State v. De Silva

145 S.W. 330

• Court: Texas Supreme Court
• Decided: March 27, 1912
• Status: Published

Opinion

BROWN, C. J.

The honorable Court of Civil Appeals of the First District has certified to this court the following statement and questions:

“This is an appeal, now pending in this court, from an order of the judge of the Sixtieth judicial district court of Texas, at Beaumont, refusing to grant a temporary injunction on application of the state of Texas by and through the county attorney. There arises on the appeal a question, material to its determination, which is both novel and of general importance, and which has never been decided in this state, and upon which we are unable to arrive at any satisfactory conclusion. Inasmuch as the question is one which we are sure will have to be passed upon by the Supreme Court in this case, and which it’ is highly important should be finally settled by your ho’norable court, we deem it the most satisfactory and expeditious way to have such decision to certify the question direct, and for that purpose the following statement of the case is made.

“On September 22, 1911, W. J. Giles, a property tax paying citizen of Jefferson county, presented to Hon. R. W. Wilson, county judge of said county, an affidavit, which is here set out in full.

“ ‘The State of Texas, County of Jefferson. W. J. Giles, having been first duly sworn, deposes and says: He is a property tax paying citizen of Jefferson county, state of Texas, and here makes affidavit that Benj. De Silva, who has a retail liquor dealer’s license to pursue the occupation, of a retail liquor dealer in Jefferson county, Texas, and who had such license on the 10th day of September, A. D. 1911, did, on the 10th day of September, A. D. 1911, violate a provision of chapter 17 of the Acts of the Thirty-First Legislature, to wit, section 14 of said act, in this, to wit: He, the said Benj. De Silva, did then and there unlawfully sell and barter one pint of whisky, the same then and there being an intoxicating liquor, to Stephen Gorlaske, between the hours of twelve o’clock midnight, 'Saturday, the 9th day of September, A. D. 1911, and 5 o’clock a. m. Monday, the 11th day of September, A. D. 1911. W. J. Giles.

“‘Sworn to and'subscribed before me, this the 22d day of September, A. D. 1911. Guy Robertson, Notary Public, Jefferson County, Texas. [Seal.]’

“Upon this affidavit, the county judge issued and had served upon the said Benj. De Silva a notice, as required by the statute, notifying him that the matter would be heard by him on September 29, 1911. On said date the honorable county judge made the following order:

“ ‘Ex parte Ben De Silva. In the County Court, Jefferson County, Texas. On this the 29th day of September, 1911, came on to be heard by the county judge of Jefferson county, Texas, the affidavit and application heretofore filed in this cause by W. J. Giles, to forfeit the liquor license granted to Ben De Silva on July 11, 1911, permitting him to pursue the business of a retail liquor dealer at 301 Austin street in the city of Port Arthur, Jefferson county, Texas; and the said county judge, at the hearing of said affidavit and the proof offered for and against the same, finds and determines that the said Ben De Silva has violated the provisions and conditions of his liquor dealer’s bond, and of chapter 17 of the Acts of the 31st Legislature, in that the said Ben De Silva did, in his said place of business, after midnight on Saturday the 9th day of September, and between that hour and 5 o’clock a. m. on the following Monday, to wit, the 11th day of September, 1911, knowingly sell and permit to be sold to Stephen Gorlaske intoxicating, spirituous liquor, and did then and there, between the hours aforesaid, open and keep open, and permit to be open and kept open, his said place of business for the purpose of traffic. It is therefore ordered and declared that the said license of the said Ben De ■Silva be and the same is hereby declared to be forfeited and canceled from and after this date. R. M. Wilson, County Judge, Jefferson County, Texas.’

“A motion for rehearing was made by De Silva, which was overruled. Thereafter, on October 12, 1911, tbe said De Silva presented to Hon. W. H. Pope, judge of tbe Fifty-Eigbtb judicial district, in open court, a petition wbicb was sworn to, setting out tbe proceedings aforesaid, and also a transcript of tbe evidence upon wbicb tbe honorable county judge bad made bis order, forfeiting tbe license of Benj. De Silva as retail liquor dealer, and praying ‘for a writ of certiorari, commanding tbe proper officer of Jefferson county to cite tbe Honorable R. W. Wilson to make out a certified transcript of tbe proceedings bad in said cause No. 2,533, Ex parte State of Texas v. Benj. De Silva in tbe matter of the forfeiture of bis license as a retail liquor dealer, to suspend tbe judgment rendered in said proceedings, and to transmit the same to tbe court on or before tbe return day of next term thereof; that defendant be cited to answer tbis petition; that said cause be tried de novo; that your petitioner have judgment setting aside tbe order of tbe county judge,’ etc.

“Upon tbe filing of tbis petition, tbe honorable judge of tbe Fifty-Eighth district set down tbe petition for rehearing on October 14th. Tbe county judge, appearing by tbe county attorney, answered, denying tbe right of said judge to issue tbe writ prayed for. Upon tbe bearing, tbe honorable district judge entered an order, asserting bis jurisdiction in tbe premises, granting tbe writ of certiorari as prayed for, ordering tbe writ to issue, returnable on or before the first day of the next succeeding term of bis court. It was further ordered that upon tbe execution of a bond in tbe sum of $1,000 a writ of certiorari issue to tbe county judge, commanding him to suspend and vacate tbe judgment and order made by him, forfeiting De Silva’s license, tbe bond aforesaid to operate as a supersedeas of said judgment.

“On October 27, 1911, tbe state of Texas, acting by and through the county attorney of Jefferson county, presented to tbe Honorable L. B. Hightower, judge of the Sixtieth judicial district (also at Beaumont) a petition sworn to by said county attorney, setting out in the petition and exhibits attached thereto tbe proceedings heretofore set out, and further alleging that the said Benj. De Silva continues to keep open bis saloon and place of business for tbe sale of intoxicating liquors in disregard of said order of tbe county judge, and was engaged in carrying on bis said business as a retail liquor dealer without having procured a license therefor, and without having first procured a license and paid taxes required by law, and without having bis said forfeited license reinstated, or tbe order of tbe county judge set aside or vacated by a court of competent jurisdiction, thereby becoming tbe creator and promotor of a public nuisance. It was alleged that the order of Hon. W. H. Pope was void, and that be bad no jurisdiction to issue the writ of certiorari.

“Upon these allegations, a temporary writ of injunction was prayed for to restrain the said De Silva from pursuing and engaging in the said business of a retail liquor dealer, with prayer that on final bearing tbe injunction be perpetuated. Upon tbe presentation of tbis petition to tbe Honorable D. B. Hightower, be indorsed thereon his refusal to grant tbe temporary writ, upon tbe ground that comity towards a court and judge of co-ordinate jurisdiction with his court rendered it indelicate and improper for him to do so, as it would require him to set aside tbe orders made by Judge Pope, and bring tbe two courts in direct conflict. Tbe purpose of such refusal, as stated, is to pass tbe matter up to tbis court on appeal. Tbe order is quite lengthy; but we do not deem it necessary to set it out in full.

“We have endeavored to make tbis statement as brief as possible for a full understanding of tbe questions certified. Tbe entire record will be sent up with this certificate, to which we beg to refer for a complete statement of tbe whole case, in ease we have, in tbe desire for brevity, unintentionally omitted any material fact.

“Tbe injunction was applied for under the provisions of subdivision 1 of section 1 of chapter 81, Acts of tbe 30th Legislature. Acts 1907, Regular Session, p. 166. The proceedings before tbe county judge were bad under the provisions of section 8, e. 17, Acts First-Called Session of tbe 31st Legislature. Acts 1909, pp. 296, 297. Tbe jurisdiction of the district judge to grant the writ of cer-tiorari is based upon tbe authority conferred upon district judges by the provisions of section 8, art. 5, of tbe Constitution.

“We have no difficulty in arriving at the conclusion that, if tbe affidavit of Giles is sufficient to call into action tbe power and authority of tbe county judge to forfeit De Silva’s license as a retail liquor dealer, and if tbe honorable district judge of the Fifty-Eighth district is without power to interfere, by the writ of certiorari, with tbe operation of tbe order of the county judge, tbe facts stated in tbe petition for injunction were sufficient to authorize and make it tbe duty of tbe honorable judge of tbe Sixtieth judicial district to grant the temporary writ of injunction under tbe provisions of the statute referred to. But upon these two points we are in doubt, and therefore certify to your honorable court tbe following questions:

“First. Is tbe affidavit of W. J. Giles, above set out, sufficient to call into action the power and authority vested in tbe county judge by section 8 of tbe Acts of 1909, referred to, or are the proceedings and order of the county judge void for want of jurisdiction?

“Second. Did the honorable judge of the Fifty-Eighth judicial district have the right, under the provisions of section 8, art. 5, of tbe Constitution, to issue tbe writ of cer-tiorari, and thereby remove the proceedings into that court for review, or to interfere in any way, by means of the writ of certiorari, with the due execution of the order of the county judge?”

[1, 2] To the first question, we answer: The affidavit was sufficient as a basis for the issuing of notice. It recited that the party had a license to sell intoxicating liquors at a certain place, and that he did sell at a time forbidden by law. This was not a proceeding in which the certainty of an indictment was required. A fair construction of the language of the affidavit disclosed to the county judge the facts upon which he was to issue his notice. The defect of the affidavit, if it was defective, could not confer jurisdiction upon the district judge to issue the certiorari ; the proceeding not being judicial in character. Section 8 of article 5 of our Constitution confers upon the district courts authority to issue writs of certiorari, which invests that court with power to use the writ for any purpose to which it could be applied, which is tersely stated thus: ‘‘Certiorari is a writ issued by a superior court to an inferior court of record, requiring the latter to send into the former some proceedings therein pending, or the records or proceedings in some cause already terminated in cases where the procedure is not according to the course of the common law. In such case, however, the officer or tribunal to whom the writ is issued must be an inferior officer or tribunal exercising judicial functions, and the proceedings sought to be reviewed must be judicial proceedings; for it is not the office of a common-law writ of certiorari to review ministerial acts, but only to correct errors of law apparent on admitted or established facts — never to settle disputed points.” 4 Ency. PI. & Pr. pp. 8, 11.

[3] The answer to the second question depends upon the character of the act of removal. Was it judicial? The fact that the person who declared the license forfeited was a county judge does not make the act judicial in character. That depends upon the matter in controversy, and the remedy applied. It would be a useless consumption of time to adduce authorities or arguments to the effect that a license to sell intoxicants is not a property right, but is a privilege granted by the state, which may be revoked. The state had the power to prescribe the manner of enforcing the law by revoking a license granted, which action was not judicial, but administrative or ministerial. In the matter of Saline County, etc., 45 Mo. 52,100 Am. Dec. 337. In Baldacchi et al. v. Goodlet et al., 145 S. W. 325, not yet officially reported, Chief Justice Pleasants of the Court of Civil Appeals of the First District discusses principles of law which apply to this case, and demonstrates the correctness of the proposition that the proceeding to revoke the license was not judicial.

The Honorable W. H. Pope, judge of the Fifty-Eighth judicial district, had no power to issue the writ of certiorari, and his action was void, constituting no obstacle to or reason against issuing the injunction.