of that class of persons that are described here. The same conclusion in effect has recently been reached in State v. Canty, 207 Mo., 439, 105 S. W., 1078, 15 L. R. A. (N. S.), 747, by the Supreme Court of Missouri, where a bill like that before us was filed by the Attorney-General to enjoin the defendant from continuing to manage and conduct a public exhibition known as ‘bull-fighting’ and ‘bull-baiting.’ The court went very fully into the authorities, and granted the injunction. In Columbian Athletic Club v. State, 143 Ind., 98, 40 N. E., 914, 28 L. R. A., 727, 52 Am. St. Rep., 407, the court granted the injunction restraining a prize fight, the decision being substantially the same as in Commonwealth v. McGovern. In State v. Olympic Club, 47 La. Ann., 1095, 17 South., 599, the same conclusion was reached, and the use of property for a prize fight was enjoined. A like conclusion was reached in State v. Saunders, 66 N. H., 39, 25 Atl., 588, 18 L. R. A., 646; Chicago Fair Grounds Association v. People, 60 Ill. App., 488, and Reaves v. Oklahoma, 13 Okla., 396, 74 Pac., 951. See also Attorney-General v. Jamaica Pond Aqueduct, 133 Mass., 361; State v. Crawford, 28 Kan., 726, 42 Am. Rep., 182; Re Debs, 158 U. S., 564, 15 Sup. Ct., 900, 39 L. Ed., 1092; Attorney-General v. Hestley, 1 Ch., 560 (Eng.); People v. Truckee Lumber Company, 116 Cal., 397, 48 Pac., 374, 39 L. R. A., 581, 58 Am. St. Rep., 183; note to Akers v. Marsh, 9 Am. & Eng. Dec. in Equity, 453; Mercer County v. City of Harrodsburg, 66 S. W., 10, 23 Ky. Law Rep., 1744, 56 L. R. A., 583; Attorney-General v. Hunter, 16 N. C., 12.” Other authorities might be cited in support of the right of the State in such case to proceed by way of injunction, but what we have cited seems conclusive.

2. Again, it is urged as grounds of release that the writ of injunction goes beyond the power of the court to restrain appellant from the unlawful use of property and to engage in unlawful sales, but effectually restrains him from selling under prescription and in accordance with the law, It may be conceded that the writ, as issued, goes be yond the prayer in the petition for injunction and beyond the precise limits authorized by law. This would not, however, render the injunction granted absolutely void, but so far as the court was authorized to issue an injunction it would and should be upheld. This, as we understand, was directly held by our Supreme Court in Ex parte Testard, 101 Texas, 250. In that case the Supreme Court says: “The petition and the writ in this case undoubtedly stated a case in which, under the decision referred to, the right to the injunction existed, and the ticket which relator is charged with selling fell within the class thus protected. If the petition and writ went further, and it were conceded that it was to that extent invalid, the concession would not help the relator. He sold a ticket the sale of which, under any view, was properly enjoined. But we can not admit the proposition that he had the right to disregard any part of the writ. We think it proper to say further that, if it were conceded that the courts of the State are without power to protect carriers of passengers in their interstate, as well as in their intrastate transportation, this could not avail. The injunction applied also to intrastate tickets, and that in question belonged to that class. But we are unable to see that the power of the courts of the State to protect the business of carriers of passengers from unlawful interference is at all affected by the character of the business, as interstate or intrastate.” Therefore, this matter can not avail appellant as ground of relief. It was his right, certainly—perhaps his duty—to have moved for a modification of the injunction. He was not authorized, merely because it was too sweeping, to disregard it altogether.

3. Again, it is complained and urged that the proceedings are invalid, and that appellant was entitled to release for that two terms of court intervened after the temporary writ of injunction had been issued, and there had been no trial, nor had there been any order issued continuing the injunction in force. The contention is in substance, as we understand, that this in effect denied appellant the right of a speedy trial and enjoined him in respect to matters involved without an opportunity for a hearing. It seems manifest that where a preliminary injunction is once granted, in the absence of a motion to dissolve same, or any action of the court in respect thereto, that it continues in force until the matter is finally heard and determined. If there had been a deliberate refusal of the court to proceed with the case at all, on a proper showing, it is clear that relator would have a right to mandamus to compel such hearing. In this record, however, it does not appear that any hearing was ever in fact demanded or refused. It simply appears that the injunction was issued in December and the case had not been disposed of when these proceedings were had in the October following. In this condition and pending a hearing, it was the duty of relator to stay his hand to respect the law, and he will not be heard when he violates the court’s mandate to complain, or when visited with the punishment the law authorizes, that he had not been given a speedy trial where no such trial had been demanded in the original case.

4. Again, it is urged that the proceedings were invalid for that the local option election alleged was held in Johnson County in April, 1904; that the law authorizing an injunction herein was not passed until 1907, and since said law authorized an additional penalty for violation of this law as applying to an election theretofore held, it imposes an additional burden, is ex post facto and invalid. It seems to us that there is no merit in this contention. It is not provided by the Act in question that any additional punishment shall be visited on one violating the local option law for any sale made contrary to its provision. This is merely a statute of regulation, a statute affecting the remedy in aid of the law, and in no sense is a different or additional penalty added thereto. Laws which affect the remedy or procedure merely are not within the scope of the inhibition against retroactive laws, unless the remedy be entirely taken away, or so encumbered with conditions as to render it useless or impracticable. De Cordova v. Galveston, 4 Texas, 473; Morris & Cummings v. State, 62 Texas, 728; Languille v. State, 4 Texas Crim. App., 312; Rowland v. State, 12 Texas Crim. App., 418, sec. 4. For can it be maintained that the Act in question is invalid because it denies the right of trial by jury. Thright of trial by jury in respect to the offense against the law is not controverted by this Act. The matter inquired into by the court in this proceeding relates strictly to the matter of contempt and to the violation of the court’s order. This was clearly held by this court in Ex parte Allison, 48 Texas Crim. Rep., 634, supra.

5. For is it correct to say that this law imposes an additional punishment for the same offense. In treating this precise question in Ex parte Allison, 99 Texas, 455, supra, Judge Gaines says:

“For do we think that the Act in question infringes that provision of the Bill of Rights which declares that ‘no person, for the same offense, shall be twice put in jeopardy of life or liberty.’ It is true that if he commits the act which he is enjoined from committing, and such act be a violation of the penal laws of the state, he may under this statute be punished for contempt, and also for the violation of the criminal law. But these are not ‘the same offense.’ In the former case he is punished for a violation of the orders of the court, and in the latter for an offense ‘against the peace and dignity of the State.’ One who makes an assault in the presence of the court, in such a manner as to constitute a contempt of court, is punishable, not only for the contempt, but also for the assault.”

We have thus treated at some length all the matters urged by relator as grounds of release. They are all without merit, and for the most part are well settled by this court and our Supreme Court. We have, however, had before us recently a number of cases involving these questions. Their importance and the almost entire change in the personnel of this court within recent years has seemed to be sufficient reason why we should again review the questions and decide them. They all seem to us to be without merit, and upon an inspection of the entire record and careful consideration of- same, we have been led to the conviction that there is no ground shown in the application entitling relator to a release, and it is, therefore, ordered that he be and he is hereby remanded to the custody of the sheriff of Johnson County, Texas.

Relator remanded to custody.